text:
    RODGERS SHOE CO. v. COON.
    1. Principal and Surety — Release.
    No material variation is shown in the performance of a surety-ship agreement which binds the principal to pay for all money and property received, where he deducted amounts due him before making remittances; and where no provisions were inserted in the bond requiring different action.
    2. Same — Construction.
    Contracts of suretyship are construed strictly in favor of the surety.
    Error to Wayne; Hosmer, J.
    Submitted June 21, 1909.
    (Docket No. 49.)
    Decided July 6, 1909.
    Debt by the Rodgers Shoe Company against Henry P. Coon for the amount of a bond. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      J. Lawrence Hibbard (Stevenson, Carpenter & Butzel, of counsel), for appellant.

      James (J. McHenry (John C. Bills, of counsel), for appellee.
   McAlvay, J.

Plaintiff brought an action in debt in justice’s court in the city of Detroit against defendant, who was a surety on a certain bond given to plaintiff in July, 1903, in which George Pickhaver, an agent of plaintiff, was principal. This bond was in the sum of $500, and was conditioned as follows:

“The condition of the above obligation is such that if said George Pickhaver shall pay to the Rodgers Shoe Co. any and all moneys or other property received by him while in the employ of the Rodgers Shoe Co. belonging to said company then this obligation to be void, otherwise to remain in full force and virtue in law.”

Plaintiff declared upon this bond, and defendant pleaded the general issue. Upon the trial before the justice without a jury plaintiff’s evidence consisted of oral testimony and depositions of witnesses. Defendant offered no evidence. Judgment was rendered in favor of defendant, whereupon plaintiff removed the case to the circuit court by certiorari. In that court the judgment was reversed, and a judgment entered for plaintiff for the amount claimed.

The case is before this court upon writ of error without a bill of exceptions, under Sup. Ct. Rule 11, to review the judgment' of the circuit court. The question raised which should be considered first is whether there was evidence in the case before the justice showing an unpaid indebtedness to plaintiff from the principal in the bond, arising out of money received by him belonging to the plaintiff while employed by it. It will not be necessary to review the testimony in the case on the part of plaintiff. The justice so found, and such finding was based upon abundant evidence to support it.

The remaining error assigned necessary to discuss relates to the claimed variation of the suretyship contract. It is urged that a material variation of such contract is clearly established by the plaintiff’s evidence in the case. Plaintiff’s evidence shows that Pickhaver, the principal in the bond, entered the employment of plaintiff in July, 1903, selling leather and rubber goods in Detroit for it, and was authorized to make collections for such sales, and remit to Toledo, Ohio; that he was allowed to retain out of collections money for rent of office, commissions, and expenses; that his balance was struck annually at the end of the year; that on December 31, 1903, there was a balance due him of $102.80, and when his employment ceased on December 5, 1904, there was found to be a balance due from Pickhaver to plaintiff of $348.15, which is the amount in suit. Pickhaver died before the commencement of this suit. The condition of this bond is in simple language, and it would be hard to express its purpose in fewer or more appropriate words.

We do not find that in any respect the contract of surety-ship was varied by the acts of plaintiff in its relations with the agent, Pickhaver. That the law requires strict construction of these “social” contracts of suretyship is recognized, and any material variation is fatal to an enforcement. The cases cited are accepted as authority for the proposition, but neither the rule of law nor the authorities are applicable to the case at bar. Pickhaver, during the life of this contract, received money belonging to plaintiff while in its employ, which he did not pay over. Plaintiff in its dealing with its agent cannot be said to have been careless or negligent. Neither it nor Pickhaver made any contract with the surety as to remittances or times of settlement. The contract of suretyship was not made with reference to plaintiff’s relations to Pickhaver, except as expressed by its terms. There is abundant authority that the surety’s liability has not been affected by the dealings between plaintiff and the principal as disclosed by this record. Cumberland Building Loan Ass’n v. Gibbs, 119 Mich. 318 (78 N. W. 138), and cases cited; Lancashire Ins. Co. v. Callahan, 68 Minn. 277 (71 N. W. 261, 64 Am. St. Rep. 475); Watertown Fire Ins. Co. v. Simmons, 131 Mass. 85 (41 Am. Rep. 196); Wilkerson v. Insurance Co., 64 Ark. 80 (40 S. W. 465, 62 Am. St. Rep. 152); Phenix Ins. Co. v. Findley, 59 Iowa, 591 (13 N. W. 738); Pacific Fire Ins. Co. v. Surety Co., 93 Cal. 7 (28 Pac. 842).

The circuit court was not in error in reversing the judgment of the justice’s court.

The judgment is affirmed.

Ostrander, Hooker, Moore, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    DALM v. BRYANT PAPER CO.

    1. Master and Servant — Minors—Statutes.
    A child under sixteen years of age, employed in a manufacturing establishment at labor wherein danger to life and limb is involved, does not assume the risk of a fellow-servant’s negligence, under Act No. 113, Pub. Acts 1901.
    2. Same.
    Where the child was first employed to see that paper being rolled into sheets wound evenly on the rollers, and he was sent by another employé on the machine to take out damaged sheets from the machinery, which caught the paper and drew his hands between the rollers, the fellow employé in giving such directions represented the master.
    3. Same — Assumption of Risk.
    The doctrine of assumed risk, being predicated on a contractual relation, is not binding upon a child employed in violation of the statute.
    4. Same — Warning and Instructing Servants.
    Failure to warn and instruct the servant regarding dangers attendant upon the work at which he was engaged at the time of his injury, is not excused by general instructions regarding the danger of the other work at which he was first employed.

      5. Trial — Argument—Instructions to Jury.
    The jury may be instructed that they are to be guided by the evidence, not by statements of counsel concerning it.
    Error to Kalamazoo; Adams, J.
    Submitted October 15, 1908.
    (Docket No. 96.)
    Decided July 15, 1909.
    Case by Jacob Dalm, by next friend, against the Bryant Paper Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      E. M. Irish and Fred L. Vandeveer, for appellant.

      D. 0. French, for appellee.

      Rehearing denied November 5, 1909.

   McAlvay, J.

Plaintiff, by his next friend, brought this action for damages against defendant, a paper manufacturing corporation, for personal injuries received while in its employment. Plaintiff was between 15 and 16 years of age. He was employed on a paper machine in the plant of defendant, April 30, 1907, as a “winder boy.” His injury occurred on May 13th following, while he was between what is known as the “calender stacks,” taking out “broke” paper, which breaks while going through the rollers of the calender stacks, and becomes torn, tangled, and sometimes cut into pieces, and falls upon the floor between them. In this part of defendant’s plant were three paper machines, the one in question being a machine extending nearly the entire length of the building, which at the “wet” end receives the pulp, and, carrying it along over and through the machinery in a continuous sheet, finally delivers it at the calender stacks for the purpose of finishing. These stacks consist of rollers, one above the other to the height of about 12 feet. The machine manufactures about 200 feet of paper per minute. The stacks are 5 feet apart. The paper passes between the several rollers of the first stack, and then across to the second stack, and through its rollers, where it is ironed smooth and finished. After passing through the last calender stack, it is slit the required width, and goes upon the winders, and is wound into rolls. The alleged duties of a “winder boy” are to watch the rolls, and see that they wind evenly. He is provided with a stick to press upon the paper rolls for that purpose. Plaintiff was injured between the calender stacks where he had gone to remove “broke.” He had taken up an armful to bring it out, and the rollers caught the paper, and suddenly jerked his hands between them and injured them severely and permanently, whereby he lost one and the other was rendered almost useless. At the time plaintiff was employed, Mr. Milham was the manager of the plant. Mr. Buss was general superintendent. Mr. Camp was under Mr. Buss, and had general supervision and charge of this department containing three paper machines, including the one in question. Plaintiff was hired by Camp. He recently had come from Holland, and understood little of the English language. Mr. Camp instructed him in his. duties relative to the winding machine. He also attempted to explain to him the danger of injury from getting his fingers between the rollers in the calender stacks. On this particular paper machine Martin Nolan was machine tender in charge. The crew consisted of himself, his son John Nolan as first tender, his son William Nolan as second tender, and plaintiff as winder boy. The trial resulted in a substantial verdict for plaintiff.

Defendant asks for a reyersal upon errors assigned. The first error relied upon is the refusal of the court to grant defendant’s motion for an instructed verdict, upon the ground that there was no evidence in the case showing any negligence on the part of defendant. The declaration as first filed in the case alleged that plaintiff was employed as a winder boy by defendant, and was called from his work, and, contrary to statute, ordered to take “broke’’from between the calender stacks, which was employment dangerous to life and limb, without instruction or warning as to the dangers attending such work. An amended declaration was filed, charging that the hiring was prohibited by statute, and the employment dangerous to life and limb, and charged gross, wilful, and wanton negligence in requiring the plaintiff to take “broke” from between the calender stacks, without instructions or warning as to dangers. The case on the part of plaintiff was tried upon the theory of amended declaration, above briefly stated. The theory and claim of the defendant was that the hiring was lawful, and made after the father had furnished the statutory statement of plaintiff’s age; that the employment of a winder boy is not dangerous to life and limb, and that he went between the calender stacks contrary to instructions, and without the direction, knowledge, or consent of anyone in authority, upon the order of a fellow-servant, and with knowledge of the danger. The plaintiff’s testimony was that he was first told to go between these stacks and take out the “broke ” by Martin Nolan, his “boss,” and later by Nolan and his sons, who belonged to the machine crew. He testified that no person except Nolan, the tender in charge of this paper machine, or the two men (his sons) next under him, ever told him to do this work, and that he was ordered to do that work several times.

It is urged by defendant that the negligence, if any, was that of a fellow-servant, and consequently defendant cannot be held liable. The trial court held that the Nolans were fellow-servants with plaintiff. While such holding was favorable to the contention of defendant, and no error could be assigned upon it, yet if the question of the negligence of a fellow-servant is not in the case, and Nolan, the head tender on this machine, was giving orders to plaintiff as to the work to be done by him, as the representative of defendant, the court was mistaken in classifying Martin Nolan as a fellow-servant of plaintiff. The testimony of the general manager shows that Martin Nolan had general charge of this machine and those employed on the machine, and told them what to do. It is contended by plaintiff that this employment was prohibited by the statute referred to, being section 3, Act No. 113, Pub. Acts 1901, which provides:

“No child under the age of sixteen years shall be employed by any person, firm or corporation conducting any manufacturing establishment in this State at employment whereby its life and limb is endangered. * * *”

The requirements of this statute, the duty resting upon the employer under it, and the liability for neglect of such duty are discussed in the cases cited below.

Plaintiff’s case as made tends to prove that Martin Nolan, three or four days after plaintiff went to work, ordered him to take the “broke” out from between the calender stacks, and that one of his sons then took him by the arm and led him in there and showed him what was meant by the order. This is disputed, but it makes it a question of fact for the jury, if material. It is clear from the record that this was work dangerous to life and limb. No instructions were given to plaintiff as to dangers attending this particular work. Mr. Camp, on the second day, had shown him danger from injury if his fingers got between these rollers, but nothing whatever relative to taking out “broke.” In fact, it is contended that taking out “ broke” was not within the scope of his employment as a “winder boy.” Under the statute he could not be employed at such work by reason of his age. Can it be said, even if the work of the winder boy in this manufactory was without danger to life and limb, which we do not determine, that he can be required to do this dangerous work, and thereby become a fellow-servant with the person ordering him to do it? See Syneszewski v. Schmidt, 153 Mich. 438 (116 N. W. 1107). If it may be done, then the duty imposed by the statute, and liability for neglect of such duty, may in every case be avoided. Nor could plaintiff be held to have assumed the risk, for the reason that assumption of risk is always predicated upon a contractual relation. It follows, from the showing upon the record, that Martin Nolan in his capacity as tender in charge of this machine and its entire crew, in giving orders to plaintiff to do this work at which he was injured, acted as the representative of the defendant. The order of Nolan was an act of authority, exercised concerning a positive duty which could not be delegated. These conclusions are supported by previous decisions of this court. See Syneszewski v. Schmidt, supra; Sipes v. Michigan Starch Co., 137 Mich. 258 (100 N. W. 447); Sterling v. Union Carbide Co., 142 Mich. 284 (105 N. W. 755); Beghold v. Auto Body Co., 149 Mich. 14 (112 N. W. 691, 14 L. R. A. [N. S.] 609). The fellow-servant question is then eliminated from the case. The court was not in error in denying defendant’s motion for an instructed verdict.

This conclusion makes it unnecessary to consider the error assigned to the admission of the testimony of witness Leggett relative to the duties of a “winder boy,” and also upon all the other rulings of the court upon the rejection of certain testimony of defendant’s witnesses relative to the duties of the operators of this machine, and who of them could give orders. Such rulings were without prejudice to defendant. The requests to charge, which were not given, under our holding become immaterial.

It is claimed that the court erred in charging the jury:

“It is admitted, I think, in the case that the defendant gave the plaintiff no instructions as to the dangers which he would be liable to meet in removing the ‘broke,’ etc. Ht Hi H« »

The position taken by defendant on the trial warranted such charge. Its claim was that taking out “broke” was not a duty of plaintiff; that he had no right to be between the .calenders. In the testimony of defendant’s witnesses no mention is made of tákingout “broke” when instructions were given plaintiff. These instructions, as far as the calenders were concerned, in giving them their broadest signification, only notified plaintiff of danger in getting his fingers between the rollers, and to keep away from the stacks. The later order to plaintiff, by the representative of defendant, to go in there and take out “broke ” also eliminates this contention of defendant as to this portion of the charge.

The court in one sentence of his charge said:

“You are not to take as true anything that the attorneys have stated as to what the evidence is in the case.”

Error is assigned upon it. No discussion is required, for the reason that the court, proceeding, said:

“ It is for you to say what it is. It has been reported to you. You are the judges of it, and you are to use your own judgment as to what it is, whether the attorneys have stated it correctly or not. If they have not, you are to disregard it. In other words, you are to be governed by the testimony in the case, not by what counsel say the evidence is. That applies to counsel on both sides.”

The plaintiff made out a case to be submitted to the jury, and defendant cannot complain on account of holdings of the court which were too favorable in its behalf. We find no prejudicial error in the case.

The judgment is affirmed.

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


author: Hooker, J.

text:
    YERKES v. SMITH.
    1. Criminal Law — Sunday Baseball.
    Although the playing of baseball on Sunday is prohibited by 2 Comp. Laws, § 5912, it does not constitute a misdemeanor and cannot be prosecuted by indictment, but the statute must be enforced in a civil action for the penalty.
    2. Same.
    Before an arrest for breach of the peace is justified, overt acts of a dangerous and violent character must be committed in the presence of the officer.
    3. Mandamus — Enforcement or Criminal Law.
    The writ of mandamus will not issue to compel the police commissioner of the city of Detroit to enforce 3 Comp. Laws, § 11334, which provides for the dispersal of persons assembling unlawfully, riotously, or tumultuously, by dispersing an assemblage at a Sunday baseball game; since the police commissioner is not one of the officers designated by the statute.
    Certiorari to Wayne; Brooke, Hosmer, Rohnert, and Donovan, JJ.
    Submitted November 10, 1908.
    (Calendar No. 23,076.)
    Decided July 15, 1909.
    Mandamus by George B. Yerkes, prosecuting attorney of Wayne county, to compel Fred W. Smith, police commissioner of the city of Detroit, to enforce the law against the playing of baseball on Sunday. An order denying the writ is reviewed by relator on writ of certiorari.
    Affirmed.

      James H. Pound, for relator.

      George P. Godd (Michael P. Bourke, of counsel), for respondent.
   Hooker, J.

The petition for certiorari in this cause shows that this proceeding is a continuation of an effort by certain clergymen, and perhaps others, to stop the playing of baseball upon Sunday in Detroit. The matter was before us in the case of Sweet v. Smith, 153 Mich. 674 (117 N. W. 59), upon a writ of certiorari to review the denial by the circuit court of a writ of mandamus to compel this samé respondent “ to execute and enforce all laws pertaining to the preservation of the Sabbath, ■ * * * at the baseball park of the Detroit Club — i. e., the Detroit Baseball Club.

We held in that case that the grievance complained of was purely a public grievance, and relief would not be granted at the instance of a private relator. Said petition shows that, failing in the former proceeding, the same persons have applied to the prosecuting attorney, who signed the petition for mandamus in this case, and after-wards the petition for certiorari hereinbefore mentioned. The cause is presented here by private counsel, relator’s active connection with the case apparently extending no further than to lend his name to persons seeking to compel respondent to enforce the Sunday laws by summary measures, although, if the claim in this cause is sound, respondent was liable to prosecution for a misdemeanor and punishment to the extent of $300. 3 Comp. Laws, § 11337. The writ was denied in the circuit court — four judges sitting — and is before us by writ of certiorari.

[The playing of baseball on Sunday is an act prohibited and punishable by law, the penalty being a fine of $10. It does not amount to a misdemeanor, and cannot be prosecuted by indictment, the only remedy being a civil action. See 3 Comp. Laws, § 9797 et seq.; Pettinger v. People, 20 Mich. 336. The action sought to be enforced by this proceeding is primarily the prevention of a game of baseball, advertised for August 30th last, and of games that are said to have been contemplated on Sundays of later dates. We suppose that relator expects such games to , be prevented by arrest of those engaged in them. The I law has prescribed another method for preventing infracI tions of this law, viz., a penalty to be collected through J judicial proceedings; and a summary arrest, even after a violation of the law, is not contemplated, and is not au- I thorized by law, as a means of preventing the violation of this statute. 2 Comp. Laws, § 5912. See authorities' above cited.

We understand that counsel does not contend otherwise, and that he rests his right to a writ upon the claim that under 3 Comp. Laws, § 11334, and succeeding sections, a game of baseball played in the presence of 30 or more persons is per se, and necessarily, a breach of the peace, and an assemblage of persons to the number of 30 or more, for the purpose of playing and witnessing such a game in Detroit on Sunday, is such an “ unlawful, tumultuous or riotous assemblage ” as to make it the duty of this respondent to be present in person, or by policemen under his control, and prevent the game and the alleged consequent breach of the peace, by commanding said assemblage to immediately and peaceably disperse, enforcing such command by the arrest of all such persons as may fail to obey. Before the respondent could be required to arrest anyone, there must have been either a breach of the peace already committed, or a failure to comply with a lawful order to disperse. Taking the answer as true, we must assume a willingness on the part of this respondent to cause warrants to issue for the. arrest of all persons violating section 5912, and, acting through his subordinates, summarily to arrest all persons who should be guilty of a breach of the peace, but that he refused to assume that all baseball games played on Sunday required his personal attendance or would justify a command by him to disperse, and subsequent arrest under the statute cited, if such command should not be obeyed.

We have said that the mere playing of a game of baseball upon Sunday is not of itself and necessarily a breach of the peace, justifying arrest and indictment^ In a sense, a game of baseball on Sunday may often be a breach of the peace, perhaps usually is, but it cannot be said that it is necessarily so, and before a summary arrest can be made for a breach of the peace, not only must overt acts be committed in the presence of the officer, but they must . be violent and dangerous acts of some sort.

The constitutional immunity from arrest is discussed by the late Mr. Justice Campbell in Robison v. Miner, 68 Mich. 557 (37 N. W. 25).

“So far as arrests are concerned, a similar principle applies. Under our system we have repeatedly decided, in accordance with constitutional principles as construed everywhere, that no arrest can be made without warrant except in cases of felony, or in cases of breaches of the peace committed in the presence of the arresting officer. This exception, in cases of breaches of the peace, has only been allowed by reason of the immediate danger to the safety of the community against crimes of violence, and it was confined, even in such cases, to instances where the violence was committed in the presence of the officer. There are not many such cases. The common and statute law provide for very few specified breaches of the peace, and there are none that are not specified. An indictment charging a person as a peacebreaker, and not with any specified crime, would be good for nothing. Assaults and riotous conduct make up the largest part of the list. But thare can be no breach of the peace within the meaning of the law that does not embrace some sort of violent as well as dangerous conduct. The manifest purpose of this statute is to bring certain things that are not breaches of the peace within that denomination to avoid the necessity of a warrant. But, as already suggested, the Constitution cannot be so evaded.”

See, also, Quinn v. Heisel, 40 Mich. 576. It is clear that a mere assembling of persons to play and witness any Sunday game is not sufficient, without overt acts of violence or disorder, to authorize an officer to make a summary arrest. 1

This being so, relator’s claims must be left to rest upon the statute — section 11334 — which has been held to be applicable, where a game of baseball on Sunday in a public place was attended by several hundred assembled, unlawfully and tumultuously, to witness it. Scougale v. Sweet, 124 Mich. 315 (82 N. W. 1061). Before an arrest can be required under this statute, there must be:

(1) A condition of things justifying a command to disperse, by the proper officer, designated by law.
(2) Disobedience of the command.

This statute is apparently based upon the common-law duty of sheriffs and others to read the riot act, and command a dispersal of persons at a time of riot.

The statute may perhaps be said to have enlarged the common-law rule. It has certainly made it an offense to x disobey a lawful command. But before one can be convicted of such an offense, there must have been:

(1) An occasion for such a command.
(2) The command must have been made by one of the statutory officers.
(3) The command must have been disobeyed.

It is sufficient to say in the present case that respondent is not one of the officers named in the statute, who are required to command a dispersal. It follows that he should not be compelled to take such action by a writ of mandamus.

In this disposition of the case before us, it is not intended to imply that the writ of mandamus may properly issue in similar cases. No opinion is expressed upon that or any other of the many questions that naturally suggest themselves in the case.

The order of the circuit court is affirmed.

Montgomery and Ostrander, JJ., concurred witn Hooker, J. Blair, O. J., and Moore and McAlvay, JJ., concurred in the result. Grant, and Brooke, JJ., took no part in the decision.


text:
    PLUMB v. HECLA CO.
    1. Negligence — Master and Servant — Licensee—Maintenance op Switching or Spur Tracks.
    Plaintiff was injured on a short transfer track from the Michigan Central tracks to the factory of the Hecla Company. The track was in an unsafe condition for lack of fish plates, which had been removed, causing the rails to spread and the engine to run off the track. The trains and engines of the Michigan Central Railroad Company, whose engine and crew were switching a car for the Hecla Company at the time of the injury, were accustomed to use the tracks daily for such purposes. Held, that the facts tended to show an implied invitation from the owner of the transfer track to use it.
    2. Same.
    It appearing that the Hecla Company employed the section crew at work on the road, and that they removed the missing plates, the question of the duty to maintain the tracks was for the jury.
    3. Same.
    The fact that the plaintiff was returning on the railway track of defendant to do work for it, and was not then engaged in its behalf, does not relieve the defendant of its duty.

      4. Pleadings — 'Variance.
    Proof that the defendants made the track unsafe by removing the fish plates, sufficiently supports the allegations of the declaration that the defendants failed to maintain the track in safe condition, and is not open to the objection that the charge in the declaration was a failure to furnish fish plates.
    5. Same — Evidence—Use op Track.
    Testimony that the railroad company used the track frequently was properly received for the purpose of showing the general railroad use which was made of the road.
    6. Same — Methods op Warning.
    Evidence as to usual methods of warning, adopted when tracks are out of repair, was competent.

      7. Appeal and Error — Assignments oe Error. •
    The claim that a request of the appellant, given in the court’s charge, is inconsistent with other portions of the charge, is not reviewable when the point is not relied on in the assignments of error, and no error is assigned on other portions of the charge.
    8. Same.
    A general assignment of error on the charge as to the damages recoverable is too broad.
    Error to Bay; Collins, J.
    Submitted November 1%, 1908.
    (Docket No. 79.)
    Decided July 15, 1909.
    Case by Edward Plumb against the Hecla Company and another for personal injuries. A judgment for plaintiff is reviewed by defendant Hecla Company on writ of error.
    Affirmed.

      Morris L. Courtright and Miller, Smith, Paddock & Perry, for appellant.

      De Vere Hall, for appellee.
   McAlvay, J.

This was an action by plaintiff against the Hecla Company, impleaded with the Hecla Belt Line Railroad Company, defendants, for damages for personal injuries received on account of claimed negligence of defendants. Defendants offered no evidence, but at the close of plaintiff’s case asked the court to instruct a verdict in their behalf, and in behalf of each of them for several reasons, which will be considered later. This motion was denied, and defendant makes such denial the basis of its principal assignment of error. Plaintiff recovered a substantial judgment against defendant Hecla Company only. The jury found a verdict in favor of defendant Hecla Belt Line Railroad Company.

The following facts are material, and their statement necessary to an intelligent consideration of the case: Plaintiff was, at the time of his injury, a yard conductor, employed by the Michigan Central Railroad Company, in charge of the switching crew and the switching and distributing of cars in its Bay City yard. He had been in the employ of the company doing switching since 1892. Defendant Hecla Belt Line Railroad Company is a Michigan corporation organized under the general railroad laws. It is a very short line, used for bringing to, and taking away from, the plant of the defendant Hecla Company’s cement plant empty and loaded cars. It is the only road over which cars may come to this plant, and this manufactory is the only one situated on the line of this railroad. A short piece of this road, 674 feet long, called the “transfer track,” is used for the purpose of transferring and switching cars over it to and from the Michigan Central and other roads which cross or are connected by this part with defendant road, and also to bring cars to and from the Hecla Company plant. This transfer track is built on a sharp curve from the point where it leaves the Hecla Belt Line main track until it connects with the Detroit & Mackinac road.

Plaintiff was well acquainted with the situation, having for two years done switching over this transfer line, and placed and hauled out cars and done other work over it and over the main line of the Hecla Belt Line Railroad Company for the Hecla Company and the Michigan Central Railroad Company, going over the ground twice each day. On June 17, 1907, plaintiff, under orders of the yardmaster, left the Michigan Central yard about the middle of the afternoon, with a switch engine, going east, pushing 31 freight cars, 5 of which were for the Hecla Company and 26 for the Detroit & Mackinac railroad. The cars for the Hecla Company were on the east end of the train, convenient to cut off and leave on the main line of the Hecla Belt Line, while the Detroit & Mackinac cars were being transferred. When the engine had run east of.the point where the transfer track left the Belt Line to connect with the Detroit & Mackinac, it whistled for the target at the transfer which was operated by a towerman, and when the train stopped the plaintiff cut off the five cars for the Hecla Company. When they got the target they ran the train over the transfer track onto the Detroit & Mackinac road, leaving plaintiff at the depot, and taking the 26 cars for that road beyond the depot into its yard. When the engine had left these cars and come back plaintiff got on again, and rode on the footboard of the engine on the fireman’s side. The engine was headed east, going back to finish the work to be done for the Hecla Company. They got the target for the transfer track, and while passing back over it on the curve, a rail, from which the spikes and fish plates had been removed, spread and threw the engine from the track. Plaintiff was caught under the footboard, and his leg was crushed. No warning of the dangerous condition of the track was given to plaintiff or the engine crew.

Plaintiff charged in his declaration that at the time of the accident the Hecla Belt Line railroad, including this transfer track and its maintenance and repair, was under the charge and control of the Hecla Company, and the Michigan Central railroad was at the time using said road at the invitation and request of the Hecla Company for the purpose of delivering and placing cars for it at its plant, and that it was its duty to maintain such track in a reasonably safe condition for such purposes, and also in case of repairs to warn and notify plaintiff of the unsafe condition; which duties it neglected, and on account of which neglect plaintiff was injured.

In order to charge defendant Hecla Company with liability for his'inj ury as claimed in his declaration, there must have been furnished by him in the case evidence tending to show,—

(a) That at this time the management, maintenance, and repair of the Hecla Belt Line railroad was under the control of the Hecla Company.
(b) That the Michigan Central engine and the train crew were at the time using this road and its transfer at the invitation or request of said defendant company, and for its purposes and benefit.

Defendant insists that these propositions are not proven, and relies upon such absence of proof as the basis of its motion for an instructed verdict. An examination of plaintiff’s proofs shows that the Michigan Central railroad engines and employés went over this road daily for the purposes and benefit of the Hecla Company, and for the purpose of transferring and switching cars to other roads. Plaintiff was there twice a day with the engine and crew, and did all the work required by the Hecla Company under the direction of its officers and agents. The work for the Hecla Company was not confined to bringing cars in and out, but it appears that plaintiff hauled cars loaded with cinders from the boiler house to and upon this transfer track to be there unloaded and used to repair and ballast the roadbed. There is sufficient proof to warrant a finding of express invitation, as to some things done for the defendant company on this road, and from its constant use for other purposes of said company the jury would be justified in finding an implied invitation. This evidence is strengthened by the fact that neither of these defendants owned or possessed engines or other motive power. We do not think that the claim can be made that the Hecla Company had no knowledge of the ordinary uses of the track by the Michigan Central railroad, in view of the undisputed record. Nor do we find in the record that any extraordinary or peculiar use was made of any of the tracks of the Belt Line railroad, and if the record shows, as plaintiff charges, that the Hecla Company was managing and controlling this road, it would be charged with notice of the purposes for which it was used by those who were constantly using it.

Upon the question of management and control of the Hecla Belt Line railroad, there is proof which shows that, besides the track and roadbed, its properties consisted of some cars, which we infer were flat cars, from which its name at the time was being erased and the name of the Hecla Company substituted. Plaintiff in his daily work in connection with this road for over two years never received orders from any officer or agent of the corporation, but always transacted his business with and received his orders from the officers and employes of the Hecla Company. This company had no office or place of business known to plaintiff.

Plaintiff testified:

“The Hecla Belt Line Railroad Company had no engine of their own employed upon that railroad, and had no trainmen or section men as far as I know, and had no employés that I know of that did work either operating trains or maintaining the track.”

The tracks of this road were not maintained and repaired by the Michigan Central railroad or the connecting road which used them. The foreman of the section men who were employed to maintain and repair these tracks was employed by the assistant superintendent of the Hecla Company.

This man testified that he was section boss on this road, that he supposed he was paid by the Hecla Company as he got his pay at the same time with the rest of the men at the plant; that his crew worked on this transfer track, and was the only crew working on this road to his knowledge. The section men were paid at the Hecla Company office at the same time, in the same manner, and by the persons who paid the rest of the men employed in the cement plant of the Hecla Company. Mr. Hanson, an employé of the Hecla Company, and the section foreman of the section crew at work at the time of the accident, were the persons who told plaintiff to haul the cinders put on the roadbed, and this crew at this time were doing this work on the transfer, and there is proof tending to show that the spikes and fish plates were removed by them and that they left the rail in that condition without warning or notice of the danger. We find that there was evidence to go to the jury upon the question of the control and maintenance of the road by defendant Hecla Company.

Defendant contends that there is no evidence to show that at the time of the accident this road was being used for the purposes and benefit of defendant Hecla Company. The argument is based upon the fact that the accident occurred upon the transfer track, while plaintiff was returning from placing the cars on the Detroit & Mackinac track to finish the work of placing the cars for defendant Hecla Company, and did not occur upon the main track of the Hecla Belt Line; and that while upon the transfer track no act was done for the benefit of the Hecla Company. This distribution and placing of cars was done in the usual course of business, and in the most convenient manner. No complaint is made that this is not so. That the placing of its cars was for the benefit of the Hecla Company is not disputed; but because plaintiff was coming back over the only track possible to use to complete this work, after disposing, in the ordinary manner, of cars necessary to be transferred before being able to do so, it is claimed that he cannot be held to have been engaged in work for this company’s benefit. It is further claimed that the evidence affirmatively sustains defendant’s contention. This claim is based upon plain, tiff’s cross-examination relative to the exact thing he was doing at the time of his injury. The importance claimed for this testimony and its brevity is the excuse for quoting it.

“Q. The Hecla Company had no dealings with you in relation to that track had it ?
“A. Yes, sir.
“Q. What dealings did they have with you in relation to the track ?
“A. Why, I am over to do their work there.
“Q. You were not on that track doing their work were you?
l‘A. They used that track for that work.
“Q. You were not on that track doing their work ?
“A. I was coming over that track to do their work.
“Q. To get to do their work?
UA. Yes, sir.
“Q. To get to the track that was used for the work, but you were not on their track doing their work ?
“A. I was going to do their work.
“Q. Were you doing any work for them on that track that day at the time of the injury ?
“A. I was coming over to do their work, is what I said.
“Q. You were going to do it in the future ?
“A. Yes.”

This testimony does not contradict or change the direct examination. It in fact makes it more specific. We have already held that there was evidence in the case to go to the jury tending to show the charge and control over this road in the Hecla Company. The transfer track was a part of the road. Plaintiff testified that this was used for defendant Hecla Company’s work, and he repeats that in the testimony above quoted. It is clear to us that the question was one to be submitted to the jury, and that in doing so the court was not in error. The argument of appellant that no liability attached to defendant on account of plaintiff’s injury, because it owed him no duty, is the conclusion drawn from defendant’s construction of the evidence in the record, relative (a) to the use of the track by invitation; (6) the control, maintenance and repair of the road; and (c) the use of the transfer track for the Hecla Company at the time of the injury. The court- not agreeing with such construction as herein expressed, there is no necessity for a discussion of the proposition. Defendant’s argument concedes that if a duty had been violated, the negligence claimed, if established, could be imputed to the defendant Hecla Company.

On the motion for an instructed verdict it was claimed that there was a fatal variance between the allegations of the declaration and the proofs, in that plaintiff alleged in his declaration:

“ That defendants had failed to furnish fish plates, and the evidence shows that they have been furnished, that they were lying at the side of the track at the time of the accident, and had been temporarily removed by some one.”

The above quotation from defendant’s brief does not correctly state the allegations of the declaration criticised.

The declaration charges that it was defendant’s duty to keep and maintain the transfer track in a reasonably safe condition for use; to provide and equip it with rails connected by fish joints securely bolted to them with such rails spiked to the ties, and not to keep and maintain said track in an unsafe condition owing to their absence; to warn and inform plaintiff that the track was defective and unsafe owing to the absence of fish joints, and that the rails were not securely fastened. A continuing duty is charged as resting upon defendants to keep and maintain this track by certain means reasonably safe, and a failure so to do. This is not a charge of a duty to furnish the equipment and of a failure in that regard, but of a duty to keep and maintain a safe condition and a neglect in that they carelessly, negligently, and wrongfully kept and maintained such track in a defective and unsafe condition owing to the absence of such fish joints, and also failed to warn plaintiff of such danger.

The proofs showed affirmatively that the fish plates had been unbolted and taken off, and were there on the ground, and that the spikes had been drawn from one rail; that this loose rail caused the accident, and no warning of the danger had been given. The proofs tended to show that the rail had been loosened in this manner by the section gang, between the time the train went over this track to place the cars on the Detroit & Mackinac track, and its return to the place of the accident. The proofs as to the cause of the injury, and the neglect causing the same, are within the allegations of the declaration.

Assignments of error relative to the admission of evidence may be grouped. The court permitted evidence which was objected to, relative to the use of the Hecla Belt Line Company tracks by the Michigan Central. This was material as bearing upon the question of general railroad use and of permission and consent by defendants to such use, and also to show for whom the work was done at the time of the accident. The evidence of the use of these tracks by the Detroit & Mackinac was material as tending to show that the use of the track was a general railroad use.

Exceptions were taken to evidence allowed relative to warning or notice given when a rail is in the condition of the one in question. This evidence was material, and properly admitted.

The remaining errors claimed are assigned upon the charge of the court. In the principal brief defendant discusses but one of these, viz., that portion of the charge relative to the measure of damages. Upon the oral argument the following error in the charge was discussed:

“Because the court having charged the jury that ‘if they found that at the time of the accident the Michigan Central Railroad was using the transfer track for its own purposes, and not for the benefit of the cement company, then the cement company is not liable,’ the jury should have found a verdict of no cause of action against the Hecla Company under the evidence in the case.”

The portion of the charge quoted in this assignment of error was given at the. request of appellant. In the argument of defendant in its reply brief it is contended that this was inconsistent with other portions of the charge. No such contention is apparent from the assignment itself, to which the court can alone give attention. The objection cannot be that it was error to give it, as that would be a denial of its own request; and as no errors were assigned upon the other portions of the charge discussed, we will not consider them. The claim, then, must be that, under the evidence, this request as given amounted to an instructed verdict, and the court should have set the verdict of the jury aside. No motion to set aside this verdict was made. Courts, except in extreme cases, do not voluntarily disturb verdicts of juries, and, under the views herein expressed by us, there would have been no justification for such action. The argument presented is not germane to the error assigned.

There remains the question of the correctness of the charge by the court, upon the measure of damages. The assignment of error reads as follows:

"The court erred in instructing the jury as to the measure of damages that plaintiff could be entitled to, in case they found in his favor.”

In the charge the portion which considers the question of damages fills about two printed pages. This assignment is in effect a challenge to every utterance of the court upon the subject. The rule that assignments of error must be specific is well settled. It was held in Wanner v. Mears, 102 Mich. 554 (61 N. W. 2), that an assignment “ that the circuit judge erred in charging the jury and in giving the requests of plaintiff found on pages 134-140 of record ” cannot be considered where the pages cited contain any statements by the court in which the law is correctly stated, whatever may be said of the rest. The assignment in this case is within that decision. It is not claimed by the appellant that all of the charge of the court upon the subject of damages was erroneous, yet, if the assignment is held good, error could have been claimed upon any of the several propositions of law contained in it. This, we think, was the very fault which was sought to be remedied by requiring such assignments to be specific, and is for the protection of both court and counsel. We cannot consider this assignment of error, for the reason that it is too general. A• strict compliance with all the rules of practice must be required.

The judgment of the circuit court is affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: McAlvay, J. Ostrander, J.

text:
    GERO v. ABBOTT.
    Sales — Husband and Wife — Agency.
    No liability of the wife is created by the sale of an automobile to her husband, and no agency to act for her is shown, where the husband told the seller that he intended to give it to her, although a receipted statement given to the wife by the vendor treated the debt as due from her, and all the facts were known to the wife; payment to be made, under the agreement, by shares of stock of the husband to be subsequently transferred to the seller. MoAlvay, Moore, and Brooke, JJ., dissenting.
    Error to Chippewa; Steere, J.
    Submitted February 15, 1909.
    (Docket No. 104.)
    Decided July 15, 1909.
    Assumpsit by Benjamin Gero against Jennie L. Abbott for goods sold and delivered. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed, and no new trial ordered.

      Warner & Sullivan, for appellant.

      L. C. Holden, for appellee.
   McAlvay, J.

This case involves the sale of an automobile, claimed by plaintiff to have been made by him, to defendant through her husband. It is an action in assumpsit commenced by attachment against defendant and Samuel G. Abbott. Plaintiff later discontinued as to Samuel G. Abbott, and declared against defendant.. This case was tried before the court without a jury, and, upon request of defendant, the court filed findings of fact and his conclusions of law, ordering a judgment to be entered in favor of plaintiff for the purchase price of the automobile. To these findings of fact and conclusions of law defendant proposed amendments. Upon due consideration the court amended the findings of fact, but refused to amend the conclusions of law upon which judgment was rendered. The amended findings of fact and the conclusions of law are as follows:

“Amended Findings.
“The findings heretofore filed herein are hereby amended to read as follows:
“Facts.
“(1) This is a suit in assumpsit brought to recover the value of an automobile claimed to have been sold by plaintiff to defendant through her husband, acting as her agent.
“ (2) Plaintiff was and is a resident of Manistique, and defendant was and is a resident of Sault Ste. Marie, residing at said place with her husband.
“ (3) In the early spring of 1906, March or April, S. G. Abbott, defendant’s husband, who was engaged in the sale of mining stock, visited Manistique for the purpose of selling stock in the Cobalt Silver & Copper Mining Company, Limited, of Ontario. He had a letter of introduction to plaintiff from George P. McCallum, a mutual acquaintance, who was also interested in the mining company, and was its secretary and treasurer. Abbott succeeded in getting plaintiff interested in the mine, selling him 2,000 shares of stock at 50 cents per share; the par value being $1 per share. There were also negotiations between the parties looking to plaintiff’s assisting Abbott in selling the stock under an arrangement for appointing special agents for its sale in various cities in the upper peninsula of Michigan, and elsewhere, and it was proposed that they divide the commission.
“ (4) Plaintiff was a business man, located at Manistique, interested in the electric light and hardware business, and, amongst other things, in selling Oldsmobiles; he having several on hand, including a new touring car which he had recently purchased, costing him $2,000 wholesale.
“ (5) Abbott and plaintiff in the progress of their interviews, amongst other things, negotiated a trade of this large touring car for stock in the Cobalt Silver & Copper Mining Company, Limited. The price of the car at retail, with extension top, was $2,375, and it was agreed between plaintiff and Abbott to exchange this car with the top for 5,250 shares of stock in the mining company; Abbott telling plaintiff he was buying the machine for his wife. These negotiations were begun in the spring of 1906, on Abbott’s first visit to Manistique, and wereconsummated in October, 1906, at a time when Abbott again visited Manistique accompanied by his wife, the defendant in this case.
“ (6) Abbott informed plaintiff that the stock he was to exchange for the machine was not available, being then in the hands of the treasurer of the company at Sault Ste. Marie under a pooling agreement, and he could not get it until the following May, when he would procure the same and deliver it to plaintiff.
“(7) When the deal was consummated in October, 1906, Abbott instructed plaintiff to make out the bill of it to his wife, the defendant in this case, stating he was buying the car for her, instructed him to deliver it to her at Sault Ste. Marie, and to send a man with it to instruct her in running it when delivered. She was in Manistique at that time with her husband, and was cognizant of the transaction. She was told by her husband, in plaintiff’s presence, that he had bought this auto from Mr. Gero for her, and had traded him mining stock for it. She asked if Mr. Gero had got his stock, and her husband said ‘No;’ it was in a pool now. She acquiesced in what had been done, and received from the plaintiff the following paper:
“ ‘Benjamin Gero, agent for Oldsmobiles,
“ ‘Manistique, Mioh., October 1, ’06'
“ ‘Mrs. S. G. Abbott, Sault Ste. Marie, to Benjamin Gero, Dr.
“ ‘To Model S. Palace Touring Gar.......................$2,250 00
“ ‘To one extension top................................. 125 00
$2,375 00
“ ‘ Received payment.
“ ‘Benjamin Gero.’
“ Her husband gave to plaintiff the following paper:
“ ‘October 1st, 1906.
“ ‘ I hereby sell to Benjamin Gero and authorize the Cobalt Silver and Copper Mining Company, Ltd., to transfer on their books five thousand two hundred fifty shares (5,250) of my stock.
“ ‘S. G. Abbott.’
“(8) On the 3d of October, 1906, plaintiff showed the document he had received from Abbott respecting the sale of this stock to George P. McCallum, treasurer of the mining company, at Milwaukee, Wis., and inquired if he would honor a transfer of the stock from Abbott. Mr. McCallum told him he would not, but that after May 1st the pooling agreement would expire. Abbott did not return his pooling receipt to the treasurer, and did not ask for his stock. Neither did plaintiff present the agreement to the treasurer or demand his stock at any time afterwards.
“(9) In July, 1907, this stock was seized in Canada by the sheriff of a Canadian court under some writ from said court issued in proceedings against Abbott, and after-wards sold on July 27, 1907, for the sum of $8.
“(10) Plaintiff previously delivered the car to Mrs. Abbott at Sault Ste. Marie, and sent a man to instruct her to operate it, and on August 6, 1907, after the seizure and sale of the stock on the Canadian writ, plaintiff made written demand on S. G. Abbott for his stock.
“(11) Learning later of the fate of this stock which he was to receive, and being unable to get pay for the car, having in the meantime heard that defendant had made a bill of sale of it to someone else, plaintiff began suit by writ of attachment against S. G. Abbott and defendant jointly. He later discontinued the proceedings against Abbott, and declared against the defendant herein individually.
“(12) All files and records and exhibits are hereby made a part of these findings.”

The conclusions of law already filed were ordered to stand without amendment.

“Conclusions of Law.
“The touring car was purchased from plaintiff by defendant through her husband acting as her agent. This is not a case where property was purchased by one and ordered delivered as a present to another, who was ignorant of the details of the transaction, and never authorized or ratified the deal. She knew at the time that the car was sold through her husband to her, and that it was not yet paid for. She knew the price at which it was sold, received the bill, accepted title to the property, as well as subsequent delivery of same, ratifying her husband’s agency in every particular, and accepting the benefits of the transactions with full knowledge. The title passed from plaintiff to her. This would be true under the facts in the case at bar even if her husband had paid the price at the time.
“ ‘Where A., with B.’s assent, buys goods (in his own name) for B., but pays the price out of his own money, the property will vest in him, and will not be divested, though a bill of sale be afterwards executed (by the vendor) to B.; but, if the bill of sale had been so executed at the time of the sale to B., the property in the goods would have vested in him.’ 12 Modern Reports,. 344.
“At the instance of her husband, with her knowledge and approval, the sale was made to her, the title was passed to her, and the delivery of the article was also made to her. She received and accepted the benefit of it. Manifestly it was the understanding and expectation that her husband would pay for it and make her a present, not of the car, for she already had title to that, but of the purchase price. The expectation that another will pay for an article does not relieve the actual purchaser from that obligation.
“Judgment will be entered in favor of plaintiff for the purchase price of the touring car.”

Defendants excepted to these findings and conclusions, and have assigned errors thereon, and also upon rulings of the court on evidence. In the brief filed two propositions are relied upon:

(1) That the testimony of plaintiff concerning statements of the husband were not admissible to establish agency without further proof.
(2) That the essential findings of fact and conclusions of law were not warranted by the evidence.

We find from the record, which is certified to contain all the evidence in the case, that there was other evidence in the case of the husband’s agency besides plaintiff’s testimony as to the husband’s statement, as appears from defendant’s testimony, also from the receipted bill in her name received by her, and the transfer of stocks from the husband to the plaintiff, both made on the date when she was present with her husband and plaintiff, and the transaction was rehearsed in her presence, and, as she testifies, “ The final deal for this automobile was concluded.” It is not necessary to quote from the record. The fact upon this question as found by the court is supported by evidence. It was not error to refuse defendant’s motion to strike out plaintiff’s testimony, and to refuse to find for defendant as requested. The rule is so well settled that the findings of fact are conclusive where supported by any evidence that the citation of cases is unnecessary. An examination of all the evidence in the record shows that all the facts found by the court were supported by evidence, and that the conclusions of law are warranted by such findings.

We find no errors in the case. The judgment should be affirmed.

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

Ostrander, J.

It seems to me that the testimony, all of which appears in the bill of exceptions, tends to establish one fact, which is that defendant’s husband purchased from the plaintiff an automobile in his own behalf upon his own credit. There was no testimony tending to prove that in purchasing the automobile he was acting as agent for his wife. The fact that he told the vendor he proposed to give the automobile to his wife as a present has no probative force in establishing agency. The fact that at the request of the husband a statement was made on a billhead used by plaintiff, reading, “Mrs. S. G. Abbott *• * * to Benjamin Gero, Dr.,” etc., is not significant of agency in view of the further fact that the bill was receipted by the plaintiff. The fact that the wife, to the vendor’s knowledge, knew of the transaction is, in view of other testimony, conclusive of the other fact that plaintiff sold the machine to the husband, and not to the wife, and not to the husband for the wife.

The judgment is reversed, and no new trial granted.

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


author: Ostrander, J.

text:
    SABIN v. NORTHWESTERN LEATHER CO.
    Master and Servant — Warning and Instructing Ehployé — Defective Machinery — Assumed Risk.
    Negligence, the risk of which a servant does not assume, is inferable from evidence that a polishing machine on which plaintiff, a boy of sixteen, was working, suddenly and unexpectedly caught leather which he was polishing, jerking the plaintiff into the machine; that although it had jerked at previous times as other machines did, it was worse than the others and got out of order more frequently, and that although the defects were known to the plaintiff, he had received no warning concerning the danger, or instructional how to avoid it.

    Error to Chippewa; Steere, J.
    Submitted February 17, 1909.
    ( Docket No. 103.)
    Decided July 15, 1909.
    Case by Eoy Sabin, by next friend, against the Northwestern Leather Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Fred L. Vandeveer {Horace M. Oren, of counsel), for appellant.

      Sharpe & Handy, for appellee.

      As to master’s duty to warn and instruct servant, see note to James v. Rapides Lumber Co. (La.), 44 L. R. A. 33.

   Ostrander, J.

There are two counts in the declaration. In the first it is alleged that the defendant--

“ Negligently set the plaintiff to work on said machine without instruction as to the safest and best methods of handling such work and neglected to warn him of the dangerous condition of the said machine, and unreasonably required the plaintiff to finish 1,000 hides per day, and failed and neglected to keep said machine in reasonable repair, but permitted the same to get out of repair in such a manner that the undersurface of said polisher was uneven and rough, and the pressure of the polisher upon the leather as it passed through the said machine varied greatly, and became much greater at some times than at others, with the result that the motion of thesaid polisher and its coming in contact with the leather in the hands of the plaintiff had the effect to jerk the leather violently, by reason of which on, to wit, the day and year aforesaid, without any fault or negligence on the part of the plaintiff, and while he was carefully attending to his duties as usual, the leather in the hands of plaintiff suddenly received a violent jerk, and plaintiff was jerked or thrown suddenly forward, and his left hand was caught by the said machine,” etc.

In the second it is alleged that:

“ The machine on which plaintiff was put to work consisted of a flat surface or table, and above and suspended over such table an iron smoothing and polishing apparatus, hereinafter called the polisher, attached to and operated by an arm, so connected as to give such polisher a rapid rotary motion, such motion raising the polisher from the table a few inches, bringing it forward towards the person in charge, then dropping it upon the leather as it lay upon the table and then drawing the polisher away from the operator along the surface of the leather, the friction drawing such leather gradually through and under such polisher, and by means of the person in charge holding such leather in his hands and guiding the same, such leather was gradually exposed to the action of such polisher until the whole surface thereof was smoothed and polished, when it was removed and another hide substituted. It was well known to defendant that the machine on which plaintiff was put to work was not in good repair, and was defective in its construction, so as to render it dangerous to work upon, and would frequently get out of repair very suddenly, in such a manner that the friction of the polisher upon the leather in the hands of the operator was suddenly greatly increased, and the machine would jerk the leather violently and suddenly, sc that, either the leather would be jerked out of the operator’s hands, or, if the operator had a firm hold upon such leather, he would be jerked forward towards such machine. Plaintiff alleges that it was the duty of the defendant to repair or rebuild such machine, and to place the same in reasonably safe condition to operate, and to warn the plaintiff of the dangerous condition of such machine, and instruct him how to operate the same safely, and warn him of the danger of being jerked forward by such machine, and getting his hands into said machine, yet the said defendant, well knowing the premises, failed and neglected to perform its said duty to plaintiff, and failed and neglected to rebuild or repair the said machine so as to render it safe for use, and failed to warn plaintiff of the dangerous condition of said machine, and failed to warn plaintiff of the danger of being jerked towards or into said machine, and how to guard against the danger of being drawn or jerked into said machine, by reason of which the plaintiff, without any fault or negligence on his part, and while engaged in his usual duties in running such machine, was suddenly jerked forward by the unusual friction of such machine, and plaintiff’s fingers of his left hand were caught in such machine,” etc.

If defendant was negligent in not instructing the plaintiff, it was because there was something peculiar about the particular machine, something in its condition, or in the manner in which it performed, which raised the duty to give other or further instructions than were required to be given to one operating a like machine in good repair. It is therefore necessary to examine with care the testimony concerning the condition of the machine and the way it performed in operation.

There is no testimony tending to prove that the “undersurface of said polisher was uneven and rough.” There is no testimony tending to prove that the machine was defective in construction, or that it was out of repair in the sense that any necessary part was wanting or was imperfect.

The machine, called a jack, was one of seven; was of standard make; adapted to the purpose for which it was used. It was used to smooth and polish hides of leather called “splits.” In its operation an arm carrying at its head a plate, called the polisher, moved towards the front of the machine, descended to and struck an inclined bolster, and was drawn backward and downward for a distance, when it was lifted and the movement was repeated. The movement was constant, and is described as at a rate of 150 revolutions a minute. A hide was thrown by the operator over the bolster, and over a table which surrounded it on three sides, and the pressure of the polisher upon the leather smoothed it. The operation involved such movement and manipulation of the hide when the arm was lifted and was advancing that its entire surface was passed over the bolster and under the polisher. Some hides were rougher than others; in some were holes, rough spots, and some hides were from branded cattle. The pressure of the polisher upon the hide being otherwise constant, the friction caused by the passing of the head or polisher over the leather would be, in some degree, variable as thick and rough places in the leather were encountered. The tendency at all times was to pull the hide away from the operator towards the back of the table in the .line of the descending, polishing strokes of the arm. With a perfect machine, perfectly adjusted, there was the danger, the principal and obvious risk of the employment, that the swiftly moving polisher would be brought into contact with a rough spot, a brand or scar, or a hole in the leather, jerking the operator if he maintained his hold upon the hide towards the machine, and, according to the position in which he stood, towards the moving arm. •

Plaintiff testified:

“ Some of the leather would be rough. Sometimes there would be a hole or place where it was branded. If the polisher happened to get on that, that would jerk it. When that would jerk, I had to let it go, and go around and pick it up. The reason that I would let it go was because it would jerk away from me, it would flop out of my hands. * * * If the leather was jerked, I would turn loose of it, so as not to get caught. This would happen occasionally every day, and sometimes two or three times an hour. When I first started to do this work, I did not try to hold on to the leather. I did not try because there was too much power there. I could not hold it, because it was being pulled awáy with so much strength, and my strength was not equal to holding it. I realized that I would have to turn loose of - it, and simply turned around and picked it up. I realized that, if I held on, I might be drawn in, and for that reason I turned loose. I knew of this'before the accident. * * * This work that I was doing, feeding this in, was a comparatively simple operation. You had to be quick about it and dexterous. As soon as I got through with one hide, I would take another. You would have to place it on the horse and reach over on the other side and get another one. Outside of the fact that occasionally one of these would be pulled out of my hands, I got along all right.”

Describing the manner of his injury, he said:

“ I think at the time I received the injury, I had a hide about half dressed, half polished. There was not anything at all on that hide in the way of peculiar places that I saw. I do not know why this machine jerkéd at that particular time. It jerked a good deal harder on that occasion than I had ever had it jerk before. I had no preliminary warning before that. The jerking had not increased before that, leading up to this. It had been running about as usual. I do not know now as to just what caused that jerking. I know that the machine previously had acted so that it would jerk away a hide, and had to be adjusted. I never had my fingers pinched before. * * * At the time that I got hurt I was working the leather around. I had a side of leather in the machine. When I was working this leather around in the machine, this jack gave a jerk, and I had a grip on it, and it jerked so hard and jerked my weight over on it, and I did not have time to get back out of the road, and it caught my two fingers, and it pulled them two fingers off, and pulled my arm in front of the machine, and it came back again, and smashed my arm, and in coming back my head was right beside it, and it shoved me about 10 feet away from the machine.”

Plaintiff also testified that, upon being told that he might operate this machine, he oiled it, set it in motion, and operated it for some 45 minutes, putting through 25 hides, before the foreman had opportunity to instruct him in its use. He said:

“ I knew that the leather did jerk occasionally. I found that out from my experience in the first 45 minutes. After he gave me that instruction, I still had some trouble by it still jerking before I caught on just how to operate it. I have no idea how many hides it jerked with me that day. There were several times every hour. The longer I worked at it the more proficient I became.”

Plaintiff was 16 years old, and had no previous experience. He began work on Monday, March 11th, and was injured on Monday, March 18th, at about 11 o’clock in the forenoon. He operated no jack other than the one at which he was set to work. He had put through, when injured, about 5,000 hides. The testimony for plaintiff also tends to prove (what would seem to be a self-evident proposition) that in operating the other jacks the same difficulty, in kind if not in degree, was met with. The hides were pulled away from the operator by the descending, polishing stroke of the arm. There is testimony tending to prove that the bolsters on all of the machines worked up, causing an increasing pressure of the polisher upon the hides. This was remedied by some adjustment of the machines. There is also testimony that the particular machine jerked worse than the other machines, required more frequent adjustment, and that the adjustments made after plaintiff began to operate the machine were made at irregular intervals. Upon this subject the plaintiff testified, in part, as follows:

“There were times when this machine jerked so much that I went to the foreman and asked him to fix it. He repaired this machine on Monday, the first day I was there. He took it apart, and I think on Tuesday he adjusted the screw, and he did not touch it again until Thursday, and he took and adjusted the screws again. From Thursday until the day I was hurt, it was not touched, was not changed at all, as I recollect. He made these repairs when I went to him and told him about its jerking. The time I went to him and told him about this the machine was acting rough and jerking away from me, jerking so hard that I could not do anything with it. * * * I went over to Mr. Faulkner, and made some complaint to him about the machine. The nature of my complaint was that it was jerking from me. It jerked so that I could not hold it at all, and strong enough to jerk it away from my hands. Mr. Faulkner went over and made some adjustment on the bolster. He did not do anything to the arm or polisher. The only adjustment he made was to the bolster underneath. On Monday he re-’ paired it, and on Tuesday he adjusted it, and I think it was the following Thursday he adjusted it again. He handled some set screws underneath. The last time he did that was Thursday in the forenoon, about 10 or 11 o’clock, or something like that. I worked on the machine all the rest of Thursday and Friday and Saturday and up until 11 o’clock Monday morning. During that time I made no complaint about it. It was all right up until I got hurt, when suddenly something happened, and the jerk occurred and my hand was pulled in.”

Plaintiff was not taught, indeed was forbidden, to adjust the machine. He also testified, not always consistently :

“ If there was a rough place, and I tried to polish it, the leather would be jerked. I knew that if the leather was jerked, and I had hold of it and did not turn loose, my hand would be jerked too. I knew if my hand was jerked forward, it might be caught. * * * Sometimes this leather would be jerked out of my hands when it would get caught on rough places; that is, when the polisher would catch on rough places. I never had it catch on a brand. I do not mind of its catching on a rough place. Sometimes when I had a smooth piece of leather it would jerk. * * * I did not get any instruction as to what to do about rough places being in the leather, how to polish those. When there were rough places to get around , them, I had to skip them. I had to do so because I could not polish them, it would pull out of my hands. When I got a piece of leather with rough places in it, and the polisher was over them, it would pull it out of my hands. I do not know whether it did this the first day I worked the jack. It happened a number of times before I got hurt, so I came to the conclusion I could not polish the rough places. The reason I could not was because the polisher would jerk it out of my hands. * * * When the polisher would jerk, my hands would not go forward. It would jerk it out of my hands. My hands would go a trifle forward. I knew without being told that I was not able to polish the rough places; that the leather would be jerked away from me. At some times my hands would be within four inches of the polisher. I did not realize that if I did try to do one of those rough places and was caught, and my hands were within four inches, there was a possibility of my hands being drawn in if I did not let loose. I knew that I could not do it. I did not realize that, if I held on to it, and that if my hands were within four inches of the polisher, my hands would get in. I did not think there was any danger of that at all. * * * I found out from using this machine that it jerked the leather occasionally and quite often, and sometimes it jerked quite hard. Sometimes I could not jack a hide and I had to give it to the boy next to me.”

It will be perceived that, accepting plaintiff’s version of the facts, the case is a very close one. But we are not able to say, as matter of law, that the testimony fails to show that this machine had habits, peculiarities, of which the employer was, or ought to have been, aware, with respect to which the plaintiff should have been advised. It is said in argument that in the six days he operated the machine successfully plaintiff had run the gamut of experience, and had learned, without being told, the habits of the machine. We do not assent to this because we think there is testimony supporting the conclusion that the machine was eccentric, erratic. No other reason is suggested for the fact that plaintiff was sometimes obliged to give to an operator of a like machine a hide which he had tried unsuccessfully to treat with his own machine. Nor can the age and inexperience of the plaintiff be wholly ignored in determining whether, with the instructions and demonstrations which were given him, he appreciated the risks attending the operation of this machine.

We hold, though with considerable reluctance, that the court was not in error in refusing to direct a verdict for the defendant. No other question is raised by the assignments of error. The judgment is affirmed.

Hookeb, Moobe, McAlvay, and Bbooke, JJ., concurred.


text:
    DELOR v. WAYNE CIRCUIT JUDGE.
    1. Appeal and Error — Prohibition—Alimony.
    Provisions for temporary alimony may be incorporated in a final decree for divorce, and disobedience of the order punished upon contempt proceedings, after the claim of appeal and bond have been filed, under Act No. 340, Pub. Acts 1907.
    2. Same — Jurisdiction after Appeal.
    The jurisdiction of the Supreme Court does not attach on appeal from a decree in chancery, until the return is filed with the clerk.
    Prohibition by Joseph Delor to restrain Joseph W. Donovan, circuit judge of Wayne county, from further action in contempt proceedings.
    Submitted February 2d, 1909.
    (Calendar No. 23,262.)
    Writ denied July 15, 1909.

      Charles 8. Hampton, for relator.

      Thomas Hislop, for respondent.
   Hooker, J.

The respondent sitting in chancery made a final decree in a divorce cause against the defendant, Joseph Delor. The decree contained provisions regarding permanent alimony. It also provided that defendant should pay for the support of the complainant and her children the sum of $7 per week until the provisions of the decree as to permanent alimony should be complied with, and in case of appeal $8 per week. We fake this statement of the decree from the petition filed in this proceeding; no copy of the decree appearing in this record. The decree was-entered on January 20, 1909. Defendant filed a claim of appeal on January 27, 1909, and a bond as required by law. See Act No. 340, Pub. Acts 1907. On February 4, 1909, proceedings for contempt were begun before the circuit court, based on defendant’s failure to pay said sum of $7 per week, whereupon this proceeding was instituted for a writ of prohibition, to restrain the court from allowing further steps in the contempt matter.

In his final decree the learned circuit judge has thought it advisable to include provisions of a temporary nature, to secure the support of the wife and children during the period following the final decree, and before compliance with its terms as to permanent alimony. This we think within his power, and the fact that the temporary order was incorporated in the final decree does not make that provision reviewable on appeal, and subject to a stay, upon filing an appeal bond, under section 2, Act No. 340, Pub. Acts 1907.' See Ross v. Ross, 47 Mich. 185 (10 N. W. 193). It should be treated as a temporary order, the enforcement of which is with the circuit court, under the provisions of section 5 of said Act No. 340, at least until the jurisdiction of the Supreme Court shall have attached, which does not occur in such cases until the return is filed in said court. Id.

The writ is denied.

Blair, C. J., and Moore, MoAlvat, and Brooke, JJ., concurred.


author: Blair, C. J. Hooker, J.

text:
    FOURNIER v. DETROIT UNITED RAILWAY.
    Personal Injuries — Survival Act — Pleading—Executors and
    Administrators.
    After the death of the plaintiff, in an action for personal injuries, and after a revival in the name of the administrator, an amendment cannot be made to the declaration so as to authorize proof of damages to persons pecuniarily injured by such death. Act No. 89, Pub. Acts 1905.
    Error to Wayne; Hosmer, J.
    Submitted February 23, 1909.
    (Docket No. 18.)
    Decided July 15, 1909.
    Case by George Fournier, administrator of the estate of Mary Fournier, deceased, against the Detroit United Railway for negligent injuries to plaintiff’s intestate. . A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Gorliss, Leete & Joslyn (Paul B. Moody, of counsel) for appellant.

      Dohany & Dohany, for appellee.
   Blair, C. J.

On December 24,1906, Mrs. Mary Fournier commenced suit against defendant by declaration to recover damages for injuries, pain, .suffering, etc., alleged to have been received on October 27, 1906, through the negligence of defendant’s conductor in causing a certain electric car to be suddenly started while she was attempting to board the same. A plea of the general issue was duly filed, and afterwards, on February 6, 1907, Mrs. Fournier died, leaving a husband, George Fournier, and several children. On March 28, 1907, George Fournier was appointed administrator of his wife’s estate, and on April 3, 1907, an order was entered reviving the cause in the name of George Fournier as administrator. On February 21, 1908, a jury was impaneled and sworn in the case, and plaintiff’s counsel opened the case to the jury. On February 24th counsel for plaintiff asked leave to file an amended declaration, which the court permitted, saying:

The Court: I doubt myself, as I said the other day— I will let counsel put his statement on the record; but in a case like this, where it survives, and the declaration was filed, I think that is all that is necessary; but if counsel wants to put an amended declaration in, in view of alleged things which happened subsequent to the beginning of the suit, I think I will let him do it. I do not understand it changes the allegations of negligence. It only changes the matter with reference to the damages.
“Mr. Dohany: Yes, that is all, your honor.
“ Mr. Moody: It, in our judgment, entirely changes the cause of action. Will your honor give me the benefit of an exception ?
“ The Court: You may have the benefit of an exception.”

The amended declaration, after setting up the plaintiff’s representative capacity and other formal matters and allegations of duties and negligence substantially in the language of the original declaration, averred Mrs. Fournier’s death as a result of her injuries, and that in consequence of said injuries she suffered great pain continually. The declaration further averred that plaintiff, as husband, and several children, naming them, were entitled to intestate’s personal estate under the statutes of distribution, and were entitled to bring an action for the pecuniary injuries suffered by them in consequence of her decease. In submitting the case to the jury, the court instructed them that, if Mrs. Fournier’s death was due to the fall from the car, plaintiff would be entitled to recover for pecuniary injuries consequent thereon. The court thereupon further instructed the jury, as follows:

“Under the other circumstances, if you find that to be true, then, gentlemen of the jury, as survivor of his wife, the plaintiff would be entitled to recover in this case at your hands such damages as you find would compensate her for the suffering that she endured by reason of the fall on the 27th day of October up to the time of her death. I cannot lay down any rules, gentlemen of the jury, for guiding you in reaching that. That, gentlemen of the jury, is a matter for your common sense, and you must reach it in that way, and so, gentlemen, for all the sufferings that she endured (I do not mean to say the suffering from the pneumonia itself), if you find that the fall was not the proximate cause of that, but all the suffering and inconvenience and discomfort resulting to her from that fall for as long as you find that that lasted. Now, I have prepared a question here, gentlemen of the jury, to submit to you, because there might not perhaps be the same distribution of those damages in the one case as in the other, and so to aid me, gentlemen, in the determination of this matter, I ask you to answer this question either yes or no, as you will find it from the evidence which has been submitted to you: ‘Was the fall from the car Mrs. Fournier received on October 27, 1906, the direct or proximate cause of the pneumonia which resulted in her death ? ’ I wish you to take that, gentlemen of the jury, to your room and answer it, according as your judgment shall dictate, yes or no, by simply writing the word yes or no in answer to that question.”

The jury answered the special question in the affirmative and returned a verdict of $1,500 in favor of plaintiff.

Defendant brings the record to this court for review upon writ of error, assigning as error, among other assignments, that the court erred “in permitting the plaintiff to file an entirely new declaration setting up a new and distinct cause of action.” We are of the opinion that this assignment is well founded. The court, as evidenced by the above quotations from the charge, regarded the declaration as warranting a recovery for different species of damages to be awarded by the jury as they should determine that the death did or did not result proximately from the injuries. If the jury found that death did not result immediately from the injuries, but from entirely independent causes, we think that Act No. 89, of the Public Acts of 1905, would not apply. The title of that act is:

‘ ‘An act to prescribe the measure of damages in actions for negligent injuries to persons where deaths result, and where the actions are prosecuted under the survival act,” etc.

Section 1 provides that:

“In all actions for negligent injury to persons hereafter prosecuted by the executor or administrator of an injured person, under the statute which declares that said actions shall survive, the measure of damage in each case, shall be such a sum as the court or jury shall deem fair and just with reference to the pecuniary injury resulting from the death of the injured person. * * * ”

The reasonable interpretation of this act from its title is that it was designed to establish a measure of damages for negligent injuries resulting in death, where such death was not immediate, and the body of the act is consistent with this view. If the jury found, on the other hand, that the injuries were the proximate cause of death, Act No. 89 would apply and would fix the measure of damages. The declaration as amended, if valid, would warrant a recovery for either class of damages, and the evidence put in would have supported a negative answer by the jury to the special finding. We are therefore of the opinion that the trial judge erred in permitting the amendment. Hurst v. Railway Co., 84 Mich. 539 (48 N. W. 44); Dolson v. Railway Co., 128 Mich. 444 (87 N. W. 629); Walker v. Traction Co., 144 Mich. 685 (108 N. W. 90).

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

Hooker, J.

I am of the opinion that a declaration filed as commencement of suit, whereby the plaintiff alleges damages sustained through an injury caused by defendant’s negligence, cannot, after death of the plaintiff and revival by and in the name of the administrator, be so amended as to authorize proof of damages under the provisions of Act No. 89, Pub. Acts 1905, for the reason that it is the introduction of a new and different cause of action.

The judgment is reversed, and a new trial ordered.

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