author: McAlvay, J. Ostrander, C. J. Brooke, J.

text:
    GRAHAM v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Master and Servant — Railroads—Negligence—Defective Roadbed.
    Whether defendant, a railroad company, was negligent in failing to cause a train order to be delivered notifying the crew of a construction and repair train of a washout on its right of way, on the theory that the train dispatcher sent an ordinary message to the operator at Corunna, without requiring the customary evidence of its delivery, as in case of a train order, and such was not a proper method of communicating the information, was rightly submitted to the jury.
    2. Same — Evidence—Expert Testimony.
    The opinion of a train dispatcher that the method adopted was a proper method was correctly excluded from the evidence. Brooke, J., dissenting.
    Error to Clinton; Searl, J.
    Submitted December 1, 1910.
    ( Docket No. 100.)
    Eesubmitted October 5, 1911.
    Decided December 29, 1911.
    Case by Eose E. Graham, administratrix of the estate of Justin E. Graham, deceased, against the Detroit, Grand Haven & Milwaukee Eailway Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harrison Geer, for appellant.

      Lyon & Moinet, for appellee.
   McAlvay, J.

This is the second time this case has been before this court. A judgment which was rendered upon the first trial was reversed and a new trial granted. The case is reported as Graham v. Railway Co., 151 Mich. 629 (115 N. W. 998, 25 L. R. A. [N. S.] 326). The statement of facts in that opinion requires no enlargement, and may be considered as the statement of facts for the purposes of the present presentation. In order to understand the facts properly, and to know what was determined in the case by this court, a careful reading of the entire opinion will be necessary before reading this opinion.

It will appear from that opinion that the breach of duty relied upon and charged by the plaintiff was the neglect to notify the conductor, engineer, and plaintiff’s intestate of the condition of the track caused by the washout, of which defendant had notice, and counsel for plaintiff insisted on that hearing that such “duly resting upon the defendant to notify either plaintiff’s intestate or the trainmen of the known condition of the road was a positive duty.” The case has been retried, and defendant has again brought it to this court for review upon writ of error. The record now presented, with but slight variations, is the same as that before the court on the former hearing.

On the former trial, the jury, in answer to special questions submitted by the court, at the request of plaintiff, found that the disputed message was not sent from Dur- and to Corunna, and that it was not delivered to the engineer or the conductor. The court also charged that the telegraph operator at Corunna was not a fellow-servant ■of plaintiff’s intestate. Defendant insisted that a verdict should have been instructed in its behalf because no negligence had been shown, and that the negligence, if any appeared, was the negligence of the telegraph operator at Corunna, a fellow-servant of plaintiff’s intestate. Two opinions were filed by the justices who heard the case. The court was unanimous in reversing the judgment and granting a new trial, also in holding that the undisputed ■evidence showed that the telegram was sent by the train dispatcher from Durand to Corunna, whereby he undertook to acquaint the trainmen of the known conditions of unsafety, and also upon the proposition that, because the telegraph operator and the trainmen were fellow-servants, the operator’s negligence could not be charged to defendant.

Whatever difference of opinion was entertained by the members of the court who sat in the case appears in the following excerpts:

Mr. Justice Ostrander, speaking for himself and two justices who concurred with him, said :

“Whether the message was sent, and whether it was delivered, are separate and distinct questions. Circumstances which justified the finding that the message was not delivered to the trainmen did not justify a finding that it was not sent by the train dispatcher. We have, therefore, after a careful examination of the record, reached the conclusion that the finding of the jury that the message in question was not sent is unsupported by evidence. This requires us to reverse the judgment, and to order a new trial, for the reason that the jury should have been instructed that, if they found that the train dispatcher at Durand made proper effort to acquaint the trainmen with known conditions of unsafety, defendant had performed its duty in the premises. There is considerable testimony tending to prove that less care is generally observed to insure the delivery of messages than is used to insure the delivery of train orders. Evidence of the delivery of train orders is secured at the central or directing office before trains are cleared. Such orders are, in effect, receipted for by the trainmen or by the conductor of the train. Defendant was bound to use a degree of care commensurate with the importance of the communication and the purpose for sending it, not only in transmitting the message, but in securing its delivery to the proper persons. But we are not prepared to hold that in the performance of that duty it had not the right to rely reasonably upon its servants, agents, and means of communication, or to use other means of communication if its own were defective. * *
* The duty of the master to minimize danger by giving notice of the' places where defects existed has been stated. If in performing this duty, by the use of means adequate to impart the knowledge to the proper persons in proper season, the purpose was defeated by negligence of the station agent, which due care on the part of the master would not have prevented or discovered, defendant is not responsible for the consequences. We intimated this principle in Moon v. Railroad Co., 143 Mich. 125, 135 (106 N. W. 715, 108 N. W. 78). It requires a high degree of care, but does not extend so far as to impose a positive and wholly nondelegable duty upon the master.”

The opinion written by Mr. Justice Carpenter, concurred in by Chief Justice Grant, is as follows:

“I agree with Justice Ostrander that, if ‘the train dispatcher at Durand made proper effort to acquaint the trainmen with the known conditions of unsafety, defendant had performed its duty in the premises.’ I agree with him that the undisputed testimony proves that said train dispatcher did undertake to acquaint the trainmen of such conditions of unsafety by telegraphing the conductor and engineer of said train at Corunna. I think by sending this telegram the train dispatcher adopted the obviously proper method of acquainting the trainmen with those conditions. It was a method, too, which would have been entirely sufficient had not the station agent (operator) at Corunna failed to perform his duty. The train dispatcher had a right to assume, and to act upon that assumption, that there would be no failure to perform that duty. Under these circumstances, I can perceive no sound reason for saying that something else should have been done, or that what was done should have been done in any different manner. I am of the opinion, therefore, — and here is where I go further than does my Brother Ostrander,— that we should say under the circumstances disclosed by the record that in sending the telegram to Corunna, the train dispatcher performed his entire duty — and the entire duty of defendant toward plaintiff’s intestate. It follows that in my judgment defendant was entitled to a directed verdict. I agree with Justice Ostrander that the judgment should be reversed and a new trial granted.”

There is therefore but one important question left in the case for determination, and that is: Was there any question of negligence of the defendant to be submitted to the jury ? All other questions of importance were settled by the former decision of this court. This was left an open question. It is clearly indicated in the opinion written by Mr. Justice Ostrander that this was a question of fact to go to the jury. That it is a close question must be admitted. It was not concurred in by a majority of the court and was therefore not conclusive upon this court. The question as to whether the message was delivered we think will be conceded to have been a question of fact for the jury, which has been found in favor of plaintiff. Its nondelivery by reason of negligence of the operator is eliminated from the case. The testimony in the case relative to the degree of care generally observed to insure the delivery of messages and train orders does not differ in any respect from that contained in the former record which was considered in the opinion. The case, that opinion states, was reversed—

“ For the reason that the jury should have been instructed that, if they found that the train dispatcher at Durand made proper effort to acquaint the trainmen with known conditions of unsafety, defendant had performed its duty in the premises. * * * Defendant was bound to use a degree of care commensurate with the importance of the communication and the purpose for sending it, not only in transmitting the message, but in securing its delivery to the proper persons.”

To be consistent with this opinion, it must be held that this question was properly submitted to the jury. The communication was a most important one. It is still a fact, as stated in the former opinion, that—

“There is considerable testimony tending to prove that less care is generally observed to insure the delivery of messages than is used to insure the delivery of train orders.”

The record shows that of all the orders communicated to these trainmen that day this one only was by a message. The others were train orders, and were all delivered to the proper persons. The finding of the jury was supported by the evidence.

Error is assigned upon the refusal of the court to admit testimony of expert witnesses to show that sending the communication by telegraph message as in this case was good railroading. An examination of the former opinions in the case discloses the precise question of fact left for the jury to determine. The testimony offered was not material to its solution. It was properly excluded.

The judgment is affirmed.

Blair and Stone, JJ., concurred with McAlvay, J.

Ostrander, C. J.

(concurring). We agreed, when this cause was here before, that whether defendant was negligent in the premises depended upon whether the train dispatcher made proper effort to acquaint the trainmen with known conditions of unsafety. We agreed that the testimony required the finding that the dispatcher sent to the trainmen at Corunna notice of these conditions in a message addressed to the conductor and engineer in charge of the train, and that the train was stopped at Corunna for the purpose of delivering the message. We agreed that whether it was delivered to the trainmen, or to either of them, and whether the information afforded, thereby came to the knowledge of either, was a disputed question of fact. Two of the justices were of opinion that the answer to this question was unimportant as affecting the liability of defendant to the plaintiff, for the reason that the dispatcher had the right to rely upon a proper delivery of the message — on due performance of duty by the station agent at Corunna who received the message. Three of the justices were unwilling then to say, as matter of law, whether some further evidence of the delivery of the message should or should not have been secured by the dispatcher, in view of the importance of the communication, the nature of the known conditions revealed in the message, and the custom and habit of the defendant to secure such further evidence when orders controlling the running of trains were given.. This question, namely, whether this train should have been permitted to proceed without securing evidence in the dispatcher’s office that the message had reached the trainmen, is again presented, and is the controlling question.

The jury has again found that the message was not delivered to the conductor or engineer, and that neither of them had notice or knowledge of its contents. It is controlling because it is the claim of defendant that the movements of the train were directed by the conductor and controlled immediately by the engineer, and that to these men in the discharge of its duty it sought to convey seasonable notice of the defects in the roadbed. The purpose of such a notice to them was obviously to protect them and the men and property in their charge — to govern, to that extent, the operation of the train. I find no evidence of an express rule or controlling custom of the defendant in like cases. It does appear that, to secure the release of a train stopped for orders, it is the rule and custom to obtain evidence that the orders have actually been received by the trainmen. I am not prepared to say that the information contained in the message in question, admittedly intended for the trainmen, was of smaller importance in kind than that conveyed by train orders. And I do not see how the testimony of railroad men to the effect that the method pursued was a proper method could have afforded the jury any real basis for determining the precise question which is involved. Courts should be and are disinclined to criticise, or to permit juries to disregard, rules adopted for conducting private business which have been approved by experience and followed with safety. In the case at bar it appears that defendant customarily, and according to approved rules, secured evidence of the delivery of train orders to those to whom they were given before permitting trains to be moved. They sent certain information customarily by messages, securing no such evidence of delivery. It would seem that the matter of the communication, and not what a dispatcher called it, should control the method of dispatching and delivery. I think it was for the jury to determine whether, in view of all the testimony, including the rules of defendant, it had used even ordinary care to insure to the trainmen notice of the perils of a perilous journey.

I concur in affirming the judgment.

Steere and Moore, JJ., concurred with Ostrander, C. J.

Brooke, J.

(dissenting). As I read the opinions delivered when this case was before the court on another occasion, but one question of fact was left for the determination of the jury. That question is whether the defendant made proper effort to acquaint the engineer and. conductor of engine extra 1104, with the dangerous condition of the track. It is settled in this trial, as it was in the former, that the message (Exhibit 1) was sent by defendant’s dispatcher, Crouch, to Humphrey, the agent at Corunna; It is likewise undisputed that the message was received by Humphrey before the arrival of the special at Corunna. The conductor denies all knowledge of the message, and the engineer is dead. The jury having found (whether against the weight of the evidence or not need not be determined) that the message was not in fact delivered to either the conductor or engineer, the question still remains as to whether or not the defendant used due care to secure its delivery.

As I view the matter, the inquiry narrows itself down to ascertaining whether it was in accordance with proper railroading to convey the information by means of a message, which was done, or whether, in the exercise of due care, defendant should have conveyed the information to the crew of the special in the form of an order. This question is, I think, clearly one upon which men of ordinary information are incapable of forming a reliable judgment. It is one which peculiarly calls for the expert opinion of those who by reason of their skill and experience in railroading are qualified to speak.

Defendant offered such testimony which was (I think erroneously) excluded. Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321); Coburn v. Booming Co., 72 Mich. 134 (40 N. W. 198); Underwood v. A. W. Stevens Co., 149 Mich. 39 (112 N. W. 487). I am of the opinion, too, that the court erred in excluding evidence on the part of the defendant of its custom in conveying information of the character of Exhibit 1. Whalen v. Railroad Co., 114 Mich. 512 (72 N. W. 323); Carr v. Tunnel Co., 131 Mich. 592 (92 N. W. 110); La Barre v. Railway Co., 133 Mich. 192 (94 N. W. 735).

The judgment should be reversed, and a new trial ordered.

Bird, J., did not sit.


source: Caselaw Access Project

author: McAlvay, J. Blair, J.

license: Public Domain

text:
    DUCRE v. SPARROW-KROLL LUMBER CO.
    1. Principal and Agent — Master and Servant — Torts op Agent — Scope op Authority.
    An employer is not liable for wilful and malicious acts of an employé not authorized or ratified.

    2. Master and Servant — Assault by Clerk.
    A corporation conducting a store, of which it employed a manager and clerk, is not liable for injuries caused by its clerk, whose only duties were to wait upon customers and take care of the stock, in assaulting and striking plaintiff with a hammer, where plaintiff’s testimony indicated that the assault was unprovoked and unwarranted, defendant’s testimony showing that plaintiff used improper and obscene language in the presence of women, and the clerk after ordering plaintiff out of the store attacked him.
    Error to Houghton; Streeter, J.
    Submitted January 13, 1911.
    (Docket No. 84.)
    Decided December 29, 1911.
    Rehearing denied March 13, 1912.
    Case by Joseph Ducre against the Sparrow-Kroll Lumber Company and Charles B. Kroll for personal injuries. Judgment for plaintiff against said company only and it brings error.
    Reversed, and no new trial granted.'

      Allen F. Bees (O. B. Grant, oí counsel), for appellant.

      P. H. O’Brien (F. F. Le Gendre, of counsel), for appellee.

       For various phases of question of master’s liability for assaults by servants, see notes in 14 L. R. A. 737 , 6 L. R. A. (N. S.) 567; 9 L. R. A. (N. S.) 1175; 12 L. R. A. (N. S,) 1155.

   McAlvay, J.

Plaintiff brought suit against both defendants to recover for injuries alleged to have been caused to him by an assault committed upon him by Charles Struthers, who was an employé of defendant, company. Defendant company was engaged in lumbering operations at Kenton, Mich., and, in connection with its business, conducted a general store at that place. The general manager of defendant company in charge of all its business was William Kroll. The defendant Charles B. Kroll was the manager of the store. Charles Struthers was a clerk in this store, employed to sell goods and wait upon customers. On the day plaintiff was hurt, he came to the store of defendant company in a state of intoxication, and began to be familiar with a woman who was present with her little child, putting his hand upon her shoulder and talking to her. He used profane language in the presence of women, and, it is claimed, he also used obscene language which is unprintable. This conduct continued for some time while plaintiff was walking around in the store. He was not in the store as a customer or by invitation. He claims on the trial he was there to get a job for a friend. After a time the clerk, Struthers, as plaintiff claims, ordered him to go out, and put his hand on his arm, and plaintiff, having become quiet, was standing by the stove, when the clerk suddenly attacked him with a hammer, knocking him down. He was then put out a side door. About half an hour later, he went to a doctor’s office, and was then so intoxicated that the doctor did not wish to do anything with him that morning. The blow plaintiff received fractured his skull. This was treated by the doctor on the following day. He was under the doctor’s care for four months, and was then discharged.

In both counts of his declaration, plaintiff charges that defendant Charles B. Kroll, as manager of the store, and the clerk, Struthers, both acting for defendant company, committed this assault, and that Charles B. Kroll directed Struthers to use the hammer upon plaintiff. In both counts plaintiff bases his claim upon the participation in the assault of the manager of the store. Struthers was. not made a party defendant.

The jury returned a verdict in favor of the plaintiff and against defendant Sparrow-Kroll Company only.

It will not he necessary to consider all of the errors relied upon by defendant company, which has brought the case to this court for review. The verdict of the jury has eliminated any consideration of the connection of the manager of the store, Charles B. Kroll, with the assault, or any liability of the appellant by reason of his conduct. The appellant can therefore be liable only because of imputed responsibility.

In order to make defendant company liable for the assault upon plaintiff, it must be held that it was committed by Struthers acting as clerk of defendant company, and within the scope of his employment. If the testimony of plaintiff and his principal witness, Connor, is true, then the assault on the part of Struthers with the hammer was wanton, wilful, and intentional, and no other conclusion can be drawn from all of the evidence in the case.

Under such circumstances, can this court hold that Struthers was acting within the scope of his employment, express or implied ?

In determining the question of the liability of the master for the torts of his servant, committed while in his employment, the line appears to be drawn by the authorities between those acts negligently or unskillfully performed, and those done by the servant in a wanton violation of law.

In an early case this court held:

‘ ‘ To render the doctrine of ‘ respondeat superior * applicable, the injury must arise in the course of the execution of some service, lawful in itself, but negligently or unskillfully performed; for a wanton violation of law by a servant, although occupied about the business of his employer, such servant is alone answerable. The general proposition that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do seems to be too large. His liability depends upon the nature of the employment, the occupation of the person employed, and the control or authority of the employer over the person employed, as well as over the manner of the execution of the employment, and also upon the occasion and nature of the injury.” Moore v. Sanborne, 2 Mich., at page 530 (59 Am. Dec. 209).

In a later case this court reaffirmed this doctrine. Mr. Chief Justice Campbell, speaking for the court, said:

“ The acts complained of were done in the regular course of their employment, and not by wilful wrong. In such cases the master is bound to keep his servants within their proper bounds, and is responsible if he does not. The law contemplates that their acts are his acts, and that he is constructively present at them all. There are many cases of wilful misconduct for which an employer will not be liable, because, in such cases the wrongdoers may be regarded as having renounced his service to that extent. * * * But where the act is not wilful, and is done in the regular course of the employment, there is quite generally a distinct liability, resting on the grounds of an implied agency.” Smith v. Webster, 23 Mich., at page 299.

Later, in a case where plaintiff, a foot passenger, sued for injuries, caused by a boy, who was a servant of defendant, driving a horse over him, Mr. Justice Cooley, speaking for this court, said:

“ The defense then requested the court to charge that the liability of the master does not ensue when the servant has intentionally or recklessly stepped aside from his employment to commit a tort, which the master neither directed in fact nor could be supposed, from the nature of the employment, to have authorized or expected the servant to do. This instruction the judge refused to give, but instructed the jury instead that if the boy drove in a careless and reckless manner he would be acting within the scope of his master’s employment; but that if he wantonly, wilfully, and intentionally ran over the plaintiff he would not be acting within the scope of his master’s authority. But if he carelessly, unintentionally, and accidentally ran over the plaintiff, then the plaintiff should recover.’
“ This instruction was all the defendant could reasonably ask. It stated the law correctly and fairly. If it was a case of intentional injury, defendant was not responsible.” Cleveland v. Newsom, 45 Mich. 62 (7 N. W. 222).

While the facts were not identical with those in the instant case, the principle of law involved is the same.

A few authorities are cited where the courts have, in applying the doctrine of respondeat superior, held the employer liable for wilful and malicious acts by an employé, on the ground that they were within the scope of his employment. Such extreme views have never been entertained by this court.

The case of Zart v. Sewing Machine Co., 162 Mich. 387 (127 N. W. 272), was a case of trespass vi et armis, brought against defendant and a local manager of its business in Detroit, for an assault committed while the said manager of defendant and an employé of defendant were forcibly taking a sewing machine from plaintiff’s home. That he was the managing salesman of defendant, and so dealt with plaintiff in making the sale of the sewing machine to her, signing his name as such to the receipt for part payment, was undisputed. His authority in that business seems to have been plenary. He went to her home in that capacity to take the machine away from her. Although defendant company denied that the machine was its property, and it received no benefit from the sale, it was held that a question of fact was presented whether he was acting within the scope of his authority or for his personal benefit. The court, among other things, charged the jury:

“The defendant Singer Sewing Machine Company is not liable, unless you find that it actually owned the machine sold by Brandau to plaintiff.”

The jury must have found this fact against defendant company. This court, speaking through Mr. Justice Stone, said:

“We are of the opinion that the case and the charge fall within the doctrine of the case of Canton v. Grinnell, 138 Mich. 590 (101 N. W. 811).”

This last case cited is another case of trespass vi et armis, where a claimed assault was committed by the agents of defendant while removing a piano from plaintiff’s residence. Mr. Justice Montgomery, speaking for the court, said:

“The jury were instructed that the defendant would be only liable for those acts which were committed by the two truckmen in doing those things necessary in getting the piano. This instruction sufficiently guarded defendants’ rights” — and cited as sustaining that proposition Smith v. Webster, supra.

The decisions in both these recent cases rest upon the authority of the doctrine laid down in Smith v. Webster, supra, which brings all of these cases within the cases of Moore v. Sanborne and Cleveland v. Newsom, relied upon in this opinion as declaratory of the law in the instant case. In this State our court has never departed from the rule laid down in Cleveland v. Newsom, supra, and has not adopted the modern rule, so called, which is invoked, and which goes to an extreme which this court is not willing to follow.

The violent and unexplainable assault of the man Struthersupon the plaintiff cannot be defined as recklessness, which is only a high degree of negligence. It was a wanton, wilful, and intentional injury, committed without regard to consequences, and within a narrow margin of having resulted in the crime of manslaughter. Under the circumstances presented by this record, such act cannot be held to have been committed by this man while in the performance of duties for defendant within the scope of his employment; and our conclusion is that, as a matter of law, no liability attached to the appellant, and the court was in error in not so charging the jury, as requested. It follows that other questions raised need no discussion.

The judgment of the circuit court, for the reasons pointed out in this opinion, is reversed, and no new trial is granted.

Moore, Brooke, and Stone, JJ., concurred with MoAlvay, J.

Blair, J.

I concur upon the ground that it is not within the scope of a clerk’s employment to eject disorderly persons from his employer’s store.


author: Stone, J.

text:
    BURNHAM v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Carriers — Cash Pares — Ejecting Passengers.
    Where-a passenger on defendant’s train paid his fare, and the conductor, in placing the slip in his hat, by mistake indicated the wrong station, and later ejected the passenger who claimed that he attempted to explain the circumstances to the conductor but was not permitted to,' it was not necessary for him to pay his fare the second time to avoid ejection; it also appearing that the conductor had in his possession a slip and evidence of the amount paid, which he could have readily examined and ascertained plaintiff’s rights.

    2. Same — Excessive Damages.
    A judgment of §350 was' not excessive for ejecting a passenger by the use of force, accompanied by abusive, profane, and improper language in the presence of plaintiff’s wife and other passengers.
    Error to Clinton; Searl, J.
    Submitted December 12, 1911.
    ( Docket No. 39.)
    Decided December 29, 1911.

      Case by Jasper A. Burnham against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harrison Geer (W. K. Williams, of counsel), for appellant.

      Lyon & Moinet, for appellee.

       Duty of passenger to pay fare wrongfully demanded, in order to avoid ejection, see note in 43 L. R. A. 706.

   Stone, J.

This is an action on the case, in which the plaintiff, a resident and business man of St. Johns, Mich., seeks to recover from defendant damages for a claimed wrongful ejection from one of its west-bound passenger trains, on the morning of August 26, 19Í0.

It appears that the plaintiff and his wife, who had been visiting near the city of Flint, came to Durand and took the defendant’s west-bound train No. 19, due to leave there at 9:45 a. m., for St. Johns. Neither of them had tickets. The plaintiff’s wife claims to have gone on the train, entered a car, taken her seat, and paid her fare, in money, to the conductor. The plaintiff stood on the easterly platform of the passenger coach, immediately ahead of the parlor car, described as the vestibule. There were two other gentlemen standing on the platform with him as the train left Durand; the destination of one of them was Ovid. This Ovid passenger (whose name plaintiff does not know) and plaintiff continued to ride on the platform as the train approached Yernon station, which is the first stop west of Durand. Just before the train stopped there, the conductor came to plaintiff and the other man and collected their fares. Plaintiff paid 62 cents, consisting of two quarters, one ten-cent piece, and two pennies— the proper and legal fare from Durand to St. Johns. The man destined for Ovid also paid the legal cash fare to his destination.

According to the plaintiff’s claim, the conductor did not have time to give them their hat checks before the train stopped at Yernon, as it was necessary for him to get off and attend to his train. He claims, and testified, that the conductor tore off from his pad a couple of cash-fare slips, and threw them on the platform at the plaintiff’s feet; that plaintiff did not pick them up, and therefore had no cash-fare slip to show the amount of fare he had paid. After the train left Yernon, the conductor came to plaintiff and this man from Ovid, who were yet standing on the platform of the passenger coach, and took from his pocket two hat checks, wrote something upon each of them, and placed one in plaintiff’s hat and one in the hat of the man from Ovid. The plaintiff testified that he did not know what the conductor wrote upon the hat check, and did not look to see.

Soon after this, the plaintiff went into the coach and took a seat, either the second or third from the east end of the coach and on the south side, sitting immediately ahead of his wife. He was somewhat afflicted with asthma, and claims that he had been suffering therefrom during the previous night, was sleepy, and soon after taking his seat fell asleep. As the train left Ovid, the conductor came through, saw plaintiff asleep, and testified that he observed plaintiff’s hat check, showing that he was a passenger whose destination was Ovid. The conductor awakened the plaintiff and inquired where he was going, and was informed by plaintiff that he was going to St. Johns. The conductor told him that his hat check showed that his destination was Ovid, and that if he was going to St. Johns he would have to pay 18 cents, which was the legal fare from Ovid to St. Johns. The plaintiff informed the conductor that he had paid his tare to St. Johns in cash, and that the conductor must have made a mistake in the hat check. The conductor then asked him for his cash fare slip; and plaintiff testified that he informed the conductor that he had no cash-fare slip; that the conductor threw it on the floor when he tore it off his pad. The conductor insisted that the plaintiff should either pay the additional 18 cents, the legal fare, or leave the train at Shepardsville, the next station west of Ovid, and near which the train was at that time. As the train reached that station, the conductor again asked plaintiff to pay his fare or leave the train. He declined to do either.

There is a good deal of conflict in the testimony as to just what occurred here. The plaintiff claims, and offered testimony in support of his claim, that he sought to •explain to the conductor all of the circumstances attending the payment of his fare, but that the conductor became angry and refused to listen to him; that he swore at the plaintiff, called him a deadbeat in a loud voice, and said that he met such deadbeats every day; and that he took hold of the plaintiff in a violent manner, and ejected him from the train by force. On the other hand, the conductor claims, and testified, that, when the plaintiff declined to pay, he thereupon took hold of plaintiff with no more force than was necessary, raised him from his seat, and that plaintiff walked down the aisle and out through the east door of the passenger coach, and stepped down onto the station platform at Shepardsville. There were from 25 to 40 passengers in the car at this time.

It is undisputed that as the train started west from the station the plaintiff again boarded it, came in, and took his seat by his wife in the coach; that the conductor came through the train shortly after this, and, observing the plaintiff, said, in substance, to him: “I thought I put you off at Shepardsville.” The plaintiff replied, in substance: “You did, but I got on again.” The conductor then informed him that they were going in on the siding .a little west of Shepardsville to permit a train to pass them, and that when they got there he would put the plaintiff off the train again, unless he paid his fare. At this point, also, there is a sharp conflict in the testimony as to just what took place, and the manner and conduct •of the conductor; the plaintiff claiming, and offering testimony in support of the claim, that the conductor again made use of profane language, and in a loud tone of voice, which could be heard throughout the ear, denounced the plaintiff as a deadbeat, and saying that when he put him •off the next time he (plaintiff) would stay off. While the conductor claims and testified, and offered evidence supporting his claim, that when plaintiff refused to pay the fare or leave the train, unless he was ejected therefrom, he (the conductor) thereupon took hold of plaintiff’s shoulder, raised him out of his seat, and the plaintiff walked out of the train onto the ground. The train waited at this siding some minutes, and both the plaintiff and conductor, standing outside, indulged in some loud and • profane language.

It is again the claim of the plaintiff that at this point the conductor asked him where he paid his fare, and that he then, for the first time, was permitted to explain to the conductor the circumstances; that he stated to the conductor there that he had paid him between Durand and Yernon, particularly stating the change which he gave him, and the circumstances of standing on the platform with the other man, and suggested to the conductor that he must have made a mistake, and put plaintiff’s check in the Ovid man’s hat, and the Ovid man’s check in his hat. The plaintiff testifies that the conductor then said: “I remember; it is all right; get on there, and go oh. You are all right; I remember it now.” Whereupon he was permitted to enter the car and ride to St. Johns, and that the conductor, followirig him into the car, explained to those sitting near the plaintiff that there had been a mistake, but that the plaintiff had paid his fare.

On the other hand, the conductor claims, and offered testimony in support of his position, that, while standing upon the ground and talking with the plaintiff, he (plaintiff) reached into his pocket and brought out and showed to the conductor a cash-fare receipt; that he (the conductor) looked at it, and that it was for 62 cents; that thereupon the conductor reached into his own pocket and pulled out his cutter, and saw it was serially the same number; that they use a cash-fare cutter, and that they cut the cash-fare receipts off, and they are numbered .serially, and he saw that that one was one of those serial numbers that came off that cutter for that day; whereupon he apologized to the plaintiff, shook hands with him, and helped him onto the train, and told him that if he had shown him that in the first place there would have been no trouble.

The conductor testified that he took the fares just as the train was coming into Yernon; that one man was for Ovid and one for St. Johns; and that each paid cash fare. He further testified that he did not remember what he did with the cash slips, and that he could not say that the plaintiff was wrong in the statement that he threw them upon the platform. He remembered that he did not issue the hat checks at the same time that he collected the fares. He further testified as follows:

“ I kept a memorandum and duplicate of cash slips to turn in, so that if I issued a cash slip for Burnham’s fare and threw it on the floor I had a duplicate in my pocket. Mine would show the stations from which to which the fare was paid; and I had it right in my pocket at the time of this controversy with Mr. Burnham.”

He further testified that he could not examine his cash-fare slips to see if he had a cash-fare slip corresponding with the claim of the plaintiff that he had paid his fare from Durand to St. Johns, without having the passenger’s cash-fare receipt to compare with it; that he knew that 62 cents was the fare from Durand to St. Johns, and that he did not recollect at the time he testified of any other place from any of those stations west of Durand where 62 cents was the fare from that station to some point west; that his end of the slip would show the stations and the amount; that he did not examine his slips to ascertain whether he had any, and if so how many, slips showing 62 cents paid fare from Durand to St. Johns. He claims that it would have been necessary for him to have examined the hat cheeks of all the passengers to have determined that the plaintiff had paid his fare. The following occurred upon cross-examination:

“Q. If you looked at your cash checks, they would show, if you had any, and if so how many, cash checks showing 63 cents fare paid from Durand to St. Johns, wouldn’t it ?
“A. Yes, sir.
“Q. And you didn’t look at those, did you ?
“A. No, sir.
“Q. If you really wanted to find out whether this man paid his fare from Durand to St. Johns — 63 cents — you could get some light on the subject by looking at your part of the cash check, couldn’t you ?
“A. I could find out how many were paid.
“Q. Precisely. Do you recollect more than two upon that occasion, namely, Mrs. Burnham and Mr. Burnham, who paid cash fare from Durand to St. Johns — 63 cents ?
“A. I would not say.
"Q. You have no recollection of more than those two, have you ?
“A. No, sir. * * *
“Q. And you made no effort of any kind, character, or nature to look over your cash-fare slips you had in your possession to determine how many, if any, persons upon that train had paid cash fare from Durand to St. Johns that morning — 63 cents — did you ?
“A. No, sir.”

This witness further testified that his duplicate report, made at the end of his run, showed two cash fares from Durand to St. Johns that day, one No. 77, and the next No. 78, and each of them 63 cents; that it showed that he received only two cash fares from Durand to St. Johns that day. And it also showed that he received a cash fare from Durand to Ovid, 44- cents.

“Q. You are not prepared to say, are you, but what those two cash fares from Durand to St. Johns upon that train were paid, the one by Mr. Burnham and the other by Mrs. Burnham ?
“A. I would not say as to Mrs. Burnham.”

The case was submitted to the jury under a very full charge by the court, and a verdict of $500 for the plaintiff was returned.

Upon a motion for a new trial, based upon the grounds that the verdict of the jury was excessive and unreasonable, and that in no event could the plaintiff recover more than nominal damages, the circuit judge announced that, he would order a new trial of the case, unless the plaintiff would accept |350 damages. The plaintiff elected to accept this, and a judgment for the plaintiff for $350 was-duly entered. The defendant has brought the case to this court, and has assigned errors upon the rulings of the court in admitting testimony, upon refusals of the court to charge as requested by defendant, and upon the charge of the court.

The defendant claims (1) that the court erred in not holding that the case of Frederick v. Railroad Co., 37 Mich. 343, and kindred cases, are controlling of the case,, and that the plaintiff, not having offered to pay his fare, could not recover in the case, and that the court should have directed a verdict for the defendant, as requested;, and (2) that the plaintiff could not recover, in any event,, more than nominal damages.

We have examined the record with some care and find no reversible error in the rulings of the court relating to-the admission of testimony, nor in the refusals to charge as requested.

From the foregoing, it will be seen that there was a sharp conflict in the testimony as to the controlling facts in the case. We are of the opinion that the case was fully and fairly submitted to the jury by the trial judge. We quote the following from the charge:

“Now, gentlemen of the jury, it does not seem to be-seriously disputed here but what Mr. Burnham did actually pay his fare from Durand to St. Johns, and that he ordinarily would be entitled to ride that distance; but I charge you, as a matter of law, that that alone would not be enough to entitle him to recover here. The fact that he had actually paid his fare from Durand to St. Johns, and that he was put off the train at Shepardsville, would not be enough to entitle him to recover. It is the duty of a passenger, and was the duty of Mr. Burnham in this case, if he received this cash slip from the conductor, to retain it, and when any question was raised about his right to ride to his destination it was his duty to have produced the cash slip, if he had it; and if he didn’t have it,. had lost it, or anything of that kind, it was his duty to explain to the conductor, if he was given an opportunity to do so, the circumstances under which he paid his fare. So that the first question, perhaps, that you will reach in this case will be the question of whether or not he received this cash-fare slip from the conductor. If the conductor simply threw the cash slip upon the floor, it would not be the duty of Mr. Burnham to pick it up; he would have a. right to consider that the conductor didn’t treat that as evidence of his right to ride, and expected to give him a hat slip, or something of that kind. He would not be obliged, to reach down and pick it up. But, if the conductor handed it to him, it would be his duty to keep it and preserve it, and produce it upon request. So I charge you, as a matter of law, that if he actually did receive this cash slip, and had it at the time the controversy came up in the car there, and failed to produce it when the conductor asked for it, then, in that case, he cannot recover in this case, and your verdict should be for the defendant, no cause of action.
“That is for this reason, that, even though he had actually paid his fare, and was entitled to ride, he could not keep the cash slip in his pocket, and simply say, ‘ I paid my fare, and I won’t pay it again;’ but he must go further than that and produce the cash slip, or some explanation about it, or else he must pay his fare over again, and then collect the money back from the railroad company. Hi a action in .that case would simply be for the extra fare paid; but he could not sit there and say, ‘I paid once, and I won’t pay again,’ or words to that effect, and not attempt to show the conductor why he had paid, and produce the receipt, if he had one, or make explanation about it, and allow himself to be put off and recover damages in this way. So you will see, if he actually had the cash slip when the controversy came up, and didn’t produce it, then he cannot recover in this case.
“ Now, if he didn’t receive the cash slip and didn’t have it, and when the controversy came up he attempted to explain to this conductor the circumstances, the conductor having taken up his hat slip — I think it is practically conceded in the case that the conductor had taken the hat slip out of his hat — he then not having any evidence of his right to ride, if he then attempted to explain to the conductor the circumstances under which he paid his fare, and the conductor refused to listen, to him, shut him off, and would not listen to what he said about that, but then and there put him off, compelled him to get off the train, then in that case he would be entitled to recover in this case. So that you will see that the real turning point in this case is the question of what took place there in the car, and whether or not, if you find he didn’t have a cash slip, he made an honest effort to explain to the conductor the circumstances under which he paid his fare.
“ Now, the fact that he went back on the train again, after being put off once, would not change the case in any way. If he had actually paid his fare, he would have a right to get back on there again, but the same rule would apply again when the conductor asked him for his cash slip, or more fare; it would have been his duty the second time to have explained it in the same way, and I have already laid down the rule what he should have done in that case, and if he didn’t explain or produce the cash slip, if he had it, he cannot recover. If he did attempt to explain, and the conductor shut him off and would not allow him to, then he can recover.”

We think that the meritorious question in the caséis whether it is governed by Frederick v. Railroad Co., 37 Mich. 343 (26 Am. Rep. 531), and the cases that have followed that doctrine. It is contended that, inasmuch as the plaintiff might have paid his fare, and avoided being expelled from the train, he is entitled to recover only nominal damages.

In speaking of Frederick v. Railroad Co., supra, and kindred cases, Justice Montgomery said, in Zagelmeyer v. Railroad Co., 102 Mich. 214, at page 215 (60 N. W. 436, 47 Am. St. Rep. 514):

“ But all the cases cited are cases in which the plaintiff had no ticket which, as between himself and the conductor, entitled him to ride upon the car in question, and in which there was no tender of the legal fare made. We think the cases of Hufford v. Railroad Co., 53 Mich. 121 (18 N. W. 580), Id., 64 Mich. 631 (31 N. W. 544, 8 Am. St. Rep. 859), fully recognize the right of the plaintiff to recover substantial damages for being evicted from the car when he either produces a ticket, or stands ready to pay the legal fare.”

We have quoted from the charge to show that the jury were instructed that, if the plaintiff actually received the cash slip, and had it at the time the controversy came up in the car, and failed to produce it when the conductor asked for it, then the plaintiff could not recover. The jury must have found, therefore, that the plaintiff did not have this cash slip in his possession.

We think that Frederick v. Railroad Co., supra, can be distinguished from the instant case. Here the passenger paid his legal fare in cash, and the conductor obviously made the mistake, and there was evidence that he refused to listen to an explanation which, when finally permitted to be given, set the plaintiff right, and he was permitted to continue his journey. The case may also be distinguished from the Frederick Case in this: That here the conductor had in his possession the cutter and copy, which, with a little care and examination, would have explained and made clear the whole difficulty, and there was evidence that he alone was possessed of the cash-fare receipt, or a duplicate of it.

In Humphrey v. Railways Co., 166 Mich. 645 (132 N. W. 447), the passenger had an ambiguous or questionable ticket that needed an explanation, but she was permitted to recover, and we held that the Frederick Case was not applicable where an examination would have explained the matter.

In Light v. Railway Co., 165 Mich. 433 (130 N. W. 1124), the Frederick Case was relied upon by the defendant, but we held that the rule, requiring a passenger to pay his fare a second time, if he has the money, should not be extended so as to compel him, if he has not the money, to endeavor to borrow it of his friends or acquaintances on the train.

Upon the question of the amount of judgment, we need only refer to the evidence on the part of the plaintiff, and to the two cases last above cited. In Humphrey v. Railways Co., supra, Justice Brooke said:

Good faith and respectful treatment are imperative. Insults and wanton abuse are intolerable and are actionable. Whether the conduct and language of defendant’s agent in the case at bar were such as to render the defendant liable was a question of fact for the jury, under proper instructions.”

In the instant case, there was evidence of rude, profane, and abusive language in the presence of the plaintiff’s wife and other passengers on the part of the conductor, which, if believed by the jury, warranted substantial damages, and we cannot say that the judgment was excessive.

We have examined the entire record with care, and are of opinion that there is no reversible error, and the judgment of the circuit court is affirmed.

Ostrander, O. J., and Steers, Moore, and Brooke, JJ., concurred.


author: Ostbandee, C. J.

text:
    HAMMOND v. HIBBLER.
    1. Landlord and Tenant — Leases—Covenants—Waiver.
    By granting permission in writing to a tenant, “but not to his heirs, assigns, executors, administrators or any other person,” to conduct a bar in connection with a hotel which he was operating on premises leased subject to a restriction against selling intoxicating liquors, the landlord did not waive his right to enforce the restrictive clause against assignees of the hotelkeeper’s interest.
    2. Same — Construction.
    A restriction contained in a lease for a term of years should receive more favorable consideration than a restriction in a deed.
    Ostrander, C. J., and STEEREand Stone, JJ., dissenting.

      Appeal from Wayne; Hosmer, J.
    Submitted April 13, 1911.
    (Docket No. 114.)
    Reargued October 10, 1911.
    Decided December 29, 1911.
    Bill by Edward P. Hammond and others against Prank B. Hibbler to enjoin defendant from conducting the sale of intoxicating liquors contrary to the terms of a written lease. Prom a decree for complainants, defendant appeals.
    Affirmed.

      A. B. Hall, for appellant.

      human W. Goodenough, for appellees.
   Ostbandee, C. J.

The material facts are that in the year 1906 complainants leased certain premises in the city of Detroit for a period of 10 years to Charles Hinkle and Allan Nowlin. The lessees, under a permissive clause in the lease, assigned it to the Hinkle-Nowlin Company, a corporation. There were two buildings upon the property, now known, respectively, as the Gayety Theater and the Hotel Harrington. In 1907 the assignee of the lessees leased the hotel to James W. Harrington for the balance of the term. In and by the original lease, it was agreed “that no building or part thereof be sublet for or used as a saloon, or that the sale of intoxicating liquors of any form be permitted on said premises,” but in the lease from the Hinkle-Nowlin Company to Harrington it was provided that if Harrington could obtain written permission from the complainants to sell liquor in the hotel his lessors would consent thereto. Complainants gave this permission to Harrington in accordance with a certain written agreement made between them, which provided, among other things, that, so long as a respectable hotel was conducted on the premises, the privilege of selling liquor therein would be extended to Harrington, “but not'to his heirs, assigns, executors or administrators, or any other person ” For this privilege Mr. Harrington agreed to pay complainants $100 a month. By the same agreement, complainants agreed to loan Mr. Harrington $4,000, to be used in constructing a new front or addition to the hotel. They advanced this money, and for security took a mortgage upon the leasehold interest. A new front was added to the building, and the bar was opened early in the year 1908. During the latter year, Mr. Harrington borrowed money of the defendant, and gave him a second mortgage upon the said leasehold, and thereafter Hibbler advanced still more money, some of which was used to pay interest on the first mortgage and to pay for the bar privilege. In September, 1908, complainants wrote to Harrington a letter, a copy of which was sent to defendant, stating that, unless the bar was conducted in a first-class manner, the privilege of selling liquors would be revoked ; and, further, that complainants refused to recognize the defendant, Hibbler, as entitled to any of the privileges granted to Harrington. Late in the same summer the Pittsburgh Plate Glass Company, which had furnished materials for rebuilding the hotel, obtained a judgment against Harrington, and levied upon his leasehold interest. Upon a sale under the levy, this interest was sold to the judgment creditor, and by it, December 3,1908, to the defendant, Hibbler, and his brother, who bought subject to complainants’ prior mortgage. Hibbler also obtained from Harrington a quitclaim deed of his interest in the leasehold premises. Hibbler applied to complainants for an agreement extending the same privilege to him in relation to the bar as had been given to Harrington. The terms of an agreement were stated by complainants, but no agreement made. Hibbler was notified in January, 1909, that the privilege of selling liquor upon the premises would not be extended to him, and that he must discontinue the sale of liquor at once. He made no reply, but continued the sale of liquor.

Complainants filed their bill, setting up the facts, the substance of which has been stated, and asked for a decree perpetually restraining defendant from using the premises, or any part of them, for a saloon, or selling liquor upon the premises in any way whatsoever. A preliminary injunction was also asked for. It is not charged in the bill that the hotel and bar are not properly conducted, and no competent evidence of the fact appears in the record. It is charged that if the sale of liquor is continued the value of the property will be greatly depreciated. The preliminary injunction was refused, the bill was answered, the cause was heard upon pleadings and proofs taken in open court, and a decree entered in accordance with the prayer of the bill. . The defendant has appealed.

It is claimed by appellant that the giving to Harrington of the license or permission to sell liquor operated, in law, to remove or release the restriction concerning the sale of liquor upon the premises. It is also claimed that by virtue of the execution sale the Pittsburgh Plate Glass Company succeeded to the rights of Harrington, and that Hibbler, the defendant, succeeded to the rights of the Plate Glass Company.

It is the law of this State that a condition or covenant in a deed of real estate, restricting the use to which the property may be devoted, and not opposed to sound public policy, may be sustained and enforced if the party in whose favor it is made or reserved has an interest in the observance of the condition or covenant. Smith v. Barrie, 56 Mich. 314 (22 N. W. 816, 56 Am. Rep. 391); Watrous v. Allen, 57 Mich. 362 (24 N. W. 104, 58 Am. Rep. 363); Chippewa Lumber Co. v. Tremper, 75 Mich. 36 (42 N. W. 532, 4 L. R. A. 373, 13 Am. St. Rep. 420); Jenks v. Pawlowski, 98 Mich. 110 (56 N. W. 1105, 22 L. R. A. 863, 39 Am. St. Rep. 522); Whealkate Mining Co. v. Mulari, 152 Mich. 607 (116 N. W. 360, 18 L. R. A. [N. S.] 147; Reilly v. Otto, 108 Mich, 330 (66 N. W. 228); Wertheimer v. Wayne Circuit Judge, 83 Mich. 56 (47 N. W. 47).

In the case last cited, and which, it appears, is relied upon by both parties here, the lease of a store was made for the sale of teas, coffees, spices, and similar goods, and the lessee was permitted to assign the lease or to sublet the premises only by the written consent of the lessor. Upon the application of the lessee, oral consent was given for the occupancy of the premises by another than the lessee, under the lease, who remained responsible for the rent. This consent was in its terms restrictive; the use of the premises specified being for the sale of small musical instruments and sheet music. It was later discovered that the Wertheimers, who were not the persons for whose occupancy consent had been given, were in possession of the premises, and they asked permission of the lessor to use them for a misfit clothing house. Permission was refused. The bill charged that the Wertheimers were in possession without the consent of the lessor, and proposed to continue possession and use the premises for the unexpired term for a misfit clothing house, and prayed for an injunction. An injunction was granted, and the cause was before this court on an application for a writ of mandamus to compel the court below to dissolve the injunction. It was held that:

“ The terms of the lease were not waived, but a license given to Sprague to enter and carry on that particular business; Michell to be holden for the rent. Sprague had no right to sublet, and Michell no right to sublet to any one but Sprague, and for that particular business.”

It was further held that the words in the original lease, “to be used for the sale of teas, coffees, spices, and similar goods,” amounted to an express covenant not to use them for any other business; that it was a covenant running with the land; and that, while the written stipulation not to sublet, unless by consent in writing, might be waived by an oral agreement, a written consent was necessary to release the covenant and remove the restriction as to subletting, because such was the requirement of the lease. It will be seen that the opinion. deals with two ■covenants — one not to sublet without permission given in writing; one not to use the premises for any but the ¡specified business — and that the conclusion arrived at was that the oral permission to sublet to a particular person to carry on a specified business would not be enlarged or held to operate as a release of tbe covenants.

In tbe case at bar, tbe restrictive covenant in tbe lease, while mutually agreed to by tbe lessors and tbe original lessees, is presumed to bave been inserted for tbe benefit of tbe lessors. Tbe lessees would require no such covenant, since they controlled tbe use of tbe premises for tbe term. Tbe essence of tbe restriction is indicated by its terms. It is not aimed at sales of liquor by a particular person, but at any and all sales. There can be no doubt that tbe lessors might have insisted that no liquors should be sold upon tbe demised premises during tbe term, and might bave enforced tbe restriction by injunction; see cases above cited and those collected in 18 Am. & Eng. Enc. Law (2d Ed.), p. 687; and as well against assignees, or sublessees, with notice of tbe restriction, as against tbe original lessee. It was said by this court, in Smith v. Barrie, supra, that:

‘ ‘ In those cases in which tbe condition has bad for its purpose a restraint upon tbe business of dealing in intoxicating drinks, tbe interest of tbe grantor in its enforcement has been specially prominent in the mind of tbe court in passing upon the condition.”

But, whether we consider the interest of tbe lessors separate from tbe leased premises, or their interest in the premises as property, tbe conclusion must be that they bave distinctly waived tbe covenant, so far as it affects sales of liquor in tbe hotel. They consented that liquor might be sold in tbe hotel. They were willing that defendant should continue to sell liquor there, and have proposed, or stated, tbe terms upon which consent would be formally given. Tbe lessees have expressly consented that tbe restriction be released, so far as it affects sales of liquor in tbe hotel. May tbe lessor now bave tbe aid of a court of equity to enforce the restriction ? Complainants say tbe release or waiver was itself restrictive and limited to sales of liquor by Harrington. Is tbe fact important? Tbe essence of the restrictive covenant is, as has been pointed out, not that sales of liquor shall be made by certain persons only, but it is that no sales shall be made on the premises. It is waived, essentially, when any sales, by any person, are permitted. It does not follow, however, that because equity will not enforce performance of the covenant by injunction, defendant may insist upon a release of the restriction without performing the agreement for the waiver. It would be inequitable if he were permitted to do so. In his answer, defendant professes that he is ready to pay all charges which Harrington agreed to pay to secure the waiver. We think he should be permitted to do so.

The decree making the injunction perpetual will be affirmed, unless within 40 days from the entry of the decree in this court defendant pays to complainants so much of the sum of $100 per month as remains unpaid. Upon such payment being made, the injunction will be dissolved, with costs of both courts to defendant. Otherwise complainants will recover costs.

Steers and Stone, JJ., concurred with Ostrander, 0. J.

Brooke, J. My Brother Ostrander says:

“ The essence of the restriction is indicated by its terms. It is not aimed at sales of liquor by a particular person, but at any and all sales.”

This is true; but it is equally true that the essence of the waiver is to permit liquor to be sold upon the premises by Harrington only. Many reasons, aside from the increased money rental, might operate upon the minds of the lessors to induce them to modify or waive the restriction as to a particular individual. The reputation of that person as to character and respectability, and particularly as to his being a law-abiding citizen in the conduct of the business about to be engaged in, would have great weight. I am therefore unable to agree with my Brother Ostrander when he says that the restriction is waived essentially when any sales by any person are permitted.

Moreover, I am of opinion that a restriction in a lease for a term of years should receive much more favorable consideration than a restriction in a deed. While it may be said of both that they are in derogation of the grant, yet in the case of the deed the grantor has parted with his right to repossess himself of the demised premises in the future, while in the case of a lease the lessor contemplates such repossession, and, at the expiration of the term, must accept his premises (if improper or disreputable use has been made of them ) burdened by an unsavory reputation, which might, in conceivable instances, result in large financial loss.

As was said in Wertheimer v. Wayne Circuit Judge, 83 Mich. 56 (47 N. W. 47):

“ Covenants are not infrequently inserted in leases that the lessee shall not carry on particular trades upon the premises. This precaution often becomes necessary, not only for the protection of the premises from injuries which might otherwise be done to them, but to prevent their respectability being lessened, and their good will thereby diminished.”

It cannot be questioned that the sale of liquor may be so conducted upon premises as to injure their reputation little or not at all. Upon the other hand, if the lessee caters to the low, the vicious, and the dissolute (and many in the business do so cater), it seems plain that the leased premises would acquire such a reputation as would seriously affect their value to the lessors at the expiration of the term.

I am of opinion that the decree should be affirmed.

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

Bird, J., did not sit.


author: Blair, J.

text:
    J. H. WORDEN LUMBER & SHINGLE CO. v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO.
    1. Evidence — Burden of Proof — Trial.
    Too high a degree of proof is required of a plaintiff by instructions to the jury that plaintiff had the burden of proof, and must establish the issue by a preponderance of the evidence clear and well defined, and must prove to the satisfaction of the jury the claim made.
    3. Same — Books—Inspection.
    It was not error to admit in evidence books of defendant, kept in the usual course of defendant’s business, showing that the grates, ash pan, dampers, and netting of its locomotive which plaintiff claimed set a fire, were inspected and found in proper condition on the day after the fire.

    8. Same — Weather Reports — Remoteness.
    Weather reports from stations on either side of the fire, but at considerable distances therefrom, should not have been admitted in evidence without supporting testimony to show that they tended to indicate the direction of the wind at the place of the fire.
    4. Trial — Witnesses—Cross-Examination.
    Wide latitude in the cross-examination of plaintiff’s chief witness was permissible.
    5. Trial — Argument—Improper Conduct of Counsel.
    It was reversible error for defendant’s counsel, in an action for negligently causing a fire, to persist in bringing to the attention of the jury the fact that plaintiff was insured after the court had ruled it out.
    Error to Chippewa; Steere, J.
    Submitted June 23, 1911.
    (Docket No. 101.)
    Reargued October 16, 1911.
    Decided December 29, 1911.
    Case by the J. H. Worden Lumber & Shingle Company against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for negligently setting fire to plaintiff’s property. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Albert E. Sharpe and Barger & Hicks, for appellant.

      E. S. B. Sutton (A. H. Bright and Warner & Sullivan, of counsel), for appellee.

       Presumption as to negligence in case of railroad fires, see notes in 15 L. R. A. 40; 5 L. R. A (N. S.) 99.

   Blair, J.

This is an action, brought by insurers in the name of plaintiff, the insured, to recover damages for the alleged negligent destruction of property by fire set by one of defendant’s engines.

The declaration consists of four counts. It is alleged in each count that on August 3, 1908, a large stock of lumber, etc., valued at $70,000, and a dwelling house, valued at $500, belonging to the plaintiff and situated adjacent to the defendant’s line of railroad at Dick, in Chippewa county, were destroyed by a fire which was communicated thereto by sparks of fire from a passing locomotive engine of the defendant, by reason of defendant’s negligence. ' The negligence charged in the first count is the improper and insufficient equipment of the locomotive for the prevention of fires from sparks therefrom; in the second, the bad and improper state of repair and condition of the locomotive and the spark-arresting devices, smokestack, and other appliances thereof; in the third, the improper and negligent handling and' management of the locomotive; and the fourth count is based on section 6295, 2 Comp. Laws, and alleges the destruction of the property by fire from the locomotive, for which defendant is liable by virtue of said statute. The trial resulted in verdict and judgment for defendant, to reverse which plaintiff prosecutes this writ of error.

The errors relied upon for reversal are as follows:

(1) That the court below erred in his charge to the jury, in requiring of the plaintiff that it establish to the satisfaction of the jury, by preponderance of evidence, clear and well defined, the fact that the locomotive of defendant set the fire, and in-requiring the jury to first find the fire was set by the locomotive before entering upon a consideration of the evidence as to the condition and management of the locomotive at the time.
(2) That the court below erred in admitting in evidence the memorandum of alleged inspection of the locomotive after the fire, purporting to show its condition at that time.
(B) That the court below erred in admitting in evidence the records of the weather bureau at Sault Ste. Marie and Escanaba, purporting to show the direction of the wind at those points at different hours of the day of the fire.
(4) That the court below erred in permitting defendant’s witness Nelson Cray to testify to alleged statements, claimed to have been made to him by plaintiff’s witness J. W. Myers some time after the fire, regarding the origin of the fire, and statements claimed to have been made by Myers to Cray, relating to conversations between Myers and certain insurance adjusters concerning the origin of the fire.
(5) That the court below erred in permitting the introduction of evidence relating to insurance on the property destroyed; and that defendant’s counsel further improperly brought the same subject before the jury by persistent questioning of witnesses on the subject and. statements in argument to the court and to the jury.

The court instructed the jury as follows upon this subject:

“Now, upon the first question, which is, of course, the one which you should first take up and determine, the burden of proof is on the plaintiff, the party bringing the suit, to establish that sparks from this engine set the fire which consumed the lumber; and by ‘burden of proof ’ we mean a preponderating, overweighing, or overbalancing of that in the testimony which tends to prove the truth or falsity of the matter which you have under consideration. If the testimony upon a question which you are deciding was just evenly balanced, as much in favor of it as there was against it, there would be no preponderance, and in that case the jury must necessarily decide in the negative; but if there is, in the mind of the jury, an overweighing, or preponderating, or overbalancing, of the testimony in favor of a proposition, clear and well defined, even though not beyond a reasonable doubt, the jury would have a right to find a verdict in favor of the proposition. Now, the fact that this engine set this fire must be proven to your satisfaction, before you go further. It need not necessarily be proven by the testimony of any eyewitness — any person testifying that he saw it set — but by facts and circumstances proven in the case to your satisfaction, which furnish evidence which reasonably leads an unbiased and inquiring mind to the conclusion that a cinder from that particular locomotive caused this fire. Under the law, the evidence is not sufficient, if it establishes no more than that the fire might have been so set. The jury must find that the testimony preponderates upon that proposition, and should be satisfied that it was so set.”

This instruction required a higher degree of proof than the law requires, and was therefore erroneous. Hoffman v. Loud, 111 Mich. 156 (69 N. W. 231); Walsh v. Taitt, 142 Mich. 127 (105 N. W. 544).

The memorandum in question was two pages of a book produced by defendant, and purported to show the examination of the locomotive in question on the morning following the fire. One page read as follows:

“Aug. 4th. No. of engine 29; condition of grates, ash pan and dampers, good. By whom examined: N. Matheson.”

The other page was as follows:

“Aug. 4th. No. of engine, 29; condition of netting, good. By whom examined: N. Matheson.”

The book was kept in the usual course of defendant’s business, and the entries were properly admitted. Meyer v. Brown, 130 Mich. 449 (90 N. W. 285); Modern Match Co. v. Railroad Co., 140 Mich. 570 (104 N. W. 19).

The court admitted in evidence certified copies of the reports of the United States Weather Bureau, showing the condition of the wind on the 3d day of August (the day of the fire), from midnight previous to midnight following, at Escanaba and at Sault Ste. Marie, against the objection that such reports were incompetent, immaterial, and too remote. That such reports are admissible in a proper case we have no doubt. Hart v. Walker, 100 Mich. 406 (59 N. W. 174). But, in the absence of testimony tending to show that the direction of the wind at Escanaba, about 120 miles west of Dick, and at Sault Ste. Marie, about 40 miles east of Dick, had some tendency to show the direction of the wind at Dick, we think such records were not admissible.

The assignments of error included under this head are the ninth, sixteenth, and eighteenth, which are as follows:

“ The court erred in permitting leading^and suggestive questions to be put to the witness Cray; the testimony referred to being the following question, and other similar questions following it in the record:
Q. Did Mr. Myers, on that occasion, when you were there on the 18th of December, 1908, at Dick, say to you that the fire occurred between two lumber piles about 70 feet north of the track, and a little east of the switch, or words to that effect f
“(Objected to as leading, and that witness should state his own recollection of it first, before the words were put into his mouth.”
“The court erred in permitting leading questions to be put to the witness Cray, relative to certain conversations which he claimed to have had with the witness Myers, relative to insurance and the cause of the fire.”
“The court erred in permitting the witness Myers to be interrogated, relative to a certain conversation with witness Cray regarding insurance upon the property burned, and the statements of Myers made to Cray some time after the fire, relative to his theory as to the cause of the fire, and his conversation with insurance adjusters relative to it.”

Mr. Myers was plaintiff’s general superintendent at the time of the fire, was present at the station when the train came in, and gave very important testimony covering plaintiff’s entire cause of action, and great latitude was permissible on his cross-examination. We find no error on the part of the court relative to such cross-examination.

As to the examination of Mr. Cray, defendant’s claim agent, appellant’s brief alleges, “These matters were brought out under the subterfuge of attempting to impeach Myers j” and it is contended, among other things, that no proper foundation was laid for the impeaching questions. This point is not raised by the exceptions and assignments of error, and the trial judge, on the only occasion when the objection was made that Myers had not been interrogated upon the particular subject, struck out the answer. As the record stands, there was no prejudicial error in the court’s rulings.

We think it was reversible error for the defendant’s counsel to persist in bringing the subject of insurance to the attention of the jury after the court had ruled it out. Peter v. Railway Co., 121 Mich. 324 (80 N. W. 295, 46 L. R. A. 224, 80 Am. St. Rep. 500).

The judgment is reversed, and a new trial ordered.

Ostrander, C. J., and Moore, Me Alva y, Brooke, and Stone, JJ., concurred.

Bird and Steere, JJ., did not sit.