author: McAlvay, J. Ostrander, J.

text:
    INGLIS v. MILLERSBURG DRIVING ASSOCIATION.
    1. Appeal and Error — Saving Questions por Review — Motion por New Trial — Evidence.
    On error, without having moved for a new trial on the ground that a contract admitted in evidence was erroneously received, appellant is limited to the ground of objection stated in the lower court.
    2. Associations — Voluntary Organizations — Partnership — Statutes.
    An unincorporated driving association, organized under 3 Comp. Laws, § 10025, to clear land and construct a race track, may be sued as an entity or as individuals.

    3. Estoppel — Duty to Speak — Concealment op Facts.
    Where defendants, as an association, contracted with a third party to clear the land of the association during a dry season when the danger of fire was great, and where plaintiff notified the majority of the defendants in person of the danger of setting fires and of the escape thereof, defendants concealing the fact that an independent contractor was in charge of the work, and claiming, in answer to inquiries as to the persons in charge of the work, that the members of the association had charge of it, their acts constituted an estoppel in pais and prevent defendants from interposing, in defense of an action for negligently permitting the fire to escape, the point that an independent contractor was in control of the work. Ostrander and Blair, JJ., dissenting.
    4. Evidence — Judicial Notice — Facts op General Knowledge —Drought.
    The court will take judicial knowledge of the fact that during the summer of 1908 a severe drought prevailed in Presque Isle cpunty and in adjoining districts.
    5. Negligence — Contracts —Independent Contractor — Precautions.
    It is the duty of every person who does or causes to be done any act, which from its nature is liable, unless precautions are taken, to injure others, to see to it that those precautions are taken: he cannot avoid responsibility by turning the matter over to a contractor.
    6. Same — Fire, Escape oe — Master and Servant.
    Having notice of the danger of fire escaping on plaintiff’s premises, a driving association, which contracted with a third person in a very dry season to do the work of clearing premises controlled by the association, was liable to the injured owner.
    Error to Presque Isle; Emerick, J.
    Submitted November 21, 1911.
    (Docket No. 120.)
    Decided March 29, 1912.
    Rehearing denied June 1, 1912.
    Case by James Inglis against the Millersburg Driving Association and others for negligently permitting fire to escape upon plaintiff’s premises. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      C. S. Beilley and Frank D. Scott, for appellant.

      Henry, Henry & Henry, for appellees.

       As to right of action against unincorporated associations, see note in 2 L. R. A. (N. S.) 789.

       Liability of employer for acts of an independent contractor in setting out fire, see note in 17 L. R. A. (N. S.) 788.

   McAlvay, J.

This action was brought by plaintiff against defendants to recover from defendants damages for the destruction to his timber and injuries to his land by negligently, carelessly, and wantonly permitting and directing fires to be started on lands in their possession and under their control, and adjoining and immediately south of plaintiff’s homestead, in the county of Presque Isle. The declaration of the plaintiff contained three counts. The first two are based upon the statute; section 11653, 3 Comp. Laws. The third sets up a cause of action at common law. All of the individual defendants appeared and pleaded the general issue. Upon this issue the case came on to be tried before the court and a jury.

At the close of taking proofs in the case, during the examination of the last witness for defendants, who was president of the so-called association, and the last witness sworn, defendants offered and were allowed to put in evidence a certain contract between this association, so called, and a party named Lewis, executed by two of these defendants as president and secretary, for the clearing of certain land, supposedly the land on which these fires were started, under certain terms and conditions. The purpose of introducing this contract was to establish a defense that the acts which caused damage to the plaintiff were the acts of an independent contractor, for which defendants could not be held liable. A motion was made for an instructed verdict in favor of defendants on that and other grounds, which was granted by the court on the sole ground that Lewis was an independent contractor in clearing the land and setting fires, and that defendants were not liable for the damage to plaintiff for which suit was brought.

The Millersburg Driving Association was never incorporated. These individual defendants, intending to form such a corporation, signed such a writing to that effect, each subscribing $100. One other person, who is not a defendant herein, joined these parties, subscribing the sum of $20. They voluntarily associated together, and acted by agreement. It appears that the lands over which the fires ran and destroyed timber and burned the soil of plaintiff were located on three sections within one township. The Presque Isle County Agricultural & Mechanical Society was a fair association duly organized and doing business in Presque Isle county, of which all but two of the individual defendants in this case were members. In July, 1908, the Fair Association turned over to these defendants, under the name of the Driving Association, its fair grounds, being the W. £ of the N. E. 1 of the N. E. i of section 15, town 34 N., of range 3 W., Presque Isle county, under certain terms and conditions, for a period of 15 years, to clear 17£ acres thereof, and to stump a half mile race track. This land, of which these defendants took possession, joined plaintiff’s land located on. section 10 of said township upon the south, and upon it the fires were started which spread upon and over plaintiff’s lands, and caused the damage for which this suit was brought. The land described in the contract, which the court held created the relation of an independent contractor, was not the land of the Fair Association, above described, upon which the clearing and burning was being done at the time of the fire, under the claimed control and direction of defendants, but was located directly south of the fair grounds, and by metes and bounds described the west 45 rods of the S. E. of the N. E. ¿ of section 15. Plaintiff upon writ of error asks for a reversal of judgment against him.

The principal errors assigned relate to the direction of a verdict for the defendants and the holding of the court that, under this contract, defendants were not liable for damages caused by fire set by an independent contractor or his servants. Plaintiff relied upon a recovery on the common-law count of the declaration. We need not at this time state the case made by plaintiff in detail. Suffice it to say that, leaving out of consideration the bearing of this contract upon the questions involved, such evidence was abundant to go to the jury upon every material allegation of the count relied upon, and that, if we come to the consideration of this evidence, the court will, for that purpose, take it as true. As already stated, this contract came into the case at the close of the proofs. It was offered under the claim that it related to the fair grounds. It was not carefully read by plaintiff’s counsel, and was received in evidence over what are claimed by defendants to be general objections. No objection was made that under the plea it was not admissible. '

In plaintiff’s brief it is claimed that the first knowledge that such a contract existed or such a claim would be made was when it was produced in evidence on the trial, and the evidence on his part tends to show that defendants themselves claimed to be doing this clearing, and no mention of this contract was made to him. We do not observe that this claim is denied. As soon as plaintiff made the discovery that the contract did not cover this land, the attention of the trial court was called to the matter, and also the attention of counsel for defendants. A motion for a new trial was not made, as would have been the proper practice; therefore .plaintiff must rely upon objections made and exceptions taken at the time. Plaintiff contends that the court erred in admitting this contract, and also that, upon the facts and circumstances in this case, no defense of independent contractor can be interposed. The objection to the introduction of this contract at the time it was offered in evidence was as follows:

“Simply to protect our rights in the premises, may it please the court, we desire to interpose an objection to the admission of the evidence on the ground that it is incompetent, irrelevant, and immaterial, and for the further reason that the Millersburg Driving Association was not incorporated, and had no authority to enter into a contract of any kind.”

This was overruled and an exception taken. The record then proceeds:

“(The Court reads Exhibit B.) This agreement made this 28th day of July, 1908, by and between the Millers-•burg Driving Association of Millersburg, Michigan, of the first part, and E. M. Lewis of the village of Millers-burg, Michigan, of the second part, witnesseth: The said party of the first part covenants and agrees to and with the party of the second part as follows: The aforesaid E. . M. Lewis of the second part, agrees to clear up in a workmanlike manner the following described land: Commencing at the southwest corner of the southeast quarter of section 15, town 34 north, range 3 east; thence north 80 rods; thence east 45rods; thence south 80rods; thence west 45 rods to the place of beginning, less the acreage of land now cleared and being cleared, for the price of $15.00 per acre. And the aforesaid E. M. Lewis agrees to clear the above described land in a workmanlike manner ; that is to say, he agrees to cut all timber and brush, and to,remove the same either by burning the same or taking it from off the land. And it is further agreed that the work shall be done acceptably to the board of managers of the Driving Association. It is further agreed between the parties hereto that the clearing of the aforesaid described land shall be completed by September 1st. The Millersburg Driving Association, party of the first part, agrees to pay E. M. Lewis the price of $15.00 per acre for clearing the aforesaid described.land, as follows: One-half of the price per acre as the work shall progress and be acceptable to the board of managers; and the balance, that is to say, $7.50 per acre, when the aforesaid land shall have been cleared and accepted by the board of managers. And for the true and faithful performance of all and every of the covenants and agreements above mentioned the parties to these presents bind themselves, each unto the other, in the penal sum of one dollar as fixed and settled damages to be paid by the failing party. In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first above written.
“ The Millersburg Driving Association,
“ By N. C. Monroe, President. [L. S.]
“B. Mitchell, Secretary. [L. S.]
“E. M. Lewis.
“Signed, sealed, and delivered in presence of:
“Charles Atkins.
“H. L. Abrahams.”

It is claimed by plaintiff that, whether for any reason this contract as between defendants and the independent, contractor was or was not valid and enforceable, it is not material, for the reason that the court was in error in directing a verdict against him on account of said contract; that defendants under the circumstances of this case were estopped by their misrepresentations, and their silence when they should have spoken, from interposing such a defense. The brief of defendants concedes that this unorganized voluntary society was capable of suing and being sued. Such admission necessarily follows the reliance upon such contract as a relief to them from liability.

The court in his charge to the jury correctly held that these defendants were carrying on their operations by agreement, associated together for a definite purpose, that they were responsible for their acts individually, and as a whole. This court has so held. Detroit Light Guard Band v. Independent Infantry, 134 Mich. 598 (96 N. W. 934), and cases cited; section 10025, 3 Comp. Laws.

The record shows affirmatively that a majority of these defendants were personally notified and warned of the danger and damages which would .arise from setting these fires. Such notices and warnings were given by plaintiff’s sons at times when they were making inquiry as to who were the parties responsible and in control of this work. No one of these defendants claimed or intimated that there was any independent contractor; on the contrary, when asked directly who was in charge and control, it was stated that the work was in the hands of the stockholders, and one of them stated that he was the manager of this work. Further, at the request of one of .plaintiff’s sons to a defendant, a promise was made to bring the matter of the notice and warning before all the stockholders, which was done, and the answer was returned that, when they needed instructions in the management of their business, they would call for it. The fact that there was an independent contractor was directly concealed and suppressed by them when, by reason of the notice and warning of the danger arising from setting fires and inquiries as to who were the responsible parties, opportunity was offered and defendants were in duty bound to give the information if they had it, and relied upon it. Their conduct and statements misled plaintiff, and gave him distinctly to understand that they were responsible, and deprived him of the right and opportunity to give notice and warning to and deal with the independent contractor. We are forced to agree with this contention, and can come to no other conclusion but that defendants are estopped from interposing the defense that they are not liable by reason of this independent contract. It is well established that an estoppel arises from silence as well as from statements, when there is a duty and an opportunity to speak. There was in this case on the part of the defendants both a duty and an invitation, and defendants did not speak. Every element of an equitable estoppel has been established by the testimony on the part of plaintiff. The general doctrine of estoppel in pais is familiar, and has been frequently recognized and applied by this court. Citation to these decisions is not necessary. The court was in error in holding that defendants were relieved from liability by this contract.

The facts and circumstances of this case, as presented by the plaintiff’s evidence, as far as its consideration at this time is concerned, must be accepted as true, together with all legitimate inferences to be drawn therefrom. There appears to be no dispute about the ownership of these lands of plaintiff and the Fair Association, or that the fire occurred as claimed and ran over the plaintiff’s lands, causing great damage. Plaintiff made ample proof of this, and also that defendants took control and possession of the fair grounds, and caused them to be cleared; that the season was the dryest ever known in that country, and great care and caution were necessary to protect and guard against fires; that many of these defendants were personally notified of these dangers, and requested to use care in the matter of setting fires to burn over this land south of plaintiff’s homestead; that no attention was paid to the warnings given, but the brush and trees on the fair grounds were cut, piled, and fired by those in control and occupying said lands when a strong wind was blowing toward plaintiff’s property, in what was claimed to be a wanton, careless, and wilful disregard of plaintiff’s rights.

In addition to the evidence on the part of plaintiff in that regard, this court, from its files and records, and from its knowledge of the history of that locality, will take judicial notice of the great drought during that summer and fall, and the great danger to life and property from extensive forest fires.

The further contention of plaintiff is that, if the contract we have considered was admissible, or the proofs of defendants would show that the damages in this case arose from the acts of the servants of an independent contractor, the court erred in instructing a verdict for defendants, for the reason that, under the circumstances and known conditions, and the warnings of defendants, it was their duty to use all reasonable precautions to prevent damage by fire, and they were not only bound to stipulate in the contract that proper precautions should be taken, but also to see that they were observed, otherwise they would be liable for consequences; that there are exceptions to the general rule that the principal is not liable for damages arising from the wrongful acts of an independent contractor. We agree with this contention. It is founded upon reason and authority. Judge Cooley, in his work on Torts, says:

“ If I employ a contractor to do a job of work for me which, in the progress of its execution, obviously exposes others to unusual perils, I ought, I think, to be responsible, * * * for I cause acts to be done which naturally expose others to injury.” 8 Cooley on Torts (3d Ed.), p. 1091.
This exception was recognized in a recent case by this court (Rogers v. Parker, 159 Mich., at pages 282 and 283 [123 N. W. 1111, 34 L. R. A. (N. S.) 955, 18 Am. &Eng. Ann. Cas. 753]), where the following quotation taken from an eminent author is quoted:
“ So it is the duty of every person who does in person, or causes to be done by another, an act which from its nature is liable, unless precautions are taken, to do injury to others, to see to it that those precautions are taken, and he cannot escape this duty by turning the whole performance over to a contractor, etc. Mechem on Agency, § 747, and cases cited.”

In 86 Cyc. pp. 1559, 1560, this rule is recognized, and the cases there cited amply sustain it:

“Where the work is dangerous of itself, or as often termed, * inherently ’ or intrinsically ’ dangerous, unless proper precautions are taken, liability cannot be evaded by employment of an independent contractor to do the work. Stated in another way, where injuries to third persons must be expected to arise, unless means are adopted by which such consequences may be prevented, the contractee is bound to see to the doing of that which is necessary to prevent the mischief. The injury need not be a necessary result of the work, but the work must be such as will probably, and not which merely may, cause injury if proper precautions are not taken.”

It is suggested that to hold in accordance with this recognized exception to the general rule applied in the case of an independent contractor is to abrogate the rule as followed by this court. It would seem that a careful consideration of what has been said in this opinion, and of the authorities cited, is a sufficient answer to such suggestion. Mr. Justice Blaie, speaking for this court, in Rogers v. Parker, supra, a case framed entirely upon the statute, from which we in this opinion have taken this quotation from Mechem, supra, said:

“It seems evident that the liability of the owner of lands for negligently permitting fire to escape therefrom is predicated upon his knowledge of the existence of a fire thereon, or, at least, of knowledge of facts which would charge him with notice that the danger of such fire breaking out thereon was imminent. This record is barren of any such evidence.”

The Supreme Court of Ohio in a well-considered case has approved this doctrine, quoting from the leading English cases:

“ The doctrine of independent contractor, whereby one who lets work to be done by another, reserving no control over the performance of the work, is not liable to third persons for injuries resulting from negligence of the contractor or his servants, is subject to several important exceptions. One of these, applicable as we think to this case, is where the employer is, from the nature and character of the work, under a duty to others to see that it is carefully performed. It cannot be better stated than in the language used by Cockburn, C. J., in Bower v. Peate, 1 Q. B. Div. 321, 326, a leading and well-considered case. It is, ‘ that a man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbor must be expected to arise, unless means are adopted by which such consequences may be averted, is bound to see the doing of that which is necessary to prevent mischief, and cannot relieve himself of his responsibility by employing some one else— whether it be the contractor employed to do the work from which the danger arises, or some independent person — or to do what is necessary to prevent the act he has ordered done from becoming unlawful.’ It was suggested by Lord Blackburn in Hughes v. Percival, 8 App. Cas. 443, that this was probably too broadly stated. But in the recent ease of Hardaker v. Idle District Council (1896), 1 Q. B. 347, the doubt expressed by Lord Blackburn was regarded as unwarranted, and the principle as formulated by Cockburn was adopted and applied. This does not abrogate the law as to independent contractor. It still leaves abundant room for its proper application. ‘ There is,’ as stated by Cockburn, ‘ an obvious difference between committing work to a contractor to be executed, from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless precautionary measures are adopted.’
“The weight of reason and authority is to the effect that, where a party is under a duty to the public, or third person, to see that work he is about to do, or have done, is carefully performed, so as to avoid injury to others, he cannot, by letting it to a contractor, avoid his liability, in case it is negligently done to the injury of another.” Covington, etc., Bridge Co. v. Steinbrock & Patrick, 61 Ohio St. 215 (55 N. E. 618, 76 Am. St. Rep. 375), and cases cited.

The principle involved cannot be better stated than it is in the sentence last quoted, supra. It is not applied to those cases where the injuries occur which are collateral to the employment, like the dropping of material by the servant of a contractor upon a person passing by, but where a duty is imposed upon the employer in doing work necessarily involving danger to others, unless great care is used, to make such provision against negligence as may be commensurate with the obvious danger. It is this duty which cannot be delegated to another so as to avoid liability for its neglect. The facts in the instant case bring it squarely within the rule contended for by plaintiff, supported by the great weight of the authorities. There was a condition of great danger caused by an unprecedented drought, apparent to every one, cautions and warnings had been given, yet no precautions were required or enforced, in fact, defendants acted in permitting these fires to be set with utter disregard of consequences, which, under the conditions, naturally resulted from such conduct.

The court was in error in instructing a verdict for defendants. '

The judgment is reversed, and a new trial ordered.

Steere and Brooke, JJ., concurred with McAlvay, J.

Ostrander, J.

I concur upon the ground that upon the facts the case may fall within the exception to the rule that an independent contract excused the defendants. I think no estoppel was made out and that none can be.

Blair, J., concurred with Ostrander, J.


source: Caselaw Access Project

license: Public Domain

text:
    PEOPLE v. ADLER.
    1. Intoxicating Liquors — Evidence—Beer—Local-Option Law —Statutes.
    Evidence that respondents, father and son, engaged in the business of bottling beer and soft drinks, kept a place fitted up as a bar, purchased beer from breweries in other counties on the order of their customers and delivered cases of liquor to the persons giving orders, without reference to the names to which the goods were consigned, that they also furnished beer by the glass, which was paid for, and cases and bottles bought by customers on the premises, with proof that liquors so sold were intoxicating, sustains a conviction for keeping a place of business where intoxicating liquors were sold, stored and furnished in violation of the local-option law. 3 Comp, laws, section 5413 et seq.; Act No. 183, Pub. Acts 1899; Act No. 107, Pub. Acts 1909.

    3. Appeal and Error — Record—Italics.
    It is improper practice to italicize clauses and paragraphs of the printed record. Supreme Court Rule 35.
    3. Same — Assignments op Error — General Character.
    The Supreme Court will not consider a general assignment of error that the “ court erred in its whole charge, as there was no testimony in the case to support the charge as given.”
    4. Evidence — Intoxicating Liquors — Internal Revenue Receipt-Joint Respondents.
    Evidence was competent that one of the respondents charged with violating the local-option law had obtained a receipt of the United States deputy collector of revenue for the payment of the $35 liquor dealer’s tax; no objection having been raised at the trial that such proof was inadmissible as to the other respondent.
    Exceptions before sentence from Jackson; Parkinson, J.
    Submitted November 16, 1911.
    (Docket No. 189.)
    Decided March 29, 1912.
    Fred G. Adler and Garfield A. Adler were convicted of violating the local-option statute.
    Affirmed.

      Nathan E. Bailey, Prosecuting Attorney, and_M. Grove Hatch, Assistant Prosecuting Attorney, for the people.

      Forest G. Badgley and Verne W. Badgley, for respondents.

       Is proof of sale of “lager beer” sufficient to sustain a conviction for unlawful sale of “intoxicating liquors,” in absence of proof that it is intoxicating, see note in 7 L. R. A. (N. S.) 195.
      Is proof of sale of • ‘ beer ” sufficient to sustain a conviction under statutes prohibiting sale of vinous, malt, fermented, or intoxicating liquors, see note in 35 L. R. A. (N. S.) 446.

   McAlvay, J.

Respondents were prosecuted and convicted upon an information charging a violation of the local-option law then in force in Jackson county, the material portion of which information is as follows:

That on the first day of September, A. D. 1909, at the city of Jackson, and in the county aforesaid, and on divers days and times between that day and the 27th day of August, 1910, one Fred G. Adler and Gar. A. Adler * * * did in a certain building situated in the city of Jackson, etc., * * * keep a place where malt, brewed, fermented and intoxicating liquors were sold, stored for sale and furnished, * * * contrary,” etc.

This information contained three counts. Upon arraignment respondents stood mute, whereupon a plea of not guilty was entered by the court. A motion on their behalf was then made to quash the information, for the reason that it charged respondents with separate and distinct offenses. The people then elected to proceed to trial upon the first count of the information above quoted, striking out the words “ malt, brewed and fermented ” from the. last sentence of such quotation. The trial proceeded upon the information as amended, reading:

“ Did in a certain building situated in the city of Jackson and county aforesaid keep a place where intoxicating liquors were sold, stored for sale and furnished, contrary,” etc.

This trial was had in the November term of court, 1910, and resulted in a disagreement of the jury. In January, 1911, the case was brought on for a retrial by the present prosecutor, who had assumed the duties of the office on the first of that month. From the conviction obtained on that trial respondents ask a reversal upon exceptions before sentence. The fact that the local-option law was then in force in Jackson county is not in dispute.

The assignments of error relied upon and discussed by respondents are to certain portions of the charge of the court, and upon the admission of certain evidence, and the refusal to strike out testimony of a certain witness. Before proceeding to discuss the questions raised by the errors assigned, a statement of certain material facts will be necessary to a proper understanding of the case.

Respondents are father and son. The father, Fred G. Adler, had, for many years before local option was adopted in Jackson county, been engaged at No. 117 East Pearl street, in tbe city of Jackson, in carrying on the business of bottling beer, soda, and mineral waters and soft drinks, and, in connection with the bottling business, sold barroom and bottlers’ supplies. This is the place which, it is claimed by the prosecution, was kept by the respondents “where intoxicating liquors were sold, stored for sale, and furnished.” Since local option was adopted Mr. Adler, Sr., has had the agency of “Peter Hand Beer” for five counties. The testimony shows that “this is a temperance beer.” After September 1, 1909, he has also been engaged at this place in taking orders to Koppitz-Melehers Brewing Company and the Voigt Brewing Company of Detroit for lager and other beer manufactured by them, and, it is claimed by respondents, for no other brewers. These order blanks were furnished by the elder Adler and signed by the individual desiring beer, and, with the price in cash and enough to pay the freight from Detroit, were handed to Mr. Adler, who sent them, less freight money, forward to be filled, and, when received at Detroit, were filled by the consignor (brewer) and shipped to Jackson, each case or package marked to the consignee. The money paid for freight was put into a receptacle to be paid later to the transportation companies. A sample of one of these orders does not appear in the record.

The connection of the respondent Gar. A. Adler, as he contends, was that of an expressman. He says that, for the purpose of complying strictly with the law, he procured and had printed a certain blank prepared by. a Mr. Hart, prosecuting attorney of Lenawee county. Respondent testified:

“He had studied the local-option question very thoroughly, and that was one of the points he brought out. It was also in conformity with the United States Penal Code, and that was the reason why I was acting to obey the law in Jackson county, so I had the blank printed.”

The following is a copy of this delivery order blank in actual use by this respondent:

“Consignee’s standing order for delivery of intoxicating liquors.
“Jackson, Mich.,-, 190-.
“ On-Agent or Company.
“You are hereby notified that Gar. A. Adler is our regular and exclusively employed agent and authorized to take, deliver and receipt for all consignments of intoxicating liquors consigned to the undersigned and shipped under the provisions of Section 238 of the U. S. Penal Code of January 1, 1910.
“R. H. Baylbss,
“ Signature of Consignee.”

These orders are given by the persons ordering beer through Mr. Adler, Sr., for the delivery of the beer so ordered. When a shipment of beer was made from Detroit, respondent testified:

“ I get a notification sheet from the brewery with a list and go to the interurban station and check up the list with the man in charge, to know that the beer is there. Ifjfjthe beer is there, he delivers me the beer. * * * This is part of the business method of the brewery. * * * I have filed these orders for delivery of beer with the railroad companies.”

Relative to beer for which he had no delivery orders he testified:

“ Some of the people who have given the orders come down to my father’s place and get their beer. I transfer it from the place where it is unloaded over to my father’s place, and leave it there for them. It is left out on the sidewalk. At night, if they have not been there after it, it is taken inside. My father has never objected to, or never consented to, this. He knew about it.”

This respondent states that his father for taking orders received no compensation whatever. He says:

“ I do not know that he does that for fun. It is a matter of retaining trade which he has worked 30 years to secure. I think that is reason enough.”

He states that he gets nothing for delivering the beer, but is paid by the brewing companies 20 cents for each case of empties he returns. As to the payment of the freight on orders, he first says:

“When a purchaser orders the beer, he leaves the money to pay the freight. * * * It is left at my father’s place. The freight office sends a man to come and get it. * * * I never paid any freight myself.”

Then he testifies:

“The entire amount that pays for freight is left for me. It is left at the place. There was a receptacle there in the place for the purpose of leaving their money. It is in the office. I go there after it. Freight on a case of beer would be 25 cents.”

He said that occasionally he had orders for beer handed to .him with the money, which he would hand over to his father as an accommodation to the purchaser. As to delivering the beer to the consignees, he testifies:

“I do not take any particular case that is shipped to the particular man and deliver that to him. I start and take the first I come to. I take it just as it comes. I pay no attention to the names on the cases. * * * It is immaterial to me so long as a man gets a case. That is all he cares about. It is nothing to me.”

Respondents’ testimony has been freely quoted so as to show fairly their claim as to how this business was conducted and the relations of the respective respondents to it.

On the part of the people there is evidence tending to show that beer by the glass was sold and paid for at this place; also, that beer was kept there in cases and sold there and paid for, and the bottles put into suit cases and carried away; that beer in cases was sold and paid for at the place and delivered elsewhere; also, that the beer sold and drank there was intoxicating. A witness testified:

“I bought drink in there of an intoxicating nature. I think the first was on the 19th of November. I got lager beer. Mr. Adler and the bartender were there, I mean the old gentleman. At that time I paid for six or seven beers. The beer man served it. I since learned that it was Mr. Adler’s son. The room was fixed up as an ordinary barroom.”

This testimony of the prosecution as to the sales of beer made there at this place and kept there as charged was denied by respondents’ witnesses.

Respondents’ principal contention is that the court was in error in refusing to give their fourteenth and fifteenth requests to charge. The substance of these requests was that the people must prove, among other things, that the liquor in question claimed to have been sold, stored for sale, and furnished at this place was intoxicating liquor. The statute under which this prosecution was brought provides:

“ It shall be unlawful for any person, directly or indirectly, himself or by his clerk, agent or employé, to manufacture, sell, keep for sale, give away or furnish, any vinous, malt, brewed, fermented, spirituous or intoxicating liquors, or any mixed liquor or beverage; any part of which is intoxicating, or keep a saloon or any other place, where any such liquors are manufactured, sold, stored for sale, given away or furnished.” [Act No. 207, Pub. Acts 1889.]

There is no claim maae tnat the information upon which respondents were convicted did not charge an offense under this statute. An excellent brief in support of the contention that the court should have charged as requested is presented. All available authorities are cited and digested. It is apparent that upon the question the authorities are not in harmony. This court has already passed upon the question, holding that the weight of the authorities is against the respondents’ contention. People v. Anderson, 159 Mich. 185 (123 N. W. 605, 25 L. R. A. [N. S.] 446). To the same effect was the decision in an earlier case. People v. Boos, 155 Mich. 407 (120 N. W. 11). In the instant case there was direct evidence that the lager beer claimed to have been purchased and furnished at this place was intoxicating.

Before proceeding further to discuss the errors assigned upon the charge of the court, we desire to call the attention of counsel for respondents to the fact that on preparing and furnishing this record they have, perhaps unintentionally, taken unwarranted liberties with the text of the charge by italicizing certain clauses and paragraphs. During the present term of this court it has been necessary several times to call attention to and criticise such conduct. It is not warranted by the rule, and its purpose is to emphasize certain portions of the record in the interest of one of the parties. By briefs and arguments of counsel, the court’s attention may be called to such portions of the record as are claimed to show that error has been committed.

The next error assigned which is discussed reads:

“ The court erred in his whole charge, as there was no testimony in the case to support the charge as given.”

This court has frequently held that such an assignment is too general, and will not be considered. Snyder v. Patton & Gibson Co., 143 Mich. 350 (106 N. W. 1106).

A receipt to F. G-. Adler for $25 as retail liquor dealer at this street and number, given by the United States deputy collector of revenue, covering part of the period of time during which the offense was charged, was offered and received in evidence, to which an exception was taken and error assigned. In the discussion of this assignment of error, the brief of counsel for .the respondents contains the following:

“ We admit that the proof in question might be some evidence tending to show that the respondent Fred Gr. Adler was engaged in keeping a place for the sale of intoxicating liquors. It would not be evidence against the respondent Gar. A. Adler, and it was improperly admitted as against him.”

The record shows that no such objection was made at the time the paper was allowed in evidence. The objection was:

“We object to it as immaterial, having no bearing on the case.”

No discussion is necessary. The trial couife at considerable length in his charge submitted the case-to the jury, and in the entire charge we do not find any error in his statement of the law. While it does appear that both court and counsel overlooked the fact that the information had been amended, yet there is nothing prejudicial or contradictory in the charge applied to a case where an information had been amended, as this was, confining the offense to intoxicating liquors, and nothing in it whereby the jury could have been misled. The portion of the charge relative to the weight which the jury might give to the testimony of hired detectives was not erroneous, but correctly stated the law.

The complaint is made that the evidence did not warrant a joint conviction of respondents or a conviction of either. The court with care guarded the rights of respondents in this respect, and the verdict is supported by abundant evidence. It is apparent from reading this record that this whole business was a subterfuge carried on by these parties supposedly in a way to avoid any criminal liability on the part of either. The evidence shows that both were engaged in the enterprise, and each had knowledge of the part the other performed.

The jury has found that defendants were guilty. It is apparent that in arriving at such conclusion they were justified by the proofs covering the entire scheme, from the giving of the orders and paying for beer, to the reckless delivery of the goods when notification came to one of them when shipment was made. We find no reversible error in the case. The conviction is affirmed, and the court below will in due form proceed to judgment.

Steere, Blair, and Stone, JJ., concurred with Mc-Alvay, J.

Ostrander, J.

(concurring). The information referred to intoxicating liquor only. It would not have supported a conviction for keeping a place where fermented liquors were kept or sold without proof that the liquor was intoxicating. People v. Hickman, 164 Mich. 672 (130 N. W. 331).

This court has not held that a charge of selling or keeping for sale intoxicating liquor is sustained by proof that beer or cider was sold or kept for sale without further proof that the liquor was intoxicating. In People v. Anderson, 159 Mich. 185 (123 N. W. 605, 25 L. R. A. [N. S.] 446), the testimony was that beer was sold, and the contention answered by this court was that “beer” did not necessarily import “any of the qualities of the prohibited liquor.” The information charged the furnishing of malt, brewed, fermented, spirituous, and intoxicar ing liquor.

In People v. Boos, 155 Mich. 407 (120 N. W. 11), the charge was of selling spirituous, malt, brewed, and fermented liquor, and the proof was that respondent sold lager beer. It does not appear that the point was made that lager beer was not either one or other of the liquors described in the information. The point was that the prosecution had not shown that the business of selling liquor was carried on.

The charge that one keeps for sale or sells fermented liquor is not required to be supported by proof that the liquor is intoxicating, and proof that it is not intoxicating is not a defense. People v. Kinney, 124 Mich. 486 (83 N. W. 147). The court should therefore have charged the jury, as requested to do, that the people were required to prove that the liquor claimed to have been sold, stored for sale, and furnished was intoxicating liquor. But the failure to so instruct the jury was not prejudicial error. The consignee orders upon which respondents rely in part for protection are standing orders for delivery of intoxicating liquors. It seems that a federal tax was paid, and there is also the positive testimony of a witness that he bought and drank at the place lager beer which was of an intoxicating nature. Respondents admittedly handled the beers of well-advertised and well known breweries in the State.

I agree in the conclusion stated in the opinion of Mr. Justice McAlvay.


author: Steers, J.

text:
    McDOWELL v. WARDEN OF MICHIGAN REFORMATORY AT IONIA.
    1. Prisons — Reformatories—State—Actions.
    Act No. 219, Pub. Acts 1911, repeals the provisions of section 2091, 1 Comp. Laws, authorizing the wardens of State prisons to be sued.
    2. Same — Parties—Warden.
    An action against the warden of the Michigan reformatory at Ionia for breach of a contract, made in his official capacity, is an action against the State.
    3. Same.
    The State can only be sued with its consent granted by a legislative act.
    4. Same — Constitutional Law.
    And its consent may be withdrawn at any time without impairing contractual rights.
    6. Same.
    On repeal of a statute authorizing suit against the State, the court in which an action against the State as defendant is pending can proceed no further.
    6. Same — Appeal and Error — Dismissal.
    Where the repealing act took effect after the rendition of judgment, in an action of assumpsit against the warden of a State reformatory, the case will not be dismissed on defendant’s motion to terminate all proceedings in the cause or upon the judgment, made in the Supreme Court, to which it was removed by writ of error; since the only method of procedure would be to dismiss the writ of error, leaving the judgment in force, if the amendment of the statute deprives the court of jurisdiction to proceed.
    Assumpsit by Joseph S. McDowell against Otis Fuller, warden of the Michigan reformatory at Ionia. On motion of defendant and appellant to dismiss the cause of action.
    Submitted December 8, 1911.
    (Calendar No. 24,591.)
    Motion denied March 29, 1912.

      Franz G. Kuhn, Attorney General, and Thomas A. Lawler, Assistant Attorney General, for the motion.

      Smith, Baldwin & Alexander (Alfred A. Cook, Charles K. Allen, and Standish Chard, of counsel), contra.

   Steers, J.

The questions involved in this controversy are presented by a motion of the attorney general in behalf of the State of Michigan and defendant Fuller to dismiss said action and all proceedings in connection therewith, and to enter an order determining that plaintiff is now without authority to proceed further to collect a judgment heretofore rendered therein. The motion is founded on the repeal of section 3091, 1 Comp. Laws, under authority of which statute said suit was brought and prosecuted to judgment in the circuit court of Jackson county.

The plaintiff is assignee of the firm of Edward Wallenstein Company, which on December 17,1897, entered into a contract with defendant Otis Fuller, warden of the Michigan reformatory at Ionia, for the manufacture of shirts and employment of prison labor in that institution, said contract to continue for the period of 10 years, ending May 1, 1908. Subsequently, and before the expiration of the contract period, the board of control of said reformatory declared said contract forfeited and terminated the same, defendant, under direction of said board, forcibly ejecting said company, with all its tools and appliances, from said institution. Shortly thereafter suit was begun to recover damages for breach of said contract in the circuit court of Ionia county. That suit was discontinued March 18, 1904, and shortly thereafter suit was again commenced in the circuit court of Wayne county, from whence, under the provisions of the statute applicable thereto, it was transferred to the circuit court of Jackson county, where it was tried in April, 1910. The case was tried before a jury, and occupied in the neighborhood of three weeks; a verdict and final judgment in favor of the plaintiff for $22,000 being rendered and entered on April 23, 1910. Sixty days’ time was granted to defendant to settle a bill of exceptions, which was extended by the court from time to time against objection the bill of exceptions finally being settled and signed on May 25, 1911. A writ of error was sued out removing the case to this court. The record has not yet been printed.

In the meantime the legislature passed Act No. 219 of the Public Acts of 1911, amending said section 2091, under which this suit was authorized, in effect repealing the same in so far as the right to bring an action against the warden of the prison, as such, is concerned.

That the right to sue was withdrawn is manifest by a comparison of the. relevant portions of the two laws, which are as follows:

“All the fiscal transactions and dealings on account of each prison shall be conducted by and in the name of the warden thereof, who shall be capable in law of suing and being sued in all matters concerning the said prison, by his name of office; and by that name he is authorized to sue for and recover all sums of money, or any property due from any person to the state on account of any business pertaining to the prison in his charge.”
“All the fiscal transactions and dealings on account of each prison shall be conducted by and in the name of the warden thereof, with the consent and approval of the board of control. Whenever in the judgment of the warden it is necessary to institute any proceeding against any person, firm or corporation, for the recovery of any sum of money due the in. stitution, or to protect the rights thereof, he shall lay the matter before the board of control and if the said board shall deem such proceeding necessary, the warden shall be authorized with the approval of the attorney general to institute same in his own name and shall be represented in such proceeding by the attorney general.”

The reasons urged in support of this motion by the attorney general are briefly stated as follows:

“ (1) That the statute which authorized plaintiff to institute the suit against the warden of the Michigan reformatory is repealed.
“ (2) That the repeal of the statute which conferred jurisdiction to proceed against the warden of the Michigan reformatory operates to terminate all actions and proceedings pending under the repealed statute.
‘ ‘ (3) That the suit against the warden is a suit against the State, and the right to sue is a privilege which the State may withdraw at any time.
“ (4) The repeal of section 2091, 1 Comp. Laws, does not violate the obligation of any contract.”

The propositions urged against said motion by plaintiff’s counsel are thus stated:

(1) This is not an action against a sovereign State.
“ (2) The judgment is a vested right which cannot be disturbed by legislation, being protected by the Constitution of the United States.
“ (3) The only way in which the present appeal can be affected by the legislation relied upon is to withdraw jurisdiction from this court, in which case the judgment below remains unaffected.”

The first question naturally arising, which would be a final one in this inquiry if determined in the negative, is whether this suit is in legal effect against the State. The State is not named as a party in the action.

It is contended in behalf of plaintiff that this cannot be presumed to be an action against a sovereign State; that the State is not named as a defendant, and, where jurisdiction depends on the party, the record must govern; that, even though the defendant assumed to act in his official capacity as a representative of the sovereignty, if his acts were tortious, in violation of law and without authority from the State, he became liable as a private individual, and the action is in fact as well as form against him and not the State.

It was formerly held in this State and elsewhere that in cases where jurisdiction depends on the parties the record must control (Michigan State Bank v. Hastings, 1 Doug. 225 [41 Am. Dec. 549]; Osborn v. U. S. Bank, 9 Wheat. [U. S.] 738); but it has long since been well settled by abundant authority that the courts can and will look through and beyond the nominal parties on a record to determine who are the real parties in interest to a suit.

In so far as appears from what is presented in this motion, defendant Fuller is sued and declared against as “warden of the Michigan reformatory,” not as a private individual but as a State official, touching a contract made by him in his capacity as such warden and while acting as agent of the State, under statutory authority, in charge of one of its penal institutions. It is asserted in the attorney general’s brief, and not denied, that the case was tried and treated by plaintiff’s counsel in the trial court as a case against the State, for which reason fhe trial court, with consent of plaintiff’s counsel, required no bond to stay execution on writ of error. Defendant is sued “by his name of office ” under authority of the same act which empowered him to make the contract for the State. He is not claimed to have acted, and is not sued, as a private individual. His participation in terminating the contract in question was in. an official capacity, as warden, by authority of the board of control of said institution, a legally constituted agency of the State, under whose direction he conducted the affairs of the institution.

While the contract purports to be the contract of the warden, and he is the nominal party defendant, it was in truth a contract with and for this State, negotiated by and through him as its agent, thus making this action intrinsically against the State of Michigan. State v. Mortensen, 69 Neb. 376 (95 N. W. 831, 5 Am. & Eng. Ann. Cas. 291); Hopkins v. Agricultural College, 77 S. C. 12 (57 S. E. 551); Mills Publishing Co. v. Larrabee, 78 Iowa, 97 (42 N. W. 593); Hagood v. Southern, 117 U. S. 52 (6 Sup. Ct. 608); In re Ayres, 123 U. S. 443 (8 Sup. Ct. 164); Pennoyer v. McConnaughy, 140 U. S. 1 (11 Sup. Ct. 699); Ambler v. Auditor General, 38 Mich. 746; McElroy v. Swart, 57 Mich. 500 (24 N. W. 766); Wheeler v. Board of Control, 137 Mich. 291 (100 N. W. 394); Pitcock v. State, 91 Ark. 527 (121 S. W. 742, 134 Am. St. Rep. 88); Thomas v. State, 16 Idaho, 81 (100 Pac. 761); 13 Enc. Pl. & Prac. p. 654; 36 Cyc. p. 915. The State is sued in the name of its officer and agent by his “ name of office” under express permission and authority granted by said section 2091, without which the suit could not have been so instituted. Act No. 219, Pub. Acts 1911, amending said section, took away both the independent right of the warden to sue others and all right of others to sue him, and to that extent repealed in terms said section.

Amendments operate as repeals to the extent that they are repugnant to, or are inconsistent with, the original act. Breitung v. Lindauer, 37 Mich. 217; People v. Bussell, 59 Mich. 104 (26 N. W. 306); Attorney General v. Amos, 60 Mich. 372 (27 N. W. 571); Attorney General v. Commissioner of Railroads, 117 Mich. 477 (76 N. W. 69).

It is a long established and well recognized principle of sovereignty that a State cannot be sued without its consent, granted by legislative enactment.

The State is at liberty to determine for itself whether it may be sued and in what manner. Laws governing such consent may be repealed at any time, and, as a general rule, upon repeal of a statute authorizing suit against a State, not only can no suits thereafter be brought, but the court in which suit against a State is pending can proceed no further. This principle has been more than once recognized and announced in decisions of this court, and is thus stated in sweeping terms by Justice Campbell in Board of Supervisors of Sanilac County v. Auditor General, 68 Mich. 659 (36 N. W. 794), as follows:

“But there can be no doubt of the power of the State legislature to refuse to perform even a contract, and, where it forbids the application of money in the State treasury to any particular use, no court can interfere. The State is not liable to suit except as it authorizes a suit, and this authority can be revoked at pleasure. This is such elementary doctrine that it only needs statement.”

This, however, was said in a mandamus proceeding involving a statutory right and before judgment. In Wheeler v. Board of Control, supra, it was said:

“The right to sue and be sued conferred upon the board by the original act did not form a part of the contract. The State may grant the right to bring suit against it, and it may at any time take that right away, without impairing the obligation of its contracts.”

This was said in a suit brought against the defendant board upon a contract for installing a heating plant in the State public school at Coldwater. When the contract was made, the board was, by statute, a corporate body capable of suing and being sued. Subsequently, and before suit was brought, the legislature took from the board its corporate powers and the right to sue and be sued. Numerous authorities from many jurisdictions are cited upholding this general rule, but in most of them we observe that the legislation became operative before the cases had passed to judgment. In the attorney general’s brief it is said:

“The law seems well settled that in the present case all proceedings are terminated. * * * There is now no statute under authority of which the judgment can be enforced. If the case were pending in the circuit court, it would have to be dismissed, as that court would not be able to find jurisdiction to act. The same rule is applicable to this court. It is a question involving jurisdiction, and the legislature has destroyed and taken away whatever jurisdiction was ever possessed by any court to hear, try, and determine this cause. * * * We believe that plaintiff is without authority to proceed further, and that an order should be entered in this court dismissing the case.”

Counsel for plaintiff contend, citing numerous authorities, that a judgment, not founded on tort or rights of a purely statutory origin, but resting on certain common-law contractual relations, is a vested right, protected by the Constitution, which cannot be taken away or impaired by any subsequent legislation, whether the judgment be against the State or a private individual; and in conclusion they ask that this motion as a whole be denied, but add that they are agreeable to the contention of the attorney general that jurisdiction is withdrawn from this court by said Act No. 219, Pub. Acts 1911, and that “ all proceedings are terminated.” In harmony with such view of the case they freely consent that the writ of error be dismissed, leaving the case to stand as though the same had never been issued. To this the attorney general replies in the supplemental brief:

“We feel sure the court will not be misled by the stress laid upon one sentence taken from our brief filed in support of this motion. * * * This court is moved ‘ to dismiss this cause and all proceedings thereunder and incident thereto and to enter an order determining that the said plaintiff is without authority to proceed further with the cause or attempt to collect the judgment heretofore rendered,’ ” etc., and requests that said motion as made be granted or denied.

If the motion is denied, leave is asked to print the record and proceed with the case in this court.

If the claim that this court is divested of jurisdiction by said amendment is well founded, we think that the court could go no further than to arrest all further proceedings and dismiss the writ of error. It cannot consistently dismiss a case because deprived of jurisdiction and at the same time exercise jurisdiction in passing upon the force of a judgment previously rendered in the same case in the trial court.

We therefore cannot grant this motion in tofo as asked, and it is denied, with costs.

McAlvay, Brooke, Stone, and Ostrander, JJ., concurred.


author: Blair, J.

text:
    SYLVESTER v. GRAND RAPIDS BOOKCASE CO.
    1. Negligkenc®! — Licenses—Easements—Railroads.
    In trespass on the case for the killing of a cow that strayed, through gates maintained by defendant corporation under a license from the railroad company, and was struck by a train after going on the railroad company’s tracks, evidence that the public habitually used the gates, that defendant’s officers had notice of the use and made no objection, posted no signs, and placed no lock or closing device on the gates, which were frequently left open, furnishes ground for a fair inference that defendant authorized the general use of the gates, and the public in so passing through was not committing a trespass.
    2. Same — Station Grounds — Words and Phrases.
    The gates, being located opposite defendant’s property, were not on the station grounds of said railroad corporation.
    3. Same.
    Under a written license to construct and use such gates on condition that the licensee assumed all risk of any liability for loss or injury occurring by reason of their use, whether caused by negligence of the railroad or not, defendant assumed the statutory liability of the railroad company.
    A Same.
    Plaintiffs contributory negligence did not bar his recovery under the statute. 2 Comp. Laws, § 6294; Act No. 308, Pub. Acts 1909.
    Error to Barry; Smith, J.
    Submitted November 14, 1911.
    (Docket No. 97.)
    Decided March 29, 1912.
    Case in justice’s court by Frank Sylvester against the Grand Rapids Bookcase Company for the negligent killing of a cow. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Lee H. Pryor, for appellant.

      Thomas Sullivan, for appellee.
   Blair, J.

The defendant is a Michigan corporation engaged in the manufacture of furniture in the city of Hastings, and employs about 175 men. It owns and occupies several lots in the city of Hastings extending from Market street on the east to Benton street on the west, and from State street, which is the main street of the city of Hastings, on the south, north to the Thornapple river. A short distance north of the factory buildings, the Grand Rapids division of the Michigan Central Railroad runs east and west by the plant. The main track is fenced on either side from Market street west with a wire fence. Between the main track and the factory buildings there is a long uninclosed side track extending from Market street west beyond the defendant’s property. There are also two uninclosed side tracks extending around the factory on the south side. In 1906, the defendant company, with the consent of the Michigan Central, placed a gate in either side of the railroad fence about midway of their property, in order to reach their property on the north side of the railroad right of way; they owning about three-fourths of an acre north of the railroad tracks. These gates are about 4£ feet wide and were not built for the use of vehicles or anything of that kind. On the south side of State street, and directly opposite the property of the defendant, is located the fair grounds, owned by the Barry County Agricultural Society. In October, 1909, plaintiff, who had leased these fair grounds, was pasturing his cattle upon them. Some time during the night of Sunday, October 18, 1909, plaintiff’s cow escaped through an open gate from the fair grounds, which was about 40 or 60 rods from the property of defendant, passed down State street onto the property of defendant, and across to the railroad track. Here she passed through the south gate and entered upon the railroad right of way, where she was killed by a Michigan Central train some time before 6 o’clock on Monday morning. There is no testimony as to how the gate came open onto the railroad track or by whom either of the gates was opened. Plaintiff brought suit in justice’s court against the defendant company for the value of the cow, and the case was taken to the circuit court by general appeal, resulting in a verdict and judgment for plaintiff. The principal question for our consideration is whether there was any evidence of negligence on the part of the defendant.

Defendant acquired the right to put in the gates and use the crossing through a contract with the railroad company, whereby defendant agreed:

“That it will and hereby does assume all risk of and liability for any loss, injury or damage to persons or property that may occur from, in, through, by or in connection with the use of said crossing, whether the same be caused by negligence of the first party or otherwise; it being the intention of the parties hereto that the second party shall and hereby does assume all liabilities for any and all loss, injury or damage of every kind whatsoever that may occur where it shall appear that same would not have occurred but for the fact of the premises hereby granted to use said right of way in the manner aforesaid.”

Certain railroad section men testified that in going over their section they found the gates open twice a week and closed them, and that this had frequently occurred when the factory was in operation.

John Eddy, a witness for defendant, testifies:

I am an employé of the Grand Rapids Bookcase Company. My work in the factory is right in front of the gate in question. I have received instructions from the manager of the company to see that the gate was closed, and whenever I found it open to close it. I have performed that duty. That gate has been frequently opened by people in connection with the factory who have passed through it, and on those occasions when it has been left open I have closed it.
“Q. To your best knowledge has that gate ever been left open for any considerable length of time ?
“A. Why, I could not tell exactly how long. I have closed the gates at night and in the morning when I have found it open, and that has been quite often. When the factory would close at night I would close the gate. I have noticed cattle pasturing on the fair grounds and know of their getting out frequently. * * * I am instructed to watch the gate. There are a good many people using it, but I could not name them. The gate is used by factory men but very little, but they do use it some. It was put in a year ago last summer.
“Q. How many of the employes in a day would use these gates?
“A. Not any during the day, very seldom. They use the gates when they are going down the river, or anything like that, they went through this gate. * * * The majority of the people going through the gates come from towards town. I have spoken to Mr. Stem about people using the gates, but do not remember that I spoke of it before the cow was killed. I have noticed different times that it was impossible to keep the gate closed. Some one would leave it open as fast as I closed it. It is not a fact that the gate was open more than half the time. ■ There is a clubhouse north of the track which was there at the time the cow was killed. I am a member of that club, and so is Mr. Stem. * * *’ There is a dozen or 15 people, I guess, belongs to the club. Those people used these gates going back and forth through there. I don’t know whether that is done with the consent of Mr. Stem. He never told me to refuse these people the right to use that gate. I suppose he knew they were using it right along.”

Charles Potts, a witness for defendant, testified:

“I am in the employ of the Grand Rapids Bookcase Company. I have seen cattle get out of the fair grounds, and they would go through the gate, and I have driven them back.”

Mr. Stem, the secretary and treasurer of defendant, testified :

“ I have seen cattle coming out of the fair grounds frequently and have taken steps to drive them back, particularly my own cow. She got out quite frequently. It has been a frequent occurrence for Mr. Sylvester’s cattle to get out of the fair grounds, and it has been because of the gates being left open. * * * I have instructed a number of the workmen in relation to keeping these gates closed. I recall instructing Mr. Sharphorn, who is employed there, also Mr. Eddy and Mr. Stowell. I know I instructed the boys when the gates were put in there to see that the gates were closed. Mr. Eddy worked the nearest to the gate of any of the employes and is approximately 24 feet away. The Bookcase Company owns three-fourths of an acre of land north of the railroad track. It is a very frequent thing for people of the city to go down river by boat evenings and Sundays. In doing so they naturally pass through these gates. * * * This land north of the railroad is leased to a clubhouse. And previous to that time the members of the company kept their boats on their own ground on the north side of the track, their own private boats. There was no clubhouse there. I leased the ground for the purpose of a clubhouse, representing the company. I kept a boat there myself and one other member of the company. Mr. Arthur Barber kept a boat over there, and then Mr. Potts has kept a boat over there — a partnership boat. * * * The gates were put in so that we could have access to our property on the opposite side of the track. We had holes cut in the fence, but we tore our garments. It was very inconvenient when they wanted to take ladies through there to go on the river. The railroad company have repaired these holes. The company afterwards called upon us, and we entered into that agreement, which is the only agreement had with the company. * * * I have seen the general public go back and forth across our premises to these gates many times, also go down the track. I have seen these gates left open every few days and have closed them myself on several occasions.”

John Mead, a witness for the defendant, testified:

“I am employed by the Grand Rapids Bookcase Company. I first worked where that plant is now located, about 18 years ago, when the Hastings Furniture Company was there. At that time a family by the name of Rose was living north of the track. The oilhouse of the factory was located north of the Michigan Central. There was a toilet room north of the track. The public at that time went there frequently, across the railroad track. I have worked there more or less since that time and have noticed the same thing continually, down to the present time. On Sundays there are a good many people cross there to use the river for boating and other purposes.”

Frank Nash, a witness for defendant, testified:

“In 1889 I worked in the manufacturing plant called the Hastings Furniture Factory, located where the Grand Rapids Bookcase Company now is. At that time there was a family by the name of Rose lived north of the railroad track north of the factory. The factory also kept their oil tanks and toilet room across the track. There was almost a public thoroughfare across the track, especially on Sundays. I am familiar with the premises at the present time. I do not believe that there is a Sunday but what there would be from 25 and may be 50 people or more people go down the river. The public crossed there in large numbers.”

The court did not err in refusing to direct a verdict for defendant. It is clear from the testimony of defendant’s own witnesses that it knew that these private gates were habitually used by the general public, and particularly in the evening after the factory had shut down, and on Sundays. So far as this record discloses, defendant took no steps whatever to prevent such public use, either by the posting of notice, forbidding the people seen using them, locking the gate after hours, or providing an automatic closing device.

While defendant’s employés occasionally deposited waste finishing material upon the land north of the track, this land was leased to the boat club, and its primary use was for the benefit of the club members. The defendant used no care whatever to prevent the use of the gate nights and Sundays, having notice through the actual knowledge of its officers and employés that cattle were likely to escape from the fair grounds and go upon the tracks. One of the reasons for putting in the gates was to prevent ladies tearing their dresses, as had theretofore happened when using the gaps unlawfully made in the fence, and apparently the defendant encouraged the use of the gates by the general public. Although Mr. Stem had seen “the general public go back and forth across our premises to these gates many times,” he said nothing to them and took no steps to prevent such use, so far aB this record discloses.

It is not correct to speak of persons other than defendant’s employes using these gates as “trespassers.” It is a fair inference that the members of the boat club were authorized by defendant to use them, and that the general public had an implied license to use them, and whether the gates were left open by employés or licensees was immaterial.

The court properly instructed the jury that the gates were not within the railroad’s station grounds. Stewart v. Railroad Co., 147 Mich. 48 (110 N. W. 126).

The gates having been put in by the defendant for the sole benefit of the defendant under a revocable license from the railway company “ to construct, maintain and use a temporary crossing,” and having assumed “all risk of and liability for any loss, injury or damage to persons or property” in connection with such use, and having assumed full control of the crossing gates, it thereby assumed as to third persons the statutory liability of the railway company, and the contributory negligence of the plaintiff would not bar his right of action. Neversorry v. Railway Co., 115 Mich. 146 (73 N. W. 125).

We find no prejudicial errors in the charge of the court, and the judgment is affirmed.

Steers, McAlvay, Stone, and Ostrander, JJ., concurred.


author: Steere, J.

text:
    COLE v. COLE REALTY CO.
    1. Corporations — Stock and Stockholders — Contracts—Ultra Vires — Specific Performance — Estoppel to Question.
    A contract executed by a corporation to buy the stock of one of the directors and stockholders, authorized by all the stockholders in good faith, and having no tendency to prejudice creditors, is not ultra vires, and may be specifically enforced. The stockholders are estopped to question its validity.

    2. Specific Performance — Jurisdiction of Chancery — Equity —Jury Trial. »
    That issues of fact are involved is not a sufficient ground for remitting complainant to his remedy at law.
    3. Same — Adequate Bemedy at Law — Sales.
    For breach of a contract to buy stock of a corporation having a market value, or readily saleable on the market, complainant’s remedy at law is adequate.
    4. Same — Sales—Equity.
    Specific enforcement of a contract to purchase personal property may be decreed where the subject-matter is difficult to obtain, of sentimental value, rare, or not procurable in the market, or under other peculiar circumstances, such as render the remedy at law incomplete or inadequate; corporate stock not easily obtainable and having no market value is within the rule.
    5. Same — Mutuality of Bemedy — Stock.
    While equity may with less readiness enforce specifically tine contract in favor of the vendor, it will grant the remedy in case the same relief is open to the vendee, on the theory that mutual obligations should afford mutual remedies.
    6. Same — Pleading—Demurrer.
    Upon demurrer to complainant’s bill which lacked averments that the stock was difficult to obtain, or had no market value, it sufficiently showed aright to relief by averring that defendant was a close corporation, owned and controlled by members of a family, that complainant had partly performed his contract by refraining from participating in the business of such corporation as director, and permitting the other stockholders to pursue a policy that he had persistently opposed, and had tendered to them his stock.
    7. Same — Injunction—Solvency.
    Although the question of complainant’s right to an injunction to preserve the assets of such corporation from dissipation by reason of a proposed sale was doubtful, the matter was within the jurisdiction of chancery, but the question is an open one upon the proofs to be offered at the hearing.
    Appeal from Wayne; Codd, J.
    Submitted January 8, 1912.
    (Docket No. 6.)
    Decided March 29, 1912.
    Bill by James H. Cole against the Cole Realty Company for the specific performance of a contract for the sale of corporate stock. From a decree overruling a de-
    murrer to complainant’s bill, defendant appeals.
    Affirmed.

      Barnes & Stowers, for appellant.

      Edward A. Macdonald, for appellee.

       Bight of corporation to purchase its own shares of stock, see notes in 25 L. R. A. (N. S.) 50; 30 L. R. A. (N. S.) 694.

   Steere, J.

Complainant filed a bill in chancery, praying decree for specific performance of a contract alleged to have been entered into between the parties to this suit, in which defendant agreed to pay the sum of $19,750 for certain stock in said company, for an injunction restraining defendant from selling or incumbering its real or personal property, “whether by assignment, sale, mortgage or dividend to stockholders,” and for such other and further relief as may be equitable.

Complainant alleges that he is the holder of 150 shares of stock in the defendant company, which is a corporation organized for the business of holding, leasing, and selling real estate and erecting buildings thereon; that its capital stock is $75,000, divided into 750 shares of a par value of $100 each; that he, as a director in said company, had, during its existence, successfully opposed propositions to sell outright the real estate belonging to said company until December 10, 1910, when, the remainder of the stockholders and directors being very anxious to make certain deals which they proposed and he opposed, it was finally agreed that he would abandon further opposition and withdraw from the company, which, on its part, through its directors, agreed to buy his stock and pay him therefor the price already stated; that pursuant to such contract and agreement, he did withdraw his opposition, and the deals which he had opposed were consummated ; that he tendered to the proper officials of said company his stock, indorsed in blank, demanding payment therefor, which was refused; that since such contract for the sale of his stock to said company was made he has taken no part in its affairs; that he is informed and believes, and charges the fact to be, that the directors of the defendant are proposing to dispose by sale of other property of the company to its disadvantage, and he is fearful, if such further sale is consummated, there may not remain sufficient assets of the company available to satisfy the decree he believes himself entitled to, and therefore he prays relief as above stated.

Defendant demurred to this bill of complaint for the following reasons:

“(1.) From the statements contained in complainant’s bill of complaint, it clearly appears that complainant has an adequate remedy at law.
“ (2) There is no relief prayed for in said bill that could not be satisfied by a suit at law.
“(3) There are questions of fact necessarily arising out of statements contained in complainant’s bill that ought to be passed on by a jury.
“ (4) It appears from paragraph 11 of complainant’s bill that he is seeking relief upon an alleged agreement to purchase of complainant its own stock.
“(5) It appears from paragraph 3 in said bill that the Cole Realty Company is organized for the purpose of acquiring, holding, leasing, and selling of real estate, and for the erection of buildings thereon only, and not to deal in its own stock; and if any contract was made by said company, as alleged in said bill, it was ultra vires.”

This contract, under the circumstances alleged in complainant’s bill, is not ultra vires by reason of defendant purchasing shares of its own stock. A corporation acting in good faith, without objection from stockholders and without prejudice to creditors, may purchase shares of its own stock, regardless of the purpose for which it was organized, unless forbidden by statute. In this case, it is alleged that all the stockholders of defendant are directors; that at a meeting of the board of directors, which was attended by all except one, who was represented by proxy, this contract was unanimously authorized. The transaction, as alleged, was valid as to all parties to this suit; “the stockholders are not in a position to complain, as they were all willing parties to the transaction, and are therefore estopped to deny its validity.” Clark v. Machine Co., 151 Mich. 416 (115 N. W. 416); Butterworth & Lowe v. Milling Co., 115 Mich. 1 (72 N. W. 990); Dewey v. Railway Co., 91 Mich. 351 (51 N. W. 1063); Carson City Sav. Bank v. Elevator Co., 90 Mich. 550 (51 N. W. 641, 30 Am. St. Rep. 454).

It is urged as a ground of demurrer that there are necessarily questions of fact in the case, according to allegations in complainant’s bill, which ought to be passed upon by a jury. Issues of fact arising in cases where a court of chancery has jurisdiction are always tried by the chancellor, unless, in his discretion, he calls a jury for an advisory verdict to aid him in determining the facts. 1 Comp. Laws, § 462. If the case is properly one for equitable adjudication, the litigant’s constitutional right to a trial by jury is not invaded. It has even been held that an act which attempts to ingraft trial by jury upon equity practice is unconstitutional. Brown v. Kalamazoo Circuit Judge, 75 Mich. 274 (42 N. W. 827, 5 L. R. A. 226, 13 Am. St. Rep. 438); Maier v. Wayne Circuit Judge, 112 Mich. 491 (70 N. W. 1032). “Courts of law are not clothed with sole power to try issues of fact.” Fred Ma cey Co. v. Macey, 143 Mich. 138 (106 N. W. 722, 5 L. R. A. [N. S.] 1036). The question is not whether there are issues of fact in the case which, standing alone, might more properly be tried by jury, but whether the case, stated as a whole, with all the facts admitted, as they are, by the demurrer, presents any questions of law or fact which come under the jurisdiction of a court of equity.

Counsel for defendant correctly state that the main question in the case is whether the complainant has an adequate remedy at law, and urge that he has, for the reason that he only seeks to recover a money judgment for a liquidated sum, being the price defendant agreed to pay him for his stock. If the stipulated price for the article bought was the measure of damages in a suit at law for breach of contract, the question would be readily solved as defendant contends. But, according to the allegations in complainant’s bill, the defendant has not performed the contract, has not accepted the stock, and refuses to do so. The stock is, and will remain, complainant’s, unless specific performance is decreed. In a suit at law, his damages would be the difference, at the time of the breach, between the market value of the stock, if it had a market value, or otherwise the actual value, and the price it was contracted he should be paid for it. If it had a market value and could be readily bought and sold, he has an adequate remedy at law. Rand v. Railroad, 40 N. H. 79; Corser v. Hale & Morrow, 149 Pa. 274 (24 Atl. 285).

Though the law of specific performance primarily relates to realty contracts, and, as a general rule, is not applicable where the subject-matter is personal property, yet specific performance will be decreed and a contract enforced where the thing, in the nature of personal property, has a sentimental value, is rare, and cannot be obtained elsewhere, or has no market value, or the true value is difficult of ascertainment, or requires an . accounting, or other peculiar circumstances of the contract involve conditions where the measure of damage in a court of law will not give full and adequate compensation. This doctrine has been held, by abundant authority, to apply in favor of a vendee of stocks not easily procurable and having no market value. Waterman on Specific Performance of Contracts, § 19; Dennison v. Keasby, 200 Mo. 408 (98 S. W. 546); Johnson v. Brooks, 93 N. Y. 337; Butler v. Wright, 186 N. Y. 259 (78 N. E. 1002); Eichbaum v. Sample, 213 Pa. 216 (62 Atl. 837); Ames v. Witbeck, 179 Ill. 458 (53 N. E. 969); New England Trust Co. v. Abbott, 162 Mass. 148 (38 N. E. 432, 27 L. R. A. 271); 36 Cyc. p. 565.

Equity less readily entertains the cause of a vendor seeking specific performance than that of a vendee, on the ground that, in many instances, the vendor can more easily compel adequate relief in a court of law; but in cases where the contract is mutually binding it is an accepted rule that if the vendee is entitled to specific performance the vendor should be granted the same relief, for the reason that mutual obligations should give mutual remedies. Lewis v. Lechmere, 88 Eng. Reprint, 828; 36 Cyc. p. 565; Hills v. McMunn, 232 Ill. 488 (83 N. E. 963); Austin v. Gillaspie, 54 N. C. 261; Bumgardner v. Leavitt, 35 W. Va. 194 (13 S. E. 67, 12 L. R. A. 776).

The bill of complaint is scant of direct allegations that the stock in question is not readily obtainable and has no market value; but it does appear that the defendant is a close corporation, in the nature of a family affair, and in such case it will not be presumed that the stock can be procured on the market, or has a market value. Under facts stated in the bill, if complainant refused to comply with the contract, we think defendant would be entitled to specific performance. There has been part performance by complainant, and defendant has availed itself of it. He was a potent factor in the conduct of the company’s business, and exercised a controlling influence in its affairs. In fulfillment of the contract, he withdrew from participation in its management, and allowed a policy which he opposed to be pursued. The consequence of this and resultant damage to him, while equitable considerations, could not readily be ascertained or compensated, were he compelled to keep his stock and sue for damages in a court of law.

The bill also prays for an injunction to conserve the assets of the defendant, alleging prospective sale and dissipation of its property and impairment of financial responsibility which threaten ready collection of any judgment which might be recovered. While a right to the same might be questionable on the showing made, the matter is peculiarly within the jurisdiction of a court of chancery.

By the demurrer, all matters of fact alleged are admitted to be true. We think that, under the indicated facts alleged in the bill, equity has jurisdiction. These matters, admitted by the demurrer to be true, are. yet for the court to decide on the merits at the hearing, where the question of jurisdiction under the proofs can be justly determined.

The decree of the trial court, overruling the demurrer, is affirmed, with costs; defendant to have 15 days after notice of the decision to file an answer to complainant’s bill.

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


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    WEST v. LEIPHART & CO.
    1. Intoxicating Liquors — Inn ants — Civil Damage Action — Parties — Joinder—Parent and Child.
    A civil-damage action does not lie in the name of the mother of several infants for her benefit and the benefit of the children whose brother, a minor, died as the result of an unlawful sale of intoxicating liquors.
    2. Same — Proximate Cause — Sale to Minor.
    The death of such minor by falling under a moving freight train on which he tried to catch, while intoxicated with liquor furnished decedent by a person in the habit of becoming intoxicated who bought it of the defendant, a druggist, was not the proximate result of such unlawful sale by the druggist. 2 Comp. Laws, § 5398.

    Error to Wexford; Lamb, J.
    Submitted January 10, 1912.
    ( Docket No. 22.)
    Decided March 29, 1912.
    Case by Anna West against E. P. Leiphart & Company and others for the unlawful sale of intoxicating liquor under the civil-damage law. Judgment for plaintiff. Defendant brings error.
    Reversed and no new trial ordered.

      Gaffney & Miltner, for appellants.

      Sawyer & Penny, for appellee.

       Necessity, to sustain a recovery under civil-damage act, that the intoxication be the proximate cause.of the injury, see note in 13 L. R. A. (N. S.) 1158.

   Steere, J.

Anna West, the plaintiff, brought this action to recover from defendants damages claimed to have been sustained through the death of her minor son, Alfred West, which resulted from intoxication caused by liquor unlawfully sold by defendant Leiphart. Leiphart, the principal defendant, was the owner of, and conducted, a drug store in the city of Cadillac. Defendants Reed and Russell were his sureties. Alfred West, son of plaintiff, was killed on January 22, 1911, by catching hold of a car in a freight train passing a street crossing at a rapid rate of speed. He was intoxicated at the time. It is claimed that the liquor which caused his intoxication was sold by defendant Leiphart to two persons named Stuebeck and Johnson, who boarded with plaintiff; that Stuebeck was a minor, and Johnson, who was an habitual drunkard, was intoxicated at the time he procured the liquor.

Plaintiff’s testimony tended to show that on the morning of the day in question both Johnson and Stuebeck at different times went to and purchased from defendant Leiphart a quart of whisky and a half pint of alcohol each, which they later took to the residence of plaintiff, and during the forenoon, in company with plaintiff’s son, Alfred West, and others, consumed it; that said Alfred West became much intoxicated, and while being escorted from his home by a companion to a place where it was desired to take him to sober him up, a freight train crossed the street just as they reached the track, and, from a drunken impulse, he ran towards it, made a grab at one of the cars, lost or missed his hold, was thrown under the wheels, and fatally injured, dying between two and three hours thereafter. Plaintiff, his mother, with whom he resided, testified he was 18£ years old, was industrious and helpful, contributing towards the support of herself and his minor brothers and sisters about $5 per week. Defendant Leiphart admitted that on the day in question he sold a pint of whisky and a half pint of alcohol to Johnson, who claimed to be unwell and wished it for medicinal purposes, but claimed he was not at that time intoxicated, or to his knowledge an habitual drunkard, and denied having sold any liquor whatever to Stuebeck. There is no claim that Alfred West, the deceased, purchased any liquor from Leiphart, and the testimony does not tend to show that West was a party to, or knew of, these purchases until the liquor was brought to his mother’s house, where it was jointly consumed by him and the others.

At the conclusion of plaintiff’s testimony, counsel for defendant moved the court to direct a verdict of no cause of action on the ground that, conceding plaintiff’s testimony to be true, the facts, under the law, were not sufficient to give plaintiff a right of action. The motion was denied, and the objection was again raised in the following request to charge:

“I further charge you that, to make the defendant Leiphart liable, it must appear that a sale was made by him to the person who became injured, or [whose] intoxication caused the injury. The sale to another person than the one injured, followed by a subsequent sale by him to the person injured, creates no liability, and in this case I charge you that the evidence shows that no sale was made by the defendant Leiphart to the said West, nor was said injury caused by any person to whom a sale was made, and your verdict, therefore, will be no cause of action.”

This request was refused. A verdict was rendered in plaintiff’s favor for $650.

There are numerous assignments of error in the record. The two requiring the most serious consideration are the right of plaintiff to recover, in this form of action, damages in gross for herself and all her minor children, and the liability of defendants for damages not resulting from the intoxication of the person or persons to whom the liquor was sold, but from that of a third party to whom the purchaser furnished the intoxicant.

In support of their contention that plaintiff can thus declare for herself and minor children jointly, counsel cite Baldwin on Personal Injuries, par. 108; Rosecrants v. Shoemaker, 60 Mich. 4 (26 N. W. 794), and Jones v. Bates, 26 Neb. 693 (42 N. W. 751, 4 L. R. A. 495), followed by other Nebraska cases along the same line. Baldwin lays down the rule that “the wife may bring her action against a liquor dealer for injury sustained by her alone, or she may bring it in her own behalf and that of her minor children,” citing Rosecrants v. Shoemaker, supra, where, in a case brought by a wife to recover damages for furnishing liquor to her husband, the court said:

“ If the mother sued for all the family, she could recover full compensation for their loss.”

The Nebraska cases hold, under their statute and Code:

“A married woman and her minor children, constituting one family, may join in an action for loss of means of support caused by the intoxication of the husband and father, against those who furnished him intoxicating liquors.”

None of those authorities are controlling in this case. The deceased had neither wife nor minor children. He died a minor himself and unmarried. No authority is cited which holds that the interests of the brothers, sisters, and mother of a deceased person can be combined in one action in a suit brought in the name of the mother to recover a gross sum for all. Even in a case where suit is brought by the wife to recover for herself and minor children of the deceased, it is yet an open question whether preliminary proceedings must not first be taken under the statute, designating the mother as a next friend or guardian ad litem, before she can recover for the minor children. Under the statute, each person entitled to compensation has a separate and independent cause of action, and, where their causes of action are combined, it would seem to follow that there must be some proceeding by which, when a recovery is had, the amount awarded in favor of each one should be differentiated and designated. Counsel for plaintiff state in their brief, and reiterate and emphasize, that plaintiff is a widow. She surely is not the widow of the deceased, and we are unable to reconcile such statements with the testimony, except on the theory that there is more than one kind of widow. Plaintiff herself says in her testimony on page 16 of the record: “ I have a husband. The last time I heard of him he was in Washington.”

It is undisputed that Alfred West, whose death is attributable to his intoxication, did not participate directly or indirectly in the purchase of liquor from Leiphart. It is sought to establish the relation of cause and effect between the sale of Leiphart and the injury by including an independent, intermediate, illegal act of a third party. Section 5398, 2 Comp. Laws, under which plaintiff seeks to recover, provides:

“Every wife, child, parent, guardian, husband, or other person, who shall be injured in person or property, or means of support or otherwise, by an intoxicated person or by reason of the intoxication of any person, or by reason of the selling, giving or furnishing any spirituous, intoxicating, fermented or malt liquors, to any person, shall have a right of action in his, or her own name, against any person or persons who shall, by selling or giving any in-' toxicating or malt liquor, have caused or contributed to the intoxication of such person or persons, or who have caused or contributed to such injury, and the principal and sureties to the bond hereinbefore mentioned shall be liable severally and jointly with the person or persons so selling, giving or furnishing any spirituous, intoxicating or malt liquors, as aforesaid, and in an action provided for in this section, the plaintiff shall have a right to recover actual and exemplary damages.”

It is urged that the language, “or who have caused or contributed to the injury,” authorizes plaintiff to trace the liquor back from those who directly furnished it to the person whose intoxication caused the injury through intervening owners, and hold responsible a party who previously sold it unlawfully. Where there has been a series of successive transfers of liquor by sale or gift before it reaches the one whose intoxication is caused thereby, can it be said that the first one in that series is liable for the consequences of the subsequent sales or gifts he was not a party to, of which he had no knowledge and to a party he may have never seen? The case of Ryerson v. Phelps, 163 Mich. 237 (128 N. W. 200), which is urged by couneel for plaintiff in support of such construction of the statute, does not involve the question of the intervention of an independent and distinct human agency interposing to break the chain of causation. The question at issue in that ease was the sale of liquor by defendant to plaintiff’s husband. The testimony tended to show that the husband procured the intoxicating liquor from defendant through the agency of his minor son whom he sent to defendant to purchase it for him. Under such circumstances, it was held a question for the jury whether defendant had made an unlawful sale to plaintiff’s husband.

The liability in these cases is an obligation imposed by statute on the sale of liquor. While it involves the question of care and diligence and intent on the part of the dealer, it reaches beyond, and finally rests on cause and effect. To create a liability, the act of the dealer must be shown in whole or in part to be the connected, proximate cause of the intoxication to which the injury is attributable. In Bush v. Murray, 66 Me. 472, it was said:

“ The liability attaches to the person selling or giving, and to no one else. The selling or giving must be to the person intoxicated, by whom the injury to the person or property was done, and must cause his intoxication. If A. sells to B., and B. to C., and so on till Z. sells to the person intoxicated, by whom the injury is done, A. cannot be regarded as the person selling to the person intoxicated and responsible to one whose person or property has been injured by the individual to whom Z. sold the intoxicating liquors causing the intoxication of the person by whom the injury was done. If A. were to be held liable, so would all the intermediate sellers prior to the last as well as the last, which would be absurd. * * * The seller or giver of intoxicating liquors to one other than the person doing the injury cannot, within any reasonable construction of the statute, be regarded as having caused or contributed to the intoxication of the person doing the injury.”

The Maine statute is similar to ours and of like import in its general terms, but does not contain the expression, “or who have caused or contributed to the injury.” This expression in our statute, reading the same as a whole, necessarily means caused or contributed to the intoxication of the person who did the injury, and in that particular is the same in intent and purpose with the Maine statute. In Dudley v. Parker, 132 N. Y. 386 (30 N. E. 737), in construing the civil-damage act of that State, it was held that, to recover damages for personal injuries alleged to have been received through intoxication caused by liquors sold by defendant, the plaintiff must show that the furnishing of the liquor was, in whole or in part, the proximate cause of the intoxication, and that the liquor was furnished to the individual whose intoxication inflicted or caused the injuries complained of.

In the case under consideration, the injuries complained of are not the natural and proximate consequence of the sales of liquor made by defendant Leiphart to Johnson and Stuebeck. Though the injury may be traced up to the unlawful act of one man, if it would not have happened but for the subsequent, independent, unlawful act of another, the latter alone is liable. Bosworth v. Brand, 1 Dana (Ky.), 377. On the undisputed facts in this case there was no issue to submit to a jury and defendants’ request that a verdict of no cause of action be directed should have been granted.

The judgment is reversed, and no new trial granted.

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