text:
    DETROIT, YPSILANTI, ANN ARBOR & JACKSON RAILWAY v. CITY OF DETROIT.
    Taxation — Street Railways — Situs—Principal Oeeioe — Designation.
    The principal business office of a street-railroad company, for the purpose of fixing the place of paying its personal-property tax under the statute (§ 3831, subd. 16, 1 Comp. Laws), is in the city in which its banking is done and all its officers and directors reside' and have their business offices, and not in the village where stockholders’ meetings are held and its general books kept, notwithstanding it has designated the village in its articles of incorporation as its principal business office.
    Appeal from Wayne; Mandell, J.
    Submitted April 13, 1905.
    (Docket No. 65.)
    Decided July 21, 1905.
    Bill by the Detroit, Ypsilanti, Ann Arbor & Jackson Railway against the city of Detroit, Thomas M. Lucking, receiver of taxes, the village of Dearborn, and James D. Wallace, village treasurer, to determine the situs of complainant for the purposes of taxation. From a decree holding said property taxable in the village of Dearborn, the city of Detroit appeals.
    Reversed.
    Corliss, Leete & Joslyn, for complainant.
    P. J. M. Hally (Timothy E. Tarsney, of counsel), for defendant city of Detroit.

      Thomas G. Long, for defendant village of Dearborn.
   Carpenter, J.

Complainant is a street-railway company having a line extending from Jackson to the western limits of the city of Detroit. Its personal property is assessed both in the city of Detroit and the village of Dear-born, and it commenced this suit in chancery for the purpose of having the court determine in which of these places said property is legally taxable. The court below rendered a decree holding said property taxable in the village of Dearborn, and enjoining the defendant the city of Detroit from enforcing said assessment. From this decree the city of Detroit appeals.

The facts are stipulated, and are as follows:

“The office for the transaction of the business of said company is required by the articles of association to be kept in the village of Dearborn. The stockholders’ and directors’ meetings are usually held at Dearborn. An adjourned stockholders’ meeting was held at Detroit. The stockholders assembled at Dearborn and adjourned to Detroit. Officers were never elected at Dearborn. The election has been held at Detroit. There have been five elections in the last five years. The office was not moved to Dearborn until May, 1900. Before that the meetings were always held in Detroit. Since the organization of the present corporation (1901) there have been three stockholders’ meetings. There is no definite number of meetings per year. There was no meeting held bet wen January 21, 1903 and June 11,1903. The secretary writes up the record book, which usually takes about an hour for each meeting. - There are five directors, all of whom live in Detroit. Occasionally a special meeting of the directors has been held at some place other than Dearborn, wherever the directors could get together best. One meeting was held at Ypsilanti. There have been as many as three meetings in Detroit. But no meeting was ever called at any other place than Dearborn. Whenever a meeting of either stockholders or directors has been held at a place other than Dearborn, it was first called to order at Dear-born, and then adjourned to Detroit, Ypsilanti, or to whatever place it was agreed upon.
“ The books and records of the stockholders’ and directors’ meetings and the other general books of the company —that is, the ledger, journal, and cashbook, and all permanent records, in all five or six large books — are kept at the office in Dearborn. 'The secretary is in charge of the office. The bookkeeper is his assistant, and is the only one keeping books at Dearborn, and the only bookkeeper the company has. The bookkeeper spends about half of his time at Dearborn. He is not there every day. He is there as often as the work of the books and records make it necessary. He leaves Detroit about half past 8 in the morning, and'Stays at Dearborn until about half past 4 or 5, taking time for lunch at noon. He resides in Detroit. He does not report at the Detroit office every morning. He gets his data from all the offices along the line, including Detroit. When he is not at Dearborn, there is no one in his part of the office. The books are then locked up in the safe there. There is no stenographer or typewriter at Dearborn. The bookkeeper also acts as auditor and paymaster, and investigates conditions all along the line. There is a ticket and freight office at Dearborn, which is open from 7 a. m. until 12 midnight. The agent in charge has a typewriter, and a letter press for keeping duplicate copies of waybills.
“At Detroit the company has an office in the Majestic building, where account of the passenger traffic is kept and the tickets taken up. After being tabulated by girls, the records are transferred to the books at Dearborn. The greater part of the banking is done at Detroit at the Detroit National Bank, though a great deal is done at Ypsilanti at the First National Bank. None of the banking is done at Dearborn, though there is a bank there. There is a greater volume of work done at the Detroit office than at the Dearborn office. The Detroit office is the largest ticket office, differing in character from the Ypsilanti and Ann Arbor offices in that the tickets are counted there. A great deal of correspondence is done from Detroit. The office at Detroit is the secretary’s office. His work is all along the line in connection with accounting with the different stations. The president resides in Detroit, and has his office with the Detroit & Mackinac Railway, on the same floor of the Majestic building with the complainant’s office. The treasurer has his office with the Central Construction Company and the Electric Light & Power Company on another floor of the same building. A pay roll is made up twice a month at Ypsilanti under the supervision of the general manager. It is then sent to the secretary at the Detroit office, where the money is drawn from the Detroit National Bank, put in envelopes, and then taken and distributed by the bookkeeper to the officers, agents, and employés along the line. In the secretary’s office there are five employés — four girls and one man — employed every working day during all the working hours. The supplies of the company are purchased under the supervision of the secretary, and he is the purchasing agent of the company.
“The general manager at Ypsilanti purchases supplies and makes up the pay roll, and a voucher for it is sent to the Dearborn office for entry on the books. If the president transacts any business affecting the company, a record is made and sent to the Dearborn office for transfer on the books. If the treasurer signs a pay-roll check, it is sent to the Dearborn office for record. The tickets are reported daily, and then reported to the Dearborn office for record. Every transaction of every officer and employé which affects the company finds its record upon the books at Dearborn. The files of reports from officials are kept at Detroit. Copies of reports and trial balances are kept at Detroit, so that, as a general rule, though not always, any fact shown by the books at Dearborn can be got from a file at Detroit. Everything goes on the books at Dearborn first passes through the Detroit office.
“ At Ypsilanti, besides the local office, are located the office of the general manager, the dispatcher, and the master mechanic, and the power house and repair shop, and the entire operation of the road is conducted and managed from that point. Mr. Merrill consults with, and, if orders are necessary, receives them from, Mr. Hawks. The office force at Ypsilanti consists of nine .persons, including a stenographer. A great many letters are written and copied there. There are 33 persons employed in the shops of the company at Ypsilanti and 19 in the power house. There are also four persons, with their headquarters at Ypsilanti, employed in what is called ‘line department.’ The entire freight business of the road is managed from Ypsilanti. The conductors and motormen make no report whatever to the office at Detroit, but they all report to the operating headquarters at Ypsilanti and to Dearborn and Jackson, but the account of the tickets is sent to Detroit for audit.”

We may briefly summarize these facts as follows: In Detroit all of complainant’s officers and directors reside. There its president, its secretary, and treasurer each has an office, and there it may properly be inferred each of these officers does the business pertaining to his office. In Dearborn are kept the records of the official and other business of complainant. There, as well as at Ypsilanti and Jackson, its conductors and motormen make reports. From the fact that complainant did no banking at Dear-born, we infer that the conductors did not, with these reports, account for the receipts collected by them. From the fact that the bookkeeper was in the office at Dearborn only about half of the time, and from the fact that nothing went .on the books at Dearborn until it had passed through the Detroit office, we infer that there was no custom of complainant to approve or disapprove these reports in the Dearborn office. Under these facts, is complainant’s property taxable at Dearborn or at Detroit ? The act under which complainant is organized required its articles of association to state “the city or village in which the office for the transaction of their business shall be located.” Section 6436, subd. 5, 2 Comp. Laws. The statute provides that:

“ The personal property of street railroad, * * * cable or electric railroad, * * * shall be assessed in the township, village or city where its principal business office is situated.” Section 3831, subd. 16, 1 Comp. Laws.

While it may be conceded that, if complainant had principal business offices in each of several townships, cities, or villages, it might by designation in its articles of association elect in which of said cities or villages said property should be taxed (see City of Detroit v. Lothrop Estate Co., 136 Mich. 265), it is equally clearthat such designation would be altogether ineffectual as an election unless it actually maintained a principal business office at the place designated. See Teagan Transportation Co. v. City of Detroit, 139 Mich. 1; Detroit Transporta tion Co. v. Detroit Board of Assessors, 91 Mich. 382. Did complainant have a principal business office, within the meaning of the statute, in the village of Dearborn ? The claim that it had cannot rest upon the fact that it had a local business office there like that maintained at every other station on complainant’s line. Nor can it rest upon the fact that conductors and motormen deposited formal reports which were acted upon in the Detroit office. Neither can it rest upon the fact that the bookkeeper there made and kept the official and other books of the company. If Dearborn may be regarded as the location of the principal business office of said complainant, it must be because there its stockholders and directors occasionally met. Is the place in which the stockholders and directors of the corporation occasionally meet the principal business office of the corporation ? I think we have answered this question by our own decisions. In Detroit Transportation Co. v. Detroit Board of Assessors, supra, we said:

“The term ‘for business,’used in the statute, cannot be limited to so narrow a construction as to say that it means simply the annual meeting of the stockholders or meetings of directors.”

In Teagan Transportation Co. v. City of Detroit, supra, we said:

“By ‘business’ the legislature meant something more than the annual meeting of stockholders and newly chosen directors.”

It is true that in each of these cases the statute involved was somewhat different from the statute controlling this case. But there is no such difference as to make those decisions inapplicable. It follows, therefore, that complainant had no right to select Dearborn as the situs for the taxation of its personal property. It is equally clear, under the facts stated in this opinion, that its property was ta'xable in the city of Detroit, where its president, secretary, and treasurer had their offices, and where they did the duties pertaining thereto. See City of Detroit v. Lothrop Estate Co., Teagan Transportation Co. v. City of Detroit, supra.

The decree of the court below should therefore be reversed, and one entered in this court compelling complainant to pay its taxes in the city of Detroit, and relieving it from taxation in the village of Dearborn.

As this suit is the natural result of complainant’s improper selection of the village of Dearborn as the place of taxation, it should pay the costs of this appeal.

Moore, C. J., and McAlvay, Montgomery, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    DUTCHOWSKI v. HANDY THINGS CO.
    Master and Servant — Injuries to Servant — Defective Machinery-Contributory Negligence.
    In an action against a master for injuries to a servant caused by a board being thrown out of a gang ripsaw, evidence examined, and held, that the servant was negligent in unnecessarily going in front of the machine.
    Error to Mason; McAlvay, J.
    Submitted April 27, 1905.
    (Docket No. 102.)
    Decided July 21, 1905.
    Case by John Dutchowski against the Handy Things Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    The defendant is a manufacturer of wooden ware. It had in its factory a gang ripsaw machine, used to cut lumber from one to three inches thick into squares or strips for the turning lathe. The machine was fastened to the floor, was five feet long, four feet wide, two feet ten inches above the floor, and was designed to run from one to three saws. The saws were hung on an arbor, fastened below the table near its center, and projected above the table. Above the saws was a metal hood, the forepart of which carried three sprocket wheels which fed the lumber into the saws. The rear part of the hood was in front of a shoe, serving as a carriage for the feed wheels, a cover for the saws, and a weight to hold the lumber down. The hood was lowered and raised by a lever, a piece of maple lumber, fastened over the seat or rear side of the machine between wooden brackets fastened to a beam in the ceiling. A rope was attached to the lever near the center that ran up to the pulley in the ceiling and down to the hood. This lever extended directly over the saws about two feet beyond the front of the machine.
    Witnesses differ as to the exact location of the lever, some placing it about over the center of the machine, others a little north of the center, and others still farther towards the north. At one time there was a rope attached to the end of this lever, so that it could be more easily reached. The length of this rope was regulated by the operator to suit himself. The machine was started and stopped by a lever which controlled the belt tightenei’, and was called the “ tightening lever.” This was on the side opposite the operator, so that, if the operator desired to stop the machine when in operation, he would have to go in front of it, or around back, a distance of about sixty feet.
    The ripsaw was situated at the north end of the room, and its front was about ten or twelve feet from the west wall of the factory. In operating the machine its operator stood at its north side, near the front, at the northwest corner. He took the boards from a car behind him, and adjusted them into the machine along a guide on the saw table. The sprockets then caught the board and carried it through the saws. The tail sawyer received the boards at the hack end of the machine, and sent them to other machines. Sometimes a board became wedged in the saws by bark, splinters, or other means. The machine would then choke and stop. To relieve the machine, the operator would then reach for the hood lever, pull it down, and raise the hood. The usual effect of raising the hood was that the board thus released would be thrown back with considerable force to the front of the machine, and would therefore strike any one standing in front. Sometimes the board would fly back without the raising of the hood. Sometimes the board would be wedged so tight that it would not come back when the hood was raised. The operator or tail sawyer would then push or pry it out, or, if he could not do this, stop the machine by the use of the tightening lever. There was a clutch in the machine within reach of the operator, designed to stop the feed wheels without raising the hood.
    About five years previous to the accident which resulted in the injury to the plaintiff, he was operator of this machine for about sis months. After that, and until the day of the accident, he worked at the other machines in the factory. For some reason the operator of the ripsaw on the day of the accident did not report for work, and plaintiff took his place. Whether the defendant directed him to go there or whether he volunteered to do it is in dispute, but that fact is immaterial to the controversy. In about 20 minutes after plaintiff had begun to work the machine choked and stopped. Plaintiff reached for the hood lever, but, not getting it, he looked up and reached again, and in so doing placed his body in front of the machine. The board flew back and struck him. So frequently were these boards thrown back in the manner indicated, that some of the plaintiff’s witnesses testified that there was a hole in the brick wall in front of the machine, caused by the boards flying out and striking the wall.
    While there are several charges of negligence, the only one upon which any liability can be based is that defendant—

      “Located this lever so far above and to one side of the standing place of the operator that it could not be reached without getting in front of the saws, and so exposing said operator to very great, unusual, and unnecessary hazard, whenever it became necessary, as it often did, to the knowledge of said defendant, to raise said upper portion of said machine when it had become clogged and stopped.”
    The plaintiff recovered a verdict and judgment.

      M. B. Banaher (B.undy, Travis & Merrick, of counsel), for appellant.

      Charles A. Withey and A. A. Keiser (J. E. Richardson, of counsel), for appellee.
   Grant, J.

(after stating the facts). The theory of the declaration evidently is that the construction of this machine was faulty in locating the lever by which the hood was raised. There is no claim upon this record that the machine was originally faulty in that respect, but the claim is that for some reason this lever at the time of the accident had moved farther to the south, and was located towards and over the south part of the machine. The only reason given for such change, if any change there was, is attributed by one of plaintiff’s witnesses to “the wear of the bolt where it was fastened to the clutch, the wearing of the hole,” for which reason the lever would swing away from the operator farther than it formerly did. The liability, if any, depends not upon any negligence in the original construction, but upon negligence in not repairing upon notice or knowledge of the defect, or in a failure to inspect. The machine was one in common use. It was unsafe to stand or pass in front of the machine when in operation, because of the liability of the boards to fly back. Every operator, including plaintiff, knew this, and always stood at the side of the machine. Defendant expected its operators to stand there, and had the right to assume that they would stand there in a place of absolute safety. Plaintiff claims that the end of the hood lever was in a different place from what it was when he first worked upon the machine. The other operators had evidently found no difficulty in avoiding the danger. This appears from the plaintiff’s own witnesses. No one had before complained or given any notice of any change in the position of the lever. He testified that he was shorter than the other operators.

Can defendant be held liable because the plaintiff was shorter in stature than other operators? He knew the height of the other operators and his own as well as did his employer. The lever was at the same height above the machine as when he operated it before. He knew the necessity of a rope as well as any one if he could not reach the lever. The lever was in plain sight, but little above the plaintiff’s head. He could have seen at a glance the location of the lever, and, if too high for him to reach, he could easily have attached a rope to it before starting the machine. But, assuming that he did not look and see the situation until the machine was choked, he then saw that the lever was beyond his reach, and that he could only reach it by placing himself directly in front of the machine, where he knew that injury was almost certain to follow if he raised the lever, and liable to follow if he did not raise it. Was his action justified by the law? He was not a stranger in a strange place. If he could not reach the lever in safety, it was his duty to stop the machine and remedy the defect without danger to himself. This he could have done by going around the machine, a distance not exceeding sixty feet, and applying the lever to stop it. This would have taken him not to exceed ten or twelve seconds if he walked at the rate of three miles per hour, and not more than half that time if he ran. The time required was almost unappreciable. Instead of taking this course or adopting some other means to reach the lever, he placed himself directly in front of the machine. His sole excuse for thus exposing himself to danger is that he did not realize what he was ■ doing. He testified as follows:

“Q. State whether or not you realized, when you reached for the lever the second time, that you were getting in front of the machine ?
“A. I did not. I reached in haste.”
On cross-examination he said:
“ I must have stepped in front of the machine when I got hurt. I stepped in front of it when I reached for the lever.
“Q. Now, before doing that, you had thought, had you, that it would be dangerous for you to cross over there to relieve the tightener, as you stated a while ago ?
“A. I didn’t have time to think. It was all done in an instant, almost. * * *
“Q. Now, if you had stopped to think, and it had occurred to you that it was dangerous to get in front of the saw, either to get the hood lever or the tightener lever, you would not have done it, would you ?
“A. Didn’t have time to think about anything.
“Q. Now, if that had occurred to you that the board was caught in there, and that it might be dangerous to get in front of it in attempting to reach one of these levers, there was nothing to prevent you dropping on your hands and knees and being below the bed of the table, so you could have gotten over there to the tightener lever ?
‘A. I never thought of it.
“Q. I don’t claim that you thought of it, but I say there was nothing to prevent your doing that ?
‘A. I don’t know of anything of that kind. It might possibly have been done.”

It is apparent that there was no necessity .or occasion for the plaintiff to place himself in this position of danger. His employer had never required it, and never expected it. The defendant cannot be held liable because plaintiff acted hastily, and without thought. If the lever was in fact beyond his reach, there is no testimony that the defendant expected or required the operator to expose himself by standing in front of the machine in the attempt to reach it. It is clear that he unthinkingly and hastily assumed a risk which his employer did not require him to take, and had no reason to believe that he would take. He knew that this machine was liable at any time to throw out a board. He could and should have kept out of its path. His employer is not responsible for the consequences of his unnecessary and thoughtless act.

Judgment reversed, and new trial ordered.

Moore, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


author: Moore, C. J.

text:
    McCORMICK v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Carriers — Railroads—Station Platforms — Care Required.
    A railroad company is required to exercise only reasonable care to provide a safe platform for ingress and egress to and from its station.

    2. Evidence — Nature of Injuries — Opinions.
    In an action for personal injuries, in which physician and nurse have testified fully as to plaintiff’s condition, they should not be permitted to give their opinions as to whether plaintiff was simulating.
    3. Same — Personal Injuries — Expressions of Pain.
    In an action for personal injuries, evidence of expressions of present pain are admissible though uttered by plaintiff long after the injury, and after she had decided to bring suit.
    Error to Shiawassee; Smith J.
    Submitted April 27, 1905.
    (Docket No. 97.)
    Decided July 21, 1905.
    Case by Elizabeth McCormick against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Harrison Geer, for appellant.

      Watson & Chapman, for appellee.

       As to measure of care which a carrier must exercise to keep platforms and approaches safe, see note to Johns v. Charlotte, etc., R. Co. (S. C), 20 L. R. A. 520.

   Moore, C. J.

This is an action brought by Elizabeth McCormick to recover damages claimed to be sustained by her through falling on defendant’s station platform at Corunna about 6 o’clock on the evening of the 29th day of January, 1903. The depot stands north of the track. There are no windows on either the east or west ends. On the south side and near the west end is a window, and 9 feet east of this is a door. Five feet to the east of this door is the window in the operator’s room. These windows, which are about 5 feet in height and 2 feet 10 inches in width, are old style, with panes of glass in them either 8 x 12 or 6 x 12 inches in dimension. Between the depot and the company’s tracks is> a platform, running east and west, of some 120 feet in length. Right in front of the depot it is 22 feet in width, and consists of 8 feet of wood plank, then 6 feet of cinders, and then up to the track is another 8 feet of wood plank. It gradually becomes narrower as it runs west, and, after passing the end of the station, it runs west for some little distance at a width of 8 feet. North of this station platform, and at the west end of the wide portion, is the platform against which the omnibus backs to permit passengers to get out of or into the same. The plaintiff went to the depot in an omnibus in which there was a number of other passengers. The omnibus was backed against the steps of the platform. There were three of them, about 18 feet long and 1 foot wide, with a rise of from 4 to 6 inches each. These steps were constructed so that passengers might pass qver them in going to and from the omnibus. The steps on the rear end of the omnibus would strike against the depot platform if the platform steps had not been constructed. It is not claimed the platform or platform steps were defective, but it is claimed the platform was not properly lighted. One or two passengers alighted from the omnibus. The plaintiff then alighted. It is her claim she stepped one side to get out of the way of the other passengers, and then attempted to go forward upon the platform, caught her foot under a plank, and fell, suffering severe injuries. She recovered a judgment against defendant. The case is brought here by writ of error.

There are a good many assignments of error, but they are discussed by counsel for defendant under the following heads:

(1) The defendant is only bound to exercise ordinary care to see that its depot premises are kept and maintained in a reasonably safe condition.
(2) That plaintiff was guilty of contributory negligence.
(3) That the jury, and not medical experts, should decide whether or not a person is simulating.
(4) That exclamations of pain and suffering, uttered long after the occurrence of an injury and suit has been begun, are not admissible in evidence.
(5) That the circuit judge should have set aside the verdict and granted a new trial, for the reasons assigned in defendant’s motion for a new trial.

We will discuss them in the same order.

1. It was the claim of plaintiff that there were no lights upon the platform, that any light which would reach it from the lamp in the front part of the omnibus was intercepted by the passengers who were following her out of the omnibus. It was the claim of defendant that the platform was ordinarily well lighted from the lamp in the omnibus, from the lamps in the station buildings, and from the electric lights in the street. The judge charged the jury:

“ It is the duty of the defendant to use a very high degree of care to make the place where it receives passengers safe and free from danger; and if the defendant has failed to so light its platform and to use such high degree of care in keeping the point at which it received its passengers safe, and if the plaintiff has been injured on account of such negligence, and without any fault on her part, then she would be entitled to recover, and your verdict would be for plaintiff.”

Counsel for plaintiff say this portion of the charge should be read in connection with the paragraphs which precede it, and that it was nothing more than saying that the care the ordinary person should use under like circumstances is a high degree of care. In Cross v. Railway Co., 69 Mich. 363, Justice Morse, speaking for the court, said:

“ This diagonal walk being a recognized way to and from the depot, it was the duty of the defendant to keep it reasonably safe. 1 Rorer on Railroads, 476; Smith on Negligence (2d Ed.), 126, 188; Cooley on Torts, 605; Delaney v. Railway Co., 33 Wis. 67; Hulbert v. Railroad Co., 40 N. Y. 145; Dillaye v. Railroad Co., 56 Barb. (N. Y) 30; Gaynor v. Railway Co., 100 Mass. 208; Tobin v. Railroad Co., 59 Me. 183; Hoffman v. Railroad Co., 75 N. Y. 605; Cartwright v. Railway Co., 52 Mich. 606.”

In Flagg v. Railway Co., 96 Mich. 30 (21 L. R. A. 835), Justice Long, speaking for the court, said:

“ The duty which the defendant owed to the plaintiff was to provide a reasonably safe place of ingress to and egress from its station. Negligence would mean the omission by the defendant to do something which persons conducting a railway with reasonable care and caution should do.”

See, also, Stewart v. Railway Co., 89 Mich. 315 (17 L. R. A. 539); Retan v. Railway Co., 94 Mich. 146; Hiatt v. Railway Co., 96 Iowa, 169; Robertson v. Railroad Co., 152 Mo. 382. We think the charge to the jury required too high a standard of care.

2. Can it be said as a matter of law that plaintiff was guilty of contributory negligence ? This contention of the defendant is based upon the claim that plaintiff knew all about the conditions at the platform and went forward without care. It would profit no one to state in detail the testimony. An examination of the record satisfies us that the question of contributory negligence was one for the jury. Dundas v. City of Lansing, 75 Mich. 499 (5 L. R. A. 143); Argus v. Village of Sturgis, 88 Mich. 344; Graves v. City of Battle Creek, 95 Mich. 266 (19 L. R. A. 641); Sias v. Village of Reed City, 103 Mich. 312; Mackie v. City of West Bay City, 106 Mich. 244; Schwingschlegl v. City of Monroe, 113 Mich. 683; Grattan v. Village of Williamston, 116 Mich. 462.

3. Was there error in allowing the medical experts to express an opinion as to whether plaintiff was simulating ? The following occurred upon the trial:

Q. Dr. Kennedy, in your opinion, was or was not this woman simulating ?
“A. I do not think that this woman was simulating. * ❖ *
Q. Miss Graves, in the time you were nursing and caring for Mrs,. McCormick, state what you noticed, if anything, to indicate that she was not injured — that she was putting it on, malingering, or assuming it ?
“A. She was not. * * *
Q. Miss Wright, during the time that you were there, from the Sunday following the accident up to the time when you went away, did you notice anything that indicated to your mind that the lady was assuming her sickness ?
“A. No, sir.
Q. Did you notice anything, at any time that you saw her, from the 29th of January until May, that you could state that would indicate that she was not sick, and that her sickness was not real ?
“A. No, I didn’t. Her sickness appeared to be real. I have seen her occasionally since the 24th of May at her home.”

Other testimony of a like character was permitted. In the recent case of Comstock v. Township of Georgetown, 137 Mich. 558, there is a full discussion of the question involved here. See, also, Cole v. Railway Co., 95 Mich. 80; McKormick v. City of West Bay City, 110 Mich. 270. The physician and nurse had been allowed to testify fully as to the condition of plaintiff, and we think their conclusion should have been excluded, and the jury allowed to decide from the evidence whether plaintiff was simulating.

4. Did the court err in allowing evidence of exclamations of pain and suffering, uttered long after the injury and after she had decided to bring suit ? In Strudgeon v. Village of Sand Beach, 107 Mich. 496, Justice Montgomery, speaking for the court, said:

“Error is assigned on a ruling permitting the witness, John Strudgeon, to testify to exclamations of pain made during the pendency of the action. The general rule is well settled that declarations of present suffering are admissible in evidence, and are not objectionable as hearsay, so long as they do not amount to narrations of past conditions. Johnson v. McKee, 27 Mich. 471; Mayo v. Wright, 63 Mich. 32; Lacas v. Railway Co., 92 Mich. 412; Girard v. City of Kalamazoo, 92 Mich. 610. But it is insisted that a different rule obtains where the exclamations are made during the pendency of the case, or after a controversy has arisen; and defendant’s counsel rely upon Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537. In that case the testimony which was held inadmissible related to exclamations or statements of suffering made by the plaintiff at the time she was undergoing an examination by a physician, who was called in the expectation that he would give testimony on the trial as to the results of the examination. The court said:
'“We cannot think it safe to receive such statements, which are made for the very purpose of getting up testimony, and not under ordinary circumstances. The physicians here were not called in to aid or give medical treatment. * * * They were sent for merely to enable the plaintiff to prove her case. The whole course of the plaintiff was taken to no other end. She had in her mind just what expressions her cause required. They were, therefore, made under a strong temptation to feign suffering, if dishonest, and a hardly less strong tendency, if honest, to imagine or exaggerate it.’
“Defendant’s counsel also cite Laughlin v. Railway Co., 80 Mich. 154. In that case, although the opinion does not fully set out the facts, the record shows that the exclamations of pain were made in the presence of one who had been asked to become a witness for the plaintiff, and who was called to testify to exclamations of pain made on substantially the same occasion; thus bringing' the facts within the Huntley Case. In the same line is Jones v. Village of Portland, 88 Mich. 598 (16 L. R. A. 437). But the court never has laid down the rule that such exclamations would be excluded solely for the reason that they were made after the controversy, and after the suit was commenced.”

See, also, Will v. Village of Mendon, 108 Mich. 251; Mott v. Railway Co., 120 Mich. 127. We think the testimony was admissible.

For the reasons stated, we think the case must be re-' versed. Having reached this conclusion, it is unnecessary to express any opinion as to whether the trial judge erred' in declining to grant a new trial.

Judgment is reversed, and new trial ordered.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    CARNES v. GUELPH PATENT CASK CO.
    Master and Servant — Death of Servant — Dangerous Employment — Instructions—Assumption of Risk.
    In an action for the death of a servant working on a rollway of logs, caused by the collapse of the pile of logs, evidence examined, and held, that the conclusion that deceased knew how the appliances were made and the manner of doing the work was irresistible and that the direction of a verdict for defendant was proper.
    Error to Benzie; Chittenden, J.
    Submitted April 27, 1905.
    (Docket No. 101.)
    Decided July 21, 1905.
    Case by Cora A. Carnes, administratrix of the estate of Lutherford B. Carnes, deceased, against the Guelph Patent Cask Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Charles A; Withey (D. C. F. Warner, of counsel), for appellant.

      Nims, Hoyt, Erwin, Sessions & Vanderwerp, for appellee.
   Moore, C. J.

This is a negligence case, brought under the survival act by the plaintiff, as the administratrix of her late husband’s estate. The defendant was engaged in running a saw and veneering mill at Wolverine, Mich., and banked its logs for summer use on its grounds near the mill in some 20 rollways, piled about 10 rods long and 14 to 16 feet high. In placing the logs in these rollways, the whole front of the banking ground was carried along at once, or nearly so, in order to give numerous teams a chance to unload as they came from the woods, thus avoiding one waiting for the other. The logs fell from the sleighs upon skids about 30 or 40 feet long lying upon the ground. Beyond these skids were short ones, also upon the ground, for the purpose of enabling the chainman to pass the decking chain under the logs to be put up on top of the rollways.

The work of rolling the logs on the long skids to near the rollways was called “ tailing down.” When the logs reached the short skids they were left by the tailers, and the chainmen put them in place to be chained and sent up. They were elevated to the top of the rollways by means of other skids standing in an inclined position, with one end on the ground and the other on top of the rollway, the logs being rolled up these inclined skids by means of a block and chain and horse power. The chain at the log end had a crotch, one side of which was passed under each end of the log, the ends of the crotched chain being on top of the rollway. The log would lie in a loop, so that when the team was put in motion it would be rolled up the skids to the desired point on the rollway. On the day when decedent was killed, one of the top men did not appear,- and one of the chainmen took his place, and decedent took the chainman’s place.

About 11 o’clock in the forenoon it became necessary, to move the inclined skids from the face of the rollway for the purpose of putting more logs at the bottom and in front of the face to strengthen it, there having been evidence of its being weak for some moments before. These inclined skids were green poles some 16 feet long and 6 inches through, with an iron at the top end where they rested on the top log of the roll way in the shape of a “ T, ” the upright bar of the “T” being lengthwise and the top bar crosswise of the skid, with each end of the crosspiece turned down into a sharp spike. These spikes were driven into the logs where the skids rested by the weight of the other logs as they passed over the skids on their way to the top of the rollway, and were for the purpose of holding the skids in place so they would not move sidewise, or “scoot up with the logs.” There were two ways of removing the skids from the face of the, rollways — one, just to step up with the man’s back to the roll way, take the skid on the shoulder and walk away with it; if it was considered dangerous to move the skid, to take a canthook and loosen the ground end so as to test the strength of the face before shouldering it. Almond Jones was chaining at one end of the logs on the forenoon in question, and when the time came to move the inclined skids stepped up to the one on his end of the rollway and took it on his shoulder. At this moment decedent went to the other skid, and was seen by one of the top men to pass under it, and the next instant the rollway went out. One of the top men ran up the deck and escaped, the other went down with the front, but was not hurt. Decedent was caught between the logs of the rollway and those that were lying on the ground in front of it, and so crushed that he died in about two hours.

At the close of the evidence on the part of the plaintiff, the defendant moved for a directed verdict, and the motion was granted, the court holding that no negligence was shown against defendant; that, if any was shown, it was that of a co-servant; that the risk was obvious; that decedent was guilty of contributory negligence. The case is brought here by writ of error.

It is the claim of plaintiff that her husband was by trade a metal polisher; that until the day of his death he had never worked on or about the roll way; that he was not likely to see the iron in the upper part of the skid, so that the danger was latent; that he did not appreciate the danger of removing the skid; that he was set at this dangerous work without being informed of its dangerous character ; and that the questions involved should have been left to the jury by the judge, instead of directing a verdict. No witnesses were sworn on the part of the defendant. There is no direct proof as to what instructions were given to deceased when he was set at this work. It is true some of plaintiff’s witnesses say they did not hear any instructions given to him, but there was abundant opportunity to give him instructions without the witnesses who were sworn hearing it. We do not need, however, to decide what the presumption would be under such a state of facts. The record shows the deceased was 24 years old. There is nothing to show he was, not a man of at least ordinary intelligence. He had worked in the woods that winter for the defendant about 45 days. His work was clearing away for the teams and placing skidways. He then went to work in the yard where this and other railways were in process of building. He then constituted a part of a crew whose work resulted in getting the logs from the sleighs that brought them to the yard into the railways where they remained until they were to be manufactured later. Some of these men unloaded the logs. Mr. Carnes helped to tail them down from where they were unloaded to the men who passed them up the skids into the railways. His work took him near the front of the rollways, where the skids were in constant use, and the logs which he assisted in taking down were put into the rollways. It did not require more than a superficial knowledge of the work to know that if there was not something at the top of the longer skids to hold them in place the impact of the log striking the skids at the lower end would carry them forward to the front of the rollway, do away with the incline, and project the upper end of the skids above the top of the rollway; or, as stated by one of the witnesses, the skids would “scoot up with the logs.” Mr. Carnes had been at work helping send the logs up the rollway from where they were left by the tailmen all the forenoon until nearly 11 o’clock, when the accident occurred. His father-in-law was a witness for plaintiff. On the cross-examination he testified:

Q. Now, Mr. Carnes had been tailing down, you say. How far down was he assisted in tailing down the logs— how close to the rollway as it was being constructed ?
‘A. The men that tailed down usually brought them clear down to the skidways, provided there was no log there. They just merely kept the back moved up so that the chainmen could get them without traveling so far after them. * * *
“Q. So that during the two weeks, or such a matter, that Mr. Carnes was there assisting in unloading and in tailing down logs, he was in the immediate vicinity of where they were putting up the rollways, was he not ?
“A. Yes, sir; principally so. At times a few rods away, and at other times within a few feet. All of that time when he was working he was where he could see what was being done, and the manner of building the rollways — what they did, and what the different men did. * * * The usual crew was six men. There were two topmen and two chainmen, and two men unloading and tailing down. Besides that there was a teamster to help unload, and the foreman. The foreman did whatever was necessary. He was working there at different things, doing the common work. When it was necessary to give assistance in tailing down or unloading, he did that, part of the time, and when it was necessary, if some of the men were temporarily away — one of the topmen, for instance — he went and took his place. If a chainman happened to be away for a while, if he didn’t have a man to put in his place he acted as chainman. He did whatever was necessary in the common operation, and taking care of those logs there, and putting them in the rollway, along with his men.
Q. When the logs came in on the sleighs, they were unloaded, dropped down onto those flat skids, weren’t they?
“A. Yes, sir. Some of the loads at that time were quite high. Then they were rolled back to the foot of the rollway as it was being constructed, and then they were taken from there and put up as I have described. * * *
“Q. Now, all of those men that were on the yard constituted one crew, didn’t they ?
A. Yes, sir, that is, the men that were unloading, the men that were tailing down, the scaler, the chainmen, the topmen, and the foreman, all constituted one crew. Mr. Carnes had been working with this crew for about two weeks.”

Mr. Bigelow, who was a witness for plaintiff, described the accident as follows:

“ Q. Up to the time it went out, you say, you hadn’t any knowledge that the front was weak; you hadn’t heard anything said about it ?
“A. Till just a few minutes before. It hadn’t been more than two or three minutes before that.
Q. What, did you learn about it then, if anything ?
“A. I heard that it was shaky, to watch it.
Q. Did you hear something said about it ?
“A. Yes, sir. I don’t remember just who said it. I can’t repeat the words. As near as I can tell, it was said to watch out, that it was shaky, and not to — hadn’t better —put up any more logs. They said the skidway was shaky.
Q. Did they say that the front was shaky, or just call out, as they usually did, that it was shaky ?
“A. That was the usual way to speak.
Q. They gave the usual warning ?
“A. Yes, to watch out; that it was shaky. I stayed on the front log for a few minutes. • When the fact of the front being shaky was spoken of, Mr. Jones was at the north end of the rollway, on the ground. If my memory serves me right, Mr. Welcome was standing close by.
Q. Where was Mr. Carnes?
“A. He was at the south end. Mr. Welcome was then foreman of the banking ground. He hired and discharged the men on the banking ground. He also told them where to work and what to do.
Q. When did you last see Mr. Carnes before he was hurt ?
“A. He was in the act of taking the skid down. He " walked up to his skid, and was just in the act of taking it away, and I happened to think that it might go down, and I stepped back, and I didn’t see him any more.
Q- Whereabouts, as to the skid, was he when you last saw him ?
“ A. He just kind of stepped in behind it.
Q. Under it, back of it ?
“A. Yes, sir; and I stepped back, and the roll way started. The next I saw him he was lying on the ground out to the front end of the skidway.”

On the cross-examination he said:

“ The accident occurred about half past 10 or 11 o’clock in the forenoon. I was working as a topman at the north end of the rollway. That was the end where Mr. Jones was working as chainman. Some two or three minutes before the rollway gave way somebody stated that it was shaky, and to watch out. At that time Mr. Jones was in front of the roll way, and near it. Mr. Carnes was at the other end of the log, and in front of the rollway.
Q. As a matter of fact, had you not thrown your hooks down each way with the intention of bracing the front of that roll way at the time of the accident ?
“A. Yes, that was our intention. Our purpose was to build up in front, because the rollway had become shaky. I can’t remember whether there was a log in between the foot of the skids and the front of the face of the rollway. I remember there were two logs a few feet in front of the foot of the skids, and it was the intention to put those two logs in the bottom. That was why we had thrown our chains down and were removing the skids. It was our intention to brace it before finishing out the rollway. It was preparatory to doing that — to bracing up the front of the roll way — that Mr. Carnes and Mr. Jones were removing their skids.
“ Q. It was apparent to you and Mr. Carnes, orto any situated as you men were, that it was dangerous to be in front of that rollway ?
“A. Yes, sir.
Q. Was Mr. Carnes in a position where, if he had looked, he could have seen the dangerous condition of matters in front of that rollway ?
“A. He could.”

Mr. Jones, who was working with the deceased as a chainman when deceased was hurt, gave his version of how the accident happened. On the cross-examination he testified:

‘ ‘ A few minutes before the accident occurred I noticed that the face of the rollway was shaky.
Q. Was that shaky condition, apparent to any observer who had looked ?
“A. To any one that saw it; yes, sir.
Q. It was apparent to any one who was there in the presence of the rollway F
“A. Yes, sir; if they had looked to see. Besides that, at the time I discovered its shaky condition, the fact that it was shaky was mentioned. It was stated to the topmen that it was shaky. I don’t remember what was said. It was a very common thing on occasions of that kind to tell them to watch out, that it was shaky or unsafe, or some such expression. Some such expression was used by me at that time, and I knew from the actions of the topmen, and by what was done there, that I was understood.
Q. That was in the presence of Mr. Carnes ?
“A. Yes, sir; he was as near to me as the other men that were working there, the topmen, and could have heard it had he been listening.
“Q. From his actions, what can you say whether or not he heard it; that is, from what he did after that ?
“A. He certainly heard it, or he wouldn’t have been preparing to remove his skid. ”

There is other testimony of much the same character, which it is unnecessary to quote.

It is impossible to read this record without reaching the conclusion that Mr. Carnes knew how the skids were made, and the manner of doing the work. We think the judge properly directed a verdict. Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (27 L. R. A. 266); Petaja v. Mining Co., 106 Mich. 463 (32 L. R. A. 435); Welch v. Brainard, 108 Mich. 38; Minnie v. Mueller, 140 Mich. 3. Judgment is affirmed.

Grant, Blair, Montgomery, and Ostrander, JJ., •concurred.


author: McAlvay, J.

text:
    ATTORNEY GENERAL, ex rel. MORELAND, v. MAYBURY.
    1. Quo Warranto — Abandoned Office — Removal by Council— Evidence — Admissibility.
    On quo warranto t'o test respondent’s right to a municipal office, where respondent relies on relator’s abandonment of the office as creating a vacancy which he was appointed to fill, evidence of proceedings by the council to remove relator, which were pending when he left the State, is admissible on the issue of his intention when leaving, though the council proceedings were void.

      2. Officers — Abandonment of Office — Effect.
    Voluntary relinquishment of an office by abandonment, which is to be ipso facto a vacation of the office, should be as well defined as other well-defined modes of voluntary relinquishment and should not be confounded with mere nonuser or neglect of duty which are grounds for proceedings against an officer, but do not of, themselves produce a vacation of the office without judicial'determination. The intention to abandon an office may be inferred, however, from the conduct of the officer, and where his acts and statements are such as clearly indicate absolute relinquishment, a vacancy is created and no judicial determination is necessary.
    '3. Same — Evidence—Suffioienoy.
    Evidence on the issue of abandonment of a municipal office examined, and held, that from his clandestinely leaving for Mexico pending proceedings for his removal by the council, and making no claim to the office for 17 months after his return, the jury were authorized to find that the officer had abandoned his office, though he testified that when he left he had no such intention.
    Error to Wayne; Rohnert, J.
    Submitted April 28, 1905.
    (Docket No. 194.)
    Decided July 21, 1905.
    Quo warranto proceedings by Charles A. Blair, attorney general, on the relation of De Witt H. Moreland, against William H. Maybury to try the title to the office of commissioner of public works in the city of Detroit. There was judgment for respondent, and relator brings error.
    Affirmed.

      John J. Speed (A. J. Groesbech, of counsel), for appellant

      Timothy E. Tarsney and P. J. M. Hally, for appellee.
   McAlvay, J.

This is a proceeding by the attorney general, on the relation of De Witt H. Moreland, upon an information in the nature of a quo warranto against respondent, William H. Maybury, to test his right and title to the office of commissioner of public works of the city of Detroit.

In answer to the charge that he has usurped, intruded into, and unlawfully held and exercised this office, respondent set up in his plea and rejoinder that on June 28, 1903, said office became and was vacant, and respondent was appointed by the mayor to fill the vacancy for the unexpired term thereof, and took his oath of office, filed his bond, and entered upon the duties of said office, which he has exercised ever since; further, that relator was, by the common council of the city of Detroit, upon charges of malfeasance and neglect of duty in office, duly and lawfully removed from said office, and relator thereby ceased to be commissioner, and said office became vacant, whereupon respondent was duly appointed as aforesaid; and further, that pending the hearing upon said charges, and before the appointment of respondent, relator voluntarily abandoned said office and departed out of this State, intending thereby to surrender and did surrender said office; that after such appointment, and the return of relator to Michigan, he recognized respondent’s right to the office, knowing that he held and exercised the duties of said office, and during all the time since has made no claim or intention to claim said office until the filing of the information in this case. The jury found generally that respondent was entitled to hold the said office of commissioner of public works, and to a special question submitted by the court as follows, “Did the relator, after his return to Detroit, voluntarily relinquish all claim to the office of commissioner of public works ?” the jury answered, “ Yes.”

Relator moved for judgment in his favor notwithstanding the verdict, for the reason that the evidence was not sufficient in law to sustain such verdict. This motion was denied, and a judgment upon said verdict entered in favor of respondent.

The relator appeals to this court. The errors assigned apparently relate to all of the testimony and evidence introduced in the case on the part of the respondent, to the charge of the court, and also the action of the court in denying the motion for a judgment in favor of relator notwithstanding the verdict.

It is clear that all of the proceedings taken by the committee of the common council in investigating charges against relator, and the action of said council upon the report of said committee in removing the relator from office, were not authorized by law, and were irregular and void; and, so far as such proceedings are concerned, they could not in any manner, and did not, operate to create a vacancy, or affect the relator’s right and title to said office.

The case was not submitted to the jury upon the theory that the action of the common council created a vacancy, but upon the single question of abandonment of the office by relator. On the part of respondent it was claimed that relator, during this investigation of the so-called charges against him by the committee of the council, and on June 20, 1903, without notice to his attorney who was acting for him, and before his examination as a witness had been completed, suddenly left Detroit. He did not notify the secretary of the department of public works, and the council received no notice. His private papers were all taken out of his office desk. The proofs also show that his baggage was sent to the depot, and he went by street car in the evening, and took the train at a. suburban station; that he went to Mexico; that between the date of relator’s return and the commencement of this suit, a period of 17 months, relator made no claim or demand upon respondent or the city authorities for this office or its emoluments, or attempted to perform any of its duties; that respondent was appointed to fill the vacancy June 28, 1903, and entered at once upon the duties of the office, and has so continued up to the present time. The claim of relator was that the council proceedings were irregular and void; that he left the State on account of ill health; that he wrote a notice to that effect to the council, which he left to be delivered to his attorney; that he never had an intention of abandoning his office, and had not done so; that his attorney came to Mexico, and informed him that a grand jury was to be called in Detroit, and he returned at once with him; that shortly afterwards he retained counsel for the purpose of regaining possession of his office. Documentary and oral testimony was presented by each party in support of these claims.

We do not think that the court erred in permitting the jury to consider the council proceedings as bearing upon the question of relator’s intention when he left Detroit to abandon the office. The testimony of other witnesses showing the facts and circumstances incident to his leaving, and also testimony as to his acts and conduct after his return, as bearing upon the same question, were admitted in evidence. The court charged that this was the only question in the case for the jury to consider. Upon this view of the case, we think this testimony was properly admitted. For this purpose it was proper to show not only what occurred just before he went away, but also what he did and said relative to this matter after he returned. All ,of the authorities seem to be in accord in holding that an office cannot be abandoned without the intention, actual or imputed, of abandoning it; that voluntary relinquishment of an office by abandonment, which is to be ipso facto a vacation of the office, should be equally well defined as other well-defined modes of voluntary relinquishment, and should not be confounded with mere nonuser or neglect of duty, which would be grounds for proceedings against an officer, but do not of themselves produce a vacation of the office without judicial determination. The intention to abandon an office may be inferred from the conduct of the party. If his acts and statements are such as clearly indicate absolute relinquishment, a vacancy will thereby be created, and no judicial determination is necessary. The question of the intention of the relator was a question of fact for the jury, who found against the relator; and the evidence, if believed by them, was sufficient to support such a finding. The special question as to whether relator acquiesced in the occupancy of the office by respondent, submitted to the jury by the court, was answered in the affirmative. It was submitted, as stated at the time, “ for the guidance of the court, if the court thinks it is material in rendering judgment in the case.” This was in fact safeguarding the relator’s rights, and it was not error to submit the question.

Relator contends that the evidence was not sufficient, in law, to sustain the general verdict in favor of respondent, and that notwithstanding such verdict the court should have entered a judgment for relator. The question to be determined was whether the relator did or did not on the 20th of June, when he left Detroit, abandon his office. The jury found that when relator left Detroit, June 20, 1903, he left with the intention of abandoning said office, and rendered a general verdict for respondent. A vacancy having'been created by relator’s abandonment of his office, the appointment of respondent by the mayor was regular and within his authority. The evidence was sufficient, in law, if believed by the jury, to sustain the verdict.

We find no error in the case. The judgment of the circuit court is affirmed.

Moore, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


author: Moore, O. J.

text:
    DEAN v. RADFORD.
    Damages — Attorney and Client — Breach op Contract — Proximate Cause.
    After foreclosure of a mortgage had been threatened for default in payment of a semi-annual installment of interest, the mortgagor placed sufficient funds in the hands of his attorney to satisfy the immediate payment. This the attorney delayed doing until proceedings were begun, whereupon the mortgagee demanded a further sum as attorney’s fee and another installment of interest. The mortgagor being unable to raise this further sum, foreclosure followed, and the property was sold for less than its value. Held, that the attorney was not liable to the mortgagor for the difference between the value of the property, and the price for which it sold, since it could not be said that if the payment had been made as agreed, the mortgagor would have been able to meet successive payments and avoid foreclosure.
    Error to Wayne; Frazer, J.
    Submitted May 2, 1905.
    (Docket No. 129.)
    Decided July 21, 1905.

      Case by Edgar S. Dean against George W. Radford for malpractice as plaintiff’s attorney. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Dohany & Dohany, for appellant.

      Thomas A. E. Weadock, for appellee.
   Moore, O. J.

In July, 1897, the plaintiff was the owner of certain real estate, incumbered by a mortgage for $4,200, held by Thomas B. Baulch, of New York, which provided for the payment of semi-annual interest, and that in case the interest, insurance, or taxes were in default for 30 days, the entire sum named in the mortgage might be declared due. During that month plaintiff received a notice from Gray & Gray, attorneys for Mr. Baulch, that there was due on the mortgage as interest, taxes, and insurance the sum of $168. The plaintiff did not have the money with which to pay the amount due. He claims he consulted the defendant, who was then acting as his attorney, concerning the matter. That at this time the plaintiff was indebted to one William Reid in the sum of over $1,300, and Mr. Reid agreed with plaintiff that he would take a second mortgage on the premises for $1,875, $1,300 and over of which was to pay the amount due Mr. Reid, and the balance of $564 was to be paid plaintiff by Mr. Reid. That Mr. Reid had told plaintiff that he could not pay him the $564 in cash, but that he would give him a note for that amount. That the plaintiff told these facts to the defendant, and the defendant agreed that Mr. Reid’s note should be made payable to him, and agreed to cash the note, and from the money pay several bills the plaintiff owed, among them the $168. The plaintiff claims that the mortgage and note were given and the note delivered to defendant, but he did not pay the $168 as he agreed. He further claims that on the 30th day of July plaintiff went to a farm in Ontario, and remained there until about the 10th day of August following, when he returned to Detroit, and learned that the defendant had not paid the $168 to Gray «fe Gray, and they had commenced proceedings to foreclose the first mortgage, and defendant had gone on a vacation; that upon defendant’s return he went to see Gray & Gray, and tendered them the $168, but they would not accept it unless an additional $25 was paid as an attorney’s fee, and six months’ interest in advance. He further claims he was unable to raise this sum, and the defendant would not advance it for him, and the property was afterwards sold under foreclosure for $4,987.29 to Thomas B. Baulch, who bid it in; that the market value of the property in the months of July and August, 1897, was $9,700; that during the time foreclosure proceedings were pending the plaintiff tried to raise the money with which to pay the mortgage, or a sufficient part thereof to induce Mr. Baulch. to discontinue the suit, but he was unable to do so. The plaintiff brought this suit to recover damages.

Defendant pleaded the general issue, and also filed a plea in abatement to the effect that two years earlier the plaintiff had sued defendant for the same cause of action in a chancery case; that a decree had been rendered therein, from which decree all the parties had appealed to the Supreme Court. The case at bar was tried and is brought here by plaintiff upon writ of error. Later defendant filed a plea in this court that a decree had been rendered in this court in the chancery cause heretofore mentioned decreeing, in effect, a full settlement of all matters between the parties. Plaintiff claims the last-named plea should not be considered by the court.

Upon the trial in the court below plaintiff was sworn in his own behalf, and gave testimony tending to support his claim as we have already stated it. Receipts reading as follows were offered in evidence:

“Detroit, October 20th, 1898.
“ This is to certify that all interest on the Alice Dillon mortgage is paid up to March 2d, 1897; that I am indebted to George W. Radford on notes given by myself to the said George W. Radford, and now held by him, and all renewals of the same. I am also indebted to the said George "W. Radford on a judgment for $362.80, in a case wherein said George W. Radford is plaintiff and Louis C. McBride, Robert D. McBride and myself are defendants. Judgment rendered March 17th, 1898; that there is no set-offs to the above indebtedness.
“Edgar S. Dean.”
“Detroit, Mich., June 6, 1899.
“Received of George W. Radford Forty-one dollars in full of all demands to date.
“ Edgar S. Dean.”

Upon the trial counsel for plaintiff stated that the plaintiff was not suing for the money that was put into Mr. Radford’s hands; that, as to the sums of money which passed between them, that had been litigated and settled in the chancery case; that the plaintiff claimed in this case damages for Mr. Radford’s failure to pay over the $168 as he agreed, which would have prevented the foreclosure case; and that the measure of damages would be the difference between the market value of the real estate and thé lien upon it. It was also stated in court by the counsel that the amount claimed by Gray & Gray when Mr. Radford and the plaintiff saw them after the latter’s return from Canada was $342. The judge expressed his opinion that the measure of damages would be the difference between $168, the amount claimed to have been left with Mr. Radford, and the amount demanded by Gray & Gray, which would be $174. Counsel for plaintiff then declared, “ We do not want to try a lawsuit for $174,” and then the following occurred:

“Mr. Dohany: We don’t want to go ahead here for . three or four days or a week and put in evidence over $174 when we will have eventually to have the Supreme Court review that proposition. Cannot we, by a case-made, or by making a stipulation of facts here, end the case here, and have the Supreme Court pass on the question as to whether Mr. Radford is liable ?
“The Court: You may withdraw that other matter from the case.
“Mr. Weadock: That $174?
“Mr. Dohany: Yes, we will do that, and we don’t lose our rights to sue on that. We withdraw as to the $174.
“The Court: Then I can charge the jury, and then he says he can go to the Supreme Court on that question.
“Mr. Weadock: No, we want to settle this question right here.
The Court: You cannot help his withdrawing it if he wants to. You may as well sit down quietly, and take what you cannot help. I will fix it so that you can get that all right. (Exception.)”

The plaintiff then gave further testimony tending to show the relationship of attorney and client between himself and Mr. Radford, and that the latter was familiar with his financial situation. No opportunity was given defendant to put in any testimony, and the court charged the jury that, as it was conceded the $168 had been accounted for by Mr. Radford in another suit, and the sum of $174, which the court was willing the jury should allow as damages, had been withdrawn by counsel for plaintiff, he deemed it his duty to direct a verdict for defendant, and he did so.

In disposing of the case we deem it unnecessary to consider the result in the chancery case between the same parties. Was the circuit judge right in holding that Mr. Radford should not be liable for the loss of the real estate ? It has already appeared that the plaintiff agreed in the mortgage to keep the property insured, to pay the taxes, and pay interest every six months, and that in case of default in any of the above particulars the principal and interest might be declared due. His testimony was to the effect that he had no other way to get the money. It is not claimed the property was bid in for the benefit of Mr. Radford. It is not claimed he agreed to pay any other amount than the $168, or to take care of any other amounts which might become due as interest, insurance, or taxes. Can it be said that, if the $168 had been paid, the subsequent installments of interest would be paid as these became due, and there would be no foreclosure ? It is true the plaintiff testified he had ne gotiated for a builder’s construction loan, which he believed he could have obtained; but it is apparent from his testimony that there was no good basis for that belief. Can it be said the failure to pay the $168 was the proximate cause of the loss of the real estate? In the case of Watson v. Mead, 98 Mich. 330, the plaintiff had retained certain farm implements needed to work the farm. In disposing of the case Justice Hooker, speaking for the court, said:

“ We will only add that defendants’ theory upon the subject of damages for the detention of property during the pendency of the action is erroneous. A notice accompanied the plea, under which defendants sought to recover damages for the loss of their farm. They claimed that by being deprived of their implements they could not put in any crops; hence they received no money, and could not make payments due on the farm, and they were, in consequence, compelled to deliver up possession, and surrender their contract of purchase, and (to quote) ‘lost everything they had on earth.’ Without attempting to lay down a rule, we mention this subject to prevent a possible error upon another trial.”

See, also, Carnegie, Phipps & Co. v. Holt, 99 Mich. 606; Hitchcock v. Supreme Tent, Knights of Maccabees, 100 Mich. 40, and the many cases cited in the footnote, Taylor v. Cooper, 104 Mich. 72; Stevens v. Yale, 113 Mich. 680.

Judgment is affirmed.

Carpenter, McAlvay, Blair, and Ostrander, JJ., concurred.


author: Blair, J.

text:
    McCALL v. VAN DUSEN.
    Justices oe the Peace — Special Appeal — Jurisdiction — Waiver.
    This court will not review alleged error in dismissing a special appeal from justice’s court, where, subsequent to the dismissal, appellant went to trial on the merits on general appeal.
    Error to St. Clair; Law, J.
    Submitted May 2, 1905.
    (Docket No. 226.)
    Decided July 21, 1905.
    Assumpsit in justice’s court by Thomas McCall and Fred G. Coburn, copartners as McCall & Company, against John J. Van Dusen for goods sold and delivered. There was judgment for plaintiffs, and defendant took a special appeal to the circuit court. There was an order dismissing the. appeal, and defendant brings error.
    Affirmed.

      J. S. Crandell, for appellant.

      Avery & Walsh, for appellees.
   Blair, J.

Plaintiffs sued defendant in assumpsit in justice’s court. On September 27th, the return day of the summons, the parties appeared and joined issue, the defendant pleading the general issue. Defendant asked for an adjournment to October 17th following, which fact was noted upon the justice’s docket, but the docket did not state that this request was granted, nor did it show otherwise the time or place to which the adjournment was ordered. On the 17th of October the defendant did not appear, and the justice corrected his docket, after calling the case) so as to show the time and place of adjournment, and granted a further adjournment on plaintiffs’ motion to October 23d, at which time, defendant not appearing, judgment was rendered in favor of plaintiffs. From this judgment defendant took a special appeal to the circuit court upon the ground that by failing to state seasonably upon his docket the time and place of the adjournment the justice lost jurisdiction of the case. The special questions involved in the appeal were heard by the court, and an order entered dismissing the special appeal, and directing that the cause stand for trial on its merits on general appeal. Subsequently the cause was tried upon the merits before a jury, resulting in a verdict in favor of the plaintiffs, upon which judgment was duly entered. Defendant did not cause a bill of exceptions to be settled, but brings the common-law record to this court for review, relying solely for a reversal upon errors of the court in dismissing the special appeal.

We do not consider it necessary to consider the questions raised by the special appeal, since by previous decisions of this court such questions were waived by going to trial upon the merits. Clute v. Everhart, 137 Mich. 5.

The judgment is affirmed.

Moore, O. J., and Carpenter, Montgomery, and Ostrander, JJ., concurred.


text:
    STAFFORD v. BAKER.
    1. Replevin — Bonds—Suit—Plea—Effect.
    A plea of the general issue to a declaration on a replevin bond ■ admits the due execution and delivery of the bond.
    2. Same — Sureties—Defenses Available.
    The surety on a replevin bond under whioh the property was taken cannot, when sued on the bond, defend on the ground that it was a supplemental bond and that no order of the court was ever made requiring it to be filed.
    3. Same — Bonds—Validity.
    Where the sheriff refuses to execute a writ of replevin because of insufficient surety on the bond, whereupon plaintiff produces another bond with an additional surety, under which the property is taken, the bond is valid as against the surety, though no order was made requiring it to be filed.
    4. Same — Judgment—Oonclusiveness.
    In an action on a replevin bond, the judgment for defendant in the replevin suit is conclusive on the questions whether the property was delivered to the plaintiff in replevin and whether the defendant in replevin had been damaged.
    5. Same — Liens—Satisfaction.
    Where a foreclosure and sale of property under a chattel mortgage appear to have been completed on January 5, 1903, while the trial of a replevin suit to recover the property covered by the mortgage occurred in February, 1903, the judgment in the replevin suit is conclusive against an objection that the mortgagee, by foreclosure of his mortgage, had satisfied his lien, which constituted a release of the replevin bond.
    6. Same — Pleading—General Issue — Special Notice.
    In an action on a replevin bond, an objection that the defendant in replevin had, by foreclosing a chattel mortgage on the property, satisfied his lien, and thereby released the bond, cannot be raised under the general issue, but should be made the subject of a special notice.

      Error to Oakland; Smith, J.
    Submitted May 12, 1905.
    (Docket No. 146.)
    Decided July 21, 1905.
    Debt by Davis Stafford against George T. Baker and others upon a bond. There was judgment for plaintiff on a verdict directed by the court, and defendant Baker brings error.
    Affirmed.

      James H. Lynch, for appellant.

      Davis & Bromley, for appellee.
   Blair, J.

Plaintiff brought this action in the Oakland circuit court to recover the penalty in a replevin bond executed by Joseph Rowley as principal, and defendant Baker and one Eaton as sureties.

The bond was filed in a suit in replevin commenced by Rowley in justice’s court to obtain possession of a quantity of wood upon which Stafford had a chattel mortgage, under which he was holding the wood. The. affidavit and a bond signed by Eaton as surety were filed with the justice and the writ issued December 2, 1902. Eaton, the surety on the bond, justified his responsibility under oath, but no appi-oval was indorsed on the bond by the justice. The writ was delivered to Deputy Sheriff Burns for execution, who notified Rowley, the plaintiff in replevin, that he did not consider Eaton a responsible surety, and that he would not serve the papers unless a new and sufficient bond was furnished. Thereupon Rowley caused a new bond to be prepared, which was executed by himself and Eaton and by the appellant herein, Baker, and justified and approved December 6, 1902. Upon receiving notice of the filing of the new bond, Burns proceeded with the execution of the writ. The officer’s return of service is as follows:

“ By virtue of the within writ, I have this day replevied and delivered to the plaintiff within named the goods and chattels specified, as I am within commanded, and I have also this day summoned the within'defendant to appear according to the exigency of said writ by delivering to the said defendant personally a copy of said writ. ”

Rowley recovered judgment in justice’s court, from which Stafford appealed to the circuit court, where a verdict was rendered in his favor, finding that there was due and unpaid upon his chattel mortgage the sum of $385, for which amount and costs he had judgment. This judgment was entered February 20, 1903, and the costs were taxed March 3, 1903, at the sum of $87.35. No appeal was ever taken from this judgment. Execution was issued March 4, 1903, which was returned nulla bona. Thereupon Stafford began this suit by summons, the date of which does not appear in the record. The declaration bears date April 9, 1903, and counts upon the bond. To this declaration the defendant Baker, who alone made defense, pleaded the general issue. The trial judge directed a verdict in favor of the plaintiff, and defendant brings the record to this court for review upon writ of error.

Counsel for defendant and appellant relies for a reversal entirely upon his assignment of error based upon the direction of a verdict. Counsel alleges that the court erred for the following reasons:

‘ ‘ (1) The bond which formed the basis for the proceedings in the replevin suit was the first bond filed. There was no order made by the court for the issuing of a new bond. So it never was in fact a legal bond in the replevin proceedings.
“(2) The property in this case never having been delivered by the officer to Rowley under the replevin proceedings, the plaintiff has not been damaged, and consequently cannot maintain his action on the bond.
“ (3) Davis Stafford, having foreclosed his chattel mortgage, must be held to have satisfied his lien; and inasmuch as the j udgment in the circuit court, upon which this action is based, was given him because of his lien, the satisfaction of the lien must be held to release the bond.”

1. The defendant Baker, by his plea, admits the execution and delivery of the bond; the property was taken by virtue of this bond; and the trial judge properly held that the bond was valid. Stimer v. Allen, 88 Mich. 140.

2. The judgment in the replevin suit, not having been appealed from, is conclusive upon this point.

3. The foreclosure of and sale under the chattel mortgage, as shown by the bill of complaint in certain chancery proceedings introduced in evidence, which is the only evidence upon the subject of the date of the sale, appear to have been completed on the 5th day of January, 1903, while the trial of the replevin suit occurred in February, 1903. The question raised is therefore precluded by the judgment of February 20, 1903. But even if the question were not disposed of by the judgment, it could not be raised under the plea of the general issue, but should .have been the subject of a special notice.

We think the learned trial judge was clearly correct in Tais disposition of the case, and the judgment is affirmed, with costs.

Moore, C. J., and Carpenter, McAlvay, and Montgomery, JJ., concurred.