text:
    CITY LUMBER CO v. HOLLANDS.
    1. Usury — Equity—Foreclosure of Land Contract — Vendor and Purchaser — Contracts.
    Where complainant purchased property on which it held a mechanic’s lien, at foreclosure sale, and obtained a deed from the owner of the fee, in settlement of his right to redeem, also giving to the contractor and owner a lease in which an option to purchase and a bonus of $1,000 was included as a part of the purchase price to be paid by the vendee over and above the amount which would have been required to redeem at that time, complainant was entitled to foreclose the contract for the agreed consideration, and the amount claimed to be a bonus could not be treated as usurious.
    2. Same — Deeds—Conveyances—Mortgage.
    Defendant’s deed to complainant conveyed an absolute title and he had merely an option of purchase and a lease; the transaction did not amount to a mortgage, legally or equitably.
    3. Vendor and Purchaser — Equity—Foreclosure of Contract— Conditions — Decree.
    In a decree of foreclosure of a land contract in the provisions of which a default had occurred, the trial court properly included in the provision for redemption a con^ dition that the defendant should pay a prior mortgage, outstanding against the property, protecting the defendant’s rights by requiring complainant to deliver to defendant a discharge of the lien.
    4. Same — Redemption—Insurance.
    Nor did the court err in allowing to the complainant only the amount of insurance necessary to protect its debt, although it had obtained a larger amount of insurance, on the real property and although the contract provided that the buyer should keep the buildings insured in manner and amount approved by the vendor.
    •5. Same — Redemption.
    A decree of the lower court foreclosing a contract of lease and option to purchase as a mortgage, treating the transaction as having been executed to secure an existing obligation, may be affirmed on appeal, except as to the provision for redemption which need not be for so long a time as in case of mortgage foreclosure.
    Appeal from Wayne; Mandell, J.
    Submitted April 10, 1914.
    (Docket No. 27.)
    Decided July 24, 1914.
    Bill by the City Lumber Company against Harry F. Hollands and others to foreclose a land contract. From a decree for complainant both parties appeal.
    Modified and affirmed.

      Charles H. Hatch, for complainant.

      Thomas Hislop, for defendant Hollands.
    The bill of complaint in this cause is filed for the purpose of obtaining foreclosure of a land contract dated January 19, 1912, covering a lot located at the northeast corner of Lincoln and Warren avenues, in the city of Detroit.
    It appears that in 1902 defendant Hollands had acquired title to the lot in question. Thereafter he started to erect buildings thereon, but, through lack of capital, seems to have met with many vicissitudes.
    In 1909 this complainant filed a bill to foreclose a mechanic’s lien, and in the same year Hollands filed a bill against one Peters, who had an interest in the premises. These suits were consolidated, and a decree fixing the rights of the parties was entered May 9, 1910. On August 2, 1910, a sale was had under said decree, and the complainant herein became the purchaser. On August 10, 1910, complainant received a deed from Mr. Peters, and executed a mortgage back to him in the sum of $4,798.38.
    Complainant then demanded possession of the premises from Hollands, which he refused, claiming the right to redeem from the sale under the decree. This dispute was adjusted as follows: Hollands executed and delivered to complainant a warranty deed of the premises, and complainant in turn executed a contract to Hollands agreeing to reconvey the premises to Hollands upon payment of certain sums therein specified, together with certain other sums which complainaht agreed to advance for labor and materials. Hollands did not agree to take the property and pay the various sums named. The contract, in effect, was an option and lease. The foregoing deed and contract were dated September 1, 1910. Complainant carried out its part of this contract, but defendant failed to comply with its conditions.
    Therefore in April, 1911, complainant sought by summary proceedings to recover possession of the premises. A judgment having been rendered against Hollands by the commissioner, he appealed to the circuit court. Oh October 25, 1911, this appeal was decided adversely to Hollands, whereupon he took out a writ of error to this court. On November 29, 1911, complainant filed a bill against Hollands for the purpose of enjoining him from intruding upon the westerly 69 feet of the lot in question. Hollands answered this bill, claiming that the contract was a mortgage, and that he was entitled to, and was in, possession;

      Matters were in this condition when, on January 19, 1912, the parties adjusted their differences and entered into the following agreement:
    “This agreement made this 19th day of January, 1912, by and between City Lumber Company, a Michigan corporation, party of the first part, and Harry F. Hollands, party of the second part, witnesseth:
    “Whereas, considerable litigation has been had and heretofore pending between the parties hereto' and certain contracts are now in existence between the parties hereto, now therefore the parties hereto mutually agree that in consideration of a certain land contract made and executed between the parties hereto and bearing date this day the parties hereto for themselves, their successors, heirs, and assigns hereby agree that all contracts, written and oral, and all understandings heretofore had respecting rights in any lands therein described or claimed by either party hereto are hereby canceled and destroyed and held void, and that all suits have been discontinued, and every understanding, written and oral, is merged into and settled by the making and executing of the land contract dated January 19th, 1912. (Provided, however, that the warranty deed heretofore executed by said Hollands to said City Lumber Company shall remain in full force and effect.)
    “In witness whereof the parties hereto have hereunto set their hands and seals this 19th day of January, 1912.
    “City Lumber Co. [Seal.]
    “By William N. McLennan,
    “Secty. & Treas.
    “[Corporate Seal of City Lumber Company.]
    “Harry F. Hollands. [Seal.]"
    The land contract referred to in the foregoing agreement was duly executed upon the same day. It provided for the conveyance of the land in question to Hollands upon payment of $14,158 (one-half within six months from date, and the balance within one year), together with interest at the rate of 6 per cent., taxes and insurance. Hollands agreed to complete the buildings upon said lot within six months and to pay the stipulated sums. Thereafter complainant furnished to Hollands certain materials, and loaned him certain moneys, to secure which on May 17,1912, Hollands gave to complainant his promissory note for $1,586.68, and assigned to it as further security his interest under the land contract.
    Hollands made default, and this bill was filed October 7, 1912. The court below found that the transaction amounted to a mortgage, ascertained the amount due, and decreed a foreclosure, providing a period of six months after sale during which defendant might redeem. From this decree defendant appealed. Complainant then filed a cross-appeal.
   Brooke, J.

(after stating the facts). The principal objection to the decree urged on behalf of defendant is that the amount fixed by the court to be paid by defendant upon redemption includes the sum of $1,000 agreed upon between the parties as a bonus and constituting a part of the consideration of $14,158 mentioned in the contract. At the time this contract was entered into complainant held a deed of the property from the circuit court commissioner dated August 2, 1910, a quitclaim deed from A. & E. Peters dated August 12, 1910, and a warranty deed from defendant dated September 1, 1910.

Defendant had failed to exercise his option to purchase under the contract of September 1, 1910, and a judgment awarding possession of the premises to complainant had been entered in the circuit court. Under these circumstances, we are of opinion that complainant could lawfully agree to sell the property to defendant for any sum which defendant was willing to pay. It was the owner of the property and entitled to its possession.

The theory of defendant that the contract should be treated as a mortgage (adopted by the learned circuit judge) is, in our opinion, not borne out by the admitted facts and written evidence in the case. Defendant urges this theory for the purpose of insisting upon the claim that complainant practiced usury in compelling him to pay a bonus of $1,000 to secure a conveyance. Upon this phase of the case the court below (while holding the transaction to constitute an equitable mortgage) said:

“As far as the other claims are concerned, I think the settlement of January 19, 1912, was an agreement between the parties providing for a consideration moving to each one. Whether the consideration was adequate or not cuts no figure. It was a valuable consideration, and that the amount of indebtedness of Hollands to the City Lumber Company was the amount then and there agreed upon and whether that was made up of items that had no proper place therein cuts very little figure, because the value to one or the other of the parties to the agreement of the discontinuance and settlement of the various debts or litigation that was then being conducted would be difficult of ascertaining, and, as they agreed as to the amount of the indebtedness and entered into a contract, it is not for the court to set aside the settlement that they voluntarily entered into, because a mistake was made in regard to some of the items that went to make up the aggregate. I am now stating my reasons for finding that there is nothing in this litigation that could be called usurious to the extent of preventing a recovery.”

The deed of September 1, 1910, from defendant to complainant and the contract of even date between complainant and defendant constituted an absolute conveyance with a lease and an option to repurchase. Stahl v. Dehn, 72 Mich. 645 (40 N. W. 922); Reed v. Bond, 96 Mich. 134 (55 N. W. 619), and cases cited.

Defendant next objects to the inclusion in the decree of the sum of $4,798.38, which is secured by a note and mortgage given by complainant to Mr. Peters. Touching this item it is sufficient to say that the decree fully protects defendant’s rights. Section 19 of the decree provides that, in case of redemption by defendant, complainant shall forthwith pay the Peters mortgage and deliver to said Hollands a discharge thereof. The same may be said as to the item of $306.75 for radiators in the building, payment of which item has been assumed by complainant.

In fixing the amount to be paid by defendant in case of redemption, it became necessary to determine how much complainant should be allowed for insurance. The court allowed complainant to recover for insurance only to the extent necessary to protect its debt. Complainant urges that it should recover for the cost of all insurance placed by it upon the property because the contract provides that Hollands shall keep the buildings insured “by insurers and in manner and amount approved by said. first party.” We are of opinion that upon this point the court below reached a proper conclusion.

Inasmuch as the decree in a mortgage foreclosure differs from a decree upon the foreclosure of a land contract in but one material respect — that involving the time limited for redemption (Jones v. Bowling, 117 Mich. 288 [75 N. W. 611]) — we see no reason why the decree of the court below should not be affirmed with the following modification.

By the decree of this court a new date will be fixed after which a sale may be made. Defendant will be allowed 30 days after sale in which to redeem.

Modified as above, the decree of the court below is affirmed, with costs to complainant.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    DOWAGIAC MANUFACTURING CO. v. SCHNEIDER.
    1. Contracts — Construction—Accord and Satisfaction.
    It was a question for the court, not for the jury, whether the effect of a written contract for the purchase of agricultural implements to be resold, that contained the words “this contract to replace one made earlier in season,” was to supersede the previous agreement.
    2. Same — Evidence—Compromise and Settlement.
    And evidence showing that the plaintiff in written correspondence treated the second contract as controlling the liability of the defendant, justified the trial court in determining, as a matter of law, that the first agreement was superseded.
    3. Same — Sales—Acceptance.
    Defendant’s claim that he had not accepted the machines shipped to him under a contract of purchase was correctly submitted to the jury, plaintiff having requested the court to charge the jury relative to the contention.
    4. Witnesses — Presumptions—Failure to Produce.
    In an action for the price of certain agricultural machinery, the trial court did not err in charging that the jury might consider the failure of plaintiff to produce a material witness in its employ, as tending to show that his testimony would be unfavorable.
    5. Appeal and Error — Exceptions—Savino Questions for Review.
    On error an exception is necessary to review the action of the trial court in submitting a special question to the jury.
    6. Damages — Contracts—Sales—Pleading—Assumpsit.
    Under a declaration in assumpsit and bill of particulars claiming the value of certain machinery delivered to defendant, plaintiff could not, at the trial, seek a recovery for liquidated damages as stipulated in the contract of sale.
    Error to Macomb; Tucker, J.
    Submitted April 20, 1914.
    (Docket No. 78.)
    Decided July 24, 1914.
    Assumpsit by the Dowagiac Manufacturing Company against Leonard Schneider for goods sold and delivered. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Alfred J. Mills, for appellant.

      O. C. Lungerhausen, for appellee.
   Brooke, J.

The plaintiff is a manufacturer of agricultural implements. The defendant is a dealer in such implements in Macomb county, Mich. On the 27th day of December, 1907, a contract was entered into between the parties by the terms of which the defendant agreed to buy plaintiff’s grain seeding machinery for the purpose of resale in certain specified territory. Under this contract plaintiff shipped to defendant two machines about February, 1908. On July 10, 1908, a new contract was entered into between the parties differing in some respects from the earlier one, and certain other machines were shipped by plaintiff to defendant thereunder, on August 13, September 10, and September 11, 1908. Upon said contract and underneath the signatures of the parties there is written the following: “This contract to replace one made earlier in season.” One of the warranties contained in said contract is as follows:

“That drills and seeders when correctly set up and properly operated will do as good work as any other make of same kind.”

The total amount of the value of the machinery shipped, as shown by plaintiff’s demand, was $448, for which suit was brought. Defendant filed a plea of the general issue and gave notice thereunder of set-off and recoupment growing out of the alleged breach of warranty. The defendant gave testimony tending to show that he had sold three of said drills and had negotiated the sale of the other three, but that by reason of the breach of warranty contained in said contract the machines he had disposed of were returned to him and he was unable to make a sale of the others. The testimony tends strongly to establish the fact that the machines were weak in construction and utterly unreliable in operation. It appears to have been defendant’s contention upon the trial that, under the guaranty in the contract and the instructions of plaintiff’s agent, he should have an opportunity to make a reasonable test of the machines in question before acceptance according to the usages of the trade. The court submitted the case to the jury upon two theories:

First, that if the jury found that the defendant had not accepted the goods in question, the verdict should be no cause of action.

Second, that if they found by a preponderance of the evidence that defendant had accepted the goods, they should determine what damages, if any, defendant had sustained by reason of the alleged breach of warranty.

The verdict of the jury was in favor of the defendant of no cause of action, evidently based upon the theory that the defendant had not accepted the goods.

The first assignment of error argued by plaintiff in its brief relates to the charge of the court to the effect that the contract of July 10, 1908, superseded the contract of December 23, 1907, and that all machinery shipped was governed by that contract; it being the claim of plaintiff that this question was one of fact and not one of law. The agreement was in writing, and its legal effect was for the determination of the court. Wenzel v. Kieruj, 168 Mich. 92 (133 N. W. 921), and cases there cited. This point becomes immaterial in any event when it is remembered that on April 5, 1909, plaintiff wrote to defendant a letter in which the following occurs:

“I have an account against you of $448.00 representing shipments of goods to you in 1908, March 17th, Aug. 13th, Sept. 10th and Sept. 11th, the conditions of the transaction being covered by a certain contract of date, July 10, 1908.”

Plaintiff itself obviously understood the underwriting upon the contract of July 10th to control the shipments under the earlier contract.

The second point argued by defendant is that the defense of a want of acceptance o.f the machines was not available to the defendant under the general issue. An examination of the record fails to disclose that any exception was taken thereto, nor is the argument based upon any assignment of error. Plaintiff at the trial evidently considered the question of acceptance was properly in the case for it submitted the following request to charge:

“If you find from the evidence that this claim of the defendant, Leonard Schneider, is true, and that he has not accepted the goods shipped, or that he has refused to accept any goods ordered and shipped, then I instruct you that said defendant.is, as a matter of law, liable to the plaintiff under the stipulated damage clause of the contract for 30 per cent, of the price of said goods.”

It is next urged that the court erred in giving to the jury the following instruction:

“It appears that Mr. Miller, the agent of the company, is still in its employ and under its control. The plaintiff has not produced him, although he appears to be a material witness,, if plaintiff’s claims are true. You are at liberty to give the fact of the failure of plaintiff to produce this witness such force as you may see fit to presume that his testimony would not be favorable to plaintiff.”

This instruction was warranted under Cooley v. Foltz, 85 Mich. 47 (48 N. W. 176), and Vergin v. City of Saginaw, 125 Mich. 499 (84 N. W. 1075).

Plaintiff next urges that the court erred in submitting a special question to the jury, as follows:

“Did the plaintiff receive the letter of September 16, 1908, which defendant claims he had Charles Hummrich write for him and which he says he mailed to the company?”

This question was answered in the affirmative by the jury. If the submission of this question was erroneous, we are unable to see in what respect it was prejudicial to plaintiff; but, in any event, it was submitted without objection on the part of the plaintiff, and we find no exception in the record upon which plaintiff may predicate an argument.

In the contract of July 10th further underwriting is found to the following effect:

“It is agreed that if second party shall countermand this order, in whole or in part, or refuse to accept any goods ordered and shipped, he, or they, shall immediately pay as liquidated damages a sum equal to 30 per cent, of the list price hereon of such goods. This agreement is not to be construed as a waiver by first party of any rights under the within contract.”

After the verdict of the jury had been rendered, counsel for plaintiff moved the court to enter judgment on the verdict which was evidently based upon the theory of nonacceptance of the machinery by the defendant, for the sum of $134.40; evidently upon the theory that plaintiff was entitled to this sum under the liquidated damage clause of the contract above set forth. A sufficient reply to this contention may be found, we think, in the observation that plaintiff’s suit was not based upon the theory of an attempt to recover liquidated damages under the contract, but under the declaration and bill of particulars was a straight suit in assumpsit to recover the full value of the machinery sold by the plaintiff delivered to and accepted by the defendant. By their verdict the jury determined that the contract had been breached by the plaintiff and not by the defendant. We are of opinion that plaintiff’s motion upon this point was properly refused.

We find no error in the proceedings, and the judgment is affirmed.

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


text:
    KOCHIN v. SUPERIOR COPPER CO.
    1. Master and Servant — Mines and Mining — Safe Place — Preparing Place of Work.
    The rules relating to the obligation of a master to provide a reasonably safe place for Lis servants does not apply to a portion of a mine in which miners and trammers were jointly engaged in taking out ore from a stope, and in barring down rock after blasts so as to prepare a place to perform their work.
    2. Same — Inspection.
    Evidence being in dispute relative to the sufficiency of the inspection made in a stope of defendant’s mine after blasting was done, and tending to show that the rock was unstable and full of cracks, and that the decedent, a trammer, had no duties in regard to such inspection, held, to present a question for the jury as to the matter of negligence.
    3. Same — Reversible Error — Contributory Negligence — Issues for Jury.
    On the trial, the court erred in refusing a request of plaintiff’s attorney to charge that there was no question of contributory negligence, when it appeared that defendant’s counsel did not claim that the decedent was chargeable with negligence and the evidence raised an issue as to' the sufficiency of the inspection only.

      Error to Houghton; Cooper, J., presiding.
    Submitted April 30, 1914.
    (Docket No. 138.)
    Decided July 24, 1914.
    Case by Steve Kochin, as administrator of the estate of Mike Kochin, deceased, against the Superior Copper Company for the negligent killing of decedent. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Le Gendre & Driscoll, for appellant.

      Rees, Robinson & Petermann, for appellee.
   Brooke, J.

Decedent, a man 26 years of age had been in this country about four years prior to the date of his death. During that period he had been employed in the business of mining, first as a drillboy and later ás a trammer. On the day of his injury, he, with another laborer, was directed by the trammer boss to shovel ore in a certain stope. This ore had been blasted from the breast of the stope some eight days or two weeks prior thereto. The stope in question was reached by a chute or raise 15 or 20 feet in length which led from the level to the stope. The hanging wall in this particular stope as described by the witnesses was full of seams and slips, “choppy, of a grayish or talclike nature.” There was testimony tending to show that if the loose chunks were barred down from it more loose chunks would appear in a short time. It was no part of the duty of the deceased or his fellow trammer to examine the hanging wall or to bar down loose or dangerous rock. That duty was imposed upon the miners. No blasting was done by the miners while the trammers were present. The last blast which had been exploded in this particular stope was set off on the preceding night. The two miners who were working in the stope and whose duty it was to- inspect the wall gave testimony tending to show that they had made an inspection of, and had barred down, loose rock from the hanging wall of the stope that forenoon some time between 7:30 and 10 o’clock. The trammer boss assured the deceased and his partner that it was safe to go to work there. At about 10 o’clock in the morning a large piece of rock weighing approximately a ton fell from a point in the hanging wall about 20 feet above the deceased, crushing him in such a manner that he died within a few hours thereafter. It is claimed by the plaintiff that defendant was negligent in the following particulars:

(1) In not having so timbered and secured the hanging wall as to prevent rock falling to intestate’s injury; (2) in not warning deceased of the unsafe and unreliable nature and character of the rock in the hanging wall; (3) failure to carefully, skillfully, and diligently test, inspect, and sound the hanging wall and bar down the loose rock therefrom; (4) failure to furnish, provide, and maintain for intestate a reasonably safe place to work.

The errors relied upon are based solely upon alleged erroneous instructions given by the court to the jury. A verdict having been rendered by the jury in favor of defendant, plaintiff reviews the case in this court by writ of error.

On an examination of the record, we are satisfied that the doctrine of safe place does not apply in this case. The miners and the trammers were together jointly engaged in taking out the ore; that is, making a place, at least, in part. Andrews v. Mining Co., 180 Mich. 72 (146 N. W. 394).

The evidence as to whether or not the necessary inspection of the hanging wall was made upon- the morning the rock fell was in conflict. Upon this point, therefore, as affecting defendant’s negligence, a question of fact was raised for the consideration of the jury.. The court in a very elaborate and careful charge, we think, properly instructed the jury upon this and other questions involved in the case. There is, however, one point raised by the assignments of error which requires consideration. Plaintiff’s tenth request was as follows:

“There is no evidence in this case of any contributory negligence on the part of intestate, and you will so find by your verdict.”

This request was refused, and the court charged as follows:

“The plaintiff must do more than show that an accident happened. He must show that that was the direct and proximate result of negligence of the defendant, and he must show you that he himself was not guilty of contributory negligence; that is, negligence which did not contribute in the slightest degree to the accident. If he was guilty of any negligence, that would bar his recovery.

It was not the theory of the defendant that the plaintiff was guilty of any contributory negligence leading to the injury which caused his death. It was conceded that the duty of inspection rested upon the miners and the trammer boss; the contention being that that duty had been fully performed at the time of the injury. The question of plaintiff’s contributory negligence being therefore eliminated from the case, as was conceded by defendant in the opening of counsel to the jury, we are constrained to say that it was reversible error on the part of the court to submit that issue to the jury. Brower v. Edson, 47 Mich. 91 (10 N. W. 121); Dehring v. Comstock, 78 Mich. 153 (43 N. W. 1039); 6 Thompson’s Commentaries on the Law of Negligence, § 7906.

The other criticisms of the charge, we think, are not well grounded.

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

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


text:
    HOLLINGSHEAD v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Master and Servant — Carriers—Personal Injuries.
    Under either Federal or State statute, the liability of a common carrier to its injured employee rests upon a negligent act. Act No. 104, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §4110 et seq.); 35 U. S. Stat. 66.
    2. Same — Railroads—Warning Servant.
    It was not actionable negligence on the part of a railroad company to fail to warn a' helper in the roundhouse of the fact that he incurred a danger and risk of injury in riding into the roundhouse on the step of the tender which only cleared the doorway by ten and a half inches at the side, notices having been posted in the roundhouse and on the wall, warning employees to keep off the steps of engines or cars entering the house, and plaintiff having frequently ridden through the doors on engines of different sizes; the danger was obvious and plaintiff chargeable with notice of the risk. It was his duty to familiarize himself with the situation and obvious danger of following the course which led to his injury.
    Error to Kent; Brown, J.
    Submitted April 8, 1914.
    (Docket No. 6.)
    Decided July 24, 1914.
    Case by Theodore Hollingshead against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Harrison Geer, for appellant.

      Smedley, Linsey & Lillie, for appellee.
    Plaintiff seeks to recover damages for personal injuries sustained by him while employed as a helper at defendant’s Grand Haven, Mich., roundhouse, about 4 o’clock in the morning of March 8, 1912. The roundhouse in use by defendant at that point was built many years ago. There were six doors of a uniform width of 12 feet and a height of 12 feet. A track passed though each door. The track or stall involved in this suit is No. 2. The easterly rail of this track at the nearest point of the door was distant 8.6 feet from the side, and the westerly rail was distant 3.7. The roundhouse was not lighted; the employees, including the plaintiff, each carrying a lantern to enable them to see to properly discharge their duties. Plaintiff, a man of 48 years of age, who had worked as a day laborer all his life, secured employment as a helper in the roundhouse on January 5, 1912. He worked from 6 p. m. to 6 a. m. under one Dalton, who was foreman of the roundhouse. The duty of the crew seems to have been to make slight repairs upon the engines, coal them, and prepare them to go out upon the road again. An engine coming in from the road would be left by defendant’s crew near the ash pit; the roundhouse crew would then take it in charge, place it on the turntable, then run it over to the coal dock to be loaded. After that the ashes were cleaned into the cinder pit, and if the engine was to be placed in stalls No. 1 or 2, it would be run north to the switch connecting with No. 1 track, and then backed south into the roundhouse. The engines were operated by one Bahr. It was customary for one of the helpers to go along with the engine when it was taken to the roundhouse in order to turn switches and place a block of wood under the wheels after the engine had been brought to a stop at the proper point in the roundhouse. Plaintiff claims to have been instructed to ride in with the engine. After the engine was stopped it was the duty of the helper to place sand in the dome to be used in braking. Sometimes plaintiff would accompany the engine into the roundhouse, and sometimes a fellow helper by the name of Verwy would do so.
    On the night of his injury, engine No. 1451 of a type known as a “Jack” engine was placed for the night crew of the roundhouse to prepare for business the next day. After being coaled and having the fire cleaned Bahr backed it south toward the roundhouse. Plaintiff attempted to ride in on the step at the southeast corner of the tender. As the tender passed through the door plaintiff was caught between the side of the tender and the jam of the door; the clearance between the tender and the door jam being but 10% inches. • Plaintiff weighed approximately 200 pounds. As a result of being caught he sustained severe bodily injuries. Several ribs were broken, and his left hip was crushed. A notice was posted in the roundhouse, and likewise on the wall near the door leading into the machine shop as follows:
    “Notice.
    “Keep off thé side steps, or from alongside, of engines or cars moving in or out of the roundhouse or shops, as the clearance is limited, and there is danger of being caught.”
    During the two months that plaintiff was employed he claims never to have seen either of the notices in question, and that his attention was never called to them. He testified, however, that he had been through every door of the roundhouse a great many times; that on an average he would place from three to five engines each night in the roundhouse. Three types of engines' were in use by the defendant at this point. The “Cook” tender permitted a clearance of 16% inches, the “Jumbo” tender approximately 14 inches, while the “Jack” tender afforded but 10% inches. It was the claim of the plaintiff that he had ridden upon the sides of the tender when placing engines in the roundhouse during all of his employment, but that he never happened to ride a “Jack” tender in until the night in question, and was not aware that it was wider than the others. The negligence relied upon by plaintiff was the alleged failure of the defendant to instruct and warn plaintiff of the danger of riding into said roundhouse upon said tender, and its failure to inform plaintiff that the tender upon which he was injured was of a greater width than others which he had placed in said roundhouse, and that there was not sufficient space between said tender and the casing of said opening to allow plaintiff to pass without receiving injury. The declaration in each count predicates the liability of defendant under the Federal act relating to the liability of common carriers, and likewise under Act No. 104, Public Acts of 1909 (2 How. Stat. [2d Ed.] § 4110 et seq.). Plaintiff having recovered a judgment, defendant reviews the case in this court by writ of error.
   Brooke, J.

(after stating the facts). Touching the first error relied upon, it is sufficient to say that the point is covered by our decision in the case of Fernette v. Railroad Co., 175 Mich. 653 (144 N. W. 834).

Of the other five matters relied upon, we find it necessary to discuss but one, the third. Liability of a common carrier railroad company, under either the Federal or State act, to its employees in case of injury, must be based upon some negligent act of the railroad company. Seaboard Airline Ry. v. Horton, 233 U. S. 492 (34 Sup. Ct. 635). We are of opinion that the failure of the defendant to notify plaintiff of the danger in riding the tender into the roundhouse in the position assumed by him at the time of his injury was not negligence. The danger of assuming such a position upon any of the engines was an obvious one. Plaintiff claims to have ridden through one or the other of these various doors at least 150 times. The clearance between the smallest tender and the door jam was but 16 inches, a space so small as to render it exceedingly hazardous for an employee to assume a position on the outside of the tender. The point selected by the plaintiff upon which to ride into the roundhouse was not the only place upon the engine he might have boarded. He might, too, have stopped the engine just outside the' door and walked in in front of it or followed it in. During the period of plaintiff’s employment engines of the type upon which he was injured were frequently in the terminal. The size of the tenders upon these engines was open to his observation, and it was his duty, knowing the width of the door in question, to have taken some care for his own safety. The roundhouse was a permanent structure. The engines to be placed therein went at a very low rate of speed, not faster than a man would ordinarily walk.

The rule which protects railroad employees from the existence of structures upon the right of way too close to the track is not applicable in a case of this character. The case of Hogan v. Railroad Co., 209 N. Y. 20 (102 N. E. 555), is in principle exactly like the case at bar. There the court said:

“The respondent relies on the numerous cases in which it has been held negligence to locate structures of various kinds so near the tracks of a railroad as to injure the crews of moving trains. This rule has been held as to spouts of water tanks, mail cranes, signal posts, and the like, and would apply to the case of a doorway so narrow as to endanger the safety of employees while on an engine. But it is not applicable to the present case. The crew of a train are often obliged, in the discharge of their duties, to place some parts of their bodies beyond the limits of the cars or engines. Brakemen on freight trains are obliged to go to the top of the cars, and on many cars to mount by ladders at the side of the cars instead of at the end. Engineers and firemen often are compelled to put their heads out of the cabs, looking for signals. Of course, it would be impossible for one of the crew on a rapidly moving train to remember the location of the structures, or to guard against contact with them. But entry into or exit from a closed building, through a doorway, is a very different matter. Every one going through a doorway must be conscious of its presence and govern his movements in accordance with its size and location. The question really is: Ts the master required to provide a doorway so large that not only the occupants of the vehicles, but persons holding onto the outside of the vehicles may pass through with safety?’ If the rule applies to engines, it would seem to equally apply to other vehicles, and the doors of carriage houses, barns, and the like must be large enough to permit persons standing on the steps of vehicles to pass through. As already said there is no suggestion that the doorway was not sufficient for the safety of the employees in the engine. * * * There was nothing calling upon the deceased to mount the engine at this time or place. The fireman and assistant were operating the engine, had run it into the house, and were running it out. True, the deceased would have been justified in boarding the engine whenever he could do so safely; but the engine was to proceed only 75 feet from the door of the roundhouse to the water tank, where it would be stopped. The deceased had merely to walk after it. If, however, for any purpose, he wished to board the engine, there was no reason why he should not have had it stopped. * * * In the absence of proof that any duty might require an employee to board a moving engine, about to pass through a doorway, the defendant cannot be held guilty of negligence in not providing against such a contingency. It is equally clear that the plaintiff’s intestate was, under the circumstances, guilty of contributory negligence.”

We must hold that under our own decisions it was the duty of the plaintiff to have familiarized himself with the situation and the obvious danger of following the course which led to his injury, and that it was not negligence of the defendant to fail to warn him. Pahlan v. Railway Co., 122 Mich. 232 (81 N. W. 103); Swick v. Cement Co., 147 Mich. 454 (111 N. W. 110); White v. Sugar Co., 149 Mich. 473 (112 N. W. 1125); Carr v. Railway Co., 152 Mich. 138 (115 N. W. 1068).

The judgment is reversed, and there will be no new trial.

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


text:
    GRIFFITH v. FULLER.
    Cancellation of Instruments — Incompetency—Deeds—Capacity —Estates of Decedents.
    Conflicting evidence considered, and held, to be insufficient to support a decree setting aside a' deed of decedent on tbe ground of mental incapacity.
    Appeal from Kent; Brown, J.
    Submitted April 16, 1914.
    (Docket No. 51.)
    Decided July 24, 1914.
    Bill by Ottie Griffith and other's against Eunice Fuller for an accounting and other rélief. From a decree for complainants, defendant appeals.
    Reversed.

      William J. Landman, for complainants.

      Smedley, Linsey & Lillie, for defendant.
    The complainants in this case are children and grandchildren of Nichols Cox, and are all of his legal heirs. They filed their bill of complaint for the purpose of setting aside a deed made by said Nichols Cox in his lifetime to the defendant. The bill further demands an accounting from said defendant for all moneys and personal property now in her hands formerly belonging to said Nichols Cox. The grounds upon which said relief is sought are that at the time of the execution of said instrument said Cox was mentally incompetent, and that he was also induced to execute the instrument in question through undue influence exercised by said defendant.
    In February, 1911, Nichols Cox, then a man 73 years of age, lost his wife. His children, five or six in number, were grown up, and were no longer members of his household. While the relations between himself and his children seem to have been in the main friendly, he seems to have been unable to live agreeably with any of them after the death of his wife. Prior to the death of his wife he had been for several years afflicted with prostatic and kidney trouble which later developed into Bright’s disease. From about the year 1905 up to the time of his death he suffered from the effects of this disease, the attacks recurring with varying frequency as well as intensity. The effect of Bright’s disease as described in the medical testimony is at times to cause in the afflicted person a toxic condition resulting from uraemic poisoning. After á violent attack and the kidneys are brought to function properly the toxic effect usually wears off, and the patient will again become practically normal, so far as his mentality is concerned. Apparently because of evidences of unsoundness of mind and erratic action on the part of Nichols Cox while suffering from these recurring attacks during the year 1911, his children became apprehensive that he would dissipate his estate, and they caused proceedings to be instituted in the probate court for the county of Newaygo for the appointment of a guardian. Under date of November 28, 1911, the probate court seems to have entered an order appointing one Robert S. Hall as such guardian. Hall, however, never entered upon the discharge of his duties. Nichols Cox was much disturbed over the application, and on December 18, 1911, he with his children and their respective attorneys appeared in said probate court in Newaygo county, and he there orally stated that he would not knowingly dissipate his property, and that at his decease all his property then remaining should go to his children; that he would not disinherit any of said children; and that it had never been his intent to so do. This statement was reduced to writing entitled in the cause, and was signed by the attorneys for the several parties, and was filed in the court by the judge of probate who was present when it was made. Thereupon the proceedings for the appointment of a guardian were dismissed. At and prior to this time it appears that Cox had been boarding at the “Bridge Street House” while in the city of Grand Rapids. Very shortly after the probate proceedings, in discussing his affairs with one Markham, he said that he purposed resuming housekeeping if he could secure the services of a competent housekeeper. About the 1st of January, 1912, Markham introduced him to the defendant in this case, a woman some 67 years of age. After several interviews Cox agreed with the defendant that if she would become his housekeeper and take care of him during his remaining years he would buy a home for their joint use, which at his death should become hers, and likewise that he would supply her with money sufficient to meet her personal needs. On January 18th Cox and the defendant commenced living in apartments in the Markham House, occupying three rooms upstairs, and immediately sought a suitable house in which to reside. After examining many pieces of property, about April 1st he purchased the house and lot in question in this proceeding and immediately moved into it with defendant. The record does not disclose how much he paid for the property, but the testimony indicates its value to have been between $700 and $900. Later in the year he bought the house adjoining, not quite so valuable, for $600. He continued to be up and about during the summer and fall of 1912, attending to his ordinary business transactions. During this time he purchased the house and lot adjoining the one occupied by him and defendant, and borrowed $200 at his bank, giving his note therefor. The disease from which he was suffering was, however, a progressive one, developing in the latter weeks of his life into arterio sclerosis. From midsummer on a physician attended him with considerable regularity, but he was not confined to his bed. In November he became somewhat worse, although at the election on November 5th he was able to go to the polls and vote. On the 6th of November he requested Mr. Markham to call a lawyer to prepare the deed of the house and lot to defendant. The lawyer, Mr. McBride, was dead at the time this cause was heard in the court below. The notary public, however, Mr. John P. Seven, who witnessed the deed and took the acknowledgment of Cox, was sworn as a witness. Markham likewise was present when the deed was executed, acknowledged, and delivered. Either before or shortly after the execution of this deed Cox indorsed a certificate of deposit in the sum of $100, and on the 15th day of November this certificate was cashed by the defendant. On November 17th Cox died; several of his children being present at his bedside during his last moments, although they had not visited him at any time while he resided with the defendant on Frederick street. Administration was at once taken out upon his estate and the inventory filed. The distribution thereof shows that he left real and personal property to the amount of $19,000, exclusive of the value of the premises conveyed by him to defendant. The following conditions were inserted in said deed at the request of Cox, as testified to by Markham.

      “Saving and reserving to said party of the first part a home and the continued housekeeping and care of the said party of the second part during his natural life, she hereby agreeing to continue as in the recent past as his housekeeper and nurse.
    “Also, in further consideration I hereby sell, assign, set over, and deliver to said party of the second part all personal property belonging to me and now in my possession on said premises or used therewith, subject to the common use of both said parties during the natural life of said party of the first part.”
    A decree having been rendered setting aside said instrument upon the grounds of mental incompetency and undue influence and requiring defendant to account for the personal property received by her under the terms of said instrument, she has appealed.
   Brooke, J.

(after stating the facts). We are convinced that the decree of the court below should not be permitted to stand. A careful reading of the entire record discloses the fact that the witnesses for the complainants — and there were very many of them —with scarcely an exception, gave evidence tending to show that, while Nichols Cox, when suffering acutely from ursemic poisoning, acted irrationally, forgetfully, and in a manner indicating a lack of mental balance, yét, after these attacks passed off, he conversed rationally on every subject, and appeared to be entirely competent mentally. He continued up to a very few days of his death to transact his ordinary business affairs. There can be no doubt that between the attacks or spells described by the various witnesses the man was lucid and competent. The evidence of the physician who attended him during the last months of his life is extremely persuasive of this fact, and the evidence of those present at .the time of the execution of the deed, uncontradicted and unimpeached, is to the effect that at the time the instrument was executed and delivered he was in full possession of all his faculties. The question at issue in the case is not whether at other times and places Cox was or was not rational, but whether on the day and at the time of the transaction he possessed sufficient mental vigor to understand and appreciate the effect of the business in hand. The making of the conveyance in question was but the carrying into effect of an agreement made by him with the defendant nearly a year earlier. It was simply an act of justice upon his part in reasonably compensating the defendant for her care of him during a period of almost a year. Had he failed to carry out his contract with her in this regard, his estate would have been subject to a claim in her behalf for her services to him. While, as was said in Lane v. Lane, 160 Mich. 492 (125 N. W. 365), previous decisions are of little assistance in determining the question of mental competency, each case resting upon its own facts, attention is directed to the following cases: Ramsdell v. Ramsdell, 128 Mich. 110 (87 N. W. 81); Beadle v. Anderson, 158 Mich. 483 (123 N. W. 8); Terry v. Terry, 170 Mich. 330 (136 N. W. 448).

The decree of the court below is reversed, and a decree will be entered in this court dismissing .the bill of complaint, with costs of both courts to defendant.

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


author: Kuhn, J.

text:
    AGLER v. MICHIGAN AGRICULTURAL COLLEGE.
    1. Colleges and Universities — Constitutional Law — Michigan Agricultural College — Master and Servant — Workmen’s Compensation.
    Neither the legislature nor any officer or hoard of the State may interfere with the affairs and property of the university or the Michigan Agricultural College, although in making appropriations for its support the legislature may attach any conditions that it deems expedient, and the appropriation cannot be received without complying with the expressed conditions.
    2. Same — Municipal Corporations.
    Not having elected to he brought within the provisions of the workmen’s compensation law, Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.), the Michigan Agricultural College is not subject to its terms.
    3. Same — Master and Servant.
    A servant of the college or of the State hoard of agriculture is not a servant of the State, within the meaning of the statute.
    William M. Agler applied to the industrial accident board for compensation for injuries received while in the employ of the Michigan Agricultural College. An order awarding compensation is reviewed by the respondent on certiorari.
    Submitted April 24, 1914.
    (Docket No. 89.)
    Reversed July 24, 1914.

      Grant Fellows, Attorney General, and L. W. Carr, Assistant Attorney General, for appellant.

      Person, Shields & Silsbee, for appellee.
    The applicant, who is a tinner and roofer by trade, was injured, on April 18, 1918, by falling from a ladder while making repairs on the buildings of the respondent. A claim was presented against the respondent under the workmen’s compensation law of 1912, and the case is brought here by certiorari to the industrial accident board to review an order affirming the award made to the applicant by an arbitration committee, in accordance with the provisions of the act. Neither the Michigan Agricultural College nor the State board of agriculture, which has general supervision of the college and direction and control of all its funds, elected to come under the provisions of the workmen’s compensation act. No mention is made in the act of either of the constitutional boards; the board of regents of the University and the State board of agriculture, and the question here is, Does the act bring arbitrarily under its provisions the State board of agriculture, which is a board created by the Constitution (sections 7 and 8, art. 11, Const.) ? This involves a consideration of the following sections of the act:
    “Part 1.
    “Sec. 5. The following shall constitute employers subject to the provisions of this act:
    “1. The State and each county, city, township, incorporated village and school district therein;
    “2. Every person, firm and private corporation, including any public service corporation, who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the accident to the employee for which compensation under this act may be claimed, shall in the manner provided in the next section, have elected to become subject to the provisions of this act, and who shall not, prior to such accident, have effected a withdrawal of such election, in the manner provided in the next section. * * *
    “Sec. 7. The term ‘employee’ as used in this act shall be construed to mean:
    “1. Every person in the service of the State, or of any county, city, township, incorporated village or school district therein, under any appointment, or contract of hire, express or implied, oral or written, except any official of the State, or of any county, city, township, incorporated village or school district therein: Provided, that" one employed by a contractor who has contracted with a county, city, township, incorporated village, school district or the State, through its representatives, shall not be considered an employee of the State, county, city, township, incorporated village or school district which made the contract ;

      “2. Every person in the service of another under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally permitted to work under the laws of the State, who, for the purposes of this act, shall be considered the same and have the same power to contract as adult employees, but not including any person whose employment is but casual or is not in the usual course of the trade, business, profession or occupation of his employer.”
    In the stipulation filed in this case the following appears:
    “It is agreed that the draft of the workmen’s compensation act as prepared by the commission and as presented to the legislature contained a period after the word ‘contract’ at the end of the first subdivision of paragraph 7 of part 1.”
   Kuhn, J.

(after stating the facts). By virtue of the Constitution of 1909, the State board of agriculture was put on the same plane with the board of regents of -the University of Michigan. It has been established beyond question by decisions of this court that neither the legislature nor any officer or board of this State may interfere with the control and management of the affairs and property of the University, although in making appropriations for its support the legislature may attach any conditions it may deem expedient and wise, and the appropriation cannot be received without complying with the conditions. People, ex rel. Drake, v. Regents, 4 Mich. 98; Weinberg v. Regents, 97 Mich. 246 (56 N. W. 605); Sterling v. Regents, 110 Mich. 369 (68 N. W. 253, 34 L. R. A. 150); Bauer v. State Board of Agriculture, 164 Mich. 415 (129 N. W. 713); Board of Regents v. Auditor General, 167 Mich. 444 (132 N. W. 1037).

Section 5, part 1, of the workmen’s compensation law (2 How. Stat. [2d Ed.] § 3939), expressly enumerates the State and counties, cities and villages, townships and school districts. Neither of the constitutional boards is mentioned. In the case of Weinberg v. Regents, supra, there was under consideration an act of the legislature which provided:

“That when public buildings, or other public works or improvements are to be built, repaired or ornamented under contract, at the expense of this State, or of any county, city, village, township, or school district thereof, it shall be the duty of the board of officers or agents contracting on behalf of the State, county, city, village, township, or school district, to require sufficient security by bond, for the payment by the contractor, and all subcontractors, for all labor performed, or materials furnished in the erection, repairing or ornamenting of such building, works or improvements.” Act No. 45, Pub. Acts 1885.

Mr. Justice Grant, in writing the majority opinion said, 97 Mich., at pages 253, 254 (56 N. W. 607):

“The regents make no contracts on behalf of the State, but solely on behalf of and for the benefit of the University. All the other public corporations mentioned in the Constitution, which have occasion to erect public buildings or to make public improvements, are expressly included in this statute. ‘Ex-pressio unius est exclusio alteriusIt expressly enumerates the State, counties, cities, villages, townships, and school districts. If the University were under the control and management of the legislature, it would undoubtedly come within this statute, as do the Agricultural College, Normal School, State Public School, asylums, prisons, reform schools, houses of correction, etc. But the general supervision of the University is, by the Constitution, vested in the regents. * * *

“The University is the property of the people of the State, and in this sense is State property so as to' be exempt from taxation. Auditor General v. Regents, 83 Mich. 467 [47 N. W. 440, 10 L. R. A. 376]. But the people, who are the corporators of this institution of learning, have, by their Constitution, conferred the entire control and management of its affairs and property upon the corporation designated as ‘the Regents of the University of Michigan,’ and have thereby excluded all departments of the State government from any interference therewith. The fact that it is State property does not bring the regents within the purview of the statute. The people may, by their Constitution, place any of its institutions or property beyond the control of the legislature.”

The contract of employment in the instant case was made with the State board of agriculture, not on behalf of the State, but primarily for the benefit of the Agricultural College. For the reasons stated by Mr. Justice Grant in the Weinberg Case, we must conclude that it cannot be said that the State board of agriculture or the regents of the University are brought under the workmen’s compensation act by virtue of said section 5 of part 1 of the act, and it cannot be said that the applicant was an employee of the State within the meaning of said law. The conclusion must therefore follow that the respondent was not within the list of employers who come under the provisions of the law of 1912 automatically,* and, inasmuch as the respondent has made no election to come thereunder, the applicant is not entitled to recover in this proceeding.

Because of this conclusion, it is unnecessary to discuss the other interesting and well-argued questions raised' in briefs of counsel. The decision of the industrial accident board is reversed, and the claim of the applicant is disallowed.

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


text:
    WHITTEMORE v. BAXTER LAUNDRY CO.
    1. Nuisance — Gasolene—Explosives—Injunction.
    It is a nuisance wbicb equity will require to be abated to sink or build in tbe ground steel tanks of a capacity of 10,000 gallons for tbe storage of gasoline, in a residence district and about 11 feet from complainant’s bouse, on property belonging to a laundry and dry-cleaning plant of tbe defendant.

    2. Same.
    Any unwarrantable, unreasonable or unlawful use of property, real or personal, sucb as operates to injure adjoining premises, is a nuisance wbicb will render tbe owner or possessor liable for damages arising therefrom.
    3. Evidence — Pkooj?—Judicial Notice.
    Tbe court will take judicial notice of tbe fact that gasoline is a dangerous explosive.
    Appeal from Kent; Brown, J.
    Submitted April 13, 1914.
    (Docket No. 29.)
    Decided July 24, 1914.
    Bill by Arthur W. Whittemore, et al., against the Baxter Laundry Company for the abatement of a nuisance. From a decree for complainants, defendant appeals.
    Affirmed.

      Corwin & Souter, for complainants.

      Wilson & Johnson, for defendant.

       On tbe question of storage of explosives as a nuisance, see note in 16 L. R. A. (N. S.) 691.

   Kuhn, J.

The defendant is the owner of a laundry and dry-cleaning establishment in the city of Grand Rapids, occupying the easterly portion of a block bounded on the north by Hawthorne street, on the east by Eastern avenue, on the south by Fountain street, and on the west by Grand avenue. The complainants are the owners of property, and reside, in the westerly portion of the block. With the exception of defendant’s plant, the location is strictly a residence district, and the complainant Arthur W. Whittemore owns and occupies a house and lot immediately adjoining defendant’s premises on the west, and the defendant’s property is practically surrounded by residences costing from $8,500 to $4,500 ' each; In its business of dry cleaning the defendant uses about 15,000 gallons of gasoline annually, and, just previous to the filing of the bill in this case, the defendant had placed in its yards two large steel tanks of the capacity of 10,000 gallons each, and had commenced excavating preparatory to burying them in the northwest corner of its premises, which was the farthest possible point on its premises from its own buildings and immediately adjoining the property of the complainant Whittemore, the nearest tank being about 11 feet from his house. The bill of complaint filéd asked for a temporary injunction restraining defendant from storing gasoline in the tanks, for the reason that such storage, under the circumstances of this case, would be a private nuisance, and also that it would be in -violation of certain ordinances of the city of Grand Rapids. When the bill was filed an injunction was issued restraining the defendant from storing gasoline in the tanks, which was made permanent when the case was heard on its merits.

In Heeg v. Licht, 80 N. Y. 579, 582 (36 Am. Rep. 654), the court, speaking of private nuisances, said:

“A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. 3 Bl. Com. 216. Any unwarrantable, unreasonable, or unlawful use by a person of his own property, real or personal, to the injury, of another, comes within the definition stated, and renders the owner or possessor liable for all damages ' arising from such use. Wood’s Law of Nuis. § 1, and authorities cited. The cases which are regarded as private nuisances are numerous, and the books are full of decisions holding the parties answerable for the injuries which result from their being maintained. The rule is of universal application that, while a man may prosecute such business as he chooses on his own premises, he has no right to erect and maintain a nuisance to the injury of an adjoining proprietor or of his neighbors, even in the pursuit of a lawful trade. Aldred’s Case, 9 Coke, 58; Brady v. Weeks, 3 Barb. [N. Y.] 159; Dubois v. Budlong, 15 Abb. Prac. [N. Y.] 445; Wier’s Appeal, 74 Pa. 230.”

We may grant that the storage of gasoline on premises adjacent to or adjoining the premises of another is not a private nuisance per se. It might, however, become such, considering the locality, the quantity, and the surrounding circumstances, and would not necessarily depend upon the degree of care used in its storage. Heeg v. Licht, supra; 29 Cyc. p. 1177. We may also concede that in the instant case every precaution that human ingenuity has conceived has been made use of in the construction of the tanks as testified to by defendant’s experts. Considering, however, the dangerous character of the substance and its power as an explosive, of which in this age of its wonderful development as a power to propel automobiles, traction engines, and airships, we can well take judicial notice, and also considering human fallibility, that accidents in the operation of the most perfect mechanism will occur, and all that it needs to change what is, when properly protected, a harmless agency to a most dangerous explosive is a careless person, can it be said that to have 20,000 gallons of such an agency stored within but a few feet of one’s dwelling house is not sufficient to be an unreasonable interference with the comfortable enjoyment of that home? This is a purely residence district of the city, and was such before the defendant began operating its dry-cleaning business, and it must be apparent to any fair-minded person that the location of these tanks in such immediate proximity to complainant Whittemore’s house would necessarily damage his property. It also appears that tanks for storage purposes could haye been placed on the Fountain street side of defendant’s property, which would have removed them from proximity to any residence. The reason for not doing this is thus stated in defendant’s brief:

“Complainants called attention to the fact that there was room enough to place them on the Fountain street side of the property. A good and sufficient reason for not placing them there is that this ground is devoted to lawn and shrubbery, upon which the company has spent considerable money, and for which it took the prize in the contest for the best-appearing manufacturing grounds.”

If defendant was desirous of installing tanks to more economically conduct its business, it would seem to have been more reasonable to have disturbed and damaged its own lawn and shrubbery, however beautiful, rather than to disturb its neighbor in the enjoyment of his home and to damage his property.

Considering all the surrounding circumstances in this case, we are satisfied that the chancellor who heard the case reached a proper and equitable conclusion in determining that the storage of gasoline in the tanks was a private nuisance. In view of this conclusion, it will be unnecessary to review the ordinances of the city of Grand Rapids and determine whether the construction of these tanks and the storage of gasoline therein in the manner alleged in the bill of complaint is in violation thereof. -

The decree of the court below is affirmed.

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


text:
    MALLY v. EXCELSIOR WRAPPER CO.
    1. Evidence — Copt—Bill of Complaint — Best Evidence.
    A copy of a bill of complaint wbicb tbe defendant bad filed in a cause involving a question of agency and tbe authority of its alleged representative to enter into contracts in this State, such copy having been received and served on tbe solicitor of tbe defendant in tbe chancery proceeding, was admissible in evidence to show tbe fact of agency by admissions on oath in tbe pleading, upon tbe trial of an action for goods sold and delivered that involved tbe question of tbe agent’s authority to buy materials for tbe defendant’s use in its business.
    2. Same — Order of Proof — Ratification.
    Although acts and declarations of tbe agent are incompetent to establish tbe agency, and tbe apparent power of tbe latter is to be determined from tbe conduct of tbe principal, evidence of tbe acts and statements accompanying an alleged purchase on tbe account of tbe principal are admissible in evidence to show in what capacity tbe agent acted and to prove ratification as claimed by tbe seller. Tbe order of proofs rested in tbe discretion of tbe trial court.
    3. Same — Books of Account.
    Account books of tbe plaintiff shown to be tbe regular books of tbe party wbicb be himself kept, and in wbicb be entered transactions promptly, and wbicb were the only records of bis business, were properly received in evidence.
    4. Election of Remedies — Counts—Compelling Election.
    Where plaintiff brought action against tbe defendant and its alleged agent jointly, and one of them was liable under tbe evidence, tbe court did not err in refusing to require that plaintiff elect against wbicb be would proceed. Circuit Court Rule 27.
    5. Trial — Impeachment—Cross-Examination.
    Where plaintiff’s counsel called for cross-examination one of tbe defendants, and tbe other defendant, claiming that it was not, and that be was, liable, later, in putting in its defense, recalled him without claiming the right of cross-examination as an adverse party, under Act No. 307, Pub. Acts 1909 (5 How. Stat. [2d Ed.] § 12865), the court did not commit error in refusing to permit the said joint defendant to impeach him.
    Error to Berrien; Bridgman, J.
    Submitted April 22, 1914.
    (Docket No. 115.)
    Decided July 24, 1914.
    Assumpsit by George H. Mally against the Excelsior Wrapper Company and Philip Yund for the purchase price of a quantity of logs. Judgment for plaintiff. Defendant Excelsior Wrapper Company brings error.
    Affirmed.

      Clapperton, Owen & Iiatten, for appellants.

      Lynn J. Lewis, for appellee.
   Kuhn, J.

The plaintiff brought suit against Philip Yund, a resident of Berrien county, and the Excelsior Wrapper Company, a Wisconsin corporation authorized to do business in Michigan, with an office and factory in the city of Grand Rapids. The defendants, in 1906, made an agreement whereby Yund was to buy bolts in southwestern Michigan, and, in 1908, 1909, and 1910, he bought certain bolts from the plaintiff, which were shipped to the .Excelsior Wrapper Company. A dispute arose between the defendants as to whether Yund was acting in these transactions as an individual principal or-as agent for the Excelsior Wrapper Company, and the plaintiff, in order to determine who was liable to him Tor the bolts furnished by him, brought this suit and recovered a judgment of $806.80 against the Excelsior Wrapper Company, for which defendant brings the case to this court by writ of error. It is the contention of this defendant that a verdict should have been directed in its favor, because there was no legal proof of the agency of Yund, and no contract was shown to exist between plaintiff and the Excelsior Wrapper Company. Mally testified as to the arrangement made with Yund as follows:

“A. There was no contract made any more than a mere verbal agreement. There was no written contract made. I was to buy those bolts, and Mr. Yund was to pay me for them, and I was to ship them to Grand Rapids, to the Excelsior Wrapper Company. That was the arrangement made between Mr. Yund and myself at certain prices.”

On cross-examination by counsel for defendant Yund, he stated:

“Q. So, Mr. Mally, as a part of that talk at the time when your agreement with Mr. Yund was made, you were told by him that he was an agent or representative (I do not know what language he used) of the Excelsior Wrapper Company of Grand Rapids?

“A. Yes.

“Mr. Hatten: An objection and exception.

“Q. And that he was buying those bolts for that company?

“A. Yes.

“Mr. Hatten: An objection and exception. Those are all made as to the Excelsior Wrapper Company, and I understand they are all overruled as to them.

“The Court: Yes.

“Q. In other words, Mr. Mally, you had — you were informed at that time, and knew all along during your transactions with Mr. Yund, that he was not buying those bolts for himself but for the Grand Rapids Excelsior Wrapper Company?

“A. That was the instructions he gave me to ship to them anyway, at least.

“Q. That he was not buying them for himself?

“A. No.”

The plaintiff showed that the Excelsior Wrapper Company received 29 cars of bolts from him and advised Yund of each shipment, and that plaintiff advised the Excelsior Wrapper Company of each shipment on '‘advance cards” furnished by the company. Payment was made direct by the Excelsior Wrapper Company of $125 to the plaintiff, who made a trip to Grand Rapids and complained to the company of Yund’s failure to pay. It also appears that the Excelsior Wrapper Company paid taxes on the bolts at the several stations as soon as they were piled in the yards by the farmers and while they were awaiting shipment. In order to show a ratification by the defendant Excelsior Wrapper Company of Yund’s acts, the plaintiff offered in evidence certain letters written by the company to various persons.- The following is one of these letters:

“Excelsior Wrapper Company, Manufacturers of Excelsior Bottle Packing and Excelsior Packing Mats. Factories : Sheboygan, - Wis.; Grand Rapids, Michigan.

Warehouse : Hoboken, N. J.

“Grand Rapids, Michigan, Nov. 23,1907.

“Mr. S. Sheldon,

“Benton Harbor, Michigan.

“Dear Sir:

“We are in receipt of your favor of the 22d inst., relative to your agreements and contracts with our Mr. Yund, whereby you agreed to get out certain quantities of bolts for him, to be delivered at the railroad at Riverside and Coloma; also agreeing to do bolt collecting for him at those two points. In reply will state that Mr. Yund is our representative in the bolt field in the greater portion of the territory south of here, and we will bear him out on any arrangement he makes with you in regard to getting out and collecting the bolts delivered to the railroad at Riverside and Coloma. This is a responsible firm and we regard our Mr. Yund as a thoroughly upright and responsible party to handle these matters for us, and you can depend upon it that anything he has agreed to do he will carry out strictly to the letter.

“We trust you will be enabled to get out a very large quantity of bolts for him during this fall and throughout the coming winter.

“Yours very truly,

“Excelsior Wrapper Company,

“W. F. Mueller.”

A copy of a bill of complaint filed in a suit brought by the Excelsior Wrapper Co. v. Yund, which cause was finally determined in this court and is reported in 176 Mich. 372 (142 N. W. 353), was admitted in evidence. This copy was served on counsel for defendant Yund, and the original was verified under oath by one of the officers of the company. Paragraph 1 of said bill of complaint reads as follows:

“(1) That during the year 1906 a contract was entered into between your orator and said defendant, whereby, in consideration of the premises, said defendant Philip Yund became the agent of your orator for the purpose of procuring suitable bolts in the southwestern portion of the State of Michigan, for the manufacture of excelsior at the Grand Rapids plant of your orator.”

It was offered to show admissions on the part of the defendant Excelsior Wrapper Company as to the agency of Yund. It was objected to because it was a copy, and not the original. We think, however, that it was properly received, as the paper was the identical paper prepared by the same counsel for the defendant Excelsior Wrapper Company, who represent the company in this litigation, and it was sent by them to Yund’s solicitor, and its weight was properly left to the jury. Fowler v. Hoffman, 31 Mich. 215.

It is urged that the agency of Yund could not be shown by his acts and declarations, and must be shown by the acts of the principal, citing Clark v. Dillman, 108 Mich. 625 (66 N. W. 570), and Marx v. King, 162 Mich. 258 (127 N. W. 341).

In Wierman v. Sugar Co., 142 Mich. 422, 438, 439 (106 N. W. 75, 81, 82), Mr. Justice Grant, in discussing this question, said:

“The apparent power of an agent is to be determined by the acts of the principal, and not by the acts of the agent. 1 Am. & Eng. Enc. Law (2d Ed.), p. 990, and note; Mechanics’ Bank v. Railroad Co., 13 N. Y. 599. No act of the principal in this case appears upon this record to show that it clothed its agent with authority to pledge its liability to pay the debts of third persons. The question here is one of original authority. There is no evidence of ratification.”

In the instant case the admissions and declarations of the defendant were admitted for the purpose of showing ratification, and the order in which the proofs were admitted was discretionary with the trial judge. Campbell v. Sherman, 49 Mich. 534 (14 N. W. 484); Turner v. Insurance Co., 55 Mich. 236 (21 N. W. 326).

In Hirschmann v. Railroad Co., 97 Mich. 384, 397 (56 N. W. 842), this court said:

“The declarations of an agent are not admissible to prove an agency, but when there is testimony to show ratification, or original authority, or a holding out to the world as having authority, such declarations accompanying the act are admissible to show in what capacity he contracted. Campbell v. Sherman, 49 Mich. 534, 536 [14 N. W. 484]; Haughton v. Maurer, 55 Mich. 323 [21 N. W. 426]; Bacon v. Johnson, 56 Mich. 182 [22 N. W. 276].”

We are satisfied that the testimony with reference to the establishment of the agency was properly admitted and this question properly left to the jury.

Error is assigned because of the "admission of certain account books of the plaintiff. It appears that these books were the regular books of account which he kept himself, and in which he made entries promptly after each business transaction; that all his business was kept in these books, and they contained the only record of the transactions. This brings it within the rule announced in Countryman v. Bunker, 101 Mich. 218, 219, 220 (59 N. W. 422):

“In order to entitle books of account to reception as evidence, it must appear that the party keeping and producing thenf'is usually precise and punctilious respecting the entries therein, and that they are designed at least to embrace all the items of the account which are proper subjects of entry.”

It is urged that the court should have compelled the plaintiff to elect as between the defendants, and that Circuit Court Rule 27 does not cover a case like the one at bar, where to hold one defendant must necessarily mean the release of the other. This point has been passed upon by this court in Root & McBride Co. v. Salt Ass’n, 140 Mich. 441 (103 N. W. 844), and Hoek v. Township of Allendale, 161 Mich. 571 (126 N. W. 987, 21 Am. & Eng. Ann. Cas. 118). It is admitted that one of the defendants was indebted to the plaintiff for the logs. The plaintiff brought suit against them both, and the jury determined which one of them, under the facts in the case, was liable. It would seem that such a situation comes clearly within the meaning of the rule, which provides as follows:

“(c) But, in case an action is brought against two or more defendants, the plaintiff shall not be required to discontinue as to any of them, but the jury shall show by their verdict, or the court by its finding, in a trial by the court without a jury, which of them are and which of them are not liable to the plaintiff, and judgment shall be given accordingly.”

As this case developed in the trial, the two defendants became, in effect, the real adverse parties. The plaintiff called to the stand the defendant Yund for cross-examination, under Act No. 307, Pub. Acts 1909 (5 How. Stat. [2d Ed.] §12865). He was cross-examined by his own counsel and counsel for the defendant Excelsior Wrapper Company, who, later in the case, in putting in proofs for the defense, recalled and examined him as a witness. At this time no announcement or statement was made that he was calling him under the statute, or for further cross-examination. No claim being made to the court at the time that he was being called, under the statute, as an adverse party, it must be presumed that he called him as his own witness, and the court did not commit error in not allowing counsel to try to impeach him as to this testimony.

We have examined the other assignments of error with reference to the charge of the court, but find no prejudicial error in the record.

The judgment is affirmed.

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


text:
    TOWNSHIP OF BLENDON v. DE JONGE.
    1. Waters and Watercourses — Dams or Obstructions — Injunctions — Municipal Corporations.
    Where complainant township failed to establish a prescriptive right to flood the lands of defendant with water from a highway discharged through a culvert under the road, and it appeared that the natural course of drainage was down the highway, an injunction-restraining the defendant from obstructing the flow of water across his farm was properly denied.
    2. Same.
    Neither the public in the construction of highways nor private parties for the benefit of their real estate can be permitted to divert water from its natural course or flow, and upon the lands of’an adjacent proprietor.
    Appeal from Ottawa; Cross, J.
    Submitted April 16, 1914.
    (Docket No. 53.)
    Decided July 24, 1914.
    Bill by the township of -Blendon against Chris De Jonge for an injunction and other relief. From a decree for defendant, complainant appeals.
    Affirmed.

      Smedley, Linsey & Lillie, for complainant.

      Diekema, Kollen & Ten Cate, for defendant.
    The opinion filed by the circuit judge in this case gives a clear understanding of the situation which gave rise to this controversy:
    “The township of Blendon filed the bill of complaint in this cause to restrain the defendant Chris De Jonge from erecting and maintaining a dam- or ridge along the east line of the land of the defendant, which obstructs the flow of the water that passes through a culvert in the highway on the east side of said lands of the defendant, and in the township of Blendon. The defendant is the owner of the north half of the northwest quarter of section 32, and also the north half of the northeast quarter of section 31, in said township. A public highway runs north and south along the east end of the north half of the northwest quarter of section 32. On the east side of this highway is located the Southwest Blendon drain. This drain commences at the northeast corner of section 32 and runs west one-half mile to the highway which is on the east side of defendant’s land; thence south on the east side of said highway 80 rods; thence west along the south line of the lands of defendant 160 rods; thence south and west to its outlet. About 20 rods north from the south line of the lands of the defendant is a private drain of the defendants which is one mile long and has its outlet in the Bosch & Hultz drain. About 20 rods north of the eastern part of this first private drain is a second private drain extending some 80 rods west and thence south to the first private drain. Directly east of this second private drain the complainant at the request of the defendant, and with his assistance, constructed a culvert through the highway and through the Southwest Blendon drain. At the time this culvert was constructed the defendant also owned the 40 acres of land on the east side of the highway, and the culvert was constructed to enable the defendant to drain his lands. The culvert was constructed in 1898. After this culvert was constructed, other drains were constructed, which collected more water into the Southwest Blendon drain. The complainant permitted Mr. J. H. Huyser to construct a culvert across the highway to empty more water into the Southwest Blendon drain. The Southwest Blendon drain was not kept cleaned out, and the result was that the drain became clogged, and the water from the public drain was forced through the culvert and upon the lands of the defendant, and his crops were ruined. At one time defendant filled the culvert with earth to prevent the water from coming through from the public drain and flooding his land. In the fall of 1911 he built a ridge or dam about as high as the roadbed of the highway, and extending north and south along the highway for 60 or 70 rods. This ridge prevents the water in the Southwest Blendon drain from flowing upon the lands of the defendant. There is no public drain that provides an outlet for the water that flows through the culvert from the Southwest Blendon drain, and the complainant has failed to establish a right by prescription to empty the water from-the public drain through this culvert upon the lands of the defendant. The defendant had the right to erect the dam or ridge upon his lands to prevent the collecting of water by means of drains and culverts into the Southwest Blendon drain and draining the same upon the lands of the defendant. If it is desired to empty the water from this public drain through the culvert, a proper outlet must be provided. And the decision in this case in no manner prevents the proper authorities constructing a public drain from this culvert through this dam or ridge and across the lands of the defendant. The complainant having failed to make out a cause of action, the bill of complaint will be dismissed with costs against the complainant. A decree may be prepared accordingly.”
   Kuhn, J.

(after stating the facts). In our opinion, the important questions to determine from this record are the natural direction of the flow of waters along the highway in question, and, if it is found that the waters do not flow in their natural course, the reason therefor. It is the claim of the complainant that the natural course of these waters is through the culvert into the private drains of defendant and then westward into the Bosch & Hultz drain. Defendant contends that the proper drainage is through the Southwest Blendon drain, and the reason that the water does not flow that way is that this drain has been neglected and has filled up, and the waters are thus prevented from following their natural course. The defendant testified with reference to this condition, as follows:

“Now, Mr. De Jonge, the water that comes through this bridge now upon your land and floods you out, that is water that comes from where?

“A. That comes through the bridge?

“Q. Yes.

“A. Well, that comes from the east side of the road.

“Q. Comes from the Southwest Blendon drain, doesn’t it?

“A. Yes, from the Southwest Blendon drain.

“Q. And why does it run through the bridge, and why doesn’t it follow the drain itself?

“A. Because that drain is obstructed with weeds and willows and hasn’t been cleaned out in four years; it is in poor shape.

“Q. When that was cleaned out four years ago, did the water follow largely the Southwest Blendon drain and not come under through the bridge?

“A. It did.

“Q. And that time had no trouble with your water?

“A. No.

“Q. And if the Southwest Blendon drain were now again widened and cleaned out as it was four years ago, would you have any trouble with the water?

“A. No, when I started to build that dam the water was running partly through my private drain, about one-third, and about two-thirds through the Southwest drain. Then I drove in a stake to see how much damage it would do when I blocked up my private drain, and in the evening when they worked all day at it, the water didn’t come up a quarter of an inch; it stayed right level with the stake. Then the water all had to go through the Southwest drain.

“Q. It had to go there when it couldn’t go under through the bridge and over your land?

“A. Yes.”

Complainant’s witness Bowen testified as follows:

“There is a public drain lying along the south side of my 40 called the Southwest Blendon drain. It doesn’t carry off the water because it is not wide enough. It is deep enough. - ' -

“Q. But not wide enough?

“A. The water cannot go away; it just fills up and stays that way.

“Q. It isn’t cleaned out, is that the reason?

“A. No, just filled up and stayed that way.

“Q. Because there'isn’t enough fall, or what is it?

“A. No place where it can go to.

“Q. Because the sand has filled it in?

“A. No, it just stayed there, nice and clean; the water just stayed there.

“Q. What I am trying to find out.why is it that the water from your land there doesn’t go through the Southwest Blendon drain?

“A. Well, it can’t.

“Q. Why not?

“A. There ain’t no room for it; it don’t want to go west.

“Q. It goes onto Chris De Jonge’s land?

“A. That is just the only place.

“Q. That is west, isn’t it?

“A. Yes, that is a little west.

“Q. If this Southwest Blendon drain was widened and cleaned out, wouldn’t that take the water?

“A. Well, of course it would.”

Mr. Fellows, the county drain commissioner, testified:

“These are private drains, two or three of them that run into the Southwest Blendon drain. It brings in oceans of sand from the fill and makes great bars and shuts up the flow of the Southwest’drain. The water goes over the top onto Mr. De Jonge’s land and down the Bosch & Hultz drain.”

After the defendant built the ridge, no steps were taken to clean out the Southwest Blendon drain, but an attempt was made to change the private drain of the defendant into a public drain. To this the defendant objected unless the outlet of the Bosch & Hultz drain should be enlarged sufficiently to take care of the increased flow of water, and stated:

“Q. Would you be willing, if the outlet of the Hultz, the Bosch & Hultz drain is opened, to have your private drain made into a public one, so that Huyser and Bowens can get rid of their water?

“A. Yes, sir; if they widen the Hultz drain in proportion.

“Q. So as to get rid of the water?

(‘A. Yes.”

A study of this record is convincing that if the Southwest Blendon drain were properly cleaned out the natural flow of the waters along the highway under ordinary conditions would be taken care of, and that unless this is done the waters are forced onto the defendant’s land, where they have no sufficient outlet, which results in damage to the defendant. We agree with the circuit judge:

“That the complainant has failed to establish a right by prescription to empty the water from the public drain through this culvert upon the lands of the defendant.”

Under these circumstances, neither the public, nor a private individual, where waters gather through neglect to take the proper steps to cause them to flow along their natural course, can turn the waters upon the lands of another, to his damage.

In Elliott v. Carter, 140 Mich. 303, 305 (103 N. W. 600), this court said:

“That neither the public, in constructing highways, nor private parties for the benefit of their own lands, can turn water from its natural course onto the lands of another, is well settled. 2 Farnham on Waters & Water Rights, 960; McAskill v. Township of Hancock, 129 Mich. 74 [88 N. W. 78], 55 L. R. A. 738); Breen v. Hyde, 130 Mich. 1 [89 N. W. 732], and authorities there cited; Smith v. Township of Eaton, 138 Mich. 511 [101 N. W. 661].”

The decree is affirmed, with costs to the defendant.

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