text:
    BRANDT v. LUCE.
    1. Equity — Jurisdiction as Dependent Upon Amount in Controversy — Taxation.
    On demurrer to a bill filed by a number of taxpayers, averring tbat tbeir interest in tbe subject matter exceeded $100, and seeking to restrain performance of a number of contracts for machinery to be used in county road improvements, tbe point tbat tbe bill fails to show jurisdiction as to amount or value was properly overruled: if it should appear upon tbe taking of proofs tbat tbe complainants have no such interest as to satisfy the requirements of tbe statute, tbe objection may be tenable.
    2. Highways and Streets — County System — Commissioners— Statutes.
    Tbe board of county road commissioners, under Act No. 283, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 2173 et seq.), are required to file in tbe office of tbe county clerk tbe reasons for not letting highway construction by contract and for proceeding by day labor, before they may construct tbe highways, and an estimate is required specifying and itemizing tbe roads and parts of roads on which money is to be expended: no express power is conferred to enter upon tbe business of road building.
    3. Same — Powers of Commissioners.
    And under section 10 of tbe act tbe board may employ superintendents, engineers and others and buy proper machinery, tools and materials for tbe purpose of carrying out tbeir work, and this power may be exercised wholly or partly when contracts for road building are let, or when bids have been rejected and work entered upon by day labor.
    4. Same — Bill of Complaint — Taxpayer’s Suit.
    Where complainant’s bill of complaint did not show tbat the preliminary steps required by the statute bad been omitted by tbe board, and machinery bad been purchased under contract, but it was charged tbat tbe county road commissioners could not lawfully contract for machinery of more than the value of $500 without advertising for bids, and that they had attempted to do so, the averments of the bill, did not state any ground for relief: the power to purchase machinery was not limited by the clause set up by the pleader, and the general authority or duty to keep the highways in reasonable repair supported the exercise of authority by the commissioners.
    5. Same — Contracts—Appropriations.
    After the supervisors had' provided for a tax of- $40,000, the board of road commissioners did not exceed its authority in contracting for $22,000 worth of machinery to be paid for at stated intervals during three years, without interest, under section 21, prohibiting the board from contracting any indebtedness in excess of moneys on hand or of three-quarters of the taxes voted. Appropriations made by the commissioners are to be treated as appropriated from such funds as the board had a right to appropriate and the contracts for machinery are therefore valid.
    Appeal from Branch; Knowlen, J.
    Submitted June 13, 1913.
    (Docket No. 105.)
    Decided September 30, 1913.
    Bill by Harry Brandt and others against Emery G. Luce and others for an injunction, etc. From an order sustaining a demurrer to complainants’ bill, complainants appeal.
    Affirmed.

      Palmer, Palmer & Palmer and H. H. & B. E. Barlow, for complainants.

      C. C. Johnson and Lockerby & Bowen and Orrin M. Bowen, for defendants.
   Ostrander, J.

In the year 1912 the county of Branch adopted the county road system, pursuant to the provisions of Act No. 283, Public Acts of 1909 (2 How. Stat. [2d Ed.] § 2173 et seq.). County road commissioners were appointed to act until others should be elected in April, 1913. Those appointed qualified and entered upon the duties of the office. A tax of two mills upon each dollar of assessed valuation of property was voted, was spread upon the rolls, has been collected, and is in the treasury of the county. The sum is about $40,000. At various times, from December 31, 1912, to March 18, 1913, the said commissioners entered into contracts for the purchase of machinery to be used in constructing. roads, the purchase price aggregating about $22,000, by the terms of some of which contracts some of the payments are deferred and are to be made, without interest, in the years 1914, 1915, 1916. No bids or sealed proposals for furnishing the machinery were advertised for, and there was no open competitive bidding for the same.

Before any payments fell due, and on or about April 1, 1913, fourteen residents of the county, taxpayers therein, filed their bill of complaint, setting up the foregoing facts, with various conclusions of law and fact, making the board of county road commissioners, the individual members of the board, the several vendors in said contracts, the clerk of said board, and the county treasurer parties defendant, seeking to have the said contracts declared invalid and to restrain performance thereof on the part of the board and the county. The defendants joined in a demurrer to the bill, assigning, specifically, as reasons for demurring that complainants do not allege such an interest in the matter as to give the court jurisdiction, that it appears by the bill that the actions of the board of county road commissioners complained about are lawful, and the contracts they have made are valid. After hearing, the demurrer was sustained, and a decree dismissing the bill was entered. The reason for sustaining the demurrer does not appear. No complaint is made that complainants were denied the right to amend the bill. See Macomber v. Cottrell, 162 Mich. 718 (128 N. W. 796).

Complainants present in this court two principal propositions:

(1) That the allegation of the interest of complainants, which is “that the interest of complainants in the matters involved in this suit exceeds the sum of $100,” is sufficient, on demurrer, to sustain jurisdiction ; (2) that a misuse of public funds is charged, because (a) the commissioners could not lawfully contract for machinery of more than $500 value without advertising for bids, and (b) they could not incur an indebtedness to be paid out of future tax levies not yet voted by the supervisors.

1. Counsel seem to be agreed that the suit concerns property, and is one of the class of suits which, under 1 Comp. Laws, § 435 (4 How. Stat. [2d Ed.] § 11952), courts of equity must dismiss, unless the matter in dispute exceeds $100. We have held (McManus v. City of Petoskey, 164 Mich. 390, 391 [129 N. W. 681]), that, when complainant, as a taxpayer, seeks to restrain a misuse of a public fund, he must show that his interest in the fund, or the threatened damage to his property interests by its misuse, amounts to .$100, or that he has land worth $100, which, in consequence of the misuse of the fund, may be sold to satisfy, or be liable to a lien for, a tax.

As was pointed out in Brassington v. Waldron, 143 Mich. 364, 365 (107 N. W. 100), the statute does not make an allegation of the amount in dispute jurisdictional. The question is whether the bill containing the allegation above set out, with the one that complainants are taxpayers, is good on demurrer for want of proper interest. We think it is good. If it should appear that complainants, as taxpayers, have no such interest in the fund, or in the consequences of a threatened misuse of it, as to satisfy the statute, the objection may be made at the hearing.

2. In various portions of chapter 4 of the act powers are conferred, and duties and limitations of powers are imposed, upon boards of county road commissioners in such terms and with such arrangements of the sections that, unless amendments are made, there must forever be some uncertainty respecting the legislative intention. To the extent, and in the proportions, that the legislative language leaves the legislative meaning doubtful, interpretation and construction of an enactment is both a delicate and difficult task. It is especially a delicate task when, as in this case, the attack upon the conduct of a public board, undoubtedly possessing large and most important powers, is predicated upon so meager a showing of the facts which must have attended the action complained about. It is with reluctance that in such cases as this thé court undértakes to determine whether public officers have exceeded their powers or have exercised powers not conferred upon them; the reason will become more apparent when the charges in the bill of complaint are read in connection with the voluminous provisions of the act.

Of the provisions involved in the contention of complainants, we set out, for convenience, section 19, a portion of section 20, section 10, and section 21 [chap. 4]:

“SEC. 10. Neither the clerk nor any member of the board of county road commissioners shall, directly or indirectly, either personally or as a member of any firm or stockholder in any corporation, be pecuniarily interested as contractor or employee in any contract entered into or work carried on by or for such board, or in property purchased or sold by or for such board: Provided, however, that this section shall not be construed to prevent the purchase of land for a road, from a member of the board or the clerk thereof. Said board of commissioners may employ such superintendents, engineers, servants and laborers, and purchase such machines, tools, appliances and materials as shall in their judgment be necessary or convenient for the proper carrying on of their work.”
“Sec. 21. Said board of county road commissioners shall have no power to contract indebtedness for any amount in excess of the moneys credited to such board and actually in the hands of the county treasurer: Provided, that the board may incur liability upon contracts, after a tax is voted, to an amount not exceeding three-fourths of the said tax. It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel. The provisions of law respecting the liability of townships, cities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system. In actions arising thereunder, service shall be made upon the chairman of the board of supervisors or the county clerk of the county made defendant therein, which shall be named in the process as the ‘county of -,’ and any judgment obtained thereon against such county shall be audited and paid as are other claims against such county.”
“Sec. 19. Said board of county road commissioners shall have authority to grade, drain, construct, gravel or macadamize any road under their control, or to place thereon any other form of improvement which in their judgment may be best, and may extend and enlarge such improvements; they shall have authority to construct bridges and culverts on the line of such road, and to repair and maintain the said roads, bridges and culverts; they shall have all the authority in respect to such roads, bridges and culverts which is vested in highway officers in townships. Said board of county road commissioners may maintain in their own name an action for any injury to any county road or to any part of the whole width thereof as laid out and established, or to any of the improvements thereon. t All moneys recovered in any such action shall be paid to the county treasurer, and be credited to the county road fund. In all cases involving the expenditure of an amount greater than five hundred dollars for the building, rebuilding or repairing of roads or bridges, the board of county road commissioners shall advertise for sealed proposals for such work. The board shall have the right to reject any and all bids, and may do the work by day labor, purchasing the necessary material and employing the labor therefor: Provided, however, in case the board shall decide to do the work by day labor, the plans and specifications together with all bids received thereon, and the reason, in writing, for not letting the job by contract, shall be filed in the office of the county clerk.
“Sec. 20. On or before the first day of October of each year, said board of county road commissioners shall determine upon the amount of tax which in their judgment should be raised for such year in said county for the purposes aforesaid, specifying and itemizing the roads and parts of roads upon which such moneys are to be expended, stating the amount asked for each of such roads, and shall cause such determination to be entered upon their records. * * * All moneys raised under the provisions of this act shall be expended by such board of county road commissioners exclusively for the purposes herein mentioned.”

There is no express power conferred upon the board to enter upon the business of road building in these or in other sections of the law. There is power (section 19) to reject bids for construction and, after rejecting them, to do the work to which the bids referred by day labor, purchasing necessary material, in which case the plans and specifications for the work and all bids received and the reason, in writing, for not letting the job by contract, shall be filed in the office of the county clerk. That the legislative purpose was that roads should be constructed by contract is evidenced, also, by the provisions of section 20. It is required that an estimate be furnished to the supervisors, specifying and itemizing the roads and parts of roads upon which such moneys are to be expended, stating the amount asked for each of such roads. This is to be made a matter of record.

It is true that in section 10 the board is given power to employ superintendents, engineers, and others, and to purchase such machines, tools, appliances, and materials as, in their judgment, may be necessary or convenient for the proper carrying out of their work. But this power, it is clear, may be exercised, in whole or in part, when contracts for road building are let, and also when bids have been rejected, and performance of particular work by day labor has been entered upon. And, besides, there is a continuing duty imposed upon counties, by the act, to maintain county roads and bridges in a condition reasonably safe for travel.

We are advised by the bill of complaint that the supervisors at their October, 1912, session, after considering the recommendations of the board of county road commissioners, decided upon the amount of taxes to be raised in that year in said county of Branch. We are not told what recommendations were made by the commissioners, and do not know how, if at all, the desire and purpose of the commissioners to expend $22,000 for machinery was laid before the supervisors. We are not told whether any existing roads have been by proper action of the commissioners taken over as county roads (chapter 4, §§ 10, 17, 18) or have been laid out by the commissioners. We do not know whether any proposals for doing any work have been advertised for and rejected, in consequence of which it has been determined to do the work by day labor.

Assuming that the commissioners had by proper action arrived at the point of purchasing road machinery, the question .whether they might do so without advertising for bids must be, we think, answered in the affirmative. The limitation of power found in section 19 does not in terms extend to contracts for the purchase of machinery. The two provisions are not so connected in the framing of the act as to support the implication that proposals or bids must be received before machinery is purchased, and, as has been stated, there is a general, continuing duty imposed, which may in performance require the use of machinery, to maintain roads taken over and laid out as county roads. The only, and we think insufficient, consideration opposed to this conclusion is the one that road machinery is bought for the purpose of building, rebuilding, or repairing roads, and the cost of machinery, indirectly at least, enters into the cost of the roads, and therefore is an expenditure for building roads.

The indebtedness created by the contracts does not exceed the liability permitted by the provisions of section 21. Whatever the intention of the commissioners may have been in executing contracts calling for deferred payments, each contract executed was an appropriation of a part of the fund — the only fund at the disposal of the commissioners. Assuming there was $40,000 in the fund, there remained therein, subject to appropriation, if these contracts are held to be valid, the difference between the aggregate amount of the contracts and the $40,000. The fact that the contracts call for payments to be made in later years creates suspicion that it was intended that only those payments falling due in 1913 should be made out of the fund provided for when the contracts were made. The fact that the deferred payments do not draw interest is indicative of this purpose. The ordinary business man would assume that a price was agreed upon for the machinery which included some consideration for the deferred payments. It is not entirely reasonable to. suppose that, being entitled to immediate, or practically immediate, payment for the machinery, out of a fund already provided for and soon to be in existence, the vendors (or the vendees) contemplated that a portion of the fund would be kept on hand for a numbers of years and then paid to them; the county, perhaps, having the benefit of such interest as the money would meantime earn. The bill does not charge that the parties to the contracts proposed to evade or disobey the law. It charges, in effect, that the result of what has been done is the contracting of a debt to be paid in the years 1914, 1915, and 1916, out of moneys not actually voted or collected when the indebtedness was created. There is to be considered the presumption of official honesty and obedience to the law. We are not prepared to say that the mere form and terms of the contracts require us to declare them invalid.

We do hold, and concerning this there should be no misapprehension, that the appropriations made by them are appropriations of the fund with respect to which, and with respect to which only, the commissioners had power to incur any indebtedness. To the amount that an indebtedness was created it must be paid out of and, to that extent, it exhausted the fund, and as in this view the contracts may be valid, notwithstanding the provision for deferred payments, we decline to hold them invalid.

The decree below will be affirmed; but neither party will recover costs of this appeal.

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


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    PEOPLE v. KOHARSKI.
    1. Criminal Law — Trial—Opening Statement.
    The requirement that plaintiff’s counsel shall make a full and fair statement of his case and of the facts that he expects to prove (Circuit Court Rule 24), is directory only: in a prosecution for murder, the prosecuting attorney did not commit reversible error in omitting to make an opening statement.
    2. Homicide — Conspiracy—Murder—Intent.
    While it is a general rule that the several conspirators engaged in the commission of a felony are chargeable with a murder which one of them commits in the process of carrying out the purposed offense, even though homicide was not planned, the same rule does not apply to conspirators engaged in a misdemeanor which results in unpremeditated homicide.
    3. Same.
    The trial court, in a murder case, committed error in charging the jury that “where several persons are concerned in the commission of a felony or of any unlawful act,” and in the execution of a common purpose any one of them commits a murder, all who were present aiding or abetting in the unlawful purpose were guilty of the murder, the testimony having tendency to prove that the offense which the accused conspired to commit was simple assault, — a misdemeanor.
    Error to the recorder’s court of the city of Detroit; Phelan, J.
    Submitted June 13, 1913.
    (Docket No. 122.)
    Decided September 30, 1913.
    Philip Koharski brings error from a conviction of the crime of murder.
    Reversed.

      Grant Fellows, Attorney General, Hugh Shepherd, Prosecuting Attorney, and Robert M. Toms, Assistant Prosecuting Attorney, for the people.

      Chawke & Sloan, for respondent.
   Bird, J.

The respondent was informed against jointly with Joe Brostowicki and John Osik, and charged with the murder of Stanley Bartnitzki. He was given a separate trial, and convicted of murder in the second degree, and judgment was pronounced thereon. Both respondent and the deceased lived on Willis avenue near Orleans street in the city of Detroit. On the night of July 3, 1912, the deceased, Stanley Bartnitzki, got into an altercation with Brostowicki and worsted him, after which Brostowicki walked east on Willis avenue, where he met the respondent, Osik, and another young man. Brostowicki’s clothing gave evidence of his encounter. He was hatless, and was crying. He informed them what had taken place, and told them that he was going back to kill Bartnitzki. The boys advised him to go home; but he started back towards Bartnitzki’s house, followed by the boys. The testimony tends to show that Brostowicki went into the yard first, and was followed by the respondent; some of it, however, is to the effect that the respondent entered the yard first, and began the assault. He admits that he exhibited and flourished an unloaded revolver, saying that he would shoot any one “who did not stop fighting.” Brostowicki and Bartnitzki soon became engaged again in a fight, in which Brostowicki stabbed Bartnitzki, as the result of which Bartnitzki died very soon after.

It is claimed on the part of the people that Brostowicki was aided by the respondent in making the assault and in keeping the other members of Bartnitzki’s family from assisting him in his fight with Brostowicki. It is claimed upon the part of the respondent that he did nothing except to flourish the revolver and threaten any one who did not stop fighting, and that he did not know Bartnitzki, and that he had no ill will or malice against him, and had no motive for helping either him or Brostowicki, as he had neither acquaintance nor connection with either.

The respondent complains of several errors which occurred on the trial, two of which only will be considered.

(1) At the outset of the trial, the prosecuting attorney omitted the opening statement to the jury. This omission was called to the attention of the trial court, and a ruling requested that a statement should be made. The court refused to so rule and his refusal is now assigned as error. There appears to be no .statute requiring the prosecuting attorney to make an •opening statement to the jury; but there is a court rule which seems to make it his duty, and upon this rule the respondent bases his argument. The rule provides that:

“On the trial of a cause it shall be the duty of the plaintiff’s counsel, before offering evidence to support the issue on his part, to make a full and fair statement of his case and of the facts which he expects to prove.” Circuit Court Rule 24.

The prosecutor argues that this rule is directory merely, and not mandatory, and cites several authorities in support of his contention. Johnson v. Commonwealth, 111 Va. 877 (69 S. E. 1104); Holsey v. State, 24 Tex. App. 35 (5 S. W. 523); United States v. Sprague, 8 Utah, 378 (31 Pac. 1049).

We are of the opinion that the rule is directory, and that it was promulgated for the purpose of having the plaintiff’s case outlined in advance so that the jury could the better see the force and bearing of the evidence as it came in, and, while we think it is a proper rule to enforce, we are not prepared to say that the refusal to enforce it is reversible error, where its omission is not shown to have been prejudicial to respondent’s case. It is not pointed out by respondent how his case suffered by reason of its omission, and, in view of the fact that the first witness upon the stand, the widow of the deceased, told a connected story of the whole controversy, we think the jury must have been early advised as to what the claims of the prosecution were.

(2) Serious complaint is made of the court’s charge, wherein he instructed the jury that:

“There is another rule of law which you should understand in a case of this kind; that is, where several persons are concerned in the commission of a felony, or of an unlawful act, and, in the execution of the common purpose, any one of them commits a murder, all who are present aiding or abetting in the unlawful purpose are guilty of the murder, and it is nót necessary, in order to make a party liable, that he be actually and immediately present at the commission of the offense. * * *
“I charge you that, before you can find Koharski guilty of murder or manslaughter, you must be satisfied beyond a reasonable doubt from the evidence that he entered into an offer with Brostowicki and Osik, his codefendants, to whip Bartnitzki. Brostowicki is the man who was convicted here the day before yesterday. If that is true, he would be responsible for those acts.”

While respondent admits that the law is that, where two or more persons conspire to commit a felony, and murder results, all are equally guilty of murder, it is insisted that, where two or more enter into a common purpose to commit a misdemeanor, and one goes further and beyond the common intent and purpose and commits a felony, his coconspirators are not guilty of the felony. The rule contended for by the respondent appears to have the support of our decisions. The rule finds support in the case of People v. Knapp, 26 Mich. 112. It was again considered in the case of Nye v. People, 35 Mich. 16, and later, in the case of People v. Foley, 59 Mich. 553 (26 N. W. 699), and the last case where the question was under consideration was the case of People v. Bel ton, 160 Mich. 416 (125 N. W. 886), wherein Mr. Justice Stone said in part:

“Undoubtedly if two persons go out with a common purpose to rob a man — that being a felony— and the man resists, and is killed by one of the conspirators or robbers, while the other robber is aiding and abetting his comrade by watching in aid of the common purpose or conspiracy, both might be guilty > of murder, and this because of the conspiracy to commit a felony. But that doctrine would not apply in a case of assault with intent on the part of the assaulter only to rob, where the common purpose was to commit an assault only — a mere misdemeanor.”

The record contains evidence which fully justifies the verdict which was reached by the jury, and, had that portion of the charge complained of been omitted, the result might have been the same. But if the jury were of the opinion that the conspiracy of respondent and Brostowicki went no further than a common purpose to whip Bartnitzki, then there was no room for them under the charge of the court to reach a different conclusion, although the respondent was entitled to it. As the proofs would admit of such conclusion, the charge was very damaging to respondent’s case, and the cause must be reversed for that reason.

The conviction will be set aside, and a new trial granted, and the respondent remanded to the proper authorities of Wayne county.

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


author: Ostrander, J.

text:
    WINGERT v. DETROIT UNITED RAILWAY.
    1. Negligence — Contributory Negligence — Street Railways— Trial — Instructions to Jury.
    In the absence of any evidence' that would tend to show negligence on plaintiff’s part in trying to turn off defendant’s tracks in advance of a moving car, which struck the end of his vehicle, plaintiff being delayed in his efforts to escape from the tracks by snow and ice banked up on either side, the court committed reversible error by leaving to the jury the question of contributory negligence, in plaintiff’s failing to clear the track in time to avoid the collision.

    2. Street Railways — Duty to Persons on Track.
    The duty of defendant’s motorman, when he saw that the driver of a vehicle on the tracks was making an effort to escape, and was impeded ,by slipping of his wheels on the snow banked at the side, was to delay until the wagon had left the track, and it was the duty of the plaintiff to leave the track. with reasonable expedition after he discovered the presence of the car.
    3. Same — Requests to Charge — Snow and Ice — Removal.
    Plaintiff’s requests to charge that defendant corporation was liable if it left piles or ridges along the street so as to create obstructions to free use of the streets, was properly refused by the court.
    4. Same — Personal Injuries.
    Defendant’s motorman was, however, bound to operate his car with reference to all circumstances known to him, including the liability of the wheels of a conveyance to slip or slide along the rails and on the obstruction created by the snow.
    Error to Wayne; Van Zile, J.
    Submitted June 16, 1913.
    (Docket No. 111).
    Decided September 30, 1913.

      Case by William Wingert against the Detroit United Railway for personal injuries. Judgment for defendant, and plaintiff brings error.
    Reversed.

      Clarence P. Milligan, for appellant.

      Corliss, Leete & Joslyn (William G. Fitzpatrick, of counsel), for appellee.

       As to injuries by street car collisions with vehicles or horses, generally, see note in 25 L. R. A. 508.

   Ostrander, J.

Plaintiff, with one horse and an empty wagon, on which was a rack for carrying empty barrels, was proceeding westward on Monroe avenue in the city of Detroit. He was driving on defendant’s track. He knew there was a street car, going west, approaching, and he attempted to leave the track. Defendant’s motorman saw plaintiff driving on the track, saw his efforts to leave the track, and, as the car approached the wagon, reduced the speed of the car so that for some distance it approximated the speed at which plaintiff was moving. However, in trying to pass the wagon, the car struck the rear wheel, jolting, but not much injuring, the vehicle, and plaintiff’s foot was in some way caught, and his ankle injured. For this injury he seeks in this suit to recover damages. The jury returned a verdict for defendant, judgment was entered, and a new trial was asked for and refused.' The errors assigned are based upon the ruling refusing this motion, upon refusals to charge as requested by plaintiff, and upon portions of the charge which was given. Plaintiff requested the court to charge the jury:

“I charge you that it is the duty of the railway company in this case in removing snow from its tracks to adopt such a mode that will not create obstructions in the streets to the detriment of the public or their danger in the ordinary use of the street. In removing the snow, it cannot be permitted to leave it in ridges or piles and make them unsafe for vehicles to pass along. Its rights in this respect are subject and not paramount to the rights of the public to use the streets for the ordinary purpose of passage, and all acts which create obstructions to the free use of the streets by the public are unlawful, and, if such acts result in injury to others, such company is liable in law for such injuries so sustained.”
“I charge you that, if the accident was caused by the rear wheels of the wagon slipping on the ridges of snow toward the track and in the path of the car, and you find the defendant company negligently piled these ridges there in clearing their track, and that but for this the accident would not have happened, the defendant would be liable for having created the obstructions in the street which were the proximate cause of the injury, or one of the concurring causes thereof.”

If reversible error was committed in the instructions which were given to the jury, it was in a single particular. The issue of fact was stated in the following language:

“Did this man exercise care and diligence, the ordinary care and prudence of an ordinarily careful and prudent man, in driving this car on this occasion and passing this wagon? Was the wagon in a condition off of the track and clear from the track, at the time when the motorman' claims it was, and is claimed by the defendant, and was it so clear from the track that, in your judgment, a careful and prudent motorman would have undertaken to pass the wagon?”

And in the following:

“Now, if you find in this case that this was the condition there, and that this motorman exercised care and diligence in the handling that car, and that the car was slowed down in traveling along there just in the rear of this rack, and that the motorman was watching for an opportunity to pass, and if you further find that he attempted to pass when an ordinary careful and diligent man would have determined that there was room to pass, and that he undertook to pass under such circumstances, and the car was struck because, as it is claimed by the defendant, it slipped just at the time back onto the track or toward the track, and that the accident could not be avoided by this diligence of the motorman, then, if such is the case, this company is not liable, and your verdict should be for the defendant.”

Following the language first above set out, the court also said:

“And did the plaintiff on that occasion do all that an ordinary and careful man would have done to get out of the way of the car? Was the snow in the condition that an ordinary prudent and careful man could have driven that rack off the track and cleared the car?”

Following the other statement, the court proceeded to say:

“On the other hand, should you find that the motorman did not exercise this care and diligence, but that the plaintiff was guilty of negligence in this, that he could, by the use of diligence, have cleared this track far enough to allow the car to pass, having time to do so, and having warning of the approach of the car, * * * then the company is not liable, and your verdict will be for the defendant, because he would be guilty of contributory negligence.”

The collision occurred February 7, 1911, in the forenoon. On February 6, 1911, it had snowed all day until 5 o’clock in the afternoon; the fall being more than 12 inches. The maximum temperature February 7th was 24 degrees, the minimum 16 degrees, with three hours of sunshine. Witnesses do not agree concerning all details; but it is undisputed that defendant’s snowplow had thrown the snow from the track towards the sides of the street — the curb — and that more or less of a ridgé of snow and ice was created between the track and the curb. From the nose of the horse to the end of the wagon plaintiff was driving was about 29 feet, and the distance from the north rail of defendant’s track to the curb was about 13 feet. Plaintiff could not leave the track by driving directly north at right angles to the rails. The line upon which he did leave it made with the rail an acute angle. There is no testimony tending to prove that upon discovering the approach of the car plaintiff did not immediately proceed to leave the track, and none tending to prove that for this purpose he drove carelessly or imprudently. It does not appear that he remitted or relaxed his efforts, which were visible to the motorman of the car. No one testified that he drove off the tracks and then on again. Referring to the testimony of the motorman, it was, in part, as follows:

. “Q. What was he doing as you observed — how was he trying to get out — as you observed that, what did you do?
“A. He was getting out of the way in a kittering direction, and it seemed that he couldn’t get out fast because it was slippery; there was ice and snow on the street; the snow was piled up high where the snowplow went through it the day before.
“Q. Was there any time béfore the accident happened that the wagon or rack got off the track, so you could get in the clear?
“A. Yes.
“Q. What did you do then?
“A. I don’t understand that.
“Q. Was there ever a period of time when you were approaching after the wagon that it was out of the way of the car, so you could go by, as you supposed?
“A. Yes, it seemed to slip back.
“Q. When did it slip back, with reference to the time that you saw the accident happen; where was your car when it started to slip back?
“A. Oh, it was pretty close after the wagon.
“Q. From the time it started or seemed to slip back, did you do anything to stop that car?
“A. I put on the brakes as soon as I could, and. had the power cut off long before that. It was the corner of the car struck the corner or end of the barrel wagon. It broke the side window of the vestibule, right under the window. The car went about three feet after the accident. There was no injury to the wagon that I noticed.
“Cross-examination: When I turned onto Monroe avenue, going west, I saw the man driving his wagon between the rails about 200 feet ahead of me. I rang the bell right after I left Elmwood. When he started to pull off the tracks, I was about 50 feet away from him, going as fast as a man can walk. I could have stopped the car in a car’s length, if the rails had not been all slippery. I knew that I could not stop as quick with a wet rail; but I did not know it was slippery there. I knew that he could not get off the track as quick with the snow shoveled up beside the street car by the company. I expected that he could drive away before I got to him. That is what I would have figured on at the time.
“Q. You knew that the snow being deep and shoveled up there off the track by the street car company, that it would cause him more delay in getting his horse through the snow and the wheels, than if there was no snow there?
“A. No, sir; I did not know that. It was the first winter I was street carring, and I did not understand. I was on time that morning, and I was using a double-truck car. The street is narrow, and the car tracks are in the center. It is 12 or 13 feet from the car tracks to the curbstone. I do not know how high the snow was piled up there along the track.
“Q. He was doing all he could, was he not, to get off of the track when you struck him?
“.4. Yes, when I struck him. I did all I could to stop the car before it hit the wagon.
“Examination by the Court: I was not going very fast when I struck him. The wagon was going about as fast as I can walk, and we were both going at about the same speed.
“Q. How long did that continue, that creeping and drifting along right together, how long did you go along with the wagon, about the same speed as the car, about how much distance?
“A. I can’t tell.
“The Court: Measure it by objects here in the room.
“A. From here to the back end of the room.
“Q. From you to the back end of the room?
“A. Yes.
“Q. Did you go right along with the wagon?
“A. Yes.
“Q. Do you think as far as that?
“A. Yes, but I can’t remember.
“Q. Just as you remember it?
“A. It was like that, more or less.
“Q. Something like that?
“A. Yes, sir.”

No one pretends that plaintiff was a trespasser in driving on or between the rails of defendant’s track. We assume that no one will contend that it was the right of defendant to push him off the track either before or after he attempted to leave it. Under the circumstances, the relative duties of the plaintiff and the motorman were plain. It was plaintiff’s duty to leave the track with reasonable expedition, and it was defendant’s duty — the motorman’s duty — seeing the effort plaintiff was making, the car with its passengers and the wagon with plaintiff being in no danger, to delay until the wagon had left the track. See Manor v. Railway Co., 118 Mich. 1 (76 N. W. 139); Rouse v. Railway, 128 Mich. 149 (87 N. W. 68); Hibbler v. Railway, 172 Mich. 368 (137 N. W. 719).

There is no testimony tending to prove that plaintiff did not perform his duty. In determining whether the motorman performed his duty, there was involved no question of plaintiff’s negligence. It is obvious, however, that the jury may have concluded that plaintiff “could have driven that rack off the track and cleared the car” — “that he could, by the use of diligence, have cleared this track far enough to allow the car to pass, having time to do so and having warning of the approach of the car,” and, having so concluded, returned a verdict for defendant, under the instructions. In the respect indicated, the instructions were erroneous and probably prejudicial to plaintiff.

As the case must go down for a new trial, we notice the assignments of error based upon the refusal of the court to give requested instructions. The refusal of the court to give these instructions was not error. The case is wholly different from Bowen v. Railway Co., 54 Mich. 496 (20 N. W. 559, 52 Am. Rep. 822), Wallace v. Railway Co., 58 Mich. 231 (24 N. W. 870), Laughlin v. Railway Co., 62 Mich. 220 (28 N. W. 873), which are cited by plaintiff. It is immaterial, in view of the admitted facts in this case, who was responsible for the condition of the street. The street, outside of the tracks, was not impassable. Plaintiff drove upon the tracks for his own convenience, knowing that he must leave them whenever a car approached him. It is not claimed that, having left the track, there was not abundant room to drive in safety alongside the tracks.

The obstruction caused by the snow and ice hindered him, in some degree, in getting off the tracks —it delayed him. The motorman knew this, and was bound to operate the car with reference to all the circumstances, including the condition of the street, which appeared to affect, or to be liable to affect, the matter of a safe passage. One circumstance was that, because of the cóndition of the street, the rear wheels of the empty wagon might slip and slide along the rails and on the side of the obstruction in the street after the horse and the front wheels had cleared the tracks.

The judgment is reversed, and a new trial granted.

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


author: Steere, C. J.

text:
    STITT v. LOCOMOTIVE ENGINEERS’ MUTUAL PROTECTIVE ASSOCIATION.
    1. Insurance — Indemnity Policy — Mutual Benefit Associations. ■ ‘
    Under a' policy of indemnity against loss of employment occasioned by discharge of the insured or his suspension as a penalty or method of discipline, containing a condition that knowingly disobeying orders or rules should not be included among the insurable causes of discharge, and that the insured must show by his notice of claim and accompanying proofs that his suspension or discharge was strictly within the terms of the certificate or policy, and that the cause assigned by the employer should be the sole basis of determining liability, such assigned cause must be taken as a basis or general reason for the discharge, and could not be contradicted, but it would be an unreasonable construction to hold that plaintiff could not recover unless his employer stated as cause of his discharge all the stipulated conditions or provisions essential to liability.1
    2. Same.
    Both application and policy must be construed together as constituting the contract, and plaintiff is presumed to have read and understood both.
    3. Same — Discharge—Master and Servant.
    And under its conditions plaintiff could only recover if his discharge or suspension was in the nature of a penalty, the word discharge presumptively meaning that the employer no longer needs or desires the servant’s services and terminates the contract relation.
    4. Same — Contracts—Construction—Penalty.
    Penalty indicates punishment for doing or failing to do a required act.
    5. ' Same — Disciplíne.
    But the word discipline as employed in the contract signified instruction, or the communication of knowledge and training to observe and act in accordance with rules or orders and was used in the sense of correction, chastisement, or punishment inflicted by way of training.
    6. Same — Conditions Precedent — Notice to Insurer.
    Where plaintiff’s notice of claim given to the insurer did not indicate that his suspension or discharge was a penalty or measure of discipline, and not for knowingly disobeying orders or rules, and the policy required specifically that his statement must show that he was within the provisions of the certificate, he could not recover, and a verdict was properly directed for defendant.
    Error to Bay; Collins, J.
    Submitted June 19, 1913.
    (Docket No. 56.)
    Decided September 30, 1913.
    Assumpsit by Raleigh K. Stitt against the Locomotive Engineers’ Mutual Protective Association under an indemnity policy. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Hall & He Foe, for appellant.

      Cavanaugh, Wedemeyer & Burke, for appellee.
   Steere, C. J.

Plaintiff brought this action in the circuit court of Bay county to recover an indemnity of $15 per week, during 33 1/3 weeks, for loss of time by being out of employment, under an indemnity policy issued to him by defendant. The case was tried December 16, 1912, before a jury. The testimony was mostly documentary; plaintiff being the only witness sworn. The trial resulted in a judgment for defendant on a directed verdict, and, after denial of a motion for a new trial, plaintiff removed the proceedings to this court for review upon a writ of error.

When insured, plaintiff was a locomotive engineer running freight engines hauling freight trains in the employ of the Grand Trunk Railway system. He joined the defendant association in July, 1911, was suspended from his employment for violation of orders September 1, 1911, and was never reinstated, being discharged 18 days later for the same reason. On April 26, 1912, he began this action.

On July 12, 1911, plaintiff made written application for membership in the defendant association, which application was in part as follows:

“I further agree that in case my application is accepted, and I at any time thereafter become a claimant, to furnish said association with full and complete proofs of my claim, furnishing the statement of any reliable ‘witnesses or persons who may have knowledge of the matter, and that the cause assigned by my employer for suspension or discharge shall be the sole basis of determining the liability of the association.”

The next day the defendant issued to him a certificate of membership, insuring him—

“Against loss of time by being out of employment, occasioned by his discharge or suspension as a penalty or method of discipline, from his present position as a locomotive engineer, subject to the conditions as hereinafter stated.”

The indemnity was limited to $500, being $15 per week for not to exceed 33 1/3 weeks. Said certificate of membership also provided:

“Notice of every claim must be signed by the applicant and must set forth the reasons for which he is under suspension or discharge, and must show by his own statement and the statements of at least two other persons who are acquainted with the facts in the case that such suspension or discharge is within the provisions of this certificate and that he is clearly entitled to the "indemnity applied for. * * * Time is strictly the essence of this provision and unless notice is mailed to the home office of the association in the manner and within the time specified, no rights shall accrue to the member and no claim shall be made nor indemnity paid under this certificate.
“This certificate does not include nor cover any suspension or discharge not in the nature of a penalty or measure of discipline nor any case arising or traceable to any of the following causes or conditions, viz.: * * * knowingly disobeying orders or rules.
“The member shall, as a condition precedent to the establishment of his claim, furnish under oath such reasonable proofs in addition to his notice of loss as may be demanded of him by the association, and failure or refusal to furnish such proofs within ten days after same are demanded of him in writing, shall estop and prevent him from asserting any rights as a claimant under this certificate.”

The acts for which plaintiff was suspended and subsequently discharged were committed August 21, 1911, and the cause assigned by the railroad company in discharging him is stated in his notice of claim for indemnity to have been “fqr exceeding speed limit of eight miles per hour over Raisin River bridge and for using interlocking plant at Slocum, Mich., with signals set against me.”

His notice of claim was returned with a request for further information, and he added the following:

“In regard to attached request for further information, I would say there was a bulletin in bulletin book at Lang terminal restricting the speed of trains to eight miles per hour over Raisin River bridge at Monroe, but that there had never been any special orders issued to this effect. And, farther, that the superintendent of the line of which this bridge is a part reported my speed over this bridge at a rate much exceeding the speed used in crossing same.
“Farther, in using hand signal at home semaphore at Slocum, I did this strictly according to the interlocking rules, which allow an engineman to use hand signals, from the towerman, providing the towerman is on the ground when giving the signal (and the signal is meant for the train using the same, without a doubt), in which case the train must approach the signal under full control and know that derails are properly set. . All these instructions were carried out, and the signal I acted on could have been for no other train, as there was no other train approaching crossing in either direction.”

His two witnesses, the conductor and fireman, gave, respectively, the “details” of the acts on which his discharge was based as—

“Exceeded speed limit over Raisin River bridge at Monroe, and used hand signal in crossing Michigan Central interlocked crossing instead of receiving and using semaphore. . * * * Exceeded speed limit over Raisin River bridge, and used hand signal instead of semaphore at Michigan Central interlocked crossing.”

Plaintiff paid all dues and assessments called for by defendant, and was a member in good standing at the time he was suspended, on September 1, 1911. He testified that he had been an engineer on the Grand .Trunk Railway for four years; that, as was his duty, he had familiarized himself with the rules and bulletins of the company; that he was familiar with the bulletin order in relation to rate of speed for trains crossing the Raisin River bridge, exceeding which was one of the reasons assigned by the company for his suspension and discharge; that neither the railway company nor any of its officials ever assigned as a reason for his suspension or discharge that he knowingly violated any rule of the company. The following question asked him by his counsel was objected to, and the objection sustained:

“Q. State the circumstances under which you ran over that bridge?”

It was conceded by both parties that no issue of fact for the jury was involved, and each asked a directed verdict.

Plaintiff’s counsel contended at the time of the trial that, inasmuch as the policy provided distinctly that the reason assigned by the company upon his discharge as to the cause of discharge shall be the sole measure of determining his liability, and, it not being stated that he was suspended or discharged for knowingly doing the acts stated as a reason for his discharge, a verdict should be directed in his favor, for the reason that this certificate, or policy, stated, as a condition, that it did not include nor cover any suspension “not in the nature of a penalty or measure of discipline, nor * * * knowingly disobeying orders or rules.”

In construing the policy before directing a verdict for defendant, the court said, addressing counsel for plaintiff:

“It is your contention, and it is the contention of the defendant, that the cause assigned by the railroad company is the cause. The cause assigned by the railroad company, as described by the plaintiff, and as described by these witnesses, assigned as cause of an act, the doing of which act was knowingly done, the doing of the act implies that it was knowingly done.”

Plaintiff promptly made a motion for a new trial, again urging that a proper construction of the policy entitled him to a directed verdict in his favor, and further contending that, if such view did not prevail, he was entitled to have submitted to the jury as an issue of fact the question of whether or not he knowingly disobeyed any rules or orders of his employer. Upon this proposition the contention of his counsel is stated in said written motion for a new trial as follows :

“On the trial of the issue it was mistakenly assumed by both counsel for plaintiff and counsel for defendant, and such issue was submitted to the court on the theory that the provision in the application that the cause assigned for suspension or discharge should be the sole basis for determining the liability of the defendant means that the employer should by the cause assigned determine the liability as between plaintiff and defendant, without leaving the issue as to whether the plaintiff in disobeying the orders and rules did so knowingly, while in fact the true construction of such provision in said application is that the cause assigned by the employer for suspension or discharge merely refers to the reason for such suspension or discharge, and precludes either plaintiff or defendant from assigning any other reason therefor, leaving the question as to whether the disobedience of orders or rules which led to the suspension or discharge was a knowing disobedience on the part of plaintiff to be determined as an issue of fact in the case, for which reason the question of whether such disobedience by the plaintiff was in fact knowing should have been submitted to the jury as a question of fact.”

In its reasons for denying such motion, the trial, court, among other things, stated:

“The proofs of loss or proofs of claim filed by the defendant show that he knowingly violated a rule of his_ employer in exceeding the speed limit over the Raisin River bridge at Monroe, Mich., and for accepting a hand signal, crossing interlocker plant with semaphore set against him.
“Under the policy sued on in this case, when it appears that the insured is employed by a railroad company, and that he is discharged, and that the effect of the order discharging him is a finding on the part of his émployer that the insured was discharged for knowingly disobeying an order or rule of the company, as between the insurance company and the insured the finding of the railroad company is conclusive and binding, and cannot be disputed by the insured. That is a part of his contract of insurance.”

We do not think a fair and reasonable interpretation of the contract limits the inquiry to the cause assigned by the employer, as contended by defendant, by reason of the provision that it should be “the sole basis of determining the liability of the association.” It must be taken as the basis, as the.general reason of discharge, and cannot be contradicted; but the employer is not a party to the contract of indemnity, nor presumably interested in it; and it would be an unreasonable construction to hold that plaintiff cannot recover unless the employer states, and assigns as cause, all the numerous provisions, exceptions, and conditions in detail essential to a recovery with which defendant has freighted its policy. But it is incumbent upon plaintiff, under his contract, in harmony with the cause assigned by the employer, and with it as the sole basis, to set out in his notice of claim, aver, and establish in his proofs that which by his contract is essential to a recovery.

The contract must govern, though it may be more harsh and unfavorable to plaintiff than defendant. Courts do not make contracts for parties; they can only construe and administer them.

Defendant is of that class of mutual indemnity or insurance companies organized, apparently without capital, on the assessment plan to secure to its members a continuance of wages, when out of employment, for a certain length of time, under specified conditions. Those conditions seem to be conspicuously numerous and stringent in this instance; but a member of such an association is at the same time an insurer and an insured. In contemplation of law he is a party to imposing the conditions and restrictions in the policy issued to members.

When he accepts such policy, his rights as an insured are determined by its terms, whatever they may be. His application and certificate of membership, or policy, must be taken and construed together as constituting the contract between the parties. He is presumed to have read his application and been fully acquainted with its contents. Briggs v. Insurance Co., 65 Mich. 52 (31 N. W. 616). Plaintiff makes no claim in this case that he was not, and in answer to numerous questions in his application certifies, over his signature, that he understands its provisions.

While all insurance, strictly considered, is for indemnity, this is of that special kind more conspicuously so, and is often called “indemnity insurance,” as distinguished from fire, marine, life, and other more common forms of insurance. A careful study of the contract leads to the conviction that it is not favorable to the insured, and his rights under it are limited. The fact that he has been suspended or discharged, standing alone, gives him no rights. It is only when his suspension or discharge is in the nature of a ‘penalty or measure of discipline, that he may urge his claim at all. This would seem to cast particular difficulties in his way in case of discharge.

A discharge presumptively means that the employer no longer needs or desires his services; that he is done with him, and all contract relations are at an end. In such case it is difficult to see why the employer should dispense with his services as a penalty, or to discipline him.

In a popular sense it can be said all persons discharged from a satisfactory. and profitable employment are penalized and disciplined in the particular that penalty and discipline are punishment; but a penalty in legal significance indicates a punishment inflicted by a law for its violation, including both fine and forfeiture, or imposed by contract for doing or failing to do something in violation of the contract obligations.

While “discipline” has no technical, legal meaning, it in common and most general use signifies “instruction, comprehending the communication of knowledge and training to observe and act in accordance with rules or orders,” or, as it may be inferred was the meaning intended here, “correction, chastisement, or punishment inflicted by way of training.” By the terms of the policy this must be an element before recovery can be had, and there is no statement in the cause of suspension or discharge assigned by the railway company, nor in plaintiff’s notice of claim and the accompanying statements of his two witnesses, that his employment was terminated as a penalty or measure of discipline.

Even though such was the cause, and it was properly set out in his notice of claim, he would yet have no right to indemnity, if the cause arose from, or was traceable to—

“Absence from engine while in charge of same; nor for any act or acts while in charge of your engine, use of intoxicating liquors, soliciting his own discharge or suspension, striking, garnishment, fighting, assaulting superior officers, knowingly disobeying orders or rules,” etc.

No mention is made of these matters in his notice of claim, nor in the cause assigned by his employer.

Plaintiff’s contract specifically and distinctly requires that his notice of claim, corresponding to proofs of loss in ordinary insurance—

“Must show by his own statement and the statements of at least two other persons who are acquainted with the facts in the case that such suspension or discharge is within the provisions of this certificate and that he is clearly entitled to the indemnity applied for.”

Both plaintiff’s statement and those of his two witnesess fail in numerous particulars, beside the allegation that he did not knowingly disobey orders or rules, to show that his suspension and discharge are within the provisions of his contract, though he was requested, and given further time, to submit additional, full, “final, and complete proofs.”

The contract under which he brings suit makes it obligatory upon him to establish those things requisite to show himself entitled to indemnity, in order to make out a prima facie case. In this he failed, and we are constrained to conclude that the trial court correctly determined “that the plaintiff has not, as a matter of. law, shown a case against defendant.”

The judgment is affirmed.

Móore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Ostrander, j.

text:
    CUMMINS v. BOYNE CITY TANNING CO.
    1. Master and Servant — Personal Injuries — Negligence — Risks Assumed — Defective Belt.
    Whether defendant’s servant, who was injured in oiling or adjusting. a fan operated by a defective belt which caught his hand or wrist and forced it into the fan, knew of the defect alleged or not, was, under conflicting testimony, properly left to the jury to determine.
    2. Same — Evidence of Negligence — Defects in Machinery.
    Plaintiff’s testimony that defendant was using a canvas belt temporarily to operate the fan, and that the edge of the belt, being frayed, struck his hand so as to force it into the revolving fan, supported the verdict rendered in his favor.
    3. New Trial — Affidavit — Sufficiency of Showing — Diligence.
    On defendant’s motion for a new trial the court rightly refused to set aside the verdict on the affidavit of the president and treasurer of defendant corporation that he expected to be able to show by a witness that plaintiff had given a different account of the manner in which he was injured, tending to relieve defendant of liability; that he learned of the testimony after the trial and had not had sufficient time to procure an affidavit from the witness, whose sworn statement was not presented to the court nearly five months afterwards when the motion was argued.
    Error to Charlevoix; Mayne, J.
    Submitted'June 18, 1913.
    (Docket No. 54.)
    Decided September 30, 1913.
    Case by Carl Cummins against the Boyne City Tanning Company for personal injuries. Judgment for plaintiff, and defendant brings error.
    Affirmed.

      J. E. Converse (A. G. Urquhart, of counsel), for appellant.

      Hall, De Foe & Hall, for appellee.
    Plaintiff was employed as night fireman in the lower stokehole or fireroom of defendant’s establishment. His duties were to take care of the fires and to oil the bearing of a fan which performed the office of taking foul air from the room. The fan was set in the cement wall of the room, was some 34 inches in diameter, and was operated by an electric motor. The motor and an attached pulley were in the stoke-hole, but the switch controlling the current of electricity was on the floor above, where there were other fire holes attended by other men. From the motor pulley to the fan pulley, a distance of 7 or 8 feet, a belt was used. Three braces described an arc from the wall and the casing of the fan and united to form the bearing of the fan axle; outside of these braces was the fan pulley, between which and the braces there was an oil or grease cup. Inside the braces and the bearing was another grease cup. Hard oil was used in the cups, and it was plaintiff’s duty to keep the caps of these cups screwed down and, as required, to remove them and fill the cups with grease.

      Plaintiff was unscrewing the cap of the cup next to the pulley, outside of the braces which in part covered the fan, when in some manner his right hand was placed or forced into the fan; the consequences being the loss of the hand. He says his wrist was struck by the belt, the top of which was moving rapidly towards him, and his hand was by the blow forced into the fan. There aré flanges on the fan pulley to guide and keep the belt in place, and from the testimony it seems wholly improbable that a smooth and sound belt could have struck his hand or wrist while he was properly unscrewing the oil cup. It is claimed, however, and the testimony tends to prove, that the belt was one temporarily in use in place of a leather belt which had been some time before injured or destroyed; that it was a canvas belt, made up of several pieces laced together; that one edge of the belt was badly frayed and was raveling; that it was made of three plies or layers of canvas, the faces of which were glued together; and that the threads of the upper face or layer were broken and made flaps, which, as the belt went over the pulley, would probably be thrown out- and away from the face of the belt. In his declaration plaintiff counted upon a statute duty of defendant to guard the belt, b.ut the court declined to submit the case upon this theory of the defendant’s negligence and did submit .the question of the negligence of defendant, also counted upon, in using the defective belt. Defendant offered no testimony and, when plaintiff rested, moved the court for a peremptory instruction upon the grounds:
    (1) That no negligence of defendant had been proven; (2) contributory negligence of plaintiff had been shown; (3) there was a safe way to oil the bearing (by stopping the motor), and plaintiff assumed the risks of the method he followed.
    There was a verdict and judgment for the plaintiff, and a motion for a new trial was denied. One ground of the motion was newly discovered evidence for defendant, and one was that the verdict was against the weight of evidence. It is not contended, however, that the verdict is excessive if plaintiff is entitled to recover.
   Ostrander, j.

(after stating the facts). There are 15 assignments of error, some of which are substantially repeated in the brief for appellant, but otherwise none of them is specifically referred to therein. The brief for appellant does not comply with the rule of this court to which we have so many times called .the attention of counsel, and in consequence we have had difficulty in applying the argument to the errors assigned. A reading of the record and briefs has not convinced us that reversible error was committed; mooted questions appearing to be answered by the record and by well-settled principles of law. That the belt in question was defective is not disputed.

Whether its condition was known to plaintiff so that he was cognizant of the danger resulting from its use in case he performed his duty of oiling the fan as he did was a question for the jury. That he performed, or attempted to perform, the duty of oiling the fan as he had always done, and as his superiors had always done, and as he had been instructed to do, is undisputed.

Excluding the idea that he had knowledge of the danger from the defective belt, and, in consequence, excluding the idea that he assumed the risk created by the use of the belt, the positive testimony that his wrist was hit by a portion of it, driving his hand into the fan, if it was believed, supports the verdict. We need not refer to the charge of the court because no portion of it is criticised in the brief. The verdict is not so clearly against the weight of evidence that we can disturb it on that account.

With the motion for a new trial defendant filed the affidavit of W. S. Shaw, president and treasurer of defendant, to the effect that upon a new trial he expected to be able to prove by one John Bilby, of Fremont, Mich., that five days after the day of the injury plaintiff told Bilby that he was injured in attempting to turn down the oil cup located on the inside of the braces which covered the fan; that this testimony was discovered after the trial, and that he could not present the affidavit of Bilby with the motion for the reason that he was not acquainted with the fact until the time had nearly elapsed for moving for a new trial; that he was prepared to file the said affidavit “during the pendency of this motion.” The affidavit of Shaw was made April 30, 1912. The motion for a new trial was heard September 24, 1912, and was denied November - 9, 1912. No affidavit of Bilby appears in the record, and we assume that no such affidavit was before the trial court. It does not appear that Bilby told Shaw that he would give the testimony indicated or that Shaw learned from Bilby the fact set out in the affidavit. Aside from other considerations, the showing lacks certainty and was for this reason insufficient to move the court to grant a new trial.

The judgment is affirmed.

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


text:
    BELLAIRE v. WORCESTER LUMBER CO.
    1. Logs and Logging — Contributory Negligence — Flooding Lands — Waters and Watercourses.
    In an action brought by plaintiff for causing his lands to be flooded by a jam formed by defendant’s logs that obstructed the river, plaintiff was not chargeable with contributory negligence for permitting a birch tree to remain in a leaning position over the stream so as to obstruct defendant’s drive.

    2. Same — Rivers—Navigation—Negligence.
    That defendant suffered a jam to form of logs which its employees were driving down a stream, filling the banks for a considerable distance up the stream past plaintiff’s property, that none of defendant’s men were within five miles when the conditions arose, and from one and a half to two and a half days elapsed before the men arrived to break the jam which caused plaintiff’s land to be flooded and washed out, furnished evidence of negligence.
    3. Same — Riparian Rights — Driving Logs.
    No liability would arise from a jam produced by natural causes, unless, by the exercise of due care, the formation of the jam could have been avoided, but the law requires persons so engaged in driving logs to use due diligence and to employ such number of men and means as will accomplish the object of breaking any jam that may form, without undue delay.
    4. Same — Damages—Weight oe Evidence.
    But a judgment for $1,057 was excessive, on testimony tending to show that the total value of the land damaged was $275, that the cost of diking the river amounted to $550 and other damages did not exceed $20 in all.
    5. Same — Real Property — Measure oe Damages.
    The measure of damages would be the diminution in value of plaintiff’s farm through the effects of defendant’s negligence.

      Error to Houghton; Streeter, J.
    Submitted June 20, 1913.
    (Docket No. 67.)
    Decided September 30, 1913.
    Case by Joseph Bellaire against the Worcester Lumber Company for damages to plaintiff’s lands. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Allen F. Rees, for appellant.

      O’Brien & he Gendre (George O. Driscoll, of counsel), for appellee.

       On the question of, liability for injuries to riparian owner by running logs in stream, see notes in 41 L. R. A. 494: 64 L. R. A. 983, 986, and 35 L. R. A. (N. S.) 824.

   Steere, C. J.

Plaintiff recovered from defendant a verdict and judgment in the circuit court of Houghton county in the sum of $1,057 for damages claimed to have been done his land by' defendant while' driving logs down Sturgeon river in the spring of 1908.

The Sturgeon river is a well-known logging stream of the upper peninsula of Michigan; large quantities of forest products having been cut on its shores and tributaries, and driven down it each spring in the time of high water for many years. It is admittedly a navigable stream for such purposes.

Plaintiff is a farmer, owning and occupying a farm of 80 acres bordering on said river near its mouth in a section of low, fertile land known as “Sturgeon river flats.” The action of the river through these flats has caused its banks to be slightly higher than most of the adjacent lands, which lie but little above the surface of the water at its normal stage, and during the spring freshets the flats are often overflowed.

Defendant is a lumbering company, operating a sawmill at Chassel, near the mouth of the river, and at the time in question had been lumbering its timber lands upon said stream and its tributaries for several years, floating the logs down it to its mill.

In the spring of 1908 defendant drove its logs, which were cut at various points up the river, down to the mill as usual. On April 20th, shortly after the drive started, a log jam formed in the river nearly a mile, by the winding channel, below plaintiff’s house, and on, or just below, his land at a point where a large birch tree grew leaning over the water, damming the stream so as to cause the river above to rise and overflow his property, spreading logs and sand over a portion of it, cutting the banks and washing a new channel across a sharp bend of the winding stream.

Defendant’s negligence and the resulting injury are stated in plaintiff’s declaration to consist of wrongfully and negligently permitting the logs defendant was driving to accumulate, obstruct, and dam up said river on plaintiff’s land, and neglecting to properly direct, drive, and float said logs so as to keep them clear of the land, whereby said river became greatly dammed up; and that defendant did also wrongfully and negligently fail to furnish a sufficient number of men to drive the logs without jamming, as a consequence of which neglect, plaintiff’s land was overflowed, logs, sand, and other debris deposited thereon, the soil washed out and gullied, and a new channel cut, rendering it necessary to build breakwaters to protect the banks and a bridge to reach a portion of the land cut off by the new channel. ^

At the conclusion of plaintiff’s testimony, and again at the conclusion of all the evidence, defendant’s counsel moved for a directed verdict in its favor, for the reason there was no evidence of negligence on the part of defendant, and, if there was any evidence of the jam damaging the premises in question, plaintiff was guilty of contributory negligence; again, after verdict and judgment, moving for a new trial, because the verdict was against the great weight of evidence, was excessive, and contrary to the instructions of the court. These motions were denied, and defendant has brought the case here for review on a writ of error.

The contributory negligence imputed to plaintiff is his permitting the birch tree, which leaned over the river where the jam formed, to remain there, as a menace and, as it proved, an obstruction to the drive. Had it been shown plaintiff was guilty of some affirmative act in that connection, this contention might require more serious consideration. Defendant’s own testimony disclosed that along the river there were a great many leaning cedar, birch, and other trees, and that for trees upon the declining shores to tip or lean over the water was “a common occurrence along the river bank.” This birch was growing on the shore of the stream in its natural state, undisturbed except by the operations of nature. It is not shown that plaintiff ever disturbed it in any manner, or, though it leaned low over the water, that it ever interfered with the natural flow of the river. The trouble came from defendant’s use of the river for purposes of navigation in driving its logs upon it. No obligation rests upon a riparian owner to clear or deepen a stream flowing past or through his land to make it navigable for any purpose. Defendant’s rights upon this river, through plaintiff’s land, were its use for such navigation as it was naturally adapted to, which was the floating of logs. For that use it was, in its nature, a highway. Defendant had the right to so use it in the customary and ordinarily prudent manner. When thus using it, defendant was not liable for any damages resulting to adjacent lands by reason of its proper and prudent exercise of such right. For any abuse or negligent misuse of such right resulting in injury to the shore owner, it would be liable. These principles are too well established in this State to require discussion or citation of authority.

We are unable to accept defendant’s contention that there was no evidence of negligence on its part to be submitted to a jury. It is undisputed that, while defendant was driving its logs down the river, a jam formed on or just below plaintiff’s land, filling the banks several logs deep at the jam, and extending upstream through plaintiff’s property for some distance, variously stated by different witnesses at from 600 or 700 feet to a quarter or a third of a mile; that none of defendant’s men was within 5 miles of the jam when it occurred, nor did any reach there until at least 2 nights and a day later, as stated by defendant’s foreman, and 2% days, as stated by a witness of plaintiff, who saw the jam form, and assisted his father in an unsuccessful attempt to break it, after which the father sent word to defendant, being solicitous about the matter because he owned and resided upon land further down the river.

It is well settled that parties engaged in driving logs upon a river naturally navigable for such purpose are not liable for damages caused by jams formed by natural causes, unless, by the exercise of due care, the formation of such jams could have been avoided; but it is “their duty to exercise due diligence in running the logs, and in breaking such jams as are formed by natural causes,” and-r-

“They would be liable for such damage as may be caused from unnecessary or unreasonable delay in removing them. They are required to use due diligence, and to employ such number of men and means as will accomplish the purpose of breaking such jams within a reasonable time, having in view all the circumstances.” Bauman v. Boom Co., 66 Mich. 544 (83 N. W. 538).

Plaintiff’s testimony tended to show that in driving this river it was necessary and customary to keep men along with the logs to “pike them along;” that this jam formed at the head of the drive shortly after the logs began to run at that point; that there were no men coming along with that end of the drive, nor within over five miles of it, and that none of defendant’s men reached there until 2% days later, and then only after notice of the jam was sent to defendant by outside parties; that after the jam- formed logs were continually sent down against it from upstream, so that, as it increased, the river was jammed with logs to its bottom for some distance above, through plaintiff’s land, setting back the water, and causing it to cut through the banks, flooding plaintiff’s fields, cutting a new channel across a bend before relief came.

With such testimony in the case, defendant’s negligence was a question for the jury. In Anderson v. Boom Co., 61 Mich. 489 (28 N. W. 518), involving the flooding of lands by a jam of logs which defendant was driving, it is said:

“It was for the defendant to show the actual condition of the logs and of the water, and to state what was done to move the logs and prevent the overflow, and then it was for the jury to determine whether or not there were unnecessary jams causing the flowage and damage.”

See, also, Hopkins v. Commercial Co., 16 Mont. 356 (40 Pac. 865).

While we conclude that there was evidence to go to the jury on the questions of its negligence and resulting damage, a careful examination of the record impels to the view that defendant’s contention, presented in its motion for a new trial, that the verdict was contrary to the instructions of the court, and, in part at least, against the weight of evidence and excessive, is well founded.

The jam of logs occurred on April 20th, at a time when there were no growing crops upon the land. The flooding of Sturgeon river flats by spring freshets is an annual occurrence. The land is said to be enriched from the silt distributed over it during these floods, which are accounted a general benefit; the soil of the flats being known as a silt loam. Plaintiff claims, however, that the flood from the jam was more sudden and severe than the natural ones; that it cut through the retaining banks, instead of quietly flowing over them, and carried quantities of sharp sand, instead of floating silt, upon his fields, leaving a coarse and sterile deposit of sand in the lower places, through which vegetation would not grow, smothering the meadows, and destroying the fertility of the soil; that it cut a new channel across a bend of the river, and shut off access, without a bridge, to land within the former bend of the stream, and that, to restrain future excessive overflow and prevent the banks from further washing, it was necessary to build revetments at certain places to keep the river in its channel.

The neck of land across which the new channel cut is conceded to have been very narrow; a surveyor sent by defendant to measure and compute areas, and whose testimony in that particular is not disputed, states it was not over 15 feet across it from one bank to the other, and the area washed out by this new channel was fifty-seven thousandths of an acre. The river formed quite a large loop at this point, mostly on adjoining lands; the portion of plaintiff’s land within the loop being a small triangle, which was not cultivated. Defendant’s testimony is to the effect that there were no such unusual results as claimed by plaintiff; that about the same amount of land was flooded and in the same manner as usual at that time of the year; that good crops subsequently grew upon the land claimed to have been injured by the deposit; that the washing of the banks and cutting of the short new channel was the natural result of the spring freshet, and did little, if any, damage. The conflicting testimony upon this subject presented, of course, an issue of fact for the jury within certain limits; but, according to a map of the locality upon which plaintiff and his witnesses pointed out the portions claimed to have been injured by the overflow, there were less than 3% a'cres injured by the deposits upon them. The highest estimate given by any of them was 5 acres. The trial judge, in his charge to the jury, said:

“But the highest value that is put upon that land, gentlemen, is $65 (per acre). The lowest value which is put upon the land in its present condition is $10 (per acre), so that the amount of damages to be allowed for that acreage, whatever it was, if any, must be between those two extremes, and in arriving at that you will consider the testimony of the other witnesses varying from no damage at all to this $65.”

The testimony sustains these statements as to the highest and lowest values, and according to plaintiff’s highest and lowest estimates we find not to exceed five acres of his land were damaged $55 per acre, amounting to $275. The court further instructed the jury that by the pleadings and proceedings during the trial—

“There was no question of any bridge across the cut-off or access to lands further up the river except the damage by the soil actually taken away” and “injury to that acre and three-quarters or two acres, which was testified to in the case, the extreme value I think was put at $20 an acre, $10 or $20, but no further.”

It could well be contended that the straightening of the river at this point was a benefit rather than an injury, and under the evidence of plaintiff the damage, if any, was very small.

The plaintiff did work along the river, building a breakwater, or retaining wall, of timber to prevent the current further cutting away the banks and flooding his land; his estimate of the cost of this work was $557.25, and it was his claim that this was made necessary by the washing of the natural banks at the time of the jam. It is the contention of defendant, not only that the testimony overwhelmingly showed that this work was unnecessary, of little value, and could not have legitimately cost what plaintiff claimed (which might be a question of fact), but that the plaintiff could not recover under any circumstances more than the entire value of the maximum amount of land which he claims was damaged.

If it appeared that the injury to the acreage damaged, which was shown to be several spots distributed over different parts of the farm, depreciated the-whole value of the farm, the damages would not be limited by the difference in value of the exact spots injured. The measure of damage would be the damage done to plaintiff’s farm as an entirety through defendant’s negligence, whatever the various elements might be.

In denying defendant’s motion for a new trial, the court said: “The verdict was for a larger amount than was warranted under the charge,” and it may be added, for a manifestly larger amount than was warranted by the evidence.

Accepting plaintiff’s claim that defendant was responsible for all the damages he' offers evidence in relation to, and rejecting all of defendant’s testimony in denial and reduction of said claim, some of which is practically undisputed, and, taking plaintiff’s highest estimates, we have $275 for the reduction in value of the acreage flooded, and $557.25 for labor and timber in building a breakwater, the items of which are not given, with $20 for the questionable claim by reason of the cut-off, as mentioned by the court in its charge, and adding interest from the date of the jam we find the total loss less, by a substantial sum, than the verdict rendered. It is evident that the verdict is beyond any testimony in the case to support it.

In our opinion, a verdict for the maximum amount claimed by plaintiff in his testimony would be excessive, and contrary to the .weight of.evidencé as disclosed by this record.

The judgment is reversed, and a new trial is granted.

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


text:
    FIDELITY & DEPOSIT CO. OF MARYLAND v. MAILE.
    1. Insurance — Indemnity Bonds — Fidelity Contract — Liability.
    Plaintiff, a fidelity insurance company, furnished to the employer of one Maile a bond of indemnity against loss by reason of the default of its employee. As security, defendants gave a bond to plaintiff to save it harmless against damage or loss on' the fidelity obligation, in which it was provided that the contract should be void as to claims that might arise subsequent to any default, if the employer should fail to notify plaintiff, the obligor, immediately, or as soon as practicable, thereafter. Maile rendered a monthly account in which a deficiency of $27.26 appeared. He was notified of the irregularity and advised to correct it in his next report, which, however, showed an additional shortage, and plaintiff was required to reimburse the employer. In a suit on the collateral contract defendants contended that their obliga- ■ tion was no more extensive than that of plaintiff and that it had been released by the employer’s failure to report the first shortage.' Held, that ‘the requirement of the fidelity bond as to notice of default did not necessitate a report of an apparent error or honest mistake, and defendants were liable on their undertaking.

      2. Appeal and Error — Trial—Charge.
    Apparently contradictory instructions did not prejudice appellants, against whose contention the point raised should have been determined as matter of law, instead of submitting the case to the jury.
    3. Same — Saving Questions for Review.
    Points not sufficiently brought to the attention of the trial court will not he determined on error.
    Error to Ottawa; Cross, J.
    Submitted July 1, 1913.
    (Docket No. 133.)
    Decided September 30, 1913.
    Assumpsit by the Fidelity & Deposit Company of Maryland against Marshall Maile, James Moore, and William H. Ernst on a contract of indemnity. Judgment for plaintiff and defendants Moore and Ernst bring error.
    Affirmed.

      Cross, Vanderwerp, Foote & Ross and Walter I. Lillie, for appellants.

      Peter J. Danhof, for appellee.
   Ostrander, J.

The Grand Rapids, Grand Haven & Muskegon Railway Company held the bond of the plaintiff company, conditioned that certain employees of the railway company—

“Shall faithfully and honestly discharge their duties in the several capacities, and shall also faithfully and truly account for all moneys and property, and other things, which may come into their possession in their respective employments, whenever thereto required, * * * and the company hereby indemnifies the employer against all loss which .the employer shall sustain, by reason of the default of any or either of the employees in the premises. * * * ”

One Marshall Maile desired to. enter the employ of the railway company as one of the class of employees whose conduct was so insured by plaintiff and was required to himself give to plaintiff an indemnity bond. This he did, with appellants Moore and Ernst as sureties. His bond recites the fact that plaintiff had executed, or had agreed to execute, a bond to the railway company in behalf of said Maile, “which bond by reference thereto herein is made to form a part hereof.”

The condition of Maile’s bond was that the obligors therein—

“Shall hold and keep harmless the company [the plaintiff] from and against any and all loss, damages, costs, charges and expenses * * * which the company shall, or may, at any time, sustain, incur, or be put to, for, by reason, or in consequence of the company having given and executed the said bond, or any continuations thereof. * * * ”

The obligors' further agree—

“To waive all notice of any defaults, or any other act or acts, giving rise to any claim under said bond of suretyship given by said company to said employer, * * * to the end and effect that we shall jointly and severally be and remain liable to the company under this bond whenever the company is liable under its said bond, * * * notwithstanding also any defenses of any kind that we might have been or be entitled to make.”

This is the bond sued upon, and it was made to appear that the plaintiff had paid the railway company, on account of the default of Maile, $141.50. With their pleas the sureties gave notice that they would show in their defense that their liability was limited to the sum of $27.26, “for the reason that one of the provisions of said bond,” the one given by plaintiff to the railway company, “reads as follows, viz.: ‘That this bond will become void as to any claims which may arise subsequent to the occurrence of any act or default on the part of the employee, which may involve a loss for which the company is responsible hereunder, to the employer, if the employer shall fail to notify the company of the same in writing, immediately or as soon as practicable after the occurrence of such act shall have come to the knowledge of the employer’ — and all claims of” the railway company which plaintiff may have paid in excess of $27.26 for alleged shortages of Maile were not recoverable under the said bond because they arose subsequently to the occurrence of an act or default of said Maile, for which plaintiff became responsible under said bond, and the employer failed to notify plaintiff of the same, in writing, immediately or as soon as practicable after the occurrence of said act had come to its knowledge.

It appeared that Maile was the agent of the railway company at Nunica from April 10, 1910, until October 3, 1910, and that, following the custom and the requirements of the company, . he reported monthly to the accounting department of the road the business transacted by him. His report for July, 1910, was examined and four debit and three credit errors discovered; the balance of errors in favor of the railway company being $27.26. This was reported to Maile with the statement:

“You will on your next balance sheet debit yourself with $27.26 for balance of errors above. Balance to be carried to your debit next month.”

The communication is dated September 5, 1910. In the month of October, 1910, upon an audit being made of the books kept at Nunica, it was discovered that Maile owed the company $161.50, including the item of $27.26 already referred to. His shortage for September was $133.87. Of this condition the plaintiff was notified in writing October 4, 1910. Later Maile pleaded guilty to an information which charged him with embezzling $161.50.

Appellants’ principal contention is based upon the fact that the railway company did not report to the plaintiff the errors in the July statement furnished by Maile, discovered as early, at least, as September 5, 1910. The argüment is that, because of this omission or failure, the plaintiff’s liability to the railway company ceased under the terms of the bond, and appellants’ liability can be no greater than the legal liability of plaintiff to the railway company.

To sustain this contention it must be held that the bond given by plaintiff to the railway company required the railway company to notify plaintiff that Máile’s July statement, as corrected by the accountant, showed that he should have reported and paid $27.26 more than he did report and pay. The testimony discloses, and is not disputed, that similar errors were not infrequently discovered in the reports of agents, called to their attention and corrected in the next succeeding statement; that it was supposed that Maile had simply made an error; and that dishonesty on his part was not suspected. Maile paid over all that his July account called for. His act in making up the account as he did and in remitting accordingly was apparently a mistake — an error. Undoubtedly, if he had not paid the amount found to be due upon the correction of his account, a claim for that amount.would have arisen upon the bond. It was not, however, to be assumed that Maile was dishonest. He was entitled to. opportunity to reexamine his records and to correct the corrections made by the accountant, if he could do so. The language of the condition of the bond given by plaintiff to the railway company is:

“That immediately upon, or as soon as practicable after, the discovery by the employer of any act of any employee giving rise to a claim under this bond, the employer shall give notice thereof to the company” — with the further provision that the bond will become void as to any claims arising subsequent to the occurrence of any act or default on the part of the employee which may involve a loss for which the company is responsible, if the employer shall fail to notify the company of the same in writing immediately or as soon as practicable after the occurrence of such act shall have come to the knowledge of the employer. It will be assumed that the bonds were executed with reference to the business carried on by the railway company and the supervision which such companies usually exercise over agents. In conducting business, mistakes must unavoidably occur and be corrected after they are discovered. We do not interpret the obligation of the railway company to plaintiff as requiring apparent errors in monthly reports of agents to be immediately called to plaintiff’s attention. Reading the condition of the bond and the provision for its avoidance together, a fair interpretation of its meaning is that those acts of employees, or those occurrences which do not át least imply a default, are not required to be so reported. This interpretation is in harmony with the purpose of the provision itself, which is intended to secure reasonably prompt and serious supervision of agents by employers, who many conduct business according to convenient rules but may not shut their eyes to acts and circumstances implying dishonest conduct. Further than this, and also in harmony with the interpretation given, it is stated in the bond that the plaintiff shall not be liable for any error of judgment or bona fide mistake, nor for any injudicious exercise of discretion on the part of the employee in and about,all or any matters wherein he shall have been vested with discretion.

Error is assigned upon portions of the charge of the court which are in agreement with the conclusion just stated. It is said, in argument, that, if the instructions complained about were correct, in another portion of the charge a precisely contrary instruction was given; that therefore the jury was permitted to apply either of two contradictory rules, and prejudicial error is thus made to appear. The instructions appear to be contradictory; but inasmuch as we think there was, upon this subject, no question of fact for the jury, no prejudicial error was committed.

In the brief for appellants it is urged that incompent testimony was introduced to show that a shortage greater than the sum of $27.26 existed. The argument is made in> support of the first assignment of error, which is based upon an exception to a ruling which permitted a witness who had testified that he examined the books and records kept at, and relating to business done at, Nunica station to answer the question, “State to the jury what you found.” The objection was that the testimony sought was incompetent, irrelevant, and - immaterial. Although the reasons for the objection were stated at considerable length, they did not point out why the testimony was incompetent. And at no time was the attention of the court directed to the point that the method adopted to prove the extent of Maile’s shortage was not a proper method. It is now said that the testimony was incompetent because—

“The witness was simply allowed to testify that he checked up accounts without having anything to check up from or show to the jury or the court wherein he got his items, one way or the other, from which he made up this amount of $161.50.”

The books -and papers referred to were admitted in evidence, without objection. It was with reference to their contents and the examination he had made of them that the witness was testifying. He was not cross-examined. The objection now made is without merit, and no proper foundation for it appears in the record.

The judgment is affirmed.

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