text:
    WARREN v. CONNOLLY.
    Attorney and Client — Courts — Contempt — Investigation op Misconduct of Jury.
    Where an attorney published in a newspaper of which he was proprietor, an article intimating that in a certain criminal case, some person or officer tampered with the jury, and that one of the jurors accepted a package resembling money, from the officer in charge, the court was not authorized to issue an ex parte order requiring the publisher to file a written affidavit in open court, setting up the facts on which the article was based; and an offer on his part to disclose in private to the court what information he had and the sources of it was all that could be properly required.
    Mandamus by Francis H. Warren against William F. Connolly, judge of the recorder’s court for the city of Detroit, to require the court to vacate an order entered without a hearing or notice.
    Submitted February 14, 1911.
    (Calendar No. 24,433.)
    Writ granted March 31, 1911.

      Warren & Marshall, for relator.

      Stewart Hanley, amicus curios, for respondent.
   Moore, J.

On December 6, 1910, one Wesley B. Schram was tried in the recorder’s court of the city of Detroit before the Honorable William F. Connolly, judge of the recorder’s court, upon the charge of unlawfully discriminating against one Emma Davis, for the reason that she was a colored person. The case was in the recorder’s court on appeal from the police court. The trial resulted in a verdict of not guilty, and the defendant, Schram, was accordingly discharged.

On the 10th day of December, 1910, an article appeared in a newspaper called the Detroit Informer, reading as follows:

“Was the Jury Fixed ?
. “Prosecutor Aldrich Made a Very Strong Case for the People in the Majestic Theatre Case.
“Despite the fact that defense made weak case the jury, after being out several hours, said defendant Schram was ‘not guilty.'
“ Charge of Judge Connolly a Correct Statement of the Law.
“The Emma Davis-Majestic Theatre case, otherwise known as the case of the People v. Wesley B. Schram,, was tried in Judge Connolly’s court, Tuesday, Dec. 6. Judge Aldrich appeared for the people and made an exceptionally strong cose. Misses Davis and Gertrude Thompson were the people’s witnesses and told a clear, straight-forward story of their exclusion from the theatre, expressly because ‘ this place is not for colored people ’ and ‘ if you don’t go out we will throw you out.’
“ Defense Looked Like ‘ Erame Up.’
“ Mr. Frank D. Eamans was the defendant’s counsel and he made a rather novel, but apparently weak defense. Setting up as facts that the two young ladies were politely told that the seats they occupied belonged to a lady and child who had gone to the retiring room and that because of this gentle treatment they left the theatre in a huff. But the very witness sworn for the defense admitted that the ‘ lady and child ’ were. given other seats, that seats were being vacated all the time and others filling them. This witness got badly tangled in his testimony and others were nearly as bad, exemplifying the old saying about certain persons needing ‘ a long memory.’ Mr. Eamans made a strong plea to the jury, but his position was shot all to pieces by the powerful logic of Judge Aldrich.
“Was the Jury Fixed ?
“ And it seemed to many that the defendant would surely be convicted by the jury under the correct statement of the law of the case by Judge Connolly. But a suspicious incident took place just as the jury was entering the jury room. One of the jurors tarried in the court room fumbling with his coat and hat and had a conversation with the officer in charge of the jury. When the case first started this same officer was seen to receive a small package resembling money. Of course there may have been no connection between the two acts of this officer receiving the small package and t his conversation later with the juror, who apparently hung back for that purpose. Nor yet between either or both of these incidents and the verdict of the jury and The Informer does not claim there is.
“ Mrs. Davis, mother of Miss Emma, and others were told of these incidents at the time and to look out for a verdict of not guilty or a disagreement if the jury were out very long. In view of the verdict as thus predicted the incidents referred to have at least a suspicious look.
‘ Defendant Fined by Judge Jeffries.
“This is the same case in which the defendant was fined $50 by Judge Jeffries when the case was tried in his court and defendant was found guilty. He appealed the case to Judge Connolly’s court and here the jury discharged him as shown above.”

An editorial appeared in the same issue as follows:

“ The incidents related in another column of this issue that cast a suspicion that there was a connection between the acts of court officers and verdicts of the jury should never occur in courts of justice. The officials having in charge the jury to determine the right or wrong of a case should be like Ciesar’s wife: above suspicion. There should be no clandestine passing of suspicious looking packages, no conversation with any of the jurors as they are passing into their room to judge the acts of defendants. They should stand out in the open all the time and never do or say anything that could possibly lead one to believe that they were other than strictly honest in their official conduct.”

Upon the same day and without notice to the relator the following order was entered:

“ In the Recorder’s Court of the City of Detroit.
In re Francis H. Warren.
“Connolly, J.
“ The Session of December 10, 1910.
The Court: It appearing to the court that a paper called the Detroit Informer, which purports to be edited by Francis H. Warren, who is a member of this bar, contains an article which the court feels reflects upon the conduct of the officers in charge of the jury in the case of the People v. Wesley B. Schram, by innuendo, and there appearing in the same edition an editorial in corroboration of the article, the court enters an order directing the said Francis H. Warren to file upon oath a statement of facts justifying the publication of this article, on or before Thursday, December 15th, at 9:30 a. m.
“Mr. Clerk, you will notify Mr. Warren of the order of the court.”

Mr. Warren appeared before the court and stated he was appearing, not as an attorney, but as publisher and editor, and that he was willing to give the court all the information he had under oath, if desired, but not in open court. The court declined to receive this information, and a motion was made to vacate the order of the court for the following, among other reasons:

“ (1) The article complained of by the honorable court contains all the information necessary to aid the court in making such investigation it may see fit to make. There was but one officer that had charge of the jury in the case of the People v. Wesley B. Schram at the time it retired, and the court well knows who that officer is, and if he is the honest man he is said to be, he will tell the court all about the incidents referred to in the Detroit Informer, and should have told of them before now. Then there was but one juror who hung back in the courtroom after the others had entered the jury room. If his conversation with officer was innocent, he should step to the front and relieve his fellow jurors of suspicion. There was but one person who handed the officer the package ‘resembling money.’ This man is well and favorably known, but if his act was innocent of wrong doubtless he can give the. court a satisfactory explanation of the incident, for he knows Francis H. Warren saw it.
“ (2) For the reason that the demand made in the order of December 10, 1910, calls for matter in a public way that is more properly the subject of private examination, resembling matters that should be examined by grand juries. * * *
“ (5) There is no legal duty devolves upon publisher to comply with the court’s order until matter is brought up in regular manner.”

The notice to vacate was overruled and the case is brought here by mandamus.

The attitude of the relator and the respondent is indicated by the following extract from the record. Mr. Warren is addressing the court:

“ It may be that the incidents referred to were innocent, and if they are, certainly I ought not, as publisher of the Detroit Informer, to be made to expose these gentlemen in a criminal matter by making a criminal charge under oath. Your honor can sit as a grand jury; the same matter may be disposed of by the grand jury method, by the court taking the place of the grand jury. The court says it does not approve of star chamber sessions; but the ordinary grand jury sessions are star chamber sessions. Nothing is supposed to leak out from the grand jury, and nothing should leak out from an investigation of this kind, unless the court is satisfied that a crime has been committed. Let me point out that the Detroit Informer did not claim that a crime has been committed, but there was only a suspicion that there might have been a crime committed, and that gave rise to the question that the court objected to or does object to.
The Court: You are entirely mistaken in your position of the attitude of the court—
“Mr. Warren: Apparently you did object, or you would not have called me in to make a sworn statement about what I stated in the Informer.
The Court: The natural inference was that some officer of the court, and jurors of the court, who were and are officers of the court, had so comported themselves as to render them open to the suspicion of fixing somebody, or being fixed. You are an officer of this court. As an attorney—
“Mr. Warren: I am not appearing in this matter as an officer of the court. I am appearing as publisher and editor of the Detroit Informer.
The Court: You cannot be a dual personality with reference to this. If you have any facts upon which to base a statement that this jury was fixed, and that any man on this jury was fixed, or that any officer did any act which would lay him open to the suspicion that he had tampered with the jury, the court is entitled to know it, and it is your duty to give it.
“ Mr. Warren: Not in open court.
The Court: Why not ?
Mr. Warren: Because it may be that the acts could be explained without exposing them to the open.
The Court: You have done' worse than that. In the way you publish the story no one knows who is the responsible one; and, among other things, one of the honored officers of this court has been retired since this thing happened; and we want to know, if anybody is under suspicion, who he is.
“Mr. Warren: You are perfectly welcome to the information, but not to file it in a public way. The law says — the Supreme Court says that written complaints are unnecessary.
“The Court: That may be; but I don’t want to do anything as judge of this court which is not public. I do not propose to have any man accused, unless in public. If any man is under suspicion, or is to be accused, I want him in public where he can hear it and defend himself against it. I won’t allow anybody to be accused in any other way.
“Mr. Warren: In the very case that the court cited last Monday, the case of George W. Parker, the court does not say that it must be in the open; it does not direct that the investigation must be in the open, the preliminary investigation.
“ The Court: The judge who wrote the opinion says that the practice indulged in in the Ascher Case) was bad. That’s what he does say. * * *
“Here is a case where an individual’s constitutional right is involved, the equal right of a man to be treated the same as every other man, notwithstanding his color; and you print an article in your paper to the effect that the jury was fixed — not saying that the jury was fixed, as a bald statement, but by the use of that figurative form that is well recognized in rhetoric, asking the question, * Was the jury fixed ?’which is tantamount to the expression—
“Mr. Warren: It is one thing to entertain a suspicion and another thing to make a charge.
“The Court: A suspicion may be more damning than a charge.
“Mr. Warren: There is no law resting upon me to convey this information to the court.
“The Court: I think there is.
“Mr. Warren: I wish the court would point it out.
“The Court: There is the oath which you took as an officer of this court when you were admitted to the bar.
‡ $ ‡ $ ‡ ‘ ‡
“The Court: You occupy a peculiar pssition different from the ordinary individual, with reference to the court. You are an officer of the court, and, as such, where anything affects the integrity of the court’s proceeding or the administration of justice, your duty, it seems to me, is plain.
“Mr. Warren: I have made no claim where it did affect it.
“The Court: I think you have.
“Mr. Warren: If the court takes that view of it, we will have to try it out on that ground. But I claim I have made no such claim. I said these acts, specifically, may be innocent, but they gave rise to a suspicion; and not only in the article itself, but in the editorial, I say so.
“The Court: What the court wants to know — the court will determine whether or not the acts are suspicious, or criminal — but the court wants to know what the acts are.
“Mr. Warren: The court is entitled to know; but not in public. That is the position we take in this matter, just the same as a grand jury is entitled to know.
“The Court: I think any proceedings of a court ought to be public. I do not propose to be led by anybody into the policy of holding secret investigations of anybody. Any time a man comes into my court he is going to be where he can hear it, and if he isn’t around he is not going to be accused.
“Mr. Warren: There is no objection to his presence, and his hearing these things; hearing them right there with me and you.
The Court: If you have any facts and the court tells you it is your duty to indicate them, I can’t see why you should hesitate.
“Mr. Warren: * * * I do not think the court has the right to censor publications, unless they are absolutely criminal.
The Court: I am not trying to censor your publications.
Mr. Warren: That would be the effect of your order.
The Court: Oh, no. I am trying to get from you all the facts.
“Mr. Warren: If the suspicion proved groundless, then every one of these men could sue the Informer for libel.
The Court: I think not.”

The attorney who appears for the respondent says in his brief:

“ It would be well, we believe, at the outset of this discussion, that it be understood that the order entered by Judge Connolly was not for the purpose of censoring relator’s publication, nor to punish relator as the publisher of the articles in question. The proceeding was solely for the purpose of requiring Hr. Warren, an officer of the court, to disclose those facts within his knowledge upon which were based the articles casting suspicion upon the jury in the Schram Case and the officers in charge thereof. Mr. Warren indicated his willingness to give these facts to the judge in private, but objected to filing such a statement in open court, as requested by the judge.”

It appears to us that if that was the only purpose of the court, the relator indicated. a willingness to do all he should be required to do to realize that purpose. Counsel say:

“The court had authority to direct the manner in which Mr. Warren make his statement. Upon this point the only question involved is whether the court had authority to order Mr. Warren to file the required statement under oath in open court. By asking permission to file such a statement, but only for the private perusal of the judge, Mr. Warren practically concedes that the court had authority to demand the statement, but only questions the authority of the court to direct this to be done in open court.”

And in support of this proposition the language used in People v. Parker, 145 Mich. 488 (108 N. W. 999), is cited. A reference to the case will show that what was said does not refer to something which occurred out of court and after the trial was over, but related to an investigation during the progress of the trial, in which investigation the parties to the litigation were deeply interested. This was also true of the inquiry in the case of People v. Ascher, 130 Mich. 540 (90 N. W. 418, 57 L. R. A. 806). The language quoted in the brief by the attorney for the respondent shows it was not necessary to the disposition of the case, and the justice writing the language was careful to say, “ Speaking for myself, I desire to say I do not regard that as the proper practice.” We find nothing in those cases to indicate that the course suggested by the relator was not a proper one.

We again quote from brief of counsel for respondent:

“ No court is bound to await the complaint of a third party before investigating any matter touching the misconduct of its officers, when information considered sufficient is received, and the circumstances in its judgment demand its interposition. The court alone is to judge of the grounds upon which a rule may issue.” Randall v. Brigham, 7 Wall. (U. S.) 523; In re Wool, 36 Mich. 299. * * *
“We submit that this matter is controlled by Randall v. Brigham, and In re Wool, supra.

A reference to the two cases will show that they were both disbarment proceedings. In the last of these cases the disbarment proceedings grew out of what appeared in a chancery case, heard and decided by the court in which the disbarment proceedings were pending. In disposing of the case the court used the following language:

“ The charges made against Wool in the bill of complaint, which formed the only basis of action in that case, were such as, if true, were enough to render him deserving of punishment. If no such suit had been brought, and a complaint had been laid before us against him, a full hearing on evidence taken in some adequate way would have been necessary. But no method of examination adopted in summary proceedings could have been so full or suitable as that furnished by the issues and hearing in an equity cause, where the witnesses are examined and cross-examined in such manner as the parties desire, and there is time for an exhaustive scrutiny. After such a hearing there is no very good reason why any further showing on the main facts should be had, unless under circumstances which would justify a rehearing. Accordingly, where the court has itself heard the cause and passed upon the facts, as is done in equity, an order to show cause is properly based on the decree, and might have been incorporated in the decree itself.”

In the case of Randall v. Brigham, supra, the court said, among other things:

“ The informality of the notice, or of the complaint by the letter, did not touch the question of jurisdiction. The plaintiff understood from them the nature of the charge against him; and it is not pretended that the investigation which followed was not conducted with entire fairness. He was afforded ample opportunity to explain the transaction and vindicate his conduct. He introduced testimony upon the matter, and was sworn himself.
“It is not necessary that proceedings against attorneys for malpractice, or any unprofessional conduct, should be founded upon formal allegations against them. Such proceedings are often instituted upon information developed in the progress of a cause, or from what the court learns of the conduct of the attorney from its own observation. Sometimes they are moved by third parties upon affidavit; and sometimes they are taken by the court upon its own motion. All that is requisite to their validity is that, when not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defense. The manner in which the proceedings shall be conducted, so that it be without oppression or unfairness, is a matter of judicial regulation.”

So far as these cases are in point they are against the contention of respondent. In the case at bar we have an ex parte order entered, not in the alternative, but requiring the relator to justify in writing under oath, and in open court, an act which occurred out of court. Our attention has not been called to any authority justifying such an order.

The writ of mandamus will issue as prayed, but without costs to either party.

Hooker, McAlvay, Brooke, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    McARTHUR v. NEWHALL
    Mistake — Equity—Injunction Against Action at Law.
    In a suit to enjoin an action at law for breach of warranty of title, and to correct a deed by striking out a parcel of land included therein, upon a record showing that the deed was given by complainant to convey to defendants in compromise of certain litigation land which belonged to an estate of which he was agent, and in which defendants were interested, that he represented in a separate writing as a part of the settlement that he owned the lands described in the deed and had not incumbered them, although he had in fact conveyed the particular description to third parties, complainant’s contention that the description was included by mistake was not sufficiently sustained.
    Appeal from Cheboygan; Shepherd, J.
    Submitted February 7, 1911.
    (Docket No. 134.)
    Decided March 31, 1911.
    Bill by John B. McArthur against Alice J. Newhall, Fanny F. Griffith, Clara B. Skaats, and Joseph L. Roberts, to reform a deed and enjoin an action at law. From a decree for defendants complainant appeals.
    Affirmed.

      C. S. Reilley, for complainant.

      William N. Cross and B. T. Halstead, for defendants.
    The oill in this cause was filed to enjoin an action at law, brought for damages for breach of warranty contained in a deed for certain lands, and to correct said deed by striking out of it a description of lands which, with numerous other descriptions, is contained in said deed. The cause was heard upon pleadings and proofs taken in open court. It appeared that the complainant, who had been agent of the Roberts estate, was defendant in certain suits brought by th8 defendants in this suit; that in one of the causes which had been begun a trial was entered upon and had proceeded for some days, when a settlement of the matters in dispute was agreed upon. The proposition of settlement, which was in writing, involved the conveyance by complainant to the several heirs of Joseph L. Roberts, deceased, jointly, of certain lands which he had acquired from said estate, one of the pieces being the northeast quarter of the northeast quarter of section 25, town 88 north, of range 4 west, the payment to the said heirs of a sum of money, and the giving to them of a mortgage for $7,000 upon property of complainant which had been attached. Pursuant to the arrangement, complainant executed the deed, which was dated April 10, 1907, gave the $7,000 mortgage, and paid $2,000 in cash. Mutual releases, etc., were made. One of the papers executed in the settlement reads as follows:
    “ For and in consideration of the settlement of all matters in difference between myself and the heirs of Joseph L. Roberts, deceased, and for the purpose of procuring said settlement, I do hereby represent to them, said heirs, that I am the owner in fee simple of the lands described in a mortgage bearing even date herewith, and given to them in part settlement, and that I have not incumbered or suffered any liens to be acquired through any act or default of mine upon the lands described in special covenant, warranty deed bearing even date herewith, and also given as a part settlement by me to said heirs, and hereby admit that said deed and mortgage are taken and accepted by said heirs in reliance upon said representations by me. Dated at Cheboygan, Michigan, April 10, 1907,
    “John B. McArthur.”
    The covenant in the deed, the breach of which is relied upon in the action at law, reads as follows:
    “Said parties of the first part, for their heirs, executors or administrators, do covenant, bargain and agree to and with the said parties of the second part, their heirs or assigns, that the said John B. McArthur and Alexander S. McDonald have not heretofore done, committed or willingly suffered to be done or committed any act or thing whatsoever whereby the premises mentioned or any part thereof is incumbered in title estate or otherwise whatsoever.”
    In fact, complainant had sold the land. It was charged in the bill, and some testimony was received to prove, that there was an oral understanding between the parties that the particular description of land was one which complainant had perhaps conveyed away, and that, if this turned out to be the fact, the deed was to be treated for all purposes as though it did not include said description of land.
   Ostrander, C. J.

(after stating the facts). It was contemplated by the parties that in the settlement defendants should recover all lands belonging to complainant which formerly belonged to the Roberts estate, and money or security for the value of lands disposed of by complainant. Complainant was not required to warrant the title to the lands, but to return them without having himself impaired such title and estate as he took. We are not satisfied that an oral arrangement to treat the particular description of land as not included in the deed in case it turned out that complainant had conveyed it away is made out. There is testimony tending to prove that upon inspection of the deed complainant called attention to the description of land which has been referred to as land which he believed he had conveyed away; that an investigation was made by both parties which discovered no conveyance of the land of record; that it was then proposed, and agreed, to let the description remain in the deed, and if the land had been conveyed by McArthur the particular description should not be considered. That defendants had knowledge of complainant’s doubts respecting this land, and that such an arrangement was made, is disputed, both by the testimony of witnesses and by the very nature and purpose of the settlement. The attorney who represented the estate, or the heirs, testified that, as to descriptions of land in the mortgage, he stated that, if it turned out that any of them did not belong to McArthur, they would not be taken into consideration. Such an arrangement may be understood, and such a statement, if it was made, would account for a confused recollection, on the part of some witnesses, of just what occurred. No oral agreement tending to vary the written agreement having been proved, and no testimony tending to prove it having been excluded, we are not required to consider whether such testimony ought to have been received. The theory that the description was included in the deed by a mutual mistake of fact is wholly unsupported, in view of the written representation made by complainant.

The decree is affirmed, with costs to appellees.

Bird, Brooke, Blair, and Stone, JJ., concurred.


author: Blair, J.

text:
    DAVIS v. McCAMMAN.
    1. Estates op Decedents — Probate Courts — Equity Jurisdiction-Executors and Administrators.
    Except where the remedies provided in the probate court are inadequate, or where the interposition of equity is necessary for some auxiliary purpose, the probate court has exclusive jurisdiction over the settlement of estates of deceased persons.

      % Same — Fraud — Judgment — Setting Aside Proceedings op Probate Court.
    A bill in equity against an administrator, charging him with filing fraudulent accounts and with improperly expending the funds of the estate of decedent, is insufficient, where it shows orders of the probate court based on and allowing such accounts, but fails to show any diligence on complainant’s part in protecting her rights, and fails to show that she discovered the fraud too late to bring the matter before the probate court, or that they were not passed on by that court, or that complainant did not have due notice and opportunity to be heard, and to take an appeal from such orders.
    Appeal from Eaton; Smith J.
    Submitted February 15, 1911.
    (Docket No. 181.)
    Decided March 31, 1911.
    Bill by Charles J. Davis and Mary A. Lindsay Smith against James R. McCamman and Amanda M. Martin for an accounting by one of defendants as administrator of the estate of Malvina R. McCamman, deceased, and for other relief. From a decree sustaining a plea to the bill, complainants appeal.
    Affirmed.

      Samuel H. Davis (O. H. Reed, of counsel), for complainants.

      Horace S. Maynard, for defendants.
   Blair, J.

The bill of complaint in this cause, filed in August, 1910, alleges the death intestate of Malvina R. McCamman of the city of Charlotte, February 7, 1901, seised and possessed of a large amount of real and personal property, and leaving as her heirs at law one son, James R. McCamman, and two daughters, Amanda M. Martin and Mary A. Lindsay Smith; that on April 8, 1901, letters of administration were duly issued to said James R. McCamman as administrator of said estate; that the appraisers appraised property outside of Eaton county without any warrant therefor; that the inventory of the estate “is grossly false and fraudulent; that large and valuable tracts of real estate of which the said Malvina R. McCamman died seised are omitted from said inventory;” that her homestead is omitted, and “that the said James R. McCamman falsely and fraudulently withheld same from the effects and'inventory of said estate, and that the said James R. McCamman has falsely and fraudulently appropriated the said property to his own use and benefit;” that a valuable piece of property in Battle Creek is omitted, and “that the said James R. McCamman and the said Amanda M. Martin have falsely and fraudulently withheld.same from effects and inventory of said estate, and that the said Amanda M, Martin has falsely and fraudulently appropriated the same to her own personal use and profitthat certain land in Lansing was inventoried which did not belong to the estate, and the administrator opened a gravel pit and sold gravel therefrom and charged the estate in his accounts large sums of money for labor of men and teams, for personal services and traveling expenses, litigation, etc., the exact amount of which complainants are unable to state; that the charges so made were not legitimate and were “fraudulent upon the estate;” “that various sums of money, the exact amounts of which are not known to your orator and oratrix, were borrowed from the said Malvina R. McCamman by the said Amanda M. Martin and the said James R. McCamman, but that said inventory contains no items containing sums so borrowed, except one item of $250 due said estate from James R. McCamman; that said inventory shows no sums borrowed by Amanda M. Martin.

“Your orator and oratrix believe and charge the fact to be that large sums of money are due the estate from said parties, and that such sums have been ialsely and fraudulently withheld from said estate.

“Your orator and your oratrix further show that said James R. McCamman, as administrator, has falsely and fraudulently credited himself with various items of disbursements, much to the damage of the estate, and that he has appropriated such sums to his own personal use and benefit; that in his report to the said probate court filed oh, to wit, the 4th day of October, A. D. 1906, on page 26, a certified copy of which is hereto annexed marked Exhibit H, and made a part of this bill, he credits himself with disbursements of the following items, to wit: Cash $758.16; expended house, $179.14; that said items are in excess of his total disbursements as itemized in’ said annual report, in which the aggregate total disbursements, as itemized, are $17,876.”

That the administrator credited himself in his accounts with $2,480 for certain lands, whereas the aggregate amounts of the considerations of the conveyances thereof amounted to $2,541.33; that the reports show an amount received from one Cook of $200.45 for the sale of real estate, and a certain deed shows the expressed consideration to be $225; that the account shows the sum of $401.55 received from one Meecham, and a deed recorded shows a consideration expressed of $575; that the total sum derived from the sale of real estate shown by the account is much less than the total consideration shown by the deeds of conveyances, but the accounts are so indefinite that it is impossible to determine just where the discrepancy is, and the not keeping of proper accounts is a fraud on the estate and heirs; that the administrator has not accounted for his doings between the period of October 1, 1906, and April 30, 1907; that the probate order of May 9, 1907, directed the administrator to pay over one-third of $780 found to be the balance to be distributed to the said three heirs at law, but he did not pay one-third to complainant Smith; that a large amount of real estate belonging to said estate was conveyed by the heirs at law without the order of the court; that the receipts of those sales should have been paid to the heirs, and not have gone into the funds of the estate; but the administrator refused to pay any portion to complainant Smith; that the administrator, without authority, used $1,100, to construct a new house, and $170, to purchase a house, of the moneys of the estate.

“That on, to wit, the 25th day of April, A. D. 1907, the said James R. McCamman, as administrator, exhibited and filed a final report of his doings in said estate and petitioned that the same be allowed, a certified copy of which is hereto annexed and marked Exhibit A, and made a part of this bill; that on, to wit, the 9th day of May, A. D. 1907, upon due hearing said probate court made an order allowing said final account; that said order is recorded in Liber 37 of Probate Records, on page 123, a certified copy of which is hereto annexed, marked Exhibit B, and made a part of this bill; that on, to wit, the 6th day of March, A. D. 1908, said James R. McCamman, as administrator, exhibited and filed a final account of his doings in said estate with said probate court, and petitioned that the same be allowed, a certified copy of said petition is hereto annexed, marked exhibit C, and made a part of this bill; that on, to wit, the 26th day of March, A. D. 1909, hearing was had on said petition, and said probate court made an order allowing said final account; that said order allowing said final account is recorded in Liber 33 of the Probate Records, on page 292, a certified copy of which is hereto annexed, marked Exhibit D, and made a part of this bill; * * * that on, to wit, the 10th day of September, A. D. 1909, the said Mary A. Lindsay Smith did duly assign certain of her interest to Charles J. Davis of the city of Lansing, county of Ingham, and State of Michigan.”

The second, third, and fourth paragraphs of the prayer for relief are as follows:

“ That the court set aside the orders of the said probate court of May 9, A. D. 1907, and of March 26, 1909. That the court set aside the annual reports of said administrator, of his doings in said estate, and direct him to fully and truly account of his doings in connection with said estate. That said James R. McCamman be discharged as administrator, and that the said probate court be directed to appoint some other person who is suitable and well qualified to act as administrator.”

The defendants demurred to the bill, with a plea joined. The demurrer was ignored by the court. The plea, broadly, was that the matters alleged in the bill related to the settlement of an estate of which the probate court had exclusive jurisdiction, and that the bill showed no grounds authorizing an equity court to usurp the jurisdiction of the probate court and take "the estate and settle it to the exclusion of the probate court. The opinion of the court held the plea well taken, and a decree was entered in accordance with the opinion. Complainants appeal from the decree allowing the pleal The plea sets up in detail the proceedings in the probate court.

The probate court has exclusive jurisdiction over the settlement of the estates of deceased persons, except where its remedies are inadequate, or the interposition of equity is necessary for some auxiliary purpose. Nolan v. Garrison, 156 Mich. 897 (120 N. W. 977). We have held that the probate court has authority to order a rehearing of an administrator’s account, on a showing of mistake or fraud, under the provisions of Act No. 271, Pub. Acts 1905. In re Mills’ Estate, 158 Mich. 504 (122 N. W. 1080).

Conceding that, where fraud has been discovered too late to apply to the probate court for relief, the court of chancery has jurisdiction, in aid of the probate proceedings, to set aside orders fraudulently procured :

“He who invokes the aid of a court of equity to set aside a judgment rendered against him in a court of law must show by his bill that he has been diligent in prosecuting his remedy at law. If he had the opportunity to interpose his defense at law and failed to avail himself of it, a court of equity will close its door to him.” Weisman v. Beef Co., 154 Mich. 511 (118 N. W. 2).

And:

“The allegations of the bill of complaint inequity to obtain an injunction against a judgment at law must be positive, explicit, and certain, and, if fraud is the ground upon which the aid of equity is asked in relieving against a judgment, it is not sufficient to incorporate in the bill general allegations of fraud, deceit, or misconduct, but the specific facts constituting the alleged fraud must be set forth.” Andrews v. Osborn, 159 Mich. 77 (123 N. W. 599).

There is no allegation in the present bill of complaint of any diligence whatever on the part of complainant Smith in protecting her rights; nor that she discovered the frauds complained of too late to bring them to the attention of the probate court and procure the correction of the accounts; nor that she was ignorant of their existence; nor that they were not passed upon by the probate court. There is no allegation that she did not have due notice and opportunity to be heard with full knowledge of the facts. There is no explanation offered in the bill as to why she did not appeal to the circuit court or petition the probate court to set aside the orders. In short, so far as anything to the contrary in this bill is concerned, the complainants, with full information as to the facts necessary to protect their rights, have voluntarily delayed until their remedies at law have been lost by lapse of time. The record shows that the probate proceedings were regular; the bill does not successfully impeach them for fraud; and the bill of complaint was properly dismissed. Andrews v. Osborn, supra.

The decree is affirmed.

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


text:
    SHERMAN v. BURTON.
    1. Contracts — Public Policy — Physician and Patient — Witnesses.
    A contract to compensate a physician for services rendered in connection with personal injuries of a patient, by a stipulated share of such damages as the latter might recover for his injuries, the parties contemplating that the physician should be a witness as to the extent thereof, is void as against public policy.
    2. Same.
    Good faith of the parties is not the test of its validity, which is determined by the tendency of the agreement.
    Error to Wayne; Hosmer, J.
    Submitted February 15, 1911.
    (Docket No. 194.)
    Decided March 31, 1911.
    Assumpsit by Andrew T. Sherman against George E. Burton on a special contract. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Cullen, Casgrain & Hanley, for appellant.

      James H. Pound, for appellee.
   Blair, J.

Plaintiff brought this suit to recover the amount alleged to be due upon the following agreement in writing:

“Detroit, Mich., March 14th, 1906.
“I, Geo. E. Burton of the city of Detroit, do hereby agree as follows with Dr. A. T. Sherman of the same place. I will pay to the said Dr. A. T. Sherman for professional services, one-third of any sum which I may receive from the Detroit United Railway, as damages, arising out of an injury to me on said D. U. R. Dec. 7th, 1905.
“And I further agree to pay to said Dr. Sherman the sum of ninety dollars ($90.00) in addition to the above-mentioned one-third if the amount received by me is two thousánd or more dollars, that is, if the settlement is made outside of courts.
“ Geo. E. Burton.”

The facts as stated by plaintiff are that he is a practicing physician and was called to treat plaintiff December 10, 1905, for an injury to his knee, the result of a collision between cars of the Detroit United Railway Company; that the agreement was drawn at the urgent request of defendant and against the objection of plaintiff, that he preferred to get pay for the work he did; that Mr. Martin, the claim agent of the Detroit United Railway Company, saw him with reference to the case several times at his office; that between the time he first attended defendant and the making of the agreement defendant told him that he was going to bring suit against the railway company:

“ When treating Mr. Burton, he told me he was contemplating bringing suit for the accident, and, at his request, I took him to a lawyer, but that was after the signing of the contract. At Mr. Burton’s request I had Dr. J. B. Kennedy examine him. The D. U. R. had Dr. Wyman examine him. I also called in Dr. Spademan and Dr. Walker at the request of Mr. Burton. I also called in Dr. McLean at Mr. Burton’s request. * * * I never offered my influence with the Detroit United Railway, nor anything of that kind., I told Mr. Burton that if he thought Dr. Wyman could do more for him than I could, I was willing to give up the case and hand it over to Dr. Wyman, and have Mr. Burton pay me what was due me up to date. But he said no; he would not do that. This was two or three weeks before the settlement. * * * I gave Mr. Burton the bill, Exhibit 4, as he said he was figuring on a settlement with the Detroit United Railway, and he said the Detroit United Railway wanted a bill of me, and he said not to make the bill over $300. He said that the Detroit United Railway wanted a bill of me. I made the bill at the first instance and fixed the amount at his instance at $300. I drew it myself, it is in my handwriting.”

Exhibit 4 is as follows:

“Detroit, Mich., June 1, 1906.
“Mr. George E. Burton,
“ To Dr. Andrew T. Sherman, Dr.
“205 Trumbull Ave., corner Leverette,
“Between Michigan Ave. and Baker St.
“ To professional services:
“Calls..............................$225
“ Plaster casts....................... 65
“ Before he closed the matter with the Detroit United Railway he came to my office and asked me if I would be satisfied if he settled for $l,80d, and I told him it made no difference to me what he settled for, as long as he was satisfied; and later he informed me that he had settled the claim for $1,800. Later Mr. Burton paid me the $100 that he borrowed, and $290 for services. Ninety dollars of the $290 was paid after suit was commenced by me, and I claim that there is still due to me upon the principal of the contract $310.”

The testimony in behalf of the defendant tended to show that plaintiff suggested the making of the agreement; told defendant that he had a good case against the Detroit United Railway Company; told him that he had a very bad knee; spoke about tuberculosis in it—

“ Said he was going to get me so many thousand dollars right away quick, from five to seven thousand dollars; but did not say how he was going to do it. I never knew about the contract until he put it under my nose. He said the leg might possibly run into that disease; that it would have to be amputated, which alarmed me. Before signing the contract, he never mentioned it to me. It was all done about 10 o’clock one morning. He said he had great weight with the Detroit United Railway; he had somebody in the office connected there that would give information, and that they were very willing to settle any cases where they were at fault, and my being a business man, drawing a salary as I am, would be of influence; that I had a good, big shove.”

That, it was finally agreed to destroy the agreement, and plaintiff reported that he had done so and put in the bill, Exhibit 4, to show the amount actually due him, and the payment thereof was a full settlement between them. Mr. Martin, the claim agent, testified that plaintiff told him he had no interest in the case whatever; this was denied by plaintiff.

The circuit judge directed a verdict in favor of defendant upon the ground that the agreement was in contravention of public policy, within the principle of Thomas v. Caulkett, 57 Mich. 392 (24 N. W. 154, 58 Am. Rep. 369). Plaintiff brings the record to this court for review upon writ of error.

We concur in the opinion of the circuit judge that the principle of Thomas v. Caulkett applies to this case. The good faith of the parties to the contract is not the test of its validity; but, as said in the case referred to:

“The contract must be measured by its tendency, and not merely by what was done to carry it out.”

At the time the agreement was made, the parties contemplated that unless a settlement were made a suit would be instituted against the railway company, and the agreement expressly provided that, if the matter was settled out of court for $2,000 or over, the plaintiff should receive $90 in addition to one-third of the amount received. The amount which the defendant could obtain from the railway company must depend principally upon the nature, extent, and character of his injuries, to be determined by the testimony of experts like the plaintiff, and in no small degree by their opinions, incapable of conclusive refutation before a jury of nonexperts. "We think it necessarily follows from the circumstances of the case as disclosed by the plaintiff and the agreement that the parties contemplated that the plaintiff should be a witness in case of suit and should give a history of, and opinion upon, the case in the event of a proposed settlement. The plaintiff’s interest in the amount of the damages furnished a powerful motive for exaggeration, suppression, and misrepresentation, a temptation to swell the damages so likely to color his testimony as to be inimical to the pure administration of justice, and therefore invalid.

The judgment is affirmed.

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


author: Hooker, J. Blair, J.

text:
    RIGGE v. WICKES BROS.
    Master and Servant — Competent Employes — Foreign Laborers — Ignorance op English.
    No sufficient evidence of negligence was offered, in a personal injury action, brought on the theory that defendant owed a duty to its servant to provide laborers competent to assist in erecting a boiler front, but hired Italians and other foreigners to assist the injured employé, with the result that they misunderstood his orders and allowed a heavy steel boiler front to fall upon him, where the only testimony that the laborers did not understand English was the conclusion of the injured servant, based either on hearsay or his deduction from their failure to follow his directions.

    Error to Saginaw; Gage, J.
    Submitted February 16, 1911.
    (Docket No. 71.)
    Decided March 31, 1911.
    Case by Edward G. Rigge against Wickes Brothers, a domestic corporation, for personal injuries. Emma Rigge, administratrix of plaintiff’s estate, was substituted as plaintiff after the decease of intestate. A judgment for defendant, on a verdict directed by the court, is reviewed, by plaintiff on writ of error.
    Affirmed.

      Fred L. Travers (De Vere Hall, of counsel), for appellant.

      Keena, Lightner & Oxtoby (Weadock & Weadock, of counsel), for appellee.

      As to the master’s duty with respect to employment of servants generally, see note in 48 L. R. A. 369.

   Hooker, J.

Defendant, a Michigan corporation, engaged in building steam boilers and erecting steam plants about the country, employed Gustav Rigge to superintend such erection, and plaintiff’s husband, Edward Rigge, had worked for defendant with or under Gustav Rigge, his father, for some nine or ten years, but had left such employ apparently on account of some misunderstanding between himself and father, or possibly between himself and defendant. He and his father were both masons by trade. Being sent to Milwaukee to erect a plant of three boilers, the father, who had authority to employ such help as he needed, telegraphed Edward, who was then at Ludington, as follows:

“ Edward Rigge, 809 Second St., Ludington, Michigan. Arthur and I leave 7 a. m. for Milwaukee via Ludington. Be at depot. You’re to go along by order L. B. Gustav Rigge. 8:10 a. m. 24th. Saginaw, Michigan, August 23, 1906.”
“L. B.” meant L. Baker, who was the superintendent of defendant’s business at Saginaw. Arthur was another son of Gustav Rigge, about 15 years of age. Edward testified that he was an apprentice. Edward also testified that he was employed as a mason to do mason work, but admitted that he was competent to and knew how to do the work in which he was engaged when injured, of which his father had general charge. This consisted in setting in proper place the sheet or plate steel boiler fronts which form the face of the boilers where .the doors are. They are backed up by a brick wall, and have to be set in proper position before the wall is built. This front was about nine feet high by eleven feet- long, a flat piece of steel from a quarter to a half inch thick, and weighed about twelve hundred pounds. This boiler front had been unloaded from a freight ear just before the accident to Edward Rigge. It was done by hand, under the direction of Gustav Rigge, Edward, Arthur, and several laborers employed by Gustav, assisting, and had been raised up and stood on edge in front of the boiler held by the laborers. It had to be moved forward, and Edward was endeavoring to raise it up with a pinch bar while it was being held at the time by the laborers, when it fell upon and injured him. He returned to Michigan, and brought an action to recover damages for injuries sustained, ascribing them to the neglect of defendant, in that it neglected to send from its factory in Saginaw competent and experienced “riggers” to erect and place said front in position, in directing and requiring plaintiff to assist in erecting and placing said front in position, and to perform duties outside his contract of hiring, and in failing to supply experienced laborers familiar with plaintiff’s language to assist him in said work, and asserting that the injury was occasioned by a misunderstanding of the orders given. Subsequently the original plaintiff, Edward Rigge, died, and the cause was revived by the suggestion of the death and appearance of his administratrix. Upon the trial a verdict was directed in favor of the defendant on two grounds:

First. That the action brought was a common-law action, that as it occurred in Wisconsin, and, in the absence of an allegation that under the statutes of Wisconsin it survived to plaintiff’s representatives, the contrary would be assumed, and the suit abated on the death of the plaintiff. .

Second. That the accident was caused by the negligence of fellow-servants.

Plaintiff has appealed.

The negligence relied on is that the defendant’s foreman procured laborers to aid in raising and holding the fire front who were foreigners, and were not able to understand the English language, and, when ordered by Edward to hold on, they let go of the fire front, or shoved it over, and it fell. An examination of the testimony shows that the fire front was a plate of steel from a quarter to a half inch thick, weighing from 1,000 to 1,200 pounds. It wus to stand and be fastened in front of the boiler at a proper distance, preparatory to bricking in. The deceased was voluntarily bossing the job in the temporary absence and at the request of his father, which he understood and was competent to do. He had ten or a dozen common laborers to aid in raising, placing in proper position and holding the same, while he should make it fast with some scantling which he had prepared for the purpose. They had lifted the upper side, and the plate stood perpendicular, being held by the laborers. It was necessary that it be moved bodily forward about two inches.

We will quote the testimony with a view to ascertaining what there is justifying plaintiff’s claim that the laborers could not understand the English language. Edward Rigge’s deposition was read. The deposition of the deceased and the testimony of his brother Arthur tend to show that during the forenoon the Rigges, aided by from 10 to 15 common laborers, mostly if. not all foreigners, built runs and unloaded this fire front and moved it to its place in front of the boiler, and placed it on the ground with the bottom edge nest the boiler. Edward Rigge had some clamps made of scantling, intended to secure the front when it should have been placed in position. After dinner the men assembled, apparently being all or most of those who had worked in .the morning,- and perhaps some others. Acting under the management of Edward, they raised the outer edge, bringing the plate to a perpendicular position in front of the boiler, and stood holding it there. Up to this point the orders, if any upon which the men acted, are not shown. It then became necessary to move this plate bodily forward two inches or thereabouts, and this was attempted; plaintiff being directly in front of the same. Nothing clearly shows that the men were told of this intention, or that the deceased gave any direction until the instant before it fell, though they apparently understood it. As he attempted to move the plate by using pinch bars under the lower edge, as he says to get a roller under it, he gave an order to them, according to his testimony.

“Q. What did you tell them to do- first before you got hurt ?

“A. ‘Hold on there, now.’ They were holding onto the fire front, and, when I said that, I was in front of it.

“ Q. What did the Italians do then ?

“A. They shoved it over; let go of it.

“Q. Did you tell them to let go ?

“A. No, sir.

'‘Q. And what happened to it ?

“A. It fell onto me; fell over to the front.

“ Q. Now, what did they do when they let go ?

“A. That is something I couldn’t say.

“Q. Did you see where they went ?

“A. I was unconscious. The front was right on top of me.

“Q. Did you know up to that time that they didn’t understand your language ?

“A. No, sir. * * *

“A. No, sir. They had been at work with us about four or five hours.

“Q. Five hours; during that time were they working under your direction ?

“A. No, sir. They were working under the direction of my father.

“Q. Did you have any occasion to talk with them in any way ?

“A. To those helpers ?

“ Q. To those helpers.

“JL Y6S, sir.

"Q. What were the nationalities of those helpers ?

“A. To the best of my judgment they were Italian, but they may have been other foreign language. I couldn’t understand what they said, their language.

“Q. You say during all the time that they were working there with you, you didn’t have occasion at any time to talk with any of those helpers or give them any instructions or any orders ?

“A. That I didn’t have any occasion ?

“Q. Yes, sir.

“A. No, sir. Just a minute. That I had occasion to talk to those men ?

“Q. Yes, sir.

“A. Yes; I did.

“Q. Did you know at the time you spoke to them that they couldn’t understand the English language ?

“A. No, sir.

Q. Could they understand English ?

“A. I don’t know. I didn’t know it till after. I know they couldn’t now.

“Q. Didn’t know until after the accident, Mr. Rigge, that those men couldn’t talk English? Then you had occasion, you say, to have conversation with them before the accident happened ?

"A. That is right.

“Q. That is correct, is it ?

“A. I didn’t know; no. That is the question ?

**Q. No. You say you had conversation with those helpers before this accident occurred. They had been with you some four or five hours. You claim, now, not to have known that they couldn’t talk English until after you were hurt ?

"A. Yes, sir.

“ Q. You want us to understand that ?

“A. I want you to understand I didn’t understand that they couldn’t talk English until after I was hurt. I don’t remember whether I heard them converse among themselves. * * *

“Q. Well, you and your brother were pinching along this fire front, weren’t you, with a pinch bar P

“A. Yes, sir. I don’t know that my brother was pinching anything. He was there. He was an apprentice.

“Q. Who was giving orders to the apprentices and to the helpers while you were doing that work ?

“A. Who was giving them to them P

“Q. Yes, sir.

“it. All I told them was ‘to hold onto it now.’ This fire front was up. I said: ‘ Hold on ! Hold her! Hold it, now!’ And I couldn’t step to see in front, and I started to lift on this, and over it came.

“Q. They let go, instead of holding on to it?

“A. Yes. Or they shoved. Before this accident happened, we were not pinching this fire front along just the same for some few minutes. We had just started. I don’t know exactly how long my father had been absent from this work before my brother Arthur and I attempted to pinch the fire front along. * * *

“Q. And so the whole thing, the pinching over of that front was right under your direction ? You were overseeing it as it was ?

“A. Overseeing it ?

“Q. Yes; you were the one that was going to pinch it over and then give the order to quit ?

“A. Yes, sir.

“Q. Sir?

“A. We wanted to get it pinched while my father was away.”

Arthur Rigge testified :

“Q. Now, Mr. Rigge, what was the condition of this boiler in reference to the fire front upon the morning of this day that you went to work with your brother Edward ?
“A. The fire fronts were still on the car. * * * During the forenoon of the day he was injured my brother assisted in unloading the cars and building runways for wheeling in brick. That is part of the work usually done by masons to get started. It took the entire forenoon. I don’t remember what time we started work in the afternoon.
“Q. Who put up or attempted to put up the front to this boiler, the fire front ?
“A. All of the men my father had employed. There was — I don’t know the name of any of them outside of my brother and myself and my father. During the forenoon I myself assisted in unloading a car and getting material ready, working with my brother, not side by side, but working in the same nature of work. Several men came later, after noon, to help about the work. I don’t know the time of day, shortly after dinner. * * *
“A. When we started to work right after dinner, the fire front was lying in front of the boilers. We had slid it over on two I-beams. All of the men in general did that.
“Q. These men that came after noon, you mean ?
“A. No.
“Q. In the forenoon ?
‘‘A. We had that placed before dinner, my father, my ' brother, myself, and three other helpers. * * *
“Q. How many men were there working there at the time your brother was injured ?
“A. Between 10 and 15, possibly—
“Q. Was there as many as 10, would you say, besides you and Edward ?
“A. Yes; to the best of my knowledge, there was.
“Q. Where did you get those men ?
“A. My father hired three of them.
“Q. Do you know who got the rest ?
“A. No, sir. * * *, I don’t know whether the three men that were with us in the forenoon were a part of the ten that assisted in the afternoon. I do not remember of seeing them there at all. I had no occasion to attempt to talk with any of the men that came in the afternoon before my brother was injured, and did not hear my brother attempt to talk to them or give them any directions until that time he said to move the front out of there.
"Q. When you used the words, ‘he said to move the front out a little,’ are you using his words ?
“A. I couldn’t say exactly they were his words.
“Q. You said at the time he said to move the fronts. Did he say to move the front, or what did he say ?
“A. He said words to that effect, and directly after-wards the front fell.
“Q. Was there anything else said between the time he used these words and the time the front fell by any one that you heard ?
“A. No, sir; I didn’t hear anything.
“Q. Can you give us any idea of how long it was after he said these words before these men let go, as you have testified to?
“A. They let go instantly, at that time. * * *
"Q. How did they let go ?
“A. I couldn’t state how they let go, but the front came falling on him, no more than he said that, at the same instant. * * * You say those three men were not then the same men you had in the afternoon ?
"A. They were still working there.
“Q. They were still with you in the afternoon ? - ,
“A. Yes. But they were not Italians. I couldn’t say what nationality they were, but I should judge them to be German descent. I did not talk with them, and didn’t have any conversation with them, and didn’t give them any orders, and they didn’t give me any orders. They were not Italians; that is my knowledge. They might have been Hungarians, and might have been Slavs. I worked with them all the morning, and don’t know their nationality.
“Q. You don’t know now and you didn’t know then whether they could speak English or not?
“A. No, sir. * * *
“Q. The only order you recollect was when your brother said to move it out a little ?
“A. That is all I can recollect, or words to that effect.
“Q. And then somebody misunderstood the orders, because they tumbled it over upon him ?
“A. Yes.”

The foregoing is all the testimony in the case upon the subject of the ability of these laborers to understand English, and, aside from the answer of Edward to the question “ Could they understand English,” there is nothing justifying the conclusion that they could not, while there was considerable in the circumstances that indicates that they could. His answer was: “I don’t know. I didn’t know it till after. 1 know they couldn’t now.” There is nothing in the testimony to indicate that he ever saw them again. 'He was shown to have been unconscious when taken to the hospital, and that he was removed to Michigan immediately, starting the same afternoon that he was injured, and the inference is irresistible that his statement “I know they couldn’t now” cannot be based upon personal knowledge, but must have been based upon hearsay, or upon a deduction from the circumstances, neither of which would have been competent evidence. That this was conceded to be all upon which the claim was based is shown by the colloquy:

“The Court: I don’t see how you can say these men did not understand English. I don’t see what evidence you have here.
“Mr. Oxtoby: Arthur Rigge testified they worked there in the morning, and, according to his testimony, there wasn’t an order given in the morning, and in the afternoon no order was given, although they got it in position and until this particular order was given — this was the first order given — and it wasn’t hardly an order at that, because the way he puts it. He said, 'We will move it over a little,’ and then they dropped it upon him. He doesn’t know now whether these men understood the language or not, or whether they got rattled and dropped it. That is just what happened.
“The Court: That’s the way I understood Mr. Rigge’s testimony. The affirmative is upon the plaintiff to show he did not understand it.
“Mr. Hall: We say the record is sufficient in view of what Mr. Edward Rigge testified to.
“Mr. Oxtoby: All right, take that. He goes further. [Reads testimony.]
“Mr. Hall: The presumption is, an Italian is an Italian, and does not understand — ”

Not only does this record contain'no testimony that these men could not understand English, but it is as consistent with the idea that they did understand that the front was to be moved forward, as that they did not. It is noticeable that, wherever the subject is mentioned in the deposition, he says, “ They shoved it over, let go of it.” And again:

“ I started to lift on this and over it came.
“Q. They let go instead of holding on to it ?
“A. Yes; or they shoved.”

And again:

“ The fire front fell because they shoved it over or let go of it and it tipped over.”

Arthur’s explanation of his undérstanding is no stronger.

“Q. The only order you recollect was when your brother said to move it out a little ?

“A. That is all I can recollect, or words to that effect.

“Q. And then somebody misunderstood the orders, because they tumbled it over upon him ?

“A. Yes.”

It follows that the defendant has not been shown to have been negligent in employing these laborers, and that is sufficient to justify the direction of a verdict. But we are of the opinion that it should not be said that defendant would have been negligent in employing foreigners to perform this labor had he known that they did not understand the English language. Apparently they were adults, who obtained their living through the performance of common labor. It would be a low order of intellect that would not know that to let go of this plate would necessarily result in its fall upon the plaintiff’s intestate, and an employer is not negligent for not anticipating that a laborer of apparent, ordinary intelligence would do such a thing. If it be conceded, however, that these men were ignorant of the language, and that they did so unheard of a thing as to all let go of a 1,200-pound plate standing on edge, with the absolute certainty apparent to the most commonplace intellect that it would fall upon their boss, whether they understood or misunderstood the command, such act was one of such extraordinary stupidity or malice that it is not to be ascribed solely to an ignorance of the language in which an order is given, and no employer is bound to anticipate it. Without intending to intimate that there may not be instances where the employment of men ignorant of the language used upon the work for which they are engaged is inconsistent with safety, and therefore negligent, we are of the opinion that so strict a rule as that relied on here should not be announced. Foreigners must be assumed to understand and appreciate the ordinary dangers of common labor, and to be the full equal in those regards of the English speaking race. Hundreds of thousands of them are performing common labor daily in this country, working in gangs in which cooperation is necessary. To say that an employer may not safely employ them unless he shall first ascertain that each has an English education would be discriminatory and unjust, and contrary to a wise public policy which invites such labor. Those who work with them can easily ascertain whether they comprehend the language, and can avoid, any real or imaginary danger arising therefrom by refusing to work with them, and if, as counsel for the appellant contended, the law should presume that Italian laborers in this country are ignorant and do not understand our language, American laborers are as much bound to know and act upon it as the employers are, and it is much more consistent with justice to require this, than to say that families of foreigners shall starve through an industrial ostracism (which would naturally follow the imposition of this responsibility upon employers) until such time as the wage earners can become sufficiently conversant with the English language to instantly understand, and comprehend all orders that may be given to such foreigner or his gang. See Lawrence v. Railway Co., 201 Mass. 489 (87 N. E. 898); Date v. Glucose Co., 114 App. Div. (N. Y.) 789 (100 N. Y. Supp. 171), affirmed 190 N. Y. 510 (83 N. E. 1124); Rahles v. Manufacturing Co., 137 Wis. 506 (118 N. W. 350, 119 N. W. 289, 23 L. R. A. [N. S.] 296).

It is unnecessary to discuss other questions. The judgment is affirmed.

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

Blair, J.

I concur upon the ground that there was no evidence to sustain the charge of negligence relied upon, and, since this disposes of tlie case, I do not deem it prudent to consider the other questions.


author: Stone, J.

text:
    DOLSTROM v. NEWPORT MINING CO.
    1. Master and Servant — Contributory Negligence — Personal Injuries.
    An employé working on a trestle, with knowledge that a cable used to draw tram cars had previously come off the idler on which it ran, and that it would straighten out if it did come off, so as to strike a person on the right-hand side of the trestle and throw him off, was guilty of contributory negligence for walking on the dangerous side of the trestle after adjusting the cable on the idler from which it had slipped.
    2. Evidence — Opinions.
    It was error to permit a witness to testify that the side of the trestle on which plaintiff was walking was as safe as the other side, when it was self-evident that the cable, if it came off, would be thrown to the inside of the curve, so as to strike a person on that side.
    Error to Gogebic; Cooper, J.
    Submitted February 28, 1911.
    (Docket No. 96.)
    Decided March 31, 1911.
    Rehearing denied June 3, 1911.
    Case by Charles Doistrom against the Newport Mining Company, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Herb. M. Norris (James G. Flanders, of counsel), for appellant.
    P. H. O’Brien and George O. Driscoll, for appellee.
   Stone, J.

This is an action on the case for damages for a personal injury suffered while the plaintiff was in defendant’s employ at the Bonnie mine on September 24, 1908.

At the time of the injury, the plaintiff was working as a lander on the tram track, and he held the position of bellman. He was about 27 years of age, and had held that position for about two months before the injury, before which time he had worked on the surface as a swamper two years. The tram track was built out from the shaft-house on considerable of a curve to the right from a straight line, a distance of about 600 to 700 feet, and was about 35 feet above the surface. At a point about 200 feet out from the shafthouse on this tram track, there was a branch tram track curving to the right, known as the “Newport trestle,” which extended out from the main track or tramway a .distance of upwards of 300 feet. The business was carried on as follows: The tram cars were operated by a machine called a “puffer engine,” which was situated in what is called a “puffer house,” built up in the shafthouse. The tram cars stood, when being filled, on the left-hand side of the shafthouse looking out. The skips loaded with ore were hoisted up the shaft by means of the hoisting engine located in the engine house some 300 feet distant from the shafthouse, and when the loaded skip reached a certain point in the shafthouse above the tram car, the ore was automatically dumped into a chute which conveyed it to the tram car. Then upon a signal from the bellman, the plaintiff, by a bell provided for that purpose by defendant, located in the puffer house, and operated by means of a wire running out to the shafthouse, to a point where the bellman stood, the puffer engine was started, unwinding the coil of cable attached to the tram car from its drum, and the weight of the loaded car would carry it out on the tram track in which there was a slight decline outwards to the point where another man, also called a “lander,” who rode upon the car, would dump it. After the'car was dumped, the lander riding on the car would give the bellman, the plaintiff, a signal by hand that the car was in readiness to be drawn back into the shafthouse. It was then the duty of the bellman to give the signal, by bells, to the man operating the puffer, who would reverse the action of the drum attached to the puffer, and draw the car back into the shafthouse, over the tramway, to be filled again. The evidence is undisputed that the puffer man had no right to start the puffer in motion for any purpose, except upon the receipt of signals from the bellman so to do. The puffer man, Erickson, a witness for plaintiff, testified:

“It was my duty to run that car the way Dolstrom (plaintiff) signaled me. ' I had no right to operate the puffer, nor to move the car unless I got signals from Charlie (plaintiff) to do so.. I had no authority or power over Charlie in any way in the performance of his duties. I couldn’t do anything until Charlie told me to.”

On the day of the injury to the plaintiff, all of the ore handled from those tramways was being run out on the Newport trestle. Just before the injury, the loaded tram car had been let out to the end of the Newport trestle on a signal from the plaintiff, the ore contained in the car dumped, and on a signal from the plaintiff to the puffer man the car was drawn in to a point near the junction between the main trestle and the Newport trestle, at which time the cable which was attached to the puffer and the car came off the idler, which was located at a point about 75 feet from the shafthouse; it 'came off and went to the right-hand side of the idler, looking out from the shaft-house, and, in order to pull or slip off from the idler at all, it must necessarily fall to the right-hand side of the idler, looking out. This idler, with other idlers, was located in the center of the track between the rails for the coil or cable to run on while being let out and drawn in, so as to keep it in proper alignment with the car. The track of the tramway being on a curve to the right, and describing an arc, when the cable was pulled off from the idler in the operation of the engine and car, the necessary tendency of the cable was to straighten, which would naturally throw it to the right of the idler, looking out from the engine house.

The first time the coil or cable came off from the idler to the right-hand side the puffer man stopped the puffer engine, which stopped the car. Whether this was done on a signal from the plaintiff, or whether it was done because the puffer man had observed that the cable was off, is not clear from the evidence. The plaintiff went out upon the tramway, saw the cable lying to the right of the idler, and replaced the cable in its proper position over the idler, as it was his duty to do, under his employment, according to the claim of the plaintiff. After so replacing the cable, the plaintiff gave the signal by waving with his hand to pull in the car, walked back upon the right side of the track, facing the shafthouse, and into the shaft-house to his post of duty there. The car was drawn into the shafthouse in its proper position under the chute for reloading with ore. The tram car was reloaded, and the plaintiff again gave a signal to the puffer man by the ringing of the bell to operate the puffer, letting the car out upon the tramway for the dumping of the ore. This signal was complied with. The car was run out again upon the Newport trestle, there dumped, and the puffer man was given the bell signal by the plaintiff to draw the car in, upon which the puffer was started and the car drawn to a point near the junction of the main tramway and the Newport trestle, when the cable again came off the idler, as before, and went to the right-hand side of the idler, looking out from the shafthouse, whereupon the plaintiff again went out upon the tramway to replace the cable over the idler, finding it lying at the same place as before. He replaced it over the idler, although the exact manner in which he handled it is not clear from the testimony. Whether any signal was given is not clear. The plaintiff testified that he did not remember whether he gave a signal or not. The puffer man testifies to a hand signal the second time, but he says that plaintiff was injured on the third occasion, instead of the second. Whether on a signal or not, the puffer man started the car, and, when he next saw the plaintiff, he had stepped over to the left-hand side of the cable as he faced the shafthouse, instead of walking back upon the other side as he did before. At this time the cable again came off the idler, and, as it straightened out, it struck the plaintiff’s right leg near the ankle, and knocked him off the trestle to the ground 35 feet below, and he received the injury of which he complains in his declaration. Under the undisputed evidence, the width of the trestle outside of the track where the plaintiff stood when he was hit was about two feet, while on the opposite side where he walked before, the width was three times as great; the width of the track between the rails being two feet. It was the claim of the plaintiff (under the first count of his declaration, which was the count under which the case was submitted to the jury) that the puffer engine was out of order and was defective, and that it worked erratically on the day in question, and had been so working and out of order for some time, of which the plaintiff was ignorant, and that it was because of this condition that the cable was jerked off from the idler against which it ran in hauling the car, and that this was the proximate cause of the injury to the plaintiff, and that he had never been instructed of the danger.

The case was submitted to the jury, and the plaintiff recovered a verdict and judgment. The defendant has appealed, and there are 32 assignments of error. The tenth assignment of error is upon the ground of the refusal of the court to give the defendant’s requests to cüarge. Defendant’s first five requests to charge were as follows :

*' (1) I charge you that under the evidence in this case, and the law applicable to it, the plaintiff cannot recover because he has not shown that he exercised due care and caution in the performance of his duties, and the performance of his work on the trestle, or tramway of the defendant’s company, on the day that he was injured. The burden of proof on this particular question is on the plaintiff, and he must prove the same by direct testimony. You cannot infer as against the defendant, in this case, that the plaintiff exercised due care and caution in the performance of his duties, so as not to receive the injury sued for, in this case. The undisputed testimony shows that the plaintiff in this case had absolute and entire charge and control of the puffer man, as to the operating of the machinery, and the car attached to the coil of rope, or wire, which knocked the plaintiff off the track and injured him. He has testified, himself, and has proven by other witnesses that the man operating the puffer had no right to move the car or rope or start the puffer, except on signals from him. He tells you that he does not know whether he gave a signal to start the car at the time he was injured or not.
“(2) I further charge you that the danger that the plaintiff was in, in the performance of his duties, was not only entirely under his control, so that he could make the performance of such duty absolutely safe, in so far as the accident in this case was concerned, but that the danger was also an obvious and apparent danger.
“ (3) And I also charge you that this was known to the plaintiff because of the fact that the coil had been off the roller twice before he was injured, and on each time it had*been off on the right-hand side of the track, going out from the shafthouse. And he knew, or ought to have known, from these conditions that the coil was liable to come off the roller again, and that if it did come off, that it must come off on the side of the track that he was walking on at the time he was struck, and that he was not therefore using due care and caution in walking back to the shafthouse on his left-hand side of the coil, when by exercising reasonable care and caution, and with the danger so obvious and apparent, he knew, or ought to have known, if he walked back to the shafthouse on his right-hand side of the coil that he could not be possibly struck with the coil, even if it did come off the roller.
“ (4) And I charge you in this connection that whether or not it was the shortest way for him to get back to the shafthouse by going on his left-hand side of the track and coil or not, is absolutely immaterial in this case. That he cannot be absolved from his carelessness in performing his work simply because he thinks he can do it quicker or easier when at the same time he knew, or must have known, that that was a dangerous way, and that by going a little farther in another manner he could avoid the injury which he received.
“(5) I also charge you that if no signal was given by the plaintiff to the puffer man who operated the car and the puffer, either to start it or stop it, that then under the undisputed testimony the accident was caused by the carelessness of the puffer man in not knowing or waiting for signals from the plaintiff, before he operated the puffer and car, because under the undisputed evidence the puffer man is a co-employé of the plaintiff, and the carelessness of the co-employé estops the plaintiff from recovery.”

By these requests to charge the question of the contributory negligence of the plaintiff is raised. The undisputed testimony shows that the defendant had inaugurated a bell system to be operated by plaintiff in warning the puffer man as to the time when to stop, and when to start the puffer engine, and placed the puffer man exclusively under the control of the plaintiff. These facts were fully known to the plaintiff. This was sufficient to justify the defendant in the claim that the plaintiff was guilty of contributory negligence in directing the starting of the puffer, when he was in a dangerous place on the .track, if he did order it started; and, if he did not signal Erickson to start the puffer, and Erickson started it against the rules of the defendant, then it was the negligence and carelessness of a fellow-servant. But, in addition to this, there were other conditions known to the plaintiff. A few minutes before the injury the cable had come off the idler at least once, if not twice. It had fallen to the right-hand side of the idler looking out from the shafthouse. He had seen it there. He had readjusted it before, and had walked back to the shafthouse on his right-hand side of the track looking toward the shafthouse, where the track was wide and where it was perfectly safe, and where it was impossible to be hit by the cable if it came off the idler. Yet with all that knowledge, when the cable came off the last time, and as he says he found it lying in the same place as before, he readjusts it, and then steps into the only place of danger, to wit, upon the left-hand side of the track-looking toward the shafthouse, and received the injury complained of. In so doing he was guilty of contributory negligence.

As was said by this court in Buckley v. Railroad Co., 119 Mich., at page 586 (78 N. W. 656):

“If this did not constitute negligence, it would be difficult to find a case of negligence. ”

Levy v. Railway Co., 164 Mich. 572 (129 N. W. 683). It is unnecessary to enlarge upon this branch of the case, as it falls within the rule of contributory negligence so often stated by this court. Glover v. Scotten, 82 Mich. 369 (46 N. W. 936); Powers v. Lumber Co., 92 Mich. 533 (52 N. W. 937); Benage v. Railway Co., 102 Mich. 72 (60 N. W. 286); Wight v. Railroad Co., 161 Mich. 216 (126 N. W. 414). Counsel for the plaintiff cite: Shadford v. Railway Co., 121 Mich. 224 (80 N. W. 30); Hewitt v. Lumber Co., 136 Mich. 110 (98 N. W. 992); Butterfield v. Arnold, 131 Mich. 583 (92 N. W. 97); Barschow v. Railway Co., 147 Mich. 226 (110 N. W. 1057), and Sabin v. Leather Co., 157 Mich. 579 (122 N. W. 300), and kindred cases. In our opinion these cases are not in point here. In the instant case the plaintiff had witnessed the movement and operation of the cable when it came off the [idler only a few minutes before, and it is incredible that he did not know that, if it came off again under the same conditions, it would go to the same side and place. In the very nature of things it could go nowhere else, and he must have known it. He knew that it was liable to come off again, and he saw fit to take his chances.

It was error to permit witnesses to testify that in their opinion the other side was as dangerous as where plaintiff was injured. They could only properly testify to facts from which the jury might determine whether the place where the plaintiff was, was safe. Those witnesses were not experts, nor was the subject one requiring special skill or the aid of science. Kelley v. Town of Fond du Lac, 31 Wis. 179. The testimony that the opposite side was as dangerous as the side taken by the plaintiff was opposed to the laws of nature, and a jury ought not to be asked to give any weight to testimony which is contrary to what every person of ordinary intelligence knows to be true. That the cable would, when pulled off the idler by the operation of the puffer engine, be thrown to the place where plaintiff was injured, was a self-evident proposition, and the jury should not have been permitted to speculate upon the subject or find to the contrary. Washburn v. Railroad Co., 59 Wis. 364 (18 N. W. 328). We are of the opinion that upon this record a verdict should have been directed for the defendant upon the ground of the contributory negligence of plaintiff. This renders it unnecessary to discuss the question of the negligence of the defendant.

Some other questions are presented and discussed, but as they are not likely to arise upon another trial, in the light of our holding, we do not discuss them.

For the error pointed out, the judgment of the circuit court is. reversed, and a new trial ordered.

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