text:
      In re DUBOIS' ESTATE. ROHRIG'S APPEAL.
    1. Trusts — Assignments for Benefit of Creditors — Evidence.
    Where claimant held a note, given to pay indebtedness that had in part accrued before his debtor executed a deed of trust, and where claimant could not testify what part so accrued or what part of the note represented subsequent indebtedness, the court did not err in directing a verdict in favor of the trustee’s estate.
    2. Contracts — Novation — Consideration — Assuming Indebtedness. .
    In a proceeding to enforce a claim against the estate of a decedent, who had received property from his father subject to the debts of the latter, a letter written by the son promising to pay debts created after the execution of the trust deed was improperly received in evidence, in the absence of testimony that claimant promised to forbear collecting his claim against the father, or granted any extension or favor in consideration of decedent’s assuming the debt.
    3. Estates of Decedents — Appeal from Finding of Commissioners on Claims — Executors and Administrators.
    On appeal from the commissioners on claims in an estate, the cause is heard de novo, and the executrix who did not appeal may review the judgment of the circuit court on error.
    4. Evidence — Matters Equally Within Knowledge of Deceased.
    Testimony of a claimant as to the contents of a letter sent by him to decedent, and referred to in a reply that decedent sent to claimant, was properly excluded as equally within the knowledge of decedent. Act No. 30, Pub. Acts 1903 (5 How. Stat. [2d Ed.] § 12856).
    Error to Monroe; Golden, J.
    Submitted June 20, 1913.
    (Docket No. 51.)
    Decided July 9, 1913.
    Claim by Frank J. Rohrig against the estate of Louis J. Dubois. The commissioners on claims disallowed a part of the claim. Claimant appealed to the circuit court. From a judgment for claimant for part of amount claimed, both parties bring error.
    Re*versed; new trial denied.

      Anderson, Rackham & Wilcox, for appellant.

      E. R. Gilday and Willis Baldwin, for appellee.
   Kuhn, J.

This appeal is to review a judgment directed by the circuit court for the county of Monroe, allowing a portion of plaintiff’s claim against the estate of Louis J. Dubois, deceased. In the year 1896, Louis Dubois, the father of the deceased, became involved financially, and on August 17th of that year, in order to provide for the payment of his debts, he conveyed all his real estate to his two sons, Louis J. Dubois, now deceased, and Edmund T. Dubois, charged with the payment of all debts he was owing at the time the trust deed was executed. Some time afterwards Edmund T. Dubois relinquished his interest in the trust deed, and the trust was thereafter administered by Louis J. Dubois up to the time of his death. The terms of the trust deed are broad enough to include any debts Louis Dubois might have been liable for or owed on the date of the deed, even though the amounts had not be disclosed to his sons. It appears that the claimant, for 10 or 12 years prior to April, 1912, had had business dealings with Louis Dubois, Sr., lending him money and signing his notes. The items making up this claim are: June 20, 1904, $120 cash advanced; May 31, 1905, cash $16.50; May 31, 1905, a note given for $250 by F. J. Rohrig to Louis Dubois as an accommodation paper and subsequently paid by Rohrig; and a note dated May 23, 1906, for $500.

It is claimed that this $500 note was given in payment, at least in part, of moneys borrowed 10 years earlier. No claim is made that any of the other transactions antedate the trust deed, and the testimony of the claimant with reference to the $500 note is very indefinite and uncertain. He testified as follows:

“Q. Mr. Rohrig, you say part of this $500 note was borrowed back 10 years earlier, and you said you couldn’t say how much, didn’t you?
“A. Yes.
“Q. And when he made the first loan, you made the first loan to Mr. Dubois; after that he made payments, didn’t he?
“A. Yes.
“Q. And then again he borrowed some more money?
“A. Yes.
“Q. And you had a sort of running account with him down to the time this $500 note was given?
“A, Yes.
“Q. And you can’t state anything about what the original loan was?
“A. No; because they were in the shape of notes that were destroyed.
“Q. How large payments did he make after this first loan?
“A. I can’t tell you that.
“Q. Haven’t you any idea?
“A. No, sir.
“Q. He reduced his debt sometimes quite a bit, didn’t he?
“A. Yes. And sometimes he increased it.
“Q. And how frequently would he do that?
“A. That would depend on the time; the notes were made for sometimes 90 days, sometimes 60 days, and sometimes 30 days.
“Q. And sometimes they were paid when due, and sometimes he wouldn’t?
“A. Yes.
“Q. And sometimes he borrowed more money?
“A. Yes.
“Q. And he would give you another note for that?
“A. Yes.
“Q. And then you bunched them up in this $500 note finally; is that right?
“A. Yes.
“Q. And you can’t now make any estimate of what the original loan started at, and how much it was reduced ?
“A. This is the fourth time I have answered you that question; no.
“Q. Do you know whether any part of that $500 note was for money advanced previous to August 17, 1896?
“A. I can’t say definitely because I haven’t any of the papers to go by; only from memory.”

It is very evident from this that it would be impossible for a court or jury to determine how much of the money represented by the $500 note was advanced before the trust agreement was given, and the trial judge properly charged the jury with reference thereto, as follows:

“It appears from the bill itself that much of the present claim arose subsequent to the execution of the trust deed. To attempt to arrive at any sum as being due or owing when the trust deed was executed would be guesswork and speculation, and under the evidence in this case I charge you that the appellant has not shown that his claim, or any portion thereof, is covered or secured by the trust deed referred to, and the appellant cannot recover in this case under or by virtue of said trust deed.”

On the trial of the cause, in order to substantiate the claim, a letter was received in evidence written by Louis J. Dubois, deceased, to the claimant, under date of October 25, 1905, the material portions of which being as follows:

“Friend Frank:
“Your letter of the 22d was pretty near like the last straw on a camel’s back. If I had known that my father owed you such a large amount at the time that I agreed to take the farm and pay his debts, I never would have done so, as I was already taking up about $30,000 worth of debt, which I have long since realized is more than my resources will permit. Up till this last spring I did not know of this indebtedness beyond the fact that he called on me for money from time to time to take care of a certain $220.00 note which I believe you endorsed and finally paid. What he did with all that money is more than I can tell. He surely did not help me with it, and in a measure I do not feel responsible; however, you have been such a good friend that I cannot see you lose it either, but I am in no position at present to pay anything. * * * This last affair has made me decide to sell the place and everything with it and pay up all of his indebtedness and dig out of Monroe to begin life over.”

It is claimed that this letter is an independent promise to pay any debt of the father to Rohrig, whether created prior or subsequent to the trust deed, and is based upon a sufficient consideration. The consideration relied upon is a claimed forbearance on the part of Rohrig in not pressing his claim to judgment and making a levy on the reversionary interest of the father in the property covered by the trust deed. The infirmity in this position- arises from the fact that the record does not disclose that plaintiff promised to forbear collection, extend time of payment, or grant any favor to any person in consideration of the deceased assuming any new debt. He does say he took no steps towards forcing the collection of the account after receiving the letter, but does not say that receiving the letter was the reason for his not doing so. No consideration having been shown for this promise made in the letter, it was improperly admitted in evidence. The court directed a verdict for the $220 note mentioned in the letter, less a payment claimed to have been made by some straw which Dubois had. shipped Rohrig, amounting to $97.53. Without the letter, there was nothing left to support the claim, and a verdict should have been directed for the defendant.

It is urged that, as the defendant did not appeal from the, order of the probate court, she is not aggrieved by the action of the circuit court, and the appeal to this court should for that reason be dismissed. An appeal having been taken from the determination of the commissioners on claims, the matters in controversy were heard de novo in the circuit court, and either party had a right to appeal from the judgment of that court.

The executrix was served with notice to produce a letter claimed to have been written by claimant to the deceased, and referred to in the letter of October 25th. She testified that she was unable to find such a letter, and while claimant was on the witness stand he was asked to state the contents of the letter. It was objected to as stating matters equally within the knowledge of the deceased, and, upon the objection being sustained, an exception was taken, and error is assigned upon this ruling of the court. This ruling was correct, as clearly, this would come within the terms of Act No. 30 of the Public Acts of 1903 (5 How. Stat. [2d Ed.] §12856). The claimant is testifying in support of his claim, and the cause is being defended by the personal representative of the deceased. The matter, if true, must have been equally within the knowledge of the deceased person.

Judgment is reversed, and no new trial granted.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    RICHARDSON v. DETROIT & MACKINAC RAILWAY CO.
    1. Railroads — Negligence—Speed—Te ain s — Operation .
    Evidence that defendant’s extra train passed through a station on its line about midnight, running at from 30 to 40 miles an hour, striking and killing decedent, who was waiting for a passenger train, that the night was dark and misty and no headlight was displayed, although two lanterns were placed on the rear of the engine which was running backward, that there was no light at the station or in the yard, and that decedent was found in such a position as to permit of the inference that she was standing beside the track when the train struck her, with testimony in defendant’s behalf tending to contradict plaintiff’s claims as to speed and the failure to give statutory signals, warranted the trial court in submitting to the jury the question of defendant’s negligent operation of the train.

    2. Same — Contributory Negligence.
    Considering her conduct in the light of the presumption that the deceased was in the exercise of reasonable care, testimony that the lights on the advancing train might easily have been mistaken for switch lights, that greasy spots were discovered on her clothing which might have been caused by catching in the machinery, and the condition of her clothing as well as the injuries found on the body were consistent with the theory that she was not on the track, the evidence presented a question of contributory negligence for the jury.
    3. Same — Cause op Death.
    Whether the extra train which passed through the station just before midnight caused the death of 'decedent, under evidence tending to show that it passed at 11:50 p. m. and that the watch of deceased stopped at that hour, was a question of fact, in connection with other testimony tending to show the body was cold when the regular train arrived.
    4. Same — Lights—Station.
    It was as favorable to defendant as the evidence warranted, for the trial judge to eliminate from the issues the claim that the station was not properly lighted, on the theory that deceased had waived such requirement; defendant had no reason to complain of instructions leaving the failure to provide lights as one of the conditions surrounding the accident to the jury, as bearing on the question of negligent operation of the train.
    5. Damages — Death Act — Negligence.
    Under 2 Comp. Laws, § 6309 (3 How. Stat. [2d Ed.] § 6664), providing that the amount recovered in an action for the killing of an intestate person shall be distributed to the persons and in the proportions provided in the law governing the distribution of personal property of intestates, a sister of decedent, whose father and mother were living at the date of decease, not being entitled to share in the estate, would not be entitled to consideration, although the surviving sister was an invalid, dependent on the decedent: the court committed prejudicial error in permitting the jury to base the damages awarded on the loss to father, mother, and sister.
    6. Same — Actions—Indigent Parents — Poor Law.
    Plaintiff’s right to recover was not defeated by the fact that decedent voluntarily contributed to the support of her infirm and aged parents, and that no steps had been taken to compel contribution under 2 Comp. Laws, § 4487 et seq. (2 How. Stat. [2d Ed.] §3478 et seq.).

    Error to Arenac; Sharpe, J,
    Submitted June 18, 1913.
    (Docket No. 45.)
    Decided July 9, 1913.
    Case by Wallace B. Richardson as administrator of the estate of Edith I. Barhite, deceased, against the Detroit & Mackinac Railway Company for the negligent killing of decedent. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Henry, Henry & Henry (James McNamara, of counsel), for appellant.

      B. J. Henderson and Hall & De Foe, for appellee.

       As to running train or car between standing train and station, see notes in 13 L. R. A. (N. S.) 620; 27 L. R. A. (N. S.) 128; and 31 L. R. A. (N. S.) 338.
      Upon the carrier’s duty to prevent passengers at stations from going into dangerous places, see note in 32 L. R. A. (N. S.) 198. And for the degree of care toward passenger at station, see note in 33 L. R. A. (N. S.) 855.

   Stone, J.

This is an action on the case brought by the administrator of the estate of Edith I. Barhite, deceased, against the defendant to recover damages under sections 6308 and 6309, 2 Comp. Laws (3 How. Stat. [2d Ed.] §§ 6663 and 6664). It is alleged that plaintiff’s decedent met her death through the negligence of the defendant in the operation of one of its trains. From a judgment in favor of the plaintiff rendered in the circuit court for the county of Arenac, the case is brought to this court for review upon writ of error.

The plaintiff’s intestate was an unmarried woman 37 years old at the time of her death. For 20 years she had been teaching school in different places in Michigan. In June, 1911, she had just finished teaching a term in Maple Ridge, Arenac county, and had left intending to go to Hillman, Montmorency county. The defendant operates a railroad from Bay City on the southerly, to Cheboygan its northern terminal through the village of Turner, in Arenac county, at which place a depot and depot grounds are maintained by the defendant. Turner at the time referred to herein was a village of between 400 and 500 inhabitants. In describing the general situation of the buildings and tracks in Turner reference is had to the attached map.

The main line of the defendant’s road runs northeasterly and southwesterly through the village. Main street runs east and west. On the south side of Main street, 139 feet east of the main line, is the hotel in which plaintiff’s decedent spent the evening of the night she met her death. On June 22, 1911, plaintiff’s decedent was brought from Maple Ridge to Turner, arriving there about 9:30 p. m. local time. She first went to the depot and left a trunk on the west side thereof. After visiting a store, she went to the Turner Hotel. It was her intention to take the 12:14

a. m. No. 9 train north. She was given permission to remain in the hotel until train time, and she told the proprietor that she did not want any one to stay up with her; that she had taken the train before from Turner, and needed no assistance. She was last seen lying on a couch in the sitting room of the hotel about 10:15 p. m. The defendant’s local station agent saw and talked with Miss Barhite that evening at the hotel. She said that she wished to go to Alpena, and he explained to her what she should do to see that her trunk was put aboard the train, and he offered to wire North Bay City in reference to it, but she said it was not necessary. He gave her the correct time, and saw that her watch was right. He offered to light the depot and leave it open for her, but she said she preferred to remain at the hotel.

On the night in question passenger train No. 9 left Bay City, according to the train sheet, at 11:25. It was late, and did not arrive at Turner until 1:10 a. m. On the night in question, Engineer Guriy, then at Bay City, received orders to back up to Sagining, about 25 miles north of Bay City, and at that point to change engines with a passenger train going south drawn by engine No. 24. The engines were exchanged, and Guriy in charge of engine 24 proceeded north towards East Tawas passing through Turner. This engine had a broken back-up eccentric strap on the left side, but this in no way affected the running of the engine. Extra 24, as this train was known, comprised engine No. 24 and tender and a baggage car. The engine was headed south, and the baggage car was coupled to the front end of the engine. The train, therefore, stood so that the tender of the engine was to the north and the baggage car to the south. Extra 24 in this position backed north toward East Tawas. A red light and a white light hung on the advancing end of the tender. There was no headlight on that end. A lighted headlight shone to the south, and into the baggage car which was coupled to the engine. This train left Sagining for East Tawas about 10:45 p. m. Engine 24 carried an automatic bell, and there was testimony that it was ringing throughout the run, and as it passed through Turner. There was also, testimony that as the train approached Turner the engineer blew one long whistle, and when within 500 or 600 feet of the depot he blew another crossing whistle. There was a conflict in the testimony as to the time and rate of speed at which extra 24 passed through Turner; the plaintiff claiming that it ran at from 30 to 40 miles an hour, and that it passed through there at 11:50 p. m., while the defendant claimed that it ran through Turner at a speed of from 18 to 20 miles an hour, and at 11:10 p. m. All agree that none of the crew on this train noticed anything unusual in passing through Turner, and nobody had any knowledge of running into or over any person or thing. Freight train No. 17 left North Bay City at 9:17 that evening for the north. The train was a regular one, and comprised 55 freight cars. It passed through Turner that night about 12:14 a. m. at a speed of about 20 miles an hour. The headlight on this train was burning and in good condition. That train crew had no knowledge of running into any one.

The baggageman on the passenger train, which arrived at 1:10 a. m., alighted and was the first person to discover the body of Miss Barhite. A box car stood on the westerly side track, the south end of which was from 50 to 70 feet north of the north end of the depot. The baggageman jumped from a door in the baggage car, which was near the south end of the box car. The body was about three feet north of the door of the baggage car, about the middle of the box car. Miss Barhite’s watch first attracted the attention of the baggageman. It was at his feet as he jumped from the car. It had stopped at 11:50. The body was three or four feet north of the watch, lying about two feet from the rail of the main track between the baggage car and the box car. One limb had been carried up the track, and was four or five rods north of the body. One or two books were found north of the box car. The body was found lying face down, and parallel to, and about two feet from, the main track. There were no electric lights in Turner in the vicinity of the depot, and the station was not lighted. It had not been customary for the defendant to keep its agents at its stations along the line north of Bay City after the evening train went south, which was due to arrive in Bay City at 9:30 p. m. No one saw plaintiff’s decedent at the time of the accident whereby she met her death. Upon the trial of the case the jury rendered a verdict in favor of the plaintiff for $3,000.

Under the errors assigned the appellant has discussed the questions involved under the following heads:

(1) No negligence can be imputed to defendant as a matter of law.

(2) The negligence of plaintiff’s intestate so contributed to her death as to bar any recovery as matter of law.

(3) The cause of the death of the plaintiff was speculative and conjectural, and should not have been left to the jury.

(4) The fact that the station was not open and lighted was not the proximate cause of the death of plaintiff’s intestate, and should not have been left to the jury in connection with any question whatever.

(5) The court erred in instructing the jury respecting intestate’s duty to her parents and sister, and contributions to them.

(6) The court erred in refusing to instruct the jury as requested by defendant’s counsel.

(7) The trial court erred in denying defendant’s motion for a new trial.

Before discussing the assignments of error, it may be well to state that three special questions were submitted to the jury by defendant’s counsel. They were as follows:

“(1) Was extra train with engine No. 24 going north, with Chambers, conductor, Guriy, engineer, Luce, fireman, and La Barge, brakeman, on the night of June 22, 1911, equipped with one or more lights on the northerly and advancing end of the tender as it passed through Turner?”

This question was, by consent of plaintiffs counsel, answered in the affirmative.

“(2) Did Engineer Guriy, of above extra, blow his whistle on approaching Turner?”

To which the jury answered: “Yes.”

“(3) Was there an automatic bell ringing on above engine as it passed through Turner?”

This question the jury answered: “Yes.”

1. It is the claim of defendant that there was no evidence of negligence on its part in the operation of this train, extra No. 24. The jury found, and the plaintiff conceded, that there were two lights burning on the northerly or advancing end of this train. These were both ordinary railroad lanterns, and there is testimony that they looked about the same as ordinary switch-lights. The jury also found, as we have shown, that the whistle was blown on approaching Turner, and that the automatic bell was ringing, and the evidence on this question need not be referred to. Under this head, the important question is whether there was any evidence of negligence on the part of the defendant in its manner of operating the train through Turner in the condition it was.

The trial court submitted the case to the jury on the question as to whether or not the train was operated at an excessive rate of speed in view of the conditions as to lights, the darkness of the night, and the conditions surrounding the station, saying:

“I am going to submit that question to you to say, in view of the way in which this train was operated at that time, whether or not they ran it at an excessive rate of speed.”

As we have already said, there was a sharp conflict in the evidence as to the rate of speed at which the train was run through Turner. It is the contention of the defendant that the rate of speed was immaterial ; that if it complied with its rules relative to the proper lighting of its train, if it blew the statutory whistles, and if it properly caused its bell to ring, it could operate its engine at any speed it saw fit in going from Sagining to East Tawas on the night in question. It was testified to by the train crew that the defect in the engine did not retard its speed, that it was capable of running better than a mile a minute, and that the average rate of speed in making the run from Sagining to East Tawas was 37 to 38 miles an hour. A careful reading of this record has satisfied us that the rate of speed of this train was a material question, and that it was properly submitted to the jury. While it was probably not negligence to operate this engine backwards through Turner station, yet, considering the surroundings, all agreeing that it was a dark, misty night, that the station and yard were unlighted, that the train was lighted by lanterns — all these raised a question for the jury. Certainly, in the light-of the evidence, it would be an unusual thing to run a train backward, without a headlight by a station at a rate of speed from 30 to 40 miles an hour.

It is the claim of the defendant in this case that it was necessary to back this engine to East Tawas. Perhaps it would be more correct to say that it was a matter of convenience, as the record shows that the engine could have been run to North Bay City, a distance of about 25 miles, and there turned around and run to East Tawas in the usual manner. Most certainly we can say that there was evidence of an undue and unusual rate of speed, which, under the circumstances, raised a question for the jury. Line v. Railway Co., 143 Mich. 163 (106 N. W. 719); Gorton v. Harmon, 152 Mich. 473 (116 N. W. 443, 15 Am. & Eng. Ann. Cas. 461); Morgan v. Railroad Co., 162 Mich. 573 (127 N. W. 683); Schremms v. Railroad Co., 145 Mich. 190 (108 N. W. 698, 116 Am. St. Rep. 291); Canerdy v. Railway Co., 156 Mich. 211 (120 N. W. 582); Garran v. Railroad Co., 144 Mich. 26 (107 N. W. 284); Monroe v. Railway Co., 129 Mich. 309 (88 N. W. 888); Van Auken v. Railway Co., 96 Mich. 307 (55 N. W. 971, 22 L. R. A. 33).

2. Was the plaintiff’s decedent, as matter of law, guilty of contributory negligence? This question was submitted to the jury by the learned trial judge. The decedent is not here to give us her version of the transaction. In the absence of her testimony, the presumption is that she was in the exercise of' due care. We have examined the cases cited by appellant, and do not think they are controlling of this question. The proximity and relation of the box car to the main track, the darkness of the night, and the readiness with which the lights upon the approaching train might have been mistaken for switch lights in the yard, peculiarly raise a question for the jury upon this subject.

We gather from the record that plaintiff’s decedent had probably reached the depot, and had removed her trunk from the west side of the building, where she had previously left it, to the northeast corner of the platform, two or three feet from the corner of the building, where it was found after the accident. This tends to show that she was probably expecting a train, and may have mistaken the train by which she was killed for the regular passenger train. It would seem, also, from the evidence that, had she been upon the track and struck by the square end of the tender, both the body and the articles found would probably have been found upon the main track. The undisputed evidence shows that the track was examined, and no evidence of blood was found thereon. One witness testified there was Nothing indicating where she was struck or where any portion of her body had been on the rail underneath the wheels,” making it quite evident that her limb was not severed by being run over by the engine, the evidence showing that it had been carried some distance by the engine. The doctor who examined the body detailed at great length the condition of it, and of the clothing, and described the greasy spots or streaks on her clothing, indicating that the same may have come in contact with the machinery of the engine while she was standing opposite it. There is also evidence of the undertaker who examined the premises the next morning. He found some of the deceased’s hair on the framework of the bottom of the box car about the center of the car, and some of her teeth underneath on the ground. The conclusion to be drawn from this testimony was in our opinion one for the jury. It is quite probable that the engine and car unexpectedly rushed by, taking plaintiff’s decedent unawares while she was looking for her train.

If this train was running at the rate of speed claimed for it by plaintiff’s witnesses, it is apparent that the suction from the rapid motion of the train may have drawn the skirts of decedent into the driving wheel, or machinery, causing the marks or grease spots described upon her clothing, and tearing her clothing from her hips, and winding it around her feet, as described by the doctor. This might draw her legs into the machinery, and may have severed the one and broken the other, as described. Under the evidence, we are of the opinion that the question of contributory negligence, especially in view of the presumption that she was in the exercise of due caire, was properly left to the jury. Staal v. Railroad Co., 57 Mich. 239 (23 N. W. 795); Underhill v. Railway Co., 81 Mich. 43 (45 N. W. 508); Mynning v. Railroad Co., 64 Mich. 93 (31 N. W. 147, 8 Am. St. Rep. 804); Schremms v. Railroad Co., supra.

3. Was the cause of death conjectural? It is claimed by defendant that the verdict was conjectural, both as to the negligence of the defendant and the contributory negligence of the plaintiff’s decedent. It is also claimed that no testimony in the case warrants the legitimate inference that it was engine extra No. 24 that caused her death. It was conceded at the trial that decedent was killed by a train of defendant, and the court in its charge, referring to this concession, said:

“By the appearance it is apparent, and counsel for the defendant concede, that she was in some way killed by coming in contact with one of the trains of the defendant company.”

The open question is, therefore, whether there was any evidence upon which the jury could find that her death was caused by engine No. 24. The testimony, including the circumstance of the watch stopping at 11:50, tends to show that a north-bound train passed through Turner that night before 12 o’clock, and that that train was extra No. 24. It is undisputed that the through freight passed at 12:14 a. m., and the regular passenger train at 1:10 a. m., about one hour behind its schedule time. In all probability the deceased was not struck by the regular passenger train, because the body was found by the baggageman and passengers immediately after the train had stopped, and the testimony shows that the body was then cold, the doctor testifying that death was only recent, “within an hour or two at least.” When the freight train passed through Turner, it is undisputed that the headlight was burning and threw a reflection down the track 300 or 400 feet. The engineer and fireman were in their proper places, and both testify that they saw nothing unusual. We think that the evidence presented a question for the jury. In our opinion the instant case is clearly distinguishable from those involving two possible causes of an accident, one of which would charge the defendant with negligence and the other would not.

4. The question is raised whether lights were kept at this station in' compliance with the provisions of section 13a of Act No. 300, Pub. Acts 1909 (3 How. Stat. [2d Ed.] § 6536). The trial court eliminated this question from the consideration of the jury upon the ground of waiver by plaintiff’s decedent; and therefore it is not necessary to discuss it here. The jury were permitted to consider the appearance of the premises only in connection with the degree of care to be exercised by the train crew in backing its engine by the station without a headlight. It seems to have been submitted for their consideration the same as any other fact relating to the surrounding conditions, such as the location of the station, the position of the box car, the view of the track, etc. The charge was so favorable to the defendant upon this branch of the case that it cannot here be complained of.

5. The measure of damages. It is claimed by appellant that the court erred in instructing the jury respecting intestate’s duty to her parents and sister, and contributions to them. The only testimony in the case relative to intestate’s contributions to her parents and sister was given by Lillian M. Richardson, sister, and William A. Barhite, the father. The intestate was 37 years of age at the time of her death, a school teacher earning a salary of $60 per month, teaching a country school, and she also had conducted a normal school at Hillman. Her father was 70 years of age, in poor health, her mother was 61 years of age, and had been an invalid for years, and her sister, Myrtle, was an invalid 36 years of age. The sister testified that plaintiff’s decedent had been contributing $40 per month during the school year of nine months, and for the other three months she contributed $15 or $20. Both intestate’s sister and father testified that she had contributed to the support of her father, mother, and sister for 20 years before her death. There was no evidence that the parents and invalid sister were indigent and dependent upon the public for support; nor did the testimony show that, had intestate not rendered the support she did, they would have become a burden upon the public.

The learned trial judge, in charging the jury with respect to the damages plaintiff was entitled to in case of a verdict in his favor, used the following language, which has been made the basis of assignments of error:

“Evidence has been submitted here that she was in the habit during her lifetime of contributing to the support of her father and mother and sister, and that those people have lost by her death. Now, if they have, the law permits a recovery for it. It is the duty of a child, I don’t care how old they are — this girl was about' 36 or 37 years old — it is their duty if they have a father or mother that is getting old, or an infirm sister, it is their duty under the law to aid them. And this girl, if she was doing that, deserves a great deal of credit for it. And, if you find that they lost money on account of her death in their means of support, then the law requires this company to compensate them for it, providing, as I say, that you find that they are liable under the instructions that I have given you. * * * ”
“The law, of course, is to compensate, to make good; it is not to punish anybody. The purpose of this case is simply to give compensation to the father and mother and sister for the loss that they have sustained financially because they have lost a daughter or sister. You are not punishing the company; you are not to give them damages on account of their feelings or anything of that kind, but simply because they have lost money. Their claim is that she contributed and gave them something towards their support and maintenance every year, and they are not going to get that any more; they need it for their support and maintenance. If you find that is true, the plaintiff is entitled to recover for their use and benefit such sum as you find will compensate, them for that loss.”
“Now, you have heard the evidence as to the age of the father and as to the age of the mother and as to the age of the sister. You have heard that they are all infirm and all ill. Now, you should take that into consideration. They are not entitled to recover anything, of course, after their death. They are only entitled to recover such sums as they would have lost during their lifetime. You should exercise the utmost good care in estimating that amount, because all you can do is estimate it.”
“Another thing about it: Had she lived, she would have paid them those sums of money every year — as a matter of law we figure them up by the year as a rule. Now, you are going to give them such sum as you allow in a lump sum. * * * ”
“Now, gentlemen of the jury, your verdict in this case, if you find for the plaintiff, if you find that he is entitled to recover, will be such damages, as I have said, as you may find will compensate these relatives for the financial loss that they have sustained by reason of the death of this daughter and sister, under the instructions I have given you.”

Section 6309, 2 Comp. Laws (3 How. Stat. [2d Ed.] § 6664), reads as follows: •

“Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in any such action shall be distributed to the persons, and in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such amount of damages as they shall deem fair and just, to the persons who may be entitled to such damages when recovered.”

This court held in Van Brunt v. Railroad Co., 78 Mich. 530 (44 N. W. 321), that under this statute and the preceding section none of the next of kin could recover unless they showed a pecuniary loss on account of the person killed; and if, as in that case, the proof showed no person pecuniarily injured by the death of plaintiff’s intestate, there could be no recovery. It will be noted that in the section above quoted it is provided that—

“The amount recovered in any such action shall be distributed to the persons, and in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate.”

Under the provisions of Act No. 116 of the Public Acts of 1899 (4 How. Stat. [2d Ed.] § 11038), providing for the distribution of the estates of intestates, it is provided that the residue of personal estates shall be distributed in the same proportions, and to the same persons, and for the same purposes, as prescribed for the descent and disposition of real estate. And by Act No. 286, Pub. Acts 1909 (4 How. Stat. [2d Ed.] § 10959), it is provided that if the intestate shall leave no issue, husband or widow, his or her real estate shall descend to the father and mother in equal shares, and, if there be but one of the parents living, then to the survivor alone. We have looked in vain for any authority to support that part of the charge of the court referring to the legal duty of plaintiff’s decedent to aid in the support of her sister. There is nothing in the statute relating to the support of poor persons by their relatives, requiring a person to support his brothers or sisters.

In Richmond v. Railway Co., 87 Mich. 374 (49 N. W. 621), this court held that in an action against a railroad company, under the statute above quoted, for the negligent killing of plaintiff’s intestate, the damages were limited to the pecuniary injuries sustained by the persons entitled to share in the distribution of his personal estate, which distribution was governed by the statute existing at the time of the death of the intestate. In that case the deceased was an unmarried man, and his next of kin consisted of his mother and two brothers and two sisters. The deceased lived with his mother, as did his sister, Ella, who was an invalid. He was 30 years of age at the time of his death. He had contributed to the support of the family. The court instructed the jury as follows:

“If you find the plaintiff entitled to recover, he is entitled to recover damages to-the extent of the pecuniary loss which the mother and next of kin of the deceased, Mr. Sherwood, have sustained by his death. This amount will be such an amount as the jury are able to say it is reasonably probable would have been contributed by the deceased to their support had he lived. The jury cannot go beyond the term of the expectancy of life of the deceased, which is shown by the tables to have been 35.33 years, and, in weighing the testimony as to the contributions which would have been likely to have been made to the mother of the deceased, the jury cannot extend these beyond the period of her expectancy of life, which is shown by the tables to have been 18.79 years. As to the testimony of contributions to the sister, these cannot be considered, except for the period after the probable decease of the mother, and, under the testimony, such contributions are said to have been included in the sum which was contributed to the family.”

Justice Morse, speaking for a majority of the court, held that under the holding in the Van Brunt Case damages in the case under consideration could only be recovered on account of the mother and sister Ella, as no pecuniary injury was shown as to the others by Sherwood’s death; that the circuit court so limited it, and was correct in allowing no damages to be computed on account of the sister until after the mother’s death, as, under the testimony, these contributions to the sister were included in the contributions to the family. In that case it is worthy of note that the statute in force at the time of Sherwood’s death differed from the present statute, in that it provided that the property in such a case as the one then under consideration should descend one-half to his mother, and the remainder in equal shares to the brothers and sisters. This difference makes the distinction between the two cases, and shows that in the instant case it was error to submit to the jury the question as to the contributions made to, or on behalf of, the sister. It has been frequently held in this State that the compensation provided by the statute is strictly pecuniary, and there can only be recovery for the benefit of the next of kin who are within the rule of distribution already alluded to.

Under the death act the jury may give such damages' as they shall deem fair and just, with reference to the pecuniary injury resulting from the death, to the beneficiaries. Tiffany’s Death by Wrongful Act (2d Ed.), p. 300. In Rouse v. Railway, 128 Mich. 149, 155 (87 N. W. 68, 70), it was said:

“The statute does not imply that damages and pecuniary loss necessarily flow from the negligent killing. * * * These damages must be limited to the pecuniary damage sustained by those legally entitled to support.”

See, also, Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205; Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482); Staal v. Railroad Co., supra; Balch v. Railroad Co., 67 Mich. 394 (34 N. W. 884). Commendable as it may have been, had plaintiff’s decedent been supporting or educating a niece or some other collateral relative and contributing annually for such purpose, it would hardly be claimed that such person could be a beneficiary in the action brought by virtue of the statute in question. And this is just the difficulty that confronts us in this part of the charge. For such voluntary contributions as plaintiff’s intestate saw fit to make to her sister there can be no cause of action or right of recovery. In the case of Schadewald, Adm’r, v. Railway Co., 55 Wis. 569 (13 N. W. 458), an action was brought under a similar statute. The right of action, however, was there by statute for the benefit of the surviving husband or wife of the deceased. It was there held that in an action to recover damages in respect to the death of a person caused by the wrongful act or neglect of another, if the widow survive the deceased, the damages sustained by her alone are all that can be recovered under the statute. In that case the plaintiff in his declaration claimed damages to the widow and children of the deceased resulting from his death; and the jury there, as here, were instructed that such damages were recoverable in the action. The supreme court of Wisconsin said:

“This was error. Damages sustained by the widow alone are all that can be recovered under the statute.”

See, also, Regan, Adm’r, v. Railway, 51 Wis. 599 (8 N. W. 292); Tiffany, Death by Wrongful Act, § 168 et seq.

We cannot agree with appellant’s counsel that there can be no recovery in this case in so far as the father and mother are concerned, because action had not been taken under chapter 110, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 3478 et seq.), relating to the support of poor persons by their relatives. Our attention has been called to the cases of Clinton v. Laning, 61 Mich. 355 (28 N. W. 125), and Schwanz v. Wujek, 163 Mich. 492 (128 N. W. 731). Clinton v. Laning was an action brought by a father in advanced years to recover damages from the defendants for his loss by being compelled to support a grown-up son who, being given to drinking, became grossly drunk at defendant’s tavern, and on his way home had his feet and hand badly frozen so as to render him to a great degree helpless. There, although no statutory proceedings had been taken, the father had been supporting the son, and Chief Justice Campbell said:

“We think that the voluntary assumption of this duty may fairly be regarded as performing a legal obligation, and that expenditures to a proper extent, within the limit which could be laid down by compulsion, are as valid charges as if they had been compelled, and may be considered as on a similar footing.
“But in making these outlays voluntarily, nothing can fairly be included as a payment by obligation beyond what might have been reasonably required in case of refusal.”

And he proceeds to show that that rule had not been observed in that case. The fact, if it be a fact, that plaintiff’s decedent voluntarily assumed the performance of a duty which might be regarded as a legal obligation, and made expenditures to a proper extent, might form a basis for a recovery in this action in so far as the father and mother are concerned. We think the instant case can readily be distinguished from Schwanz v. Wujek, supra, where an action was brought against a son to recover for an operation performed upon his father, in which the son had no part.

For the error pointed out in the charge relating to the claimed legal duty of the plaintiff’s intestate to her sister, and her contributions to the sister, as a basis of recovery in this case, we feel constrained to reverse the judgment of the circuit court. While there is no complaint urged here that the judgment is excessive, yet it is properly urged and claimed in the motion for a new trial, and covered by proper assignments of error, that the whole basis of the measure of damages was erroneously given to the jury; and we cannot say that the error has not affected the judgment; nor are we able to state the amount the judgment has been enhanced by this erroneous part of the charge.

Judgment reversed, and a new trial ordered.

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


text:
    WATKINS v. BURDICK.
    Logs and Logging — Merchantable Scale — Contracts—Fraud.
    Evidence that plaintiff contracted with defendant to cut and remove from plaintiff’s land a quantity of inferior, culled, and fallen or “down” timber, and paid defendant for the number of feet scaled by him, which plaintiff claimed was excessive and fraudulent, that plaintiff saw most of the timber that defendant hauled out before making the final payment and defendant testified that he did not agree to cull the timber and scaled it correctly, according to his best judgment, was insufficient to present a question of fraud for the jury, and the trial court committed no error in refusing to apply the rule of “merchantable scale” to the transaction.
    Error to Houghton; Streeter, J.
    Submitted June 24, 1913.
    (Docket No. 132.)
    Decided July 9, 1913.
    Case by John Watkins against Eugene L. Burdick for money obtained by misrepresentation. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Affirmed.

      O’Brien & Le Gendre, for appellant.

      Burritt & Burritt, for appellee.
   Stone, J.

This case originated in justice’s court. The cause of action is in case, to recover back from the defendant money paid to him by the plaintiff, under alleged false misrepresentations and fraud of the defendant. The declaration alleged that the plaintiff, being, in 1908, the owner of 80 acres of land in Houghton county, and being desirous of having cut and removed certain logs therefrom, entered into an agreement with defendant to pay him four cents per foot for hewing timber, and $10 per thousand feet for cutting and hauling logs therefrom; that defendant entered upon the performance of such agreement, and later the defendant fraudulently, falsely, and deceitfully represented to the plaintiff that he (the defendant) had hewed 2,424 feet of timber, and had cut and hauled 29,291 feet of logs for plaintiff, and that said above figures were the scale and measurement of the Worcester Lumber Company’s scaler, P. W. Coffee, whereupon the plaintiff, believing said false representations, paid defendant for hewing the above amount of timber at four cents per foot, amounting to $96.96, and for cutting and hauling the above-stated amount of logs, at $10 per thousand feet, amounting to $292.91, whereas, in truth and in fact the amount of timber hewed by defendant for the plaintiff was 2,226 feet, and the actual amount, of logs cut and hauled by defendant for plaintiff was 21,262 feet, and whereas, in fact the said flat timber and logs had never been sealed by said P. W. Coffee, or any other scaler. And the plaintiff averred that the defendant neglected and refused to pay back to the plaintiff $80.74, which, plaintiff paid to said defendant in excess of the actual amount due said defendant for the work and labor performed for the plaintiff as above stated, and, with the wicked purpose of cheating and defrauding the plaintiff out of the benefit thereof, still wickedly retained and held the said sum of money, to the damage of the plaintiff.

The plea was the general issue. Upon the trial of the case in the circuit court it appeared that the' timber which the defendant was to cut and get out was certain down hemlock timber that was left after the large standing timber had been sold and removed. The plaintiff testified as follows:

“I wanted this down timber hauled out. Down timber is timber that has fallen from the wind or getting old, it is mature, and it has dropped over. It is usually the wind that has blown it over, and that ground was possibly covered with heavy timber. There was considerable of that in the woods. I never estimated the timber, but we went over the ground together. It took us part of one afternoon, and pretty much all of the next forenoon, and as I relied upon him (the defendant), I thought he knew more about timber than I did, and we made a rough estimate of it. * * * We didn’t arrive at an agreement that time. We went over the ground and we couldn’t come to an agreement, not that day. We came to an agreement later on by letter.”

We are not favored with a copy of this letter and are unable to determine just what the terms of the agreement were. It is undisputed that much of this down timber was worked up and hauled out by the defendant, and there is no claim that his statement of amount was incorrect, unless the rule of merchantable scale is to be applied. The plaintiff saw the timber that was hauled out, except a few pieces, before he made the final payment of upwards of $220. Plaintiff further testified that he never bound the defendant down to the timber being merchantable timber.

Defendant testified that he went on under the agreement and hewed the timber and hauled it out, and that he measured and reported it correctly. It was undisputed that the down timber on the land had been cut over, before, this cutting, by the Sturgeon River Lumber Company, and what was considered good had been taken out.

At the close of the testimony the court directed a verdict for the defendant upon the ground that the testimony as to damages was too vague and indefinite to warrant the submission of the case to the jury. The plaintiff has brought the case here and assigns as error that the court should have submitted the case to the jury, and erred in directing a verdict for the defendant.

An examination of the record shows that the evidence offered by the plaintiff was to the effect that by a “merchantable scale” the quantity of timber represented by the amount in controversy should have been rejected, and was rejected by certain scales made by competent scalers. We think that the timber cut and hauled by defendant was down, poor, hemlock timber which had been left on the land, and the evidence does not show any agreement that the defendant was to cull it, but he was to use his best judgment in selecting it; and there is no evidence tending to show that he did not exercise his best judgment in so doing. On the contrary, the evidence shows that he did exercise his best judgment, in cutting and scaling, and sent the correct statement of the amount gotten out by him in good faith. This was not a case of the sale of a quantity of “merchantable timber or logs” to the plaintiff, but a case where defendant was to cut and deliver to plaintiff a quantity of poor and inferior down timber belonging to plaintiff, which had already been culled over, and it was not a case for the application of the rule of a “merchantable scale.”

We think there was no evidence of fraud or misrepresentation in the case, and are of opinion that the circuit judge, in directing a verdict for the defendant, reached a correct conclusion, and the judgment of the circuit court is affirmed.

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


author: McAlvay, J.

text:
    NEWBERRY v. BOYNE CITY TANNING CO.
    1. Master and Servant — Instructions—Obvious Danger.
    Every normal, mature man must employ his senses in self-protection whenever there may be reasonable cause to apprehend danger, and must do all that an ordinarily prudent man ought to do under the circumstances, and while it is the master’s duty to instruct a servant as to risks which may not be discovered in the exercise of ordinary caution, obvious risks or dangers are assumed by the servant.

    2. Same — Contributory Negiigence — Obvious Risks.
    Where plaintiff was familiar with woodworking machinery as a result of long experience, and knew that adjustments of the machine he was using were required to be different for hard than for soft wood, he could not recover for injuries sustained in attempting to plane a piece of hard wood, without examining the adjustments of the planer, which, were not in condition for the work he was attempting to perform, causing the piece to fly hack and force plaintiff’s hand on the knives.
    Error to Otsego; Sharpe, J.
    Submitted October 9, 1912.
    (Docket No. 18.)
    Decided July 18, 1913.
    Case by Stephen Newberry against the Boyne City Tanning Company for personal injuries. Judgment for plaintiff, and defendant brings error.
    Reversed without a new trial.

      J. E. Converse, for appellant.

      Hall & De Foe, for appellee.

       As to the master’s duty to warn or instruct servant, generally, see note in 44 L. R. A. 33. And as to the duty of a master to adopt rules to protect servant, or to warn him, against dangers not reasonably to be apprehended, see note in 21 L. R. A. (N. S.) 89.
      On the question of assumption of obvious risks of hazardous employment, see note in 1 L. R. A. (N. S.) 272.

   McAlvay, J.

This case was brought by plaintiff against defendant, a Michigan corporation, to recover damages for personal injuries received while in its employ as a carpenter, which injuries were claimed to have been caused by the negligence of defendant, its officers, and agents.

Plaintiff was 56 years of age and a carpenter by trade, at which he had worked 25 or 30 years. He was first employed in August, 1909, by defendant company piling tanbark, at which work he continued for three weeks. When it became known that he was a carpenter he was employed as such in and about the plant. The defendant company, among its various departments, maintained a machine shop, containing many machines for the use of its employees for doing such rebuilding and repair work as might be necessary. In this machine shop is a buzz planer or jointer of the ordinary standard type. This is a heavy machine made of metal 2 feet 10 inches high, with a table or top which is divided into two parts, known as “head board” and “tail board.” These two parts are each 22 inches in width and 4 feet long. Between and under them revolves upon a shaft a cylinder head 4 or 5 inches square, which carries two knives running the entire width of the table, and which are adjusted by the use of set screws and can be taken out. The two tables are also adjustable. The head table, being the one nearest the operator, is adjusted by the use of a crank screw, which is used for the purpose of raising or lowering this half of the table and regulating the depth of the desired cut or thickness of the shaving to be taken off from the wood to be planed or jointed. The tail board, or back half of the table, can also be adjusted by a jamb screw, and should be kept level with the machine knives. It is used only for the purpose of supporting the material being put through the machine which has passed over the knives. To operate this machine properly the head table should be adjusted to the thickness of the cut desired, and the material to be planed is then put upon the head table and passed over the knives in the cylinder head, which revolves toward. the operator at great speed, planing the underside of the board or other piece of wood which is being put through the machine.

The machine in question had no regular operator employed by defendant. It was used by the mechanics about the plant whenever they had any work requiring its use. In the course of his work as a carpenter plaintiff was required to use this buzz planer, and had used it from October 1, 1909, on the average of once each day up to January 3, 1910, when this injury occurred. On this day he was directed by the master mechanic of defendant company to make certain wedges for use in the tannery 20 inches long, 7 inches wide, and 3 inches thick at one end, tapering down to 1/2 or % inch at the other, the wedge part to be on the flat side of the stick. For this purpose plaintiff procured a well-seasoned piece of hard maple, cut it into proper lengths for his wedges, and went to this machine and started it in motion. He placed one of the pieces on the head table of the planer, putting his left hand on the front end of the stick and his right hand on the back end, and shoved it onto the planer knives. About 6 or 8 inches of the block had passed over the knives when it was suddenly forced back, causing plaintiff’s left hand to drop onto the knives of the planer, which cut out the palm of his hand. An examination made directly after this injury by two fellow employees of the plaintiff showed that the tail board of the machine was not level with the cut of the knife, but was about 1/16 of an inch lower than it should have been. They also found that one of the two knives was out of alignment with the other, that it had been driven down on the set screw, so that one end was 1/16 of an inch low, making the other end 1/16 of an inch high.

At the close of plaintiff’s case defendant moved the court for a directed verdict on the ground that it was not shown that defendant was guilty of any negligence, and it appeared that the plaintiff was guilty of contributory negligence. This motion was denied. Defendant offered no evidence in the case. The case was submitted to the jury, which returned a verdict in favor of plaintiff, upon which a judgment was duly entered. The case is here upon a writ of error, and the error relied upon by the defendant is that the court should have instructed a verdict in its favor.

It appears from the record that it had been the practice for a long time in the machine shop for the employees of defendant who had occasion to use this machine to adjust it as might be necessary to the requirements of the work each was about to do upon it, and it also appears that the want of adjustment found by the men who examined the machine after plaintiff’s injury would render it more dangerous in causing pieces of wood being put through to fly back. Both of these matters are eliminated from the case, and the only negligence charged and relied upon by plaintiff is the neglect of defendant to warn and instruct plaintiff when he was first put to work on this machine, as appears from the following statement in plaintiff’s brief:

“Defendant is in error in stating in its brief that one of the grounds of negligence relied upon by plaintiff was that this machine was defective (Brief p. 7). There was no claim that the machine was defective any more than it was out of adjustment at the time of plaintiff’s injury, and the lack of adjustment was not relied upon as a ground of actionable negligence. The case was tried and submitted on the theory that the plaintiff was a man without experience with or knowledge of such a machine, and that he was ordered to use this planer without being instructed as to the proper method of operating or adjusting it, and without warning of the dangers attendant upon its use in the manner in which it was then operated by the employees of defendant.”

This, then, is the sole question to be determined in this case.

The record shows that the blacksmith shop, the carpenter shop, and machine shop were all in this building. The carpenter shop was in the end of the building next to the machine shop, and the bench upon which plaintiff worked in the shop was within 6 feet of this buzz planer, which was always in full view from his bench, and when his work required its use he could step to it readily. Plaintiff was a mature man in the full possession of all his faculties, and from his testimony appears to be of ordinary intelligence. During practically his entire manhood he had worked as a carpenter, principally engaged in building houses, and had been familiar with the use of tools in working wood by hand. He testified that he had not been familiar with the use of machinery before entering defendant’s shop. The record shows that plaintiff had used other machines in the shop; that he had used this machine on the average of once a day for the three months before his injury, and had planed on it different kinds of wood, both soft and hard, which required different thicknesses of cut, and knew that the knives would kick back; that on the morning in question he made no examination of the machine before he began to operate it to determine whether it was properly adjusted for the work he was about to do; that he understood the machine was a dangerous one, and could have discovered for himself whether it was out of alignment; that he was warned not to use any machine if it was out of repair in any way, and that such a condition was to be reported, so that the machinists might make the necessary repairs and adjustments.

The foregoing, taken from plaintiff’s testimony in the case, discloses his knowledge of and acquaintance with this machine on the day of his injury. Every normal, mature man is supposed to use his senses in self-protection whenever there may be reasonable cause to apprehend danger. He must do all that any ordinarily prudent man ought to do under any given circumstances. Baldwin on Personal Injuries (2d Ed.), §134.

The rule is that it is the master’s duty to instruct a servant as to risks which he will not discover by the exercise of ordinary care, but when the servant is a mature man he assumes such risks as arise from obvious dangers. Baldwin on Personal Injuries (2d Ed.), §347.

It is apparent from the record that from the lifetime experience of plaintiff he was perfectly familiar with woodworking and the difference between hard and soft woods as to the necessity of adjusting the cut of the shavings, and that from his continued use of this machine he knew that the adjustments necessary for doing the work depended upon the character of the material used at the time. On the day of his injury, his testimony shows he made no examination of the adjustments of the machine, and did not use the care of an ordinarily prudent man under like circumstances. Whatever dangers there were about this machine were obvious and could have been discovered by plaintiff by the use of the care exercised by an ordinarily prudent man. These rules of law are so fundamental and have been so often announced by this court that citations are unnecessary.

The injury was the result of his own negligence, and not caused by reason of the want of instructions by defendant at the time he was employed to operate it how to operate and adjust the machine. We conclude, therefore, as a matter of law, that the trial court was in error in denying defendant’s motion for a directed verdict.

The judgment of the circuit court is reversed, and judgment will be entered in this court for defendant.

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


author: Kuhn, J. Brooke, J.

text:
    MAINE v. MULLIKEN.
    1. Covenants — Deeds—Building Restrictions — Violation.
    Defendant obtained tbe title of lot J subject to a restric- ' tion that the premises should be used only for residence purposes, and no residence should be erected thereon of less value than $2,500. He commenced the construction of what he claimed was a barn, but caused machinery to _ be moved in and commenced to use the structure for business and manufacturing purposes. Defendant had no horse or automobile; but contended that he expected in the immediate future to make certain alterations so as to change the alleged barn into a four-family flat. The decree of the circuit court required defendant to remove the building in 90 days. Held, that the decree was too broad and should be modified so as to permit defendant to complete the building for residence purposes, if he should elect so to do, to be worth when completed not less than ?2,500. Moore and Kuhn, JJ., dissenting.
    2. Deeds — Restrictive Covenants — Interpretation.
    If a building on property subject to building restrictions is of the required value, and is used for the purposes mentioned, it is not in violation of the restriction because it may be unsightly or offensive to the taste, or because its erection may tend to render adjacent property less valuable.
    Appeal from Wayne; Codd, J.
    Submitted April 28, 1913.
    (Docket No. 124.)
    Decided July 18, 1913.
    Bill by John Maine and others against Margaret K. Mulliken and Robert J. Davis for an injunction. From a decree for complainants, defendant Davis appeals.
    Modified and affirmed.

      Lodge & Brown, for complainants.

      Jay Fuller, for defendant Davis.
   Kuhn, J.

(dissenting). The complainants are the owners of lot K and the defendant Davis of lot J, which adjoin each other on the south side of Alger avenue between Woodward avenue and John R. street in the city of Detroit. There was no building restriction in the original plat of the lots, but in 1891 lot J was sold by its owner to H. G. Lewis; the deed containing the following restriction:

“Said second party hereby agrees not to build or cause to be built on said lot any building on front of said lot of less than $1,000 in value, the same to stand 15 feet from the front of said lot line.”

In 1895 Lewis eonveyed the lot by deed to L. H. Weitz, containing the following restriction:

“Said lot shall be used for residence purposes only, and no residence shall hereafter be erected on said lot of less than $2,500 in value.”

Weitz later conveyed the lot to Margaret K. Mulliken, and she conveyed it to defendant Davis, but these deeds contained no restrictions.

It appears that Alger avenue is about one mile north of the Grand boulevard and is in what is conceded to be one of the desirable residential sections of the city of Detroit. It is a street of attractive residences, and the residential character of the locality has always been maintained.

Complainants in 1906 erected upon lot K a double house costing about $8,000. On the front of lot J at the time of the purchase of the property by Davis there was a cottage worth $1,000, which had been built about 20 years previously. Defendant Davis is a manufacturer of screens and weather strips and previous to his purchase of lot J had maintained his residence and factory at No. 2361 Woodward avenue. When he left there he bought the buildings, tore them down, and used at least a part of the material in the construction upon lot J of the building involved in this controversy. It is the claim of complainants that they learned from the tenant who was occupying the house on lot J that Davis had told him of his purchase of the property and of his intention to erect a factory building on the rear thereof. Complainant Brown thereupon notified him in writing that he would not be permitted to use the property for any but residential purposes. No reply was made by Davis but in November, 1910, he obtained from the department of building of the city of Detroit a permit to erect a barn on the alley line, 28 feet wide, 50 feet in length, and 18 feet high. About a week later construction was commenced on this so-called barn, and on November 15,1910, the bill of complaint in this case was filed, alleging that defendant was erecting a building not intended for use for residence purposes and not a necessary outbuilding therefor, but that the structure was being built for business purposes, to be used as a factory for defendant’s business. An ex parte temporary injunction was obtained. Thereupon defendant Davis and his solicitor called upon the judge who granted the injunction and informed him that the purpose of defendant was to erect a barn. The court notified complainants’ solicitor, who upon being told of defendant’s claim consented to the dissolution of the injunction, and the building was completed. Defendant filed a sworn answer alleging that the building was to be a barn and was not intended for factory or business purposes.

The case was heard upon pleadings and proofs, and the circuit judge, after making a personal examination of the property, made findings in part as follows:

“It seems to me that the building erected upon the lots in question is built in violation of the restrictions which provide that no building shall be put upon the property in question for anything but residence purposes. The mere statement by any person that a certain structure is a barn does not make it so. In order to judge of that the court must take into consideration all the circumstances surrounding it. In the first place, the size of the structure, as compared with the size of the house and the size of the lot, 28 feet wide by 50 feet long and 18 feet high, is hardly the size or dimensions of a barn, as such, especially in that locality, and for the house in question upon this lot. When the defendant stated that he was going to build a barn up there, I do not think he had the intention of building a barn. The testimony shows that at the time he owned neither an automobile nor a horse or any other property which would need a building for the purposes for which a barn would naturally be built. The testimony also discloses that prior to the erection of this structure he was in business on Woodward avenue and had a shed or building adjacent thereto upon property which he did not own. These were used in the course of his ’ business and for business purposes. When he gives up that property, he takes over the lumber in the so-called barn and buildings there and places it upon the property which he has bought on Alger avenue and erected, as is undisputed, the structure of the size mentioned. And the testimony shows that since that time he has used it for business purposes, or if not for business purposes direct for business in connection with that business. Now, the fact that it is denied that screens and window strips were manufactured there is not necessarily a denial that it was used for business purposes. Certain admissions to the effect that hereafter, after the building was constructed, two machines of the character used in his business were removed from the other plant, or anyway removed and placed in this structure, has its effect in determining the cause of this building being erected. It shows that it was the intention of the defendant at that time to have this building for business purposes. Thereafter, after this injunction was served and dissolved by Judge Hosmer, he changes the plans or modifies them for the erection of a house, as he claims. This shows that the building was not at any time intended for a barn. It seems to me, under those circumstances, that, if this restriction against the use of this block for anything but residence purposes applies to this lot J, the plaintiff is entitled to the relief asked. * * * While the remedy may be a harsh one, no other adequate relief under the circumstances can be given to the complainants. The- presence of this building manifestly erected for business purposes will necessarily continue to depreciate the value of the surrounding property, and especially the property of complainants. A decree as suggested by counsel for defendants perpetually enjoining them from using this for business purposes would not accomplish all that complainants under the circumstances are entitled to. Before commencing the work an injunction was served upon defendant Davis enjoining him from erecting any building for business purposes. On assurance to the court that only a barn would be erected, the injunction was dissolved; but, as I have already indicated in my previous finding, I believe from the testimony and an examination of the structure that it was never intended as such, and no one is to blame but the defendant himself for the necessity of this remedy. A decree may be entered accordingly.”

His decree provides for the removal of the building by the defendant within 90 days and, in case of failure to comply with its terms, for a mandatory injunction to carry the decree into effect.

Complainants’ proofs showed that two pieces of machinery were moved into the building and that in the fall of 1911 sounds of men and machinery at work were heard; that men were seen at work; and that men were seen coming to the factory and getting weather strips. Defendant admitted that at the time he built the structure he had no horse nor automobile to put in the barn but claims that it was his purpose after finishing the building to change it into a four-family flat and for that purpose consulted an architect and had the necessary drawings made. The position of the defendant in this cause is stated by his solicitor in his brief as follows:

“We have not attempted in this court, nor did we attempt at the trial, to show that this street was not a residential street. * * * Our contention in this case from first to last has been that we built nothing more nor less than a barn; that our permit was for a barn; that we have never used it for business purposes, and that we expect in the future to turn it into a four-family apartment for residence purposes; that none of the acts of defendant are in violation of the building restrictions on this lot.”

The sole question presented is whether the circuit judge was warranted in making the findings he did and granting the relief provided for in the decree. We have before us photographs showing the appearance of the structure alleged to be a barn, and we are of the opinion that it was never the intention of the defendant Davis to use it for the purposes for which a barn is generally used. The size and appearance of the building is strongly corroborative of complainants’ contention that its purpose was a business structure. It has a floor space of approximately 2,800 square feet, and it can reasonably be urged that such a structure would not naturally be erected in such a locality as an outbuilding on a 50-foot lot, and that it is entirely out of proportion to the cottage on the property or .any proper residence building which might be built thereon. The effort to subsequently change it to a four-family flat was, we are convinced, a mere subterfuge resorted to for the purpose of preventing complainants from obtaining relief. He was notified of the restrictions before he commenced the construction, but notwithstanding that fact he went on and attempted to conceal his real purpose and accomplish what he knew he could not rightfully do. As was found by the circuit judge, the result was to depreciate the value of the surrounding property and especially that of complainants.

Complaint is made that the relief granted by the court works injustice in that it is a harsh remedy, and that a permanent injunction restraining business from being carried on on lot J would be sufficient to give complainants all the relief they are entitled to. With this we cannot agree. Being satisfied that the defendant is to blame for the situation in which he finds himself, we think the language used by the court in Stewart v. Finkelstone, 206 Mass. 28, 38 (92 N. E. 37, 40, 28 L. R. A. [N. S.] 634, 138 Am. St. Rep. 370), is appropriate:

“It is strongly urged that a mandatory injunction ought not to issue, for the reason that it would operate oppressively and inequitably, and impose on the defendant a loss disproportionate to the good it can accomplish, and that the plaintiffs ought to be relegated to financial compensation by way of damages. This remedy is a drastic one, and ought to be applied with caution, but in cases proper for its exercise, it ought not to be withheld merely for the reason that it will cause pecuniary loss. It has been found that the defendant with full knowledge of the restrictions 'deliberately attempted’ to override them, and thus to deprive the district of the character given it by the restrictions. He took his chances as to the effect of his conduct with eyes open to the results which might ensue. It has been the practice of courts to issue mandatory injunctions upon similar facts. Codman v. Bradley, 201 Mass. 361, 369 [87 N. E. 591], and cases cited; Curtis Manfg. Co. v. Wire Co., 203 Mass. 448 [89 N. E. 534, 133 Am. St. Rep. 307]; Downey v. Hood & Sons, 203 Mass. 4, 12 [89 N. E. 24]. Entrenchment behind considerable expenditures of money cannot shield premeditated efforts to evade or circumvent legal obligations from the salutary remedies of equity.”

See, also, McIlhinny v. Village of Trenton, 148 Mich. 380 (111 N. W. 1083, 10 L. R. A. [N. S.] 623, 118 Am. St. Rep. 583, 12 Am. & Eng. Ann. Cas. 23); 22 Cyc. p. 742; Meriwether v. Joy, 85 Mo. App. 634; Spilling v. Hutcheson, 111 Va. 179 (68 S. E. 250); Clark v. Martin, 49 Pa. 289.

We are satisfied that the circuit judge, who saw and heard the witnesses in open court and who made a personal examination of the premises, reached the proper and equitable conclusion.

' The decree should be affirmed, with costs.

Moore, J., concurred with Kuhn, J.

Brooke, J.

The relief granted complainants by the decree of the circuit court and affirmed by the opinion of my Brother Kuhn not only goes far beyond the prayer for relief in the bill of complaint but enjoins defendant from using the structure in question in a manner not prohibited by the restrictive clause by which he is bound. Defendant must use lot J “for residence purposes only, and no’ residence shall hereafter be erected on said lot of less than $2,500 in value.” Complainants are entitled to a decree permanently enjoining defendants from erecting any structure upon said lot J less than $2,500 in value; said structure to be used for residence purposes only. If the building in question when completed is worth $2,500 and is used for residence purposes only, there will be no breach of the restrictive-clause, and complainants will have no legal grounds for complaint. They are not entitled to have the building demolished because it is unsightly or offensive to «esthetic taste, nor because its erection may have a tendency to render their property less valuable. Their rights must be measured solely by the terms of the restriction by which defendants are bound.

Defendant Davis is granted 90 days from the date of the entry of the decree in this court in which, to make the building in question comply with the terms of the restriction. Complainants may apply to the court below to have said building removed in case of failure on the part of said Davis to so comply.

The decree of the court below will be modified in accordance with these views, and neither party will recover costs.

Steere, C. J., and McAlvay, Stone, Ostrander, and Bird, JJ., concurred with Brooke, J.


author: Brooke, J.

text:
    McKNIGHT v. LOWITZ.
    1. Partnership — Dissolution—Parties to Action — Suit by One Partner.
    While a partner as assignee of the firm may bring an action in his own name as plaintiff for services rendered, he must allege ancj prove an assignment to himself in order to entitle him to recover after the dissolution of the firm.
    2. Same — Attorney and Client — Assignment—Parties.
    Services rendered by one member of a copartnership engaged in the practice of the law are presumed to constitute a partnership account, belonging to the firm: testimony of one partner that the account belonged to him, or of the other that he never had any interest in the account, and claimed none at the time, is insufficient to sustain an action in the name of the one partner, commenced after dissolution.
    Error to Cass; Des Voignes, J.
    Submitted April 16, 1913.
    (Docket No. 78.)
    Decided July 18, 1913.
    Assumpsit by William F. McKnight against Elick Lowitz for services rendered. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Carr & Eby and Coy W. Hendryx (Gore & Harvey, of counsel), for appellant.

      Charles E. Sweet, for appellee.
   Brooke, J.

Plaintiff brought suit to recover compensation for services as an attorney, claimed to have been rendered defendant at his request. He secured a judgment for $715, which defendant now reviews in this court by writ of error.

The first assignments of error discussed relate to the question of plaintiff’s right to recover under his declaration. The bill of particulars shows that the charges against defendant are for services rendered during the latter part of August and the early part of September, 1910. Prior to about October 1, 1910, plaintiff was associated in the practice of the law with one James T. McAllister. The bill, as at first rendered, seems to have been upon the billhead of “McKnight & McAllister,” but was accompanied by a letter signed by plaintiff personally, in which he said:

“Find herewith inclosed statement for services to date. Kindly send me check to cover same, and oblige.”

These facts being developed upon plaintiff’s cross-examination, a motion was made by defendant for a directed verdict upon the ground that no assignment from McKnight & McAllister to plaintiff had been pleaded or proven. This motion was denied, and upon redirect examination plaintiff testified that the account in question belonged to him. After judgment the deposition of James T. McAllister was taken and appended to a motion for a new trial. Many reasons were urged for the granting of a new trial, only one of which will be considered.

In various forms it is set up that the court erred in refusing to direct a verdict upon the ground that the proofs showed that the services, if rendered, were rendered by the firm of McKnight & McAllister, and that no assignment of the account had been pleaded or proven. It is, of course, elementary that an assignee in certain cases may sue in his own name, yet it is necessary for him to allege in his declaration an assignment and to prove the same upon the trial to entitle him to recover. Draper v. Fletcher, 26 Mich. 154; Rose v. Jackson, 40 Mich. 29; Gates v. Comstock, 107 Mich. 546 (65 N. W. 544).

We are of opinion that the services in question being legal in character and rendered at a time when plaintiff and McAllister were law partners, a presumption arises to the effect that the account is or was partnership property. We do not overlook the fact that the plaintiff upon redirect examination testified that the account belonged to him, nor the further fact that in his deposition Mr. McAllister testifies that he never has and does not now make any claim to this account. It is, of course, true that many law partnerships are so arranged that the individuals constituting the copartnership retain individual accounts to themselves. It is, however, significant that in the instant case neither the plaintiff nor Mr. McAllister, both trained lawyers, testify that this account belonged to that class. In the absence of such testimony it was incumbent upon plaintiff to both plead and prove an assignment from the copartnership to himself. A verdict should have been directed for defendant as requested.

The judgment is reversed, and a new trial ordered.

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


author: Moore, J.

text:
    BRAYTON v. BRAYTON.
    1. Appeal and Error — Divorce—Pleading.
    On appeal from a decree of divorce granted for extreme cruelty, this court will not consider an objection to the sufficiency of the averments of the bill that was not raised in the lower court.

      2. Divorce — Extreme Cruelty.

      Held, that the charge of extreme cruelty was established by the evidence.
    Appeal from Hillsdale; Chester, J.
    Submitted April 16, 1913.
    (Docket No. 74.)
    Decided July 18, 1913.
    Bill by Anna M. Brayton against Edward Brayton for divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Frankhauser & Cornell, for complainant.

      Charles A. Shepard, for defendant.
   Moore, J.

The bill of complaint in this cause charges defendant, Edward Brayton, with drunkenness and extreme cruelty and prays for a divorce and the awarding to her of alimony. Defendant filed his answer on the 30th day of August, 1911, which was a general denial of the matters set forth in complainant’s bill. Complainant filed a replication to this answer on the 5th day of September, 1911. A hearing was had in open court upon the merits. Later the 'court gave to complainant a decree for divorce on the ground of extreme cruelty. The case is brought here by appeal. No question about the alimony is raised.

Two questions are presented by the appellant in this court:

First. It is contended that the bill of complaint does not sufficiently charge extreme cruelty as a cause for divorce.

Second. It is contended that if the charge is sufficiently stated in the bill of complaint it is not made out by the testimony.

As to the first contention, an attempt was made to charge extreme cruelty in the bill of complaint. The case was tried on the merits. The question is raised in this court for the first time. This course does not have our approval. See Smith v. Blake, 96 Mich. 542 (55 N. W. 978); Richardson v. Richardson, 100 Mich. 364 (59 N. W. 178); Holcomb v. Holcomb, 100 Mich. 421 (59 N. W. 170); Tackaberry v. Tackaberry, 101 Mich. 102 (59 N. W. 400); Daly v. Wayne Circuit Judge, 102 Mich. 392 (60 N. W. 759).

Second. Was the charge of extreme cruelty sustained by the testimony? It would profit no one to recite this testimony; some of it is too coarse to appear well in print. It is sufficient to say of it that it brings the case well within the decisions of this court. See Briggs v. Briggs, 20 Mich. 34; Goodman v. Goodman, 26 Mich. 417; Warner v. Warner, 54 Mich. 492 (20 N. W. 557); Berryman v. Berryman, 59 Mich. 605 (26 N. W. 789); Bailey v. Bailey, 121 Mich. 236 (80 N. W. 32); Utley v. Utley, 155 Mich. 258 (118 N. W. 932).

The decree is affirmed, with costs.

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