author: McAlvay, J. Hooker, J. Montgomery, J. McAlvay, J. Ostrander, J. Hooker, J.

text:
    LAYZELL v. J. H. SOMERS COAL CO.
    1. Master and Servant — Personal Injuries — Negligence of Master — Violation of Statutory Duty — Assumed Risk.
    The duty of the proprietor of a coal mine to employ competent and trustworthy engineers to operate cages and hoisting devices, as required by Act No. 100, Pub. Acts 1905, does not depend upon notification by the State mine inspector as provided by section 36 of the act, and employés of the mine do not assume the risk of injury through the negligence of an incompetent engineer, though the owner has used due care in the selection of an engineer, and has not been notified of the incompetence of the engineer selected. Hooker, J., Grant, C. J., and Montgomery, J., dissenting, on the ground that due care to select an engineer of the prescribed class is all the statute requires.
    2. Same — Evidence—Incompetence of Fellow-Servant.
    In an action by an employé against a mine owner for injuries resulting from the negligence of an incompetent engineer, employed in violation of Act No. 100, Pub. Acts 1905, evidence of the habits of the engineer as to the excessive use of intoxicants, if within the knowledge of defendant’s officers or agents, or of so notorious a character that they should have known of such habits, is material as bearing upon the engineer’s competency and trustworthiness.
    3. Evidence — Admissions — Defendant’s Officer — Statement after Accident.
    In an action by an employé against a mine owner for injuries resulting from the negligence of an incompetent engineer, employed in violation of Act No. 100, Pub. Acts 1905, it was not error to exclude testimony tending to show statements of defendant’s mine boss, made on the night after the accident, relative to the competency and trustworthiness of the engineer.
    ON REHEARING.
    Master and Servant — Personal Injuries — Statutes — Construction.
    Act No. 100, Pub. Acts 1905, imposes upon the owners or operators of coal mines in this State a positive and continuing duty to employ only competent and trustworthy engineers to operate the cages and hoisting devices in said mines, and abrogates the common-law rule requiring reasonable care in such selection, thereby making the master an insurer of their competency and trustworthiness. Ostrander, Grant, and Montgomery, JJ., concurring except as to the abrogation of the common-law rule of reasonable care. Hooker, J., dissenting.
    Error to Saginaw; Gage (William G.), J.
    Submitted October 17, 1907.
    (Docket No. 85.)
    Decided June 27, 1908.
    Motion for rehearing granted September 8, 1908.
    Reargued February 9, 1909.
    Former opinion affirmed April 24, 1909.
    Case by Charles Layzell against the J. H. Somers Coal Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      F. E. Emerick and W. J. Nash, for appellant.

      W. J. Lamson, for appellee.
   McAlvay, J.

Plaintiff brought suit against defendant company to recover damages for personal injuries received by him on account of the negligence of the officers and agents of defendant. From a judgment entered for defendant upon an instructed verdict, plaintiff, upon writ of error, brings the case to this court for review.

Plaintiff was employed on March 2, 1906, and for some months prior thereto worked, as a pump man in the coal mine of defendant at St; Charles, Michigan. At 9:30 p. m. of that day plaintiff was required by his duties to go down into the mine. In company with his helper named McDonald plaintiff entered the cage at the top of the shaft, and both men gave the proper signals to the man operating the levers in the engine room to be lowered down into the mine. This operator, instead of manipulating the machinery so as to lower the cage into the mine, did exactly the opposite, and pulled his levers so as to cause the cage suddenly and violently to be elevated, jerking it some 30 feet up the shaft and over the automatic tipple, a device for dumping coal, and throwing these men violently out of the cage into the coal hoppers, causing plaintiff serious and permanent injuries. The man operating the levers which controlled the cage and hoisting device in this coal, mine on this occasion was named Saunders and was employed as fireman. The defendant placed its regular engineer at this work during the daytime, and this fireman during the nighttime.

The negligence relied upon and charged against defendant was that the fireman, Saunders, was a common laborer incompetent and lacking skill to take charge of the cages and hoisting devices used in this mine, and was a, man addicted to the excessive use of intoxicating liquors, and was known to defendant’s officers and agents to be reckless, unreliable, drunken, and incompetent to perform said work. The declaration also charged that defendant was negligent in disregarding a statutory duty imposed upon it by section 3 of Act No. 100 of the Public Acts of 1905, entitled:

“An act to provide for the protection of the health, lives and interests of the coal miners of Michigan, and to provide for the inspection of all coal mines in this State.”

Section 3 provides:

“ That only a competent and trustworthy engineer shall be permitted to operate the cages and hoisting devices in all coal mines of this State.”

The plea of the defendant was the general issue. Such errors assigned as are material to the determination of the case will be considered.

In directing the verdict for defendant, the court, in his charge, among other things, said:

“Now, then, in this case counsel endeavored to distinguish this case from the common-law rule which I have stated to you by referring to certain authority in this State and out tif it. * * * And they cite to sus-
tain that position the law of this State which was passed in 1905, known as Act No. 100, in which one section says:
“‘Seo. 3. That only a competent and trustworthy engineer shall he permitted to operate the cages and hoisting devices in all coal mines of this State.’
“And they plant their right to recover upon that provision of the statute. Now the cases where the court has said in this State that the plaintiff might recover and that there was no assumption of risk where the statute provided that the duty that the employer should perform toward the employe for his protection was the case where the statute contained a penalty for the violation of it. * * * There is no penalty in this statute for the failure to perform.”

The court then quoted the last section of the act making it a misdemeanor to refuse to comply with a certain notice, and proceeded:

c ‘ So the employer is not guilty of a misdemeanor until the State mine inspector has notified him and that he haa failed to comply with the notice to do, within a reasonable time.”

■ The case cited and quoted from in his charge and upon which- the court relied, Walkowski v. Consolidated Mines, 115 Mich. 629 (41 L. R. A. 83), was decided before any statute was enacted imposing a duty upon the employer as to operating cages and hoisting devices in coal mines, so no question was in that case as to the neglect of duty and the case is not in point.

The construction of the court was that the statute invoked by plaintiff contained no penalty and therefore the neglect of the duty imposed did not bring the case within the cases relied upon by plaintiff. In Swick v. Cement Co., 147 Mich., at page 457 et seq., where a similar contention is discussed under a similar statute, the conclusion of the Justices concurring in the opinion is that the statute imposed the duty without reference to the action of the factory inspector, and in case of neglect of that duty the doctrine of assumed risk could not be asserted as a defense. In this conclusion we concur. This statute does not make the performance of the duty depend upon the action of the mine inspector. It is imposed by the third section of the act without condition, and without reference to the steps necessary to be taken in order to penalize parties for their neglect. This section of this statute imposed the duty upon defendant to employ an engineer, competent and trustworthy, and to permit only such an one to operate the cages and hoisting devices in its mine. The legislative intent in providing for the protection of the lives of miners is clearly expressed in this section. The intention is not to allow the employment of any man, and put him at this work to learn his trade as an engineer, but that the man put at this work must be then a competent and trustworthy engineer. Plaintiff had a right to rely upon the performance of this duty by his employer.

It is not a question of the care used by the defendant in its selection, if the person selected was not “a competent and trustworthy engineer,” for the reason that, under the statute, such is the only selection provided for. This is not an insurance that accidents will not occur, but an insurance that the employé selected is within the class designated by the statute. It follows that if the statute has not been complied with, the defense of assumption of risk, or negligence of a fellow-servant, cannot be asserted. The court was in error in directing a verdict for defendant. The case should have been submitted to the jury with instructions conforming with the views'above expressed.

The court was also in error in excluding evidence of the habits of Saunders as to the excessive use of intoxicants, if within the knowledge of defendant’s officers or agents, or of so notorious a character that they should have known of such habits. It was material as bearing upon his competency and trustworthiness. The testimony of the machinist and blacksmith should have been admitted for the same reason. It was not error to exclude the testimony of plaintiff’s witness to show statements of defendant’s mine boss, Jenkins, made on the night after the accident, relative to the competency and trustworthiness of Saunders. In view of the foregoing statements in this opinion, the other errors assigned need not be discussed.

The judgment is reversed and a new trial ordered.

Blair, Ostrander, Moore, and Carpenter, JJ., concurred with McAlvay, J.

Hooker, J.

( dissenting). The plaintiff was injured by being raised in defendant’s mine hoist, and dumped over the “ tipple.” The cause was the shifting a lever in the wrong direction through mistake, by defendant’s employe in charge of the hoist. The plaintiff was seriously hurt, and charges negligence upon the defendant. Our statute, Act No. 100, Pub. Acts 1905, is relied upon. The title of the act to which it was amendatory was:

“An act to provide for the protection of the health, lives and interests of the coal miners of Michigan, and to provide for the inspection of all coal mines in this State.”

Section 3 provides:

“That only a competent and trustworthy engineer shall be permitted to operate the cages and hoising devices in all coal mines of this State.”

Section 36 provides:

“Any owner, part owner, operator, manager, or superintendent of any such coal mine, or director or officer of any stock company owning or operating any such mine, who shall wilfully violate any of the provisions of this law by omitting to comply with any of its said provisions, after a reasonable length of time after notice of such omission, by the State mine inspector shall, if not otherwise provided for, be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished,” etc.

The negligence relied upon is the failure of the defendant to employ “a competent and trustworthy engineer” to operate the hoist, and counsel say in their brief:

‘ ‘ Our position in this case is that, under the evidence, the sole question and issue was and is the competency of Saunders. The statute imposes a specific duty to provide at this post a competent and trustworthy engineer. If the man Saunders was in fact incompetent and untrustworthy, either or both, the plaintiff was entitled to recover. Under this statute it is no defense to say defendant had no notice or knowledge of such incompetency or untrustworthiness. It is no defense to say that plaintiff had knowledge of such incompetency and should have imparted that knowledge to defendant. It is no defense to claim that plaintiff assumed the risk of negligence of a fellow-servant. All of these questions, we assert, were eliminated from the case by the effect and operation of the statute, and that therefore the manner and cause of the injury not being disputed as being the negligent act of Saunders, not in any wise contributed to by any want of care on the part of plaintiff or the other man in the cage, or any defect in the machinery, and there being positive evidence in the case of the incompetency of Saunders at and before the time of the injury in this employment, the case should have been submitted to the jury.”

Plaintiff’s counsel claim, first that there was evidence showing that Saunders was not an engineer and therefore that the jury might find that defendant had not complied with the statute and was liable. They also claim that there was evidence that Saunders was incompetent to run the elevator, and that he was a man who habitually made use of intoxicating liquor while at work, which tended to show untrustworthiness. As indicated by the quotation from the brief, it is plaintiff’s claim that the statute imposed-a positive duty to secure a competent and trustworthy engineer, at the master’s peril.

The statute in question should not be held to impose upon the mine owner the obligation of infallibility in the selection of employés unless we are prepared to say that it was intended to make him an insurer. It may reasonably be held that it was the legislative design to require the employment of an engineer, — competent and trustworthy, but we see no indication of an intention to abrogate the general rule that only reasonable care and diligence in ascertaining the qualifications are required, to re. lieve from the charge of negligence. The case of Mulhern v. Coal Co., 161 Pa. 270, is substantially on all fours with this case, the statute in that State being very similar to our own. It was there held that it had not the effect to change the common law relating to negligence in the employment of men. Apparently the statutes are from a common source, if our statute was not framed upon the Pennsylvania model. This construction was practically given in the Walkowski Case, 115 Mich. 629 (41 L. R. A. 33).

The defendant offered testimony tending to show that Saunders was a competent engineer when he was hired. Its officers made inquiries regarding his habits, competency, and trustworthiness. Rolfe, Saunders’ stepson, himself a man of experience with engines, told them that Saunders had fired and run an engine at Coleman, and fired in a saw mill; that he claimed to be an engineer, had run an engine all his life, and that he personally knew he had run an engine two years; that he was a straight, reliable man, and he considered him all right. This witness understood that it was the general custom for the head fireman to run and operate the cages or hoists at night. Beecher, defendant’s officer who hired Saunders, testified that he knew Saunders 18 months before hiring him, and before he hired him he talked with Mr. Rolfe, a relative of Saunders, about his age, experience, and strength, and was told that he was steady, reliable, and experienced, and had run a locomotive. When Beecher employed him, he first set him at work as assistant fireman. He worked satisfactorily at that for two or three months, and then he made him head fireman, “his duties as head fireman to be first engineer as much as anything else.” He was held responsible for the operation of the plant at night. He ran the engines for the fans to ventilate the mine, one for the generator, and one for the hoist, and he did this for at least 14 months before the accident. He did this under Beecher’s supervision, who never discovered anything wrong with him and never heard any complaints. We discover no contradiction in the testimony in relation to defendant’s care. The only evidence which is offered upon the subject of Saunders’ competency and trustworthiness, is that of two other employés who said that he had a bad reputation among the men, and that he used intoxicating liquor while at work, but both admitted that they did not inform defendant’s officers of it, which they would perhaps be unlikely to do, as they belonged to the same union with the plaintiff. Of the two who did testify that they thought him unfit, one gave the reason that he was “nutty,” which he explained to mean had mad fits. This witness said he had spoken about it to other employes, but never to any representative of the company. The other told what .some shift boss had said when told of the accident, which was hearsay testimony, not admissible. It was also said that he sometimes let the cage strike the ground hard, but no one seems to have informed the officers of that. I am of the opinion that the uncontradicted testimony showed an absence of any negligence in the employment of Saunders to do this work, in addition to which there is evidence of 14 months subsequent satisfactory service, which we have said to be the best evidence of competency. See Walkowski v. Consolidated Mines, 115 Mich. 629 (41 L. R. A. 33).

It is conclusively proved that Saunders was an engineer every way competent to run the hoisting apparatus and the engines, and that the only thing lacking was infallibility. We held in the case last cited that:

“ The fact that an employé, after operating machinery correctly for several months, forgot on one occasion, and turned a brake the wrong way, thereby causing injury to a fellow-servant, has no tendency to show incompetency.
‘ ‘ Evidence that the fellow-servants of an employé, in the retention of whom the master is alleged to have been negligent, had talked among themselves that he did his work improperly, is not admissible to prove general reputation for incompetency.”

There is no evidence that he was not a trustworthy man Why he made the mistake does not appear. It is not shown that he was angry, “nutty,” as Van Sickle called it, nor is there any evidence that he was intoxicated, neither is there anything to indicate that his management of the engines had anything to do with it; so if there had been negligence in those matters, it could hardly be said that such negligence caused the accident. It was said in Walkowski v. Consolidated Mines, supra:

“Evidence that the person in charge of the brake by which was controlled the hoisting and lowering of the passenger cages in a mine was in the habit of lowering the cages at too great speed is not admissible upon the question of his incompetency in an action for injuries caused by his turning the brake the wrong way and letting the cage fall.”

Under the proof in this case, it was the duty of the trial judge to say that defendant had shown due care in the employment of Saunders. If he was negligent, the plaintiff’s action should have been brought against him. He has signally failed to prove negligence on, the part of defendant.

The judgment should be affirmed.

Grant, C. J., concurred with Hooker, J.

Montgomery, J.

I concur in the view that the defendant is not an insurer of the competency of the engineer, and that the employer discharges his duty when proper care is exercised in the employment and selection of the servant.

ON REHEARING.

McAlvay, J.

In an opinion written and handed down in this case when it was first before this court, a majority of the justices concurred in a reversal. Ante, 268. Then, as now, the question of importance in the case was the construction of section 3 of Act No. 100, Pub. Acts 1905. Errors of minor importance which were pointed out in the former opinion need not be again discussed. They were not discussed upon the reargument. The question upon the construction of the statute is whether by its enactment the common-law rule,that only reasonable care and diligence in ascertaining the qualifications of the engineer are required to relieve from the charge of negligence, has been changed; in other words, whether the enactment was intended to and did impose upon the employer any other or further duty relative to hiring the engineer designated, than rested upon him before it became a law. This provision was first enacted in 1899. (Act No. 57, Pub. Acts 1899.) This act was amended in 1905; many provisions being added. No change was made in section 3 under discussion. The act of 1899 made the violation or omission to comply with any of its provisions a misdemeanor, punishable by fine or imprisonment, or both. By the law of 1905 the same penalties attach for failing to comply with any of its provisions, after reasonable notice given by the State miné inspector. An examination of the entire statute, its positive requirements and its penal provisions, confirms us in the opinion that by it a positive and continuing duty was imposed upon the mine owner or mine operator, and he was made in that respect the insurer of the competency and trustworthiness of the engineer permitted to operate the cages and hoisting devices in all mines in this State. The contrary construction makes this section of no force or effect. It is a remedial statute and should be construed liberally and beneficially. Such construction, however, need not be invoked to discern the plain intent of the legislature to abrogate the common-law rule of reasonable care and diligence and to impose an absolute duty upon the employer.

Since the former opinion reversing this case was filed, a very interesting case decided by the United States Supreme Court has been published, which may be considered as sustaining our reasoning in this case. St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281. The Federal statute construed related to certain drawbars required on freight cars, used in interstate commerce by railroads, being the safety appliance act of 1893 (27 U. S. Stat. 531). The court said:

“ The plaintiff in error raises another question which, for the reasons already given, we think is of a Federal nature. The evidence showed that drawbars which, as originally constructed, are of standard height, are lowered by the natural effect of proper use; that, in addition to the correction of this tendency by general repair, devices called ‘shims,’ which are metallic wedges of different thickness, are employed to raise the lowered drawbar to the legal standard; and that, in the caboose of this train, the railroad furnished a sufficient supply of these shims, which it was the duty of the conductor or brakeman to use as occasion demanded. On this state of the evidence the defendant was refused instructions, in substance, that, if the defendant furnished cars which were constructed with drawbars of a standard height, and furnished shims to competent inspectors and trainmen, and used reasonable care to keep the drawbars of a reasonable height, it had complied with its statutory duty, and, if the lowering of the drawbar resulted from the failure to use the shims, that was the negligence of a fellow-servant, for which the defendant was not responsible. In deciding the questions thus raised, upon which the courts have differed (St. Louis R. Co. v. Delk, 158 Fed. 931, 86 C. C. A. 95), we need not enter into the wilderness of cases upon the common-law duty of the employer to use reasonable care to furnish his employé reasonably safe tools, machinery, and appliances, or consider when and how far that duty may be performed by delegating it to suitable persons for whose default the employer is not responsible. In the case before us the liability of the defendant does not grow out of the common-law duty of master to servant. The congress, not satisfied with the common-law duty and its resulting liability, has prescribed and defined the duty by statute. We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is described. It is enacted that ‘ no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard.’ There is no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just. If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it. It is urged that this is a harsh construction. To this we reply that, if it be the true construction, its harshness is no concern of the courts. They have no responsibility for the justice or wisdom of legislation, and no duty except to enforce the law as it is written, unless it is clearly beyond the constitutional power of the lawmaking body. It is said that the liability under the statute, as thus construed, imposes so great a hardship upon the railroads that it ought not to be supposed that congress intended it. Certainly the statute ought not to be given an absurd or utterly unreasonable interpretation, leading to hardship and injustice, if any other interpretation is reasonably possible; but this argument is a dangerous one, and never should be heeded where the hardship would be occasional and exceptional. It would be better, it was once said by Lord Eldon, to look hardship in the face rather than break down the rules of law; but, when applied to the case at bar, the argument of hardship is plausible only when the attention is directed to the material interest of the employer to the exclusion of the interests of the employé and of the public. Where an injury happens through the absence of a safe drawbar, there must be hardship. Such an injury must be an irreparable misfortune to some one. If it must be borne entirely by him who suffers it, that is a hardship to him. If its burden is' transferred, as far as it is capable of transfer, to the employer, it is a hardship to him. It is quite conceivable that congress, contemplating the inevitable hardship of such injuries, and hoping to diminish the economic loss to the community resulting from them, should deem it wise to impose their burdens upon those who could measurably control their causes, instead of upon those who are, in the main, helpless in that regard. Such a policy would be intelligible, and, to say the least, not so unreasonable as to require us to doubt that it was intended, and to seek some unnatural interpretation of common words.”

Following this case, and ruled by it, the United States circuit court of appeals for the eighth circuit (sitting at St. Louis), on August 22, 1908, in two cases, Judge "Van Devanter speaking for the court, held:

“ The safety appliance law of congress, in the situations in which it is applicable, imposes upon a railway company an absolute duty to maintain the prescribed coupling appliances in operative condition, and is not satisfied by the exercise of reasonable care to that end.” United States v. Atchison, etc., R. Co., 163 Fed. 517; United States v. Denver, etc., R. Co., 163 Fed. 519.

If it be argued that the Taylor Case, supra, is distinguishable from, and not applicable to, the case at bar, for the reason that in the Taylor Case it was possible always to know the height of the drawbars, but in the ease at bar it would be impossible to tell when a competent and trustworthy engineer had lapsed from the required standard, as far as this particular case is concerned, the argument is answered by the record, which shows that no attempt has ever been made to comply with the requirements of the statute, and generally that it is a question of the degree of diligence required, to know that the engineer keeps up to statutory standard, a matter for legislative and not judicial consideration. .Relative to the clear, simple, and easily understood words of this statute under discussion, it may also well be said:

“ There is no escape from the meaning of these words. Explanation cannot clarify them and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just.”

If an absolute duty is imposed by this statute, then from the violation of its plain prohibitions there arises a liability to make compensation to one who is injured thereby.

It is claimed that this act of 1905 is borrowed from or founded upon the Pennsylvania statute. Whether or not this is so does not appear. In construing a section claimed to be similar to the one in question, the supreme court of Pennsylvania held that the statute has not changed the common-law rule that only reasonable care and diligence in ascertaining the qualifications of the engineer is required to relieve from the charge of negligence. Mulhern v. Coal Co., 161 Pa. 270. A comparison of these statutes will be instructive. The Pennsylvania law provides:

“An engineer placed in charge of an engine, whereby persons are hoisted or lowered in any mine, shall be a sober and competent person and not less than twenty-one years of age.” Act No. 170, Laws 1885, art. 12, rule 18.

Óur statute reads:

“ That only a competent and trustworthy engineer shall be permitted to operate the cages and hoisting devices in all coal mines of this State.” Section 3, Act No. 100, Pub. Acts 1905.

These statutes are not similar. The Pennsylvania statute makes no change whatever in the common-law rule of reasonable care and diligence. The word “ employé” might be substituted for ‘ ‘ engineer ” in the first line without changing its legal effect. In case of the injury of a miner by reason of the negligence of this engineer, the doctrine of assumed risk would apply, if it appeared that the employer has used reasonable care and diligence in his selection. The Michigan statute prohibits the employment of any except a competent and trustworthy engineer. Only such an one shall be permitted to operate the cages, etc. From these words we derive our construction that a duty is imposed, from the violation of which a liability arises to compensate the person injured thereby.

The intent of the statute is that this trustworthy and competent engineer who is permitted to operate these cages shall, while his duties call him to do this work, be an engineer in fact as well as by profession, and not at the same time be performing the duties of a fireman or of any other employe, thereby being absent from his engine and having his mind burdened and distracted from the work of caring for the lives and safety of the men he lifts from and lowers into the mine. In the case at bar, and the companion case which was reargued at the same time, the so-called engineers were firemen. They were employed as firemen, and during the “shifts’’when they were permitted to operate the cages were working as firemen at the boilers, from which work, in both instances when these accidents occurred, they were called to operate the cages. In the case at bar, the boiler room contains a battery of sis boilers and is separate from the engine room. The fireman Saunders, when notified that the parties were ready to go down, said: “As soon as I throw this fire on.” He did this, and then went to the engine room. Plaintiff and the man with him went into the cage and called: “All right,” and signaled with their lamps. The cage shot up 30 or 40 feet to the top of the tipple, and automatically emptied the men upon the rock dump.

There can be no question in what capacity these men were employed. The testimony of defendant’s principal witness, the chief engineer of the mines, who hired Saunders, shows:

“ In the daytime we had three men — head and tail fireman and the engineer. At night the head fireman [Saunders] shovels coal into the furnaces and looks after the steam. If a man wanted to go down, the head fireman would be called from the boilers to the levers.”

The record shows that but one engineer was hired at this mine who could be classed as a “competent and trustworthy engineer.” He worked in the daytime, when only coal was handled, and operated the cages like magic, as defendant’s counsel has stated it. The miners, for the protection of whose lives and interests this law was enacted, were turned over to a fireman to practice upon. The testimony of defendant’s chief witness who hired Saunders shows further that he did not know how to operate the cages and run the engines at the time he was hired, nor until three months afterwards, when, this witness says, "I showed him how to operate the cages and run the engines.” He was first put on as assistant fireman for three months, and then advanced to head fireman. While it is true that this witness stated that the one man he inquired of concerning Saunders’ qualifications' said that he had previous experience as an engineer, and had run a locomotive, yet the testimony of this witness shows that he was not a competent and trustworthy engineer when hired and was not accepted or treated as such, and the general superintendent testifies that there never was a regular engineer on the night shifts. The defense in this case does not claim, either in the record or upon the argument, that Saunders ever was an engineer. It is urged that he was simply an employé and was referred to only as such. This is referred to for the purpose of showing that defendant has absolutely disregarded the provisions of this statute. In fact, the whole testimony of the chief engineer shows that in his opinion an engineer was not necessary to perform this work, that it needed but very little experience by any ordinary man, and that the operator need have no knowledge as to the construction of, or technical knowledge concerning, engines. Whatever may be the differences of opinion as to the continuing duty of the employer relative to the competency of the engineer, all of the members of this court will agree that the statute requires that only a competent and trustworthy engineer may be hired to do this work. It follows, therefore, if our conclusion as to the record made by defendant is correct, that defendant did not comply with the statute in that regard, and is liable for damages resulting therefrom.

Further discussion of the question is not necessary. The legislature has thrown certain safeguards around the health, lives, and interests of coal miners. The business at best is extrahazardous. The legislation was required and not unreasonable. With the extra burden which it may possibly put upon the owner or operator, the courts, have nothing to do. Upon the legislature such responsibility rests. Our duty ends with ascertaining and declaring the legislative intent.

We add this to the former opinion in the case, and, for the reasons herein and therein given, hold that the court below was in error, and that the judgment should be reversed, and a new trial ordered.

Blair, C. J., and Moore and Brooke, JJ., concurred with McAlvay, J.

Ostrander, J.

When this case was first presented in this court (ante, 268), the question being the meaning and effect of the words, ‘‘that only a competent and trustworthy engineer shall be permitted to operate the cages and hoisting devices in all the coal mines in this State,” a majority of the Justices concurred in saying that :

“The legislative intent in providing for the protection of the lives of miners is clearly expressed in this section. The intention is not to allow the employment of any man, and put him at this work to learn his trade as an engineer, but that the man put at this work must be then a competent and trustworthy engineer. Plaintiff had a right to rely upon the performance of this duty by his employer. It is not a question of the care used by the defendant in its selection, if the person selected was not ‘ a competent and trustworthy engineer,’ for the reason that under the statute such is the only selection provided for. This is not an insurance that accidents will not occur, but an insurance that the employé selected is within the class designated by the statute.”

In the minority opinion, attention is directed to a contention made in behalf of the plaintiff to the effect that if the person operating the cages was in fact incompetent and untrustworthy, either or both, plaintiff was entitled to recover, because it was not a good defense for defendant to show that it had no notice or knowledge of such incompetency. With respect to this, three of the justices expressed the opinion that the effect of the statute was not to make the employer an insurer of the competency and trustworthiness of an engineer. In the majority opinion, from which the quotation is made, is language which may be, and perhaps ought to be, interpreted as affirming the rule of responsibility of the employer which, is clearly and unmistakably stated in the opinion of Mr. Justice McAlvay, written since the reargument of the case. The manifest propriety of removing doubt, if doubt existed, concerning the force and effect of the majority opinion, was a sufficient reason for granting a rehearing. We have had the benefit of additional briefs, and of an oral argument and have re-examined the case. I have been and am now of opinion that the significant-word in section 3 of the statute is the word “engineer.”' It was the common-law duty of the employer to permit none but a competent and trustworthy person to operate-the cages, to exercise due care in selecting the person and due care in observing him after his selection. See Walkowski v. Consolidated Mines, 115 Mich. 629 (41 L. R. A. 33). The legislature sought to increase the margin of' safety by limiting the right of selection. It prescribed a. class from whom those permitted to operate the cages, shall be selected, and, in so doing, in some degree fixed a. status of capability, of efficiency, for the operators of cages in coal mines. If the qualifying words, “competent” and “trustworthy,” used in this statute, have a greater significance than they would have if used with the word “person” or “boy” or “man,” it is because of' their connection with the word “engineer.” Assuming,, as we must, that, in the absence of these qualifying words, the engineer employed must be both competent and trustworthy, the conclusion announced in the majority opinion, first delivered, is right, because there was testimony tending to prove that the man in charge of the hoisting device-at the time plaintiff was injured was not selected or employed as one of the statute class, that the master did not. test or measure him by a standard applicable to engineers.. The court below having directed a verdict for defendant, reversible error was, upon this theory, established. I am still of opinion that, for the reasons stated, the judgment should be reversed and a new trial ordered.

I do not, however, concur in the view that the master is made an insurer of the competency and trustworthiness of the engineer, and I think this case and the one of St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, distinguishable. The arguments in favor of a readjustment of the relations of master and servant in such wise that employés suffering injuries in the course of employment shall not, as often as they have done, bear the entire resulting hardships and burdens, appeal, it may be assumed, as well to judges as to others. Whether the burdens shall immediately rest upon the employer, or partly upon the employed, whether they shall be ultimately cast upon the whole community, or shall be insured against by contributions made by the employer and employed, are questions of policy, interesting indeed, but in no sense judicial. Assuming the power of the legislature to impose the burden, in a particular class of cases, upon the employer, whether it has exercised the power is a question of interpretation or of construction of the legislative enactment. Mere interpretation of this statute does not support the conclusion that such a burden is imposed. Undoubtedly the words employed are clear, their legal effect is not necessarily the one contended for by the plaintiff. It goes without saying that by the rules of the common law, which the courts are bound to apply, which by the terms of the Constitution itself are in force in this State, negligence on the part of the master, causing or contributing to the injury of the servant, must be established before a servant, not himself negligent, can require the master to indemnify him for injuries received in the course of the employment; and negligence, either of master or servant, involves some want of prudence, some failure to take care, resulting in what might have been, by due care, prevented. The statute here in question gives an injured employé no right of action against his employer. It is by force of a rule of the common law that in such cases one injured by failure to perform a statute duty, imposed upon another for his benefit, may have his action for a breach of the duty. His action is in essence, as it is in form, an action ex delicto — for a wrong, a tort. The term “duty,” in the law. of negligence, implies an obligation which the one who owes it can discharge. This is true whether the duty is oris not called a “positive duty” or a “nondelegable duty ” of the master.

I have attempted to show that section 8 of this statute does not need, in order to give it effect, the construction which is put upon it by Mr. Justice McAlvay. In any event, treated as a statute imposition of a duty for the benefit of the plaintiff, the duty can be measured only by common-law rules. Unlike the one considered in St. Louis, etc., R. Co. v. Taylor, supra, this statute furnishes no standard of performance. The essence of the reasoning of the court in that case is that the statute there in question created a legal standard with which equipment of cars was required at all times to conform. Companies were not commanded to use safe and trustworthy cars. The command was the positive one to at all times use standard cars and to use no others. The court declined to entertain a rule according to which the questions whether cars were reasonably up to the statute standard, and whether the railroad companies or their employés were responsible for deficiencies, should be determined by successive juries in successive actions. By what rule or standard shall a competent and trustworthy engineer be selected ? And by what rule shall the master discover that his engineer has become temporarily or permanently inefficient ? There is but one rule, and that is the rule of due care. Unless this rule may be employed, the master cannot discharge his statute obligation. In my opinion it is a rule of necessity; but, in any event, none other being declared, it is the rule implied by the legislation itself.

Grant and Montgomery, JJ., concurred with Ostrander, J.

Hooker, J.

(dissenting). I adhere to the views expressed in my former opinion, and find nothing in this statute precluding the operation of boiler, engine, and hoist by one who is a competent engineer.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    MARSHALL v. SAGINAW CIRCUIT JUDGE.
    Bill of Exceptions — Settlement—Extension of Time — Failure to File Bond.
    Section 10504, 3 Comp. Laws, construed in connection with Cir. Ct. Rule 47, entitles an appellant to a reasonable time, after a denial of a motion for a new trial, in which to settle a bill of exceptions; and failure to file a bond under section 10355, 3 Comp. Laws, does not deprive the trial court of jurisdiction to grant such extension — such bond being required only for a stay of proceedings.
    Mandamus by Eliza Marshall to compel Chauncey H. Gage, circuit judge of Saginaw county, to vacate an order extending the time to settle a bill of exceptions.
    Submitted October 6, 1908.
    (Calendar No. 23,067.)
    Writ denied April 24, 1909.

      Beach, O’Keefe & Rockwith, for relator.

      Weadock & Duffy, for respondent.
   McAlvay, J.

Relator, as plaintiff, in an action for damages for personal injuries, on May 21, 1908, in the circuit court for Saginaw county, obtained a verdict for $2,000 against the Saginaw Valley Traction Company, as defendant, upon which verdict a judgment was duly-entered May 25, 1908. This judgment was in due legal form,-and also contained the following provision:

“And it is further ordered that the said defendant have twenty (20) days in which to move for a new trial, or to settle a bill of exceptions, and that all further proceedings in said cause be stayed during'said time, except taxation of costs.”

On May 26th defendant made a motion for a new trial, noticed to be heard June 1, 1908. This motion, by agreement, was set down for argument and heard July 1, 1908. On August 3, 1908, the court made an order granting a new trial unless plaintiff should, within 10 days, remit $500 of the verdict rendered in the case. On August 8th, plaintiff filed a remittitur, pursuant to said order. On August 18, 1908, defendant filed a statutory bond as in form provided by section 10355, 3 Comp. Laws. On August 24th, defendant made a motion for an extension of time of 60 days to settle a bill of exceptions, and noticed for hearing August 31st. No showing by affidavit was made in support of such motion. This motion was resisted because of the absence of such affidavit and for other reasons in writing duly filed. It was argued September 15th, and granted; the time to settle a bill of exceptions being extended until October 25, 1908. Relator asks for a writ of mandamus to set aside and vacate the order extending the time for settling a bill of exceptions, alleging that it was without jurisdiction and void, for the reason that defendant filed no bond as required by section 10355, 3 Comp. Laws, and that it was not made upon good cause shown by affidavit. The question here involved was recently passed upon by this court in Harper v. Wayne Circuit Judge, 155 Mich. 543, to which reference is had. That case is controlling of the case at bar. The writ is therefore denied.

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


author: Moore, J. Grant, J.

text:
    SARGEANT v. CITY OF DETROIT.
    Highways and Streets — Municipal Corporations —Defective Sidewalks — Personal Injuries — Contributory Negligence.
    In an action for personal injuries caused by a defective sidewalk, it appearing that plaintiff knew of its defective condition, and could have avoided the danger, held, by an equally divided court, that plaintiff was guilty, as a matter of law, of contributory negligence.
    Error to Wayne; Murphy, J.
    Submitted October 12, 1908.
    (Docket No. 20.)
    Decided April 24, 1909.
    Case by Mary H. Sargeant against the city of Detroit for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed by an equally divided court.

      Alex. J. Groesbeck and Guy A. Miller, for appellant.

      Edmund Atkinson (P. J. M. Hally, of counsel), for appellee.
   Moore, J.

Plaintiff sued to recover for injuries sustained October 15, 1904, on a defective sidewalk in front of a vacant lot on Delaware avenue in Detroit, by reason of being tripped and thrown by a plank over which plaintiff and a companion, walking side by side, were about to pass. The circuit judge was of the opinion that the case was governed by the cases of Irion v. City of Saginaw, 120 Mich. 295, and Hodge v. City of St. Louis, 146 Mich. 173, and directed a verdict in favor of defendant. The case is brought here by appeal.

The plaintiff was 61 years of age. The injury occurred about 6 o’clock in the evening. The plaintiff testified upon the direct examination:

“We got off from the car and started west, and it was exceedingly dark. I had known and knew very well the condition of the sidewalk, and Mr. Bornman did not quite as well; but we walked moderately because I knew the sidewalk was very defective, old, and loose boards, and as I did not wish to make a spectacle of myself in tumbling down, I wished to get up there without it, and we walked slowly along, or reasonably slowly along, until we suddenly came to a stop. Mr. Bornman stepped — he was on the inside of the walk and stepped on a board, and it flew up and caught me and threw me down. I saw it all in an instant, but I could not save myself. And it was quite dark. The street was not lighted directly. There was little light on the street except from the houses, and they were far apart. Mr. Bornman says: ‘What has happened ?’ And I gave him no answer, and by the time he collected himself, and I had a little, he got to me and began to try to help me up, and I said: ‘Wait a minute. I am in pain. I cannot get up just now.’ I did get up, perhaps in the course of two minutes, with his assistance, and he said: ‘You cannot go home, can you?’ I says: ‘Yes, if you walk very slowly.’ I was half a block or less than half a block from hopne, perhaps; but the sidewalk all the way from my house I knew perfectly. I had marked each place as I went down town, remembering it, thinking perhaps I might avoid it coming back.”

Upon cross-examination she testified:

“ Q. You said you used a good deal of care in going along?
“A. Of course, I used care.
“Q. For the reason you didn’t want to fall?
“A. I didn’t want to fall.
“Q. I suppose you used an extraordinary care in going along?
“A. I did.
“Q. You knew you had todo this in going over this walk ?
“A. Of course, I knew it.
“Q. And that was so with this walk in front of the vacant lot ?
“A. It was.
“Q. You had to be careful of the whole walk in front of that vacant lot ?
“A. Looking all the time, to avoid the worse places, and going on to the places which I knew would hold me up.
“ Q. You were afraid of the whole walk in front of that vacant lot ?
“A. I was of the whole walk from my'house to Woodward avenue, and that included 80 feet. * * *
“Q. Did you use care going along there at night ?
“A. Extra care, walking slowly, certainly, very seldom in the evening. I didn’t go out there in the evening more than four times in the year. I had no occasion to go out in the evening.
“ Q. At night you had to use extra care ?
‘A. I did use extra care, because I thought it was not very safe.
“Q. Because you thought it was dangerous ?
‘A. I knew it was dangerous. I didn’t think it was. I knew it.
CiQ. And at night you had to use extra care ?
“A. Yes, sir; you had.
“Q. You didn’t want to trip on any loose boards or fall in any hole ?
“A. I didn’t; I didn’t want to fall in any holes.
“ Q. On account of the knowledge you had of the walk, you used this extra care ?
“A. Yes, sir.”

The cross-examination was very long, and she repeated over and over again that she knew the walk was defective, that she had that fact in mind, and for that reason walked slowly, using great care.

There was testimony of witnesses that at the time of the accident they used the walk, and that the neighbors used it instead of walking on the grass or in the street. There was also testimony to the effect that before the plaintiff was hurt the building of a house was commenced on the lots before which this sidewalk was located, and that earth from the excavation was thrown clear to the walk, and that outside of the walk there were bricks piled, and that the limbs of the trees between the walk and the curb hung very low.

We think an examination of the cases referred to by the learned trial judge will show they are easily distinguishable from the case at bar. The case before us is within the line of cases of which Germaine v. City of Muskegon, 105 Mich. 213, is a type, in which case Justice Grant, among other statements, speaking for the court, said:

“ It was not error to instruct the jury, under the facts of this case, that the plaintiff had a right to travel on the sidewalk, and the mere fact that he did so travel, even with the knowledge that there was a hole in the walk, was of itself no evidence of negligence on his part, unless the place was so dangerous that a prudent man would not have traveled on the walk. Sidewalks are intended for the use of pedestrians, and they are entitled to walk upon them, and are entitled to do so even if they have knowledge of a defect like the one in question.”

See, also, Lowell v. Township of Watertown, 58 Mich. 568; Schwingschlegl v. City of Monroe, 113 Mich. 683; Vergin v. City of Saginaw, 125 Mich. 499; Belyea v. City of Port Huron, 136 Mich. 504; Oesterreich v. City of Detroit, 137 Mich. 415; Barnes v. West Bay City, 138 Mich. 93; Vander Velde v. Village of Le Roy, 140 Mich. 359; Lewis v. City of Marshall, 146 Mich. 389.

We do not think it can be said as a matter of law that plaintiff was guilty of such negligence as to- preclude her recovery. The case should have been submitted to the jury under proper instructions.

Judgment should be reversed.

Blair, C. J., and Montgomery and Brooke, JJ., concurred with Moore, J.

Grant, J.

I cannot concur in the opinion of my Brother Moore. I think this case falls directly within Hodge v. City of St. Louis, 146 Mich. 173, and Irion v. City of Saginaw, 120 Mich. 295. The facts in this case are so nearly parallel to the facts in those cases that I am unable to distinguish them. The same principle, also, is contained in Grandorf v. Railway Co., 113 Mich. 496; Black y. City of Manistee, 107 Mich. 60; Howey v. Fisher, 122 Mich. 43. The condition of this sidewalk was well known to the plaintiff. She lived nearby and passed over it frequently. She usually passed in the daytime. She testified that it was dark on the evening in question, the accident happening between 6 and half past 6 on October 15th. Her companion testified that the light was sufficient to see the sidewalk. She testified that she knew the danger in walking, as she did, beside her companion. She knew that stepping on the outer end of the plank was liable to raise the other end. She had the situation fully in mind. Her attention was distracted by nothing. She testified:

“ The only safe place was to walk right on the center, so that neither end would fly up. If you went on the other edge there the boards would go down and fly up and be more dangerous. I knew it was dangerous. I didn’t think it was. I knew it. The boards would shake and give somewhat, so I always walked right in the middle of the walk if I could. I always took the chance in walking in the middle of the walk, hoping to get over it safely.”

With this knowledge it was clearly her duty not to walk in this dangerous manner. She could have and should have walked in the center behind or in front of her companion. Besides, she could have stepped off the walk four or five feet across the space between the walk and the curb onto the paved street and walked around this dangerous place, or she could have crossed the street to the sidewalk on the other side. Her companion, who lived on the same street, testified that he seldom walked on the south side of the street, but usually on the north side. She was 61 years of age, very large, and knew that she should take extraordinary care in avoiding so dangerous a place. While it is true that the existence of such a dangerous sidewalk is discreditable to the city, its notoriously bad condition furnishes all the more reason for pedestrians to avoid it. One who deliberately walks in an unsafe place, when with but little inconvenience he can walk in a safe place, must abide by the consequences of his own negligent act.

I think the court correctly directed a verdict for the defendant.

Ostrander, Hooker, and McAlvay, JJ., concurred with Grant, J.


author: Montgomery, J.

text:
      In re KREINER. said city of Detroit, it shall be the duty of every court, police justice, justice of the peace or other magistrate by ■whom any person, for any crime or misdemeanor not punishable by imprisonment in the State prison, may be sentenced for any term not less than sixty days, to sentence such person to the Detroit house of correction, there to be received, kept and employed in the manner prescribed by law, and the rules and discipline of the said house of correction.”

      Criminal Law — Intoxicating Liquors — Statutes — Construction.
    Section 5385, 2 Comp. Laws, defining the punishment for illegally engaging in the sale of intoxicating liquors, construed in connection with section 2163, 1 Comp. Laws, authorizes a sentence to the Detroit house of correction for such violation; since all consistent statutes which can stand together, though enacted at different dates, relating to the same subject, are treated prospectively, and construed as in pari materia.
    Certiorari to Wayne; Donovan, J.
    Submitted November 17, 1908.
    (Docket No. 139.)
    Decided April 24, 1909.
    Habeas corpus proceedings by Charles H. Kreiner to obtain his discharge from the Detroit house of correction. There was an order discharging the petitioner, and the people bring certiorari.
    Reversed, but the time of sentence having elapsed, no order was entered.

      Geer, Williams & Halpin, for petitioner.

      B. F. Reed, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was duly convicted, in the circuit court for the county of Lapeer, of the offense of selling liquor without payment of tax, and sentenced to imprisonment in the Detroit house of correction for the period of 65 days, and a further period, if his fine and costs were not paid, until the same should be paid, not exceeding six months from and including the date of his sentence. He sued out a writ of habeas corpus, and was discharged by the circuit judge on the ground that there was no authority to imprison for this offense in the Detroit house of correction, and the decision of the circuit judge is brought here for review on certiorari.

Section 5385, 2 Comp. Laws, being section 7 of the act for taxation and regulation of the liquor traffic, provides, in substance, that if any person shall engage in any business requiring the payment of the tax provided by the act, without having paid such tax, or shall in any manner violate any of the provisions of the act, such person shall'be deemed guilty of a misdemeanor, and upon conviction thereof, if there be any specific penalty provided by the act, shall be punished by fine of not more than $200 and costs of prosecution, “or by imprisonment in the county jail not less than ten days nor more than ninety days, or both such fine and imprisonment in the discretion of the court.” And provides further:

“'And in case such fine and costs shall not have been paid at the time such imprisonment expires, the person serving out such sentence shall be further detained in jail until such fine and costs shall have been fully paid: Provided, That in no case shall the whole term of' imprisonment exceed six months.”

By section 2163, 1 Oomp. Laws, being section 9 of the act providing for the Detroit house of correction, and following upon section 8, which provides for an agreement between the board of supervisors of any county and the city of Detroit for the detention of prisoners at the charge of the county, it is provided:

“In every county having such agreement with the

It is the general rule that all consistent statutes which can stand together, though enacted at different dates, relating to the same subject, are treated prospectively, and construed together as though they constituted one.

“Statutes which are not inconsistent with one another, and which relate to the same subject-matter, are in pari materia, and should be construed together; and effect should be given to them all, although they contain no reference to one another, and were passed at different times.” See 2 Lewis’ Sutherland on Statutory Construction (2d Ed.), § 443.

See, also, Com. v. Griffin, 105 Mass. 185; State v. Towner, 26 Mont. 339. We think these two statutes should be construed as in pari materia. It is to be noted of section 2163 that no attempt is therein made to define the offenses for which an offender may be committed to the Detroit house of correction, the only requirement being that such crime or misdemeanor shall not be punishable by imprisonment in the State prison, and that the sentence shall not be less than 60 days; nor does this section of the statute relate to all counties in the State. It only relates to such counties as shall have by contract made provision for substituting the Detroit house of correction for its own place of detention, namely, the county jail. It is left to other provisions of the statute to fix the term of imprisonment for the offender in each individual case. The two statutes can be harmonized. Section 2163 makes the Detroit house of correction as to offenses therein defined in effect the common jail of the county with which the city of Detroit has entered into contract relations.

The decision of the court below rested upon People v. Gobles, 67 Mich. 475. That case, however, dealt with a section of the statute which provided:

“From and after the time when the State house of correction [at Ionia] shall have been opened for the reception of all offenders, all courts having criminal jurisdiction in Michigan may sentence all male persons duly convicted of a felony before them, and who shall be at the time of sentence of the full age of sixteen years, and not more than twenty-five years of age; and also all male persons duly convicted before them of a misdemeanor when the imprisonment shall not be less than ninety days; * * * to the said State house of correction.” 2 How. Stat. § 9755.

The question arose as to whether one convicted of a violation of the liquor law might under this statute be sentenced to the State house of correction. The court discussed the impropriety of incarcerating those who were convicted of mere misdemeanors with confirmed criminals, but proceeded finally upon the ground that, as the statute fixing the penalty for the offense under consideration was later in point of time than that which provided imprisonment in the house of correction at Ionia, the legislature could not have intended to extend the provisions of the earlier statute to that of the later. It is said:

“The legislature did not intend that other or more odious punishment should be imposed than that specified in the act. It is a greater and more odious punishment to be imprisoned with convicted felons in a State house of correction than in a county jail. Had the legislature intended that an infraction of the law might, be punished by sentence to the State house of correction, they should, and probably would, have said so.”

. The same reasoning, in effect, is employed in Re Silverthorn, 73 Mich. 644. These cases are distinguishable from the present. In these cases the court was dealing with a general provision of statute relating to sentence by all magistrates. The right to sentence did not depend upon contract, and the view of the court appears to have been that by the subsequent fixing of the penalty the legislature should be understood to have intended to exclude the provisions of section 9755. It is to be noted that the reason which influenced the court in reaching this conclusion, viz., that the punishment under section 9755 would be more odious than that provided by the act defining the offense, is not applicable to the present case. But more than this, the fact that section 2163 is prospective in its operation, and in terms relates to all offenses not punishable by imprisonment in the State prison, and could be made operative at any time by contract between the county and the city of Detroit, of necessity imports that such contract shall have relation to the cases in which, at the time the contract is made, a person may be sentenced for any crime or misdemeanor not punishable by imprisonment in the State prison.

Since this case was submitted, we have asked briefs of counsel upon the question of whether an order discharging a party under sentence from imprisonment is subject to review by this court. Briefs have been filed, from which it appears to be conceded that, as the term of imprisonment has expired, no effective order for discharge could be now entered, and we, therefore, refrain from discussing the question of the power of the court in a case where such an order might be effective.

No order will be now entered in the case.

Blair, C. J., and Grant, Ostrander, and Brooke, JJ., concurred.


text:
    GIBNEY v. ALLEN.

    1. Trusts — Testamentary Trustee — Appointment.
    When a trustee is named in a will, his appointment as such by the probate court, under Act No. 253, Pub. Acts 1899, is simply declaratory and affirmatory of said will; and the court, except in case of his failure to qualify or other good cause shown, is not authorized to appoint any other person as such.
    2. Same — Failure to File Bond — Effect — Executors and Administrators.
    The failure of a trustee under a will to file a bond, as required by an order of the probate court, amounts in law to a disclaimer of such appointment.
    3. Same — Disposition of Trust Property — Bona Fides as Defense — When Available.
    Good faith is a defense only where a trustee, acting within the limits of his powers with proper prudence and diligence, commits mere mistakes or errors of judgment, but is not a defense where he disregards the limits placed upon his power by law or by the instrument creating the trust; and where, on a bill by the beneflciai'ies under the trust to set aside a deed and mortgage and for an accounting by the trustee, it appeared that the instruments were executed by the trustee without orders from the probate court, his good faith in the transactions, if established, would not be a 'defense.
    4. Same — Acts of Trustee — Repudiation—Infants—Estoppel.
    Where, on such bill, it appeared .that complainants were a mother, who was a deaf mute, and two infant children; that the mother, under the evidence, was incompetent to understand and comprehend business transactions; and that she relied implicitly upon the judgment of defendant trustee, held, that under the law he was bound to the strictest accountability to his wards, that the mother was not estopped by her conduct to question the validity of the transactions, and that she, even if a perfectly normal person, could not by her conduct deprive complainant infants of their rights, or relieve the trustee of accountability to them.
    5. Same — Wills — Appointment of Executor as Trustee — Effect.
    The appointment by a testator, in a separate clause of the will, of the executor therein named to be a trustee of the estate for certain purposes, does not confer upon the trustee the right to do such acts as are conferred upon him as executor; since the duties of the two offices are distinct, the duties of the executor terminating when those of the trustee begin.
    6. Same — Purchase from Trustee — Bona Fides.
    Purchasers of trust property from -the trustee are put upon inquiry as to the validity of such transactions and cannot rely upon the claim of bona iides.
    Appeal from Genesee; Wiest, J., presiding.
    Submitted October 12, 1908.
    (Docket No. 41.)
    Decided April 24, 1909.
    Bill by Effie A. Gibney, and Alice Gibney and Lyman Gibney,- infants, by next friend, against Thomas J. Allen, trustee, the Union Trust & Savings Bank, Robert W. Selleck, and Lena Selleck to set aside a deed and mortgage and for an accounting. From a decree dismissing the bill except as to an accounting by defendant Allen, complainants appeal.
    Reversed, and decree entered for complainants.

      Homer J. McBride and John H. Farley, for complainants.

      Brennan & Cook, for defendant Union Trust & Savings Bank.

      William V. Smith, for defendants Selleck.

       Rehearing denied July 15, 1909.

   McAlvay, J.

The complainant Effie A. Gibney is a deaf mute. The other complainants are her infant children. In 1895, upon the death of her father, Lyman J. Hitchcock, she took, under his will, the use during her-life of 135 acres of land in sections 31 and 32 of Genesee township, Genesee county, with remainder over to her mother. This complainant was an only child. Other estate was left by this will to her mother. Her mother died in 1900, devising all of her estate to defendant Thomas J. Allen in trust, to manage said property and to pay over all income therefrom semi-annually to the daughter during her lifetime, and, upon the daughter’s death, the estate was devised to her children, share and share alike, with a provision that Allen should continue during the minority of the children or any of them to care for said estate, and apply the income to their support and education. Allen was also named as executor of the will. He was duly appointed executor, administered the estate, and closed it in 1901. On July 19, 1901, he was appointed trustee under the will by order of the probate court, and it was further ordered that, upon giving a good and sufficient bond in the sum of 112,000, letters of trusteeship should issue to him. He never gave the required bond. On July 26th he filed with the probate register a bond in the sum of $5,000. It was never approved by the court. The probate register fixed up letters of trusteeship on a signed testamentary blank by striking out some words, and delivered them to Allen. Under this order of assignment to the trustee of the residue of the estate of Matilda P. Hitchcock, Mr. Allen received cash $4,574.81; other personal property, $1,700; house and lot No. 409 Second street East, appraised at $1,500; 48.80 acres of land, section 29, township 8 N., of range 7 E., appraised at $2,500; 78 acres of land in section 32, same town, appraised at $3,000; also 55 acres of land in section 21, same town, appraised at $2,000; also 18£ acres, in section 11, same town, appraised at $200, making a total of real and personal estate of $15,474.81 received by Mr. Allen. To this should be added the sum of $500 which was collected by him from notes and accounts considered worthless and not inventoried. Mrs. Gibney and her family, which consisted of herself, her husband, also a deaf mute, and the two minor children, at the time defendant Allen took possession of the trust estate, lived on the farm of 135 acres of which she had the use under her father’s will.

This defendant at once proceeded to manage and dispose of the trust estate as follows: He rebuilt the house on lot at No. 409 Second street at a cost of $3,554.23. He sold all the farm lands, except the 78 acres on section 32. He bought 42 acres immediately adjoining the 78 acres. He bought a lot in Oak Park subdivision on Harriet street, in Flint, and built a house on it costing $2,000. The trust estate did not include any right or interest in Mrs. Gibney’s estate in 135 acres she received under her father’s will. In October, 1902, she gave defendant Allen a power of attorney to take charge of this farm, to receive the proceeds therefrom, make necessary improvements from such proceeds, pay outstanding debts, and turn any balance over to her. He proceeded to make improvements on this farm consisting of new barns, fences, and drains, amounting to $4,500, from moneys belonging to the trust estate. During these transactions defendant Allen borrowed from defendant Union Trust & Savings Bank money in the following amounts: September 12, 1905, $1,000; November 9, 1905, $650; April 7, 1906, $1,800; July 23, 1906, $750; February 11,1907, $2,000, to secure the payment of which he gave his notes and mortgages as trustee upon the trust property. On April 22, 1907, by land contract, he sold what is known as the “Second street property,” in the city of Flint, belonging to the trust, to defendant Robert W. Selleck for a consideration of $4,800, payable in monthly payments of $100, without interest on deferred payments. During this time, when defendant Allen was in this manner engaged in these transactions with the property of this trust estate, the record shows that he made and filed in the probate court of Genesee county three accounts, as follows: March 20, 1903; January 27, 1905; and August 1, 1905. It will not be necessary to state these accounts in this opinion. Reference, if necessary, will be made to certain portions of them later. These accounts were never allowed by the probate court. On May 35, 1907, defendant Allen, as trustee, sold and conveyed to defendant Union Trust & Savings Bank the Second street property, subject to the Selleck contract, and the Harriet street property, in the city of Flint, in consideration of $6,730.86. The Harriet street property in the city of Flint was turned in at $3,500 and the Second street property at $4,330.86. The mortgage loans and interest deducted from the whole consideration left $436.39, for which the bank gave a check to defendant Allen. All of these improvements, sales, loans, mortgages, deeds, and land contracts were taken out of the body of the trust estate without any petition to or order, license, or decree by the probate court of Genesee county or any other court.

On or before June 1,1907, complainant Effie A. Gibney, having learned of the things defendant Allen had done in his dealings with this trust property sufficient to satisfy her that they were improper, filed a petition in said probate court for an accounting and his removal. While this proceeding was pending, this suit was instituted. The bill of complaint in this case was filed July 13, 1907, setting forth the foregoing acts of defendant Allen, claiming the same to have been done without authority, alleging that complainants are entitled to an accounting with said defendant Allen for all property received by him, and also making the bank and Robert W. Selleck and Lena Selleck, his wife, parties defendant, and praying that all be required to account for all rents, profits, and income since said conveyances and contract, that the deed of May 35, 1907, be set aside and declared void, that the mortgage of February 11, 1907, for $3,000; given by defendant Allen to the bank, be set aside, and also the land contract given by him to Robert W. Selleck be set aside and declared void, and also for general relief. The defendants have filed separate answers practically admitting all of the transactions as herein stated; defendant Allen claiming he acted under lawful authority as trustee, and the other defendants admitting that they knew the authority under which he was acting, and that he acted within such authority. Defendant bank further claims that the conveyances as to it should not be set aside because of the fact that money it furnished was used for the benefit of the estate. A hearing was had before the circuit court for Genesee county, and a decree was entered denying the relief prayed, asking for the cancellation of the deeds, mortgages, and land contract made by defendant Allen, and further decreed that the bill of complaint, except as to an accounting with defendant Allen, be dismissed. From this decree complainants have appealed, and ask that the decree of the lower court be reversed and they be granted the relief prayed.

In considering this matter, it will be necessary to determine the status of defendant Allen relative to the estate of which he has claimed to be trustee. The source of his appointment originally was the will of Matilda P. Hitchcock. Under this will he was appointed executor. As such he administered the estate, rendered his final account, showing a residue in his hands, and, on his petition as such executor for the assignment of said residue to himself as trustee, it was ordered by the probate court that said residue be assigned to said Thomas J. Allen in trust for Effie A. Gibney during her lifetime and her children surviving her, naming them, and the issue of any deceased child, he having been on petition appointed trustee by order of said court, and it was further ordered that, ‘ upon his giving a good and sufficient bond in the sum of $12,000, letters of trusteeship do issue to him.”

By the second paragraph of the will of Matilda P. Hitchcock her estate was devised to defendant Allen as trustee, for certain specific purposes:

“(a) To manage said property, and to pay over the interest, rents, issues and profits thereof semi-annually to my daughter, Effie A. Gibney, during her natural life. (6) In case my said daughter should die leaving minor children, then it is my will that the trust above mentioned shall continue so far as it may relate to the share of such minor children, and that during the minority of such minor children, the said Thomas J. Allen expend the rents, issues and profits and interest of the shares of said property belonging to such minor children, for their education, care and maintenance, or such part thereof as in his judgment may be proper.” .

The will, upon the death of the daughter, devised and bequeathed the estate to the daughter’s children, share and share alike, subject to the provisions of subdivision “6” above quoted. A trustee having been appointed by the testatrix, the probate court, except in case of failure to qualify or other good cause, would have no authority to name any other person as such trustee, and its action in that regard would be declaratory and affirmatory. That the probate court so regarded it, is apparent from the petition and order made; both being founded upon the appointment made by the will of the testatrix. These proceedings relative to the testamentary trustee (except, perhaps, the appointment) were required by an act of the legislature entitled:

“An act to establish and confirm the jurisdiction of probate courts over testamentary trusts and trustees, and to provide for the administration and control of such trusts in said courts.” Act No. 253, Pub. Acts 1899.

The provisions of this statute have a bearing upon the status of defendant Allen in relation to this trust property. Section 3 provides:

“ Every testamentary trustee, before he enters upon his duties as trustee, shall, except when it is otherwise specially provided by law, give bond, with sufficient sureties, in such sum as the probate court, for the county in which the will is proved or allowed may order, payable to the judge of said court and his successors, with conditions substantially as follows,” etc.

Section 4:

“When such bond shall be approved by the judge of probate and filed in his office, letters of trusteeship shall be granted by the judge of probate to the trustee as evidence of his authority to act as such.”

Section 10:

“Every trustee who neglects to give a bond in accordance with the preceding sections, within thirty days after the probate court shall fix the penal sum of said bond, shall be considered to have declined or resigned the trust.”

From the records of the proceedings had in probate court, which for the purposes of this case are the only competent evidence, we find that defendant Allen did not comply with the provisions of this statute. It appears from the record that by petition he as executor asked that the residue of Mrs. Hitchcock’s estate be assigned to himself as trustee; that the petition signed by Mrs. Gibney for his appointment as trustee was in his handwriting; that he knew the order was made appointing him; and that he claimed that he received the trust estate by virtue of said appointment. He was county clerk at this time and an attorney. In the absence of actual knowledge, which it appears he had, he would be charged with knowledge of the orders made by the probate court in these proceedings to which he was an active party. Not having complied with the law in furnishing the bond in the penal sum fixed by the court within 30 days thereafter, he must be considered to have declined or resigned the trust. The failure to file a bond as required amounts to a disclaimer. 28 Am. & Eng. Enc. Law (2d Ed.), p. 973, citing Daggett v. White, 128 Mass. 398; Williams v. Cushing, 34 Me. 370; Deering v. Adams, 37 Me. 265; Sawyer's Appeal, 16 N. H. 459. He therefore never became in law the trustee entitled to administer said trust estate. 1 Perry on Trusts (5th Ed.), § 262. The fact that he proceeded to act as a trustee, claiming to be lawfully authorized to do so, did not change his legal status, and make him a. trustee in law. As executor, defendant Allen had rendered his final account, which was allowed, and he had been credited with the amount as executor which was to be charged to him as trustee, and was then discharged as executor. Therefore, whatever he did with the affairs of this estate after such discharge must have been done in some capacity other' than as executor, and the claim cannot be made that acts performed by him claiming to be trustee were lawful because- the same class of acts were authorized by the will to be performed by him as executor.

It is claimed that defendant Allen acted in good faith in taking upon himself the office of a trustee, and doing the things he is charged with, and acted under color of right. We do not think that the facts in the case warrant this assumption. His knowledge of court proceedings, and of the law and the orders made by the probate court, imposes upon him the necossity in this case, where the relations are those of a trustee to the cestuis que trustent, to satisfy the court by proof cogent and convincing of the fact that he acted in good faith. There is strong evidence to the contrary in the fact that he ignored the order of the court relative to the bond required, and filed a bond of less than half the penal sum which was never approved; also, by his conduct and management of the trust estate in absolute disregard of all the requirements of law. He mortgaged the real estate held in trust without order or license from the probate court. He sold lands and personal property (bank stock) held in trust without authority or license. He bought lands without authority. He borrowed money in large amounts to build houses on the lands of the estate. He borrowed money in large amounts to build a house, barns, fences, and so forth, upon land not belonging to the trust estate. All such acts and doings are admitted by these defendants, who each had knowledge of the authority on which he claimed to rely with respect to the transactions with which each was connected. As bearing upon his good faith, his testimony relative to the sale to defendant bank on May 25, 1907, is significant. He testifies:

“ The way I came to give the deed was this. When I reached Flint on Saturday noon, May 25th last, I heard for the first time that there was something the matter with the Hitchcock estate, so, as soon as I heard there was some question about the transaction with the Union Trust, I went down to the bank, I presume, inside of half an hour from the time I reached town. I found Mr. Davison, and asked him what was the matter, and about his words in reply, {Let’s go up.’ I found Mr. Davison there, and he and I went up to Mr. Cook’s office without any conversation whatever. At Mr. Cook’s office the matter of the loans on the mortgage was discussed. I became satisfied from the discussion that there might be a question of the legality of the mortgages possibly. I became satisfied of that. When I became satisfied that there might be possibly a question, I asked Mr. Cook and Mr. Davison what their proposition was — what they wished to do or to have done. After some conversation in regard to the matter, they asked me if I wished to sell, or would sell, the Second street house and the Harriet street house. * * * The outcome of the conversation was that we decided they would buy the Second street house for the present worth of the contract with Mr. Sellick, and buy the Harriet street house for $2,500, and, as a result of the agreement, this deed was drawn up and executed by me.”

This deed was made to satisfy mortgages which were correctly held by the circuit court to have been given to the bank “wholly without authority.” And, further, none of his accounts in this record made' by him to the probate court show these loans and mortgages to defendant bank, and in one of these accounts he credited himself with 135 acres of land not belonging to the trust estate.

The statute above referred to requires a license from the court to authorize the sale of lands or personal estate, also to authorize the mortgaging or pledging of real or personal estate, to build, alter, complete or repair buildings on such estate, or for any other lawful purpose. For the money used and borrowed to build upon and improve outside property no excuse is advanced except good faith. The question of good or bad faith on the part of defendant Allen was made the crucial question in the case in the court below, and complainants were denied relief because it was found by the court that defendant Allen acted in good faith. We disagree with that conclusion of fact. The determination of this case, however, does not depend on the good faith of defendant Allen. Good faith is a defense only where a trustee, acting within the limits of his powers with proper prudence and diligence, commits mere mistakes or errors of judgment, but is not a defense where a trustee disregards the limits placed upon his power by law or by the trust instrument. 28 Am. & Eng. Enc. Law (2d Ed.), p. 1063, and cases cited. That this defendant disregarded the limitations of the powers imposed by law and the trust instrument is not disputed. The cestuis que trustent in this case were complainant Mrs. Gibney and her infant children, at that time of tender years. To all of them defendant Allen, claiming to be trustee of this estate, owed the highest duty to safeguard their interests. These children could not consent to or acquiesce in any act of Allen which was irregular, harmful, or unlawful, and the court cannot do it for them. They are the especial wards of courts in chancery, protected in all respects, and those acting as trustees for them are held to the strictest accountability. This is fundamental. The mother could communicate only by signs. She testified through an interpreter, and it is apparent that she is not a person of business ability, and also that she did not understand the transactions of Allen with reference to the body of the estate sufficiently to know whether they were lawful and authorized, and it does not appear that she was informed by him of the exact situation and his rights and' duties in the premises. There are several material facts that tend strongly to show her incompetency. Her mother provided a trustee for her income. Mrs. Gibney, because unable to manage the farm of which her father left her the income, gave defendant Allen a power of attorney to act for her. Allen, in explaining why he put her 135 acres into his last account as trustee to show 250 acres in his hands, testified:

“The court is in charge of all people who do not have charge of their own property. I wished them to have an opportunity to see what I did for Mrs. Gibney. The probate court has general charge of all dependents, I believe.”

These facts, together with a reading of her testimony, satisfy us that she did not appreciate and understand these transactions relative to the body of the trust estate, and it is apparent that she relied upon Mr. Allen, and did not question what he did or proposed to do. He was an attorney and her only adviser as far as the record shows. Her conduct has not estopped her from questioning what has been done with the trust estate, as far as her interests therein are concerned, on account of her disability and her want of knowledge of all the facts and circumstances surrounding the transactions, and there is no evidence that she was informed of her legal rights or knew that Allen’s conduct was illegal. White v. Sherman, 168 Ill. 605. There is no authority which holds that any conduct of complainant Mrs. Gibney, even if a perfectly normal person, could operate to deprive these infants of their interests in this estate, or relieve defendant Allen from strict accountability to them. . It is not contended that these infant complainants could consent to any of the acts of defendant Allen charged with reference to their interest in this trust estate. They were non sui juris, and have such an interest in this estate as entitles them to the protection of a court of equity. Tappan’s Ex’r v. Eieamio, 16 N. J. Eq. 89. The duties which defendant Allen owed to complainants and to this estate which he had assumed to administer as a trustee, and the strictness with which he should be held to account for his administration, are too well known to require restatement.

It has been insisted that by the will which appointed him executor he was authorized to make these transfers, and the will in the instruments making the transfers is referred to as giving such authority. The principal parts of that will have already been quoted. The last paragraph reads:

“Fourth: I hereby nominate and appoint said Thomas J. Allen executor of this my last will and testament with full power to sell and convey real estate when in his judgment it becomes necessary or proper. In witness whereof I,” etc.

This clause is absolutely separate and distinct from the paragraph containing his appointment as trustee, in which the purposes of the trust are specifically- set forth, and which contains no power of sale. Defendants admit that this is the material question in the case. That such authority was given to him as executor is not disputed. It is claimed by defendants that this power must be construed as extending to him as trustee, that the testator, having confidence in the executor, also named him as trustee, and it is therefore evident that this power was intended to follow him in that capacity. An eminent text-writer has said:

“If a testator in his will appoint his executor to be a trustee, it is as if different persons had been appointed to each office.” 1 Perry on Trusts (5th Ed.), § 281.

Therefore, in considering this question, we should bear in mind continually the distinction between the two offices one individual is appointed to fill. Testamentary trustees in this State are now under the jurisdiction and control of probate courts, and the separation of the office of executor from that of such trustee is declared by statute. In attempting to ascertain the intention of the testatrix relative to the power granted to the trustee, we must presume that the will was made with reference to existing laws, as by its terms it appears that it was, thereby creating a trustee within the definition of the statutory “testamentary trustee.” Act No. 253, Pub. Acts 1899, makes the provision above stated, as follows:

“Seo.43. The term 'testamentary trustee’ as used in this act includes every person, except an executor, an administrator with the will annexed, or a guardian, who is designated by a will or by any competent authority to execute a trust created by a will; and it includes such an executor or administrator where he is acting' in the execution of a trust created by the will which is separable from his functions as executor or administrator.”

The duties of the two offices are distinct. The first terminates when the second begins. Unless from the will itself an intention on the part of the testatrix can be found that sales of real estate were to be made after the administration was closed, we must hold that the power to sell could only be exercised by the executor. There is no indication in the second paragraph of the will, which creates the trust, that such was her intention. The words are:

“To manage said property, and to pay over the interest, rents, issues and profits thereof, semi-annually, to my daughter, during her natural life.”

One case has been found where the language of the will was practically the same as that used in the will in this case, and the same persons were made executors and trustees, with power to the executors to sell the real estate. In construing this language the court said:

“The trust herein to ‘manage’ the property implies, by force of the term used, that the trustees are to retain it under their control, and is inconsistent with the idea that they have authority to sell or otherwise dispose of it. ‘ To manage an estate is, in common parlance, as well as legal acceptation, no authority to part with the entire interest.’ Roosevelt v. Heirs of Fulton, 7 Cow. (N. Y.) 81. * * *
“Although tne persons named in the will as its executors are the same as those to whom the testator directed the property to be distributed in trust for his children, yet the power of sale conferred upon the executors was not given by him to them as trustees, but terminated with their discharge as executors.” Goad v. Montgomery, 119 Cal. 552, affirmed and followed in Estate of Trescony, 119 Cal. 568.

We have been able to find no case, and have been referred to none, which does not hold that in the absence of an intention to that effect, expressly or by fair implication contained in the instrument creating a trust, a power to sell given to an executor cannot be exercised by the same person named as trustee. The same rule is also laid down in cases where the disputes related to the exercise of powers to sell real estate granted by will to executors and trustees, and the question raised was whether others than the persons named might exercise such powers. 2 Perry on Trusts (5th Ed.), § 493 et seq. Defendants have cited •several Michigan cases as supporting their contention that the power to sell given the executor must be construed as extending to him as trustee. Of these cases those which have a bearing upon the question under discussion are none of them cases where an executor has also been designated as trustee, but all are where an executor is clothed with powers not administrative, and was to act in respect to the estate not as executor, but as the donee of a power in trust, and also where the instruments creating the power have provided for a sale of the estate for carrying out the purposes named therein. Such executors belong to and are of the class exempted from the provisions of Act No. 253, Pub. Acts 1899, by the terms of section 43, quoted above. Calkins v. Smith, 41 Mich. 409 ; Tracy v. Murray, 49 Mich. 35; Green v. Russell, 103 Mich. 638. These cases are not opposed to the rule we have discussed, but are founded upon it, and turn upon the authority to sell clearly expressed in the trust instrument. Our conclusion is that a trustee under this will was not authorized to sell the real estate.

Without reference to the question of being in law a trustee or whether a power of sale was given the trustee, the majority of the acts with which defendant Allen is charged were done without any claim or color of right. The circuit court so held in his opinion. He had no color of right to borrow money without authority of court, nor to give mortgages, or erect large improvements on lands not in the trust with borrowed and trust funds, and, even if he had authority to sell, he could make only such sales as in the due administration of this estate were necessary or proper. Defendants bank and Selleck are not before the court as bona fide purchasers for value without notice. In the transaction with defendant bank it was a matter of loaning money to Allen on notes, and taking mortgages to secure the notes. The consideration of $6,730.88 for the deed made to it May 25,1907, of the property in Mint, was practically the amount of these notes and mortgages. Defendant bank dealt with Allen as trustee of this estate. Its cashier, when the first loan was made, questioned in regardto the right of the trustee to mortgage the trustproperty. He acted for the bank in making all the loans, the mortgages, and the final deed. He always knew the purpose for which money was to be used, and knew that the money went into buildings and improvements, and the real estate upon which the money was expended. He took no mortgage upon the 135 acres which did not belong to the estate, although he knew that $4,500 of the money loaned went into buildings and improvements on that description of land. This large sum is included in the mortgages given on the trust property, and it is sought to enforce it against this trust estate, for the reason that it improved other estate in which these infant complainants are also remaindermen and their mother a life tenant. The statement of such a proposition is its sufficient refutation. The fact that the bank knew that it was dealing' with a trustee in relation to trust property was sufficient to put it upon inquiry. Geyser-Marion Gold Mining Co. v. Stark, 106 Fed. 561, 45 C. C. A. 467 (53 L. R. A. 684); Smith v. Burgess, 133 Mass. 511; Jeffray v. Towar, 63 N. J. Eq. 530; Cohnfield v. Tanenbaum, 176 N. Y. 126-130. Such inquiry would have disclosed that' defendant Allen had no authority to borrow money for any purpose or to mortgage or sell the real estate. This, transfer was not a bona fide sale. It was an attempt, when it was discovered that the mortgages were worthless, to save the probable loss by a deed, made without any deliberation, or further and adequate consideration. These mortgages were void, the money borrowed created no claim or charge against the estate. The power cannot be enlarged by construction. Tuttle v. First Nat. Bank of Greenfield, 187 Mass. 533; Bloomer v. Waldron, 3 Hill (N. Y.), 364; Parkhurst v. Trumbull, 130 Mich. 408. See, also, section 17, Act No. 253, Pub. Acts 1899. Much of what has been said in regard to the rights of the bank applies to defendant Selleck. He made the first payment, and has since occupied and had full use of property valued by him at $4,800 without further payment. The terms of the sale being $ 100 down, the balance in like payments each month without any interest for four years are such as to challenge investigation in the interest of complainants. There is no showing or claim that the remaindermen were informed of this transaction, or could consent to it.

We conclude that complainants are entitled to the relief prayed, and hold that all of the sales, contracts, and mortgages made by defendant Allen of and in relation to this trust property were void and should be set aside; that the moneys received by defendant Allen from the bank are no charge against the trust estate, the farm of 135 acres, or the cestuis que trustent; that whatever claim defendants have or relief they are entitled to must be against defendant Allen personally; that complainants are entitled to an accounting with defendants bank and Selleck and wife for all rents and income from the property taken by them under their claimed conveyances, and that complainant Effie A. Gibney, if she so elects, is entitled to an accounting with defendant Allen under the general prayer in the bill of complaint, and a decree will be entered according to this opinion.

The cause will be remanded for further proceedings. Costs of both courts are awarded complainants.

Blair, C. J., and Grant, Hooker, and Moore, JJ. concurred.