author: Steers, J.

text:
    HOLMBERG v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Railroads — Master and Servant — Negligence—Rules—Contributory Negligence — Operation oe Trains.
    Plaintiff, a freight engineer, in charge of a gravel train, was injured in a collision with defendant’s passenger train, which he claimed was running ahead of time and at excessive speed. His own testimony showed that he was operating his train in violation of defendant’s rules requiring the engineer to protect the head of his train and to enter a switch or spur with it, at least five minutes ahead of the schedule time of the passenger. He knew the surroundings and the lay of the tracks which contained a reverse curve at the point of impact, shutting off the view ahead. Plaintiff’s train was an extra and inferior one, that the rules required him to guard by protecting against the regular passenger train, whose time he knew closely coincided with the time on which he was running. Claiming that at 8:03 a. m. somewhat over 700 feet from the switch that he trying to make, the passenger train, due at the switch at 8:05, collided with his freight engine and cars, plaintiff brought action based upon the Federal employers’ liability act. (4 U. S. Comp. Stat. 1913, § 8659.) Held, that the trial court erred in leaving to the jury the question of contributory negligence, but should have instructed them that plaintiff was guilty of negligence affecting or diminishing his right to damages for the injuries received.

    2. Same — Fellow Servants — Contributory Negligence — Federal Statute — Negligence.
    It is the duty of State courts to accept jurisdiction and enforce the Federal statute if their jurisdiction as established by local laws is adequate, and as to the requirement affecting the burden of proof, the rule is beyond mere matters of State procedure, and these courts must follow the Federal regulations.

      3. Same — Evidence—Directed Verdict — Onus Probandi.
    Assuming that under the congressional enactment the allegation that plaintiff was without fault or negligence as set up in the declaration is surplusage and need not he established, yet if plaintiff’s .negligence is shown by his own evidence, the defendant' may have the benefit, notwithstanding that the onus probandi as to contributory negligence may be shifted by the express language of the statute; any presumption of law that plaintiff was not at fault being overthrown by plaintiff’s proofs, or the undisputed evidence, his right of recovery must be considered barred, and a verdict ought to be instructed.
    4. Same — Directed Verdict — Comparative Negligence — New Trial.
    Where the amount of the verdict indicates that the jury did not take into consideration the statutory requirement that plaintiff’s negligence be taken into consideration as diminishing the damages recoverable but for his said fault or neglect, the judgment should be set aside on motion for a new trial.
    5. Same — Interstate Commerce — Repairs and Improvements— Track Maintenance.
    Testimony that defendant’s road extended into a foreign State, that it regularly engaged in interstate traffic and plaintiff’s freight train was hauling gravel for use in repairing and improving the roadbed used for these purposes, sufficiently established that plaintiff was engaged in furthering interstate commerce, and brought him within the act.
    6. Same — Evidence.
    Track repairs and maintenance facilitate and are essential to interstate commerce, and the work of an employee, who is engaged thereon is so directly concerned with and beneficial to all commerce which uses the road, that it must be held to bring the servant within the limits of the statute.
    Error to Kent; McDonald, J.
    Submitted April 19, 1915.
    (Docket No. 32.)
    Decided December 21, 1915.
    Case by Carl O. Holmberg against the Lake Shore & Michigan Southern Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Clapperton, Owen & Hatten (Samuel H. Kelley, of counsel), for appellant.

      Lombard, Hext & Washburn, for appellee.

      On constitutionality, application and effect of employers’ liability act, see notes in 47 L. R. A. (N. S.) 38, L. R. A. 1915C, 47.

      The power of State court to enforce right under Federal employers’ liability act is discussed in notes in 40 L. R. A. (N. S.) 684.

   Steers, J.

On June 18, 1913, shortly after 8 a. m., a loaded gravel train of 16 cars, hauled by a heavy freight engine, south-bound from Grand Rapids to Three Rivers, running as “Extra 5761,” met in a head-on collision a regular north-bound passenger train, No. 532, consisting of four cars and a passenger engine, on a reverse curve of defendant’s road' at the north yard in the city of Kalamazoo. The engineer and conductor of the passenger train were killed and several of the passengers injured. Plaintiff was engineer on the gravel, Extra 5761, and the only person injured on his train, his foot having been caught between the beams of the tank and engine as he was about to leave his cab and the lower part of his leg crushed, necessitating amputation about three inches below the knee. He brought this action in the circuit court of Kent county, under the Federal employers’ liability act, to recover damages for such injury, the negligence charged being that the passenger train was ahead of time and running at an excessive rate of speed, without a proper lookout being maintained. In the trial court he recovered a verdict and judgment for $8,000. A subsequent motion for a new trial, alleging, amongst other things, that the verdict was excessive and against the overwhelming weight of evidence, was denied.

Passenger train No. 532, going north on its regular run, was about 300 feet in length, and consisted of its engine, a mail car, baggage car, and two passenger coaches. It was what is classed in railroad operation as a “superior train,” with schedule time and precedence over all other trains. By its schedule time it was due to leave the Kalamazoo central station at 8 o’clock. Its time at the north yard switch was 8:05; the collision occurred 720 feet north of the switch. It arrived at Kalamazoo that morning on time, 7:50, and a clearance card was given it by the train dispatcher to proceed on its run. The brakeman and fireman of the train testified that it backed out from the central station about one minute late, and as usual went round the “Y,” crossing the tracks of two other railroads, stopping at one of them, and coming down on defendant’s main line south of Main street, where it stopped and received orders from the operator, who testified it left that point at 8:04 and, as was his duty, he entered the time upon the train entry sheet, which he produced and verified. At the Michigan Central crossing, some distance north of Main street, the towerman at the intersection of the tracks entered its passing upon his train register as 8:05. The coroner, who examined the dead body of the engineer of this train as it lay by the track after the accident, found that his watch, with the crystal broken, was jammed and had stopped, as its hands showed, at 8:06. This evidence of the exact time of the movements of No. 532 before and when the accident occurred is contradicted by the unsupported testimony of plaintiff that just after the accident he looked at his watch and found the passenger train was three minutes ahead of time, or 8:03, although inferential support is claimed in the statement of Endres, his fireman, that they left the standard switch about a half mile north of the place of the accident, where they had stopped either “just before we stopped or just before we started; * * * it was a little before 8 o’clock” by his watch. Plaintiff claims, they left this point at 7:59.

Plaintiff was a man 40 years of age, experienced in railroading, familiar with the stations and tracks on the Kalamazoo division of defendant’s line, having been in its employ for 14 years as fireman and engineer, running on passenger, freight, and special trains. He testified that he was familiar with the rules in force upon the road; had passed his examination for promotion as engineer in 1905; had his rule book and studied it; was well acquainted with the route he was running, its stations, sidings, and the curve where the accident occurred; knew the time schedule of the passenger train with which he collided, the course it would follow in leaving Kalamazoo north-bound; that it would ordinarily pass through the north yards without stopping if on time or behind time; and that his own train was an inferior train which by rule was required to look out for and keep out of the way of that train, and at meeting points “take the siding and clear the superior train at least five minutes, and must pull into the siding when practicable.” He also testified that the engineer of the passenger train who was killed had more experience as an engineer than himself.

The gravel train upon which plaintiff was engineer was over 690 feet long, consisting of 14 cars loaded with gravel, a car carrying what is called a “plow” for unloading them, a caboose and engine. The crew was composed of the conductor, engineer, fireman, and two brakemen. It left Grand Rapids for Three Rivers that morning at 5:30 and later than usual, starting, under the following order to the engineer: “Engine 5761 will run extra Wentworth to Three Rivers.” At Otsego plaintiff had received an order that “Extra 5761 will meet 532 at north, yards Kalamazoo,” and proceeded to Plainwell, 12 miles north of Kalamazoo, where water was taken and machinery oiled. Plaintiff there sent the brakeman to the operator to learn if the passenger was late and ask if they could give him an order for that train. The operator communicated with the train dispatcher and replied that 532 was on time and he could give them no orders against it, stating the dispatcher wanted to know if they had time to make Cooper without an order. The brakeman, looking at his watch, said they had. He testified that he reported to plaintiff what the operator said and asked about making Cooper, and his own reply to the inquiry. Plaintiff testified that the brakeman reported that 532 was on time, and the dispatcher would give them no order against it, from which he knew he had to look out for the time and schedule of the passenger train, but that nothing was reported as to a conversation about Cooper. Cooper was a station between Plainwell and Kalamazoo, about 5½ miles from defendant’s north yards in the latter city. They left Plainwell at 7:40, the brakeman riding in the engine cab. Plaintiff was running fast, at times over 50 miles an hour, and did not slacken his train or stop at Cooper. Having expected him to do so, the brakeman then looked at his watch, and the fireman, sitting near him, also looked. Both testify it was 7:55. The brakeman asked plaintiff if he was going to stop, and, receiving a reply that they had time to make the Standard Paper Company switch at Kalamazoo, told him they were on short time and taking a chance while the fireman expressed his misgivings by shaking his head at plaintiff, who states that he did not hear or see these warnings. Plaintiff stopped at the paper mill switch with a view, as he states, to heading in on that siding, but on receiving a signal from the conductor at the rear of the train went on. He testifies it was then 7:59. In reply to a suggestion of his fireman they had better stop there, he said they were all right and started on, putting the brakeman on the pilot of the engine with a flag. The siding he left was a private, industrial side track, not recognized by dispatchers for passing trains, though sometimes used in an emergency by those operating trains. The signal from the rear afforded plaintiff no excuse or justification for proceeding in violation of any rule. He admitted that the engineer is responsible for seeing that the head of the train is protected, without instructions, and that he was familiar with the rule which provides as follows:

“The engineman is jointly and equally responsible with the conductor for the safety of • his train and movement of the same in strict compliance with the rule, and he must decline to obey any order which involves peril to his train or violation of the rules.”

From where he started to the curve was about 1,500 feet and the length of this double curve upon which he then entered was 1,650 feet. The effect of this curve places the main track proceeding south from it over 500 feet farther to the west than the main track running from the north end of the curve; the general direction of the curve being southwest and northeast. Familiar with these conditions, knowing the obstructions which the reverse curve presented to a view along the track, informed that the passenger train, which had the right of way, was then on time and had left the Kalamazoo central station, he started his heavy gravel extra towards it and entered the curve running, as he estimates, at 10 miles an hour. He met it on the curve. Assuming, as he testifies, that the collision occurred at 8:03 and 532 was ahead of schedule time, of which the trial court held “there was some slight evidence” for the jury, plaintiff was yet palpably proceeding in violation of the rules which he carried in his pocket and was familiar with, containing the admonition:

“Obedience to the rules is essential to the safety of passengers and employees, and to the protection of property.”

He knew the approaching passenger train was due to pass the north yard switch just ahead of him at 8:05 and the rules required him to have his long and heavy train side-tracked and clear at least five minutes before it passed or, if that became impracticable, to guard his train with a flagman a sufficient distance ahead to insure full protection.

It is obvious that this collision can be attributed to no one but the engineers of those trains — one or both. Plaintiff alleges in his declaration and claims that he was free from negligence, and as a ground of recovering damages in this case lays the blame upon the dead engineer, charging him with running his train ahead of time at an excessive rate of speed, and failing to discover plaintiffs train as early as he might and take action sooner to stop his own. While upon these propositions there is supporting evidence which might not justify the court in disposing of all of them as questions of law, it was, as a whole, strongly contradicted by undisputed evidential facts and the testimony of witnesses in a position to know; and, as bearing upon the deceased’s negligence, such evidence should be considered in connection with the fact, that he had just received a clearance card to proceed on his run, with a superior train, practically on time, with no intimation of there being an extra train approaching ; that he owed no special duty to anticipate or look out for plaintiff at that time or place, but, on the contrary, had reason, and the right, to assume that any inferior extra train which might be using the track to the north of him would clear upon a siding within the rule time or, at least, protect itself by a flagman sent ahead sufficient distance for safety.

The trial court refused defendant’s request to charge the jury as a matter of law that plaintiff was guilty of negligence contributing to the accident, and submitted that question to them as an issue of fact, charging that:

“The burden of proof is on the defendant to show how much the damages are diminished by reason of the contributory negligence of the plaintiff. * * * If you find that plaintiff is entitled to recover, but that he was not guilty of any contributory negligence which contributed in any degree to the injury, he would be entitled to full damages.”

The court further instructed the jury as to the general rule for measure of damages in personal injury cases, told them if they found for plaintiff they should first determine his full damages which should be the amount of their verdict, “unless the plaintiff was guilty of contributory negligence,” in which case the amount of damages resulting from his ov/n negligence should be subtracted from the total and the damages should be “apportioned according to the relative faults or negligence of the parties,” thus in effect instructing the jury that if any negligence on the part of defendant appeared, a verdict must be rendered in favor of plaintiff for the full measure of all damages sustained by him, irrespective of what his own evidence disclosed, unless, assuming the burden of proof as to contributory negligence, defendant showed how much plaintiff’s damages were diminished by reason thereof.

The Federal statute under which this action is laid provides, as does Act No. 104, Pub. Acts 1909 of this State, that the fact an employee may have been guilty of contributory negligence shall not bar a recovery. The pertinent portion of the Federal act is as follows (35 U. S. Stat. 66, volume 4, U. S. Comp. Stat. 1913, § 8659) :

“In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.”

This modifies, as does our own statute, the common-law rule formerly applied in this jurisdiction that recovery cannot be had for injuries resulting from another’s negligence, if negligence of the person injured was a contributing cause.

Though at one time questioned, the right and duty of State courts to accept jurisdiction and enforce this Federal act, when their jurisdiction as prescribed by local laws is adequate, was settled affirmatively in Mondou v. Railroad Co., 223 U. S. 1 (32 Sup. Ct. 169, 38 L. R. A. [N. S.] 44).

The Federal courts hold that the burden of proving contributory negligence is on the defendant, that the rule is beyond mere matters of State procedure and in administering this act the State courts must follow the Federal rule. Central Vermont R. Co. v. White, 238 U. S. 508 (35 Sup. Ct. 865).

Plaintiff has alleged in his declaration that he was “without fault or negligence on his part”; but, assuming that under the Federal rule this is surplusage and he was not required to prove such allegation, and, accepting the rule in all its aspects, we do not understand the Federal courts have ever held that where plaintiff’s negligence is established by his own evidence, the defendant could not have the benefit of it. The' onus ;probandi as to defendant begins with the condition of affairs as it stands upon the undisputed facts as plaintiff’s testimony leaves them. Here any presumption of law that plaintiff was not in fault which might otherwise obtain was overthrown by his own evidence, and it is clearly disclosed by the undisputed facts that plaintiff was guilty of such negligence causing or contributing to the accident as would, at common law, have entirely barred recovery. That plaintiff was violating well-known rules of his company when this accident occurred is conclusively shown. He was, as a matter of law, guilty of negligence, and the court should have so instructed the jury before submitting to them the questions of defendant’s negligence and apportionment of damages. The following reflections upon that subject from the majority opinion in Jones v. Railway Co., 168 Mich. 1 (133 N. W. 993), are, in many respects, applicable to the facts presented here:

“The law requires the making of regulations and rules by railroads. It punishes men who disobey them by fine and imprisonment. It is a startling proposition to men who travel on railroads that a regulation requiring engineers to observe the common rule of the road and keep to the light track may be disobeyed with impunity whenever an employee may have reason to think a particular train will not run; and not only that, but, after causing the death of one, painful injury to several, and wrecking his employer’s property and subjecting it to the payment of damages to its passengers, he may still sue the employer and recover large damages upon the theory that his criminal disobedience was invited by reason of the employer’s failure to anticipate and provide against it by taking him into its confidence, to the general demoralization of its business. Railroading is a matter of minutes and seconds. * * * Great care is taken to protect the public against the consequences of disobedience or mistake. The rules do not permit an engineer to go unprotected' on the time of a regular train, even though he has reason to believe it will not run. He is still required to protect against accident by obeying the rule, and it is made criminal to do otherwise. Written rules of railroad companies cannot be treated as abrogated by such railroad companies on testimony tendr ing to show nothing more substantial than insubordinate and unreported criminal disobedience on the part of some of the employees. This is simply a case of ‘taking a chance,’ whereby many others ‘were made to take chances.’ ”

The amount of the verdict in this case indicates that the jury did not diminish the damages “in proportion to the amount of negligence attributable to such employee,” and in that aspect of the case it was clearly excessive.

Although the errors pointed out necessitate a reversal, as the case is not finally disposed of here, it is perhaps proper to state this court is unable to acquiesce in defendant’s contention that the trial court should have dismissed the case for want of jurisdiction because plaintiff was not shown to have been engaged in interstate commerce at the time of the accident. It is undisputed that defendant’s line extends into other States, and that it is regularly engaged in transporting interstate merchandise over its lines. Plaintiff’s train was engaged in hauling gravel for use in repairing or improving the roadbed over which interstate commerce regularly passed. While there is unusual conflict and contradiction in both the State and Federal authorities upon the question of when an employee of an interstate commerce road is or is not working under the provisions of the act, and even upon this direct question of track repair or improvements, it must be conceded the Federal authorities are controlling. The greatest number and latest decisions from that source have, we think, made a distinction between rolling stock, tools, and other appliances of a railroad which may or may not be used in its interstate service and its tracks, and settled the proposition that track maintenance or repairs not only facilitate, but are imperatively necessary to, all interstate commerce passing over the line; and the work of one engaged in such repairs is so directly connected and immediately beneficial to all commerce which uses the road that he must be regarded as covered by the act. Pederson v. Railroad Co., 229 U. S. 146 (33 Sup. Ct. 648, Am. & Eng. Ann. Cas. 1914C, 153); Zikos v. Railroad, & Navigation Co. (C. C.), 179 Fed. 893; Thomson v. Railroad Co. (D. C.), 205 Fed. 203; Tralich v. Railway Co. (D. C.), 217 Fed. 675. In the latter case plaintiff was working on a steam shovel engaged in removing earth from the tracks and roadbed of a railroad which carried interstate merchandise.

For the reasons previously stated, the judgment is reversed and a new trial granted.

Kuhn, Stone, Bird, and Moore, JJ., concurred with Steere, J.

Ostrander, J. I think there is no testimony of any negligence of the defendant causing or contributing to the injury.

Brooke, C. J., concurred with Ostrander, J.

The late Justice McAlvay took no part in this decision.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    SCHOOK v. ZIMMERMAN.
    1. Equity — Jurisdiction—Adequate Remedy at Law.
    Although the court of equity retains jurisdiction of controversies for which the court of law may afford adequate relief, when involved with or growing out of an equitable cause, that confers jurisdiction upon the court in chancery, the bare pleading in conjunction with such issues of equitable rights not sufficiently proved does not give equity the right to try a controversy of otherwise exclusive law jurisdiction: the legal remedy administered in chancery must be connected with and grow out of an equitable right.

      2. Same — Fiduciary Relations — Remedies.
    Complainant, a liquor dealer, claimed that defendants visited his saloon during a storm and inquired about mining properties in the neighborhood, saying that they were looking for a mine and informing complainant that they had no expectation of securing it for nothing, and that if he could find them a workable mine, they would “whack” with him. He directed them to. certain mineral lands which proved to contain valuable deposits, and defendants secured the property and developed it under a royalty contract. Held, in a suit for specific performance of the alleged agreement, that complainant’s remedy, if any, was at law, that no such definite contract as the court of equity must find was proven and that no fiduciary relation existed such as would give complainant a right to an accounting, or to follow the profits as a trust.
    3. Same — Implied Contract — Custom—Notice,
    Proof of a custom to pay a definite percentage of the profits could not bind defendants, who were not shown to have notice or knowledge of a usage of the kind averred.
    4. Same — Definite Contract.
    Though an action at law may be maintained for breach of contract, some of the terms of which have not been established with exactitude, it is otherwise in proceedings for specific enforcement, which require a greater degree of certainty than do actions for damages.
    5. Same.
    The term “whack” claimed to have been used in the negotiations between the parties could not support specific enforcement, which can only be decreed if the intent of the parties is manifest; and, as the phrase ordinarily means to divide into shares, apportion, square accounts, or pay, the proportion to which either was entitled was conjectural.
    Appeal from Iron; Flannigan, J.
    Submitted June 9, 1915.
    (Docket No. 21.)
    Decided December 21, 1915.
    Bill by Paul Schook against Eugene Zimmerman and others for specific performance. From a decree for complainant granting part relief both parties appeal.
    Reversed.

      F. H. Abbott (M. J. Sherwood, of counsel), for complainant.

      M. S. McDonough and Charles H. Watson (Claudius B. Grant, of counsel), for defendants.
   Steere, J.

The nature and purpose of complainant’s somewhat lengthy bill, stated in brief outline, is to obtain specific performance of an oral contract, alleged to have been made with him by defendants Clutts and Zimmerman, under which, through his efforts, they secured an option for a 30-year iron-mining lease upon certain described land in Iron county, Mich.; that after certain explorations, by which it was ascertained the location contained extensive deposits of valuable iron ore, Zimmerman and Clutts transferred the mining lease which they had obtained under said option to the defendant Spring Valley Iron Com-' pany, a corporation which they caused to be organized to take over and operate said property, and which, through its officers and stockholders, had full knowledge of complainant’s agreement with Zimmerman and Clutts and rights thereunder; that by such contract, which complainant has fully performed on his part, Zimmerman and Clutts agreed and promised they would give and set over to him “a just, fair, and proper share of such profits as should thereafter accrue to the said defendants Zimmerman and Clutts, or their assigns, from mining, removing, and disposing of the iron ore which would be taken from said lands under such mining lease,” which they have neglected and refused to do; that it is customary to pay. and receive for like service in the iron districts of Michigan and in Iron county 10 cents on each ton of ore mined and shipped under such a lease as they obtained through his efforts, and by their said agreement with him complainant is justly entitled to such an amount as his share of the profits of such joint venture. Complainant therefore prays the court to decree specific performance of said contract and—

“determine the amount which this complainant is equitably entitled to receive upon each ton of iron ore heretofore mined and shipped, and upon each ton of iron ore which shall hereafter be mined and shipped from said lands by the said Spring Valley Iron Company, its successors or assigns, under said mining lease held by said company as aforesaid.”

But, if the court finds that the defendant mining company is not liable upon such contract, that it determine. and award to him a relative part of the capital stock of said company belonging to Zimmerman and Clutts, injunction being asked to restrain them from incumbering or disposing of their stock in the meantime. Defendants by their answer traverse and deny all material allegations of complainant’s bill.

Complainant had been a resident of Iron county for over 20 years, working at first as a barkeeper at Iron River, but most of the time engaged in the saloon business for himself at Crystal Falls, where he was running a saloon and livery stable when he first met defendants Zimmerman and Clutts, in November, 1906. From the miners and explorers who frequented his saloon he acquired a general knowledge of what was being done in their line, and was fairly conversant with the mineral discoveries and developments in that vicinity. Prior to the day when he claims the contract sued upon was entered into, between the 15th and 20th of November, 1906, he had never heard of Clutts and Zimmerman, nor they of him, so far as shown. As he relates this first meeting, they presented themselves at the bar of his saloon between 4 and 5 o’clock in the afternoon of that day and asked for “a drink of O. F. C. Taylor bottled in bond,” which he served them, with the suggestion that it was a rather stormy day, in which view they concurred. Shortly following this, the contract for which specific performance is sought was entered into as follows:

“And they stood there a while and called for something, and they commenced to ask me — they asked me what kind of a town this was, and what kind of a country this was. I says: ‘This was a lumber town, but now it is a mining town. Principally mining.’ I says, ‘It is one of the best mining towns in the upper peninsula.’ So they started looking at one another and looked at me. They asked me if there was any properties here to be had. I says, T know of three properties to be had.’ We talked a little while, and I says, T know of three properties to be had, and they are good ones.’ ‘Well, can you get us a property?’ I says that I could. Then they stopped, and Mr. Zimmerman says to me, ‘We will stop here and introduce ourselves. This gentleman doesn’t know us, and we don’t know him. My name is Eugene Zimmerman, from Detroit, and this is Mr. J. C. Clutts, from Wells-ton, Ohio. This gentleman has furnaces, and I own railroads, and we are up here to get a mine. Can you get a mine for us? Can you get us a property?’ I said that I could. So he says: ‘If you can get us a property, we don’t want it for nothing. If you get us the property and it proves to be a mine, we will whack with you.’ Mr. Zimmerman and Mr. Clutts said that. But I am a little ahead of my story. There were some people came in that I did not want to talk in front of, and I gave Mr. Zimmerman a wink and also Mr. Clutts, and they kept still, and I waited on them and they went out.”

He further testified that they repeated this offer and promise to “whack” 5 or 10 times, and before they left the saloon said, in response to his suggestion, that when they got home they would send up an iron-mining man to see him; that they left that night, and complainant did riot see them again until April, 1907. This is the only agreement of which he testifies, and constitutes the contract upon which this suit is found-

ed. His evidence as to subsequent events relates to their ratification and his performance of it. He sáys:

“I never had anything from these people than the agreement.”

Defendant Clutts, a resident of Wellston, Ohio, was extensively interested in blast furnaces and coal mining, while defendant Zimmerman, of Cincinnati, Ohio, was president of the Ann Arbor and Detroit, Toledo & Ironton Railroads, prominently connected with and interested in railroad and steamboat transportation, as well as Various mining, manufacturing, and other enterprises. His road was carrying coal from Ohio to Frankfort on Lake Michigan, shipping it across the lake, and he conceived the idea of securing iron ore for return freight to furnaces located upon the road in Ohio. In furtherance of that project he several times visited and interviewed officials of the Carpenter-Cook Company, of Menominee, a patron of his .railroad, which owned large tracts of land in Iron «county, and on the occasion in question had just come ’from Menominee, following such ah interview, accompanied by Clutts, who manufactured iron at Wellston on Zimmerman’s line. Being impressed by representations of officials of the Carpenter-Cook Company and offered an option upon some of its land near Crystal Falls, they visited that city with a view to further investigation and, as they relate, ran into a blizzard, on account of which, owing to the stormy weather and deep snow, they decided to and did take the train on the same evening for Chicago, and while waiting for the next train out were directed, in answer to their inquiry for a good place to get a drink, to complainant’s saloon, of which they availed themselves. They remained there some time, and fell into conversation with complainant, who waited upon them. In the conversation he learned that they were investigating the Carpenter-Cook lands with a view to securing iron ore property. Their version of the conversation which followed is that complainant claimed to know where the Carpenter-Cook lands were, and talked familiarly of different mines and prospects in that locality, stating he was interested in some properties in the vicinity which he would like to have them examine; that before they left they informed him they expected to send a man to look over the Carpenter-Cook lands, and they would be glad also to investigate his properties, but that no promise, agreement, or contract of any kind was entered into for him to secure them any mining property, nor suggestion made that they would “whack” with or engage his services for that purpose. They did, however, send a coal-mining man in Clutts’ employ named Morrow up there, primarily to investigate the Carpenter-Cook lands, as he and they testify, and any other ore property that he might think worth looking into. Clutts gave him a letter to Cook & Carpenter, of Menominee, and also one to complainant. He stopped at Menominee on his way up, where he spent some time going over the subject with Mr. Cook,' after which he went on to Crystal Falls, where he was a stranger, and the next morning after his arrival met complainant Schook in his saloon, introducing himself and presenting the following letter:

“Wellston, Ohio, Dec. 13, 1906.

“Mr. Paul Schook,

“Crystal Falls, Mich.

“My Dear Sir:

“This will introduce to you Mr. Jerry Morrow, who represents Col. Zimmerman and myself in looking after ore properties in your neighborhood. You will remember we spent an afternoon with you in talking over the matter and you had some friend at that time who had quite a good prospect. We will be pleased to have you show Mr. Morrow the same courtesies you did us.

“With kindest regards, I remain, yours truly,

“J. C. Clutts.”

Morrow discussed with Schook the purpose of his visit to that region, and hired from him rigs and a driver to visit certain of the Carpenter-Cook lands, as well as other property around Crystal Falls. He remained at Crystal Falls, looking around, for about three days, during which time he several times talked upon the subject of his mission with Schook, who proposed certain properties which he desired Morrow to investigate, and upon some of which Morrow later took options from the owners, without beneficial results. While at Menominee Morrow had been advised by Mr. Cook to investigate the mining prospects at Iron River in that county, and on December 26, 1906, or the third day after his arrival at Crystal Falls, they drove over there together, upon whose initiative is a matter of dispute. On the way over Schook told Morrow of a mining prospect known as the Kinney property described as E. ½ of N. W. ¼, Sec. 7, town 42 north, range 34 west, near Iron River, upon which he thought an option could be obtained and which he recommended. Prior to this time neither Morrow, Clutts, nor Zimmerman knew or had ever heard of this property, and it was first made known to the two last-mentioned defendants by Morrow.

A Mr. McKinnon, with whom Schook was well acquainted, held a- 30-year mining lease of this property, upon which he and others had done considerable exploratory work without yet discovering any valuable deposit of commercial ore, and, being himself unable to further prosecute explorations, he had given an option upon his rights to other parties who had also explored unsuccessfully, and no work was then being done by them, as their option was about to expire. This tract was recognized as well located, adjoining land upon which ore had been found, so that it continued to be regarded by those interested as a promising prospect. Schook had knowledge of these things, and also claimed to have special information of its possibilities from men who had worked upon adjoining property. While driving Morrow to Iron River he outlined these matters to him, and highly recommended the property as a desirable one, upon which he proposed to secure an option for a sublease from McKinnon to Zimmerman and Clutts in performance, as he claimed, of his agreement to obtain a mine for them. On their arrival at Iron River Schook took Morrow to his brother’s saloon, where he left him to get warm, and hunted up McKinnon, with whom he had an interview, which he details in his testimony at great length, and as a result of which, according to his statements, McKinnon promised him, for Zimmerman and Clutts, an option for a sublease of the property when the present outstanding option should expire, which would be in three days. This McKinnon denied, testifying positively that- Morrow was the only one with whom he made preliminary agreements, saying:

“Paul Schook never came to me to obtain an option for a mining lease on the Kinney property for any one.”

It should, however, be stated in fairness to Schook’s claim that a careful examination of McKinnon’s testimony as a whole indicates a remarkable lack of memory touching undisputed facts which must have been known to him and which tend in Schook’s favor. Whatever the facts of their interview may be, it is undisputed that Schook took McKinnon to Morrow and introduced him, exercising his good offices in bringing the parties together upon an agreement for an option of a sublease of the Kinney property to defendants Clutts and Zimmerman, and then returned to Crystal Falls, leaving Morrow at Iron River to negotiate the details of the deal, with the apparent understanding amongst those interested that when the former option expired McKinnon would give a new one to those whom Morrow represented. On January 2, 1907, McKinnon gave Morrow the following:

“Boyington House. Livery in Connection.

“Boyington & Son, Proprietors.

“Iron River, Mich., Jan. 2, 1907.

“Jerry Morrow, Esq.,

“Iron River, Mich.

“Dear Sir:

“In our conversation about the Kinney option & lease form, I will hold the privilege open till the 15th inst. for you to decide to take an option or not after the form read by you on Saturday 29. December, 1906.

“D. C. MacKinnon.”

On the same day Morrow telegraphed Clutts from Iron River, “Arrange to come here on receipt of letter mailed tonight, very important,” writing him a lengthy letter descriptive of the district and Kinney property, of which he stated he had succeeded in getting hold, making no mention of Schook. Schook, who was at Crystal Falls, had obtained Clutts’ address from Morrow and kept posted by telephone communications with him as to how negotiations were progressing. On January 5, 1907, he sent the following telegram:

“Crystal Falls, Mich., Jany 5th, 1907.
“J. C. Clutts,
“Wellston, Ohio.
“Matters have so shaped themselves that your immediate presence here is imperative. Danger of losing deal be here at all hazards not later than Tuesday night deal is too big to take any chances
“Answer Paul Schook.”

This was answered as follows:

“Wellston, Ohio, 7.
Paul Schook,
“Crystal Falls, Mich.
“Impossible for me to come to your place right away. See that Morrow gets option so I can arrange with him to close after seeing him. Have him bring style/ of lease along with him. Wire me Boody House,' Toledo. J. C. Clutts.”

From the lengthy testimony as to subsequent events it is. sufficient to state that Zimmerman and Clutts obtained an option upon the Kinney property and expended about $17,000 in explorations, making discoveries which were followed by their demanding and receiving the sublease for which the option provided and which, at their dictation, was issued to the defendant Spring Valley Iroh Company, a corporation with a large capitalization, which they organized to take over and operate the property. They were practically the owners and in control of this corporation and its assets, sufficient stock being issued to their attorney and certain employees to formally organize a corporation, from which they subsequently received back the money which they had advanced in exploration and development.

While these matters were progressing Clutts and Zimmerman made visits to Iron county, continuing all the time in friendly communication and relations with Schook, availed themselves of the co-operation and assistance which, by reason of his acquaintance with various persons and knowledge of local conditions, he was able to afford. He claims to have rendered these services in fulfillment of the original oral contract made when they first met in his. saloon, upon which this suit is based under the allegations in his. bill. Of his former claims-he was asked and answered as follows:

“Q. When you claimed to own an interest in the mine, you meant what?
“A. An interest in the fee.
“Q. When you claimed to own an interest in the Kinney mine, you have claimed to own an interest in. what?
“A. In that lease.”

He states that it was his then understanding “that the three of us was in that deal,” and says he made no mention of “profits” “until we took that lease.” Asked:

“Did you ever ask him [Morrow] what he had agreed with Mr. McKinnon in relation to the terms of the option and the extension and the other details ?”

■ — he replied;

“No, sir; I had the property and I was to see they got it and they got it.”

After it was ascertained that a valuable iron mine was discovered and in operation on the Kinney property, complainant, failing to obtain from defendants satisfactory recognition of his claim, filed this bill of complaint, October 20, 1911, claiming a right to share in the profits realized from the operation of said mine, based on the alleged oral contract made in his saloon some time between November 15 and 20, 1906. As a basis for ascertaining what share of the profits complainant was entitled to, he introduced testimony touching the amount of royalty others had received in that region for like services in successful mining promotions, under the claim that it was the general custom to pay 10 cents per ton in similar cases and his contract should be treated as made with reference to such custom.

The controlling issues of fact raised by the allegations of the bill and defendants’ denying answer were, whether there was an express oral contract made as alleged and performed on complainant’s part, the defendant corporation’s liability under it if such contract was made, and the existence of a custom to pay 10 cents per ton royalty in similar cases, which could and should be construed as forming part of such contract.

A written opinion was filed by the trial court reviewing the case in its various aspects, in which the court found that the initial contract as alleged in complainant’s bill, or the agreement to “whack” if he could get them a mine, “was not shown by a preponderance of the evidence,” that “complainant failed to establish the existence of the custom” claimed, and that no liability on the part of the defendant corporation was shown, but concluded that what passed between the parties on the occasion of their first meeting—

“was equivalent to a proposal by Zimmerman and Clutts that if Mr. Schook brought them a property which proved to be a mine, they would reasonably compensate him for his services.”

The court thereupon proceeded to determine and decree what it deemed reasonable compensation for the services it was found Schook had rendered, on the assumption, as is inferable, that, having obtained jurisdiction under the equitable allegations in complainant’s bill, the court should retain jurisdiction to dispose of the whole controversy, and rendered a decree requiring Zimmerman and Clutts to pay complainant 4 cents per ton on all ore mined from the Kinney property during the life of the lease which they had obtained, on which basis the sum of $21,018.24 was found due and payable forthwith; declared a lien upon all their stock in the defendant iron company for any sums due or to become due from them to said complainant by reason thereof; required them to forthwith present their certificates of stock to said company to be indorsed, and that said company indorse upon them a notation of such lien and spread upon its records a copy of such decree. From this decree both parties have appealed. Complainant contends that the decree should be modified to conform with the allegations in his bill and supporting proofs under which the alleged contract should be sustained; that relief should be granted directly against the defendant company, as well as against Zimmerman and Clutts, one-third of whose stock in said company should be awarded outright to complainant, or that they should be decreed to pay him 10 cents per ton for all ore mined. Defendants contend, on the other hand, that the equitable grounds for relief stated in complainant’s bill were not sustained by the evidence, and the court, having necessarily so found, was without jurisdiction to award damages on a bare implied contract to compensate for services performed which differed from that alleged in the bill and involved only a promise to pay, thus making a case within the exclusive jurisdiction of a court of law.

The latter contention raises a serious question under the.pleadings and proofs, whatever view may be taken of the intrinsic merits of complainant’s claim. While equity will retain jurisdiction to settle controversies for which courts of law afford adequate relief when they are involved with and grow out of an equitable cause which gives the chancery court jurisdiction, the bare pleading, in connection with them, of equitable rights not proven does not confer jurisdiction to try such controversies, which otherwise are of exclusive law jurisdiction. The legal remedy administered in an equity court must be connected with and grow out of an equitable right both alleged and proven.

“There is no authority for holding that equity can grant damages unless there is some case of equitable relief made out also, to which the damages would be applicable or subsidiary.” Bourget v. Monroe, 58 Mich. 563 (25 N. W. 514).

The only ground for equitable relief stated in complainant’s bill is a trust, or fiduciary, relation between the parties, based upon the claim of a right under the alleged agreement to share in the profits accruing to defendants from the Kinney mine, entitling him to an accounting, the profits constituting a trust fund. The trial court did not, and, as an examination of this record convinces us, could not find that the contract alleged in complainant’s bill- was sustained or established by the evidence. The court did find that what passed between the parties in the saloon at the time they first met, when it is alleged the contract stated in the bill was entered into, was equivalent to a proposal that if complainant—

“brought them a property which proved to be a mine, they would reasonably compensate him for his services.”

An express or implied agreement to pay, or compensate a person for services rendered, involves no suggestion of a division of profits. The court rightly found no custom proven as claimed; and, if one were shown, it could not be an element o± the contract, unless it was also proved that Zimmerman and Clutts knew of and therefore presumably contracted . with reference to it. There was no evidence of this, but, on the contrary, they were then strangers in that locality, and testify positively that they did not. Although it is alleged in complainant’s bill that by the express contract relied upon they were to give him “a just, fair, and proper share of such profits,” the record is entirely destitute of any evidence to sustain such allegations or mention of profits in that connection, beyond complainant’s statement they said they would “whack’’’ with him, which the court finds was not established by a preponderance of evidence. But if this was said, it furnishes no sufficient support for a chancery decree of specific performance of a contract to pay for service in profits.

“An action at law for breach of contract can often be maintained, although some of the terms of the contract are not established with exactness. It is otherwise where specific performance is required. The court, in order that it may frame a decree in accordance with the intent of the parties, must be clearly apprised of the intent in all essential respects. A greater degree of certainty is required than in actions at law for damages.” 36 Cyc. p. 589.

When in colloquial use the word “whack” has import of the nature suggested here, it is recognized by the lexicographers as slang, meaning “to divide into shares; apportion; parcel out; make a division settlement ; square accounts; pay;” often in the phrase “to whack up.” Vide Century Dictionary. Whether in this case, if used, it was intended to mean they would whack with complainant an interest in the property or lease, which, being oral, would be void under the statute of frauds, or pay him for his services, or settle with him, and on what basis, or give him a share in the profits as he claims, or a royalty on ore mined regardless of profits, and what share, are matters of conjecture upon which the alleged contract is uncertain and incomplete. In Waterman on Specific Performance of Contracts, p. 199, it is said:

“If there be strong doubt whether both parties to a contract understand it alike, the court will not decree specific performance.”

In the footnote to this proposition it is said:

“Clearness and certainty in a contract are obviously so important and fundamental it seems scarcely necessary to say very much on the subject, or refer to many authorities. The following cases will give the student some idea of the manner in which precision in agreements is required by the courts” (citing a large number of authorities).

In the case of Petrie v. Torrent, 88 Mich. 43 (49 N. W. 1076), cited by complainant, and along the lines of which his bill appears to have been framed, the chancery court took jurisdiction and granted specific performance of the contract alleged and proven, because there was shown an express agreement to divide profits upon a given ratio, and therefore trust relations existed between the parties, defendant having in his hands, and being trustee as to, agreed profits which were alleged and proven, entitling complainant to an accounting. In that case the contract alleged and sustained by the evidence was certain and complete. It appears that the complainant had an option upon, control of, and the right to purchase certain described timber lands which by their agreement he surrendered to defendant under a contract by which the amount of money each was to pay and the work each was to perform, with full details of the enterprise, were defined and stated at length, differing radically in that particular from the instant case. This marked distinction we think runs through all the cases cited by complainant, and all those we have been able to consult, where specific performance was decreed, whether the contract relied upon was oral or in writing.

The conclusions of the court, with which we do not disagree, that, “whatever may have been said or omitted in the conversation referred to,” it was, in the light of subsequent events, equivalent to a proposal of Zimmerman and Clutts that if Schook brought them a property which would prove to be a mine, they would reasonably compensate him for his services; that, acting upon it, he brought the property to their notice, introduced McKinnon to their representatives, exerted his influence with McKinnon to deal with them, and was instrumental in their obtaining this property, for which reason he is entitled to reasonable compensation — go no farther than to make a case triable by jury, if either party so elects, on the law side of the court for breach of contract; but, aside from this, and conceding these conclusions, we are unable to find from the record that the allegations in complainant’s bill which would, if true, confer upon an equity court authority to take jurisdiction, decree performance, and dispose of the matter are established by any competent evidence.

As a reason for and leading up to the decree that complainant, by reason of services rendered, was entitled to 4 cents per ton royalty for all ore produced by the mine under the sublease held by defendants, the court expressed the view that:

“It is not open to serious dispute but that before the Kinney option was issued to them, Zimmerman and Clutts actually knew of Mr. Schook’s claims, and that with expectation his claims would be realized, he had and was continuing to employ himself in an effort to obtain the option for them, and that, with such knowledge, they accepted the results of and profited by his efforts without repudiation of his claims, until after the lease, as well as the option, was secured to them.”

Conceding, as this imports, that, having proposed to compensate him for his services if he brought them a property which proved to be a mine, by afterwards accepting and profiting through his efforts without repudiating his claims, as known to them, until after they secured the lease, they were bound by such claims and estopped from denying them, the absence of equity jurisdiction yet remains; for there is no proof of claim for royalty at any time, and complainant himself testifies he made no claim for, or mention of, profits until the lease was taken. His claims before the lease was secured, if known to them, that they had agreed to whack, or compensate, him for services, as the court found, or that he owned an interest in the mine or lease, which he subsequently abandoned, which might some of them furnish ground for an action at law in assumpsit for breach of contract, could give no equity jurisdiction to render a decree for specific performance.

In this view of the case the other interesting questions presented by the rather extended record and discussed in the briefs of counsel do not demand consideration here. We are constrained to hold that complainant’s bill must be dismissed for the reason that his proofs, failing to correspond with the allegations of his bill, do not show a contract sufficiently certain in essential particulars to permit enforcement ofi specific performance by a court of equity, and no alleged grounds which give the chancery court jurisdiction'are sustained by the proofs.

The decree is therefore reversed without prejudice, with costs to defendants.

Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.

The late Justice McAlvay took no part in this decision.


text:
    PEOPLE v. GAGE.
    1. Criminal Law — Jury—Panel—Venue—Courts.
    Under the provisions of statute relating to the summoning of additional jurors, more than 24 petit jurors being needed for a criminal trial, in the opinion of the presiding judge, the court is not permitted to designate prior to the commencement of the term a portion of the county from which the additional jurors should be selected, excluding the city in which the alleged offense toot place and certain adjacent territory. 1 Comp. Laws, §§ 340, 342. The accused is entitled to a trial by a jury of the vicinage or locus of the crime with which he was charged, and failure to recognize this right invaded the constitutional privilege of the said respondent.
    2. Same — Change oe Venue — Discretion—Prejudice.
    The discretionary power vested in the circuit judge to allow or deny a change of venue is only reversible on appeal in case of abuse, but the discretion recognized by the court is not a personal, arbitrary discretion, being rather a . legal discretion to be exercised according to established and well known principles of law.
    3. Same — Venue—Prejudice—Change.
    Defendant was informed against for embezzlement and illegal conduct in the operation and failure of a private bank. The failure of the bank caused much excitement and public feeling. Various litigation arose over the firm affairs. On the hearing of a motion for change of venue, the trial court granted the request, but the cause coming on at a subsequent term, the order being treated as premature and irregular, a second motion was made and denied by the judge, who was of the opinion that sufficient time had elapsed so that public feeling and interest was less intense, and that a fair trial could be secured in the county. But during the intervening period political discussion took place regarding the bank failure and the evidence showed that the issues were kept alive and agitated. Held, that a change of venue should be granted, and it was error to find that sentiment had so changed in the county as to afford an opportunity for an impartial trial.
    Exceptions before sentence from Cass; Des Voignes, J.
    Submitted June 17, 1915.
    (Docket No. 101.)
    Decided December 21, 1915.
    Ira B. Gage was convicted of embezzlement and conspiracy to defraud.
    Reversed.

      Grant Fellows, Attorney General, and Otis Huff, Prosecuting Attorney, for the people.

      James H. Kinnane and Clyde W. Ketcham, for respondent.
   Steere, J.

This case developed from the failure of a private bank in the city of Dowagiac, known as the City Bank of Dowagiac, Lyle, Gage & Co., bankers, which closed its doors in February, 1908. The partnership, with its members as such, filed petitions and schedules in bankruptcy, and were adjudged bankrupt, in March, 1908, resulting in the losses to depositors, financial disturbances, and unfriendly feeling toward those actively connected with the bank, locally incident to such an event.

Frank W. Lyle and respondent, respectively president and cashier of said bank,- were arrested in April, 1908, upon complaint of Oliver Lyle, one of the partners, charged with embezzlement and conspiracy to defraud and deceive said Oliver Lyle, Levi Lyle, another partner, and the bank depositors generally, and were held for trial in the circuit court of Cass county.

A bank of similar name and controlling ownership had existed in Dowagiac for many years. Complainant Oliver Lyle testified that he had been connected with this bank as a stockholder under different organizations for over 30 years, it having been originally organized as a national bank, in which he was a director when Frank Lyle’s father had principal charge. This was followed by a private bank for a time, and in 1900 it was incorporated and' organized as a State bank, called the City Bank of Dowagiac, continuing in business in that capacity until May, 1904, when it abandoned its corporate form and was reorganized as a private bank in the form of a partnership, owing to trouble with the State banking department over excessive loans made to its president, Frank Lyle, and others, not satisfactory to the department, which were in violation of the banking law. The undisputed testimony discloses that this course was taken at the suggestion of the State bank commissioner, who went to Dowagiac about that time to investigate the matter, and while there stated to the bank officials that this was a legal and feasible plan, which he had himself once followed when in the banking business in the north, and when so organized they would be free to extend their loans and lines of credit in their discretion. Respondent was then and continued to be cashier of the bank. The stockholders met to reorganize on May 2, 1902, and he is» convicted of having conspired on that date with Frank Lyle to defraud Oliver Lyle, Levi Lyle, and others. That Frank Lyle was the controlling spirit in the policy and management of this bank, and his reckless management, private ventures, and extravagance were the dominant cause of its downfall may be admitted as beyond successful contradiction; but respondent, who was the cashier under him and presumably familiar with the bank’s condition, was himself a liberal borrower, and from what is disclosed by this voluminous record we think there was testimony raising an issue as to his guilty participation which it was proper to submit for the determination of a fair and impartial jury, legally constituted, and cannot concur in defendant’s contention that as a matter of law a verdict should have been directed for defendant on the ground there was not a scintilla of evidence to go to the jury on the issue of his guilt.

The case came before this court in a preliminary proceeding brought by said Frank W. Lyle and respondent for the purpose of compelling the circuit court to grant a change of venue on a motion previously made before it and denied. Lyle v. Circuit Judge, 157 Mich. 33 (121 N. W. 306). The writ applied for was then denied on the ground that such interlocutory order will not be reviewed and .a change of venue compelled on mandamus as such cases, involving discretionary action, are reviewable upon writ of error; it being said, however, by the justice who wrote the opinion:

“Were it competent for us to review his conclusion upon the merits, I should reach a different conclusion from his, but I think that it is not.”

Frank W. Lyle died before the case was brought to trial. The motion for a change of venue was renewed and again denied at the opening of the trial, to which exception was duly taken and the ruling embodied in. the bill of exceptions now before us for review.

Respondent was tried and convicted at the September, 1909, term of the circuit court of Cass county, under three of the 17 counts in the information filed against him of having, on May 2, 1904, conspired with one Frank W. Lyle to defraud, as before stated. Prior to the commencement of that term, on August 10,1909, an order was made by the circuit judge directing that 40 additional petit jurors be drawn and summoned from the several lists returned according to law, “excepting the townships of Pokagon, Silver Creek, Wayne, and the city of Dowagiac.” The order began as follows: \

“It appearing that in the case of People v. Ira B. Gage and certain other cases to be heard in the next September term of the court, that the usual number of jurors will not be adequate out of which a jury maybe selected for the several trials therein, because of the number of challenges that may be, and probably will be, exercised in said causes,” etc.

It was further stated by the court during the argument of plaintiff’s challenge to the array that said exclusion of the territory named was based on the motion first made for change of venue and was, “if anything, in favor of defendant, to avoid the bringing in of people who lived near the city of Dowagiac,” the townships excluded being adjacent thereto.

When impaneling of a jury was directed at the commencement of the trial and 12 jurors had been called to the box, defendant’s counsel interposed a challenge to the array for various reasons, but principally on the ground that the city of Dowagiac and townships excluded from said drawing represented approximately one-third of the population of the county, and the order excluding them, but directing a drawing of jurors from the balance of the county was without authority of law and prejudicial to respondent, said jurors having been irregularly and illegally summoned, by which respondent was deprived of his constitutional right to a trial by a jury lawfully drawn and summoned from the body of the county, including the vicinage, according to the methods provided by statute for that purpose.

The order as made was not authorized by any statutory provision, nor within the power of the court. The jury so drawn was neither a jury of the vicinage nor of the county at large. The provision in section 342, 1 Comp. Laws, permitting the court as such to direct that jurors be drawn and summoned from near the county seat for convenience and the dispatch of business, after it is ascertained at a particular term that a sufficient number of qualified jurors were not drawn and summoned, or failed to appear, is not applicable under any circumstances to an order of this nature made by the circuit judge prior to the commencement of a term. This order was apparently made with reference to sections 340 and 341, which authorize the circuit judge, whenever in his opinion more than 24 jurors will be necessary for an approaching term, to make an order that such additional number as he deems necessary be drawn and summoned as provided by law, not exceeding 24, which order he must serve on and file with the county clerk at least 20 days before the commencement of the term; but these sections confer no authority to designate any portion of the county from which the jurors shall be drawn or to otherwise restrict the regularly prescribed manner of drawing and summoning. The order was therefore not sanctioned by law. People v. Hall, 48 Mich. 482 (12 N. W. 665, 42 Am. Rep. 477). The course pursued, as well as what was said by the court in that connection, indicate that the order as made was a partial recognition at least of the merits of respondent’s motion for a change of venue, in the particular that it attempted to effect a semi-change of venue by picking out that portion of the county to draw from which the court was inclined to think might be less affected by the feeling and prejudice shown in affidavits presented in support of the motion.

The record discloses that a motion for change of venue was early made and presented to the court in this case at a time when the judge of a neighboring circuit was presiding in Cass county, and an order was then granted changing the venue to Kalamazoó county. It was subsequently found and held that this order and the motion upon which it was based were premature, the case not then being at issue, for which reason the same was set aside, and the application was later renewed in proper form and time when the regular judge of the circuit was presiding. In then denying this motion the court conceded the propriety of the former order granting a change of venue, but prematurely made, saying in part that the incidents of the “somewhat sensational bank failure” were then fresh in the public mind, and “at that time it appeared, and quite reasonably so, that owing to the then condition of the public mind, it was proper to grant the prayer of respondent,” but denied the motion on the ground that sufficient time had elapsed to cause the incident to pass from the minds of the people.

It is pointed out that to grant a change of venue is discretionary with the trial court; that courts of review will not disturb the action of trial courts in the exercise of such discretion except in cases of plain abuse, and it is urged that no abuse of discretion appears here. That the rule is as stated there can be no question, and this court has often so held, but in that connection is the further rule that the discretion lodged in the trial court is not a private, arbitrary, or personal, but a legal, discretion, to be exercised according to established and well-known principles of law. The extent to which discretionary action may be reviewed was long ago well stated in 1 Lill. Abr. 477, as follows:

“Where anything is left to any person to be done according to his discretion, the law intends it must be done with sound discretion and according to law; and the Court of B. R. hath a power to redress things that are otherwise done, notwithstanding they are left to the discretion of those that do them.”

This bank closed its doors in February, and was adjudicated a bankrupt in March, 1908. The premature order changing the venue of this case on the showing then presented was made June 22, 1908, by the Calhoun circuit judge then sitting in Cass county. In December, after the case was at issue, the motion was renewed. At the January term, 1909, it was argued before the regular judge of the Cass circuit, then presiding, who concurred with the opinion of the visiting judge that a change of venue was proper at the time it was ordered in June, 1908, but, with 25 affidavits in support of the motion added to the 12 upon which the former judge acted, denied the motion on the ground that by lapse of time excitement and prejudice had abated, the incident had passed from the minds of the people and» previously existing reasons for a change of venue no longer obtained. This might be true to a greater degree had nothing occurred between June and January to refresh their recollections, although, had public discussion ceased, it could scarcely be thought to have passed from the minds of the many unpaid depositors’ of the bank scattered throughout the county, stated at from 800 to 1,000, and their friends, of whom, commenting on this matter, a local paper said:

“A great many citizens whose bank account is gone, would like the pleasure of hearing Lyle and Gage tried; that’s about all they will ever get out of it.”

The atmosphere of a courtroom packed with those citizens does not suggest ah ideal venue for a fair and impartial trial on its merits of the cashier of that bank, irrespective of his guilt or innocence.

While the affidavits in support of and against this motion are at variance as to whether in -the opinion of those making them such prejudice generally prevailed in the county as to preclude a fair and impartial trial, certain undisputed facts of permanent significance demand consideration. This prosecution centers upon the incidents of a “somewhat sensational bank failure,” causing serious loss to some 800 or 1,000 depositors, attended and followed by public manifestations, ill feeling, and bitter discussion, both amongst citizens generally and in the public press, unfavorable to the bank and its officers so widespread and of such a nature that it was conceded 'by the prosecution prejudice prevailed for a time, and all courts called upon to consider the matter have concurred in the view that following the failure and up to June 22d the hostile feeling and prejudice against respondent in that county were such that for a fair and impartial trial a change of venue should be grafited. An examination of the sensational accounts and severe criticisms of the affairs and management of the broken bank appearing in the local papers, with charges of criminal conduct on the part of its officers, together with affidavits of admittedly prominent and reliable citizens as to what was said and done, leaves no doubt upon that proposition.

It also appears, undisputed, that after June 22d, and at least up to the November election following, general interest was kept alive in the bank failure and this prosecution, which grew out of it, to such an extent that the case became one of the issues of the fall political campaign of 1908, and was generally discussed as a matter of public concern before the electors of the county in that connection. The voters were appealed to against the “bank gang/’ and the defense of this case was bitterly attacked in public print, it being asserted amongst other things that “it would cost $5,000 to convict Lyle and Gage outside of Cass county.” On the eve of election circulars or dodgers .relating to the case were distributed by the then prosecuting attorney, and the public was assured that Lyle •and Gage could be convicted at home for less than $500. The campaign discussion of this particular case became so personal, bitter, and acrimonious as to result in the commencement of a libel and slander suit involving attorneys connected with it, which furnished sensational copy for the local papers.

One prerequisite to entering upon a judicial trial, and paramount to the requisites which follow, is impartiality or freedom from prejudice so far as attainable, and if it appears this may not be found in the venue of first jurisdiction it is the duty of the court to seek it elsewhere, and the legal discretion existing in that connection may involve an inevitable legal inference from the undisputed facts.

We are agreed that under undisputed local conditions the fundamental prerequisites to a fair and impartial judicial trial demanded a transfer of this case to a disinterested and unaffected environment, and denial of the application therefor was prejudicial error resulting in a mistrial and consequently amounting, in contemplation of law as applied to judicial proceedings, to a miscarriage oif justice.

The verdict is therefore set aside, and a new trial .granted.

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

The late Justice McAlvay took no part in this decision.