text:
    HAWKINS v. CASTENHOLZ.
    1. Justices of the Peace — Venue of Transcript — Affidavit-Judgment.
    An affidavit for a transcript of judgment from justice s to circuit court (3 Comp. Laws, § 848), sufficiently showed the venue and the parties, where it was entitled in justice’s' court, before the justice of the county named, and the names of the parties were given in usual order without stating which was plaintiff or defendant.
    3.Same — Transcript of Judgment — Sufficiency.
    And it sufficiently showed that the judgment was in favor of the parties plaintiff where one of the plaintiffs, as affiant, stated that the judgment was rendered in his favor; the failure to be more precise was not fatal.
    3. Same — Short Summons.
    A short summons need not show upon its face that plaintiffs are nonresidents.
    4. Same — Process—Summons—Alias Writ.
    After the return of a summons issued on February 30th, against several joint defendants, who were all served but one, the writ being returnable February 36th, and being returned on the 35th, showing one defendant not served, was properly followed by an alias summons which issued after it was too late to serve the original process, on the day before the return day.
    5. Same — Continuance—Alias Summons.
    The justice was required by statute to adjourn the case on the return day until the return day of the alias summons, and did not lose jurisdiction by so doing.
    6. Same.
    Whether the return day of the alias writ was improperly made five instead of six days from its issuance was a point that could only be raised by the defendant who was to be served under the second writ, not by his codefendants.
    Certiorari to Muskegon; Sessions, J.
    Submitted January 16, 1912.
    (Docket No. 74.)
    Decided July 11, 1912.

      Assumpsit by Lewis E. Hawkins and another in justice’s court against Nicholas Castenholz, Daniel McNitt, and Andrew C. Smith, upon a promissory note. Plaintiffs issued a transcript to the circuit court. An order granting defendants’ motion to quash the execution issued thereon and dismissing the transcript proceedings is reviewed by plaintiffs on writ of certiorari.
    Reversed.

      Corie C. Coburn and Thompson & Temple, for appellants.

      Turner & Turner for appellees.
   McAlvay, J.

Plaintiffs, copartners, recovered a judgment on March 2, 1901, against defendants, copartners, in justice’s court in Muskegon county upon a promissory note executed and delivered to them by defendants. Upon this judgment in due course an execution issued and was returned unsatisfied. A transcript of said judgment was taken on February 20, 1907, to the circuit court for Muskegon county, upon which transcript an execution issued on February 28, 1911, to the sheriff of Ottawa county. The return to this writ of certiorari does not disclose what was done under and by virtue of this execution. (We find such statement made in the affidavit for certiorari.) It appears, however, that on March 16, 1911, one of said defendants, Daniel McNitt, by his attorneys, gave notice of a motion to be made by him to dismiss the transcript mentioned and recall the execution issued upon it. This appearance was for the purposes of the motion only. The reasons upon which the omotion was based will be stated as they are discussed. This motion was heard before the court and granted. The transcript proceedings were dismissed and the execution recalled. From such order and judgment of the court the plaintiffs have removed the case to this court by writ of certiorari for review.

In passing upon the motion of defendant McNitt to dismiss the transcript and recall the execution, the learned circuit judge did not file an opinion stating which of the reasons urged by defendant were considered sufficient. Appellant’s contention is that none of them were well taken, and he claims that the court was in error upon all of them.

The first reason urged by defendant McNitt in his motion to dismiss the transcript and recall the execution was that the affidavit therefor had no venue, and it did not show that the judgment was rendered in favor of the plaintiffs and against defendants. This affidavit is entitled “ In Justice Court,” which is followed by the names of all the parties to the suit in proper order, but does not add the words plaintiffs and defendants. It then proceeds: “Before Patrick A. Murphy, One of the Justices of the Peace in and for the County of Muskegon, State of Michigan.” This objection to the venue is purely technical and of no force. The above amounted to sufficient venue.

It is claimed that the affidavit does not show that the judgment was rendered in favor of the plaintiffs and against the defendants. The question is whether the judgment has been sufficiently described. The plaintiff Hawkins, who made the affidavit, describes himself as one of the above named plaintiffs, and—

“Says that there is now due and remaining unpaid upon the judgment heretofore on the 2d day of March, A. D. 1901, rendered in the above-entitled cause by John M. Carr, justice, in favor of this deponent against the above-named defendants, the sum of $275 exclusive of costs.”

This is followed by giving the amount of the costs and setting forth all the statutory requirements of such an affidavit. This is an affidavit made by one of the plaintiffs. The judgment was in his favor as one of the plaintiffs. He has omitted to state that it was in favor of both of them. Such omission was not misleading and was not a fatal defect. The requirement of the statute (section 848, 1 Comp. Laws) relative to this affidavit provides that—

“The party in whose favor such judgment shall have been rendered * * * may make and deliver to the justice of the peace having control of such judgment, an affidavit stating the amount due on said judgment.”

This objection cannot be sustained. The affidavit was sufficient. No other questions are raised as to the formalities of this transcript.

The next contention on the part of the defendant was that it appears from the justice’s judgment and such transcript that the justice never had jurisdiction to render the judgment against defendant McNitt. The 11 specific grounds for such contention are grouped, and will be so considered as may be necessary.

A more intelligent consideration will be possible if the material matters contained in this transcript are briefly stated. The record of the judgment was in the control of a succeeding justice, who certifies correctly the entire transcript of the record. This transcript shows that this case was brought before John M. Carr, justice of the peace, giving correctly the names of the parties and naming them as plaintiffs and defendants. It appears that on February 20, 1901, summons issued returnable before the justice at his office in the city and county of Muskegon on February 26, 1901, at 9 o’clock a. m. On February 25th the summons was returned personally served on defendants Andrew C. Smith and Daniel McNitt by giving each a copy on the 21st day of February, 1901, in said county; and that defendant Nicholas Castenholz could not be found in said county. On the same date, February 25th, on request of plaintiffs, an alias summons was issued returnable at the same place on March 2, 1901, at 9 o’clock a. m. On February 26th, the return day of the original summons, at 9 o’clock a. m., the case was called at the justice’s office.

“Plaintiff appeared by Attorney GeorgeS. Lovelace, and it appearing that the summons had not been served on one of the defendants, Nicholas Oastenholz, and that alias summons had been issued by request of plaintiff’s attorney returnable on the 2d day of March at 9 a. m., cause was continued by the court to the 2d day of March, 1901, at 9 a. m. at my office aforesaid. Alias summons returned personally served on defendant Nicholas Castenholz by giving him a copy thereof in said county by V. O. Clinger. Deputy sheriff’s fees $2.75.”

The transcript further reads:

“March 2d 9 a. m. case called at my office. Plaintiffs appeared by Attorney George S. Lovelace, who proved his authority under oath to so appear, waited one hour, and there being no appearance made by or on the part of the defendant, I proceeded to trial of this case without a jury. Plaintiff declared orally on all matters and things provable under the common counts in assumpsit and specially on a certain promissory note filed herewith and claims damages $300 or under. George S. Lovelace was sworn and testified on part of plaintiff and cause submitted to me. I thereupon did forthwith render judgment against the defendants and in favor of the plaintiffs, for the sum of two hundred and seventy-five and xj-g- ($275.01) damages and costs of suit. Cost taxed, $7.35.
“John M. Carr,
“Justice of the Peace.”

Prom this transcript it appears that the original summons in the case was a short summons issued February 20th, returnable February 25th at nine a. m., and was personally served on defendants Smith and McNitt in Muskegon county on February 21st, and returned and filed February 25th, showing also that defendant Castenholz was not served because not found in the county. On this same date, February 25th, being too late to make service on him, the alias summons issued and was personally served on Castenholz the same day, in Muskegon county, and due return made.

On February 26th, the return day of the original summons, the justice, by reason of the fact that an alias summons had been issued, continued the case as provided by statute (section 720) until March 2d, at 9 a.m., the date and hour of the return of the alias summons.

The only question we find involved is whether by so doing the court lost jurisdiction of the parties and could not render a valid judgment. Defendant McNitt contends that such act vitiated this judgment. Provision is made by statute that, if either plaintiff or defendant is a nonresident of the county, a short summons may be the process. The question of the residence of the parties is not at issue in this case. It has not been raised. A short summons need not show upon its face that plaintiffs are nonresidents. As has been said by this court:

“ The statute does not require any such recitation. See Allen v. Mills, 26 Mich. 128. If the facts had not been such as to justify the use of a short summons, the defendants, on making the fact to appear, would have entitled themselves to an order dismissing the cause.” Stoll v. Padley, 98 Mich. 13 (56 N. W. 1042). Approved in Grand Rapids Nat. Bank v. Kritzer, 116 Mich. 689, 690 (75 N. W. 90).

We have the situation, then, of plaintiffs in this case causing a short summons to be issued. The suit was on a contract against three joint defendants. Due and regular service was had on two of them. A return showed that the third contracting defendant could not be found in the county. A request by them for an alias summons was granted on February 25th, a day before the return day, and after it was too late to make service under the original summons. The statute in these cases provides that the application for an alias summons may be made at any time within four days from the return day of the summons. Whether this might be construed as including four days before the return day was, in a recent case, not considered necessary to be passed upon, evidently for the reason that it issued on the return day. There can be no reason against, the construction that an alias summons might be issued in the case of contracting defendants at any time (within the statute).after the period for a lawful service on the defendant not served had expired. This can be no hardship to his codefendants. This court said:

“The purpose of the act was to facilitate actions against joint defendants. * * * The defendant served might naturally desire to have his eodefendant brought in.” Brown v. Knop, 137 Mich. 234 (100 N. W. 466, 101 N. W. 227).

This court also in that case held a return to the original writ, in form as in this case, sufficient to warrant the issuance of an alias writ; and, further, that the justice was under no obligation to wait one hour for the defendant to appear before adjourning the case for the purpose of an alias summons.

In this case just cited, the statement of the court relative to when an alias might issue, in view of the statement made earlier that it was not necessary to be decided, must be considered as dictum. It was not necessary to the decision of the case. We think such a construction as above indicated to be a reasonable one. The provision of this statute is mandatory, that, having issued an alias writ, the justice must on the return day of the original writ continue the cause upon his own motion until the return day of the alias writ. The justice obeyed this mandatory provision and continued the cause. The court had obtained jurisdiction of the persons of defendants Smith and McNitt by due service of the original writ, and upon the return day, except for the intervention of an alias writ, could have entered a valid judgment upon this promissory note. They did not appear upon the return or upon the day to which the cause was continued, when judgment, as the record shows, was entered against all of the defendants; service having been had upon Castenholz under the alias writ. None of these defendants appealed from this judgment. The contention is that because of this claimed fault in this alias writ the court lost jurisdiction of the case.

In this case the alias writ was made returnable on the fifth day after its issuance, including the return day, and was served on the date it issued. About this proposition this entire contest centers. Defendant McNitt contends that the writ should have been returnable one day later.

In our opinion, under this statute it was a question which, after judgment, could be raised only by the defendant Castenholz. Smith and McNitt in no view of the case are prejudiced. They are in fact benefited, according to the view of this court as expressed in a discussion of the object of benefits of this statute, in Brown v. Knop, supra, and our conclusion is in accordance with the right and justice of the matter.

Our determination of the case is therefore that the transcript showed a good and valid judgment, and that the errors relied upon by appellants are sustained.

The judgment of the circuit court is reversed and set aside.

Moore, C. J., and Steere, Brooke, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    GROENDAL v. WESTRATE.
    . 1. Limitation of Actions — Malpractice—Fraudulent Concealment-Physicians.
    Plaintiff’s action for malpractice of her physician was not barred by the two-year statute of limitations (3 Comp. Laws, § 9739, as amended by Act No. 168, Pub. Acts 1905), if defendant fraudulently concealed from her the cause of action, by insisting falsely that she was only bruised, that' her shoulder had not become dislocated, plaintiff relying on his advice and bringing suit within two years after discovering that she had in fact suffered a dislocation of her shoulder.
    2. Fraud — Concealment—Statutes—Negligence.
    The questions of fraud and of plaintiff’s diligence in discovering the fact were for the jury where the evidence tended to support plaintiff’s claim that she was injured by a fall, that defendant, who had been her family physician for years and was of her own nationality, informed her that her shoulder was only bruised, treated her with liniment, failing for two years to take any ordinary precaution to ascertain the truth, that her arm remained useless, and when another physician advised her that it was dislocated, defendant insisted it was not; and plaintiff was entitled to have considered defendant’s admission that he discovered the dislocation when he first attended her.
    Error to Kent; Perkins, J.
    Submitted January 19, 1912.
    (Docket No. 67.)
    Decided July 11, 1912.
    Case by Arentje Groendal against Paul Westrate for malpractice. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on error.
    Reversed. *

      Linsey & Shivel, for appellant.
    Bundy, Travis & Merrick and Butterfield & Keeney, for appellee.
   McAlvay, J.

This is an action brought by plaintiff against defendant, a practicing physician and surgeon in the city of Grand Rapids, for damages for malpractice. Defendant pleaded the general issue, with noticé of the statute of limitations. The trial resulted in a verdict in favor of defendant, directed by the court, after both parties had rested. The case is here upon a writ of error by which plaintiff seeks a reversal. The principal error relied upon relates to the direction of a verdict by the court.

Eor the purposes of this determination, the evidence on the part of the plaintiff will" be given the most favorable construction it will bear, and, so considered, it establishes the following facts: On May 1, 1906, plaintiff, who is a heavy woman, was at work in her home in Grand Rapids, cleaning the stairs leading to the second story of the house, when she fell from the top step. By the fall she suffered a dislocation of the left humerus (upper arm) bone, called a subglenoid dislocation. This dislocation is so named when the upper end of this bone is forced downward from its place in the socket of the shoulder-blade. Defendant was called and attended her within about half an hour after the accident, and was informed how it occurred. Her husband and her daughter and Mr. Klyn, now married to her daughter, were present. On being asked, defendant, in their presence, stated that the arm was not out of joint or brokén; that it was just stretched and bruised. He took no steps to reduce the dislocation. He simply bandaged the arm and treated it with liniment. The dislocation was never reduced. The bones were in the same position at the time of the trial as when plaintiff was injured. Defendant continued to treat her at her house for several weeks, and afterwards at his office for several months, without giving her any relief. It appears that he again told her in January, 1907, that her arm was only stretched and strained, and that it might take two or three years before it became better, and never told her that it was dislocated at the shoulder; that she believed and relied upon what he told her relative to her injury; that she had known him for about 11 years, and he had been her family physician most of that time, during which she had no other physician; that he was a Hollander, of the same nationality with the plaintiff, and she conversed with him in her native tongue; that he saw her many times during 1907 and frequently asked her about her arm, and was told that its condition was unchanged. The arm was practically useless and so continued without improvement. She was first informed that her shoulder was dislocated by another physician in April, 1909. She told defendant of this information, and he said that it was not so. He concealed from her the fact that her shoulder was dislocated and always denied that such was the fact.

From the evidence in the record, as far as it relates to the question of negligence and malpractice charged, there is no doubt but that disputed questions of fact were presented for the consideration of the jury. The point upon which a verdict was instructed was that the right of action was barred by the statute of limitations.

The provisions of Act No. 168, Pub. Acts 1905 (being section 9729, 3 Comp. Laws, as amended), in force at the time this cause of action arose, among other things provides that all actions for malpractice against physicians and surgeons shall be commenced within two years after the cause of action shall accrue, and not afterwards. Plaintiff, in instituting her suit more than two years after the right of action accrued to her, relied and declared upon the provisions of section 9739,3 Comp. Laws, which reads:

“If any person who is liable to any of the actions mentioned in this chapter shall fraudulently conceal the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within two years after the person who is entitled to bring the same shall discover that he has such cause of action, although such action would be otherwise barred by the provisions of this chapter.”

The court held that there was no evidence in the case to go to the jury upon the question of fraudulent concealment from plaintiff by defendant of her cause of action within the above statute relied upon, and that plaintiff’s cause of action was barred by the statute of limitations, and directed a verdict accordingly.

It is contended that the record shows no reasonable diligence on the part of plaintiff to discover or detect the fraud, and that there is no evidence tending to show positive fraud on the part of defendant. In the consideration of the proposition under discussion, it must be kept constantly in mind that the question of the liability of defendant to plaintiff for damages for malpractice is not before us. We are considering the question whether she can get into court to try the case involved in that issue. We are to determine whether by her laches she has lost her right of action, or whether by the conduct of defendant it was fraudulently concealed from her. In determining both of these contentions, the relations of the parties, and the acts, statements, and representations of defendant to the plaintiff, must be critically examined.

The brief resumé of the case made by plaintiff herein contained shows: First, the relation of physician and patient, which, of itself, begets confidence and reliance on the part of the patient. This relation had existed for a term of years, and during that time she had no other physician. They were fellow countrymen, and Conversed together in their native tongue. She was ignorant and unlearned, and relied upon him and believed that he told her the truth. She maintained her trust in him until April, 1909.

Under the circumstances of this case, the question of her diligence to discover her condition was one of fact, to he submitted to.the jury. Smith on Frauds, § 87. The question of diligence has been frequently passed upon by this court in chancery cases, where fraud has been charged, applying the same principle. Barnes v. Brown, 32 Mich. 152, 153; Smith v. Werkheiser, 152 Mich. 177 (115 N. W. 964, 15 L. R. A. [N. S.] 1092, 125 Am. St. Rep. 406); Lewis v. Jacobs, 153 Mich. 664 (117 N. W. 325); Comfort v. Robinson, 155 Mich. 143 (118 N. W. 943); Hedin v. Surgical Institute, 62 Minn. 146 (64 N. W. 158, 35 L. R. A. 417, 54 Am. St. Rep. 628).

In considering the question of whether there was evidence in the case tending to show a fraudulent concealment by defendant of the cause of action, we need not confine ourselves to the case made by plaintiff, but may consider the admissions of defendant.

In addition to the evidence in the case presented by plaintiff, we have the testimony of defendant that he discovered the dislocation of plaintiff’s shoulder when first called to attend her. Whether he first knew it then, or discovered it later, when it was too late to reduce it, as the declaration charges, is of no consequence.

If her testimony and that of her witnesses is true — and it must be so taken in this discussion — the conclusion cannot be avoided upon this record that there was evidence to go to the jury tending to show that he fraudulently and purposely concealed from her the nature of her injury, which she was entitled to know, and made untruthful statements as to her condition.' In the instant case it was not a mere silence on the part of defendant which was relied upon. Defendant repeatedly told plaintiff that her arm was not broken or dislocated, assured her that it would require several weeks to recover from the injury; that it was only bruised and strained and the cords stretched. When she told him she thought the shoulder lower than the other, he told her that it only appeared so to her, and, finally, when confronted with the statement of another physician that her shoulder was dislocated, he protested that it was not so. We are not determining the weight to be given to this evidence; that is a matter for the consideration of a jury. We hold that there was evidence in the case to be submitted to the jury. The court erred in holding otherwise. No other questions require discussion.

The judgment is reversed, and a new trial granted.

Moore, C. J., and Steere, Brooke, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


author: Moore, C. J.

text:
    WALTON CRANBERRY CO. v. SEAMON.
    1. Waters and Watercourses — Flowage—Prescription—Limitation oe Actions.
    Rights of flowage may be gained in this State by prescription.
    3. Same — Dams—Marshes—Evidence.
    Evidence that complainants and their grantors, in possession of , a cranberry marsh, cultivated the plants for upwards of 35 years, employing a dam on an adjacent stream or creek to flow the marsh at intervals, and flooding defendant’s lands, as an incident of their use, corrobated by testimony of numerous witnesses showing the existence of the cranberry marsh and methods of culture at several distinct periods, supported a finding that complainants had secured prescriptive rights, although no witness could testify to continuous occupation throughout the statutory period.
    3. Same.
    Mere difference in methods of using the water, imposing no additional burden on defendant and not harming him, did not constitute such a change of user as to break the continuity of complainant’s prescriptive right.
    4. Same — Practice—Accounting—Damages.
    In the course of a hearing on a bill to restrain interference with complainant’s dam and right of flowage, it was not erroneous to receive evidence upon the question of damages caused by defendant who offered no objection to such action.
    Appeal from Wexford; Lamb, J.
    Submitted January 19, 1912.
    (Docket No. 118.)
    Decided July 11, 1912.
    Bill by the Walton Cranberry Company against Isaac N. Seamon and Lieu P. Haskins for an injunction, damages, and other relief. From a decree for complainant, against defendant Seamon, and dismissing the bill as to defendant Haskins, defendant Seamon appeals.
    Affirmed.

      Colin P. Campbell, for appellant.

      Gaffney & Miliner, for appellee.
   Moore, C. J.

This suit was commenced for the pur-

pose of obtaining an injunction requiring the defendants to remove an obstruction in the nature of a dam built by them across a stream of water, known as the “Little Creek,” at a point about 40 rods south of a dam across said creek, owned by complainant, and to obtain a restraining order prohibiting the defendants from placing any obstruction in said creek that would interfere with the flow of water released from the dam of the complainant, and for damages. The hearing was had in open court on pleadings and proofs, at the close of which the bill of complaint was dismissed as to the defendant Haskins, and a decree made restraining the defendants from maintaining said dam or placing any other obstruction in said creek that would interfere with the operation of the dam of complainant in using the waters of said creek in the cultivation of cranberries above said dam, and a judgment was also rendered against the defendant Seamon in the sum of $1,000 damages, from which decree the defendant Seamon appeals to this court.

It is the claim of the complainant that it has gained a prescriptive right to make use of the waters of said creek to flood its marsh as it becomes necessary in the cultivation and culture of cranberries, and to drain the water from the marsh into the creek by raising the slashboards of its lower dam at the proper time. On the other hand, the defendants contend that the complainant has not obtained the prescriptive rights claimed, and that they were acting within their rights in erecting the dam on their lands. Their answer is in the nature of a cross-bill, and makes the further claim that they were greatly injured by the flooding of their land, by reason of which they were damaged, and asks for an injunction restraining the further flooding of said land.

The circuit judge found that in the year 1885 De Witt O. Leach became the owner of a part of the lands now owned by the complainant, and particularly that portion known as the cranberry marsh; that he then and there began to prepare for the culture of cranberries, and planted a part of the lands to cranberry vines, and then there erected a dam across the “Little Creek;” that said dam has been maintained and used continuously by De Witt O. Leach and his assigns from the said year 1885 until the date of this trial in the propagation and culture of cranberries on the marsh in question, and that such use has been continuous, open, and notorious; that said dam was erected and used by Mr. Leach and his assigns to hold water-of said creek back on the .cranberry marsh when necessary in the proper culture of the vines, and to release the water and drain the said marsh when the necessity for the water covering had ceased; that the water was returned to the creek before being released, and, when released by raising of the slashboards of the dam, the water drained from the marsh, and the vines were thereby uncovered; that up to the time when the marsh became the property of the complainant the water was always dammed onto the marsh in the fall of the year and released in the spring, but that the complainant has made use of the dam to cover the vines at any time during the year when necessary to protect the vines or the fruit, and to release the same when protection was no longer needed; that early in the year 1910 defendant Isaac N. Seamon became the owner by purchase of the N. W. i of section 4, town 24 N., of range 9 W., and erected or caused to be erected a dam across the stream known as “Little Creek,” about 40 rods south of the dam of the complainant; that the land between the dam of the defendant and the dam of the complainant is to all intents and purposes on about the same level as the land above complainant’s dam, and is a continuation of the same marsh; that the defendant’s dam, with the slash-boards in, holds the water back on complainant’s cranberry marsh, and interferes with and prevents the drainage of said marsh as required by cranberry culture; that in the month of May, 1910, the defendant by the use of his said dam backed the water up and penned it in upon the cranberry marsh of said complainant, held it there to the damage of the said complainant in the weakening of vines, and the deterioration of the fruit in the sum of $1,000.

“ That complainant has not without right flooded the lands of the defendant Isaac N. Seamon, and to whatever extent and in whatever manner the complainant has drained its marsh into Little Creek ’ below its dam it has gained a right so to do by long, open, continuous, and notorious user. In the argument of the case the defendant has made the claim that the complainant is now employing, and has for some time employed, a different method of using the water in the culture and protection of the vines from that formerly made use of by its grantors, and that by making such change in its manner of using the water the complainant has broken the continuity of user necessary to give the right relied on. In my judgment it is the continuity of purpose and use rather than the continuity of the manner of using that should be the controlling factor in the decision of the question. Taking that view of it, the claim is without foundation. Some objection is raised to the maintenance of the upper dam by the complainant. _ As I view it, the use and maintenance of that dam is no concern of the defendant, if it does not interfere with the natural flow of the stream, and that it does not is conclusively shown by the testimony in the case, except as diverted for use on the cranberry marsh.”

In our view, the important question in the case is one of fact. It is well settled in this State that the rights of flowage of lands may be gained by prescription. Conklin v. Boyd, 46 Mich. 56 (9 N. W. 134); Gregory v. Bush, 64 Mich. 37 (31 N. W. 90, 8 Am. St. Rep. 797); Shearer v. Middleton, 88 Mich. 621 (50 N. W. 737); Cornwell Manfg. Co. v. Swift, 89 Mich. 503 (50 N. W. 1001); Hoag v. Place, 93 Mich. 450 (53 N. W. 617, 18 L. R. A. 39); Williams v. Barber, 104 Mich. 31 (62 N. W. 155).

This is not seriously questioned by appellant, but he makes the following claims:

“Therehas not been such an occupancy as would give rise to a perpetual right from the nature of the occupancy.”

The argument is ( we quote from the brief ):

“It should be borne in mind that the rule which we are insisting applies to this case is that the erection of the dam was not an invasion of defendant’s rights, because the dam would not necessarily ex proprio vigori interfere with the defendant or his property. It required the intervention of some human agency to make it an interference with defendant’s right. The invasion of such right was the closing of the flume and the holding back of the water, or the opening of the flume and the letting down the water the act of some trespasser, and not the erection of the dam. Now, I insist that each time either of these things was done a new trespass was committed, plaintiff’s right was then interfered with, and a new cause of action arose, not because of the dam, but because of the trespass and the act of the trespasser who caused the holding of the water or who permitted it to come down, and the right of action would date from each trespass, for the trespass, not to eject an intruder, or to recover possession, but to recover damages for the trespass., Hughesville Water Co. v. Person, 182 Pa. 450 [38 Atl. 584]; City of Augusta v. Lombard, 101 Ga. 724 [28 S. E. 994]; Athens Manfg. Co. v. Pucker, 80 Ga. 291 [4 S. E. 885]; Chicago, etc., R. Co. v. Willi, 53 Ill. App. 603.”

An examination of the cases cited show they are quite unlike the instant case. The facts disclosed by this record show the argument is not well taken. It is shown by direct proof and fair inference that as early as 1884 the systematic culture of cranberries was commenced on the lands now owned by complainant; that as early as 1885 the lower dam of complainant was erected for the purpose of controlling the water in the stream, so that the cranberry plants might be covered and uncovered with water as the exigencies of the crop demanded. The marsh continued to be improved and planted until now it is valued at upwards of $30,000, and the Water has been used as above indicated for more than 25 years. It is claimed by defendant (we again quote from the brief):

“The occupancy has not been continuous, conceding that by continuity of occupancy is meant occupancy at stated periods or occupancy at stated seasons. Complainant must show clearly and by a preponderance of the evidence that they have occupied defendant’s premises continuously, and a decree in their favor ought not to be based upon inference or speculation.”

Counsel then proceed to argue that no witness was able to say that there had been an occupation every year throughout the statutory period. It is true that no witness was so able to testify, but so many witnesses testified in relation to different years, and the dam remaining there all the while and the cranberry plants remaining there all the while, and showing intelligent culture, that the positive proof and the inferences fairly to be drawn therefrom satisfies us as it satisfied the trial judge of the continuous occupancy. See Cornwell Manfg. Co. v. Swift, 89 Mich., at page 519 (50 N. W. 1001).

It is claimed that the occupancy has not been continuous in the manner in which the right to occupy is now claimed. This argument is directed to the method of using the water now, being different from what it was at the outset. While it does differ in details, it is clear that the difference is not harmful to defendant, and does not put any additional burden upon his land.

The final claim of the appellant is (we again quote from the brief):

“The decree finds damages in favor of the complainant. The correct practice was not followed in this case. Equity practice does not authorize a hearing on damages at the same time with the hearing on the merits. The practice is to establish the right to relief at the hearing, and enter an interlocutory decree with the reference thereupon if complainant sustains his case, to determine his damages. Barbour’s Chancery Practice, pp. 327, 468; Kinter v. Pickard, 67 Mich. 125 (34 N. W. 535); Lube’s Equity Pleading, §§ 132, 140; Barton Suit in Equity Title Reference. This is the practice that we relied upon, and upon this practice we had a right to rely. We seasonably objected to going into the question of damages (R. 63).”

A reference to the record does not sustain this claim of counsel. We quote from the record:

“I considered that the thickening of the grass on the marsh, the covering of our vines with swamp grass, has injured us at least $1,500. The retarding, the thickening up of the marsh, has prevented us getting a full crop by one full year, and our loss in that way is not less than $3,000. The difference between the crop we got and also the loss of this year’s crop that was drowned out I believe to be between $1,200 and $1,400.
Mr. Campbell: We ask to have all that stricken from the record as wholly immaterial, and not the proper meas-, ureof damages.
“Q. Now you intimate that the thickening of the grass on the marsh has lessened the value of the land ?
“A. Yes.
“Q. How much, if any, has the value of the land been lessened by reason of the killing of the vines ? (Defendant objects as immaterial.)
“A. I cannot tell you how many vines were killed, but it is a serious matter indeed, and I presume the killing of the vines has hurt us between $1,000 and $2,000, but I haven’t made a careful enough examination of the vines to state that so positively as the other points.”

One of the prayers of the bill was as follows:

“That an accounting may be had at the hearing and the damages suffered by complainant by reason of the erecting of said dam and the raising and backing up of said water over and upon the said lands, and a decree therefor be rendered in favor of complainant and against said defendants.”

Testimony was offered to show what the damages were. We can see no reason for not entering upon that inquiry at the hearing. If any one has reason to complain of the amount of the damages in view of the testimony upon that point, it is not the defendant.

The decree is affirmed, with costs.

Steere, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


text:
    MOSER v. WHITE.
    1. Justices of the Peace — Amendment—Pleading.
    The statute of amendments (3 Comp. Laws, § 10368), authorizes a justice of the peace to permit an amendment of plaintiff’s declaration on the common counts by adding a count waiving tort, and suing in assumpsit for stone taken from plaintiff’s premises, upon plaintiff’s motion, after the time for pleading had elapsed and the pleadings had been put in orally and the case had come on at the adjourned day.
    3. Same — Certiorari—Amendment.
    A judgment of $75 under an item of a bill of particulars claiming a smaller sum, may not be reversed on certiorari if the alleged defect might have been cured at the trial in justice’s court by amendment, but defendant, refusing to take part in the trial-there, raised no objection on such ground.
    Certiorari to Oceana; Cogger, J.
    Submitted April 9, 1912.
    (Docket No. 47.)
    Decided July 11, 1912.
    Assumpsit in justice’s court by Maggie Moser against Emmet D. White. Plaintiff obtained a judgment; defendant removed the cause to the circuit court by certiorari. A judgment for defendant is reviewed by plaintiff on writ of certiorari.
    Reversed.

      Bufus F. Sheets, for appellant.

      A. S. Hinds, for appellee.
   Moore, C. J.

On the 18th day of August, 1911, the plaintiff commenced suit in assumpBit against defendant in justice’s court. The return day of the summons was the 26th day of August, 1911, at which time the parties appeared, and the plaintiff declared orally on all matters provable under the common counts in assumpsit and claimed damages $300 or under, and it was agreed that plaintiff should have the right to file and serve a bill of particulars by August 31, 1911. The defendant by his attorney pleaded the general issue with the right to file and serve any notice or other applicable pleading at any time up to September 5, 1911. By consent, the cause was adjourned to September 19, 1911, at 9 o’clock in the forenoon. On September 1, 1911, the attorney for the plaintiff served on the attorney for the defendant a copy of a proposed amended declaration, a copy of a proposed bill of particulars, and a notice that on the adjourned day the plaintiff would ask permission to file the amended declaration and bill of particulars as her declaration and bill of particulars in said suit. On the adjourned day, the parties appeared by their attorneys, and the plaintiff was permitted to file her amended declaration and bill of particulars over the objection of the defendant. The amended declaration was for the taking and removing of 150 loads of stone from the land of plaintiff of the value of $52.50. In the declaration it was said the plaintiff waives the tort and sues in assumpsit. The common counts were also attached, damages in the sum of $100 were claimed. The bill of particulars reads in part:

“Also to 150 loads of stone taken by defendant out of and off of the lands of said plaintiff described in her declaration in said cause, said taking of said stone being during the summer and fall of the year 1909, for which the plaintiff claims 35c. per load, amounting to * * * $52.50, and for which the plaintiff waives the tort and sues in assumpsit.
“To injury to the lands of plaintiff, described in said declaration, by the defendant entering thereon and taking therefrom the above-mentioned stone, during the summer and fall of the year 1909, amounting to the sum of * * * $45.00, and for which plaintiff also waives the tort and sues in assumpsit.”

The attorney for defendant refused to plead to the amended declaration, and declined to take any further part in the suit. Witnesses were sworn on the part of the plaintiff, and a judgment was rendered in favor of the plaintiff and against the defendant for $75 damages and $7.20 costs. The defendant removed the cause to the circuit court by certiorari.

“The circuit judge was of the opinion that the justice exceeded his authority, and the proceedings thereafter were without jurisdiction and void, and the judgment was ordered set aside, with costs to defendant; plaintiff, and appellant duly excepted. Upon this finding judgment was entered in favor of the defendant and against the plaintiff for the sum of $24. From this judgment, plaintiff appeals to this court.”

Two questions are presented. We quote from the brief of counsel:

“ These assignments of error and the return of the justice squarely raise, for the consideration of this court, two general questions: First. Whether the justice had the right to allow the amended declaration and the bill of particulars offered after the common counts alone had been pleaded, and after the time allowed by the justice to the plaintiff for the perfection of her pleadings had expired. Second. Whether the justice had the right to render judgment for $75 under an item in plaintiff’s bill of particulars which claims only $45 damages-.”

It is urged, we again quote from the brief:

“The first objection stated is that the statute (section 766, 1 Comp. Laws) expressly limits the time of pleading to the first appearance of the parties unless the justice shall allow further time upon cause shown. This statute is as plain as words can make it, and, when the parties left the justice’s office on August 26, 1911, the pleadings were closed, so far as the plaintiff was concerned, except that she was given until August 31st in which to file a bill of particulars of her demands under her common count declaration.”

First. We think the record shows that permitting the amendment was clearly within the discretion of the justice of the peace. See note at bottom of page 348, 1 Comp. Laws, and section 10268, 3 Comp. Laws.

Second. Was there error in rendering the judgment for $75 under the bill of particulars ? The defendant did not remain in court to aid the justice in conducting the trial. If an amendment of the bill of particulars had been asked, it would have followed as of course. Defendant cannot remain idle under the facts disclosed by this record and then remove the case to the circuit court by certiorari and get the case reversed for so technical a reason.

The judgment of the court below is reversed, and the judgment rendered in the justice’s court is affirmed, with costs of this and the circuit court.

Steer®, McAlvay, Brooke, and Stone, JJ., concurred. Ostrander, J., concurred in the result. Blair and Bird, JJ., did not sit.


text:
    KETCHELL v. KEENE.
    1. Evidence — Opinions—Conclusion.
    The wife of a purchaser of land was properly refused permission to testify whether plaintiff, a broker, suing for his commissions, was influential in bringing her and her husband to that locality, since her opinion as to the effect on her husband was an incompetent conclusion.

      2. Trial — Appeal and Error — Cumulative Evidence.
    Reversible error did not appear from a ruling of the court excluding testimony that had been already elicited from the witness, nor from a ruling upon a matter not presented to the trial court and argued for the first time on appeal.
    Error to Allegan; Padgham, J.
    Submitted April 4, 1912.
    (Docket No. 36.)
    Decided July 11, 1912.
    Assumpsit by Stephen Ketchell against Milo Keene for services performed as broker for defendant. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      F. E. Fish and O. S. Cross, for appellant.

      Clare E. Hoffman, for appellee.
   Moore, C. J.

This action was brought in justice’s

court to recover $62.50 coinmission, the balance which plaintiff claimed defendant owed him growing out of certain sales of real estate made by defendant to purchasers who, plaintiff claims, were told of or sent to defendant by him. On the trial in justice’s court, defendant tendered into court $12.50 and interest, and the jury gave a verdict for the balance of plaintiff’s claim, $50, and from this judgment defendant appealed'to the circuit court, where judgment for the same amount was obtained. The defendant, Milo Keene, is a real estate dealer at Allegan, while the plaintiff, prior to 1907, resided in Indiana. It is the claim of the plaintiff that they entered into an agreement whereby Mr. Keene was to divide with Mr. Ketchell the commissions on any parcels of land which were sold to any person who was sent or brought to Mr. Keene by Mr. Ketchell, and that such a sale was made to Mr. and Mrs. McCorkel. The case was tried before a jury.

Counsel’s first claim is—

“ The court erred in refusing to admit the answer to the question to the witness Mrs. Lois L. McCorkel: ‘Did Stephen Ketchell in any way have any influence in bringing you to Allegan county ? ’ ”

There are two answers to this claim:

First. When the question was put to Mrs. McCorkel, she was testifying about her husband and herself, and as to her husband the answer called for a conclusion about which she could not know.

Second. She had testified that:

“ I believe he [plaintiff] had nothing to do with our coming here. * * * Stephen Ketchell did not have anything to do with selling us the Larson place.”

Counsel claim:

“ The court erred in refusing to admit the answer to the question to the witness Milo Keene: ‘Q. What did you pay George Ketchell ? Anything ? ’ The agreement was that defendant should divide even with plaintiff on any place sold, and, if defendant had to pay George Ketchell §25 to assist in making the sale, he would only receive $75 for his services, and plaintiff would only be entitled to one-half of that sum instead of one-half of $100.”

This point was not made in the court below. It was claimed there that Mr. Ketchell had nothing to do with the sale and was entitled to nothing. The claim cannot now be urged here.

Counsel find fault with the charge of the court. We quote from the brief:

“The instructions as requested by the attorneys for both parties correctly stated the law as stated in Douville v. Comstock, 110 Mich. 693 [69 N. W. 79], viz.: That the efforts of the plaintiff must be the procuring cause of sale to entitle the plaintiff to recover, and, if the court had ended his charge with the paragraph, ‘ That, gentlemen, I think, substantially covers the facts as given in this case and covers the law relating thereto,’ there would have been no error in the charge, and we submit that the court then proceeded to argue the case to the jury and destroyed the effect of that portion of the charge that was correct.”

The charge covers eight printed pages of the record and perhaps was longer than necessary, but, when read as an entirety, it was not misleading. The portions of the charge about which complaints are made are not subject to just criticism unless separated from the context. We find no reversible error.

Judgment is affirmed.

Steere, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


author: Brooke, J.

text:
    McRAE v. BARBER.
    1. Taxation — Actions—Trespass—Tax Title — Notice — Re'DEMPTION.
    Ejectment lies in favor of the owner of lands surreptitiously occupied by a tax title purchaser who has failed to give due notice to redeem under Act No. 229, Pub. Acts 1897, which was in force at the time of purchase.
    2. Same.
    The possession of such tax purchaser is a mere trespass.
    Error to Ogemaw; Sharpe, J.
    Submitted April 3, 1912.
    (Docket No. 24.)
    Decided July 11, 1912.
    Ejectment by John McRae and others against William Barber and another. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendants on writ of error.
    Affirmed.

      F. L. Snodgrass, for appellants.

      William T. Yeo, for appellees.
   Brooke, J.

This case has been in this court before and will be found reported at 167 Mich. 314 (133 N. W. 12). We there held that defendants were obliged to give notice under Act No. 229, Pub. Acts 1897, and that the notices relied upon by defendants were defective in certain particulars there pointed out. Upon the second trial the plaintiffs made proof of ownership under the original title as they did at the first trial. No evidence was offered by defendants disputing the claim of title established by plaintiffs. Nor at this hearing was any evidence introduced by defendants showing, or tending to show, a compliance with the terms of the statute in force at the time of the purchase relative to notice of reconveyance.

It is clear that defendants are in possession of the property in question under tax deeds. It is equally clear that they obtained such possession surreptitiously, ousting the plaintiffs who were in actual occupancy, before complying with the applicable statutory requirements. Under such circumstances, this court has frequently held possession to amount to no more than a trespass. Corrigan v. Hinkley, 135 Mich. 135 (83 N. W. 1030); Huron Land Co. v. Robarge, 138 Mich. 686 (87 N. W. 1033); Powell v. Pierce, 168 Mich. 437 (134 N. W. 446).

In the case last mentioned it was held that the owner of unoccupied and uncultivated lands, whose title had been twice acquired by the State in tax proceedings which were not assailed, could not maintain ejectment against a trespasser in possession under a tax deed.

The propriety of the remedy in the case at bar is not affected by that decision as the lands here in question were occupied and, to some extent, cultivated for several years prior to the commencement of the suit. The record indicates that plaintiffs stand ready to redeem from the tax title purchase. It further shows that a tender of $800 was made for that purpose by them to Geo. Thayer, defendants’ grantor. The exact amount necessary to redeem is simply a matter of computation under the statute. A verdict in favor of plaintiffs was properly directed.

The judgment is affirmed.

' Moore, O. J., and Steere, McAlvay, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


author: Steere, J.

text:
    FRYEZYNSKI v. W. W. RICE LEATHER CO.
    1. Master and Servant — Assumption of Risk — Personal Injuries — Machinery.
    Plaintiff, who was employed for four months at defendant’s wringer, that was operated by power and could only be stopped in case of accident by using a lever near the belt, knew the danger arising from failure to have a lever within his reach and assumed the risk arising therefrom and from the fact that no one was assigned to assist in turning off the power in case of accident.
    2. Same — Instructing Servant — Warning as to Obvious Risks.
    Plaintiff also assumed the risli of his fingers being caught in threads which he left on cloth that had to be wound upon the rolls of the wringer, an obvious danger with which he had become familiar by long experience; defendant was not under obligations to warn or instruct him against the alleged peril.
    Error to Emmet; Shepherd, J.
    Submitted April 4, 1912.
    (Docket No. 37.)
    Decided July 11, 1912.
    Case by Kazmir Fryezynski against the W. W. Rice Leather Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed and no new trial ordered.
    Keena, Lightner, Oxtoby & Oxtoby, for appellant.

      Geo. E. & M. A. Nichols and W. 8. Mesick, for appellee.
   Steere, J.

Plaintiff brought this action in the circuit court of Emmet county to recover damages for injuries sustained while employed in defendant’s tannery through his hand being caught and crushed in a wringer machine used to press liquid out of soaked hides. The case comes before this court on a writ of error sued out by defendant upon a verdict and judgment in plaintiff’s favor.

He charges defendant with liability for the injury by reason of alleged negligence in failure to properly instruct as to safe methods and warn of dangers attending the work in which he was engaged; also with failure to provide a lever in front of the rolls of the machine so that the operator might instantly throw it out of gear, and failure to furnish him another man to assist in doing the particular work in which he was engaged when injured and which it was his duty to perform. Defendant denies that it is shown to have been negligent in any manner, and urges a reversal of the case on the ground that the testimony conclusively shows proper construction of the machine, proper instruction and warning, a simple machine the dangers of which were obvious and the risks of which are assumed, and that plaintiff’s own negligence caused the injury.

Plaintiff was employed in what is known as the “scrub-room,” in the lower, part of defendant’s tannery, where his work consisted of taking soaked hides from a vat and feeding them through wringers which he operated, from whence they passed onto elevators conveying them to a room above for further treatment by others. There were two wringers in the room where he worked, identical in method of operation and construction. They were the same as are customarily used in tanneries for wringing hides. They consist of a framework of wood and iron or steel, anchored to the cement floor, containing two rollers,' one above the other, covered with, or incased in, rubber, revolving close together in such manner as to squeeze liquid from any saturated substance passing between them. Photographs of one of the machines were in evidence and made part of the record here. They show a simple construction resembling in outlines an ordinary clothes wringer, but upon an enlarged scale, with the addition of a platform in front at the junction of the rollers on which to spread the hides as they were fed through, with a belt on one side, at the end of the rollers, for transmission of power to revolve them. The belt ran from a shaft overhead to a drive pulley on the side of the machine which communicated power to the rollers, causing them to revolve. By the side of the drive pulley was an idler, or loose pulley, to which the belt was easily shifted. The machine was made to run or stop by shifting the belt from one pulley to the other. The shift was made with a stick, or handle, so constructed as to engage the belt and edge of the framework, and enable the operator to readily move the belt from one pulley to the other and stop or start the rollers at will. The table or platform in front on which hides were spread to pass through the wringer and which was in line with the junction of the rollers was three feet from the floor. The rollers were about five feet six inches long, and about four inches in diameter. The rollers revolved, when the machine was regularly running, at a speed of once in 20 seconds, and hides or other substances fed into them travel at a rate of 36 inches per minute. Owing to the rapid wear of the rollers, they were kept wound with coarse burlap to protect and preserve them. This wore out quite rapidly, and had to be often renewed. To do this was one of the duties of the operator of the machines.

Plaintiff caught his hand between the rollers, and was injured while engaged in renewing this burlap covering. He testified that the foreman instructed him how to operate the machines and feed the hides through, and also how to renew the covering of the rollers, for which burlap sacking provided from salt bags was used. He explained the method of doing this, and stated he always did it just as the foreman showed and told him. The burlap was prepared for use by cutting off the bottom of the salt bags, slitting them down the sides, and trimming off the ends. While the machine was not running the sheet of burlap was spread on the table as one would place a hide, the machine was started and the burlap partly run through, then the machine was stopped and the burlap pulled back over the roller, smoothed out, and the machine again started, letting the burlap wind around and cover the roller.

Plaintiff was born in the Polish province of Posen, Germany, and gave his testimony in the Polish language; the same being translated into English by a sworn interpreter. He also spoke the German language. Previous to immigrating he had worked as a farm laborer and in a brick yard. He began working for defendant in January, 1910, and remained in its employ until March, 1911, excepting five or six weeks while recovering from the injury in question, which resulted in losing his arm to the elbow. When injured, he had been in the United States six months, was a single man, over 25 years of age, had been working in the scrub-room where the wringers were located about five months at $1.60 per day, and subsequently received the same wages as night watchman until he voluntarily left, owing, as he states, to being required to work longer hours. He testified that he worked on both machines at different times, running one two months and a half and the other six weeks. He did this work from January until June, putting the hides through the machines, cutting up the bags and winding the burlap on the rollers when necessary. After being shown by the foreman how to do the work, no one helped him, and he asked for no help. He did not know how many times he had renewed the burlap covering on the rollers, but stated:

“ I did not always change the sack cloth every morning. I changed it whenever they were torn. The sack cloth was sometimes strong and sometimes weak; sometimes it lasted two days, and sometimes not. It never lasted a week. Sometimes it would happen that I would change the sack cloth on both machines on the same day.”

He stated that his mother used a clothes wringer, and he had seen her operate it; that the only difference between the wringers he operated and his mother’s was that his mother turned the handle of hers and a belt turned these; that, when he first went to work on the machine, the foreman in giving instructions showed him “to keep my fingers about six inches from the rollers,” did not tell him that, if he got his fingers in the rollers, he would get them pinched, but plaintiff knew that such would be the result; that the foreman told him when putting the burlap around the rollers to first stop the machine and then proceed with the task as heretofore explained; that in feeding the burlap into the rollers he would take hold of the end, just as he would take hold of the hides, and hold it back; ‘ ‘ that it should remain plain and not be twisted;” that in so doing he kept his fingers away from the rollers; that when the table was there he spread the burlap on the table, but when it was absent, in winding the lower roller he held the burlap by the end farthest from the machine while it wound up. When injured, plaintiff was winding the lower roller, having removed the table. He did not testify that he was instructed to remove the table when winding the lower roller except as it may be inferred from his statement, “I did it alone as he told me;” but in answer to questions on cross-examination he testifies in part as follows:

“Q. (Turning to Exhibit 1): In order to wind the lower rolls, you have to take a little table pictured there, of boards — you have to lift that out, don’t you ?
“A. Yes; when I wanted to, I could.
“Q. Well, could you wind the rolls without taking that away ?
“A. There is a little hole — an opening — so that I could. And all the time I always have to pull it out, and that morning I pulled it out. * * *
“Q. Then what table or platform was there to support this burlap on that you have been telling us about ?
“A. I hold them, spread them out. * * *
“Q. But on this occasion, just before you got hurt, this table had been taken away ? .
“A. Yes, sir. * * *
(tQ. You were keeping it smooth by holding it with your fingers ?
“A. Yes, sir; I hold them as I was told.
“Q. And, as the burlap wound slowly around the rollers, your fingers came closer and closer to the rollers there ?
“A. Yes, he says.
UQ. Until finally caught in one of the ravelings, your finger and your hand were caught in the rollers there ?
“A. Yes, sir.'”
He does not seem to he very clear in his statement as to just how he was injured. On his direct testimony he testifies:
“Q. How did you get your hand into the rollers ?
“A. I was trying to spread this, and before I thought my finger was caught.
“Q. Do you know what caught your finger ?
“A. I don’t know how the bandages got hold of me and put me into the machine.
‘CQ. Do you mean the burlap ?
The Court: The sack cloth, he called it.
“A. The bandages or sacks — what you call the sacks are composed of thread, the thread of the sacks.
”Q. Caught your fingers — is that what you mean to say ?
“A. Yes; the thread of the sacks caught, and I throwed up my hands, and that is the way I was caught.”

On cross-examination he answered that he did not know how his hand was caught. On redirect he stated his fingers caught in the threads of the burlap and drew his hand in; he did not know whether it was the threads or the cloth that drew him to the wringer, that he could not have broken the threads because the cloth wound through too quick. The wringer machine was of approved pattern, and such as are commonly used in tanneries, having the power control located in the usual place. The trial court removed the question of location of the shifting device from consideration of the jury; no negligence being-shown in that particular.

Two witnesses who had worked in this tannery testified that in ■ their opinion it would be safer to have an extra man stand by the belt to stop the machine in case of accident while winding the rollers. Such testimony was not sufficient to raise an issue for the jury as to whether it could be properly and safely done by one person exercising the care of a reasonably cautious and prudent man. As to the position of the control and absence of a helper to shift it in case of accident, plaintiff had full knowledge and assumed the risk. He had been working these machines four months, and was familiar with the purpose and use of the appliance for starting and stopping them. He knew where it was necessary to be to reach the control, and knew there was no one present to do it for him. This was an obvious and known risk which he assumed. Burton v. Brunswick-Balke-Collender Co., 166 Mich. 45 (131 N. W. 179); White v. Sugar Co., 149 Mich. 473 (112 N. W. 1125).

Plaintiff’s chief contention is that defendant was negligent in failing to properly instruct him of the danger of his fingers being caught in the burlap, an obscure and unknown danger to him, and thus be drawn into the rollers, and injured through the medium of a conceded obvious danger. His counsel say in their brief:

“ The winding of the burlap was comparatively a simple operation as described by the plaintiff. Of course, plaintiff knew, or says he knew, that, if his fingers went between the rollers, his fingers would be pinched. What plaintiff did not know, and what he was never told, and what he never had reason to suspect was true, was that his fingers might some time be caught in the ravelings of the burlap, and drawn into the wringer. Here is the plaintiff, a common laborer, a Polish peasant, a man who had never worked in a factory before, or had anything to do with machinery. * * * He had no reason either from his own experience on the same machine, or from experience on other machinery, or from anything he might have heard of former employes being injured on that machine, or from any warning from defendant, to think that there was any danger from the ravelings.”

It is to be noted in that connection that he had been cutting up these burlap bags, shaping and trimming them and making the edges smooth, for four months. He testified that, when he cut the bags, there were threads along the edges which he was accustomed to remove, so they would not wrap loose around the rollers, and that he did so the day he was hurt. He certainly, according to his own testimony, had knowledge and experience as to the character and strength of those burlap ravelings. It required no instructions to inform him of the consequences if his hand was attached so tightly to the burlap he fed into the machine that he could not withdraw it. He testified he was told to keep his fingers six inches away from the rollers. He says he knew, if he got them into the rollers, he would be hurt, and we must assume he knew the result would be the same, whether they were pulled or pushed in. This is not a case of youth, inexperience, want of capacity, or ignorance. He was a grown man, was familiar with the machine on which he worked, and the material he used. He had shown capacity to do this work efficiently and satisfactorily for four months.

The only evidence to substantiate the claim that he was an ignorant peasant is that he is a laboring man, a Pole, and does not speak English. Intelligence is not limited to persons speaking English and not engaged in manual labor. Plaintiff spoke two languages, which is more than can be said of the average American. There is no evidence of inability to observe and comprehend the things of common knowledge and understand obvious dangers. He was familiar with the machine on which he worked, and with the process of wrapping the rollers and the material used for that purpose. He prepared the burlap to suit himself, and put it on, according to his instructions as and when he thought best. Apparently, with that temporary inattention to the constant hazard of assumed risks in operating machinery which familiarity sometimes gives rise to, and which so often leads to sad results, he carelessly allowed his fingers to follow the burlap he held too close to the slowly revolving rollers, and was caught. Those rollers only- drew objects through at the rate of three feet in a minute, a space of time in which horses have been known to trot half a mile. Most of the many more or less similar cases which are to be found involving injuries from being caught in machinery present serious questions of defective appliances, youth, or inexperience as applied to the assumption of risk.

Many of our Michigan cases on that subject are reviewed by Justice Hooker in Swick v. Cement Co., 147 Mich. 454 (111 N. W. 110). In Kupkofski v. John S. Spiegel Co., 135 Mich. 7 (97 N. W. 48), plaintiff, a girl 17 years of age, and, we might infer from her name, of allied nationality with plaintiff here, had been operating a laundry machine, which consisted of a roller and movable table operated by a belt, and which it was claimed was out of repair causing it to operate with a jerk, was injured through her hand being caught by the roller. She had been working in defendant’s laundry for a year, but only two weeks on the machine in question. It was found that the dangers were obvious, and she was held to have assumed the risk.

In Connolly v. Midredge, 160 Mass. 566 (36 N. E. 469), plaintiff was injured while engaged in putting a new cloth cover on the roller of a steam ironing machine, a work quite similar to that in which plaintiff in this case was engaged. In that case plaintiff was a girl 20 years of age, who had lived on a farm in Ireland until two years previous, when she came to America, and was engaged as a domestic until three or four weeks before she was injured, when sheengaged to work in defendant’s laundry starching articles of clothing. She had never worked on the machine in question until the day she was injured, though she had become familiar with it by observation. Her hand was caught while holding onto the cloth covering as it wrapped around the roller. In deciding the case Justice Holmes, now of the United States Supreme Court, says:

“ The danger to fingers from two cylinders in contact with each other, and seen to be revolving inwardly, is obvious to any person of ordinary powers, and plainly was understood by the plaintiff. Crowley v. Pacific Mills, 148 Mass. 228 [19 N. E. 344]. * * * The plaintiff was putting a cloth upon the cylinder above the guard. She saw, or might have seen, all the elements of danger, including the distance between the guard and the cylinder on that side. To appreciate them required no warning or instruction beyond what is furnished by common experience.”

In the case at bar the conditions were open to observation and known to plaintiff. There was nothing out of repair or concealed. Cutting the bags and leaving loose threads, contrary to his usual custom, was his own doing, if such was done. Whatever additional danger there was of his fingers being entangled in those threads and drawn into the rollers was obviously incident to the work, was caused by himself, and a risk assumed by him.

The case is reversed, and no new trial ordered.

Moore, C. J., and McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


text:
    LUKA v. LOWRIE.
    1. Physicians and Surgeons — Malpractice — Negligence — Emergency.
    Where plaintiff’s foot was badly injured, and four physicians who examined it concluded that it was necessary to amputate the foot, and sent for defendant, who examined the patient and decided that it must be amputated, plaintiff, a minor, being unconscious and having no friends or relatives accessible, the case was such that defendant was justified in treating it as an emergency case.
    2. Same.
    In such an instance, error of judgment is not negligence, if defendant used faithfully his experience, judgment, and faots and knowledge which could be ascertained in the exercise of ordinary skill.

    .3. Same — Evidence.
    That a physician testified, from an examination of the amputated foot, preserved in alcohol, that it might have been saved, raised no issue for the jury on the question of negligence.
    4. Same — Consent of Parents.
    In the absence of testimony that the parents of plaintiff would have refused their consent to the operation if they had been present, or that defendant was negligent in failing to procure it, a verdict was rightly directed in favor of defendant.
    Error to Wayne; Mandell, J.
    Submitted April 5, 1912.
    (Docket No. 53.)
    Decided July 11, 1912.
    Case by Charles Luka, an infant, by his next friend, against George B. Lowrie and others for malpractice. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      William C. Gottman and Jonas B. Houck, for appellant.

      Merriam, Terkes & Simons, for appellees.
    The plaintiff, a boy 15 years of age, while crossing the Michigan Central Railroad track, was knocked down by an engine and in some manner, not clearly shown, was thrown under the wheels of a car. His left foot was mangled and crushed. There was a compound disarticulation of the bones of the foot, and one of the principal bones of the arch, the “scaphoid” bone, was torn away entirely, the flesh was crushed and- tom from the top of the foot, leaving the muscles, ligaments, and bones exposed. The plaintiff testified:
    “I could see the bones sticking out. I could see they weren’t broken. Don’t know how many bones were sticking out; around four or five, something like that.”
    Shortly after his injury, plaintiff was removed to Harper Hospital in an ambulance. He was partially conscious upon his arrival and was able to communicate his name and the name of the street upon which he lived to the attending surgeons. Within 10 or 15 minutes after his arrival, he lapsed into a comatose condition, and later into complete unconsciousness. Efforts to revive him by injections of strychnine and infusion of a saline solution were made, but he remained unconscious until after the operation. Soon after his arrival at the hospital, at 10:15 a. m., plaintiff’s foot was examined by four house physicians connected with the hospital. They concluded that prompt surgical treatment was necessary and telephoned to defendant, who is assistant surgeon of the Michigan Central Railroad. Defendant arrived at the hospital at 10:45 a. m. Upon examining the plaintiff, he found him unconscious, with a weak pulse and dilated pupils. The foot was found to be cold and dead, the circulation having been interrupted. Defendant testified that he learned from the house surgeon the boy’s name and residence street. With reference to the residence, he knew the distance from Harper Hospital and the time it would take to get from there to the hospital; that he inquired of the house surgeon if any one, any relatives, were present, and was informed that no person was present whatever. After consultation with the four house physicians, it was agreed by all that an immediate amputation was necessary to save the plaintiff’s life. The foot was amputated, and the plaintiff recovered. It is the plaintiff’s claim that his foot should not have been amputated at all, and particularly that it should not have been amputated without first obtaining his consent or the consent of his parents, who went to the hospital as soon as possible after learning of the accident. A verdict having been directed in favor of defendant, the case is brought here for review upon writ of error.

       Degree of care and skill required of physician or surgeon, see note in 37 L. E. A. 830.
      Liability of physician for performing surgical operation on minor without parents’ consent, see note in 7 L. R. A. (N. S.) 612.

   Brooke, J.

(after stating the facts). The first question presented is whether it was necessary to amputate. Plaintiff offered the evidence of two physicians, Dr. Gottman and Dr. Gibbes, who testified that in their opinion the foot might have been saved. Dr. Gottman, who had been engaged as a general practitioner for 17 years, testified that in his practice he had treated one case like plaintiff’s, and that he had never done any amputating of the lower extremities except a toe. He examined the foot the day after it was amputated. Upon cross-examination, he testified in part as follows:

“Q. Suppose the injury was so severe that the circulation had ceased, would you clean the wound and leave it ?
“A. If the bone were all crushed and the parts all torn and I saw no chance, I would amputate.
“Q. Would you form your own opinion and judge whether amputation was necessary or not ?
“A. I would call in counsel. .1 would not rely upon my own judgment. I would talk it over. Other people might see things differently than I did. Surgeons have differences of opinion. With proper consultation, it is a question which is the best course to follow under certain circumstances. I would call at least one surgeon, and if I was not satisfied with his statement, I would call another. We would talk it over and consider it.
“Q. Would you take their judgment?
CIA. Certainly, we would talk it over and consider it. We are often in doubt in medicine.
“Q. There are conditions of emergency where a surgeon is confronted with dirt, and a serious wound to the lower extremities, for instance, the foot, where it is a matter of grave doubt, and requires calm judgment as to whether an amputation should be immediately performed or not ?
“A. If the foot is all crushed and the bones crushed and the circulation destroyed, it is all splintered and the tissues are all gone, a lot of the tissues destroyed, then I would say, perhaps, it would be necessary to amputate, but perhaps not immediately, because there is no immediate hurry in the amputation of a foot of that kind, not within eight or ten hours, I don’t think, unless — I don’t know as I do know of any exception. * _ * * I would not always want to depend upon my own judgment, when and where and how an amputation should be made in all oases. There are cases where amputation of the leg is necessary. It is for the surgeon to determine whether it is necessary or not, and he bases his determination on his best judgment.
“Mr. Merriam: It is a matter for the judgment and determination of the surgeon as to what time and in what manner and in what method an amputation shall take place? * * *
“A. I do not know how to answer it.
“Q. Question repeated. * * *
“A. There is only one way to answer it, and that is by ‘Yes.’
“Q. Your answer is, ‘Yes?’
“A. Yes, sir.
(‘Q. A surgeon must determine, must he not, when an amputation shall be performed, and from his judgment from all the circumstances of the case ? * * *
“A. I will answer that, ‘Yes.’ After he takes all the facts into consideration, then he may be wrong in his judgment.
“Q. And it is up to him therefore to determine from what he can learn of the case, and what he can see of the injury, to what extent the danger of blood poisoning is imminent ?
“A. Yes, sir.”

Dr. Gibbes, a physician, and instructor of many years experience, making a specialty of the study of all forms of disease, examined the foot more than a year after amputation, and gave it as his opinion that the foot might have been saved. Upon cross-examination he testified in part:

“Q. Would you venture, from the professional skill that you have had in the years that you have been practicing your profession, an opinion of that kind without knowing the exact conditions of the patient at the time he was brought to the hospital ?
"A. If I was in the fix that I am now, I would.
“Q. What do you mean by ‘fix’?
“A. With a foot that has been in alcohol for a year, how could I do otherwise. If I could have seen the flesh conditions of the boy’s foot when injured, it would have been a different thing.
“Q. If you knew the conditions of the boy when the operation was performed, that might alter your opinion entirely F
“A. I cannot tell; it might, of course.
“Q. Not knowing how the condition was, you still venture an opinion that that foot ought not to have been amputated F
“A. On the conditions I find there I base my opinion. I say on the conditions I find there, and nothing else. I don’t know whether the circulation had entirely stopped in the foot or not. On the condition I saw I am ready to give an opinion. Other conditions might entirely influence my opinion; if I saw the end of the artery was torn out, and the circulation entirely stopped, it might alter it. I don’t know whether the bone protruded from the foot after the injury. There is a longitudinal cut there, and I don’t know how much was done by the accident. I don’t know after the injury, after the boy was taken to the hospital, whether the foot was perfectly cold and the circulation had ceased entirely. If two hours after the injury the foot was still cold I would wait 24 hours, to see whether collateral circulation set in.
“Qi That would be for the judgment of the attending surgeon, assuming he was a competent surgeon ?
“A. I suppose so.
“Q. That is a fact ?
“A. That would depend upon where he was educated. There are a good many competent surgeons, but they look upon things with a different eye. They are not all taught the same.
“Q. Assuming that the man was a competent surgeon, and he was called in to attend this case, he would have to rely on his best judgment ?
“A. Yes, sir.
“Q. Taking everything into consideration?
“A. Yes, sir. * * *
“Q. A surgeon finds himself on the horns of a dilemma, and when he finds himself between a shock killing the patient, and a decision between that and the possibility of dangers which are incurred by delay, he has to use his best judgment ?
“A. No, he calls in two or three more surgeons.
“Q. Suppose he calls in one or two more, and they all agree ?
“A. Then it is hard on the patient.
“Q. Then he is doing what seems best ?
“A. Yes, sir.
“ Q. To those who have examined the patient at the time?
“A. Yes, sir. * * *
6iQ. Suppose the boy remained unconscious three-quarters of an hour, what would that indicate ?
“A. It would indicate a certain amount of shock; nothing very serious with the state of the part.
“Q. Would that three-quarters of an hour unconsciousness, would that indicate pretty severe shock to that boy’s system ?
“A. It would mean a shock, but nothing but what he could recover from.
“Q. Are you sure of that ?
“A. I am not sure of anything.
“Q. What would the pulse be ?
“A. I don’t know.
“Q. How high a pulse would indicate a rather serious condition as to shock ?
“A. In that boy ?
“Q. We are not talking of any other boy.
“A. I don’t know. I can’t say from what I know or from what I have seen of the injury.
“ Q. How high a pulse ?
“A. I don’t know what it would be in his case.
“Q. Could you from your experience tell what pulse would indicate a serious condition ?
"A. No, considering it is about 20 years since I have had a case of that kind.
Q. That pulse is a very important matter in the necessity of an operation ?
“A. Yes and no.
“Q. You could not tell ?
“A. You have to fit in each case that you have. You cannot give a general statement.
“Q. You are giving a general statement without considering those facts ?
“A. I would not.
“Q. Do you want to eliminate the question of the boy’s pulse in deciding the necessity of an operation ?
“A. I am giving my opinion of what I have seen of the injury and what I have heard of the case. My opinion is not based on anything I don’t know.
“Q. You would have a good deal more faith in your own opinion if you had attended the boy at the time ?
“A. Yes, sir.
“Q. You would have a good deal more faith in some other competent surgeon’s opinion that had attended the boy at the time ?
“A. Than what?
“Q. Than your own now ?
“A. Of course, a competent surgeon attending.
“Q. His opinion would be better than yours ?
“A. Yes, I think it would.”
Dr. Childs, a. third expert called by plaintiff, testified:
“Q. In order for you as a surgeon to come to an intelligent conclusion whether an operation was necessary, would it be necessary to know the condition of the wound, the condition of the pulse, the temperature, the condition of the shock, and to know whether the wound was clean or dirty, how much hemorrhage there had been, and indication of that sort, before you could form a correct conclusion in your own mind what was necessary to do ?
“A. I told you without seeing the case I could not give a positive opinion as to that because there is always other circumstances. An injury might be very small, and for all that it would be absolutely necessary that there should be an amputation for the very fact that there are extraneous matters injected into the wound, and I have had small ones and lost a life, and I have had large ones that you would think it almost impossible to save and saved them, so you cannot go by the magnitude of it. While larger ones always appear most aggravating, you have to take into consideration all the matter connected with it. There is no surgeon competent to give a decision. He is incompetent to decide or give a positive answer whether it is absolutely necessary at the time of that operation or not — indications might be that it was, and indications might be that it was not. The indications that would appear there that would make it absolutely necessary would be extreme. There would be cessation of the circulation, etc., and also extraneous matter. You cannot cleanse the wound any too quickly, and you should always cleanse the wound and tend to that thoroughly. You have to treat each case according to all appearances.
“Q. If as a skilled surgeon you had seen the patient, seen the foot torn and open, and observed his condition, the shock, the condition of the wound, his pulse, and all that, and yon concluded that the operation was immediately necessary, would you feel that your opinion was better and more apt to be correct than that of a surgeon or a doctor who saw the foot after the amputation had taken place ?
“A. That can be answered in this way: That a man that made all those examinations and saw it, he might not be as competent after that to judge as some one else who had more experience and had seen those things oftener, and yet he might be absolutely correct, but his chances would be superior undoubtedly to the man who did see it. Still, although the foot afterwards might not indicate the necessity for amputation, yet the necessity may have existed.
“Q. A surgeon who saw it afterwards would not know anything about it afterwards, whether it was necessary or not ?
“A. He would not know whether it was necessary for amputation so far as that is concerned, but the question would be whether an immediate operation would be necessary; that would be the question. The tarsal and metatarsal bones were dislocated, also the two cuneiform bones. The scaphoid bone was gone. That bone is still farther in the rear from the tarsal bones. The flesh was all denuded off the top and simply covered by some tendons — a few tendons here — and the muscular tissues were all gone.
“Q. There is often, from a severe traumatic injury, an injury from external violence; is there a serious condition from shock ?
“A. Most always, lacerated wounds cause more severe shock. Shock is an interruption of the current of the nerve fluid which produces a reaction upon the circulation. Severe shock produces death many times.
“Q. Have you found in your practice that shock is continued and is progressive on account of the serious condition of the wound ?
“A. Yes, I have seen it; yes, sir.
“Q. That fact is what makes surgical attendance immediately necessary ?
ecA. Yes, sir; and that is where immediate attention does come in, and sometimes — ”

Taking all the testimony on behalf of the plaintiff and considering it broadly, it amounts, at most, to this: That by following a different course plaintiff’s foot might have been saved. While they disagree upon some details, they apparently all agree that the proper course for a surgeon to pursue, when confronted by such an exigency, is to consult with another or others, and then exercise the best judgment and skill of which he is capable. This seems to have been the course followed by defendant. The four house surgeons, after consultation with defendant, concluded, with him, that an immediate operation was necessary to save plaintiff’s life.

Two experts, Drs. Kennedy and Brodie, surgeons of very wide experience, testified that in their opinion an immediate amputation was necessary to insure the plaintiff’s life. It stands uncontradicted upon this record that the circulation in the foot was completely interrupted; that the foot was wholly devitalized; that the plaintiff was in a condition of profound coma from which the attending surgeons were unable to arouse him. It is also uncontradicted that death from shock frequently results from severe traumatic injury.

Taking into consideration the condition in which the plaintiff was when the defendant reached him, we have no hesitation in holding that defendant was amply justified in treating it as a case of emergency, and his conduct should be viewed in the light of the. legal principles governing such cases.

In Pepke v. Grace Hospital, 130 Mich. 493 (90 N. W. 278), a physician, testifying for the plaintiff, being asked if it would have been possible to perform the operation so as to save any portion of the hand, replied:

“ I think so; I would have tried it.
“Q. Could they have saved the thumb ?
“A. I think so.”

This court said in comment:

“ We do not think this testimony was of any probative force to show negligence on the part of the attending surgeons, or to justify the submission of the question of malpractice to the jury.”

The testimony here commented upon was given by a surgeon who was present and witnessed a part of the operation. The case of Mohr v. Williams, 95 Minn. 261 (104 N. W. 12, 1 L. R. A. [N. S.] 439, 111 Am. St. Rep. 462, 5 Am. & Eng. Ann. Cas. 303), cited and relied upon by plaintiff, is not in point, because in that case there was no emergency. In the case of Bakker v. Welsh, 144 Mich. 632 (108 N. W. 94, 7 L. R. A. [N. S.] 612, 8 Am. & Eng. Ann. Cas. 195), this court held that in the case of a boy 17 years old, who himself consented to an operation which resulted in death, the father’s consent was not necessary, and in that case also there was no emergency.

While, as hereinbefore pointed out, the testimony offered on behalf of the plaintiff was insufficient, in our opinion, to raise a question of fact for the determination of the jury as to whether the defendant was guilty of negligence through an error in judgment, the plaintiff’s case would not be aided even if that issue were determined in his favor. In an ordinary action for negligence, the fact that defendant has acted according to his best judgment is no defense. His act is to be judged by the standard of conduct of an ordinarily prudent man under the circumstances. In conduct, resting upon judgment, opinion, or theory, however, a different rule has been recognized. This distinction has been well pointed out in the case of The Tom Lysle (D. C.), 48 Fed. 690, where it is said:

“ The distinction between an error of judgment and negligence is not easily determined. It would seem, however, that if one, assuming a responsibility as an expert, possesses a knowledge of the facts and circumstances connected with the duty he is about to perform, and, bringing to bear all his professional experience and skill, weighs those facts and circumstances, and decides upon a course of action which he faithfully attempts to carry out, then want of success, if due to such course of action, would be due to error of judgment, and not to negligence. But if he omits to inform himself as to the facts and circumstances or does not possess the knowledge, experience, or skill which he professes, then a failure, if caused thereby, would be negligence. * No one can be charged with carelessness, when he does that which his judgment approves, or where he omits to do that of which he has no time to judge. Such act or omission, if faulty, may be called a mistake, but not carelessness ’ ” — citing Brown v. French, 104 Pa. 604; Williams v. Le Bar, 141 Pa. 149 (21 Atl. 525).

In Staloch v. Holm, 100 Minn. 276 (111 N. W. 264, 9 L. R. A. [N. S.] 712), the writer of the opinion, in commenting upon this exception to the general rule, says:

“ One reasonable justification for this exception * * * is the elementary principle that when a man acts according to his best judgment in an emérgency, but fails to act judiciously, he is not chargeable with negligence. * * * Physicians in the nature of things are sought for and must act in emergencies, and if a surgeon waits too long before undertaking a necessary amputation, he must be held to have known the probable consequences of such delay, and may be held liable for the resulting damage” — citing Du Bois v. Decker, 130 N. Y. 325 (29 N. E. 313, 14 L. R. A. 429, 27 Am. St. Rep. 529); Martin v. Courtney, 75 Minn. 255 (77 N. W. 813).

It would be unreasonable to hold a properly qualified physician or surgeon responsible for an honest error of judgment, where, as in the instant case, he is called upon to act in an emergency and must choose between two courses of action either one of which involves the possibility of the gravest hazard to the patient. As was said by Upton, J., in Williams v. Poppleton, 3 Or. 139:

“In cases like this the court and jury do not undertake to determine what is the best mode of treatment, or to decide questions of medical science upon which surgeons differ among themselves.”

It is, we think, very clear upon this record that the question presented to the defendant, at the moment he was called upon to act, was one of judgment only. Instant action of some sort was imperative. In reaching a conclusion as to the proper course to be pursued, the attending surgeon must necessarily „be influenced by many considerations: The physical character of the wound, the fact that there was a compound dislocation of the bones of the foot, the entire absence of one of these bones, the stripping off of the flesh from the anterior part of the foot, leaving the tendons bare and shiny, the fact that the foot had become wholly devitalized, the presence of hemorrhage, the danger from blood poisoning at the time or from future infection, the character and quantity of foreign matter, dirt, cinders, etc., in the wound. To a consideration of these matters must be added a careful attention to the general condition of the patient, the degree and cause of the existing shock, the apparent ability or inability of the patient to resist shock, the condition of the temperature, pulse, and respiration, and the reaction or lack of it produced by the administration of stimulants. Called upon to act under such circumstances and to determine which of two courses (one entailing certain mutilation and the other probable death to the patient) should be followed, it is apparent that the defendant is not bound by the ordinary rules of negligence, but is entitled to insist that, having used his best judgment, he is not liable.

There is nothing in this record to indicate that, had the parents of plaintiff been present at the operating table, they would have [refused their consent to the operation. Indeed, it is inconceivable that such consent would have been withheld in the face of the determination of five duly qualified physicians and surgeons that it was necessary to save the plaintiff’s life. But defendant testifies, and in this he is not contradicted, that he made inquiry for relatives of the plaintiff and was told that none was in the hospital. Suppose that his informant was in error (which is not certain), the defendant had a right to rely upon the information and to act in the emergency upon the theory that to obtain consent was impracticable. In Pratt v. Davis, 224 Ill. 300 (79 N. E. 565, 7 L. R. A. [N. S.] 609, 8 Am. & Eng. Ann. Cas. 197), it was said:

“ In such event a surgeon may lawfully, and it is his duty to, perform such operation as good surgery demands, without such consent.”

Upon the question involved in this case, a valuable collection of authorities will be found in Gillette v. Tucker, 93 Am. St. Rep. 657, note. See» also, 30 Cyc. p. 1587.

The fact that surgeons are called upon daily, in all our large cities, to operate instantly in emergency cases in order that life may be preserved, should be considered. Many small children are injured upon the streets in large cities. To hold that a surgeon must wait until perhaps he may be able to~ secure the consent of the parents before giving to the injured oñe the benefit of his skill and learning, to the end that life may be preserved, would, we believe, result in the loss of many lives which might otherwise be saved. It is not to be presumed that competent surgeons will wantonly operate, nor that they will fail to obtain the consent of parents to operations where such consent may bq reasonably obtained in view of the exigency. Their work, however, is highly humane and very largely charitable in character, and no rule should be announced which would tend in the slightest degree to deprive sufferers of the benefit of their services.

The judgment is affirmed.

Moore, C. J., and Steere, McAlvay, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.