author: STONE, J. Brooke, C. J.

text:
    PEOPLE v. JACOBS.
    Prisons — Pood — Dairy and Pood Department — House of Correction.
    By an equal division of the court it is held, affirming a conviction of the superintendent of the Detroit house of correction for interfering with and preventing an inspector of food of the State dairy and food department from investigating the conditions of said penal institution, that under Act No. 167, Pub. Acts 1899, and § 2156, 1 Comp. Laws, and § 4978, 2 Comp. Laws, as amended, the dairy and food department is authorize?! to inspect the house of correction, where a bakery is maintained for the prisoners.
    Kuhn, Stone, Osteandee, and Mooee, JJ., dissenting.
    Exceptions before sentence from the recorder’s court of the city of Detroit; Connolly, J.
    Submitted November 5, 1914.
    (Docket No. 161.)
    Decided January 4, 1915.
    Bernhardt Jacobs was convicted of obstructing an inspector of the dairy and food department in attempting to inspect the house of correction of the city of Detroit.
    Affirmed.

      Grant Fellows, Attorney General, and James W. Helme, for the people.

      William E. Tarsney (Richard I. Lawson, of counsel), for respondent.
   STONE, J.

(dissenting). This case is before us upon exceptions before sentence. The appellant is the superintendent of the Detroit house of correction, a State penal institution, located in the city of Detroit. On October 21, 1913, Burr B. Lincoln^ a State dairy and food inspector, sought to make an investigation of the food conditions in the said institution, and for that purpose he called upon the appellant and Requested that he be permitted to go through the building and see the foods that were there served. This request was refused by the appellant, who informed the inspector that he had no right there; that it was an institution over which the dairy and food inspectors had no jurisdiction; and that he could not go through the institution. Because of this refusal, complaint was made charging appellant with a violation of Act No. 167 of the Public Acts of 1899 (2 How. Stat. [2d Ed.] § 3345), being “An act in relation to the powers and duties of the dairy and food commissioner of the State of Michigan.” This act provides that any person who shall obstruct the said commissioner, or his deputy, or any of his duly appointed inspectors, by refusing to allow him entrance to any place where he is authorized to enter in the discharge of his official duty, shall be guilty of a misdemeanor, and prescribes the punishment. A hearing was had upon this complaint in the recorder’s court, and the respondent and appellant was by the verdict of a jury found guilty as charged.

The questions raised by the assignments of error may be combined into the one question, namely: Has the dairy and food commission, or its inspectors, power under the law to investigate the food conditions of the Detroit house of correction?

On the part of the people it is contended that ample power is vested in the inspectors of the dairy and food commission to make such investigation, and that, in view of the refusal of the superintendent to permit the making of the investigation, he had violated the act above referred to. Attention is called by the people to chapter 76, 1 Comp. Laws, under the provisions of which said institution was. erected, and is controlled, and especially to section 2156 (5 How. Stat. [2d Ed.] §15462), which provides that:

“The management and direction of the said house of correction, subject to periodical inspection by the State authorities in their discretion, shall be under the control and authority of a board of inspectors, to be appointed for that purpose by the common council of the city of Detroit upon the nomination of the mayor.”

It is urged by the prosecution that under this section alone the State has a right to inspect the institution, and that the right of inspection by any State authority is here given; that authority to inspect this institution is made still plainer by the pure food laws of the State; that section 6 of the act creating the office of dairy and food commissioner and defining his powers and duties (2 Comp. Laws, § 4978, as amended by Act No. 12, Pub. Acts 1905, 2 How. Stat. [2d Ed.] §3330), states that such commissioner, or his deputy, or any person appointed by him for that purpose—

“Shall have power, in the performance of their duties, to enter into any creamery, factory, store, salesroom, drug store, or laboratory, or place where they have reason to believe food or drink are made, stored, sold or offered for sale and open any cask, tub, jar, bottle or package containing, or supposed to contain, any article of food or drink, and examine or cause to be examined the contents thereof, and take therefrom samples for analysis.”

Attention is also called to section 4 of the amendatory act of 1905, which provides that the inspectors shall have the same right of access to the places to be inspected as the said commissioner, or his deputy. A reading of the entire section 6, above referred to, shows that the dairy and food commissioner, his deputy or inspectors, shall regulate filthy and insanitary conditions which may exist in the operation of any bakery or other place where “any food or drink products are manufactured, stored, deposited or sold for any purpose whatever.” It was admitted upon the trial of the case that a bakery was maintained in the institution to bake bread for the prisoners, at the time complained of. Section 5029, 2 Comp. Laws (2 How. Stat. [2d Ed.] §3323), makes it the duty of the dairy and food commissioner of the State to investigate all complaints for violations of the act known as the general pure food law, and especially it is made the duty of the food inspectors in the cities to examine all complaints made to them of violations of the act.

On the part of the defendant and appellant it is contended that the act' creating the State dairy and food commission, and the amendments thereto, together with Act No. 167, Pub. Acts 1899, did not confer the right upon the State dairy and food commission or its inspectors to inspect the food conditions of a public or State institution such as the Detroit house of correction.

It-is urged by defendant’s counsel that, by the terms of the act creating it, the institution is used for the confinement, punishment, and reformation of criminals, or persons sentenced thereto, under the laws authorizing the confinement of convicted persons in the house of correction; that the management and direction of the said house of correction subject to periodical inspection by the State authorities is, by statute, placed under the control and authority of a board of inspectors appointed by the common council of the city of Detroit upon the nomination of the mayor; that this board of inspectors is authorized and empowered by the common council to make rules for the regulation and discipline of the house of correction, and to.appoint a superintendent; that under the statute the superintendent has entire control and management of all its. concerns subject to the authority established by law, and the rules and regulations adopted for its government.

It is contended by the appellant that the Detroit house of correction is not any one of the places named which the State dairy and food commissioner or his inspectors are authorized to enter; that the institution is not a creamery, factory, store, etc., or a. place where the inspectors would hav.e reason to believe food and drink are made, stored, and offered for sale, within the meaning of the statute.

An examination of the statutes relevant to this subject has led us to the conclusion that the public penal institutions of this State, including the Detroit house of correction, are not within the purview or terms of the statute relating to the general pure food law. The legislature has provided a visitorial board, whose duty it is to inspect these institutions and make due report thereon. As early as 1871, provision was made for a commission to be appointed, subsequently called the “Board of Corrections and Charities,” of which the governor is ex officio a member. Section 2252, 1 Comp. Laws (5 How. Stat. [2d Ed.] § 15512), reads as follows:

“The said commissioners, by one of their number, or by their secretary, shall, at least once in each year, visit and examine into the condition of each and every of' the city and county poorhouses, county jails, or other places for the detention of criminals or witnesses; and the said board, or a majority thereof, with their secretary, shall, at least once in each year, visit and examine the reform school, State prison, Detroit house of correction, and State and county asylums for the insane, and the deaf, dumb, and blind, and for the purpose of ascertaining the actual condition of the institutions by them or either of them visited, the method of instruction, government, or management therein pursuéd, the official conduct of the superintendents or other officers and employees in charge thereof, or connected therewith, the condition of the buildings, grounds, or other property thereunto belonging, and the facts as to all other matters in any manner pertaining to the usefulness and proper management of the institutions, poorhouses, and jails above named. They, or either of them, and their secretary, shall have free access thereto at any and all times, and shall have authority to administer oaths and examine any person or persons in any way connected with or having knowledge of the condition, management, and . discipline of such institutions, jails, or poorhouses, as to any matters or inquiries not contrary to the purposes or provisions of this act.”

Attention is called to the remaining portions of this statute.

An examination of the statutes relating to the gov-eminent of the State prisons and reformatories, the powers and duties of the boards of control, and of the wardens of the institutions, will show that these officers have plenary power and control over all matters relating to the government of the institutions, including food, medicine, clothing, bedding, etc. — everything which pertains to the health and well-being of the inmates. With these ample provisions, and the added power of visitation lodged in the board of corrections and charities, it does not seem to us that it was the intention of the legislature that this ground was also to be covered by the dairy and food commission.’ In our opinion that commission has no jurisdiction over these institutions, but its right to inspect is limited to the store, etc., of the manufacturer or vendor of food or drink products, which are made, stored, sold, or offered for sale to the general public.

It will be noted that the language relied upon by the people in the amendatory act of 1905, defining the several places where inspection may be made by the dairy and food commissioner, is specific in designating certain places, to wit, creamery, factory, store, salesroom, drug store, or laboratory, followed by the general words, “or places where they have reason ,to believe food or drink are made, stored, sold or offered for sale.” This general language must be construed as meaning places of the same kind, of the same general character or sort as those named.

Although it appears in this record that the Detroit house of correction. bakes its own bread for its inmates, and for that purpose may be said to operate a bakery, yet it does not seem to us that such a place can be covered by any of the specific words mentioned.. Certainly it is not a creamery, factory, store, salesroom, drug store, or laboratory, as those words are used in the statute. The general rule should here apply that when after the enumeration a statute employs some general term to embrace other cases, the other cases must be understood to be cases of the same general character, sort, or kind, with those named. In other words, “They are known from their associates.” Brooks v. Cook, 44 Mich. 617-619 (7 N. W. 216, 38 Am. Rep. 282 and cases cited); Roberts v. City of Detroit, 102 Mich. 64 (60 N. W. 450, 27 L. R. A. 572); Drake v. Industrial Works, 174 Mich. 622 (140 N. W. 933).

We are therefore forced to the conclusion that the Detroit house of correction — a State penal institution, with its superintendent, and its board of inspectors, subject to the visitation of the board of corrections and charities — is not embraced within, and was not intended to be embraced within, the provisions of the pure food law, and that the inspector had no authority to enter the premises. Whenever the legislature desires to clothe the pure food commission with such authority it will doubtless so express itself. We think it has not done so in the past legislation. Reaching this result, that conflict in jurisdiction of the different boards, which would lead to an unseemly contest, is avoided. The conviction should therefore be reversed, and the defendant discharged.

Kuhn, Ostrander, and Moore, JJ., concurred with Stone, J.

Brooke, C. J.

My Brother Stone, in the earlier part of his opinion, states very clearly the contentions made on behalf of the people in this. case. It is claimed that the dairy and food commissioner, or his deputy, is authorized to make the inspection which was denied, upon two grounds: (1) Under the act creating the Detroit house of correction, section 2 (1 Comp. Laws, § 2156; 5 How. Stat. [2d Ed.] § 15462), which provides:

“The management and direction of the said house of correction, subject to periodical inspection by the State authorities in their discretion, shall be under the control and authority of a board of inspectors, to be appointed for that purpose by the common council of the city of Detroit.”

It is claimed on behalf of the people that this language used in the law of its creation is broad enough to warrant the inspection of said institution by any State authority. In my opinion the contention is fully warranted by the language used. It would be difficult to select words of more general import than those used in the statute:

“Subject to periodical inspection by the State authorities in their discretion.”

No particular State authority is pointed out, nor is the rignt of inspection limited to any such particular authority. There is no doubt that included among the State authorities entitled to the right of inspection is the State board of charities. It, however, by no means follows that the exercise of the right by that board exhausts the authority of the State under the language of the section above quoted. It seems to me clear that the labor department might very properly inspect the institution to determine whether proper safety devices were employed as provided by the general laws of the State touching that subject. The State board of health, too, should have authority to inspect and determine whether the laws relating to sanitary conditions were being obeyed therein. And closely akin to the necessity for such inspection is the necessity for inspection by the State dairy and food department in order that it may be determined that the food served is wholesome in quality.

It should be borne in mind that the institution is one of considerable magnitude within the walls of which are confined several hundreds of prisoners, male and female. The female prisoners therein are boarded at the expense of the State and many counties of the State having individual contracts with the institution, by the terms of which a per diem amount is paid for the board and medical attendance of each prisoner.

Several industries are carried on in the institution requiring the use of machinery. In my opinion it is an institution peculiarly requiring the supervision of every department of the State whose activities are directed to securing to the inhabitants thereof sanitary conditions, wholesome food, and freedom from danger to life and limb through the use of improperly guarded machinery.

If there could be any doubt of the right of the people to insist that the dairy and food commissioner, or his deputies, is authorized to make the inspection which was denied in the instant case, it is disposed of by a reading of section 6 (2 Comp. Laws, § 4978; 2 How. Stat. [2d Ed.] § 3330) of the law creating that department. That section authorizes the entry of the commissioner, or his deputies, to certain named places and,

“or place where they have reason to believe food or drink are made, sold or offered for sale.”

In my opinion it is idle to say that the house of correction is not such a place. Whatever may be said of other penal institutions of the State, this particular institution stores food in large quantities, which it sells. The record shows that during the year it received the very considerable sum of $32,659 for board of prisoners confined therein.

It is, in a sense, in the business of selling food. The fact that its customers happen to be the State itself and several political divisions of the State, makes no difference in the principle involved. It would, I think, scarcely be contended that a hotel keeping, storing, and offering food for sale to its guests was not subject to the inspection provided for in the act creating the dairy and food department. In any event, I think such a construction of the legislation is too narrow, and I quite agree with the opinion expressed by the learned trial judge who, in refusing to charge as requested by the respondent, said:

“I refuse to give this request to charge, gentlemen of the jury, upon the ground that it is my opinion that the spirit of the dairy and food law is to procure and secure proper food and drink for all of the inhabitants of the State. That is its general purpose and scope. And that the terms of the act creating the dairy and food commission, the acts amendatory thereto, are broad enough to include the Detroit house of correction and all other penal institutions.”

The judgment of the court below should be affirmed.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    HOPKINS v. MICHIGAN SUGAR CO.
    1. Master and Servant — Workmen’s Compensation — Accident Arising Out oe Employment.
    To justify an award of compensation to an injured employee the accident must have arisen out of as well as in the course of his employment; the two are separate questions to be determined by different tests: “out of” points to the cause or source of the accident, while “in the course of” relates to time, place, and circumstance.

      2. Same — Relation oe Servant — Injuries Outside oe Employment.
    Where the decedent was in the employ of the defendant as its chief engineer, and had supervision of the installation of machinery in several of defendant’s plants at different cities, an injury received while he was preparing to hoard a car in the street by slipping and falling upon icy ground in a city in which his principal office and the main plant of his employer was situated, was not an injury which arose out of his employment under Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.), although decedent had spent the day at one of the branch factories in a distant town from which he had returned to the city in which he resided.
    Certiorari to the Industrial Accident Board.
    Submitted November 11, 1914.
    (Docket No. 25.)
    Decided January 4, 1915.
    Jane E. Hopkins presented a claim against the Michigan Sugar Company for compensation for the death of her husband. An order granting compensation is reviewed by contestant on certiorari.
    Reversed.

      Brooks & Cook (Hal H. Smith, of counsel), for claimant.

      Frank J. Riggs (Martin J. Cavanaugh, of counsel), for defendants.
   Steere, J.

The proceedings in this case, brought here for review by certiorari, arose under Act No. 10, Pub. Acts 1912 (Extra Session); (2 How. Stat. [2d Ed.] §3939 et seq.), and involve the validity of an award, by the State Industrial Accident Board, of compensation to claimant for the death of her husband on February 13, 1913, against his employer, the Michigan Sugar Company, defendant.

It appears from the finding of the board, supported by competent evidence, that deceased was in the employ of said company as its chief engineer, supervising the installation of machinery in, and operation of, six of its plants located at Saginaw, Bay City, Alma, Croswell, Caro, and Sebewaing. He ■ resided at Saginaw, had a desk at the office of the company in that city, and did work there from time to time, but had no regular office hours, and was engaged much of his time visiting and looking after the different factories, as directed or as circumstances might require. He received an annual salary, with his traveling expenses paid when going on business of his employer. He sometimes started from the office and at other times from his home when making such trips, On February 4, 1913, he left Saginaw in the morning for Sebewaing, to visit the company’s plant at that place. A train arrived at Saginaw from Sebewaing at 5:40 p. m. About 6:40 he arrived home with an injury to his head, which was bleeding a little at the back, and which his wife cared for. He detailed to her, and subsequently to others, how it occurred. No one is shown to have seen the accident. He spent most of the following day at the office, and the day after attended a funeral in Bay City. During those two days he appeared unwell, complained of a severe headache, and in speaking of it told of the accident to which he attributed it. From that time he grew worse, suffered a partial paralysis, with other symptoms of brain pressure, and died on February 13th. Without details, the testimony of physicians showed that his death was caused by a hemorrhage resulting from a small fracture about one-half inch long extending from the vertex of the skull toward the right ear.

It is claimed and found by the board that upon arriving at the station in Saginaw, upon his return in the evening from Sebewaing, deceased found no street car in sight and started to walk along. Washington street in the direction of both his home and the company’s office; that after he had walked a number of blocks he saw a street car coming and started from the sidewalk, intending to take it; that the ground there was icy and covered with snow, and he slipped and fell, receiving the injury which eventually resulted fatally. Material parts of this finding are challenged as unsupported by any competent evidence; no witness being shown to have seen the accident. Much clearly incompetent and purely hearsay evidence produced by claimant was admitted in regard to it, some of which showed that deceased ran to catch the car and did not notice the ice until, in hurrying over it, he slipped and fell.

Conceding, however, as contended by claimant, that facts and circumstances properly proven, together with the report of accident made by the defendant company to the Industrial Accident Board, as required by statute, furnish sufficient evidential support for the findings, and accepting them as true, we are yet impelled, under the authorities, to the view that such findings fail to sustain the conclusion of law by the board that such accident was naturally or peculiarly incidental to and arose out of deceased’s employment.

To justify an award under this act, it must be shown that the employee received “a personal injury arising out of and in the course of his employment.” This provision is adopted in identical words from the English workmen’s compensation act, and presumably with the meaning previously given it there.

It is well settled that, to justify an award, the accident must have arisen “out of” as well as “in the course of” the employment, and the two are separate questions to be determined by different tests, for cases often arise where both requirements are not satisfied. An employee may suffer an accident while engaged at his work or in the course of his employment which in no sense is attributable to the nature of or risks involved in such employment, and therefore cannot be said to arise out of it. An accident arising out of an employment almost necessarily occurs in the course of it, but the converse does not follow. 1 Bradbury on Workmen’s Compensation, p. 398. “Out of” points to the cause or source of the accident, while “in the course of” relates to time, place, and circumstances. Fitzgerald v. Clarke & Son, 2 K. B. (1908) p. 796.

The same provision, in the same words, is found in the Massachusetts workmen’s compensation act. In McNicol’s Case, 215 Mass. 497 (102 N. E. 697), the controlling question was whether fatal injuries received by an employee through blows and kicks administered by a fellow workman, “in an intoxicated and frenzied passion,” arose out of the employment. It appearing that the assaulting fellow-servant, with whom deceased was required to work, was, when in liquor, known to be quarrelsome and dangerous, and unsafe to be permitted to work with his fellow-employees, the court held that “a natural result of the employment of a peaceable workman in company with a choleric drunkard might have been found to be an attack by the latter upon his companion;” but if the assaulter had not been an employee, though the injury would yet have been received in the course of the employment, it could not have been said to have arisen out of it. Mitchinson v. Day Bros., Workmen’s Compensation Reports (1913), p. 324. In that connection, recognizing as controlling authority, and differentiating, many cited English cases upon the subject, the court thus clearly and comprehensively states the rule:

“It is sufficient to say that an injury is received ‘in the course of’ the employment when it comes while the workman is doing the duty which he is employed to perform. It ‘arises out of’ the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of’ the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workman would have been equally exposed, apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flow-, ed from that source as a rational consequence.”

The question of whether deceased was in any sense within the ambit of his employment at the time and place of the accident is a serious one; but, conceding that the injury befell him while in the course of his employment, can it be fairly traced to his employment as a contributing, proximate cause, or did it come from a hazard to which he, in common with others, would have been equally exposed apart from the employment? No direct causal relation is claimed in the particular that the nature of the business of manufacturing sugar in itself exposes its employees to unusual risk or danger of accident of this nature. All that can be claimed is that the accident resulted from the understood extra hazard to which those who travel are exposed, and, while traveling in his employer’s business, he was protected against accidents attributable to that extra danger.

Deceased’s home and headquarters were in Saginaw. He had a desk in the office of the company, where he did some work. One of the six factories he' supervised was in Saginaw. His traveling consisted of journeying to the other five factories from time to time as occasion required. On the day in question he had made such a journey to Sebewaing and returned to Saginaw in safety. At the time of the accident he was in his home city, walking along the street, exposed to no more or different hazards of travel than any other citizen, nor than he would have been had he spent the day at the company’s office or its Saginaw plant. How is the legal aspect of the case affected by his having gone to Sebewaing during that day, when it appears that his duties of the day were ended and he had returned safely to Saginaw? At the time of his. accident he was passing on foot along a familiar highway, upon which was ice and snow— a natural condition of that season of the year — involving an increased risk and added danger of falling, common to all and known to all. When he slipped upon the snow-covered ice and fell, he was not riding upon nor getting on or off any conveyance, public or private. No person or thing connected with transportation or travel touched or threatened him. While it is indicated by the record that he desired to take a street car and was walking or running towards one for that purpose, to assert that he was injured in attempting to take or board a car wquld be a misleading overstatement. He slipped and fell before reaching it, apparently such a distance away as not to attract the attention of those on the car, as no witnesses to the accident were produced. The board found that “he started from the sidewalk towards the car with the intention of boarding the same ;” and the employer’s report, which is the legal basis of such finding, shows that he fell “about one-third distance between sidewalk and car track.” The car was presumably somewhere on the track at the time, but just where is not disclosed.

Slipping upon snow-covered ice and falling while walking, or running, is not even what is known as peculiarly a “street risk;” neither is it a recognized extra hazard of travel or particularly incidental to the employment of those who are called upon to make journeys between towns on business missions.

These distinctions are recognized and the rule correctly stated in an opinion of the Michigan Industrial Accident Board, filed in Worden v. Commonwealth Power Co., 20 Det. Leg. News, No. 39 (December 27, 1913), as follows:

“It must also appear that the injury arose out of the employment and was a risk reasonably incident to such employment, as distinguished from risks to which the general public is exposed. To illustrate: * * * On the other hand, it might be fairly said that one of the most common risks to which the general public is exposed is that of slipping and falling upon ice. This risk is encountered by people generally irrespective of employment. * * * ”

The board also referred to the fact that claimant was upon his own premises, as of some force, but apparently denied an award upon the ground quoted, which is well supported by former decisions.

In the late case of Sheldon v. Needham, W. C. & Ins. Rep. of 1914, p. 274, a servant sent to mail a letter slipped in the street, upon a banana peel or some other slippery object, breaking her leg. Citing as controlling several cases involving the same principle, the court held that, although claimant was in performance of the exact thing ordered done, there could be no award because the accident was not due to any special or extra risk connected with and incidental to her employment, but was of such nature as to be equally liable to happen under like circumstances to any one in any employment, and whether employed or not. This unfortunate accident resulted from a risk common to all, and which arose from no special exposure to dangers of the road from travel and traffic upon it; it was not a hazard peculiarly incidental to or connected' with deceased’s' employment, and therefore is not shown to have a causal connection with it, or to have arisen out of it.

For the foregoing reasons, we are impelled to the conclusion that the order and award of the Industrial Accident Board in the premises cannot be sustained.

Reversed.

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


author: Stone,' J.

text:
    SCHILLER-BUND v. KNACK.
    1. Insurance — Mutual Benefit Policy — Husband and Wife— Divorce — Effect of Divorce Upon Beneficiary’s Rights.
    Where decedent was a member of a mutual insurance association, and after obtaining his certificate he returned home and gave it to his wife, stating that it was hers and she would have to keep it up, and where the wife continued to pay the dues for a number of years until she obtained a divorce from her husband, when she discontinued the payments, and where the insured after-wards married again and procured a reinstatement of his policy in favor of the second wife, the original beneficiary did not secure such vested rights in the policy, by virtue of the arrangement between herself and husband, as to prevent change of beneficiary under the rules of the society permitting such change at the instance of the insured member.

      2. Same — Mutual Benefit Association — Change of Beneficiary.
    The regulation of a mutual benefit association permitting members to change the beneficiary in their certificate or policy is a valid and reasonable one, and the fact that the original beneficiary had possession of the certificate would not affect the right of the insured to make the change so as to substitute his second wife in her place.
    3. Husband and Wife — Contracts — Insurance — Undue Influence.
    There is no rule of law or of morals which makes it unlawful or improper for a wife to use her wifely influence for her own benefit, or for that of others, unless she acts fraudulently or extorts benefits from her husband when he is not in a condition to exercise his faculties as a free agent.
    4. Same — Divorce.
    A divorced wife, after the second marriage of an insured member of a mutual beneficiary association, was not a member of his family so as to entitle her to claim the right of a beneficiary.
    Appeal from Wayne; Van Zile, J.
    Submitted November 12, 1914.
    (Docket No. 69.)
    Decided January 4, 1915.
    Bill' by the Schiller-Bund against Martha Knack and Bertha Knack for a decree of interpleader. From the decree entered defendant Martha Knack appeals.
    Reversed.

      Arthur E. Schreiter and Jasper C. Gates, for appellant.

      William M. Mertz, for appellee.
   Stone,' J.

This is a suit of interpleader. The issue is based upon a bill of interpleader filed by complainant, a fraternal benefit society, organized under the laws of this State, for the purpose of ascertaining which of the two defendants is entitled to the sum of $1,000, due upon a certificate of membership of August Knack, deceased, and which money complainant has paid into court. A decree of interpleader was entered. From a decree awarding the fund to defendant Bertha Knack, the defendant Martha Knack has appealed.

Defendant Bertha Knack claims this money by virtue of a benefit certificate issued in her favor January 15, 1908. Defendant Martha Knack claims by virtue of a second certificate dated July 1, 1911, she claiming that the certificate issued to Bertha had been forfeited, and that the second certificate was legally issued in its place to her as beneficiary. When Bertha’s certificate was issued, she was the wife of August Knack. He took the certificate home and handed it to her, and “told her to keep it, for it was hers, and that she would have to keep it up; that he did not want to be bothered with it.” From this time until and including December 10, 1910, Bertha paid the dues accruing upon this certificate. The dues of December 10th were paid January 14, 1911, which was the last payment made by her.

November 18,1909, a decree of divorce was granted by the circuit court for the county of Wayne, in chancery, to Bertha Knack in a suit against August Knack. It further appears that in connection with this suit, by a written agreement between them, August Knack transferred to Bertha a house and lot they were then buying on a contract, and also paid her in cash $100. This agreement contained the following clause:

“Said complainant, Bertha Knack, hereby agrees to accept the said sum of $100 and said conveyance of all his right, title and interest in and to said land contract and said premises, in full for all claims of alimony, costs, and solicitors’ fees in said cause, and in full for all present and future claims of support, and for all claims whatsoever against said defendant August Knack.”

On December 24, 1910, August Knack was married to defendant Martha Knack, and they lived together until his death, May 1, 1912.

There is considerable uncertainty and indefiniteness in the testimony as to just what occurred with reference to the claimed forfeiture of the certificate. Some extracts from a copy of the by-laws of the complainant were offered in evidence. Article 17, subdivisions “to,” “n,” and “v” of these by-laws are as follows:

“(to) Every member of the Bund shall receive, after initiation, a certificate of his or her class duly executed, and shall signify his or her acceptance of the laws of the Bund with his or her full signature.

“(n) Every member is obliged to pay all assessments called by the executive committee promptly, failure to do so forfeits all rights and privileges as a member.”

“(v) A member failing to pay dues to the society within the prescribed time shall lose benefits in the Bund, as well as a member not paying the assessments.”

Article 20 of these by-laws contains the following:

“Should a member fail to pay an assessment within the time specified, such member shall be out of benefit, but 30 days’ time may be given to pay the arrearages, and if paid within this time, the member shall again be considered in good standing from the date of such payment. Should a member neglect to pay the assessments during this time it shall become the duty of the secretary to notify such member before the 28th day of the second month, by registered letter, to pay the assessments, together with fifty cents for costs within ten days after the 28th of the second month, otherwise the member shall be stricken from the roll. The executive committee may grant 30 days’ further time to a member, about to be stricken.”

It is claimed that on March 4, 1911, the secretary of the Local Verein of the Schiller-Búnd sent a written notice addressed to Mr. and Mrs. August Knack, at 961 Frederick street, Detroit, where Bertha Knack then resided, that' unless the arrears and dues were paid “within ten days you are marked off the books and your certificate is no good.” Bertha testified that she received this letter. There was testimony that afterwards, on April 3, 1911, the secretary of the Local Verein sent Bertha another notice, in German and English, to much the same effect. This was sent by registered mail and came back to the secretary unopened. Thereupon she was “marked off the books.” While this condition of things existed, the evidence tends to show that August Knack requested Bertha, to give him the old certificate, which seems to have been in her possession during all these years, and this was refused by her.

Article 7, subdivisions “p” and “q” of the constitution and by-laws, are as follows:

“(p) A member wishing his certificate changed shall notify the secretary of his or her society and deliver the old certificate, and a fee of 50 cents will be charged for such change.

“(q) A member having lost his certificate through fire, theft or any other cause may have a new certificate issued after making affidavit of such fact before a notary public. A fee of 50 cents will be charged.”

After the refusal of Bertha to surrender the certificate, the following affidavit was made by August Knack:

“State op Michigan, County op Wayne — ss.: August Knack of the city of Detroit, county of Wayne, and State of Michigan, being duly sworn, deposes and says, that he is the insured named in a certain life insurance policy in the Schiller-Bund No. 1; said policy is not in his possession and that he is unable to procure the same.

“And further deponent saith not.”

This appears to have been signed by August Knack, affiant, with the signature of the notary public. It is without date. Upon the presentation of this affidavit, probably in the month of May, 1911, and after some discussion in the society, a new certificate was issued upon the payment of all past dues and assessments. This new certificate was issued to Martha; or, as some of the witnesses say, August Knack was reinstated and a new certificate was issued, wherein Martha was made the beneficiary at the request of August.

It is the claim of defendant Bertha Knack, and there is evidence tending to support it, that in the month of May she went to the secretary and offered to pay up her arrears of dues, etc. It is undisputed that he refused to accept the money, claiming that she had no right to pay it. The secretary testified that this was after August had applied to have the certificate changed, and had already paid up the back dues. Bertha testified that it was about the middle of May, 1911. After the issuance of the certificate in which Martha was the beneficiary, all dues were paid by August Knack down to his death.

The regularity of some of the proceedings in declaring forfeited the old certificate in which Bertha was the beneficiary, and the reinstating of August, and the issuing of the new certificate in which Martha was the beneficiary, is considerably discussed by counsel on both sides. The important question, however, in the case, and the one upon which it must turn, in our opinion, is whether Bertha Knack acquired a vested interest in the original certificate in question. We quote from the appellee’s brief upon that subject as follows:

“The chief and final question to be decided upon this record is whether Bertha Knack acquired a vested interest in the original certificate in question, based upon contract with her husband and such performance on her part, that equity will estop her husband, and the society as well, from changing the beneficiary to her detriment; and will equally estop Martha Knack, the new beneficiary, from claiming the fund; and also whether under the circumstances in this case ‘Martha’s Certificate’ is not null and void.”

As we have already stated, August Knack joined the Schiller-Bund in 1903-, and obtained the certificate naming Bertha as his beneficiary. A daughter of Bertha and August testified as follows:

“I remember when this first certificate was first made out. Mama did not care about papa going into it because she felt it would be too much expense. He says, ‘Well, I am going into it, but you will have to take care of it and pay for it.’ He says, ‘You never can say I haven’t done anything for you.’ I do not remember the certain time that he went into it. * * * I know that mother made the payments on this certificate. If mother did not go sister went until I was old enough to go. Mother furnished the money. * * * She worked to get the money. She did sewing as long as I can remember. With her earnings she made the payments on the house and also supported the family and also kept the assessments up. That is as long back as I can remember about. My father was working. He spent all of his money on drink as long back as I can remember.”

Another daughter testified to substantially the same.

We have stated this testimony because it is claimed to support the position taken by appellee, and it may be said to be undisputed that Bertha always held this certificate and, except for the initiation fee of $2, paid all dues and assessments regularly on it from the date of its issuance, January 15, 1903, to and inclusive of January 14, 1911, and that in May, 1911, she offered to pay the back dues and resume payments, which was refused, and her offer ignored by the secretary.

Whatever irregularities there may have been about the reinstating of August Knack and the issuing of a new certificate to him, the right of the defendant Bertha must depend upon whether she had a vested interest in this first certificate; for if she did not, and the society saw fit to and did issue a new certificate making Martha the beneficiary, and it was upon this new certificate that payments were made by August Knack, from its date down to the time of his death, he having the right to change the beneficiary in his certificate, the defendant Bertha would have no standing in court. We therefore agree with counsel for the appellee that the chief and final question to be decided upon this record is whether Bertha Knack acquired such vested interest in the original certificate. Upon that question we have read with care the record and authorities cited by counsel upon both sides, and are of opinion that, giving the evidence in behalf of Bertha its strongest probative force, it does not show such a contract based upon sufficient consideration as would be binding upon the parties and would render it beyond the power of August to change the beneficiary. Unless Bertha had a vested interest in this policy by virtue of a valid agreement and contract, based upon a sufficient consideration, it is our opinion that the divorce proceedings would cut off her right to any benefit under the policy under our statute (section 7740, 3 Comp. Laws, 4. How. Stat. [2d Ed.] §9022) and under the following decisions: Order of Mutual Protection v. Dewey, 142 Mich. 666 (106 N. W. 140, 3 L. R. A. [N. S.] 334, 113 Am. St. Rep. 596, 7 Am. & Eng. Ann. Cas. 681); Grand Lodge A. O. U. W. v. McKay, 149 Mich. 90 (112 N. W. 730); Dahlin v. Modern Maccabees, 151 Mich. 644 (115 N. W. 975); Green v. Green, 147 Ky. 608 (144 S. W. 1073, 39 L. R. A. [N. S.] 370, Am. & Eng. Ann. Cas. 1913D, 683), citing, among other cases, Grand Lodge A. O. U. W. v. Child, 70 Mich. 163 (38 N. W. 1).

In Green v. Green, supra, the court said:

“Without approving of the rule applied by some courts in the case of ordinary life insurance companies, we are of the opinion that there is every reason why a different rule should prevail in the case of mutual benefit societies. The latter are organized for the benefit of the members, their families, and those dependent upon them. To permit the benefits to be paid to those (who) at one time sustained such relation, but did not sustain that relation at the time of the member’s death, would be to frustrate the purpose of the society. In other words, to entitle one to receive the proceeds of a certificate in a fraternal society, he must, unless the contract or charter and by-laws provide otherwise, bear the required relation at the time of the member’s death. That being true, we are of the opinion that the divorce operated to revoke the designation of appellant as the beneficiary in the certificate in question and to substitute decedent’s mother in her place.”

The trial court decreed this fund to the defendant Bertha upon the authority of In re Reid’s Estate, 170 Mich. 476 (136 N. W. 476). That case grew out of a claim presented by Joseph Stockwell against the estate of Mary E. Reid, his former wife. It appeared that Thomas Shiveley, the father of the deceased, was a member of the Royal Arcanum Insurance Association and had a benefit certificate therein of $3,000. On a date stated he made deceased, then Mrs. Stock-well, the wife of claimant, the beneficiary. Thomas Shiveley died March 4, 1904, and she drew the amount of $3,000 upon said certificate. The claimant’s evidence tended to show that the making of deceased the beneficiary of this insurance was in pursuance of a valid agreement between Thomas Shiveley and deceased that the claimant Stockwell should keep up the insurance and be repaid out of the insurance money the amount which he expended for that purpose. Also, that from 1891 up to 1900 the claimant did keep up this insurance and paid out for that purpose the sum of $1,200 under an agreement between himself and wife that he should be repaid out of the insurance money. Claimant sought to recover this sum of $1,200 against her estate. The vital question presented to and decided by this court was whether the deceased had any such interest in the insurance as empowered her, although a married woman, to make a contract with her husband to repay what he should expend in that • behalf. As a matter of fact, when deceased made the agreement in question, she was the beneficiary under a valid agreement with her father, and she continued to be such beneficiary until the insurance money was paid to her. During this time Thomas Shiveley, her father, never attempted to make a change of beneficiary. Certainly she had a right to make a contract with her husband in relation to the matter, and there was a good and valid consideration for such contract. We must recognize the rule which has been frequently announced by this court that the by-law of a society permitting the changing of a beneficiary is a reasonable regulation of the member to exercise the power of appointment whenever and so often as he pleases. As this court said, as early as Mutual Association v. Montgomery, 70 Mich. 587, 594 (38 N. W. 588, 591, 14 Am. St. Rep. 519):

“Circumstances may intervene which may make it desirable for the member to make a change in the beneficiary, and, as such designated beneficiary has no vested right in the fund or bounty of the donor, his consent to the change is not required, nor has he any interest that can be either protected or asserted in a court of law.”

And the fact that the certificate was in possession of Bertha, and that she made the payments, is not sufficient to give her the right to protest against a change of beneficiary. Grand Lodge A. O. U. W. v. McGrath, 133 Mich. 626 (95 N. W. 739); Metropolitan Life Ins. Co. v. O’Brien, 92 Mich. 584 (52 N. W. 1012); 6 Cyc. pp. 124-126.

The rule is well stated in Niblack on Accident Insurance and Benefit Societies (2d Ed.), in the latter part of section 227, as follows:

“A beneficiary who pays the assessment on a certificate voluntarily and gratuitously, and ■ not under, a contract with the assured, acquires no vested interest therein as against a person afterward named as beneficiary by the member. A member may change this beneficiary, though the latter has paid the assessments and has possession of the certificate. But it has been held that where a person became a member of a society under an agreement with the beneficiary designated in his certificate, that the beneficiary should pay all assessments, and he paid them under the agreement, the beneficiary acquired a vested interest in the certificate, and the member could < not afterward make another designation. A provision of the charter or of a contract of the society, declaring that a member shall have a right to make a change of his beneficiary without the consent of the latter, applies when the original designation is in the nature of an inchoate or an unexecuted gift, and where there is no agreement on the part of the member, the society and the beneficiary that no change shall be made. It does not prevent an express contract between the member, the beneficiary and the society that a vested right shall pass to the beneficiary.”

We have examined the cases cited in the briefs of counsel, and are unable to find a case in which it was held there was a vested right passing to the beneficiary where there was not an express contract founded upon valuable consideration (moving to the assured) between the assured and the beneficiary. One of the leading cases is that of Catholic Benevolent Legion v. Murphy, 65 N. J. Eq. 60 (55 Atl. 497). In that case Vice Chancellor Pitney, now a justice of .the supreme court of the United States, referring to the contract between the husband and wife, said:

“The transaction referred to between the husband and wife, when acted upon, as it was, by the wife, amounted' to an irrevocable waiver by him in her favor of his right to exercise the power of change of designation. It operated, in equity, as a release of such power to her. Her right became vested by reason of her payments and the support which she furnished him, and it was not competent for the complainant, by a change of rules, to enable her husband to divest them, or, rather, it was not competent for the husband to take advantage of such change of rules for that purpose. * * * In this case, if the wife, by the continued possession of the certificate, under claim of right, with the consent of her husband and the continued payment of the monthly and quarterly dues thereon, and by her continued support of her husband in anticipation of receiving the benefit of the certificate, acquired an equity in the fund created thereby, no act of her husband, based on any new rule adopted by the complainant association or anybody in any other manner, can deprive her of that right.”

Another case cited by counsel for appellee is that of Leaf v. Leaf, 92 Ky. 166 (17 S. W. 354, 854). We quote from the headnote as follows:

“While a member who has had a certificate issued payable to one member of his family, may, ordinarily, with the consent of the order, have a new certificate issued substituting' the name of any other member of his family as the beneficiary, yet equities may arise which will prevent such a change; and where, as in this case, the wife, to whom the original certificate was issued, has kept it alive by paying the assessments out of her own earnings and has surrendered property to her husband upon the faith that she was to have the fund, she has a superior equity to all others; and, although the husband had a new certificate issued, naming his. adult children as the beneficiaries, the widow, upon his death, is entitled to the fund for the benefit of herself and infant children residing with her.”

And it was held in such a case that the vested right would continue notwithstanding a divorce between the parties.

In this case there was no such binding, valid contract existing between August Knack and Bertha, his wife, as would give her a vested interest in the policy.

The court below seems, by its opinion, to have laid some stress upon what it terms “undue influence” exercised by Martha, the second wife, to induce her husband, August, to make her the beneficiary under the new certificate. We are unable to find any fraudulent conduct on the part of Martha or any want of mental capacity on the part of August in this transaction. The following language of this court, we think, is appropriate:

“We do not know of any rule of law or of morals which makes it unlawful or improper for a wife to use her wifely influence for her own benefit or for that of others, unless she acts fraudulently, or extorts benefits from her husband when he is not in a condition to exercise his faculties as a free agent. A faithful wife ought to have very great influence over her husband, and it is one of the necessary results of proper naarriage relations.” Latham v. Udell, 38 Mich. 238; Pierce v. Pierce, 38 Mich. 412.

Being satisfied from this record that defendant Bertha Knack has no vested right in this certificate, in our opinion, she is in no position to recover here. The decree of the circuit court is reversed, and a decree will be entered in this court in favor of the defendant Martha Knack entitling her to the fund, less the costs which have been paid to complainant out of the same. The appellant will recover against the appellee her costs in this court to be taxed.

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


author: Kuhn, J.

text:
    NELSON v. MICHIGAN TANNING & EXTRACT CO.
    1. Appeal and Error — Exception — Trial — Saving Questions for Review.
    Where defendant’s counsel, at the close of plaintiff’s testimony, in a personal injury case, asked the court to grant a nonsuit in favor of defendant, without arguing the point, and the court overruled the motion, reserving to the defendant the right to call it up at the conclusion of the trial, and where the motion for a directed verdict was made after all the proofs were in, and an exception taken at that time, the exception was sufficient on error to present the objections raised when the motion was first made, and the attorney was justified in concluding that the ruling of the court was not then final.
    2. Same — Sufficiency of Assignment — Directed Verdict.
    It is not sufficiently specific, in assigning error, to state that the court erred in not directing a verdict for the defendant. But where the words were added, '“as requested by counsel at the close of the testimony in the case,” it referred to the reasons assigned when defendant’s counsel first moved the court to direct a verdict in his favor.
    3. Master and Servant — Contributory Negligence — Personal Injuries — Railroads—Private Logging Line.
    Evidence thát plaintiff was a brakeman on defendant’s switch engine, employed in moving cars from place to place at the factory grounds of his employer, that he leaped from the engine on which he was riding and preceded it towards a switch that he wanted to open, and that as he attempted to cross in front of the engine he slipped and fell upon snow or ice between the tracks, and was struck by it, that the engineer, who was the first to come to the aid of the plaintiff, said it was too bad, and if the brake had been in order he could have stopped the train in time, held, to present issues for the jury as to the negligence of defendant and the contributory negligence of plaintiff.

      Error to Delta; Flannigan, J.
    Submitted November 19, 1914.
    (Docket No. 111.)
    Decided January 4, 1915.
    Case by Otto Nelson against the Michigan Tanning & Extract Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      E. C. Eastman, for appellant.

      N. C. Spencer, for appellee.
   Kuhn, J.

The plaintiff was employed as a brakeman on a switch engine of the defendant used in moving to desired places at the factory of the defendant cars of hemlock bark and also bark known as “hog feed.” There is testimony tending to prove that he was riding and standing upon the front end of a gondola car that was being moved at about 4 miles an hour, and when about 500 feet from a switch he signaled the engineer to slow down. The engineer slowed down to about 2 or 3 miles an hour. The plaintiff jumped off about 150 feet from the switch, on the right-hand (engineer’s) side of the track, and ran ahead. At a point about 40 feet from the switch he attempted to cross the track, to get to the switch, as he claims, and slipped on the snow or ice and fell between the rails, and a part of the first car passed over him and injured him. The negligence relied upon was the failure of the defendant to provide the engine with a good and sufficient brake; the claim being that the steam brake at the time of the accident, and for some time before, was not working. This claim is supported by the testimony of the plaintiff, who said that the engineer was the first to come to his aid, and that he said to him: “Otto, it’s too bad. I could have stopped the train if the brake had been in order” — and told him further that the brake had been out of order for a long time.

The case being submitted to a jury, it resulted in a verdict and judgment in plaintiff’s favor, and the cause is before us by writ of error. The assignments of error are as follows:

(1) The court erred in refusing to grant defendant’s motion for a nonsuit at the close of the plaintiff’s case.

(2) The court erred in refusing to direct the jury to find a verdict for the defendant, as requested by the defendant, at the close of the testimony in the case.

(3) The court erred in refusing to set the verdict of the jury aside and to give judgment for the defendant notwithstanding the verdict in accordance with the motion thereunto made by defendant, and in accordance with the stipulation entered into in open court, whereby there was reserved unto the court the right to order judgment for defendant notwithstanding the verdict, in case the jury should find a verdict for the plaintiff or in case the jury should disagree.

(4) The court erred in refusing to grant to defendant a new trial in this cause.

It is urged that no exception was taken to the ruling of the court upon the motion made at the close of plaintiff’s case, and that the second assignment of error is not specific enough. In order to understand fully what this record presents with reference to these objections, it is necessary to set forth what occurred on the trial. When the plaintiff rested, the following colloquy took place:

“Mr. Eastman: I move the court for a nonsuit, on the ground that the plaintiff has not established a cause of action, and has not shown negligence on the part of the defendant, and has shown himself guilty of contributory negligence which would defeat recovery.

“The Court: Do you wish to argue the motion?

“Mr. Eastman: Not at this time.

“The Court: I will overrule the motion, and, if you desire to call it up again at the conclusion of your case, you may do so.”

At the close of all the proofs, the following occurred :

“Mr. Eastman: May it please the court, we ask the court to direct a verdict for the defendant in this case. (Argument on defendant’s motion for directed verdict.)

“The Court: Defendant’s motion or request for a directed verdict is denied.” (Defendant excepts.) •

Counsel for defendant, who is from a foreign jurisdiction, when making the first motion, undoubtedly, in moving for a nonsuit, meant to request a directed verdict for the specific reasons given to the court. No argument was made upon the legal questions involved at that time, and, from what the court said, counsel was, in our opinion, justified in concluding that the ruling of the court was not final, and in waiting to take his exception until he should again bring it to the attention of the court at the close of all the proofs, in accordance with the court’s suggestion. At that time the questions were argued and a proper exception taken to the ruling then made.

It has been held that an assignment of error which simply alleged that the court erred in not directing a verdict for defendant is not specific enough. Jackson Bridge & Iron Co. v. Insurance Co., 122 Mich. 433 (81 N. W. 265); Canerdy v. Railway Co., 156 Mich. 211 (120 N. W. 582); Gold v. Railway, 169 Mich. 178 (134 N. W. 1118).

But the assignment here in question goes further in saying “as requested by the defendant at the close of the testimony in the case.” This, we think, should be held to refer to the reasons stated by counsel when the motion was first made at the close of plaintiff’s proofs. Such reference makes the assignment specific enough to afford information to the trial court concerning the points relied upon and to accord it fair treatment. This assignment, therefore, properly raises all the questions which are properly raised by exception and which we are asked to determine, viz., whether there was any evidence of defendant’s negligence shown, and whether it can be said that the plaintiff was guilty of contributory negligence, as a matter of law.

It is not contended that the declaration of the engineer to the plaintiff does not constitute a part of the res gestss, nor that it was not proper evidence in support of plaintiff’s claim of negligence, nor was it objected to. Although the testimony in support of plaintiff’s claim was meager, we are satisfied that both these questions were questions of fact for the jury, and submitted with proper instructions. See De Cair v. Railroad Co., 133 Mich. 578 (95 N. W. 726); Hewitt v. Lumber Co., 136 Mich. 110 (98 N. W. 992); Van Leuvan v. Railroad Co., 167 Mich. 355 (132 N. W. 1058); Gillespie v. Railway Co., 150 Mich. 303 (113 N. W. 1116).

Judgment is affirmed.

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


text:
    WEBBER v. GENESEE CIRCUIT JUDGE.
    1. Receivers- — -Sale of Corporate Property — Foreclosure of Mortgage — Trust Mortgage — Corporations—Redemption.
    Upon a sufficient showing made to the court, in foreclosure proceedings, that property of a power and light corporation, in the hands of a. receiver, cannot be operated at a profit by the receiver, the court may order a sale of the plant and property for the purpose of stopping the loss, and may order that such sale shall he without the right of redemption.
    2. Same — Franchise—Electricity—Power Companies — Sale.
    It is also within the authority of the court of equity to order that the property of the power corporation he sold with its franchises, before the final decree of foreclosure, and to require that the entire property be sold without redemption.
    3. Same — Lease — Foreclosure — Authority of Equity — Mandamus.
    Where the receiver of the property and assets of a power corporation received an offer from another similar company to enter into a lease of the plant and property in his hands at a price which would prevent the continuance of loss,- and the court nevertheless ordered a sale of the entire property without redemption, the Supreme Court may, on mandamus proceedings, interfere with the discretion of the trial court, by ordering that the offer he accepted upon the execution of sufficient guaranties and of a bond to secure the performance of the proposal.
    Mandamus by George C. Webber against Selden S. Miner, presiding judge of the circuit court for the county of Genesee, to require the respondent to vacate an order of sale of the property and franchise of the Fenton Power & Light Company.
    Submitted November 24, 1914.
    (Calendar No. 26,364.)
    Writ granted conditionally January 4, 1915.

      Fred H. Aldrich and Sylvester Pheney, for relator.

      Farley & Selby, for respondent.
   Kuhn, J.

The Detroit Trust Company, the trustee in a mortgage given by the Fenton Light & Power Company, a- public service lighting company operating a lighting plant in the village of Fenton, Mich., filed its bill for the purpose of protecting its security and restraining the commission of waste, and to foreclose for the amount due on certain mortgage bonds remaining unpaid, and interest thereon, and for the appointment of a receiver.

On August 1, 1912, parties claiming to own all of the capital stock of the company had entered into a contract for the sale of the capital stock and property of the company to the relator, who subsequently assigned his interest therein to the Detroit Construction Company,' Limited. Under this assignment, if the Detroit Construction Company, Limited, should fail to perform the agreements assigned to it, the relator, George C. Webber, would have the right to perform the agreements and take the property. The Detroit Construction Company, Limited, thereafter leased the property to the' Independent Power Company, which maintains power and electric light plants operated by water power at Linden and Holly, and has a transmission wire running from Linden to Holly through the village of Fenton. The plant of the Fenton Light & Power Company at Fenton has always been run by steam power, produced by the consumption of coal.

It is claimed that, when the agreement was entered into, fraudulent and false representations were made by the stockholders of the Fenton Light & Power Company to the relator, and that said stockholders were in part also bondholders, and that their actions were collusive and fraudulent.

Upon a hearing a receiver was appointed, and subsequently a supplemental bill was filed to foreclose the entire mortgage. The receiver thus appointed, finding that the operation of the plant under his management resulted in a considerable loss instead of a profit, petitioned the court in the first instance for permission to sell the personal property without the real estate. Subsequently an amended petition was filed praying for the right to sell all the property of the corporation. An. order was thereupon made by the court that the property of the Fenton Light & Power Company be sold without redemption on the 20th day of July, 1914, and the funds paid to the register of the court, to be held by him until the final order and decree providing for the distribution thereof. Subsequently the relator herein made a motion to set aside this order, which motion being denied, the relator now seeks relief in this court by mandamus to compel respondent to set aside the order providing for the sale of the property. The first question which is thus presented to us for determination is whether the circuit judge has the power to order the sale without redemption of all the property of a quasi public corporation before final decree when such property is in the hands of a receiver appointed by him.

There can be no question that, when property is in the hands of a receiver and it is made to appear to the court that it cannot be conducted except at a loss, it is clearly within the power of the court to stop the loss by ordering the assets of the business to be sold. 34 Cyc. pp. 286, 310. It also seems to be the established rule that in the case of a quasi public corporation, if a proper showing is made, such a sale may be ordered without the right of redemption. The rule is stated in 27 Cyc. p. 1800, as follows:

“Where the right is given to redeem from judicial sales in general or sales on execution, the statute applied as well to sales made in the enforcement of foreclosure decrees as to those made under ordinary judgments. It has been held that a law providing the right of redemption from sales of real estate does not cover the case of a sale of the entire property of a quasi public corporation, such as a railroad or a water company, including its real and personal property and franchises; but such a sale may be made as an entirety and without redemption.”

The reason for this rule is thus stated in the case of Hammock v. Loan & Trust Co., 105 U. S. 77, where in a final decree all the property of a railroad company, an Illinois corporation, was ordered sold without redemption:

“The question is therefore presented, for the first time in this court, whether the statutory provisions giving the right to redeem, as well lands or tenements sold under execution, as mortgaged lands sold under decrees of courts of equity, has. any application to the real estate of a railroad corporation which, with its franchises and personal property, is mortgaged as an entirety, to secure the payment of money borrowed for railroad purposes.

“Undoubtedly in all such cases, the chief value of the real estate comes from the right or franchise to hold and use it, in connection with the personal property of the corporation, for railroad purposes. * * * In other words, for to that result the argument would lead: The court, in decreeing the sale of the mortgaged property and franchises of a railroad corporation, has no discretion, if the corporation or its judgment creditors, so demand, except to order the sale of the real estate separately, in parcels when susceptible of division, and subject to redemption, leaving the franchises and personal property to be sold absolutely and without redemption. Thus one person might become the purchaser of the real estate, another of the franchise, and still others of the personal property. If the railroad company should redeem the real estate, it could not employ it to any valuable end; for its franchise, to be a corporation and to use its real estate for railroad purposes, will have been sold to another, and there is no right under the statute to redeem the franchise, it not being real estate, but, rather, a power or privilege, partaking more or less of sovereignty, and which may not be exercised without a special grant. * * * Consequences equally injurious would flow even from the sale, as an entirety, of the real and personal property and franchises of the corporation, if the right was reserved to the company, or its creditors, to redeem the realty. Individuals or associations desiring railroad property would not purchase when they could not know, until the expiration of 15 months from the confirmation of the sale, whether they were to have all for which they might bid. During that period of uncertainty, the property would necessarily depreciate in value for the want of repairs and betterments essential to its preservation. A. construction of the statute which leads to such results ought not to be adopted, if it can be avoided. And we think it can be, without contravening the spirit of the statute or the public policy which suggested its enactment.”

So in the instant case, the business of this company being to furnish electricity for the village of Fenton and its citizens, the plant itself would have comparatively little value without its franchise, and, for the reasons stated in the opinion cited, it was within the power of the court in a proper case to order all the property sold as an entirety and "without redemption. See, also, Peoria, etc., R. Co. v. Thompson, 103 Ill. 187; Farmers’ Loan & Trust Co. v. Water Co. (C. C.), 78 Fed. 881; Columbia Finance & Trust Co. v. Railway Co., 60 Fed. 794, 9 C. C. A. 264; Pacific N. W. Packing Co. v. Allen, 116 Fed. 312, 54 C. C. A. 648; McKenzie v. Water Co., 6 N. D. 361 (71 N. W. 608, 614).

At the hearing of the motion for leave to sell said property, the following offer of the Independent Power Company to lease the property and operate it without loss to the receiver, pending a hearing and final decree, was called to the attention of the court:

“To F. Alexander Baird,

“Receiver of Fenton Light & Power Company,

“Fenton, Michigan.

“The undersigned hereby offer to lease from you all of the property of the Fenton Light & Power Company, located in the village of Fenton, Genesee county, Michigan, from the date of your acceptance of this offer until the termination of the cause wherein you were appointed a receiver, or until such time as such lease shall be terminated by order of the court, and will pay to you for such lease, on the 15th day of each and every month, a sum which shall be sufficient to pay the interest on all outstanding bonds of the said Fenton Light & Power Company, to wit, the sum of twenty thousand ($20,000) dollars, and that it will pay to you, as such receiver, further sums sufficient to pay all taxes that shall be levied against the said property during the continuance of the said lease and a further sum sufficient to pay all premiums of insurance upon the said property which you may procure during the continuance of said lease, and the undersigned will at the termination of the period of said lease turn over to you or your successors the said plant in as good a condition as the same shall be in when received by the undersigned, natural wear and use, and damage by the elements only, excepted.

“Independent Power Company,

“By Fred H. Aldrich, President.

“By Geo. W. Eyster, Secretary.”

It being within the power of the court to make the order of sale, the only other question which presents itself is whether, considering the facts in this case, the court acted properly in ordering the sale as it did. While we hesitate to interfere with the discretion which the court exercised in the instant case in ordering the sale, nevertheless, in view of the fact that if the sale is made it will be impossible on the final decree to put the parties back in the position which they occupied at the time the proceedings were begun, and having in mind the policy in this State not to divest the mortgagor of his property unless it clearly appears that there is danger of ultimate loss to the bondholders (see Wagar v. Stone, 36 Mich. 364; Hazeltine v. Granger, 44 Mich. 503 [7 N. W. 74]; Michigan Trust Co. v. Lumber Co., 103 Mich. 392 [61 N. W. 668]; Dawson v. Peter, 119 Mich. 274 [77 N. W. 997]; Union Trust Co. v. Electric Co., 152 Mich. 568 [116 N. W. 379]), in our opinion no sale should be ordered if the court is satisfied that the Independent Power Company is in a position to carry out the offer made as above set forth. If this offer should be accepted and a sufficient guaranty given that it will be carried out, no further financial loss would then result from the management of the plant by the receiver, and the rights of the parties could be determined before a sale is ordered.

We are therefore of the opinion that if the Independent Power Company within ten days tenders the receiver a lease incorporating the terms of the offer above set forth, together with a bond conditioned that it will carry out its terms, in such sum and with such surety or sureties as may be approved by the trial judge, then the order providing for the sale should be set aside as prayed for; but, in case no such lease is tendered and no bond given within the time mentioned, then the writ will be denied.

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


author: Brooke, C. J.

text:
    WEBBER v. BILLINGS.
    1. Master and Servant — Automobiles—Negligence.
    In an action for personal injuries, sustained by plaintiff while riding in an automobile that defendant’s son drove, evidence tending to show that defendant owned the car, that the plaintiff paid a sum of money to he driven with several companions from Ishpeming to Marquette, with other testimony tending to 'show the existence of the relation of master and servant, held, to raise an issue for the jury, and, in the absence of requests to charge that the son must he shown to have been the servant of the owner, or of an assignment of error for that reason, the case could not be reversed.
    2. Appeal and Error — Assignment of Error — Exception.
    Questions not raised in the lower court and not covered by assignments of error are not reviewable.
    3. Same — Sufficiency of Assignments — Record.
    Assignments of error must be specific, and alleged errors not covered by proper assignments of error will not be passed upon.
    4. Evidence — Ownership—Title.
    Plaintiff’s testimony, which was admitted without objection, that defendant owned the automobile in which plaintiff was riding when he was injured, being corroborated by the sworn statement of another witness, warranted the court in submitting the question of ownership to the jury, although defendant and his son both testified that the latter owned the automobile.
    5. Automobiles — Highways and Streets — Negligence — Contributory Negligence.
    Where the injured passenger in an automobile was instrumental in causing ,it to be overcrowded, and imbibed intoxicating liquors with other members of the party, and rode without objection at an excessive rate of speed, the question of his contributory negligence was for the jury, under instructions that if he acquiesced or participated- m fEé negligence of the driver, he. should not~~Be permitted to-recover.
    6. Same.

      Held, also, that plaintiff’s theory that he was injured on a part of the previously arranged trip, and not, as defendant claimed, that the portion of the journey during which the car was overturned made no part of the agreed trip, was sufficiently supported by the testimony.
    Error to Marquette; O’Brien, J.
    Submitted November 17, 1914.
    (Docket No. 61.)
    Decided January 4, 1915.
    Case by Melvin Webber against James H. Billings for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      T. J. Dundon (Thomas A. Lawler and Carl H. McLean, of counsel), for appellant.

      A. W. Jurma (W. T. Potter, of counsel), for appellee.
   Brooke, C. J.

On the evening of October 3, 1912, the plaintiff, together with five other young men, entered into a contract with one William Billings, son of the defendant, by the terms of which the said Billings was to carry, by automobile, the six young men from Ishpeming to Marquette and return for the consideration of $6, which was paid. The automobile in question was a seven-passenger car. The trip to Marquette was made in safety. Upon the arrival in that city the seven young men visited several saloons and partook more or less of intoxicating liquor. At the expiration of an hour or so of this entertainment, the plaintiff and one of his companions, having made the acquaintance of a couple of young women upon the streets of Marquette, proposed to Billings that a ride be taken around Presque Isle, a driveway within the corporate limits of the city of Marquette. To this request Billings appears- to have at first demurred, but finally consented to go upon the condition that the entire party went. The other young men were then found, and the party proceeded to a hotel in the city where three other young women were added to the party, and the trip around Presque Isle was begun. The automobile during this trip contained 12 persons. Upon the return trip, in making a turn, a tire blew out, the automobile skidded, capsized, and fell upon the plaintiff, causing the injury for which suit is brought.

At the conclusion of the case defendant’s counsel moved for a directed verdict upon the following grounds:

“First. That the plaintiff has failed to show that the defendant in this case was the owner of the car at the time of the accident.

“Second. That the plaintiff has absolutely failed to show himself free from contributory negligence in this case.’’

This motion was denied by the trial judge, and the case was submitted to the jury, with the result that a verdict was rendered in favor of the plaintiff in the sum of $1,250. Defendant reviews his case'in this court by writ of error. There are but three assignments of error, which follow:

“First. The court erred in allowing plaintiff as a. witness in his own behalf, over the objections of the defendant’s counsel, to testify as to the accident complained of, for the reason that the accident which caused plaintiff’s injury occurred during an extra journey in the automobile not contemplated or paid for, which extra journey was. taken at the solicitation and under the direction of plaintiff and some of his companions, and against the objections of the driver of said automobile.

“Second. The undisputed evidence shows that the automobile was hired by plaintiff and his companions from William Billings, without the knowledge or consent of the defendant, between 8 and 9 o’clock in the evening of October 3, 1912, at Ishpeming, Mich., to run from Ishpeming to Marquette and return for a price of $6; that the extra trip around Presque Isle, sometimes designated the ‘Island,’ was not contemplated at the beginning of the journey from Ishpeming; that the trip around the Island was a distinct journey arranged by the plaintiff and some of his companions to give five of their lady friends a ride in the automobile; that the automobile was a seven-passenger car, and the placing in it of twelve persons, five more than the capacity of the car, by plaintiff and some of his companions, overloaded the automobile; that said overloading contributed to, if it was not the primary cause of, the accident; that for said overloading of said automobile during the journey around the Island the plaintiff was chiefly responsible, thereby contributing to the accident and to his consequent injury; therefore the court erred in not instructing the jury as a matter of law, under the undisputed evidence in this case, that plaintiff’s conduct and contributory negligence in the premises precluded plaintiff’s right to recover damages for his said injury against defendant, who had, according to all the testimony in the case, no hand, part, or knowledge of matters leading up to or causing the injury complained of by the plaintiff.

“Third. The court erred in not granting the motion of defendant’s attorney for a directed verdict in favor of defendant in this case, for two reasons: First, that plaintiff has failed to show that defendant in this case was the owner of the car at the time of the accident; and, second, that the plaintiff has absolutely failed to show himself free from contributory negligence in this case.”

In this court defendant’s counsel first argues that the case should be reversed because plaintiff failed to show the relationship of master and servant, or principal and agent, between the father and the driver of the car, William Billings, at the time of the accident, or at any other time, which was a condition precedent to plaintiff’s right to recover. With reference to this point, it is sufficient to say that defendant preferred no requests to charge except his motion for a directed verdict upon the grounds stated, and that there is no error assigned because of the failure of the court to charge that it was necessary for the plaintiff to establish the relationship of master and servant between the defendant and his son, who was operating the car at the time of the accident. There was some evidence in the case from which a jury might have inferred the relationship of master and servant between the defendant and his son; but, in view of the fact that there is no assignment of error covering this point, we deem it unnecessary to consider it at large.

The second point argued in appellant’s brief is that the record indicates that the court’s instructions to the jury were based upon the statute (section 10, Act No. 318, Pub. Acts 1909) which has been declared unconstitutional. This question, like the one last discussed, was not raised in the court below, and is covered by no assignment of error.

The third and fourth points argued relate to the relationship of master and servant and cannot be considered in this court for lack of proper assignments of error.

Assignments of error must be specific. This court will not consider arguments upon alleged errors not covered by assignments. Bills v. Stevens Co., 146 Mich. 515 (109 N. W. 1059).

Defendant next argues for reversal upon the ground “that plaintiff failed to show that defendant was the owner of the car at the time of the accident.” There was testimony introduced on behalf’ of the plaintiff to the effect that the defendant was the owner of the car. The plaintiff himself gave such testimony, as likewise did the witness Paulsmo. ' This evidence was received without objection on the part of defendant and was not attacked upon cross-examination. Further than that, the plaintiff testified that after his injury he approached defendant demanding a settlement, when defendant stated:

“I will tell you what I will do. I have got some money coming from some people who have not paid me for automobile rides, and, if you can collect them, you can have that.”

It is true both the defendant and his son testified positively that the son was the owner of the car. We are of opinion that, unsatisfactory as the evidence of ownership is on this record, it cannot be said that under the circumstances of the case a question for the jury was not raised which was submitted to them under proper instructions by the court.

Defendant’s counsel next claims that the court should have directed a verdict for defendant because the trip around Presque Isle was not included in the original contract hire. This point, likewise, was not raised in the court below, but may perhaps be said to be covered by the first assignment of error. The question was submitted to the jury for their determination, and their verdict indicates that the plaintiff’s theory of the scope of the trip was accepted by them.

The seventh point argued relates to the contributory negligence of the plaintiff and is covered by a proper exception and assignment of error. It may be said that it is not without difficulty. The plaintiff himself seems to háve been the most active in procuring the overloading, or overcrowding, of the car for its trip around Presque Isle. He seems to have imbibed intoxicating liquors with the others and to. have undertaken the journey without ' protesting either as to the overcrowding of the car or as to the alleged excessive rate of speed at which it was driven. It is, of course, elementary that, when seeking to recover damages for injuries caused by the negligent act of another, the plaintiff must show himself free from negligence causing or contributing to his injury. If it can be said in the present instance that the plaintiff acquiesced or participated in the negligence of the driver, he should not be permitted to recover. 29 Cyc. p. 551; Holden v. Railroad Co., 177 Mo. 456 (76 S. W. 973); and Huddy, in The Law of Automobiles, § 114. The court presented the question of plaintiff’s contributory negligence to the jury, and by their verdict they have determined his freedom therefrom. The instructions of the court upon the point, taken as a whole, we think fairly cover the question. While the case is not without difficulty, we have concluded that the record discloses no reversible error.

The judgment is affirmed.

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


author: Ostrander, J.

text:
    SANDUSKY GRAIN CO. v. SANILAC CIRCUIT JUDGE.
    1. Equity — Jurisdiction—Eminent Domain.
    A court in chancery will not assume jurisdiction to enjoin condemnation proceedings on the ground of irreparable injury and anticipated and probable danger to the public, the case being conducted in manner provided by statute: all defenses to the proposed taking must be made in the eminent domain proceedings.
    2. Same — Appeal and Error — Courts — Disqualification of Judge.
    While irregularity in the proceedings, such as the disqualification of a juror and objections which are reviewahle on appeal, are not sufficient to avoid proceedings in eminent domain, where the trial judge was disqualified, the judgment is not merely voidable but void; objections to the qualification of such judge, which were not available in the trial court, may be presented in the appellate court.
    3. Same — Condemnation Proceedings — Injunction — Disqualification of Judge — Adequate Remedy at Law.
    Where complainant’s bill to enjoin proceedings in eminent domain averred that the probate judge, before whom the proceedings were instituted, was a stockholder in the plaintiff corporation, and that the sheriff who was chosen to summon the jurors was disqualified for like reason, a demurrer to the bill of complaint should not have been sustained, since the railroad company, unless restrained, might enter upon the property, lay tracks, and accomplish what it undertook to accomplish in commencing proceedings although the judgment be void. But the court of equity ought not to and will not review the condemnation proceedings.
    4. Same — Appeal and Error — Eminent Domain — Effect of Appeal.
    On demurrer to the bill of complaint in the equity suit, held, that the court was not sufficiently advised by the record, relative to the effect of tlie appeal from such condemnation proceedings, so that it might say that complainant had an adequate remedy at law hy reason of the appeal, which was not averred or set forth as a part of complainant’s case.
    Mandamus by the Sandusky Grain Company against Watson Beach, judge of the circuit court for the county of Sanilac, to require respondent to issue an injunction.
    Submitted December 18, 1914.
    (Calendar No. 26,490.)
    Writ granted January 4, 1915.

      C. F. Gates, for relator.

      John C. Hewitt, for respondent.
   Ostrander, J.

We are asked to grant an order requiring the court below to grant an order restraining the Detroit, Bay City & Western Railroad Company from taking possession of or performing any work upon, or disturbing the surface of, Argyle avenue, in the city of Sandusky, Mich., in the construction of a spur track, until the further order of the court.

From the pleadings it appears that the interested railroad company is building a line of road from Bay City to Port Huron, through the city of Sandusky, and when the original bill was filed was seeking opportunity to construct a certain spur or side track along Argyle avenue, connecting its main line with the plant of the Sandusky Tile & Brick Company. For this purpose it had obtained and accepted a franchise, in the form of an ordinance, passed January 26, 1914. It was charged in the bill, among other things, that it was proposing to construct the spur track, although the ordinance had not been submitted to a vote of the citizens of Sandusky. The answer sets up that the said ordinance was submitted to a vote of the citizens in August, 1914, at which election it was ratified and approved by a vote of more than two-thirds of the qualified electors voting thereon. It is further said in answer to the bill that, negotiations for acquiring the property failing, it filed its petition August 21, 1914, in probate court, pursuant to the statute, to have the necessity for its contemplated use of the street determined and the damages and compensation it should pay ascertained; that complainants' appeared in said proceedings and answered, and that thereafter, pursuant to the statute, a jury determined that the necessity existed and ascertained the damages and compensation to be paid for the contemplated use; that the report of the jury was duly confirmed by the probate court. It wás upon the coming in of this sworn answer, and on October 8, 1914, that the restraining order already in force was vacated. Later, on or about October 22, 1914, a supplemental bill was filed, without notice to the railroad company, and, so far as the record discloses, without leave of the court. Like the original, it is a sworn bill, and charges, among other things, that the judge of probate, who acted in said condemnation proceeding, was at the time the condemnation proceedings were pending, and is, a stockholder directly, personally, and financially interested in the said Sandusky Tile & Brick Company, and as such judge he appointed another stockholder in said company, the sheriff of the county, to make the list of freeholders from which the jury was made up to pass upon the necessity, etc., of using said street, the person so appointed preparing the said list of freeholders and afterwards summoning certain talesmen to complete the jury; that it was not until October 20, 1914, that complainants learned that the person so appointed was, as they claim, so disqualified to act, and not until October 19, 1914, that the facts affecting the qualifications of the probate judge came to their' knowledge. The bill charges other actions amounting to legal, if not actual, fraud in the selection of the jury, but for the purposes of this opinion only the charge of the disqualification of the judge and of the officer who selected the jury will be considered.

In the court below the cause stands upon the original bill and answer, the supplemental bill demurred to by defendant railroad, and an order which refuses a restraining order, for the reasons:

“The supplemental bill in effect requires the court to review the proceedings of the probate court, a court of concurrent jurisdiction in condemnation proceedings.

“A jury in the probate court has found the necessity for taking the property, and this bill requires the court to- determine whether the proceedings are wholly void, or whether they are void only as to order of confirmation. An appeal has been taken, and I am of the opinion that the proper forum for stay is the Supreme Court. A remedy at law remains to complainants, and the finding, if necessary, although the proceedings may be void as to part or whole, deprives the bill of equities.

“Without prejudice.”

That equity will not take jurisdiction to restrain condemnation proceedings which are being conducted in the manner provided by the legislature, on the ground of irreparable injury and anticipated and probable danger to the public, is settled by Detroit, etc., R. Co. v. Commissioners, 91 Mich. 444 (52 N. W. 52), in which case a city proposed to extend a boulevard across a railroad company’s tracks. Such defenses, and indeed all defenses, to the proposed taking must be made in the condemnation proceedings. It is settled, too, that although irregularities in a condemnation proceeding which might be reviewed on appeal cannot be set up in an action of ejectment for the land taken, if the court had jurisdiction of the subject-matter and of the person of the plaintiff, if the proceeding thereby taken is void, ejectment will lie. Tuller v. City of Detroit, 97 Mich. 597 (56 N. W. 1032).

And the disqualification of a juror in a condemnation proceeding will be ground for setting it aside on appeal. Michigan, etc., Ry. v. Barnes, 40 Mich. 383.

Affirming the rule that judgments and orders made by a disqualified judge are not voidable merely, but are void, we have held that objections to the qualifications of the judge not available in the trial court may be presented in this court. Bliss v. Caille Brothers Co., 149 Mich. 601 (113 N. W. 317, 12 Am. & Eng. Ann. Cas. 513).

The question is whether, in view of the settled law and the right of relators here to appeal from the order confirming the report of the jury, a court of equity ought to interfere by injunction to restrain the railroad company from presently taking advantage of its apparent right to enter upon the premises taken in the condemnation proceedings. I am of opinion that the controlling thing is the fact that, unless restrained, the railroad company may take the property, lay tracks, and accomplish, no award of damages to complainants having been made, what it undertook to accomplish in instituting the proceeding. Whether or not the probate judge was disqualified and the sheriff was disqualified are finally questions of fact, although by the demurrer the facts, for the purposes of this motion, are admitted. The equity court ought not to, and will not, review the condemnation proceeding, but if the proceeding is void the case is not different from the one made by the original bill, the railroad company has no right to enter upon the property, and the adequate remedy for complainants is an injunction. This court is not sufficiently advised concerning the appeal from the order confirming the report of the jury to say that upon the record on appeal it can or should accomplish, by its order, what the court below may do in this cause.

The writ will issue.

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