text:
    ASPLUND v. CALUMET & HECLA MINING CO.
    1. Master and Servant — Trial—Charge.
    On the trial of an action for injuries sustained by a miner in defendant’s employ, the court did not err in stating to the jury the claim of plaintiff in detail, in part as follows: That plaintiff claimed he was working in a
    stope with a partner; that the mine was working a day and night shift; that the plaintiff and another employee were running a drilling machine, and the rock was being excavated from between other strata of stone, which were known as the hanging wall and foot wall; that it was not part of plaintiff’s duty to put in timbers and if they considered such work necessary to support the wall the men applied to the shift boss who was the proper person to cause the timbers to be put in by workmen employed for that purpose; that plaintiff called the attention of the shift boss to a point that looked dangerous and told the boss that plaintiff thought it ought to be timbered; that the place, in fact, needed support, and the boss who examined it told plaintiff he would send men to do it either that afternoon or the next day and directed plaintiff not to bar down any more rock from the place because they would make more descend; that on the following Monday when plaintiff went to work he again complained of the danger to the shift boss who informed him that he would have the place timbered as soon as possible and for plaintiff to go to work, he would be all right; the plaintiff relying on his promise and' assurance, etc., the court also stating the claim of defendant and informing the jury that they were the sole judges of the facts. The charge was not improperly argumentative.
    2. Trial — Leading Questions.
    ■ No reversible error was committed in permitting his attorney to ask leading questions of the plaintiff who was a foreigner and understood English with difficulty. The ruling was a matter for the discretion of the trial court.

      3. Master and Servant — Mines and Mining.
    Although a specified danger is patent and is known to the servant, the master may be liable for injuries resulting therefrom if he has lulled the servant into a sense of security by insisting that there was no danger, or promising to remedy it. And, accordingly, if the Injured employee regarded the hanging wall as so dangerous that it needed timbering to make it safe, but did not regard the danger as so imminent as to justify him in disregarding the assurance and direction of his superior servant, he was entitled to recover:

    Error to Houghton; Cooper* J., presiding.
    Submitted June 20, 1913.
    (Docket No. 68.)
    Decided November 3, 1913.
    Case by Victor Asplund against the Calumet & Hecla Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      AUm F. Rees, for appellant.

      Le Gendre & Driscoll, for appellee.

       As to continuing work on master’s promise to remove a specific cause of danger, see note in 40 L. R. A. 782.
      The question of assurance of safety by master or coservant is treated in notes in 48 L. R. A. 542; 23 L. R. A. (N. S.) 1014; and 30 L. R. A. (N. S.) 453. And for effect of master’s assurance as to obvious dangers of employment, see note in 4 L. R. A. (N. S.) 971.

   Moore, J.

The plaintiff is a miner, and while at work in the Osceola lode of the defendant’s mine he was injured by the falling of a considerable mass of rock. His thigh was broken, and he received other injuries. After plaintiff had put in all his evidence, defendant putting in no evidence, a directed verdict was requested on *the part of the defendant. This request was denied. The case was submitted to a jury, which returned a substantial verdict in favor of the plaintiff. The case is brought here by writ of error.

The errors assigned make it necessary to quote freely from the charge of the court, which we do as follows:

“The plaintiff claims that he was working as a miner in a stope with a partner. That the mine worked day and night shift, and plaintiff and his partner were running what is known as a drilling machine. That the copper rock in the mine was excavated from between other strata of stone or rock, the upper< of which was known as the hanging wall, and the lower of which was known as the foot wall. The place where the copper rock was is known as the vein and is about nine feet wide. That the shift boss was in full charge of the underground workings of the mine. That the company had special gangs employed in the mine for the purpose of putting in timber wherever necessary, which gangs were known as the timbermen. That it is no part of the duty of the plaintiff or his partner to put in timbers, and the only thing they could do in case they deemed timber necessary or advisable in any place was to apply to and notify the shift boss, who was the proper person to .apply to, and that it was the shift boss’ duty, and he had authority from defendant, to cause timbers to be put in wherever necessary or advisable for the safety of the men, and that the shift boss is the proper person to whom to report any defects or inefficiencies or dangerous or unsafe place in the mine. * * *
“That, at the time of the occurrences of his injuries, the plainti-ff was working in the first stope north of No. 15 shaft on the fourth level, at a place above about 30 feet up from the level, called the point. That, on Friday next prior to the day of his injuries, he and his partner were working in the upper stope in the level next to the first stope, above the place where he was working when injured, and were squaring this upper stope up and bringing it as far as the first stope. That this upper stope was just about finished and was holed to the third level- that is, a hole or opening had been made from this upper stope upward anci through to the third level. That on this Friday they were told by the shift boss, under whose charge they were, that, when they finished the work of squaring up at the place they were, they were to go down and work at the point in the first stope. That on this upper stope below the place where they were working on Friday, but above the place where they would have to work when they went down to work in the first stope, was a belly of ground that did pot look safe to the plaintiff, and the plaintiff on this Friday called the shift boss’ attention to the same and told him he thought it ought to be timbered. That the place in fact did need timbering, and it was the defendant’s duty, and the shift boss’ duty as defendant’s agent and representative, to see to it that it was timbered, and it could have been timbered with little cost and expense, and the danger of plaintiff’s being injured by rock falling from it could have thus been obviated and avoided. That the shift boss examined the place and told the plaintiff that it needed timber and he would send the timbermen to timber it' either that afternoon or the next day and told plaintiff and his partner, who had been barring down loose rock from this belly, not to bar down any more from it because they would make more fall. That this belly was not timbered on Friday afternoon, but the shift boss again examined it on the next day (Saturday), spending 10 or 15 minutes in examining it. That the plaintiff did not work in the mine from the Saturday evening quitting time (that is, 6 o’clock p. m.) until the following Monday night, when he and his partner went to work and went into this stope and found their drilling machine near the place where they had been working on Friday and Saturday (that is, the squaring up place) and found that the work of squaring up had been completed, and that, while they were gathering up their tools and waiting for him, the shift boss came and told plaintiff and his partner they would have to go down to the point (that is, to the place at the first stope whereat plaintiff was when injured). That the plaintiff again spoke to the shift boss and told him that this belly looked bad and asked him to have a look at it, and the shift boss thereupon told the plaintiff that the place was all right and that he (the shift boss), would have it timbered as soon as possible, or words to that effect, and told plaintiff to go on down to the point and go to work and that he would be all right; that nothing would fall from the belly.
“That the plaintiff relied upon these promises and assurances from the shift boss and believed therefrom, and from the appearance of the belly, that he could safely work at the point until the place would be timbered, and because thereof, he went down to the point with his partner and went to work in a careful and prudent manner. That they set up their drilling machine and plaintiff was just starting a hole with a pick and had been working for a few minutes when a chunk of stone or rock from the belly fell therefrom and rolled down to the place where plaintiff was working (that is, to the point) and struck the machine and post and dragged thenr down the level and struck plaintiff and broke, crushing and injuring his leg and arm and internally injuring him, and ruptured him between his legs and otherwise injured him.
“Now, gentlemen, these are the claims of the plaintiff that because of these facts the defendant was guilty of negligence in conducting its business, and that because of such negligence the defendant ought to be held to compensate him for the injuries he received in the accident that occurred. The defendant, on the other hand, denies it was guilty in conducting its business, and denies the evidence shows it neglected any duty it owed the plaintiff, and alleges the fact that it carried on its business in a careful manner and did all the law requires, and denies that_ it should be held liable for the injuries that' the plaintiff received. The defendant also claims that the plaintiff assumed the risk of working in the place where he did work, he having known that the ground in question, was poor ground, and claims that under his evidence it was shown that he assumed whatever risk there, was in his going to work at the place he was working when the accident happened. The defendant also claims that in any event he was guilty of - contributory negligence in working as he did, under the circumstances he did, and that in any event they should not be held liable in this case. Now, gentlemen, that will be the question for you to determine. I might say in this case, as all others, you are the sole judges* of the faqts. 1 pass upon the*law and you take the law as I give it to you. You take the law and apply it to the facts and find whether the plaintiff has maintained his cause of action by a fair preponderance of the evidence.
“I charge you that if the place where plaintiff was working at the time of the occurrence of his injuries was in an unsafe condition for him to work in by reason of the fact that rock was liable to fall or roll from the belly in question, and the belly could and should have been timbered by the defendant so as to prevent the falling or rolling of such rock, and the shift boss was a person to whom the defendant had intrusted the duty of looking after and timbering such place and causing the same to be timbered when necessary, and the plaintiff complained to the shift boss of the danger arising from the fact that the belly was untimbered and suggested or asked that the belly be timbered, and was asked, ordered, or directed by the shift boss to go to work at the place where he was injured, and if the plaintiff reasonably believed that he could work at such place mentioned with safety until these promises or assurances of the shift boss were fulfilled, then the plaintiff would be excused by the law in going to work and remaining at work at such place for a reasonable time thereafter to await the putting in of such timber, and he would not be deemed to have assumed the risk of injury by rock falling and striking him, owing to the want of such timber at such time, unless the danger was so imminent or glaring that a reasonably prudent man would not even after such promises and assurances and order or direction of the shift boss, incurred by entering and continuing the work as plaintiff did. * * *
“I charge you further, a reasonable time for plaintiff to so work awaiting the fulfillment of an assurance or promise that the belly would be timbered would be such a period of time after the time of making the promise or assurance, or promises or assurances, that the same would be timbered, as would preclude a reasonable expectation on plaintiff’s part that the promise might be kept, or, stated in another way, it would be the time which would elapse while the plaintiff was expecting the promise to be performed. If the plaintiff was in doubt as to the safety of the place where he was working at the time he was injured, and the plaintiff believed the shift boss knew better than he as to whether or not it was safe, and the shift boss assured plaintiff that the place was not unsafe, it would not be contributory negligence on plaintiff’s part to be guided by the opinion and assurance of the shift boss. * * *
“The plaintiff was not guilty of contributory negligence if at the time of the occurrence of his injuries he was using and exercising ordinary care and prudence in performing his work, having regard for the situation in which he was working, and was conducting himself the same as a person of ordinary care and prudence would have conducted himself under the same or similar circumstances. He was only required to use and exercise ordinary care, and, if he did that, then he was not guilty of contributory negligence. If you find that the plaintiff knew or believed that the hanging wall was in a dangerous condition, and that in his judgment as a- miner he knew or believed that the hanging was poor, as he expressed it, or if you find'that from his experience, or from what the shift boss told him, or from his own observation or sounding, he believed or should have known that the hanging was likely to fall from the place where it did fall, even though he could not tell when it would fall, then I charge you that the risk of injury was one which he assumed, and your verdict must be for the defendant.
“If you find that the plaintiff knew or believed or had reason to know or believe that the hanging was liable to fall from where it did fall, and that nevertheless he went to work without objection under the place which he himself considered unsafe, even though he may not have known or believed that the rock would fall so soon, then plaintiff would be guilty of contributory negligence, and your verdict must be for the defendant. * * *
“It was the duty of the defendant to furnish plaintiff a reasonably safe place in which to do his work. I charge you that a person entering or going into a dangerous place assumes all risk of injury which an ordinarily careful and prudent person might apprehend is liable to happen under the circumstances. There is no liability for an injury inflicted upon one person by another, although the injured person be free from fault, if the cause of the injury be unusual and one which reasonable and careful foresight could not have foreseen and guarded against.
“In this case I charge you that the defendant is not an absolute insurer or guarantor of the safety of its employees. Its duty was only to exercise due care in this regard, such care as an ordinarily prudent person would exercise under like circumstances. If it exercised such care, then it cannot be held liable. In furnishing a safe place, the place is to be considered with reference to the nature of the employment. We recognize the fact that some employments in their very nature are more dangerous than others. The question in this case on this subject is.: Did the defendant furnish the plaintiff a reasonably safe place in the mine?
“I charge you, gentlemen, the mere fact that an accident happened does not justify you in rendering a verdict against the defendant. That is not sufficient. The plaintiff must show to your satisfaction, by a fair preponderance of the evidence, that the accident happened, and that it was the result of negligence' on the part of the defendant. He must show still further that he himself was not guilty of any negligence which contributed to the accident in the slightest degree. If he was guilty of any such negligence, then he would be guilty of contributory negligence, and that would bar him from recovering. Therefore, gentlemen, it is necessary that the plaintiff prove to your satisfaction, by a fair preponderance of the evidence, that this accident happened as a result of the negligence of the defendant, and that he himself was free from any negligence which contributed to the ■accident (that is, any negligence which contributed in the. slightest degree to the accident) before he is entitled to recover at your hands. * * *
“I charge you further that the plaintiff, in the discharge of his work as a miner, is obliged to exercise care for his own safety. If he failed to do so and any negligence on his part contributed in the slightest degree to his injuries, he would be guilty of contributory negligence, and that would bar plaintiff’s right to recover, even if the defendant itself was guilty of negligence.”

There was much more of the charge, but we have quoted all of that part of it to which objection is made.

Complaint is made of various portions of this charge and particularly to that part relating to the claim of the plaintiff. Counsel say:

“This portion of the charge reads very much as if it were based upon a request submitted by the plaintiff. Taking these claims as stated by the court, as .they read in the portions of the charge covered by the assignments of error, and even more strongly if read in sequence as they occur in the charge, they are distinctly in the nature of an argument in favor of the plaintiff, and our main objection to it is that it is argumentative. This is quite likely to be the case where it is attempted to state, as in this charge, the claims of the plaintiff with regard to the facts in detail.”

A careful reading of the charge does not satisfy us the criticism is justified. The judge undertook to state the claims of each of the parties. Perhaps the charge states them more in detail than was necessary, but the judge was careful to say to the jury:

“I might say in this case, as in all others, you are the sole judges of the facts. I pass upon the law and you take the law as 1 give it to you. You take the law and apply it to the facts and find whether the plaintiff has maintained his cause of action by a fair preponderance of the evidence. * * * You are the judges of the weight of the evidence. You will give the evidence such weight as in your judgment you feel it is entitled to, and if, after doing so, you feel that the plaintiff has established his case by a fair preponderance of the evidence, then you will find a judgment in favor of the plaintiff. * * * If, on the other hand, the plaintiff has not maintained his cause of action by a fair preponderance of the evidence, then proceed to render a verdict in favor of the defendant, and in that case the form of your verdict will be, ‘We find for the defendant.’ ”

Errors are assigned on the admission of testimony in relation to what was said and done by Capt. Innes, who plaintiff' claims was the boss of the underground workings. We again quote from the brief:

“The objections were overruled and the witness gave the answers which have been heretofore quoted in this brief.
“In the case of Toomey v. Steel Works, 89 Mich. 249 [50 N. W. 850], this court held as follows with reference to testimony of a similar nature:
“ ‘The failure of plaintiff to produce such proof of negligence is not excused hy showing that the foreman assured him that the frame was properly secured. Even if the foreman were the defendant’s vice principal, he could not bind the defendant by such a statement, if the danger was as apparent to plaintiff as to him. * * * An agent is not by the law clothed with power to make such representations, and bind his principal to respond in damages if injury results.’
“On this principle thus laid down by this court the testimony of the plaintiff in this regard was incompetent and the objection should have been sustained.”

We shall have occasion to consider later the principle of law thus invoked.

Counsel say .the court erred in permitting leading questions, citing:

“You may state whether or not you believed you could work there safely until it was timbered.
“You may state whether or not, after the shift boss told you that nothing could fall and to go down there and that he would timber it, you believed you could work safely down there until it was timbered.
“After having been sent down to the point by the shift boss on Monday, did you think that belly would come down on you?”

■ — and says they are examples of numerous infractions of the rule. The record indicates the plaintiff was not well versed in the English language and part of the time his testimony was given through an interpreter.

We do not think it can be said the court abused the discretion possessed by him in regard to permitting leading questions. See Mason v. Patrick, 100 Mich. 577 (59 N. W. 239); Lungerhausen v. Crittenden, 103 Mich. 173 (61 N. W. 270); Webb v. Feather’s Estate, 119 Mich. 473 (78 N. W. 550); Burnham v. Insurance Co., 119 Mich. 588 (78 N. W. 653); Burnham v. Insurance Co., 120 Mich. 499 (79 N. W. 1124).

We now come to the important question in the case. It is stated by counsel as follows:

“A verdict should have been directed in favor of the defendant upon the evidence given by the plaintiff, which was the only evidence in the case relating to the circumstances of the accident. While there are other errors which occurred on the trial, upon which defendant relies for a reversal of the judgment in favor of the plaintiff, the main question to be submitted to this court is whether, upon the evidence of plaintiff himself, any cause of action was established which would entitle the plaintiff to recover damages against the defendant. It is of course conceded that the evidence in the case must be viewed in its most favorable aspect to the plaintiff. * * *
“(1) The plaintiff, having full knowledge of the situation and of the danger existing, assumed the risk of injury when, without protest, he went to 'work under the belly on the night of the accident.
“(2) The plaintiff was guilty of contributory negligence because, without protest, he went to work on the night of the accident with full knowledge of the existing conditions and with full appreciation of the danger therefrom.
“(3) Because there is not sufficient evidence to charge the defendant with negligence with respect to plaintiff, having in view his position and duties in the mine.”

In support of his contention, counsel cite 26 Cyc. pp. 1209 to 1213, Toomey v. Steel Works, 89 Mich. 249 (50 N. W. 850), and other authorities.

It is manifest that, to pass intelligently upon the propositions of counsel thus stated, it is necessary to quote somewhat fully from the material parts of the testimony of the plaintiff, which we do as follows:

“I had worked in this same stope six months and a half altogether. This belly had been in sight where we could see it about a month. We took the ground out from under that belly, me and my partners, and the other shift men also. We had worked beyond that until we got up in the arch. I don’t remember positively if it was about a month before we were hurt that the ground under that belly was taken out, but it was at least a month. After we had taken the rock away from under we suspect it was dangerous. We thought for a whole month and perhaps more that the belly was dangerous ground. We tried to take it down, to pinch it down. We couldn’t do it. We still considered it dangerous for that whole month. * * * What made me think that belly was dangerous I have sounded with the bar. It gives a dangerous sound. It sounds to us. It did sound that showed it was dangerous. We got that sound that indicated it was dangerous a month or more before I got hurt. We suspect it. We thought it was dangerous. We thought it was. going to come down some day. The part of the belly that was so dangerous as I remember, and I thought was going to come down, was about the middle. I didn’t think that any part of it would come down. It meant that the whole of it might come down. I don’t remember how often we used to sound it, whether we would sound it more than just that one time. It was within a month’s time before I was hurt. The shift boss sounded it Friday before I was hurt. We sounded it the same time. I held the lamp and I think that the shift boss had the lamp on his hat also. I sounded it myself. We thought it was dangerous the way it sounded, but the shift boss told us it wasn’t dangerous so we believed him. My partner and myself thought. Ristvedt thought it was dangerous too. It sounded dangerous to me. That was on Friday. I had not sounded it between the time, a month before that, and that Friday that I remember. The reason we didn’t sound it was we thought it will stay up there.
“Q. Now let me understand that. When you sounded it a month or more, or about a month before you were hurt, you thought it was dangerous and was likely to come down at any time. That’s what you told me, didn’t you?
“A. We didn’t sound it.
“Q. Didn’t you sound the hanging, that hanging, that belly, a month before you were hurt, or about a month?
“A. We sound it elsewhere.
“Q. Didn’t you tell me a little while ago you sounded that belly?
“A. We didn’t sound the belly but we sounded other places on the belly.
“Q. That would be to find out whether the belly was solid or not?
“A. Yes.
“Q. And in that way you found out that the middle of the belly was bad?
“A. Yes.
“Q. Now, having found it bad a month before, I ask you again if you didn’t, sound some more between that time and the time you were hurt?
“A. I don’t remember.
“Q. But all that time you thought it was going to come down some day?
“A, We thought so.
“Q. By ‘we,’ whom do you mean?
“A. My partner -and myself.
“Q. You both thought the same?
“A. Yes. We didn’t think that all the time from the time the belly was first exposed. Sometimes we thought of it. When we did think of it we thought it was unsafe, dangerous, and was going to come down some day. We gave notice to the opposite shift that the hanging looks poor. We told them at the belly. I don’t remember how long before we were hurt that I gave notice to the opposite shift that the place was dangerous, but we had some talk some time. It was some time in that month from the time the belly was exposed up to the time I was hurt. I don’t know if it was two or three weeks before I was hurt. I don’t remember if it was before the Friday that I told about. I don’t remember more than one time giving them notice that the belly was dangerous. We told them so they knew how to look out for themselves. That was because we thought it was dangerous and was going to come down. My recollection is that my partner wrote a letter, a short letter, and left it down in the mine on a powder box, stating, ‘Look out, the hanging is dangerous.’ That powder box was on the third level. It was in the level, not in the stope. That was about 300 feet in from the shaft. It was pretty near in to this stope. My partner wrote that letter in English. It said, ‘The hanging looks poor; look out for it.’ It was a part of the same belly. He said that in his letter. I recollect that he did say. It seems to me that it was the right thing to do to get up that letter. That’s what I thought at that time. I thought that because I really believed that the belly was dangerous and was going to come down if we didn’t look out for it. That’s just what I mean. It’s so long time passed since that happened that I can’t tell about how long that was before I got hurt, but it seems to me that it was during that month. * * * We went up through that hole to get to the third. By through that hole I mean the hole to the north of where we were working. This other hole that I told about was almost to the corner which we squared up. About 15 feet from that corner north. We made that hole Friday before dinner. Previous to that the dry hole was drilled in there. He put the hole through then the Friday morning. The shift boss, when he came down, he told us to put one hole in there and blast before dinner, so as to make the opening through. He said it would be good to put the timbers through that into the belly that was in the stope. The hole was for that. That was what it was for. That hole was about three feet long. The men could go through all right. Just about big enough for a man to go through. By timbers for that belly I mean for this same belly that we have been talking about. The shift boss says it was poor and he says that he was going to put timbers in there, four timbers. That was Friday when he said that. We thought it was poor because he also said it was poor. We knew it was going to come down some day. We thought so Friday, because he says that it was to be timbered. We thought so before Friday. We didn’t know that it was dangerous before we were told; we more or less thought so; but when he said it himself that it was so we believed him for the reason that he had been working in the mine for 20 years. We thought after he said it was poor we were even more sure that it was going to come down. We were even more sure after he said it was poor than we were before. We thought it was good ground, but we have a right whenever there is a poor place, or we think the place is poor, to notify the shift boss, call his attention to it, so that he will fix it up. We didn’t have so much experience as the shift boss, and we had a right to tell him about it, and we did tell him about it one month or more before I was hurt, we thought that was poor ground. That was my judgment as a miner, and my partner’s judgment. We didn’t speak to Capt. Innes about it until Friday before the accident. We thought he knew that himself. It didn’t look so very bad, but appeared somewhat bad. We thought he would see it; that’s the reason we didn’t tell him because it looked so bad we thought he would see it himself, and he knew more than we did.
“Q. Now, won’t you answer my question directly, without telling what you thought Capt. Innes knew, or anything about it? I will repeat the question and ask you to answer it without talking about Capt. Innes. You and Ristvedt thought it looked so bad that you felt sure the captain would see it without you telling him?
“A. We thought so.
“Q. And that’s the reason you didn’t tell him?
“A. Yes, that’s the reason. The first time it was spoken about between us and Capt. Innes was Friday before the accident. He did see that Friday morning, and he asked me, ‘How is that hanging?’ and I told him, ‘It looks poor.’ The way I said it in English to Capt. Innes was: He' said, ‘How that belly over there, that belly look?’ I said, ‘That look kind of poor,’ I said — and he went to look. He take the bar; he try that. He said, ‘That look poor.’ When he tried it with the bar I thought it was poor. It sounded poor to me, and he said that poor. That was Friday morning. Saturday I said I didn’t sound it. We thought all day Saturday that it was poor. Hs * H«

On the redirect examination he testified:

“The night of my injury we had -been working in the upper stope there an hour and a half altogether. Previous to that night we had been working in the upper stope three months and a half. The day of my injury this belly I have mentioned had been undermined about a month. After the rock was taken out from that belly we worked above the belly up to that Monday evening. That is the Monday evening of my injury. During that time in going to my work we were going by the third level through that hole. When we went that way to my work we would not be required to walk under the belly. The working place was above this belly. * * *
“Q. After having been sent down to the point by the shift boss on Monday, did you think that the belly would come down on you?
“A. No.”

On the recross-examination he testified:

“Monday night we sounded the belly before Capt. Innes came. It sound poor to us. By that I mean the sound we got by hitting it with the bar. We thought it was what we call poor ground, poor hanging. When we had this talk with the trammers the trammers were in the stope then. It was before we talked with the trammers that we did this sounding. When we talked with the trammers and told them that the ground was poor and they said they could see it was poor, we had already sounded it. That was about 8 o’clock Monday night. We went underground Monday night at 7 o’clock, leave surface at a few minutes to 7, and get down to our work at 7. It was near 8 o’clock that Capt. Innes came. I don’t remember just the time. It was after we had talked with the trammers. Capt. Innes was on the third level. He talked to us from that hole. But he stayed up on the third level and just talked to us down through the hole. He was kneeling down partly looking down through the hole and talking to us. He would be six feet up from us. * * * ”

In addition to the authorities already mentioned, counsel say:

“The principle with reference to the effect of a promise of the employer to remedy the defect is thus stated in [4] Thompson on Negligence, §4666: .
* ‘On the other hand, the employee Is deemed to accept the risk, notwithstanding the promise of the employer to repair the defect, (1) where the danger is great, obvious, and immediate —such as a reasonably prudent man would not encounter.’
“A number of cases are cited in the margin and we have failed to see anything which raises any doubt as to the proposition in any jurisdiction.”

In construing the testimony of the plaintiff it should not be forgotten that, for a month after the removal of the pillar under the belly, plaintiff was at work above this point, where he would not have been injured had the rock fallen. While he thought it dangerous and so notified Capt. Innes, still the rock had not fallen, and it was not until he had been assured by the captain that he went to work where the injury occurred.

In Brouseau v. Supply Co., 158 Mich. 312 (122 N. W. 620, 27 L. R. A. [N. S.] 1052), it is said in part:

“If the employee, after notifying the employer of a dangerous defect, is induced to continue his work by the employer’s promise to remove the defect, his implied contract to assume the risk of such defect is suspended for a reasonable time, and the employer impliedly contracts to assume the risk of injury therefrom himself. Regarding the employer’s promise to repair as a temporary assumption of the risk on his part, it appears to us illogical to hold that the employee is no longer, charged with the obvious risks of a complicated machine, but still assumes the obvious risks of a simple implement. We deem it more in accordance with the principle upon which the doctrine of assumed risk rests in this State to hold that it applies alike to simple tools and complicated machinery. See 1 Labatt on Master and Servant, pp. 1223, 1224; Louisville Hotel Co. v. Kaltenbrun, 26 Ky. Law Rep. 208, 669 (80 S. W. 1163, 82 S. W. 378); Roux v. Lumber Co., 85 Mich. 519 (48 N. W. 1092, 13 L. R. A. 728, 24 Am. St. Rep. 102); Lyttle v. Rail way Co., 84 Mich. 289 (47 N. W. 571); Brown v. Lennane, 155 Mich. 686 (118 N. W. 581 [30 L. R. A. (N. S.) 453].
“We do not think it should be held, as a matter of law, that the directions of the master’s representative did not amount to a promise to repair, upon which the plaintiff had a right to rely. Neither can it be affirmed, as a matter of law, that plaintiff was guilty of contributory negligence without entirely depriving him of the protection afforded by the master’s temporary assumption of the risk. It is clear that, if the mere use of the dull tongs under the surrounding circumstances of peril constituted contributory negligence, the rule absolving plaintiff from the assumption of the risk which his employer had agreed to assume for the time being would be wholly valueless, since the rule only applies where the danger is not so imminent that an ordinarily prudent man would not assume the risk itself. Mann v. Railway Co., 124 Mich. 641 (83 N. W. 596).
“If plaintiff was guilty of contributory negligence, therefore, it was because he went on using the dull tongs which the employer requested him to continue using. According to his testimony, he used them with proper care, in reliance upon the orders and promises of his employer.
“The plaintiff, ‘it may reasonably be assumed, would to some extent have his fears allayed by the commands of a master, whose duty it would be not to send him into danger, and who might therefore be supposed to know, when he gave the command, that the dangers were not such or so great as the servant had apprehended. * * * Moreover, the assurances remove all ground for the argument that the servant, by continuing the employment, engages to assume its risks. So far as the particular peril is concerned, the implication of law is rebutted by the giving and accepting of the assurance; for nothing is plainer or more reasonable than that the parties may and should where practicable come to an understanding between themselves regarding matters of this nature.’ Cooley on Torts, pp. 556, 559, quoted with approval in Roux v. Lumber Co., supra.
“It is difficult to believe that any employer would induce an employee to continue a service which he believed would probably result in his serious injury. It is obvious that the plaintiff believed that, notwithstanding the apparent danger, he could escape injury in continuing his work. He had used the tongs without injurious results from their slipping up to the time of his injury. * * *■
“In the light of the testimony as to the results attending the use of the tongs before and after the plaintiff’s injuries, I do not think that it should be determined, as a matter of law, that the danger was so imminent and great that it was sheer recklessness on the part of the plaintiff to obey the directions of his employer, relying upon his assurances.
“The judgment ' is reversed, and a new trial granted.”

The language used in Runians v. Keller & Brady Co., 141 Ky. 827 (133 S. W. 960), is germane here:

“This is a case in which the master and servant both knew that the roof had not been scaled, and wherein the master, in the presence of the servant, examined the roof, assured the servant that it was safe, and .directed him to remove the debris before scaling the wall so that an approaching train might pass. The general rule is that when a master directs an employee to enter a dangerous place to labor and the employee complies with that order and is injured, he can recover from the master, unless the danger was so obvious and imminent that an ordinarily prudent person would not have undertaken the work, even though ordered by his master to do so. This is a question for the jury to determine. I. C. R. Co. v. Edmonds, 33 Ky. Law Rep. 933 (111 S. W. 331). In the case of Pullman Co. v. Geller, 128 Ky. 72 (107 S. W. 271, 32 Ky. Law Rep. 884, 129 Am. St. Rep. 295), this court, in speaking of the rule that obtains when a servant of his own volition enters a place to work knowing the danger, said:
" ‘This rule must, however, he applied with some modification, if the work is done in an emergency and by the direction of the master, or by his express command in the absence of an emergency, and the master gives the servant to understand that he does not consider the risk one which a prudent man would refuse to undertake, in such event the servant, notwithstanding his knowledge of the danger, has a right to rely on his master’s judgment, unless his own is so clearly opposed thereto, that, in fact, he does not rely upon the master’s opinion.’
“In the case of Stephens v. Railway Co., [96 Mo. 212] 9 S. W. 591 (9 Am. St. Rep. 336), the court said:
“ ’So, too, where the danger is patent and is known to the servant, the master may he liable for injuries resulting therefrom, as where he has lulled the servant into a sense of security by insisting there is no danger or has promised to remove the defect. Wood on Master and Servant, § 352. And, more to the point in this case, a recent text-book uses this language: “If, therefore, the master orders the servant into a situation of danger, and he obeys, and is thereby injured, the law will not deny him a remedy against the master on the ground of contributory negligence, unless the danger was so glaring, that no prudent man would have entered into it, even where, like the servant, he was not entirely free to choose.” ’ * * *
“The Nebraska court, in the case of Chicago, etc., R. Co. v. McCarty, 49 Neb. 475 (68 N. W. 663), announced the rule, which is a reasonable one, to be as follows:
“ ‘Our conclusion after a consideration of the subject is, that, it is a harsh and unreasonable rule which charges a servant, when commanded to perform an act by his master, with the duty of at • once determining whether or not' the act can be safely performed, and then performing it at his peril, or refusing to perform it at the expense of losing his employment. The risk incurred by obeying a negligent' command of the master is not one ordinarily incident to the servant’s employment, and is not an assumed risk, because negligence on the part of the master is not presumed to be a feature of the employment.
“In Shearman & Redfield on Negligence, § 186, we find the following:
“‘The true rule in this, as in all other cases, is that, if the master gives the servant to understand that he does not con-' sider the risk one which a prudent person would refuse to undertake, the servant has a right to rely .upon his master’s judgment unless his own is so cleariy opposed thereto that, in fact, he does not rely upon the master’s opinion. So, if the peculiar risk of the act commanded by the master is not obvious, the servant has a right to assume that he is not sent into any unusual peril, and he. is not bound to investigate into the risk, before obeying his orders. A servant is not called upon to set up his unaided judgment against that of his superiors; and he may rely upon their advice and still more upon their orders, notwithstanding many misgivings of his own. If the master directs the servant to do some act which is dangerous, but which could be made less dangerous by the use of special care on the part of the master, the servant has a right to assume that such special care will be taken, and does not take the greater risk upon himself. If the master calls suddenly upon the servant under circumstances which give no time for consideration, * * * he is bound to indemnify the servant for injuries sustained through obedience to such a call. The servant’s dependent and inferior position is to be taken into consideration; and if the master gives him positive orders to go on with the work, under perilous circumstances, the servant may recover for an injury thus incurred, if the work was not obviously so dangerous that no man of ordinary prudence would have obeyed.’ ”

Many other authorities to the like effect may be found in the brief. In the instant case it is a fair inference from the testimony that, while the plaintiff regarded the hanging wall as so dangerous as to need timbering to make it safe, he did not regard the danger as so immediate as to justify him in disregarding the assurance and the direction of his superior. The questions presented by the record could not properly be withdrawn from the jury.

Judgment is affirmed.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    FELDKAMP v. ERNST.
    1. Waters and Watercourses — Obstruction—Surface Waters.
    In a suit to enjoin the maintenance of a dam on premises of the defendant, resulting in turning on to complainant’s property water which had previously crossed over defendant’s land, thereby increasing the volume of water which flooded complainant, evidence, although in conflict, sufficiently sustaining complainant’s contention *that the dam turned all the water away from defendant’s lands that they would naturally receive, and that defendant’s obstruction caused the same to flow across complainant’s property, warranted a decree granting the injunction.
    2. Election of Remedies — Waters and Watercourses — Inconsistent Claims — Estoppel—Damages—Continuing Trespass.
    The commencement of an action at law for flooding complainant’s lands, where no declaration was filed, did not bar complainant’s right to obtain an injunction; for complainant might have pursued his legal remedy to recover such damages as he had sustained up to the time of commencing his action and a judgment would not have barred a subsequent action at law. The remedies at law and in equity were not so inconsistent as to warrant an application of the' rule of election.
    3. Judgment — Estoppel — Parties — Injunction — Waters and Watercourses — Dam.
    The fact that complainant, who asked for an injunction to compel the removal of a dam, had been a witness for another injured party in an action at law for damages, did not preclude his right to equitable relief, although, by stipulation, prospective damages had been recovered by the plaintiff in the cause, wherein complainant was not, however, made a party. Nor did the fact that complainant had agreed that if the case were lost, he would pay part of the expense, prevent him from seeking the right to an injunction.
    Appeal from Washtenaw; Kinne, J.
    Submitted June 20, 1913.
    (Docket No. 70.)
    Decided November 3, 1913.
    Rehearing denied January 5, 1914.
    Bill by George J. Feldkamp against Christian Ernst for an injunction. From a decree for complainant, defendant appeals.
    Affirmed.

      Frank A. Stivers, for complainant.

      A. J. Waters, for defendant.
   Brooke, J.

The bill of complaint in this cause is filed for the purpose of securing a mandatory injunction, compelling defendant to remove an artificial dam built upon his own lands, it being alleged that the purpose and effect of said dam is to deflect the natural course of surface waters, thus casting them upon the lands of one Finkbinder, and thence upon the premises of complainant.

A map introduced by defendant, the accuracy of which is questioned by complainant, will yet serve to indicate the relative positions of the several properties involved and the elevation of the lands in a general way. For convenient reference we publish it herewith.

A glance at the map will indicate that the lands of defendant, as well as those of Hotrum and Fink-binder, slope towards the north. The surface waters collecting upon the southerly portion of all the properties is finally collected through natural ways upon the northwest corner of Hotrum’s lands, immediately east of defendant’s line and south of Finkbinder’s. At that point the ground seems to be practically level. To drain this area, Hotrum, some time prior to the year 1898 (probably 1894), ran a double plow furrow,, indicated on the map as “Hotrum Ditch.” This furrow did not extend north to the line between Hot-rum and Finkbinder, and, it is claimed by complainant, did not in the slightest degree change the natural course of the surface waters. Defendant insists, however, that after Hotrum made the ditch in question the waters were diverted in a northwesterly direction upon his lands, instead of going, as formerly,

in a northeasterly direction upon and across the lands of Finkbinder and onto complainant’s lands. Defendant therefore in 1898 built the dam in. question. It is variously described in the record as a structure from 12 to 50 feet in length and from 2% to 5 feet in height. Some time after the completion of the dam Finkbinder commenced a suit at law against defendant Ernst for the recovery of damages growing out of the alleged wrongful diversion of the waters by means of the dam. Upon the first trial of this suit Finkbinder recovered a judgment against Ernst, which was reversed in this court because of erroneous instructions to the jury. Finkbinder v. Ernst, 126 Mich. 565 (85 N. W. 1127). A second trial again resulted in a judgment against defendant Ernst in the sum of $175. . This judgment against defendant Ernst was affirmed by this court (Finkbinder v. Ernst, 135 Mich. 226 [97 N. W. 684, 100 N. W. 180]) in June, 1904. While this litigation was in progress complainant herein had also commenced a suit at law against Ernst, which was not prosecuted, and was finally terminated by a default judgment against complainant. After the termination of the Finkbinder litigation complainant demanded that Ernst remove the dam. This being refused, he filed his bill of complaint in September, 1905. Upon the hearing, which did not occur until 1912, each party to the controversy swbre 14 witnesses. These witnesses were examined, cross-examined, and re-examined at great length by able counsel upon both sides. The record is further augmented by the introduction of certain evidence taken in the law case of Finkbinder v. Ernst.

The learned circuit judge who tried the case, and who, from his long residence and official activity in the county in which it arose, may be supposed to have had a more or less valuable acquaintance with the witnesses, and who furthermore had the advantage of noting the manner in which each witness gave his testimony, filed the following opinion:

“To my mind this case is not free from doubt. _ It is evident that both parties hereto earnestly believe that each is right. If it did not involve so great expense I should be disposed to summon a jury who might give their verdict upon the testimony presented, but this course is not ’practicable. The subject-matter of this litigation, although between other complainants, has been twice before this court and twice in the Supreme Court. A large amount of time and money has been consumed in this controversy. I find it impossible to divide this responsibility, or its burdens, between the parties thereto. Apparently the one must win and the other lose. The defendant has raised and argued certain propositions of law intended as a bar to this suit, which do not seem to me to be applicable to the facts in this case.
“I think the case should be disposed of upon the merits as presented by the evidence, and herein lies the serious trouble. Men of high standing and excellent reputation in their communities have been arrayed against each other in the giving of their testimony. The only explanation that I can find of this fact must lie in the very nature of the subject-matter of this litigation. It is evident that the memories of those witnesses, and the impressions which they now may form respecting the situation of these premises, differ radically. At the request of counsel, I, in their company, inspected these premises, with no other result than the conviction that I must depend on the testimony of the witnesses.
“I know of no standard whereby these impressions may be measured with any certain accuracy. It has seemed to me that the importance of this matter to either party hereto has been greatly exaggerated. Í think it would be difficult and perhaps unjust not to regard the two verdicts which have already been rendered in this matter as having at least some important instruction, although not necessarily binding upon the parties to this cause. The- respective counsel in this case have done all in their power to aid me to a right conclusion, and especially Mr. Waters, counsel for defendant, co.uld not have done more if the case had been his own.
“My conclusion in this matter is that the defendant made a mistake when he erected this dam, and that it ought to be removed. I do not think that its loss or removal will cause any serious loss or inconvenience to the defendant. I think that the costs to the complainant should not exceed the sum of $50. A decree. may be made in correspondence to this opinion.”

We have read the entire record with care; and, while the case is not free from doubt (no case can be free from doubt in the face of such conflicting evidence), we have reached the conclusion that the complainant established the following facts by a fair preponderance of the evidente:

(1) From the earliest period mentioned in the record, in times of high water, the water went, in part at least, over defendant’s lands to the northwest; (2) that the water had flowed in a much greater measure over defendant’s lands for two or three years prior to 1894, in which year Hotrum made his ditch; (3) that in making the ditch, Hotrum did not change the course of the water as it then ran; (4) that through the erection of the dam in question in 1898 defendant turned all of the water away from his lands, some of which they had received from the earliest times, and much, if not all, of which he had, through natural causes, been burdened with for some seven years.

We are quite aware that there is plenty of evidence in the record contradicting point-blank each of the foregoing propositions, but the evidence in favor of them we think preponderates. While the fact that two juries have found the dam to be an unlawful structure, and have assessed damages against defendant on account of its maintenance, has no direct bearing upon the question, it nevertheless tends to indicate that the testimony seems to affect all unprejudiced minds in a similar manner. The conclusions, too, of the learned circuit judge, who has three times gone over this vexed question, should not be, and are not, without weight. While the cause is tried in this court de novo, due consideration should always be given to the opinion of the court below upon questions of fact. The reasons for doing so in this case are, as pointed out, much stronger than is usual. Upon the merits, then, we find ourselves in agreement with the findings of the circuit judge.

But it is urged on behalf of defendant that complainant cannot succeed in a court of equity because, having commenced a suit at law, for damages growing out of the erection of the dam in question, he should be held to have elected his remedy — a remedy inconsistent with the one he now seeks. Are the two remedies inconsistent? We think not. No declaration was filed in the suit at law, a summons only was served. Complainant in this cause (plaintiff there) certainly had a right to pursue his legal remedy against defendant for the recovery of damages he had sustained up to. that time. Had he recovered a judgment for such damages, it would have been no bar to a second or third legal action for. subsequently accruing damages. Nor would such a judgment have prevented him from seeking the aid of a court of equity to secure the abatement of the dam if defendant persisted in maintaining it.

Defendant further contends that complainant should be held to be estopped from prosecuting this action for the following reasons: In the case of Finkbinder v. Ernst by stipulation of counsel it was agreed that the damages were claimed on account of permanent injury to the soil, and upon the theory that the dam was to remain. In that case complainant was a witness, and had agreed with Finkbinder that if the case were lost he. (complainant) would pay some portion of the expense. It further appears that the gentlemen who represented Finkbinder in his suit now appear as solicitors for complainant. From these facts counsel for defendant argues that, having aided Finkbinder in securing a judgment upon the theory that the dam was to be permanent, complainant should not now be permitted to seek its abatement. It is not shown that complainant had any control of the theory upon which Finkbinder's Case was tried, nor that he had any interest in the judgment. He was interested in establishing the illegality of the structure, and, having such interest, we can see no impropriety in his having agreed, in case of loss, to share the costs with Finkbinder. He was not a party to the suit, and was in no wise bound by the judgment.

It is said by counsel for defendant that in this case injunctive relief should be denied because to grant it would cause much greater hardship and damage to defendant than its denial would cause to complainant. We do not think this fact very clearly appears in the record, and the court below, after a personal examination of the premises, was of the opinion that the removal of the dam would not cause any serious loss or inconvenience to defendant.

In their zeal for the interests of their respective clients counsel for both parties have in their briefs permitted themselves the use of language acrimonious, if not abusive. While due allowance must be made for partisanship, it should not be forgotten that the administration of justice is never aided by the substitution of invective for argument.

The decree of the court below is affirmed.

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


author: Stone, J.

text:
    PRATT v. ALLEGAN CIRCUIT JUDGE.
    1. Fraud — Process—Affidavit for Capias — Opinions—Value.
    The rule that a seller has the right to praise his property and to give his opinion concerning its value cannot he extended to warrant false representations as to value and selling qualities, which may he relied on by the purchaser and operate as an inducement to the deal.

    2. Same — Vendor and Purchaser — Opinion—Arrest.
    The representation that property will readily sell in the market at a stated price is a representation of fact, and, if relied upon, may be treated as the basis of an action for fraud: an .affidavit for capias charging such misrepresentation is not defective on the ground that it sets up statements that constituted mere “seller’s talk.”
    3. Arrest — Process—Affidavit—Capias ad Respondendum.
    An affidavit for a capias charging defendant with false representations relative to the value and selling properties of certain real estate was not defective because it did not set forth the fact that the deponent was possessed of knowledge sufficient* to render him competent to state his opinion as to its value, where the affidavit averred that affiant had personal knowledge of the facts stated: no question of expert knowledge was involved; any citizen familiar with values might testify or give>his opinion.
    4. Same — Process—Capias.
    Where the fact stated in the affidavit is one about which testimony of any person having means of knowledge would be admissible, the affiant need not set forth the source and extent of his knowledge if it contains the general averment that he has personal knowledge of the facts or circumstances stated.
    Mandamus by Ernest E. Pratt and another against Orien S. Cross, Allegan circuit judge, to compel respondent to quash, a writ of capias ad respondendum.

    Submitted October 7, 1913.
    (Calendar No. 25,621.)
    Writ denied November 3, 1913.

      Bóscoe G. Goembel and D. O. French, for relators.

      Clare E. Hoffman, for respondent.

       On the question whether statements as to value constitute a fraud, see note in 35 L. R. A. 418, 436. And for false statement as to cost, selling, or market price of property, or as to offers therefor, see note in 35 L. R. A. (N. S.) 175.

   Stone, J.

The relators were arrested upoh a capias ad respondendum. They ask for a writ of mandamus, requiring respondent to set aside the order overruling their motion to quash the writ; and counsel for relators state that there is but one question for the determination'of this court, and that is whether the affidavit filed in support of the writ of capias ad respondendum was sufficient to warrant the issuing of said writ, and the arrest of relators, and holding them to bail.

The first three paragraphs of the affidavit contain the statements as to the parties, the purpose of the affidavit, the value of certain personal property owned by affiant and his desire to sell the same, and the further statement that the facts and circumstances stated in .the affidavit are within the personal knowledge of the affiant.

The fourth paragraph contains the direct statement that the defendants, relators here, with intent to cheat and defraud affiant and to obtain his personal property without adequate and just compensation, offered to procure and transfer to him certain real estate in exchange for affiant’s said personal property; that said real estate was represented by said relators to be worth the sum of $2,100, and that the equity which was to be transferred to affiant was worth $1,225 cash.

The fifth paragraph contains the following language :

“And for the purpose of inducing this affiant to. transfer said personal property, and inducing this affiant to accept the transfer of said contract and said deed of said second described' piece of land as security for the payment of said sum of $1,225, and to forbear insisting upon the payment of said sum of $1,225 immediately and before the transfer of said personal property, did then and there falsely represent and pretended to this affiant that the real estate described in said contract was worth $2,100 cash in the real estate market of the city of Kalamazoo, and that the equity in said contract was well worth the sum of $1,225 cash, * * * and did falsely represent and pretend to this affiant that the said real estate described in said deed above mentioned was worth the sum of $300 cash in the real estate market of the city of Kalamazoo, and that each of said pieces would readily sell for the sums above named at any time, and that said sums were a fair cash price for said pieces of real estate.”

The sixth paragraph contains the statement that/ affiant believed and relied upon the representations made, and, being deceived thereby, did transfer the personal property and accept .the assignment of the contract for the real estate, instead of the payment of the money.

The seventh paragraph was as follows:

“And affiant further avers that said real estate described in said contract, which said contract was assigned to this affiant, was not worth to exceed the sum of $1,300 in the real estate market of the city of Kalamazoo ; that the equity in said contract was not worth to exceed $400, and that said second piece of real estate was not worth to exceed $75 in the real estate market of the city of Kalamazoo, and that neither piece would sell for more than said mentioned sums.”

The grounds of the motion to quash the writ of capias are as follows:

(1) Because the affidavit upon which the order to hold to bail was based was insufficient to authorize . defendants’ arrest; (2) because the affidavit of the plaintiff contains nothing indicating that he is possessed of any knowledge of the value of real estate, or the real estate in question; (3) because the affidavit of plaintiff, upon which the writ is issued, contains nothing indicating that plaintiff is possessed of the knowledge requisite and necessary to render him competent to form or express an intelligent opinion upon the value of the real estate in question j (4) because the. affidavit of the said plaintiff contains nothing to show that he is qualified or competent to testify to the value of said real estate, or that he ever saw said real estate, or has any knowledge thereof whatever; (5) because the affidavit of said plaintiff does not state where he resides or what his business is; (6) because said affidavit does not state where said defendants reside; (7) because said affidavit is based in part upon information, and not upon actual knowledge; (8) because said affidavit is in many other respects insufficient and inadequate upon which to base an order to hold to bail.

The respondent, in his answer to show cause, returns that all the grounds set forth in said motion as reasons why said writ should be quashed were upon the argument and hearing of said motion abandoned, except the second, third, and fourth, and that the only point urged and argued upon the hearing of said motion was the one that it appeared on the face of the affidavit that the affiant Dean did not possess sufficient qualification to justify him to give an opinion as to the value of the real estate situate in Kalamazoo city, and that the question as to the value of the property in Kalamazoo was one requiring the opinion of an expert, and that counsel’s argument and citation of authorities were directed at this point, and this point alone; the two cases relied upon by him being Church v. Calhoun Circuit Judge, 129 Mich. 126 (88 N. W. 403), and Gardiner v. Wayne Circuit Judge, 155 Mich. 414 (119 N. W. 432). In this court relators’ counsel discuss the further question that the allegations' as to statements of value are mere matters of opinion upon which men might fairly and honestly differ, and cannot be made the basis of a fraudulent representation.

1. We recognize the rule that a seller has a right to praise his property and to give his opinion concerning its value, but we have held that this- rule cannot be extended to embrace false representations of alleged facts in a case which may be, and were, relied upon by the purchasei“ and became an inducing cause of the trade. A collection of Michigan authorities upon this subject will be found in Wegner v. Herkimer, 167 Mich. 587, at page 595 (138 N. W. 623), and we refer especially in that collection to the cases of Maxted v. Fowler, 94 Mich. 106 (53 N. W. 921), and Peck v. Jenison, 99 Mich. 326 (58 N. W. 312).

Can it be said that the language above quoted, that the defendants “did then and there falsely represent and pretended to this affiant that the real estate described in said contract was worth $2,100 cash in the real estate market of the city of Kalamazoo, and that the equity in said contract was well worth the sum of $1,225 cash, and that said real estate described in said deed above mentioned was worth the sum of $300 cash in the real estate market of the city of Kalamazoo, and that each of said pieces would readily sell for the sums above named at any time, and that said sums were a fair cash price for said pieces of real estate,” was mere “seller’s talk,” or may it be said to be the representation of facts which might be relied upon by the purchaser and become an inducing cause of the trade? We are of opinion that the representation that property would readily sell in a certain market at a given price is the representation of an alleged fact, and, where relied upon as here stated, may be made the basis of a false representation.

2. This brings us to consider the only question that was argued before the respondent, Was the affidavit defective because it did not set forth the fact that the affiant was possessed of the knowledge requisite and necessary to render him competent to form or express an opinion upon the value of the real estate in question? It does appear upon the face of the affidavit, by direct statement, that affiant had personal knowledge of the facts therein set forth, and it seems to us that the question as to the value of the Kalamazoo property was one with which affiant might be familiar, and was one with which the affidavit itself shows he was familiar, and that the court has no right to hold as untrue affiant’s statement that he had personal knowledge as to the value of the real estate described in said contract, and of the equity in said contract. We do not think tliat the case falls within the doctrine of the cases relied upon by relators’ counsel.

The case of Church v. Calhoun Circuit Judge, supra, was an action against a physician for malpractice. The affidavit charged him with negligently performing a surgical operation upon the person of plaintiff’s wife, thereby causing her death. In that case Justice Hooker said:

“Were plaintiff offered, upon a trial of the cause, as a witness to prove the charge, his opinion as to the defendant’s negligence would not be admissible. He would be competent to testify as to what the defendant did, of omitted to do; but whether what he did, or omitted, constituted negligence or unskillfulness, and whether the wife’s death was a consequence or not, would necessarily depend upon the evidence of persons shown to possess technical knowledge.”

In the instant case no question of expert testimony is involved, but any citizen having the requisite knowledge of values, might testify.

An examination of Gardiner v. Wayne Circuit Judge, supra, will show that the affidavit stated that affiant had been informed by the Union Trust Company that Mr. Gardiner had forfeited his claim to the land; and it distinctly appeared that all the knowledge affiant had was contained in a notice of cancellation sent him by an officer of said company. This court held that such information was purely hearsay, and afforded no foundation for depriving a man of his liberty. It distinctly appearing that the statement that affiant had learned that Gardiner was not the owner of'the land in fee simple was not a statement of personal knowledge and there being no further affidavit of the source of his information, it was held insufficient to justify the arrest of the defendant. These cases we think are readily distinguished from the case we are here considering.

Applying the rule laid down by this court in Hatch v. Saunders, 66 Mich. 181 (33 N. W. 178); Paulus v. Grobben, 104 Mich. 42 (62 N. W. 160); Robinson v. Branch Circuit Judge, 142 Mich. 70 (105 N. W. 25); and Muir v. Wayne Circuit Judge, 151 Mich. 117 (114 N. W. 659) — we are of opinion that the affidavit in the instant case was sufficient, and that the correct rule may be said to be that where the fact stated in the affidavit is one about which the testimony of any person having means of knowledge would be admissible, the affidavit need not set forth the source and extent of affiant’s knowledge, where the affidavit contains the averment that he had personal knowledge of the facts and circumstances set forth in the affidavit. In other words, where an affiant in an affidavit for a capias charging fraudulent representations as to the value of real estate, makes the statement that the facts set forth are within his personal knowledge, and where the fact stated is one with which any witness might personally be familiar, and is one to which the ordinary witness might testify, and on which the testimony of an expert is not necessarily required, the court will not add to the statutory requirement, nor will it be held that all the things which merely go to determine the weight of the statement must also be stated in detail. To hold otherwise would be to require great prolixity in such an affidavit, and it is neither necessary nor customary to give these particulars in an affidavit for arrest, where the averment is one which appears to have been within the knowledge of the affiant. 1 Stevens’ Michigan Practice, §§ 214, 215. This does not in any way conflict with the rule recently announced by this court in the cases of Soule v. Ottawa Circuit Judge, 175 Mich. 127 (140 N. W. 990), and Rice v. Kalamazoo Circuit Judge, 176 Mich. 322 (142 N. W. 336), as an examination of those cases will readily show.

We do not think that the circuit judge erred in denying the motion to quash. The writ of mandamus is denied, with costs against the relators.

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


author: Ostrander, J.

text:
    COATSWORTH v. WAYNE CIRCUIT JUDGE.
    1. Mandamus — Appeal and Error — Service oe Process.
    Mandamus is tlie proper remedy to review an order quashing service of a declaration on the ground that the defendant was exempt from service of process, since the ruling was not a final order reviewable on error; proper service being yet open to plaintiff.

      2. Process — Service oe .Declaration — Privilege—Witnesses.
    That portion of Act No. 76, Pub. Acts 1905 (5 How. S’tdt. [2d Ed.] §12648), authorizing service by declaration upon, “any person, whether privileged from arrest or not,” does not permit service on a defendant who is a resident of Canada and who enters the jurisdiction to attend, for the purpose of testifying, a proceeding in the Federal court to which he and the plaintiff were parties litigant.
    Mandamus by Jennie Coatsworth against P. J. M. Hally, one of the circuit judges of Wayne county, to compel the respondent to set aside an order quashing service of declaration in an action commenced by relator against one George Jasperson.
    Submitted October 14, 1913.
    (Calendar No. 25,793.)
    Writ denied November 3, 1913.

      Francis H. Warren and M. J. Lehman & Sons, for relator.

      Devine & Snyder, for respondent.
   Ostrander, J.

Relator filed her declaration, entered a rule to plead, and caused the declaration to be served upon one George Jasperson, the defendant named in the declaration. The defendant moved for an order setting aside the service of the declaration for the reason that he was a resident of Canada, and at the time the declaration was served was within the jurisdiction of the court for the purpose of attendance upon the Federal court in a proceeding therein, to which proceeding he and relator were parties, and in which he was called and gave testimony as a witness. An order setting aside the service of the declaration was entered, and relator seeks here a writ of mandamus to set aside such order. The matter receives consideration in this court because the court below refused to retain jurisdiction of the cause, and because, further, the order setting aside the service of the declaration is not, necessarily, a final order, reviewable on error. That is to say, proper occasion presented, service of the declaration may still be made, and the service which was made is not void, but is voidable. Watson v. Judge of Superior Court of Detroit, 40 Mich. 729.

Relator relies upon a statute, found in the Revised Statutes of 1846, and since and now a part of the statute law of the State, last found with an amendment not here material in Act No. 76, Public Acts of 1905 (5 How. Stat. [2d Ed.] §12648). The section reads:

“Actions brought for the recovery of any debt, or for damages only, may be commenced, either: 1. By original writ; or, 2. By filing in the office of one of the clerks of the court a declaration, to which is attached, or upon which is indorsed, a rule requiring the defendant to plead to such declaration within fifteen days after the service of a copy thereof and notice of such rule, and serving a copy of such declaration, and notice of such rule personally on the defendant; which mode of commencing an action may be adopted against any person, whether privileged from arrest or not.”

It is said that, properly interpreted, this section denies to the defendant the privilege he asserts. It would seem that the contention of relator is answered by the decisions of this court in Mitchell v. Huron Circuit Judge, 53 Mich. 541 (19 N. W. 176); Letherby v. Shaver, 73 Mich. 500 (41 N. W. 677); Jacobson v. Wayne Circuit Judge, 76 Mich. 234 (42 N. W. 1110); Cofrode v. Wayne Circuit Judge, 79 Mich. 332 (44 N. W. 623, 7 L. R. A. 511); Hoffman v. Bay Circuit Judge, 113 Mich. 109 (71 N. W. 480, 38 L. R. A. 663, 67 Am. St. Rep. 458), unless, as is contended, the bar and courts of this State have not heretofore discovered the real signifiance of the concluding phrase of the statute. But in holding, as several times it has been held, that the privilege relied upon does not' depend upon statute, and that the statute privilege from arrest does not exclude the common-law privilege of exemption from service of process in cases like this, the present contention of relator has been clearly answered.

The writ is denied. Defendant Jasperson will recover his costs from the relator.

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


text:
    ROUSSEAU v. BROTHERHOOD OF AMERICAN YEOMEN.
    1. Witnesses — Evidence — Estates oe Decedents — Matters Equally Within Knowledge oe Deceased — Agent—Insurance —Principal and Agent.
    The testimony of mere clerk and bookkeeper of a local agent of defendant fraternal benefit association, relating to matters equally within the knowledge of a deceased member of the society, was not barred by 3 Comp. Laws, § 10212, as amended by Act No. 239, Pub. Acts 1901, and Act No. 30, Pub. Acts 1903 (5 How. Stat. [2d Ed.] § 12856). The term “agent,” as used in the statute, does not have reference to a subagent whose appointment was not authorized or made by defendant corporation.
    2. Same.
    On the trial of an action upon a benefit certificate, the trial court erred in refusing to admit the testimony of a clerk of defendant’s local agent, offered to show that decedent was in arrears and she sent him a notice as required by the rules of the society; and an admission of defendant’s attorney that the testimony of the agent himself would be barred, was not binding on the court.
    Case-made from Delta; Flannigan, J.
    Submitted November 11, 1912.
    (Docket No. 99.)
    Decided December 17, 1912.
    Rehearing granted March 21, 1913.
    Opinion filed November 3, 1913.
    Assumpsit by Eva Rousseau against the Brotherhood of American Yeomen on a benefit certificate. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed.

      H. J. Rushton, for appellant.

      A. H. Ryall and John L. Loell, for appellee.
   Ostrander, J.

The beneficiary in a policy or certificate of life insurance issued by defendant to one Frank L. Rousseau brought suit thereon. With its plea the defendant gave notice that it would prove in its defense, among other things, that when the insured died the said policy was not in force and had been canceled for nonpayment of dues; that at the time of his death the said Frank L. Rousseau was not a member in good standing of defendant organization and had not complied with the agreements, conditions, and covenants in said policy contained. At the trial the court directed a verdict for plaintiff and judgment was entered on the verdict. Error is assigned upon this ruling and the one upon which it is based, which excluded the books kept at the local homestead of the defendant and the testimony óf a clerk of the agent of defendant upon the subject of nonpayment of dues by and suspension of the insured before his death.

It is stated in the brief for appellant that plaintiff made a prima, facie case and that the question is •whether one Carrie Weisert, the clerk of defendant’s agent, was a competent witness for defendant to prove the nonpayment of dues by and suspension of the deceased.

The controlling statute is 3 Comp. Laws, § 10212, as amended by Act No. 239, Public Acts of 1901, and Act No. 30, Public Acts of 1903 (5 How. Stat. [2d Ed.] § 12856). Defendant undertook to prove nonpayment of assessments and dues and the suspension' of the member because of such nonpayment and in assuming this burden called the witness Carrie Weisert. Before calling her, defendant’s attorney had made the admission that, if Dupuis (defendant’s agent) was called as a witness for defendant, he could not testify about matters equally within the knowledge of deceased. This admission was equally applicable to the witness Weisert if she was an agent of defendant and not, as defendant asserted, a mere clerk of an agent. Wallace v. Mystic Circle, 127 Mich. 387 (86 N. W. 853). See, also, Great Camp K. O. T. M. v. Savage, 135 Mich. 459 (98 N. W. 26); Franken v. Supreme Court I. O. F., 152 Mich. 502 (116 N. W. 188). Dupuis, who at the time in question was the agent of defendant, his office being that of correspondent of Homestead No. 1284, testified:

“I hired Miss Weisert as helper around the house and with the books. I paid her.”

Miss Weisert testified that she had worked for Dupuis for five years as bookkeeper, and, with respect to the business of defendant, she kept the books and did a little housework. She made out receipts, checked up the books every month, notified Dupuis of any members in arrears, sent out notices to members over the name of Dupuis. She identified a card (postal card, but.sent in an envelope) as like those sent out to members. The information or data on these cards she got from the books. It is to be inferred from her testimony that she sometimes received dues or assessments from members and entered the same on the books. Concerning her competency the court said:

“Under the testimony as it stands, the young woman was such an agent of the insurance company in respect to the collection of dues and keeping account thereof and the giving of default notices that she would be disqualified to testify to matters equally within the knowledge of the deceased person. She is not exactly in the position of an ordinary bookkeeper or clerk or stenographer. A bookkeeper whose duty it is to enter upon the books the various matters which come into the office for the purpose is a mere clerk; but in this case. this young woman collected the money herself and entered it on the books; and it seems to me the rule should be invoked in a case such as this, where the party brought on to testify is the very person interested in the matter of the correctness of the account. She is charged with the duty of making the collection, and then she is brought on to testify that this man did not pay her the money. It seems to me the object of the statute is to exclude just exactly that sort of testimony. If these collections were made by Mr. Dupuis or any other officer or employee of this company and sent in to the office in the regular course of business, and this woman simply entered them on the books, then I think she would be admitted to testify, to identify, the books, and upon proper identification we might admit the books in evidence. But under the circumstances of this case the testimony of this young woman, all of it, is incompetent and must be excluded, and the jury will be instructed to pay no attention whatever to her testimony.”

The statute excludes the testimony of officers and agents of the corporation. We held in Krause v. Assurance Society, 105 Mich. 329, 334 (63 N. W. 440), thát the testimony of a clerk or stenographer in the office of an agent of the defendant was not excluded by the statute, remarking that:

“She was not in the employ of the company, but was an employee of the general agent at Detroit.”

In Brennan v. Railroad Co., 93 Mich. 156 (53 N. W. 358), it was said in applying the statute:

“In what sense is the word ‘agent’ employed? We think this section must be held' to include only those who are authorized, in the matter with reference to which testimony is given, to act for the company.”

In that case the question was whether a conductor and brakeman, admittedly agents of the company for some purposes, were agents for a particular purpose. See, also, Wallace v. Mystic Circle, 121 Mich. 263, 267 (80 N. W. 6).

It is true that the authority of an agent to employ a subagent may be implied; the acts of the subagent being treated in law as the acts of the agent and as such binding on the principal. Mechem on Agency, § 103; Bodine v. Insurance Co., 51 N. Y. 117 (10 Am. Rep. 566). In a sense, any clerk of an agent who under direction of his employer performs duties which the agent is bound to perform for his principal is a subagent. But we think the legislature, in the statute in question, has not used the term “agent” in this sense. Miss Weisert was a clerk of defendant’s agent, without authority from and owing no duty to the defendant. She may have knowledge of matters which were equally within the knowledge of the deceased certificate holder. She was not an agent of defendant within the meaning of the statute, and her testimony ought to have been received. It is said by appellee that, if erroneous, the ruling excluding the testimony of the witness was without prejudice. This contention is rested upon what afterward occurred upon the trial of the case. The record discloses that counsel for defendant said to the court:'

“We have a statute that makes it mandatory for a notice to be sent by the agent of the company, and then the statute says in another breath that the agent cannot swear that he sent that notice; then a man might be in arrears for six months, and we could not in any way defend ourselves against such a proposition as that.”

The court replied:

“The statute provides a method whereby you could make this proof, but you haven’t followed that method.”

The statute referred to is 2 Comp. Laws, § 7525, relating to co-operative associations, and provides that an affidavit made by the person having charge of the mailing of such notices shall be prima facie evidence thereof. By stipulation counsel for defendant filed such an affidavit made by Carrie Weisert. Thereupon counsel for plaintiff recalled her for cross-examination and interrogated her concerning the signing and mailing of the notice. The notice itself indicated that the member was not at the time of sending the same suspended but would be suspended if the assessment, called to his attention by the notice, was not paid before the end of the month. It is said that the concession or admission of counsel for the defendant, the language of the statute last above referred to, and the notice sent out negative the fact that a proper notice was sent. In' this connection counsel for plaintiff (appellee) contends that the admission or concession of counsel is binding, citing Connor v. Railway Co., 168 Mich. 29 (133 N. W. 1003). In directing a verdict for plaintiff, the court said that there was no evidence tending to prove any breach of the conditions of his policy and made no specific ruling concerning the effect of the testimony just referred to.

The admission or concession of counsel for the defendant as to the applicability of the statute is not binding upon the courts, and Connor v. Railway Co. is not an authority in point. Various considerations, including the laws of defendant, set out in the record influence us not to determine the effect of the notice which was sent to the insured.

The judgment is reversed, and a new trial granted.

The opinion of this court in this case filed December 17, 1912, is recalled.

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