author: KUHN, J.

text:
    CITY OF KALAMAZOO v. STANDARD PAPER CO.
    1. Pleading — Joinder op Tort and Assumpsit — Case—Trespass on the Case — Trover—Misjoinder.
    Where' a municipal corporation commenced an action for unlawful tapping of its water mains and unauthorized use of water from the city water supply, setting up in its declaration the ordinance relating to the use of water, so as to establish the existence of a contract relation between the parties, there was no misjoinder of the first three counts that sounded in case, and the remaining counts which were intended to be in trover for the illegal conversion of water, the ordinance prohibiting consumers of water from taking water without metering and paying for it.

      2. Trial — Exhibits—Jury.
    While .it is improper practice to allow the jury to take to the jury room, when they retire, memoranda or exhibits, without the consent of opposing counsel, if the appellant was not prejudiced by such proceeding it is not reversible error, and where the plaintiff introduced in evidence extended computations showing the amount of water claimed to have been unlawfully diverted from the city pipes, extending over a period of years, and the jury was allowed to have these computations, no reversible error was committed, their verdict being much less than the totals claimed.
    3. Witnesses — Cross-Examination—Statutes.
    Where plaintiff called for cross-examination the agents and servants of defendant, and they gave testimony under Act No. 307, Pub. Acts 1909 (5 How. Stat. [2d Ed.] §12865), the court committed no error in charging the jury that the plaintiff was not bound by their answers and might accept as true such part or parts of their testimony as it might elect, further cautioning the jury that they must consider all the testimony in the case and making it clear to the jury that such testimony as was favorable to defendant was not eliminated but was to be weighed or considered with the other testimony.
    4. Municipal Corporations — Water Supply — Taking Illegally.
    In an action by a city against a corporation consumer of water, which had tapped the mains and diverted water around the meter without paying for it, evidence tending to show that sham or wrongful devices were installed for the purpose of taking defendant’s water without metering it, and to conceal the true state of facts, justified the charge of the trial court that if defendant secured water without charge by this means, it was liable even if its officers, directors, and stockholders did not know of the wrongful use.
    5. Same — Damages—Evidence—Uncertainty.
    Where it was uncertain how much water had been illegally taken from the municipal mains, and the plaintiff claimed the value of the whole amount which its evidence showed could have been taken or converted, the want of certainty in the element of damages was attributable to the defendant’s fault, and although defendant claimed that such an amount could not have been diverted, the defendant corporation was liable for the full value of the property at the time of conversion, with interest to the date of judgment.
    ' 6. Same — Conversion—Excessive Amount oe Damages.
    Damages amounting to $15,840 7ie7d, to be warranted by ■ plaintiff’s evidence.
    7. Trial — Argument—Appeal and Error.
    Arguments called out by remarks of appellant’s attorney, and objected to by him, were not prejudicial error when they were made in response thereto and were cured by the instructions.
    Error to Kalamazoo; Knappen, J.
    Submitted April 20, 1914.
    (Docket No. 22.)
    Decided October 2, 1914.
    Case and trover by the city of Kalamazoo against the Standard Paper Company for the conversion of water from the pipes of plaintiff. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harry C. Howard, for appellant.

      Marvin J. Sehaberg (John W. Adams, of counsel), for appellee.
   KUHN, J.

This is an action brought by the city of Kalamazoo against the Standard Paper Company, to recover the value of water which plaintiff alleges was converted by the defendant during the period from November 17, 1906, to November 17, 1910.

The defendant company is a manufacturer of paper, and in the process of manufacture uses a large amount of water. It had constructed an aqueduct, by means of which it could bring water from the Kalamazoo river to reservoirs near its mill. In 1906 an automatic sprinkling device was installed by the defendant, ostensibly with two sources of supply; one being a pressure pump pumping directly from the defendant’s reservoir, the other being the'city water brought to the sprinkler system by a six-inch line connected with the city mains. This is a customary arrangement to insure a supply from the factory’s own source and a supply from the outside in case of injury to the private supply during a fire. The city water was furnished by direct pressure from the city waterworks, and the defendant’s pressure pump and the city waterworks were connected on the same line. This arrangement is shown by the defendant’s Exhibit 4, here set forth.

At this time there was no meter on the city’s line to this sprinkler system, nor on the lines to sprinklers in other factories. There was a clapper valve in the line designed to keep the water pumped by the pressure pump from entering the city mains when the private pressure exceeded the city pressure, and only to allow the city water to pass into the sprinkler system when the private pressure fell below the city pressure.

During the aforementioned period, there were three water service lines to the defendant’s property. One was a three-fourths-inch metered pipe furnishing water to the office. Another was the line to the sprinklers, just described. The third was a 4-inch main, with a 2%-inch metered connection running to one of the two overhead tanks which supplied the filtered water for the manufacturing process. The city installed a sealed 2-inch by-pass around this meter, to be used only when the meter should be taken out for repairs.

It is charged by the plaintiff, and support thereof is found in the evidence, that the defendant opened the 2-inch by-pass around the meter, tapped the sprinkler system in numerous places, made connections on the three-fourths-inch pipe ahead of the meter, and unlawfully took and used city water from these three sources without its having been registered by meters and without paying for it, in violation of ordinance No. 197 of the city of Kalamazoo, which provided rules and regulations under which water was to be used. It is charged, and there was evidence to support it; that' there were 27 taps put on the sprinkler system and water taken through them under orders from the defendant’s superintendent and with the approval of the defendant’s manager.

In August, 1910, computations having been made which showed that less than 50 per cent, of the water delivered into the mains by the city waterworks was being paid for, ordinance No. 305 was passed by the city council, requiring meters on all water lines, save as therein provided. Accordingly, on November 17, 1910, a Hersey detector meter was installed on the defendant’s sprinkler line, and a 28-hour test revealed that the defendant was receiving a much larger amount of water than it was paying for, and that the conditions during this 28-hour period were no different than they had been before that time. Immediately thereafter the fire pump was dismantled and repaired, and the taps on the sprinkler system disconnected. An investigation was made by city officials which revealed that the pressure pump gauge showed a pressure equal to the city pressure. But, when the city main was suddenly cut off, the gauge on the defendant’s pressure pump dropped from 68 pounds to 5 pounds. A further investigation by a council committee followed, in which it was found that the defendant was taking city water in the three ways hereinbefore described. It is the plaintiff’s claim, and evidence was presented tending to show, that the defendant’s pressure pump was a mere blind, and that it never did maintain a pressure equal to or greater than the city pressure.

On the other hand, it was claimed by the defendant that the taps had been put on the sprinkler system by its mechanics for their own convenience, and without the knowledge of the defendant; that its pump maintained a pressure greater than the city pressure up to a short time prior to the suit; and that up to said time no city water was drawn from the taps. It was also claimed by the defendant that the water was taken from the 2-inch by-pass on the 2%-inch line openly, with the constructive knowledge of the plaintiff’s inspector; also that, at the time the Hersey meter was read, the pressure pump was down for repairs, and there was a large leak in the basement, causing a large temporary waste of water; that the flow during the 28 hours during which the test was being made was unusual, and therefore not a fair basis on which to estimate the amount used in four years.

The evidence in support of .these claims being submitted to a jury, a verdict was found for the plaintiff in the sum of $15,840.76, and judgment was entered thereon by the court. Defendant’s motion for a new trial was overruled. The cause being removed here by writ of error, the assignments of error are grouped by counsel for convenience as follows:

“(1) Errors in the ruling of the court during the trial and errors in rulings on misjoinder of assumpsit and tort counts.
“(2) The error committed by the court in permitting a statement or account, not an exhibit in the case, prepared by plaintiff’s counsel, of plaintiff’s claim, to be taken to the jury room.
“(3) Improper arguments of counsel.
“ (4) Errors in the court’s charge and refusals to charge.
“(5) Excessive verdict.”

The declaration of the plaintiff contains six counts. It is appellant’s claim that the first four counts are all in assumpsit, and the last two are in tort, and that these two actions cannot be joined, and the plaintiff must elect. The plaintiff does not dispute the latter contention, but says that the first three counts are purely counts in trespass on the case, and the last three are in trover. The claim that the counts are in assumpsit is urged because of the fact that ordinance No. 197 of the city of Kalamazoo, with relation to the waterworks, is set forth in these counts, and that in effect a contract relation between the parties is alleged. The plaintiffs claim is that the defendant, without any regard for the ordinance, took water wrongfully and unlawfully. It appears, from a reading of these counts, that the ordinance is set forth for the purpose of showing that the conduct of the defendant in this case was unlawful, unauthorized, wrongful, and in violation of the law of the city of Kalamazoo; which makes these counts sound in tort instead of in contract. In the case of Dillon v. Craig, 168 Mich. 216 (132 N. W. 1041), relied upon by the defendant, the declaration showed a contract obligation, and there was no statute or ordinance which made the violation of the contract tortious. There is no merit to appellant’s contention as to a misjoinder of counts.

During the final argument of plaintiff’s counsel, in the discussion of the question of damages, two typewritten computations which had been prepared were handed to the jury, showing how the plaintiff estimated its damages. The statements were as follows:

First Statement.

Heeset Meteb.

27,144 cubic feet in 24 hours.

27,144x365 days equals 9,907,560 cubic feet per year.

9,907,560x4 years equals 39,630,230 cubic feet.

Water rates are:

$1.00 for each 1,000 cubic feet up to 3,000.

.80 for each 1,000 cubic feet from 3,000 to 10,000.

.60 for eacL 1,000 cubic feet over 10,000.

3.000 cubic feet at $1.00 equals............... $3 00

7.000 cubic feet at .80 equals............... 5 60

39,620,230 cubic feet at .60 equals............. 23,772 14

$23,780 74

Take out $444.93 paid by defendant........... 444 93

.$23,335 81

Add interest at 5 per cent, from November 17,

1910,1 year, 2 months, and 25 days, equals.. 1,442 25

$24,778 06

Second Statement.

May 17, 1909, got third machine working.

May 17, 1909, to November 17, 1910, equals 18 months.

That leaves out of the 4 years, 30 months, defendant had two machines.

With 3 machines defendant used 1,500,000 gallons.

With 2 machines defendant used 1,000,000 gallons.

27,144 cubic feet for 24 hours equals 9,907,560 cubic feet per year, or 14,861,340 cubic feet for 18 months, using in the mill 1,500,000 gallons per day.

2 machines used 1,000,000 cubic feet in 24 hours, or two-thirds as much water as the 3 machines.

Two-thirds of 9,907,560 equals 6,605,040 per year.

30 months equals 2% years.

6,605,040x2% equals 16,512,600.

Add together what 3 machines used in 18 months and what 2 machines used in 30 months:

14,861,340 plus 16,512,600 equals 31,373,940 cubic feet.

3.000 cubic feet at $1.00 equals............... $3 00

7.000 cubic feet at .80 equals.........'...... 5 60

3,136,940 cubic feet at .60 equals............. 18,818 36

$18,826 96

Take out $444.93 paid by defendant.......... 444 93

$18,382 02

Interest at 5 per cent, from November 17, 1910, 1 year, 2 months, 25 days.................. 1,136 03

$19,518 06

These statements were read in open court in the presence of counsel. An examination of these statements shows that they are nothing more or less than computations in arithmetic, based on facts claimed to have been proved by the plaintiff in the case. When the jury was about to retire, plaintiff’s counsel called the court’s attention to the fact that some of the statements were still in the hands of the jury, and said with reference thereto:

“It is simply a computation, as claimed by the plaintiff, as to the amount of damages along the two lines mapped out on that paper. We claim it is for the consideration of the jury the same as any other fact in the case, not binding, but that they may consider it in arriving at their verdict. We have no objection to the jury taking that to their jury room, and, if the other side have some figures they wish to give to the jury, we have no objection.”

It is claimed that these statements were never given to defendant’s counsel for examination. The record does not show that copies were requested, and counsel must have heard the contents thereof as they were read to the stenographer. Counsel was unquestionably entitled to copies, and undoubtedly such copies would have been furnished, if a request had been made.

It is urged that allowing the jury to take the memoranda to the jury room was error, under the decision of this court in Harroun v. Railway Co., 68 Mich. 208 (35 N. W. 914). It seems to be clear that, according to the rule announced in that case, the practice followed in the instant case is not to be commended, and that it was improper for the court to allow these memoranda to be taken into the jury room without the consent of the opposing counsel. We are of the opinion, however, that the defendant was not prejudiced thereby, as the verdict of the jury was in a sum considerably less than the amounts claimed in the computations.

In his charge the court gave the following:

“(5) I instruct you that' the plaintiff has called the following witnesses: Alexander Clark, William Wilhelm, Fred Phetteplace, Jason Spade, Jeremiah Linehan, Frank Handy, William Hewitt, Walter-Jones, Perry Norman, Warren Johnson, William Gaylor, Ernest Shepard, and George Harvey, under Act No. 307 of the Public Acts of Michigan for the year 1909, which provides as follows:
“ ‘An act to authorize parties litigant, when they call as witnesses in their behalf the opposite party, employee, or agent of said party, to cross-examine such witnesses, and providing that they shall not he hound by their answers.
‘The people of the State of Michigan enact:
“ ‘Section 1. Hereafter in any suit or proceeding in any court of law or equity in this State, either party, if he shall call as a witness in his behalf the opposite party, employee or agent of said opposite party, or any person who, at the time of the happening of the transaction out of which such suit or proceeding grew, was an employee or agent of the opposite party, shall have the right to cross-examine such witness the same as if he were called by the opposite party; and the answers of such witness shall not interfere with the right of such party to introduce evidence upon any issue involved in such suit or proceeding, and that the party so calling and examining such witness shall not he hound to accept such answers as true.’
“That is the end of section 1. And in so calling said witnesses, -or any of them, the plaintiff is not bound by the answers given by said witness or witnesses, nor is said plaintiff bound to accept the answer or answers of any one or ones of said witnesses as being true answers, and the plaintiff may accept such part or parts of the answers of any one or ones of said witnesses as the plaintiff elects so to accept, and, so far as the plaintiff is concerned, such of said answers, if any, which the plaintiff does accept as being true, are for the consideration of the jury the same as any other facts or circumstances in the case.”

With reference thereto, counsel for appellant says in his brief:

“While the plaintiff is not bound to accept the answers as true, if the answers stand uncontroverted, they stand as facts in the case, and just exactly with the same force and effect as if they had been sworn to by any other witness in the case, admitting, of course, the jury’s right to consider the credibility of such witnesses, but the judge said that the plaintiff need not accept anything which was adverse to it, and that they were only to consider such things as were favorable to the plaintiff. In other words, only consider such things as the plaintiff did accept.”

It is also claimed that by this instruction the trial court swept aside and eliminated from the case some of the most valuable testimony of the defendant as to the capacity of the pressure pump, as several witnesses called under this statute had given testimony with reference thereto.

' It is true that this instruction of the court, taken by itself, in explaining to the jury the effect of the statute, was somewhat incomplete and confusing. However, the court did not say that any testimony that was favorable to the defendant, and which plaintiff did not accept, was not for the consideration of the jury, and in this connection the following instruction of the court given to the jury should be considered:

“(4) And I further instruct you that any statements or testimony submitted by the defendant, or any employee or former employees of the defendant called by the plaintiff as to the condition of this pump during the entire four years mentioned in the plaintiff’s declaration, is not necessarily to be taken as true, but should be considered by you, and you are to determine the condition of this pump during said period and the question of whether or not it did actually maintain the pressure claimed by the defendant by all of the facts and circumstances and testimony left in this case for your consideration.”

In our opinion, this instruction, taken in connection with the other, made it clear to the jury that they must consider all the testimony in the case, and there was not eliminated from their consideration such testimony favorable to the defendant, given by witnesses called under the statute, which had not been accepted by the plaintiff. See Jones v. Railroad Co., 168 Mich. 14 (133 N. W. 993); Johnson v. Carbide Co., 169 Mich. 659 (135 N. W. 1069).

The court charged:

“If you believe that these taps or connections did exist ahead of the meter, and that the water passing through these pipes was not registered by the meter, then I instruct you, gentlemen' of the jury, that any water taken through such pipes by the defendant company was taken wrongfully and unlawfully, and your verdict should be for the plaintiff, the city of Kalamazoo, in the amount of the value of the water so wrongfully taken, to be determined by you, as I shall hereafter instruct you, even if the defendant’s officers, directors, and stockholders, any or all of them, did not know water was being so used by the defendant.”

And it is contended that no verdict should be. rendered against the company unless the fact of the wrongful and unlawful taking of the water is brought home to some officer of the corporation. In this case, there being evidence to warrant the jury in finding that the defendant established the sham pressure pump and the improper openings on the sprinkler system, it is not unreasonable to assume that the wrongful means were installed to take the plaintiff’s water without metering and paying for it. By so doing, the defendant invited its employes to use the unlawful means for the unlawful purpose. As is said by counsel in his brief:

“This is a case of the employee using the means furnished by the employer to accomplish an unlawful purpose in furthering the master’s interests, and out of which nobody but the master received the benefit.”

Cooley, in his work on Torts (3d Ed.), vol. 2, p. 1017, says:

“The master is liable for the acts of his servant, not only when, they are directed by him, but also when the scope of his employment or trust is such that he has been left at liberty to do, while pursuing or attempting to discharge it, the injurious act complained of. It is not merely for the wrongful acts he was directed to. do, but the wrongful acts he was suffered to do, that the master must respond.’-’

See, also, 31 Cyc. pp. 1582-1585.

There was no error in the charge .as given.

If entitled to damages (and a reading of this record is convincing that the jury were warranted in finding that unmetered water was taken by the defendant’s servants and employees for the use and benefit of the defendant, for which the defendant did not pay), the damages should be the full value of the property at the time of conversion, together with interest on that value from that .time. It is clearly impossible for the plaintiff to prove, with absolute certainty, the amount of water the defendant converted, and this want of certainty is properly attributable to the fault of the defendant. The claims made by the plaintiff were for the highest amount of wafer which could possibly have been used by the defendant by means of the unlawful taps and by-passes. The defendant sought to reduce this by attempting to show that such an amount of water could not have been and was not taken from the city’s mains as alleged. Taking the water in the way it did, the defendant must bear the risk of uncertainty thus produced. Allison v. Chandler, 11 Mich. 542; Gilbert v. Kennedy, 22 Mich. 117; Krumenaker v. Dougherty, 74 App. Div. (N. Y.) 452 (77 N. Y. Supp. 467).

We are satisfied that a large amount of unmetered water was taken by the defendant, and, while the amount taken must be necessarily an approximation based on the test made by the Hersey meter and all the other facts and circumstances shown in the case, we are not convinced that the amount found by the jury is excessive.

During the closing argument of plaintiff’s counsel an exception was taken by defendant’s counsel, as follows:

“Mr. Irish: I will take an exception to counsel talking about stealing water.
“The Court: I think the argument may proceed that has been indulged in by the other side as a matter of law. I will charge the jury about its weight.
“Mr. Irish: An exception.”

The trial court, in charging the jury with reference to this, said:

“The jury are instructed that, under the declaration as it now stands, they are not to consider the question as to whether the Standard Paper Company or any of its agents have been guilty of stealing water. . There can be no stealing or larceny of the water, unless the elements of larceny or stealing are charged in the declaration and proven in this case. No larceny is charged or proven in this case. I will not say proven.”

An examination of the excerpts from the arguments of defendant’s attorneys shows that the statement of the trial judge is justified, and it appears that language with reference to the stealing of water had been used by the attorneys for the defense in their argument. Although the question of the stealing of the water was not in the case, having been made prominent and commented upon by defendant’s attorneys in their arguments, there was no prejudicial error in plaintiff’s attorney’s using the same language in his reply. People v. Swift, 172 Mich. 473 (138 N. W. 662). We are not satisfied that the argument contributed to the result. Houser v. Carmody, 173 Mich. 121 (139 N. W. 9).

Criticism is also made that the trial judge unduly emphasized plaintiff’s claim in his charge, but a careful reading of the entire charge is satisfying that the questions in issue were fairly submitted to the jury.

Finding no prejudicial error in the record, and being convinced that the verdict finds support in the evidence in the case, the judgment is affirmed.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    BROWN v. HADWIN.
    1. False Imprisonment — Process — Criminal Law — Warrant— Intoxicating Liquors.
    Although a warrant for selling intoxicating liquor in a county which has prohibited the traffic should be based on a complaint that states the name of the person or persons to whom the unlawful sales were made, and though such complaint is insufficient, upon direct attack, if the name of the purchaser is not stated, the process may be sufficient to protect an officer who arrests the offender, in an action of false imprisonment and malicious prosecution.

    2. Same — Sheriff—Intoxicating Liquors — Arrest.
    To protect an officer in making an arrest, the process must be fair upon its face; that is, it must apparently be lawfully issued and such that the officer might properly serve it; not necessarily that it appear to be perfectly regular and in most approved form. It must appear that the process proceeds from a court which had authority in law to issue process of that nature, that it is legal in form, and on its face contains nothing to apprise the officer that it was issued without authority.

      S. Same.
    Where the complaint charged an offense which the justice could not try, the examination being held before him and the names of the persons to whom liquor was unlawfully furnished being liable to be disclosed so that the omission could be corrected in the information, the process was not absolutely void, and sufficiently protected the officer who arrested plaintiff.
    4. Same — Justices of the Peace — Justification.
    Failure to sustain a complaint made on the information of the complaining witness, a sheriff, by introducing before the justice who entertained it the testimony of other witnesses who had knowledge of the fact's, is fatal to the jurisdiction of the justice.
    5. Same — Warrant.
    A warrant reciting that witnesses had been examined before the justice of the peace who issued it, on its face justified the issuance of a warrant, and conferred jurisdiction even if the testimony of corroborating witnesses was not reduced to writing: the officer is not required to look behind his process or to examine the complaint or other preliminary process.
    d. Same — Issues.
    The trial court did not err in refusing to submit to the jury the issue whether the sheriff had in his possession the warrant for defendant’s arrest at the time he took the latter into custody, where the prosecuting attorney and sheriff both testified that the process was in the sheriff’s hands and defendant could not swear positively to the contrary.
    Error to Iosco; Connine, J.
    Submitted April 28, 1914.
    (Docket No. 155.)
    Decided October 2, 1914.
    Case by Crosby Brown against George H. Hadwin for false imprisonment. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Edwin Rawden and C. H. W. Snyder, for appellant.

      Albert Wl Black, for appellee.

       For the liability of an officer making arrest, see notes in 51 L. R. A. 193, and 42 L. R. A. (N. S.) 69.

   Kuhn, J.

This action was originally begun for malicious prosecution and false imprisonment. The count for malicious prosecution was withdrawn by the plaintiff at the opening of the trial of the case, which left the action one for false imprisonment alone. The plaintiff, who resides in Saginaw, was arrested at Tawas City, to which place he had been brought by a subpoena commanding him to appear before William B. Kelly, one of the justices of the peace in and for Iosco county, to testify in a criminal case. The complaint and warrant, drawn by the prosecuting attorney, charge him with a violation of the local option law. He was committed to jail, and was discharged on the day set for his examination, on request of the prosecuting attorney, without any examination being held. The complaint, which was made by the defendant herein, and the warrant show that the complaint is made on information and belief, and no one with any knowledge of the facts was sworn in support thereof before the warrant was issued. At the close of the proofs a verdict was directed for the defendant by the trial court. There are five assignments of error, which relate to two questions:

First, those relating to the court’s ruling that the warrant and commitment issued protected the officer; second, that the court erred in not submitting to the 'jury the question of fact as to whether or not the sheriff had a warrant when the arrest was made.

It is the contention of the plaintiff and appellant that the warrant was absolutely void on its face, and therefore no protection to the defendant when he served it on the plaintiff, and did not protect him in making the arrest and keeping him in custody, because the commitment follows the warrant and contains the same claimed defects as the warrant. In this connection the first proposition urged is that the offense was not properly stated in the complaint, warrant, and commitment. The complaint charges the plaintiff with having at a certain time and place sold, furnished, giyen away, and delivered a certain quantity of malt, brewed, fermented, and intoxicating liquor, to wit, whisky, and otherwise charges a violation of the local-option law, which it is conceded was in effect at the time in Iosco county. It does not, however, state the name of the person or persons to whom it is charged the plaintiff sold, furnished, and delivered the liquor, and the failure to allege this, it is claimed, makes the complaint and subsequent proceedings void; and the cases of People v. Minnock, 52 Mich. 628 (18 N. W. 390), People v. Heffron, 53 Mich. 527 (19 N. W. 170), and People v. Keefer, 97 Mich. 15 (56 N. W. 105), are relied upon. The general rule as to what constitutes a sufficient warrant so as to protect the officer who serves it is stated in 2 Cooley on Torts (3d Ed.), p. 883, as follows:

“The process that shall protect an officer must, to use the customary legal expression, be fair on its face. By this is not meant that it shall appear to be perfectly regular, and in all respects in accord with proper practice, and after the most approved form; but what is intended is that it shall apparently be process lawfully issued and such as the officer might lawfully serve. More precisely, that process may be said to be fair on its face which proceeds from a court, magistrate, or body having authority of law to issue process of that nature and which is legal in form, and on its face contains nothing to notify or fairly apprise the officer that it is issued without authority. When such appears to be the process, the officer is protected in making service, and he is not concerned with any illegalities that may exist back of it.”

In the cases cited the attack on the proceedings was a direct one, and not made in a collateral proceeding, and it is true that in such a direct attack a warrant might be held invalid and still be sufficient protection to the officer and parties for any arrest made .thereunder. Wheaton v. Beecher, 49 Mich. 348 (13 N. W. 769). . To protect the officer it must appear, as stated in Cooley on Torts, sapra, that the process proceeds from a court having authority of law to issue process of that nature, that it is legal in form, and on its face contains nothing to notify or fairly apprise the officer that it is issued without authority. In the instant case a proper rule of pleading had been violated, as the complaint and warrant were not specific enough to give the respondent proper notice, and on motion to quash in a direct attack the complaint would necessarily have been held insufficient as a pleading. The proceeding was not one triable by the justice, and the respondent was entitled to an examination. In this examination the proofs would have disclosed the name of the party to whom it was claimed the liquor was furnished or sold. The respondent could not plead guilty until an information had been filed against him in the circuit court, and in such information the name of the person to whom the liquor was sold might have been stated, as the information is based on the preliminary proceedings, and the technical defect in the complaint thus remedied. People v. Pichette, 111 Mich. 461 (69 N. W. 739); People v. Stockwell, 135 Mich. 341 (97 N. W. 765).

There is no question that the process in the instant case issued from a court having authority of law to issue such process, and that the process was legal in form, and we are of the opinion that the failure to allege to whom the liquor was furnished or sold is not such a defect as to notify or fairly apprise the officer that it was issued without authority. As was said by Justice Marston in Wheaton v. Beecher, 49 Mich., at pages 350, 351 (13 N. W. 769):

“An officer to whom a criminal warrant is delivered by a magistrate may be indicted for refusing to serve or return the same. 1 Bish. Crim. Law, § 350. If no cause or an insufficient cause appear therein and the person accused resists and kills the officer, then, according to the extent of the authority of the officer his death may be murder, manslaughter, or perhaps justifiable homicide. Hoye v. Bush, 1 M. & G. 775, cited in Drennan v. People, 10 Mich. 183.
“The officer is not bound to look behind a regular warrant coming, from a proper jurisdiction.
“In many .cases it must be exceedingly difficult for the officer or his advisers to determine whether a warrant is or is not defective upon its face, and in view of the peculiar position in which the officer is placed, in all such cases he cannot be held liable in a civil action for damages, for making the arrest.”

See, also, Gardner v. Couch, 137 Mich. 358 (100 N. W. 673, 101 N. W. 802, 109 Am. St. Rep. 684); Leger v. Warren, 62 Ohio St. 500 (57 N. E. 506, 51 L. R. A. 193, and note, 78 Am. St. Rep. 738); City of Lawton v. Harkins, 34 Okl. 545 (126 Pac. 727, 42 L. R. A. [N. S.] 69, and note).

The complaint shows upon its face that it was made on the information and belief of the complaining witness, the defendant herein. It appears affirmatively from his testimony that no other- witnesses were sworn before the warrant was issued. The failure to support the complaint by the examination of other witnesses was fatal to the jurisdiction of the justice to issue the warrant. In People v. Heffron, 53 Mich. 527, 529, 530 (19 N. W. 170), where the complaint was made on information and belief, the following is stated:

“This affidavit, within the repeated rulings of this court, as well as the most elementary principles of criminal law, is entirely insufficient to confer any jurisdiction upon the justice to issue a warrant for the arrest of the respondent. Bish. Cr. Pro. §§ 716-719; Commonwealth v. Lottery Tickets, 5 Cush. [Mass.] 369; Brown v. Kelley, 20 Mich. 27; People v. Wayne Circuit Judge, 36 Mich. 334; Swart v. Kimball, 43 Mich. 451 [5 N. W. 635]. The'complaint must set up the facts constituting the offense on the knowledge of the person making the complaint, and if he does not know them, other witnesses must be examined who do know them; and no person can be arrested on the mere belief of the person making the complaint. The liberty of the citizen is not held upon so slender a tenure as that. Badger v. Reade, 39 Mich. 774; People v. Recorder of Albany, 6 Hill [N. Y.], 429; Proctor v. Prout, 17 Mich. 473.”

When the warrant recites that an examination has been had of witnesses, the court will presume that sufficient appeared to justify the issuance of a warrant and confer jurisdiction, even if the testimony has not been reduced to writing. People v. Bechtel, 80 Mich. 623 (45 N. W. 582); Curnow v. Kessler, 110 Mich. 10 (67 N. W. 982). In the instant case no examination is claimed by the justice, no recital of it is made in the warrant, and the contrary appears affirmatively from the evidence of the defendant, who made the complaint that no witnesses were sworn at the time the warrant was issued. The warrant issued was nevertheless fair on its face, and this proceeding against the process server is an action of false imprisonment alone. In such an action this court has not required the officer to look behind the process. In serving the process he has a right to rely on the warrant, and is not compelled to examine the complaint or other preliminary proceedings. Wheaton v. Beecher, supra.

We are of opinion that the trial judge properly refused to submit to the jury the question as to whether or not the defendant had the warrant at the time the arrest was made. The prosecuting attorney, who prepared the complaint and warrant prior to the arrest of the plaintiff, testified that he saw the paper, meaning the warrant, in the hands of the sheriff at the time the arrest was made. The defendant testified positively that he had the warrant at the time. Against this there was no positive or direct testimony, and the plaintiff on cross-examination stated:

“Q. Can you now positively swear under oath that he did not have a paper in his hands at the time he arrested you?
“A. No; I could not positively swear that he did not.
“Q. So that, as a matter of truth,- you are not certain now as to whether he had a warrant in his hand or not?
“A. No; he might have had. I did not take the time to look at his hands.”

There was no evidence of such a nature as to justify submitting this question to the jury.

Judgment is affirmed.

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


author: Brooke, J.

text:
    WATERMAN-WATERBURY CO. v. SCHOOL DISTRICT NO. 2 OF THE TOWNSHIP OF WYOMING.
    1. Evidence — Similar Conditions — Contracts — Sales — Warranty — Breach of Contract.
    On the trial of an issue of breach of -warranty that a furnace installed by plaintiff would properly heat a schoolhouse in the coldest weather, plaintiff was entitled to introduce testimony tending to prove that other similar heating plants heated the buildings in which they were placed satisfactorily if they were properly operated.'

      2. Same — Affirmative Decree — Burden of Proof — Warranty of Fitness.
    The burden rests upon a defendant, in an action for the price of a furnace, to establish that the article failed to conform to the guaranty of plaintiff, who warranted that it would give satisfactory results, after it had been installed and accepted under the contract.
    Error to Kent; McDonald, J.
    Submitted June 3, 1914.
    (Docket No. 8.)
    Decided October 2, 1914.
    Assumpsit by the Waterman-Waterbury Company against School District No. 2 of the, township of Wyoming for the price of a furnace. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Cummins, Nichols & Rhoads, for appellant.

      Louis T. Herman, for appellee.
   Brooke, J.

The parties entered into the following contract:

“The Waterman-Waterbury Company,
“Lansing, Michigan.
“Gentlemen:
“Please install in our schoolhouse, in district No. 2, township of Wyoming, county Kent, State of Michigan, one Waterbury heating and ventilating system, style C, size 24, for which on January 10, 1913, we agree to pay the sum of $120 or issue a school warrant on January 10, 1913, drawing 6 per cent, interest.
“We agree to transfer the Waterbury system from the freight depot to the schoolhouse, to furnish a man to assist the regular setter in installing the Waterbury system, and to see that the doors, windows, ceilings, etc., are reasonably tight, when such repairs are found necessary to the proper heating and ventilating of the schoolroom.
“The_ Waterman-Waterbury Company guarantee that this system will be constructed of first-class material, the same as described in the catalog, and manufactured in a careful, workmanlike manner free from defective material.
“The Waterman system is further guaranteed, with proper care in operation, to heat the schoolroom to 70 degrees during the coldest weather and to provide good ventilation during school hours.
“Zack Van Dam, Director.
“Peter Kelder, Moderator.
“Henry Deker, Treasurer.
“Date May 27, 1912.
“Given at meeting of school board.”

Under this contract the plaintiff installed a heater in the schoolhouse of defendant, being assisted in the installation by Henry Deker, defendant’s treasurer. On July 31st, after installation, the job was accepted as follows:

“Folio No. 1097. Co., Kent, Twp., Wyoming. Dist. No. 2. Director, Zack Van Dam. Address, Grand Rapids, No. 8 Tel. Treasurer, Henry Deker. Address, Grand Rapids, No. 8 Tel. Moderator, Peter Kelder. Address, Grand Rapids, No. 8 Tel. Director lives !/4 mile east of schoolhouse. Location of schoolhouse. Take Holland interurban to Wyoming Park, then II/2 miles from station. On diagram show location of chimney, doors, teacher’s desk, plant and wall through which intake enters. Construction frame. Shipped to Zack Van Dam. Sta., Grand Rapids, via.— Style C. Size 24. Was anything missing? Remarks: Building to be repaired and storm porch put on.
“The workmanship on this job is satisfactory to me.
“Henry Deker, Treasurer.
“July 31, 1912.
“E. L. Griffith, Setter.”

Thereafter, during the winter of 1912-13, the heating plant was used to some extent by the defendant. Under a claim that it did not operate satisfactorily, the defendant refused to pay therefor, and the plaintiff thereupon brought suit. Defendant filed a plea of the general issue, and gave notice thereunder that defendant would seek to recoup damages against plaintiff for a breach of the warranty contained in the contract.in the sum of $300; the balance over and above the claim of the plaintiff to be certified in favor of defendant. Under these pleadings, the defendant recovered a verdict against plaintiff of $75. Judgment having been entered thereon, plaintiff reviews the case in this court by writ of error, raising two questions only.

The first question is covered by assignments of error numbered 1, 2, 3, and 4, and relates to the ruling of the circuit court to the effect that plaintiff could not show that other apparatus, similar in character to the one which plaintiff had sold defendant, when properly operated, satisfactorily heated the buildings in which they were installed. Bearing in mind that it was the contention of the defendant that, though properly operated in accordance with the instructions of the plaintiff, the heater would not heat the defendant’s schoolhouse in accordance with the terms of the guaranty, and that the plaintiff claimed that any failure of the heater to give the requisite service was attributable solely to a failure on the part of the defendant to properly operate the same, we are of opinion that this testimony was admissible. Avery v. Burrall, 118 Mich. 672 (77 N. W. 272); 17 Cyc. p. 289.

The second point raised by the plaintiff is that the court erred in instructing the jury as to the burden of proof. Upon this question the plaintiff submitted the following request:

“Gentlemen of the Jury: On the question whether or not the express warranty contained in the contract has been broken, on this branch of the case the burden of proof is upon the defendant. The defendant must prove, by preponderance of evidence, that the plaintiff has broken its warranty, and that the defendant has suffered damages thereby. If you find, considering all the evidence that has been introduced on this part of the case, that the defendant has failed to establish, by a preponderance of the proof, that the plaintiff has broken its warranty, then you will find for the plaintiff the amount of its damages which would be the purchase price of the furnace. Now this involves proof of these propositions, which are included in the condition of the warranty:
“First. Whether the material and workmanship used in the construction of this heating plant were of the best of their respective kinds, and that the installation was performed in a workmanlike manner.
“Second. Whether the apparatus, as a whole, was capable of warming the schoolroom to a temperature which the guaranty provided when the proper fuel was used and the furnace was properly managed.
“Now, if neither one of these propositions has been established by a preponderance of evidence, you should consider that the defendant has failed to establish its contention upon this branch of the case, and you should find for the plaintiff the amount that is due it under the contract, the purchase price of the furnace.”

The court refused to give this request, but instead charged the jury as follows:

“Many of the facts are not in dispute. The contract between the parties is in writing, and its terms and provisions are therefore not in dispute. It is not disputed that the plaintiff installed the Waterbury heating and ventilating system of the style and size mentioned in the contract. It is not disputed that the furnace was constructed of first-class material, as required by the contract. The claim in dispute is as to the efficiency of the system to maintain in the coldest weather, with proper care in operation, a temperature of 70 degrees. Under its contract the plaintiff was required to install a heater that would heat the schoolhouse to 70 degrees during the coldest weather, provided proper care was used in its operation. Now the plaintiff claims that it has installed a furnace of such efficiency; the defendant says it has not. You will determine from the evidence what the facts are. Did it maintain a temperature of 70 degrees? Was proper care used in the operation of the furnace? If the furnace, properly operated, would not heat the schoolroom to 70 degrees during the coldest weather, and when I use the term 70 degrees, it is used as understood and explained to you by counsel. Substantially 70 degrees is a proper heat, proper temperature for a schoolroom, and that was what the parties contemplated. If the furnace, properly operated, would not heat the schoolroom to 70 degrees during the coldest weather, then it was not such a furnace as the plaintiff contracted to furnish, and the plaintiff would not be entitled to recover the purchase price, under the circumstances of this case. If, on the other hand, the furnace, properly operated, would maintain a temperature of 70 degrees during the coldest weather, then the plaintiff would be entitled to recover the purchase price which was fixed by the contract at $120. (So, before the plaintiff is entitled to recover in this case, it must convince your minds, by a fair preponderance of the evidence, that it complied with its contract by furnishing a furnace that would, if properly operated, maintain a temperature of 70 degrees in the coldest weather.) If you find that the plaintiff did furnish such a furnace, your verdict should be for the plaintiff in the sum of $120 and interest. If you find that it did not furnish such a furnace, your verdict should be no cause of action, unless you also find that the defendant has suffered damages by reason of the plaintiff’s failure to comply with its contract, in which case you will render a verdict for such damages as the evidence shows it has suffered. These damages, the defendant claims, amount to $75. The plaintiff claims, if you find for the defendant damages, such damages would not exceed $19.59. On this question of damages claimed by the defendant, the burden of proof is upon the defendant to show its damages by a fair preponderance of the evidence.”

In a case like the present, where the article contracted for was delivered by the plaintiff and accepted by the defendant as in accordance with the contract and warranty, and the defendant relies upon an affirmative defense, it is clear that the burden of proof rests upon the defendant to establish the defense relied upon — in this case a breach of the warranty as to what the furnace would do under proper care in operation. Keystone Manfg. Co. v. Forsyth, 123 Mich. 626 (82 N. W. 521); Avery v. Burrall, supra; 35 Cyc. p. 457.

Judgment.reversed, and a new trial ordered.

McAlvay, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. Ostrander, J., did not sit.


text:
    JACKSON v. SCHILLINGER BROS. CO.
    1. Master and Servant — Negligence — Incompetency — Fellow-Servants — Notice.
    Evidence that plaintiff’s fellow-servant behaved like a boy, smoked cigarettes, was inattentive to his work and engaged in joking and talking, did not establish incompetency to do unskilled labor; and the employer was not required by law to give instructions or inquire into the experience or competency of men to do that kind of work.

    2. Same — Evidence of Notice — Actual Notice.
    Nor did a warning by one of the workmen to defendant’s foreman that there would be an accident if he retained the inattentive employee, not stating his reasons or specifying why he considered the laborer incompetent, put the employer upon notice of the alleged incompetency.
    3: Same — Risks Assumed.
    And where plaintiff had worked for upwards of two days within ten feet of the fellow-servant, without observing anything to indicate incompetency, he must be held to have had equal knowledge of the facts with the employer, and was chargeable with the assumption of the risk of the negligence of his coemployee.

      Error to Menominee; Flannigan, J.
    Submitted June 5, 1914.
    (Docket No. 26.)
    Decided October 2, 1914.
    Case by George Jackson against Schillinger Bros. Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.
    Fred H. Haggerson and MeCaskill & MeCaskill, for appellant.

      Michael J. Doyle, for appellee.
    The defendant is an erecting company, and in August, 1911, was engaged in erecting a building for a brewery in the city of Menominee, Mich. The floors and ceiling of this building are concrete, and in doing the work it became necessary to put up certain forms under the ceiling, into which the concrete was poured, and which remained there until the concrete became set, after which the forms were removed and again used for the same purpose on the next floor above. The forms were in sections, each section being about 12 feet long, made of boards, and weighing about 70 pounds. The method employed for taking the forms down was to erect a scaffold about 14 feet from the floor, which left a space between the floor of the scaffold and the ceiling of about 5 feet. The scaffold consisted of three horses upon which were laid two planks 14 inches wide. It was the duty of the workmen to mount the scaffold, cut the wires which held the planks supporting the forms, and then take down the forms section by section. After the wires were cut and the plank removed the forms would still remain in place, sticking to the concrete. The men would then take cold chisels and hammers and pry the edges of the forms loose from the concrete, after which it could be removed. The plaintiff, a competent carpenter of some years’ experience, was instructed to take down these forms. After working at this for a short time with another carpenter by the name of Muchinsky, Muchinsky was sent to the floor above to re-erect the forms as they were taken down, and .two boys or young men were placed upon the platform to assist plaintiff in the work. Plaintiff continued with this help to remove the forms for 2% days or more, when the accident happened upon which he bases his suit. He testified that, having removed the wires and planks from a given form and while in the act of stooping over to pick up his hammer and chisel from the platform, he heard one of the boys, Fred Weimer by name (the other boy having shortly before that time left the platform) strike the form a blow, upon which, as he straightened up, the form fell, striking him in the breast, knocking him to the floor and causing him to sustain certain injuries for which he seeks compensation.
    The sole grounds of negligence relied upon by plaintiff are that defendant employed an incompetent workman in the person of Weimer, that defendant knew, or should have known, of such incompetency, and that defendant retained Weimer in its service after said notice which is alleged to have been received by defendant before the injury. Upon the question of Weimer’s incompetency and notice to the defendant, the following testimony was given by the witness Muchinsky, who, as before stated, preceded Weimer upon the scaffold in assisting plaintiff to remove the forms, and when Weimer and the other boy took his place, he proceeded to erect forms upon the floor above. It was apparent, however, that he was back and forth from time to time in the room where the forms were being removed.
    “The first time my attention was attracted to him ' was on the concrete. He was wheeling concrete. When I saw him doing his work wheeling, he was smoking cigarettes off and on, and rolling cigarettes, and when I went by him he was talking to me and giggling and laughing also. When I first saw him he was working more in a fooling way instead of a man that ought to pay attention to the work. He done more as a boy would. He was making cigarettes, and he would smoke the cigarettes, that is, on the concrete. He would take a little time and stop from working and make the cigarettes. I have seen him a few times a day, I do not know how many or how often he did it. I saw him wheeling concrete with a wheelbarrow. When he had a load on, of course, he was wheeling the same as anybody else would, and when he hadn’t a load on he was, it seems, more in a jollying way. He did not run with it straight as a man would. Maybe that was his way of doing it. I noticed his actions while he was hauling concrete with regard to the other men. They were fooling together. I had occasion to pass them frequently. I remember once he asked me if I didn’t want a bottle of beer. It is a quite a while ago, and I don’t remember everything. That was during his work. That occurred only once I remember of. I know when they used to bring the case in he would go himself and get one or two extra bottles and hide them. _ I saw him at work on the scaffold. He conducted himself more like fooling as much as I seen than he was at work. I remember that he had a cold chisel in one hand and a hammer in the other, and he was holding the cold chisel up and going to knock the form down on them. I seen him smoking cigarettes on the scaffold every day.

      “Q. Was his smoking cigarettes habitual or occasional ?

      “A. Well, occasionally I would see him smoking. I don’t know what he was doing all the time, as many times as he went down, and he went down six or seven times and sometimes more. Pretty nearly every time he went down he had a cigarette. He was doing that on the scaffold. I had occasion to pass down the ladder where he was working on the scaffold. He acted like he was fooling away just the same as if you asked me a question, and I didn’t pay any attention; he would be talking to somebody else and the same at his work. I told the foreman about it. I told the foreman. that he should give Jackson another man in the place of those two boys, and that if he didn’t somebody is going to get hurt. The foreman didn’t say anything to me. That was the first time I spoke to him. I spoke to him after that. The second time I told him the same thing, and he didn’t answer me, and I spoke to him the third time. I told him that he had better get a man to help Jackson take down those forms and take those two boys away because they were no good to Jackson, and I said that somebody is going to get hurt here. He says, ‘What shall I do with them?’ I says, ‘Fire them.’ He said, ‘What shall I do with them? I have not got any other work for them.’ I says, ‘Fire them.’ That was all, and it ended there. The things that I saw the boy do before I made that statement to the foreman was, I seen that he didn’t pay any attention to his work, and I seen that quite a few times because I was up and down the ladder pretty often. I saw this boy working on the scaffold, and I seen him working on the concrete. On the scaffold I seen him and he laughed and giggled, and when I came down the ladder he asked me if it was not time for the beer to come around. I noticed him doing those things quite a few times during the day, and while he was working on the concrete it was about the same thing. I didn’t keep track of it, but I seen him quite a few times off and on. I knew about the chalk incident. He was giggling and fooling on the scaffold, and this other man was giving chalk to mark those forms to number them all so that these forms could be placed back together the same as they were taken down, and this long fellow numbered every piece when they were together, so that when they were taken down they could be placed together, and this short fellow took the chalk'away from him by fooling, and started to mark the forms, and refused to work, and they were fooling with the forms and marking them around, and this long fellow went down off the scaffold, and it was right then when Jackson got hurt.”
    Cross-examination by Mr. McCaskill:
    “I was doing carpenter work for Schillinger Bros. Company. I was not foreman, but the foreman sent me all over the work. I don’t know the name of the foreman. This is the foreman that I told that he had better give a man up there to help Jackson. I don’t know his name. When I told him he was down on the basement floor. At the time that I told him he was at that time doing carpenter work. I don’t remember just where. I was making forms there, and if there was any form that broke or the wheelbarrow cut through, I had to go and fix that, or if the elevator gave out, I was supposed to go and fix that. I didn’t do any carpenter work down in the room where they were taking down the forms. We used to go down and get the forms and then go down and carry them up on the second floor. We were taking those forms that had been taken down, and was carrying them up to the second floor. The other carpenters helped me. The only one I knew was George, that is the only name I know. George Jackson and one fellow by the name of Antone, and I don’t know any other name. Jackson didn’t help me carry forms out of this room. It was a fellow by the name of Antone. Sometimes five of us carried out the'forms. I noticed this boy before I carried out the forms. I noticed him the day before we ever started to carry the forms up, and I saw him once in a while smoking cigarettes and laughing. I didn’t see anybody else smoking cigarettes at that time. I don’t remember seeing anybody else smoking cigarettes there. * * * We were working there in the brewery and we got the beer there and drank it. I didn’t think anything strange about that. I didn’t consider him negligent or careless because he drank beer, but he didn’t pay any attention to what he was doing. I considered him negligent and careless because he would roll up a cigarette and smoke it while at work. * * * There was not anything particular in the size of those boys that made me think it was dangerous to have them up there. If they had paid attention to their work they might have done it all right. I didn’t tell him [the foreman] they were not paying attention to their work. I told him they were not fit to work up there with Jackson. I simply told him that he had better put a man up there with Jackson and take those boys away. That is all I told him. I didn’t tell him what they were doing. I didn’t think it was my business to explain to him about his men. I don’t know whether he knew what they were doing or not. If he had seen them working I suppose he could see himself what they were doing. I didn’t tell him.”
    Upon the question of Weimer’s competency, plaintiff himself gave testimony, upon cross-examination as follows:
    “These two young fellows helped me on the scaffold to take down these forms for pretty nearly three days. They were all the time after Frank left. During the three days that I was working there with these two men one of these fellows was scared. He was the tall fellow. I don’t know who he is. He was quite a tall, young lad. He was not the man that was with me at the time I got hurt; he was on the ground.

      “Q. Now, the man that was with you on the scaffold at the time this accident occurred, had you seen anything out of the way with him prior to the time you got hurt?

      “A. No, sir; I did not.

      “Q. He was working just the same as anybody else, was he?

      “A. I didn’t pay any attention to him.

      “Q. You were working right there with him?

      “A. He was on one end of the form, and I was on the other end.
    “Q. As far as you could see, he was doing his work just the same as anybody else would?

      “A. Well, yes.

      “Q. And you do not think he was careless or indifferent about his work, do you?

      “A. No.”
    The foregoing constitutes all of the material testimony on the question at issue tendered on behalf of the plaintiff. The defendant through the witness Weimer denied the fact that plaintiff’s injury occurred in the manner testified to by him, and said that plaintiff simply stepped to one side, lost his balance, and fell. The court upon this point charged the jury as follows:

      “The plaintiff claims he was injured by the negligence of Weimer; he concedes that Weimer was a fellow-servant, and that he cannot recover from the defendant unless it appears that Weimer was an habitually careless person, and that his carelessness was of such a character as made it imprudent to keep him in the service, and that the defendant either knew, or in the exercise of due care should have known, that Weimer was that sort of a servant. Now, gentlemen, we are, as I have already said, at the main question in this case. If you pass these other questions in favor of the plaintiff, then, in order to find the defendant liable, you must be satisfied by a preponderance of the evidence that Weimer was an habitually careless servant, and that the defendant, or the foreman of the defendant, because he represented the defendant at the time and place in this connection, that the foreman either knew, or in the exercise of care and prudence should have known, of the' careless character of the servant. In considering these questions, you will understand this to be the law: That you cannot find the defendant guilty of negligence in retaining the servant Weimer in its employ in this work unless you find by a preponderance of the evidence that he was habitually careless in the performance of the work itself. To make myself clear, gentlemen, if you find that Weimer smoked cigarettes and took a glass of beer and hollered at men when they were going up and down, always boyish and buoyant as boys are at times, when he was not engaged in the work itself, then he was not á careless servant; but you must find that while he was engaged in taking down the forms, while he was doing his work, that he was habitually careless, and that the defendant knew that, or if the defendant or its foreman had exercised reasonable care and diligence to ascertain this fact, he would have known it. Again, in order to charge the defendant with negligence in retaining Weimer in its employ in this work, it is not enough to show, and it will not be enough for the jury to find, that he was guilty of a single act or an exceptional act of carelessness or negligence. It must appear that the carelessness of the servant was habitual rather than occasional.”

      A verdict having been rendered in favor of plaintiff and judgment entered thereon, the defendant brings the case to this court for review.

       For the master’s duty as to selection, employment and retention of fellow-servants, generally, see note in 48 L. R. A. 369. And upon the liability of a master for injuries caused by incompetency of a fellow-servant, see note in 25 L. R. A. 710.

   Brooke, J.

(after stating the facts). The work to be performed by plaintiff and his helpers, including Weimer, was simple in character. It involved no particular hazard and required no particular skill. It was plaintiff’s duty to saw the forms himself, after which he and his helpers loosened and lowered them. Any one of reasonable intelligence and sufficient strength would be competent to perform such labor. And it is not contended that Weimer was lacking in either particular. Under such circumstances and for the performance of such labor the employer is not required by law to either give instructions in regard to the work or inquire into the experience of the laborer. Timm v. Railroad Co., 98 Mich. 226 (57 N. W. 116). In Kellogg v. Lumber Co., 125 Mich. 222 (84 N. W. 136), it is said (quoting from Baltimore Elevator Co. v. Neal, 65 Md. 438 [5 Atl. 338]):

“Negligence, such as unfits a person for service, or such as renders it negligent in a master to retain him in his employ, must be habitual, rather than occasional, or of such a character as renders it imprudent to retain him in service. A single exceptional act of negligence will not prove a servant to be incapable or negligent.”

The only evidence of Weimer’s incompetency is furnished by the witness Muchinsky. • When analyzed it amounts simply to this: That on various occasions witness saw Weimer smoking cigarettes on the scaffold within 10 or 12 feet of plaintiff, that he saw him laughing and giggling, and that he joked him about a bottle of beer, all of which took place in the presence of plaintiff. He further testifies that Weimer seemed to him to be careless and unattentive. This testimony in our opinion falls far short of proving incompetency on the part of Weimer to perform the labor in hand. Many good workmen laugh and joke. Undoubtedly some good workmen even smoke cigarettes, but we have never before heard either act urged as a ground for claiming that a man who indulges in them is incompetent to perform hard labor. Moreover, the record fails to disclose that the defendant had any knowledge of even these acts on the part of Weimer. It is true Muchinsky testifies that he told the foreman he should take the boys from the platform and give Jackson a man to help him, otherwise there would be an accident, but he carefully refrained from assigning any reason for his request. If the foreman received the communication from Muchinsky exactly as testified to by Muchinsky (and he denies having received it), he would have been perfectly justified in disregarding it, in the absence of any statement of specific instances of misconduct or incompetency calling for the warning. Snodgrass v. Steel Co., 173 Pa. 228 (33 Atl. 1104).

But the remarkable and controlling consideration is that the plaintiff himself worked within 10 feet of Weimer for upwards of 2% days, and he must have seen every act and heard every word uttered by Weimer during that time. The conduct of Weimer evidently did not impress plaintiff as either careless or as evidence of incompetency. On the contrary, assuming Muchinsky’s statements tobe true,that conduct did not afford any evidence to plaintiff that Weimer was either careless or incompetent. Where employer and employee have equal knowledge of the incompetency of a fellow-servant of the employee who is retained in service, each party takes the risk, unless the employer undertakes to give special directions. Davis v. Railroad Co., 20 Mich. 105 (4 Am. Rep. 364).

We must hold that there was no evidence introduced by the plaintiff warranting the submission of the question of defendant’s negligence to the jury.

The judgment is reversed, and a new trial ordered.

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


text:
    SCOTT v. BOYNE CITY, GAYLORD & ALPENA RAILROAD CO.
    1. Master and Servant — Personal Injuries — Cause of Accident —Evidence.
    Upon the second trial of a negligence case, in which it was claimed that the manner of decedent’s death was matter of conjecture, and that the jury should not have been permitted to guess or speculate as to the contention that decedent caught his foot in defective blocking in defendant’s tracks, evidence not offered on the first trial and tending to prove that there was only one place in which decedent could have .caught his foot near the point of the road where the accident took place, presented a question of fact for the jury. Scott v. Railroad, Co., 169 Mich. 265 (135 N. W. 110), distinguished.
    2. Same — Question of Pact — Trial.
    When the circumstances disclosed by the evidence justify inferences that are sufficient to remove the cause of accident from the field of conjecture to that of probability, it should be left to the jury to draw the proper inference.
    3. Same — Contributory Negligence.
    And testimony that the deceased would have got on the train in safety if his foot had not caught in the blocking, and where there was no proof tending to show that his attention had been or ought to have been directed to the faulty condition of the blocking, he. was entitled to assume that the defendant had performed its duty and had conformed to the requirements of law, and it could- not be held, as matter of law, that decedent was chargeable with negligence.
    4. Evidence — Mortaeety Tabees — Computation.
    Plaintiff’s attorney was correctly permitted to testify to his computations showing the probable earnings of deceased during his expectancy, reduced to the present worth, where the court fully and properly charged the jury relative to the value of this testimony and their duty.
    Error to Otsego; Sharpe, J.
    Submitted June 3, 1914.
    (Docket No. 12.)
    Decided October 2, 1914.
    Case by Samuel Scott, as administrator of the estate of Frank Gibbs, deceased, against the Boyne City, Gaylord & Alpena Railroad Company for the unlawful killing of decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harris & Ruegsegger, for appellant.

      Be Foe, Hall & Converse, for appellee.
   Kuhn, J.

A complete statement of the facts in this case is found in the two opinions of this court when the case was here before, reported in 169 Mich. 265 (135 N. W. 110). Being sent back for a new trial, a verdict and judgment thereon was again had for plaintiff, and the case is again brought here by writ of error. The assignments of error have been grouped, and it is urged that the case should be again reversed because:

(1) The exact cause of the accident was not proved, and the jury were allowed to guess and speculate as to it; (2) contributory negligence on the part of the plaintiff’s decedent; (3) errors committed before the jury; and (4) refusal to grant a new trial.

It was the opinion of the majority of this court when] the case was here before that as to how and where the injury occurred upon the record as made was a matter of pure conjecture. It is the claim of plaintiff’s counsel that upon the retrial of the cause material changes in the facts were shown. The claimed material changes are set forth in their brief as follows:

“In this present record the exact place is shown where Gibbs was standing at the time of his injury to be at the north of the rails and about halfway between the switch and the block — if anything, closer to the block. This is' shown by Exhibit 1, the testimony of Betterly, and also the testimony of defendant’s witness Frances Biskie. It also shows that the distance between the throw rail of the split switch and the main rail at the point of the switch when open is 3*4 inches, instead of 5 V2 inches, as therein stated, and it narrows to 2% inches in 3 feet from the end. The speed of the train at the time of the injury is shown to be 3 or 4 miles an hour, instead of 5 miles miles, as stated in the opinion. We also call the court’s-attention to the fact that the eyelets of the shoe (Exhibit 4) show the strain on them. This is to be considered with reference to the other facts as to the condition of the shoe, as it was found directly after the accident. It is also shown conclusively that there were no places between the switch and the block where one’s foot could get caught and held, as it is shown that Gibbs was, instead of there being 21 places, as indicated in the former opinion.”

The plaintiff rested his case before, and does now, upon the claim that the decedent caught his foot at the defective blocking. A reading of the opinion of Mr. Justice McAlvay shows that it was the opinion of the majority of the court that, as it appeared from the evidence, at about the place at which it was claimed plaintiff’s decedent stood there were 12 places, exclusive of the defective blocking, into which his foot could have been caught if he caught his foot at all, it was just as probable that Gibbs’ foot was caught in this “gridiron of holes” as in the defective blocking, and that therefore the case should not have been submitted to a jury, as the verdict must necessarily rest upon conjecture or guess.

Upon the new trial testimony was introduced to show that it was impossible for Gibbs to have caught his foot in these places referred to in the former opinion. Mr. Van Auken, plaintiff’s witness, testified in part as follows:

“I heard of Mr. Gibbs’ death when I was at Vanderbilt. It was the 12th day of June, 1909. I drove there the same evening. I was at the place where he met his death first the next morning. That was Sunday. I made an examination of the surroundings. It was just east of the switch by the cooperage. I knew the street called Mill street here. It was west of Mill street — the first switch west of Mill street. Homer Scott was with me. I went down again in the afternoon. Mike Poquette was with me then, I think, and Mr. Betterly come over there. There were several around there. Homer Scott was back again at this time, I think. In the morning I was there half an hour to an hour, perhaps; in the afternoon about the same. I was there later. I think it was about a week’s time after that when I went after the goods. Mr. Betterly and Mr. Scott, I believe, and another gentleman were with me. At subsequent times I was there; I could not tell how many times. The third time was about a week after. I was there on Sunday; I remember that; and I was there Monday morning, and after-wards before we came away. Sunday morning I was there first; then Sunday afternoon and Monday morning; then when I went over after the goods I was there again; and I was there about the middle of July, the same year — July 13th. Mr. Betterly was with me, and Mr. Devere Hall was with me there. I know Mr. Durfee. He was formerly sheriff of the county. I think he was there at the time I went over after the goods. From the first time I saw this switch and the ground around it, and the rails and those other things connected with the location, there was no change in it at all down to July 13th, that I could discover. I looked with that in mind. It was the same as on the Sunday following the death. On the 13th of July I took measurements that I made records of. Mr. Betterly was with me at my request. * * *
“Q. Now, Mr. Van Auken, did you make any experiment to determine the places where the foot of one would be caught about the switch?
“A. Yes, sir.
“Q. How many different times did you do that?
“A. I could not tell you, so many of them.
“Q. Well, did you do it the first time you was there?
“A. I did.
“Q. And each time you was there?
“A. Yes, sir; I don’t remember of ever being there but what I tried it, until the last time I was there— next to the last time I was there — then things were all changed.
“Q. What was the result of your experiments between the ties north of the rails from the switch east?
“A. There is no chance for a foot to be caught.
“Q. Well, did it catch?
“A. No, sir.
“Q. What was the result of your experiments inside of those two rails from the switch east?
“A. My foot would not catch there, did not.
“Q. Well, did it on any of those occasions?
“A. It did not.
“Q. Did you make any experiments with reference to the place were the point of the rail — the split rail— and the main track rail came together near the switch?
“A. I did.
“Q. Well, what did you do there?
“A. Foot wouldn’t catch there.
“Q. That was where the space was 3% inches?
“A. That was at the point of the switch rail up to where it was so narrow that the foot would not go in.
“Q. Now, when you put the foot in there, what would be the result?
“A. Draw out.
“Q. What was the surface of the side of a split rail next to the main line rail?
“A. It was straight up and down as might be.
“Q. Was there any projections or bolts with heads on of any kind that interfered’with your foot?
“A. No, sir.
“Q. Any overextension of the rail that interfered with your foot in any way?
“A. No, sir.'
“Q. Did your foot catch in that place and hold it?
“A. No, sir.
“Q. At what other points did you make experiments?
“A. At the block.
“Q. Which part of the block?
“A. I would not be just positive as to that, but it seems now it was nearly one-half — about midway of the block; that is the way it seems now.
“Q. Well, you did at the block anyway?
■ “A. At the block several times. * *■ *
“Q. Now, you say you tried to get your foot in the rails west of the blocking, did you?
“Mr. Hall: West of the blocking?
“A. Yes, sir; do you mean at the point of the switch?
' “Q. I mean between the throw rails and the main rail west of the blocking?
“A. Yes, sir.
“Q. And you found no place there where you could get your foot in between the rails?
“A. I found no place where it would catch.
“Q. Well, now, when you mean 'catch’ you mean by stepping on the rails that your foot did not catch there?
“A. It did not catch.
“Q. How did you step on those rails, lengthwise or crosswise?
“A. Lengthwise.
“Q. How many times did you do that?
“A. I could not tell you.
“Q. Jump on them quickly?
“A. Just as I would the other way.
“Q. At whose suggestion did you do that?
“A. At my own.”
On being recalled he said:
“Q. In your experimenting, did I understand you to say that you stepped your foot on the rails between the two rails, outside rail and the throw rail?.
“A. Yes, sir.
“Q. At what point along that rail?
“A. At the point.
“Q. And your heel would not go in at the’ point ?
“A. Yes, sir.
“Q. How is that?
“A. Yes,-sir.
“Q. Oh, it would?
“A. Yes, sir; my foot would go down.
“Q. Well, what other-places did you try?-
“A. Every place where there was a conceivable place to get one’s foot caught there.
“Q. Now, then, you probably tried it the whole length of that throw-rail, did you?
“A. No; I can’t say-that-I did -try it the full length of that throw rail, for part of the way there was' no chance to get a foot fast at all?
“Q. Well, could you not get your foot in between the rails ? . •
“A. No, sir.
“Q. Thé side of your foot, or heel, or anything, if they were 2 or 3 inches apart,- you could, couldn’t you; you could get your foot in, couldn’t you, if-they are 2 or 3 inches apart?
“A. No; not at the 2 inches- apart and 2%.-
“Q. Well, you could up next to the block-pretty near to the end of the block; you could get your foot in there, couldn’t you ? -
“A. I did.
“Q. Yes; you say the difference in distance between the west end of the block and the middle of this throw rail was hardly perceptible — the distance between the two rails?
“A. How is that?
“Q. I understand you to. say that the difference in .the distance between those -two rails — the throw rail and the main rail — and the west end of the block, at the middle where this 2% inches commences, was hardly perceptible?
“A. No, sir; you didn’t understand me to say.any such thing; I didn’t say any such thing. * * *
“Q. Mr. Van Auken, how long a space was there at the point of the switch between the rails where the foot would get in?
“A. Why, I should think about 3 feet, possibly.
“Q. And during that entire distance was there anything, any ball of the rail, the split rail, which held the foot?
“A. No, sir.
“Q. And what was the side of the split rail that entire distance?
“A. Perpendicular.
“Q. And was there any place that rivet heads or anything that interfered with the foot coming right out?
“A. No, sir.
“Q. Now, you were asked by counsel whether you measured the distance between the two rails at the west end of the blocking?
“A. Yes.
“Q. Just read what your second entry is on the book that you made.
“A. ‘Width between rail west end of block 3% inches.’
“Q. Well, you did'measure it, didn’t you?
“A. Yes, sir; I did.”

Homer Scott testified:

“I saw Mr. Van Auken make experiments with reference to the condition of the north rails and the track at the switch east of the switch with reference to the foot catching. He tried his foot on each side of the track, and he also tried it at the end of the block at the west end of the block, and it would catch at the west end of the block. It did not catch any other place. I saw him try it two or three times.”

George Durfee testified:

. “We were talking about it and the probabilities of his getting fast anywhere, and the only place that we could find- that he could get a foot fast was over this blocking on the switch.
“Q. Well, did you try to find other places?
“A. We did; yes.
“Q. And what was the result when the foot was placed upon the west end of the blocking on the rails, at the west end of the blocking?
“A. Well, if you step in there and your foot slid ahead a little, you could not get it out.”

No testimony was offered by the defendant to show that one’s foot could have been caught and held at the places claimed. From the testimony of Betterly, the eyewitness, the jury could reasonably say that Gibbs was caught by the blocking and held until drawn under the train. He says he saw Gibbs take hold of the brake hanger beam, and then saw his body straighten out as if he was fast, and illustrated the situation to the jury.

It is our opinion from the record as now made,, considering the evidence Of Betterly as to the position of Gibbs, of Van Auken, and the others, as to the measurements and condition of the track, the evidence of the defective condition of the blocking, the marks on the foot, the condition of the shoe and its location after the injury, the place where the parts of the body lay, a reasonable and legitimate inference might be drawn that the injury was caused by the defective blocking, and when there are such circumstances shown as to justify inferences which bring liability within the realm of probábility, the question of inference should be left to the jury. Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111); Knapp v. Railway Co., 114 Mich. 199 (72 N. W. 200); Jones v. Railroad Co., 127 Mich. 198 (86 N. W. 838); Little v. Bousfield & Co., 154 Mich. 369 (117 N. W. 903); Parker v. Union Station Ass’n, 155 Mich. 72 (118 N. W. 733).

It cannot be said that Gibbs, in entering between the cars at the place he did, was guilty of contributory negligence as a matter of law. It is a fair inference from the testimony that he would have gotten onto the train safely had not his foot caught in the defective block. There was no evidence to show that his attention had been directed to the condition of the block, or that its condition was such as to necessarily draw his attention during the time he waited for the return of the train. Moreover, he had a right to assume that the defendant had complied with the requirements of the statute and had performed its duty. There was testimony to show that the place selected by Gibbs to mount the train was the usual place, and that the manner and method pursued by him were usual and habitual. The question of contributory negligence was a question of fact, and properly submitted to the jury.

Error is assigned because the court allowed the plaintiff’s attorney to testify as to certain computations to show the earnings of Mr. Gibbs during his expectancy of life, which Mrs. Gibbs claims she was deprived of, computed at their present worth. This was not error, as the trial court properly instructed the jury with reference thereto, as to the value of this testimony and their duty. Sonsmith v. Railroad Co., 173 Mich. 57 (138 N. W. 347).

We are of the opinion that this case was submitted to the jury with proper instructions, and that there is sufficient evidence in the record to sustain their verdict.

Finding no prejudicial error in the record, the judgment is affirmed.

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