author: McAlvay, J.

text:
    DETROIT & BIRMINGHAM PLANK-ROAD CO. v. VILLAGE OF HIGHLAND PARK.
    Mandamus — Compelling Oeeioial Action — Propriety — Pend-ency oe' Another Suit.
    Mandamus will not issue to compel village officers to levy-special assessments to pay warrants issued in payment for plank-road rights under Act No. 159, Pub. Acts 1903, while there is pending a taxpayer’s suit to enjoin the payment of the warrants and establish their illegality.
    Certiorari to Wayne; Donovan, J.
    Submitted April 4, 1905.
    (Calendar No. 21,003.)
    Decided December 22, 1905.
    Mandamus by the Detroit & Birmingham Plank-Road Company to compel the village of Highland Park to levy special assessments to pay certain warrants. There was an order denying the writ, and relator brings .certiorari.
    Affirmed.

      Miller, Smith, Alexander & Paddock, for relator.

      Rowland M. Connor, for respondent.
   McAlvay, J.

Relator, a plank road corporation organized under the provisions of Act No. 255, Laws 1848, filed its petition in the circuit court for Wayne county, praying for a writ of mandamus against the village of Highland Park, a municipal corporation organized under chapter 87, 1 Comp. Laws, to compel the levy of a special assessment for the balance unpaid on a certain contract between the parties respecting the relinquishment of certain rights of the plank-road company within the corporate limits of said village. The contract referred, to was entered into between the parties August 28, 1899, claimed to be authorized by Act No. 21, Pub. Acts 1893, whereby,. in consideration of $5,000, the plank-road company agreed to remove its toll gate to a point outside and to the north of the village limits, and not thereafter to maintain a gate within the village or collect toll for passage over the part of Woodward avenue within the village, except the company expressly reserved the right to collect toll from any and all persons passing over any portion of Woodward avenue lying within the corporate limits of said village, provided said person or persons passed through any of its toll gates. The company removed its toll gate and ceased collecting toll except as above provided. The village paid $1,000 in two payments of $500 each, and for the balance issued four time warrants of $1,000 each, payable annually thereafter.

In August, 1900, William H. Stevens and Clarence A. Black, owners of real estate in said village subject to taxation and actually taxed therein upon the general tax roll for the year 1899 (Stevens a resident and elector owning real estate aggregating in value $300,000, and Black owning real estate aggregating in value $70,000), filed their bill of complaint in the circuit court for Wayne county against the plank-road company and the village of Highland Park, setting up the facts as to this contract and the issuing of these time warrants, and attacking the validity thereof for the reasons:

1. Because the officers and council of said village had no power to enter into said contract and bind the village.

2. Because the proceedings had were not sufficient to authorize the contract, or payment of the contract price.

3. Because when the warrants were drawn there was no fund from which the same or any of them could lawfully be paid.

4. Because the issue of said warrants payable in the future wás in fact borrowing money, and the power of the council to borrow money had at that time been exhausted.

Said bill of complaint prayed that said warrants be declared illegal and void, and that the same be delivered up for cancellation, and for an injunction against the village and its treasurer from paying, and against the company from collecting or attempting to collect, the same. A temporary injunction was issued. Defendants answered said bill of complaint, insisting that said contract and the time warrants issued under it were valid, and the proceedings of the municipal officers regular and authorized by law. This chancery suit is pending and undetermined in the Wayne circuit, and the injunction is still in force.

Act No. 159, Pub. Acts 1903, authorizes cities, villages, and townships to acquire by purchase any or all of the rights and property of toll or plank road companies within their limits, and repeals Act No. 21, Pub. Acts 1893, and all other contravening acts; section 4 thereof being as follows:

“When any city, village or township shall have acquired any rights, roads, property, privileges, or franchises of any toll or plank road company as aforesaid, by purchase or condemnation as hereinbefore provided (whether such rights, roads, property, privileges or franchises have been acquired by such city, village or township prior to this act, or shall hereafter be acquired by such city, village or township), the common council of such city or village or the township board of such township shall raise by special assessment upon all the real and personal property within such city, village or township such amount of money as may have been agreed upon between such toll or plank road company and such city, village or township for the sale and purchase of any such rights, roads, property, privileges or franchises or portions thereof of any toll or plank road company as aforesaid, or in the event of condemnation proceedings as herein provided, such sum of money as shall have been awarded to such toll or plank road company in such condemnation proceedings. Moneys raised by such special assessment shall be held as a special fund, to pay such cost and expense of such purchase or condemnation. Such special assessments shall be assessed, levied, and collected at the time and in the manner provided for the assessing, levying, and collecting of the general fund or general taxes of such cities, villages, and townships.”

Relying upon this enabling act, the plank-road company, September 10, 1904, by petition, asked the common council of Highland Park village to proceed by assessment to raise the balance due it under said contract. The prayer of this petition was- denied. Said company then filed its petition in the circuit court for the county of Wayne, asking for a writ of mandamus diredting the said common council of Highland Park to raise by special assessment, as required by said enabling act, the balance due under said contract. The village answered said petition. The facts were, stipulated. A hearing was had, and the writ of mandamus was denied. The case is before this court upon a writ of certiorari to review the action of the circuit judge in denying the writ of mandamus.

It is insisted that because Act No. 31, Pub. Acts 1893, under which the contract of August, 1899, was made, provided no method of payment, even though the plank-road company should succeed in establishing the validity of that contract and the time warrants in the suit pending in chancery, it would be in precisely the same position as at present, having no adequate remedy at law to enforce payment; and, mandamus being the proper remedy, the plank-road company is entitled at this time to invoke its relief. This appears to us to be the only question in the case.

There is now pending in a court of competent jurisdiction a suit brought by taxpayers against both parties to this proceeding at bar, in which issue has been joined, wherein the principal contention is that the contract between them and the time warrants issued under it are invalid, and both parties defendant are enjoined, the one from paying and the other from proceeding to collect the warrants.

If the argument of the petitioner is tenable, whatever may be the outcome of the chancery case, it is entitled to its writ of mandamus in this proceeding. Let it be supposed that the chancery case proceeds to a decree favorable to complainants, and this contract is declared void and the time warrants invalid, and that they be delivered up to be canceled, and, further, that the temporary injunction be made perpetual. This anomalous condition would then be presented, if mandamus should issue as-prayed : This court would order a municipality to raise by special assessment money to be applied upon the payment of warrants issued under a contract which may be declared void, and which warrants the municipality may be by decree permanently enjoined from paying. Is it reasonable to suppose that the legislature intended the act of 1903 so to operate ?

If the chancery case were already determined, and the contract and warrants held to be valid, the contention of petitioner would be cogent. We must construe the act of 1903 as applying to lawful and valid purchases of rights of toll road companies, and not depriving courts from assuming jurisdiction and determining by proper proceedings whether such purchases are valid and the proceedings regular. This court will not interfere with the circuit court, of Wayne county, in chancery, in the orderly conduct of a case there pending.

The judgment of the circuit court is affirmed, with costs.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J. Grant, J.

license: Public Domain

text:
    KARRER v. CITY OF DETROIT.
    . 1. Highways and Streets — Injuries to Travelers — Barriers and Signals — Question for Jury.
    Where, in an action for injuries caused by running an automobile into an unguarded excavation in the street, there is testimony to support plaintiff’s theory that the red lights were back of the line of the curb and the barriers were so placed as not to be readily visible from the direction from which plaintiff was driving, the question is properly left to the jury.
    2. Same — Necessity of Barriers.
    A city is not required to so barricade a street as to preclude injury, but it is sufficient if it give plain warning of the danger, as by the use of a red light, and the necessity of caution' and investigation of the danger.
    3. Same — Trial—Instructions.
    Where, in an action for injuries caused by running an automobile into an excavation in a street, plaintiff’s theory is that the lights and barriers were insufficient to warn him of the danger, and that he was not negligent in approaching it at the speed at which he was traveling, an instruction correctly stating the rule applicable where one is suddenly confronted with danger is applicable to plaintiff’s theory and is properly given.
    4. Same — Instructions Assuming Facts.
    An instruction assuming that the lights were back of the line of the curb, when the weight of the testimony is that they were not, is prejudicial, the issue being whether a street excavation was properly guarded.
    5. Same — Instructions—Personal Knowledge of Jurors.
    An instruction which allows the personal knowledge of the jurors to have the effect of evidence in the case, with respect to the use made of a boulevard by the public, and the character of the ordinances relating thereto, is improper.
    6. Same — Street-Railroad Tracks — Duty of Travelers.
    The rule that persons who attempt to cross street-car tracks whereon electric cars are operated must, before crossing, “stop, look, and listen,” has no application to an action by a traveler against a city for injuries received by running into an unguarded excavation in the street, which, though near a railway track, had no relation to it.

      Error to Wayne; Hosmer, J.
    Submitted October 4, 1905.
    (Docket No. 3.)
    Decided December 22, 1905.
    Case by Edmund L. Karrer against the city of Detroit for personal injuries. There was judgment for plaintiff; and defendant brings error.
    Reversed.

      P. J. M. Hally (Timothy PL Tarsney, of counsel), for appellant.

      Dohany & Dohany, for appellee.
   Hooker, J.

The defendant has appealed this cause. East Grand boulevard, in the city of Detroit, is 150 feet wide. South of Mack avenue, which it crosses, the roadway was 50 feet wide. North of Mack avenue the boulevard has two driveways, each 30 feet wide (the east one being closed), with a park between, with an arc light on a pole at the south end of the park, which was burning at the time of the accident which caused the injury -of which the plaintiff complains. The westerly driveway only was in use. There are two street-car tracks upon Mack avenue, occupying a strip 14 feet in width of that street. Mack avenue was being repaired, and had been plowed up north of the tracks, across the south end of the northerly portion of the boulevard. The situation will be understood by an examination of the annexed diagram. The excavation is shown by the crooked line north of the tracks, and there was a passageway left for travel between the west curb and the point marked " B.”

The plaintiff drove his automobile from the south, and, when 300 or 400 feet from Mack avenue, discovered a red light at or near the point marked “ B.” He was driving on the east side of the boulevard, and supposed that the lamp was at the west curb. The plaintiff testified that he observed the lamps after the accident, and that there were two west of the pathway, along the west line of the boulevard. He concluded that the light was intended to show danger at that side of the driveway, and put on the power which he had taken off on discovering the light, and proceeded on his way at a speed 8 or 10 miles per hour, keeping to the right of the light. He discovered the trench just before reaching the street-car track, but was going too fast to stop his car, which went into the excavation, and was injured. Plaintiff also received some injury to his person. The evidence of several witnesses was taken as to the width of the passageway west of the excavation and the location of the lights, and it is a disputed question of fact whether they were west of the passageway at the curb or east of it. There was also testimony of witnesses who estimated the width of the passageway at 7 or 8 feet. fOne, who said he measured it, testified that it was 14 feet wide. Plaintiff testified that the street was barricaded north of the excavation, but that he could not see it -as he approached from the south.

The court left it to the jury to determine whether the measures taken by the contractors were a sufficient warning to the traveling public, and also whether plaintiff exercised common prudence, after seeing the light, in acting upon the assumption that it was intended to mark danger near the west curb only, and that it would be safe to travel on the east side (without having his car so under control as to stop it at once if it should be necessary) at the point where plaintiff was injured, marked “A” on the diagram.

Upon the theory that the red lights were at the curb line only, and that the barricade was put so far back to the north as to be not readily visible from the south, of which there is testimony, we are of the opinion that the court did not err in leaving the question to the jury. A city is not required to so barricade a street as to preclude injury. It is its duty to give a plain warning that there is danger, and this is ordinarily done by displaying a red lamp, which is the generally accepted symbol of danger, and the necessity of caution and investigation of the danger. Had this lamp been in or near the center of the street, it is at least doubtful if one approaching the crossing, without having the car under such control as to be able to stop it within the distance at which he could readily discern danger, would not be guilty of contributory negligence, and, if blinded by the electric arc in front of him, or if the ground ahead of him was in a shadow, such duty of absolute control would be emphasized. Smith v. City of Jackson, 106 Mich. 136; Church v. Village of Howard City, 111 Mich. 298; Tuttle v. Town of Clear Lake (Iowa), 102 N. W. 136. We are of the opinion that there was no error in such testimony as was given concerning the condition of the pavement the next morning.

Evidence was permitted that on the evening in question two other automobiles went into the same trench at that place. The court refused to strike out this testimony, and afterwards charged the jury that:

“ I am asked to charge you, and I do charge you, that there is undisputed testimony here that on the evening of July 10, 1903, between the hours of 7:30 and 10 p. m., before the plaintiff was injured, two other automobiles were run into the saíne excavation and broken, one so badly broken that it had to be wheeled into a neighboring yard; that this testimony is admitted for the purpose of showing the character and existence of the excavation on the boulevard into which the plaintiff ran, and not for the purpose of showing any reasonable care by the plaintiff, and should not be considered as bearing upon the question of reasonable care upon his part.”

The testimony given seems to have the sanction of authority within certain limits. See Smith v. Township of Sherwood, 62 Mich. 165; Dundas v. City of Lansing, 75 Mich. 508 (5 L. R. A. 143); Lombar v. Village of East Tawas, 86 Mich. 20; Thompson v. Village of Quincy, 83 Mich. 175 (10 L. R. A. 734); Retan v. Railway Co., 94 Mich. 154; Moore v. City of Kalamazoo, 109 Mich. 178; Alberts v. Village of Vernon, 96 Mich. 549. But see, also, Corcoran v. City of Detroit, 95 Mich. 86, and Gregory v. Railway, 138 Mich. 368. As there are other points upon which the cause must be reversed, we do not pass upon the question of its admissibility here; the •cases cited indicating the rule to be applied upon another ■ trial.

The court charged the jury that:

“I am asked by the plaintiff to charge you that some testimony has been offered by the defendant by which it is attempted to show that the plaintiff might have stopped .his automobile, or might have turned it to the right or left, before it went into the excavation. The plaintiff has told you what he did as soon as he discovered the ex- ' cavation in front of him, and has told you the kind of automobile he was on at the time, and the year when it was made, and the distance in which it can be turned, the speed, going at the rate of 8 or 10 miles per hour. Upon this point I charge you that our Supreme Court has said that one suddenly put in danger is not required imperatively to do that which, after the peril is ended, it is seen might have been done, and escaped. The law makes allowance for the fright and lack of carefulness or judgment incident to the peril, and it would be absurd to require the plaintiff in this case, when he saw the excavation ahead of him, and was suddenly called upon to decide how he should escape, to exercise the same coolness and nerve that an uninterested bystander might manifest. There can be no question about that, gentlemen of the jury, but still he is bound to use that degree of diligence which the average prudent man would use on such an occasion as that, and, if he had a right to anticipate that there was any peril at that particular point, of course, gentlemen of the jury, he was bound, in approaching at a rate of speed which was inconsistent with a rate which would have been adopted by a reasonably prudent person.”

It is contended that this was erroneous. It seems to us that, if the plaintiff was negligent, the negligence consisted in not heeding the warning given by the light, and bringing and keeping his machine under control ready for emergencies, rather than in not stopping it afterwards. Upon plaintiff’s theory that he was not negligent in driving forward as he did, the instruction given was pertinent and applicable to defendant’s claim of negligence in managing the car, after discovering the trench.

Complaint is made of the following charge:

“ Now, I am asked to charge you, on behalf of the defendant, that, as a matter of law, a red light at night is a sign of danger, and it was the duty of plaintiff, Edmund L. Karrer, when he discovered the red light, to ascertain the reason of its being there. I think that is so. But if you find, gentlemen of the j ury, that a reasonably prudent person, seeing the two lights as they existed, away to the side of the street, and saw no lights in the center, I cannot say to you, gentlemen of the jury, that he was negligent in assuming, under those circumstances, that the difficulty existed only on the side, but leave that expressly, gentlemen of the jury, for you to say what a reasonably prudent person under the circumstances would have done.”

There is testimony that the lamps were at the curb, but there was quite as convincing testimony that they were estimated to be at least seven or eight feet from the curb, while, if the testimony of the only witness who measured the ground were to be taken, the lamps were within a foot of the center of the street, if east of the driveway. See Perkins v. Township of Delaware, 113 Mich. 377, which holds that such testimony must usually prevail over estimates of distance. We are impressed that the jury would' naturally infer that the trial judge believed that these lights were at the curb, or, at least, remote from the center of the street, and, though doubtless an inadvertence, was none the less injurious to the defendant.

The court also said to the jury:

‘ ‘ The plaintiff in this case desires me to say that the boulevard is used especially for fast riding and for the use of automobiles, and I think, gentlemen of the jury, you may take that in consideration, if your own experience satisfies you of that. I don’t remember what the ordinance is relative to that particular part of the street, but doubtless some of you do, and you may have your own experience with reference to the using of the boulevard for that purpose; but I think the whole question, gentlemen, as to the degree of care, becomes a question for you rather than for the court.”

This was in effect allowing the personal knowledge of the jurors to have the weight of evidence in the case. It contemplated not only their determination as to the use of the boulevard from their personal observation, but also the character of the ordinances relating thereto. This was erroneous.

We think it unnecessary to discuss the other points raised, further than to say that we think that defendant was not entitled to have its eighth request given. It was as follows:

“ It is the law of the State of Michigan that those who attempt to cross street-car tracks whereon electric cars are operated must, before crossing, ‘stop, look, and listen.’ You have a right to take this into consideration in determining the degree of care exercised by the plaintiff in this case, and, if you find that he was not exercising that degree of care and caution which the law imposes upon the people crossing a street-car track, and because of his failure to exercise it he was injured, he is not entitled to recover, and your verdict should be for the defendant.”

The judgment is reversed, and a new trial ordered.

Moore, C. J., and Carpenter and Montgomery, JJ., concurred with Hooker, J.

Grant, J.

I concur in reversing this case for the reasons stated in my Brother Hooker’s opinion. I am not satisfied, however, that this record shows negligence on the part of the defendant city, or due care on the part of the plaintiff in approaching this dangerous place. I find the record very unsatisfactory. It may be understood by the attorneys who tried the case and are familiar with the surroundings, but I find it very difficult to determine the requisite facts which to me are essential in determining the liability of the defendant and the care exercised by the plaintiff. It appears from the record that the witnesses made diagrams upon a blackboard, in the presence of the jury, locating the lamps that were placed along the excavation, and the piles of dirt thrown up, and the location of the passageway along on the north side of Mack avenue. No diagram has been furnished us. The evidence established the fact that there were five lamps placed along the excavation. • It is claimed that some were so far east and west as to constitute no notice to the plaintiff, and not near enough to the line of the boulevard to attract his attention. Their precise location I am unable to determine. Plaintiff was riding on the east side of the boulevard as he approached Mack avenue. The boulevard south of Mack avenue and the east traveled track of the boulevard north of Mack avenue are nearly the same in width and open directly into each other.. Plaintiff’s automobile struck the excavation close to the east side of the west track of t'he boulevard and close to the park. He saw the red light, which he thought was near the curb on the west side of the boulevard, when between 300 and 450 feet from the north side of Mack avenue. It is common knowledge that it would be difficult for him, at that distance and in the direction which he was traveling, to determine the exact location of the lamp. He did not locate this lamp from actual examination. It might have been very near the center of the street, and yet appear to him, when such distance away, to be at the curb. At some time he saw two lights, claiming that one was behind the other alongside the passageway. It is established beyond controversy that there was a passageway wide enough for teams to travel upon between the west curb and the obstruction toward the center of the boulevard. Some witnesses gave their judgment as to the width of this passageway or roadway. One who actually measured it testified that it was 14 feet. In such case the actual measurement must control. Perkins v. Township of Delaware, 113 Mich. 377.

Plaintiff’s witness Fox, who was riding with him in the front seat of the carriage, testified that his attention was called to a red light as he approached the intersection of Mack avenue and the boulevard when they were from 100 to 150 yards distant; that it was quite near the curb; that—

“There was a passageway between, but I could not say just what the distance was — 6 or 7 feet, I suppose. * * * Between the curb and where these red lights were there was some passageway there. * * * I noticed a red light over here to the right, down Mack a little way, I could not say how far away. I did not pay strict enough attention. * * * Over to the left I noticed a pile of earth with the lights upon it. The piles of earth upon which the lanterns were standing were possibly 3 or 4 feet high —may have been 5 feet high.”

Plaintiff’s witness Wobrock, who witnessed the accident and appears to have been very familiar with the situation, testified that the two lights were east of the passageway, which he thought was about 6 feet wide. “ They were on two piles of material that had been plowed up there from 'the excavation.”

It is unnecessary to review the evidence on the part of .the defense as to the location of the lamps, except to say that it was one of these witnesses who made the measurement of the width of the passageway. From the evidence on the part of the defense I am unable to obtain any definite understanding as to the location of the lamps. For these reasons I am not willing to pass upon the questions of the negligence of the defendant and of the plaintiff, which are both very important, until a more intelligible record is before me.

If one or more of the lamps were near the center of the street, the defendant had performed its full duty, and the lamp constituted a warning to all travelers that there was danger, and that they should approach the place with their vehicle under control. Plaintiff either slowed up or stopped when about 300 to 450 feet distant, and then went on with his usual speed. I am not prepared to hold that he was justified in assuming that the red light was located near the west curb, and was only a warning of danger close to that curb of this narrow roadway.


author: Grant, J.

text:
    GOGA v. AMERICAN CAR & FOUNDRY CO.
    Master and Servant — Defective Appliances — Assumption of Risk.
    Where a servant of mature years and of full information respecting a machine on which he is working continues to operate it without repair or promise of repair after informing his master of a defect in it, he assumes the risk of injury because of that defect, though the master informs him the machine is safe.
    Error to Wayne; Brooke, J.
    Submitted October 4, 1905.
    (Docket No. 5.)
    Decided December 22, 1905.
    Case by Stephen Goga against the American Oar & Foundry Company for personal injuries. There was judgment for defendant notwithstanding a verdict for plaintiff, and plaintiff brings error.
    Affirmed.
    Plaintiff was employed by the defendant as operator bf a large machine known as “ Shear No. 4,” used for the purpose of cutting steel plates. The machine consisted of a steel table 12 feet long by 12 or 14 inches wide, standing about 3 feet above the floor. The shear had a large knife weighing 4,000 pounds, operated by hydraulic pressure. When the knife is raised, preparatory to putting the steel plate upon the table for cutting, its left end is about 2i inches and its right end 14£ inches above the table. The knife is supported in the air by two eccentrics, to which it is attached at either end, and these eccentrics are attached to a hollow shaft. As the shaft makes one revolution, the knife descends past the edge of the table and back to its original position, and stops. The situation may be better understood by reference to the diagram.
    The time occupied by one movement of the knife down and up is about seven seconds. The movement of the knife is controlled by a lever, which is not shown upon the diagram. At one end of the lever is an iron weight weighing from 25 to 30 pounds. The -lever is made of steel, and passes through the weight. The other end of the lever is used by the operator in controlling the movement of the knife. When a plate is placed upon the table by the operator, and is ready for trimming or cutting, the operator, or one of his helpers, pulls down the handle of the lever, thus causing the shaft to revolve. As soon as the knife begins to descend, he releases the handle, which flies up in consequence of the weight at the other end, and causes the knife to stop at the top. If the handle be kept down, the knife continues to move up and down.
    On the day of the accident plaintiff was engaged in trimming what are known as “side stakes,” being pieces of steel weighing from 40 to 50 pounds, and about 4 feet 1 1/T6 inches long by lli inches wide at one end and 6£ inches wide at the other, with a spine or hump in the center, slanting up to the height of % 5/16 inches. The distance between the baso of the spine and the edge at the end of the stake at the extreme point is about 3-g- inches. The distance between the base of the spine and the side where it is to be cut is 2f inches. He had three helpers; one bringing the material, one handing it to him, and the third taking it away. Sometimes he pulled the lever himself, and sometimes his helpers pulled it.

      In making these stakes the flat sheet is cut wider at the end where the spine is highest. In this way the edges are irregular, and it is necessary to trim them, so as to make the edges straight and parallel. Both edges are required to be trimmed, so that after trimming one edge .the stake must be turned, so as to bring the opposite edge under the knife. Plaintiff testified that he had trimmed one side of a stake, and was in the act of turning it around to trim the other edge; that his left hand was under the knife; and that the knife descended and cut off a portion of the fingers of his left hand — on the first three fingers just back of the first joint, and on "the little finger just in front of the first joint.
    The main ground of negligence is a failure to keep the lever in proper repair. It is claimed by the plaintiff that the metal ball, used as a- weight to pull the lever down, was attached to the lever by a set screw; that said set screw had become worn and unfit for use; that on the day of the accident the knife descended after the plaintiff had pulled the lever down and then released it; that he called the attention of one Weir, an inspector, to it; that on account of the looseness of the set screw the ball had moved so near the fulcrum that it would not pull the lever down; that he and Mr. Weir examined it; that Mr. Weir moved the metal ball to its place at the end of the lever, tightened the set screw, and informed plaintiff that it was all right. The fall of the knife is attributed by the plaintiff to the loosening of the wornout set screw, and the movement of the weight towards the fulcrum, in consequence of which the knife descended and cut off his fingers. Mr. Weir, the inspector, absolutely denied the plaintiff’s statement in regard to the lever, and testified that after the accident he immediately went to inspect the machine, found it in perfect order, pulled the lever several times, and that it operated properly; that no repairs were made; and that it was continued in use without any repairs, and was in use at the time of the trial. It was further shown by Mr. Weir, and by others who actually did the work, that when this machine was set up and ready for use, about a year and a half before the accident, the weight was found to be insufficient, even when moved to the end of the lever. Therefore hot Babbitt, in weight about five pounds, was run into the weight, in the slot where the lever arm went through. It was also shown that the lever, weight, and Babbitt were in the same condition at the time of the accident; that the weight could not be moved, and never had been moved. During the trial an experiment was made with a hammer weighing 12 or 15 pounds, and several strokes moved the weight only one-eighth of an inch.
    Defendant’s uncontradicted evidence also showed that the identical stake upon which plaintiff was working at the time of the accident was produced in court, and that neither edge had been trimmed. Plaintiff admitted the identity of the stake.
    When the plaintiff had rested, the defendant moved for the direction of a verdict in its favor. The court thought it best for the defendant to put in its testimony if it chose, and asked the attorneys for the plaintiff to stipulate that if a verdict should result for the plaintiff, and the court afterwards became convinced that he should have directed a verdict, he might do so with the same force and effect as he might then do it. To this plaintiff’s attorneys consented. Defendant renewed its motion at the close of the testimony. It was again then decided by the court that the case might go to the jury under the stipulation. This was done, and the jury rendered a verdict for the plaintiff. The court, under the stipulation, afterwards became convinced that plaintiff was not entitled to a verdict, and entered a judgment for the defendant non obstante veredicto. The reason given by the learned circuit judge is stated by him as follows:
    “A careful consideration of all the testimony of the case bearing upon the question has led me to conclude that the plaintiff is not entitled to recover in this case. It appears beyond dispute, according to the plaintiff’s own testimony, that the weight upon the arm of the lever had moved on the afternoon of the day before he received the injury; that an investigation by the superintendent, at his request, demonstrated that the screw which held the weight in place had become badly worn; that he (the plaintiff ) saw the said screw and its worn condition, and saw it replaced on the arm of the lever, and, upon being assured by the. superintendent that the machine was fit to use, continued its operation. I believe this case to be governed by the case of Fischer v. Goldie, 133 Mich. 574, and that, by continuing the operation of the machine after such notice he had of its defective condition, he assumed the risk incident to the operation.
    “Even if it is not true, it seems to me absolutely beyond controversy that the plaintiff was guilty of contributory negligence in permitting his hand to get under the knife. The operation of the knife is extremely deliberate, it taking about seven seconds to make a complete revolution, 3¶ seconds to come down and 3£ seconds to return; the distance through which the knife passes being about 13 to 15 inches. It is obvious to anybody that this motion is very slow, and that, if the plaintiff’s eyes had been upon the work, the knife being immediately in front of him, and' above his hands, in the exercise of the slightest prudence he would not have been injured. Aside from that it is quite apparent, from the demonstration made by the plaintiff in open court, that in placing the iron stake, upon" which he was at work at the time, under the knife for the shearing operation, it was not, as a matter of fact, necessary for him to put his hands under the knife at all. The iron piece upon which he was working had upon it a large spine, some two inches in breadth and three feet or more long, and with his hands upon the spine the nearest point of contact between the spine and the operating knife was more than two inches distant. If the plaintiff chose carelessly to fail to watch the operation of the knife, which was immediately in front of him, and in full view, moving very slowly, or, if he chose carelessly to insert his hand under the knife, when such action was plainly unnecessary, it seems to me clear that he is chargeable with such contributory negligence as will prevent his recovery.”

      Dohany & Dohany, for appellant.

      Angelí, Boynton, McMillan & Bodman, for appellee.
   Grant, J.

(after stating the facts). The ruling of the learned circuit judge as to the assumption of the risk was correct. Plaintiff was 27 years old, had been at work in defendant’s shop for four years, and had operated this machine for one year. He perfectly understood its operation and the cause of the knife’s repeating. There was nothing intricate about the construction of the lever, the object of the weight, its moving, and the reason therefor. He explained the operation clearly and intelligently. He knew that, if the weight was loose, it would, when raised, move towards the fulcrum. He knew and understood the defect, if any there was, as well as Mr. Weir. He testified that the screw was worn out. He needed no óne to tell him that the bolt or screw would not hold the weight if the screw was worn out. No repair was made. If a repair had been made by furnishing a new bolt or screw, he would probably have been justified in relying upon the assurance of Mr. Weir that it was then all right. Merely replacing the old and worn-out screw left the lever in precisely the same condition it was before, and this he knew as well as any one. Knowing the defect, and knowing that it was not remedied, he assumed the risk, under Fischer v. Goldie, 132 Mich. 574, and authorities there cited. See, also, Ragon v. Railway Co., 97 Mich. 265, wherein it was held:

“ An employé may contract to use defective machinery, and, where he knows of the defect and uses the machinery voluntarily, the. law warrants the inference that he assumes the risks incident to such use.”

Plaintiff in Rohrabacher v. Woodard, 124 Mich. 125, sought to rely upon the same assurance .upon which the plaintiff in this case seeks to rely, and we there held:

‘ ‘ An experienced servant of mature years cannot continue to operate a machine which he knows is dangerous without assuming the risk simply because the employer has assured him that it is safe, when the servant has just as much knowledge of the danger arising from its operation as the employer.”

See, also, Mackey v. Furnace Co., 119 Mich. 552. This disposal of the case renders it unnecessary to determine the other questions raised.

Judgment affirmed.

. Moore, C. J., and Carpenter, Montgomery, and Hooker, JJ., concurred.


author: Blair, J.

text:
    BEACH v. KENT.

    1. Parliamentary Law — Counties— Supervisors — Reconsideration of Action.
    A board of supervisors which, acting under section 2484,1 Comp. Laws, has adopted Cushing’s Law and Practice of Legislative Assemblies as its rule of parliamentary procedure, cannot reconsider an action formally taken except upon the same terms that the action itself was taken, and hence a motion to reconsider a motion by which a circuit judge was granted extra compensation must be by vote of a majority of all the members elect. Section 2476, 1 Comp. Laws.
    2. Judges — Compensation—Extra Allowance — Constitutional Law.
    The Constitution, by providing in art. 6, .§ 6, that the circuit judges in certain circuits shall receive such additional salary as may from time to time be fixed by the board of supervisors merely authorizes the board to fix the salary of all the judges of the circuit at the same amount, and does not authorize granting additional compensation to a single judge because of added duties performed by him during the illness of his associate.
    Mandamus by Emmet L. Beach, circuit judge of Saginaw county, against Fred W. Kent, county treasurer, and others, to compel the execution, delivery, and payment of a certain county order.
    Submitted November 14, 1905.
    (Calendar No. 21,412.)
    Writ denied December 22, 1905.

      John F. O’Keefe (George W. Weadock and James H. Davitt, of counsel), for relator.

      De Vere Hall, for respondents.

      Rehearing denied January 23, 1906.

   Blair, J.

The petitioner is one of the circuit judges in and for the county of Saginaw, and as such, on October 17, 1905, presented to the board of supervisors for that county the following petition, viz.:

“To the Honorable the Board op Supervisors op the County op Saginaw.
Gentlemen: Your petitioner respectfully represents unto your honorable body that he is one of the circuit judges in and for Saginaw county, and has been since January 1, 1900. That the late Judge Snow was duly elected and qualified at the same time, and. each continued to work and perform the duties of said office up to the time when Judge Snow was taken ill and unable to perform his duties upon the bench. That after his illness I performed all of the work up to the time of the appointment of the Honorable William G. Gage, who was appointed some time after Judge Snow’s death. For the extra work performed by me as such judge of said county I believe that I am entitled to extra compensation, and believe such services are worth the sum of 12,500, and that, pursuant to section 6 of article 6 of the Constitution of the State of Michigan, your honorable body has a right to and can pay the additional compensation. Said section, among other things, provides that in the county of Saginaw the board of supervisors may, in addition to the salary provided by the Constitution, allow such additional salary as from time to time may be fixed and determined by the board of supervisors of said county.
“Respectfully submitted,
“E. L. Beach.”

On the same day that the petition was presented the board, by vote of 32 to 13, adopted the following resolution, viz.:

“Whereas, Circuit Judge E. L. Beach has petitioned this board for extra compensation in the sum of $2,500 for work done by him during the illness of the late Hon. Byron A. Snow; and
" “Whereas, Nearly all of the members of the Saginaw county bar and court officers have also filed a petition claiming that the amount asked for by Judge E. L. Beach is legal and just, and that the board of supervisors pay him the sum of $2,500; therefore be it
Resolved, By the board of supervisors of Saginaw county, that Judge E. L. Beach be paid the sum of $2,500 for the extra work so done by him, and that the county treasurer be, and he hereby is, authorized and directed to pay the said sum of $2,500 to the said Judge E. L. Beach out of the general funds of the county.”

On October 18th a motion was made:

“That the vote by which the resolution of Supervisor Ederer (relative to extra compensation of Judge Beach) was adopted at yesterday’s session be reconsidered.”

Twenty-five votes were cast for this motion, and 22 against it. The chairman declared the motion carried. Immediately thereafter the following resolution was adopted by a vote of 31 to 16, viz.:

“ That the resolution of Supervisor Ederer relative to extra compensation for Judge Beach be referred to the committee on finance and county affairs.”

On Friday, October 20th, said committee on finance and county affairs presented the following report thereon:

“To the Honorable the Board of Supervisors of the County of Saginaw.
Gentlemen: Your joint committees on finance and county affairs, to whom is referred the communication of Hon. Judge Beach for extra compensation for work performed during the illness of the late Hon. Judge Snow, have had the same under consideration and would respectfully refer the same back to your honorable board without recommendation. ”

Thereupon the following resolution was presented:

“By Sup. Schlickum: That the report be received and action thereon indefinitely postponed.”

Which resolution was lost by a vote of 21 ayes to 26 nays, and thereupon "the following motion was made:

“By Sup. O’Keefe: That the report be received and filed,”

Which motion was duly adopted, and thereupon the following resolution was presented:

“By Sup. Ederer: Resolved, That this hoard allow Circuit Judge Emmet L. Beach the sum of $1,500 as full compensation for the extra services performed by him during the illness of the late Hon. Byron A. Snow, and hereby authorize and direct the proper officers of this board to draw and execute an order upon the county treasurer payable to Emmet L. Beach for $1,500, and upon presentation the treasurer of this county is hereby authorized and directed to pay the same to the holder of said order upon presentation out of any moneys in his hands credited to the general fund.”

Thereupon the following motion was presented: '

“ By Sup. Bell: That the resolution be adopted.”

On objection, the resolution was laid over for one day. The succeeding day was the 12th day of the October session of said board, held on October 21, 1905, and at said day’s session no action was taken upon such claim or resolution.

The board of supervisors of Saginaw county is composed of 51 members. The judges of Saginaw county circuit court being disqualified, the relator has applied to this court for a writ of mandamus to compel Ered E. Gibson, as chairman of the board, and Emerson P. Whaley, as clerk of the board, “ to make, execute, and deliver to your petitioner an order upon the treasurer of the county of Saginaw for the sum of $2,500) payable to the order of your petitioner, as authorized in said resolution of Supervisor Ederer, and also addressed to and commanding Ered W. Kent, as treasurer of the county of Saginaw, to pay said order. ” Relator contends that the action taken by the board upon the motion to reconsider was ineffective, for the reason that the original resolution could not be reconsidered except by a vote of a majority of all the supervisors elected, and that the board had authority to adopt the resolution under section 6 of article 6 of the Constitution. Respondents contend that the motion to reconsider was legally carried and that the Constitution does not authorize the action originally taken.

Section 2476, 1 Comp. Laws, provides:

“ A majority of the supervisors'of any county shall constitute a quorum for the transaction of the ordinary business of the county, and all questions which shall arise at their meetings shall be determined by the votes of a majority of the supervisors present, except upon the final passage or adoption of any measure or resolution, or the allowance of any claim against the county, in which case a majority of all the members elect shall be necessary.”

Section 2484 provides:

“The several-boards of supervisors shall have power and they are hereby authorized at any meeting thereof lawfully held: * * *
* ‘ Seventeenth. To establish such rules and regulations in reference to the management of the interest and business concerns of such county and in reference to the mode of proceeding before such board as they shall deem necessary and proper in all matters not especially provided for in this act or in some law of this State,” etc.

Rules 23 and 29, as adopted by the board of supervisors of Saginaw county and in force at the time the action in question was had, read as follows:

“(23) No motion for reconsideration shall be in order unless on the same day or the day following that on which the decision proposed to be reconsidered took place, nor unless one of the side which prevailed shall move such reconsideration.
“(29) The rules of parliamentary practice, comprised in Cushing’s Law and Practice of Legislative Assemblies shall govern the board in all cases to which they are applicable, providing they are not inv conflict with these rules or with the laws of the State of Michigan.”

It is not claimed that there is any other rule regulating the procedure on motions for reconsideration. Rule 1266 of Cushing’s Law and Practice of Legislative Assemblies is as follows, viz.:

“ It is usual in our legislative bodies, and in other deliberative assemblies of a permanent character, to regulate by a special rule the time, manner, and by whom a motion to reconsider may be made; as, for example,'that it shall be made only on the same or a succeeding day, or within a given number of days; by a member who voted with the majority; or at a time when there are as many members present as there were when the vote was passed; but, where there is no special rule on the subject, a motion to reconsider may be made at any time, or by any member, precisely like any other motion, and subject to no other rules.”

Respondent contends that the adoption of a motion to reconsider is not “the final passage or adoption of any measure or resolution, or the allowance of any claim against the county,” within the meaning of the statutory provision quoted; that such action is not final or complete; that it merely brings the subject-matter of the original action again before the acting body for its final disposition, and that the provisions of the statute, rules, and legislative manual quoted explicitly authorize the ruling of the chairman that the motion was carried. Relator claims, on the other hand, that the decisions of this court have established that in such a case the motion requires for its passage a majority of all the supervisors elect, citing Stockdale v. School District, 47 Mich. 226; Whitney v. Village of Hudson, 69 Mich. 189; Naegely v. City of Saginaw, 101 Mich. 532; People v. County Officers of St. Clair, 15 Mich. 85; Peck v. Board of Sup’rs of Berrien Co., 102 Mich. 346.

There is much force in the reasoning of respondents’ counsel; but we think, as contended by counsel for relator, that the question is concluded by the decisions of this court. In Whitney v. Village of Hudson, supra, the precise question was passed upon. The common council in that case, on April 24, 1882, had passed a resolution to pave Main street by a two-thirds vote, as required by the charter. On the 1st day of May following it was attempted to reconsider and rescind this resolution. Of this action Mr. Justice Champlin, speaking for the court, says:

“After passing the original resolution of April 5 and the amendatory resolution of April 17, 1882, the common council on the 1st day of May, 1882, reconsidered the vote of April 24, 1882, adopting the resolution by a vote of three in favor, and two against. A motion was then made that the resolution to pave West Main street be rescinded, which was lost by a vote of two in favor and three against the motion. No vote was ever afterwards taken to pass or adopt the resolution of April 24th, but the council proceeded as if it had never been reconsidered. This resolution lay at the foundation of the whole proceedings to pave Main street, and if it was reconsidered, and not afterwards passed, the proceedings to assess the expense must fail fob that reason. * * *
“It is claimed, also, by the defendants’ counsel, that the vote-to reconsider was not^carried; that where, by statute, a vote of two-thirds is required to pass a resolution, it cannot be reconsidered or rescinded, except by a two-thirds vote. This was declared to be the law in the case of Stockdale v. School District, 47 Mich. 226, where the motion was to rescind. And, where the body has adopted no rule regulating the practice upon motions for reconsideration, it is not perceived why the same ruling should not apply.
“ The law requires a vote of two-thirds of the members of the body to pass the act in the shape it is in when the vote is taken. Two-thirds are satisfied with it as it then reads, and no reason exists why a majority less than two-thirds can bring the resolution again before the body for the purpose of changing its features or postponing action. There should be some stability in legislative action which is passed under the requirements of a law calling for a vote, of two-thirds of its members, and it should remain as the two-thirds have passed it, unless the same number desire a further consideration of the measure.”

It becomes necessary, therefore, to consider whether the constitutional provision relied upon by relator authorized the action taken.

Section 6 of article 6, so far as it relates to the question now before us, provides:

“ The legislature may provide for the election of more than one circuit judge in the judicial circuit * * * in which the county of Saginaw is or may be situated. * * * And the circuit judge or judges of said circuits, in addition to the salary provided by this Constitution, shall receive from their respective counties such additional salary as may from time to time be fixed and determined by the boards of supervisors of said counties.”

The meaning of the words “additional salary” is the question of prime importance. Was it the intention of the people, in adopting this amendment, that the boards of supervisors in the designated counties might reverse the usual course of proceeding in such cases and fix and determine the additional salary at the end of the term to be compensated for ? Can they fix one salary for one circuit judge and another and different salary for the other circuit judge in Saginaw county? In the county of Wayne, can the board of supervisors from time to time consider the amount of work done by each and the relative merits of the several circuit judges, and provide a different salary for each of the six for the period which has then elapsed, or give additional salary to one and none to the other five ? In other words, does the salary attach to the man’or to the office ? In the case before us, the board of supervisors has not attempted to fix a salary for the office of circuit judge, but has attempted to compensate one circuit judge for doing more than his share of ithe work. We are satisfied that this action is not warranted by any proper construction of the constitutional provision in question. We think that the salary must be fixed and determined for the office, and not for the particular incumbent. The powers and duties of the two circuit judges in Saginaw county are fixed and determined by the Constitution and gendral laws of the State, and are identical. The power of the board of supervisors is limited, under the constitutional provision, to fixing, from time to time, if they see fit, an additional salary for the office of circuit judge. It is the theory of our Constitution and laws that each of the circuit judges will usually perform all of the duties of his office, and provision is made for inability so to do, and the constitutional provisions for salaries must be construed with reference to this theory.

Act No. 75 of the Public Acts of 1889, providing for an additional judge in the Tenth judicial circuit, provides (section 279, 1 Comp. Laws):

“ The two judges of said circuit shall have equal and co-ordinate powers and duties, and one of them shall constitute a quorum for the transaction of business. The judge holding office at the time when the judge elected under this act shall enter upon the duties of his office shall assign and apportion from time to time, by order on the journal of the court, in general terms, the business of said •court between them, for the succeeding calendar 3mar. The other judge shall assign and apportion the business of the court for the next year; and in this manner the two judges and their successors shall alternate in assigning and apportioning the business of the court.”

In section 281 it is provided:

“ In case of the absence, illness, or inability from other cause of either judge to do any of the business assigned him, the same shall be done by the other.”

Section 296 provides:

“That whenever the business of any of the circuit courts of-this State has accumulated beyond the capacity of the judge or judges of such circuit court to properly -dispose of, it shall be the duty of the governor of the State, upon such showing of facts and request made by the presiding judge of such court, to designate a judge or judges of some other circuit or circuits in this State whose official duties will permit for the time being to hold court temporarily for such time or term as he may deem advisable and the judge or judges so designated shall perform the duties and hold court for such time or term in like manner and with like effect as they severally and respectively could have done if they had been elected to such office in the circuit where such duties as judge are performed.”

Section 300 provides:

“ That in case of the death, resignation, removal from the judicial circuit in which he was elected, inability to discharge the duties of his office, or from any cause, a vacancy shall exist in the office of circuit judge in any judicial circuit in this State, it shall be the duty of the governor, on being informed by the county clerk of any county in said circuit of such vacancy or inability, to designate any one of the justices of the Supreme Court, or any one of the circuit judges of the State, to hold such term or terms in such judicial circuit as he may direct; and the judge so designated shall perform the duties, and hold the term or terms in like manner, and with the like effect as he could do if he had been elected to such office in such judicial circuit, and until the vacancy shall be duly filled by appointment or election, as provided by law.”

We think that the term salary,” as used in section 6 of article 6, has the same meaning as in section 1 of article 9, and contemplates “a fixed annual or periodical payment for services depending upon the time and not upon the amount of services rendered.” Benedict v. U. S., 176 U. S. 357, and cases cited; Cane v. Mayor, etc., of City of New York, 34 N. Y. Supp. 675. The salaries provided for under section 6 of article 6 are to be fixed and determined in advance, and, when so fixed, each of the circuit judges in the particular county is equally entitled thereto. In case of the illness or inability from other cause of his associate to perform his official duties, the statute required the relator to perform them; and if we aré to hold that it is competent for the board of supervisors to compensate him for the performance of his statutory duty, because the amount thereof is increased by the inability of his associate to perform his part, then it seems clear that we must also hold that the whole matter is committed to the unrestrained discretion of the board of supervisors, and that it may grant to one judge additional compensation whenever, in its judgment, he has earned it or deserves it. We think the constitutional provision is not subject to a construction which would produce such a result.

The petition is denied, but without costs.

Grant, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Blair, J. Per Curiam.

text:
    BENSON v. RAYMOND.
    1. Cancellation op Instruments — Deeds—Capacity op Grant- or — Evidence—Suppicienoy.
    On a bill to set aside a deed on the ground of the mental inoompetency of the grantor to execute it, evidence examined, and held, to sustain a decree granting the relief prayed.
    2. Same — Demonstrative Evidence — Production op Alleged Incompetent in Court.
    On a bill to set aside a deed on the ground of the mental incompetency of the grantor, it is proper to produce him in court at the -hearing.
    3. Same — Evidence—Admissions by Grantee.
    On a bill against heirs of the grantee in a deed to set it aside on the ground of the mental incompetency of the grantor to execute it, admissions by the grantee respecting the grantor’s competency are admissible in evidence.
    ON MOTION POR REHEARING.
    Cancellation op Instruments — Evidence — Admissions by Grantee.
    On a bill against heirs of the grantee in a deed to set it aside on the ground of mental incompetency of the grantor, declarations of the grantee tending to show such incompetency, made before she acquired title, are not admissible in evidence.
    Appeal from Hillsdale; Chester, J.
    Submitted November 14, 1905.
    (Docket No. 126.)
    Decided December 22, 1905.
    Rehearing denied July 23, 1906.
    Bill by C. L. Benson, administrator of the estate of Albert Hinkley, deceased, and others, against Tensey Raymond and John Bailey to set aside a deed. From a decree for complainants, defendants appeal.
    Affirmed.

      Fellows & Chandler, for complainants.

      Clayton ■ A. Powell and B. E. Sheldon {Allen B. Morse and Henry C. Smith, of counsel), for defendants.
   Blair, J.

The bill of complaint in this case was filed by Albert Hinkley in his lifetime to set aside and annul a deed of 40 acres of land to his wife, Mary J. Hinkley, executed and recorded ‘July 28, 1903, on the ground of his mental incompetency to execute the same. Decree was entered in accordance with the prayer of the bill, to reverse which defendants prosecute this appeal.

After the hearing of the case, and on September 20, 1904, complainant died, and the suit was revived in the name of the present complainants. At the time of their marriage, some 15 or 20 years before the hearing, complainant was a widower with three’children, Elrie, Horace, and Anna, and his wife, then Mrs. Bailey, was a widow with three children, Susie, Tensey, and John. No children were born to them after the marriage. At the time of the marriage Mr. Hinkley was the owner of the 40 acres in question in this suit, where all of his children were born, and Mrs. Hinkley was the owner of 90 acres, about Ik miles distant therefrom. About 1894 or 1895 complainant had a stroke of paralysis. In February of 1901 he suffered a severe shock of apoplexy, resulting in paralysis of the left side. He was unconscious from this attack for six or eight days. The physician who attended him testified:

Q. Well, you describe his mental condition after his recovery. - ,
“A. Well, it was somewhat weakened.
Q. Is that necessarily a condition of the mind of a paralytic after having a severe stroke ?
“A. It is with all of them.
Q. Yes; that is the general practice ?
“A. Yes, their head is never as good afterwards.”

At the time of executing the deed complainant was nearly 70 years old. In February of 1904 Mrs. Hinkley died, and thereafter her daughter, Susie Newell, executed a quitclaim deed to complainant of her interest in the 40 acres, but the other children, the defendants herein, refusing to do so, complainant filed this bill in June, 1904.

The sole question in the case is whether the complainant was competent mentally to execute the deed. The circuit judge found that he was not, and we have come to the same conclusion. We agree with counsel for contestants that much of the opinion evidence introduced by complainants’ counsel was incompetent; but, eliminating this testimony from consideration, we are still of the opinion that the decree was right. Mrs. Susie Newell was a daughter of the grantee in the deed, and her financial interest would naturally lead her to desire that the deed should be sustained. She testified, however, in favor of complainant, and we regard her testimony as conservative, candid, and entirely worthy.of credit. Mrs. Newell was with her mother more or less during her last sickness, and testified that:

“She always claimed whenever she would talk about Mr. Hinkley to me, in the condition that he was, that he wasn’t capable of caring for himself or doing any business.”

That for the last two or three years her mother had really done the business.

“ I gave that deed back to my stepfather because it was right. It was my mother’s wishes, and it was mine. * * *
“She told me, after Mr. Bennie Hinkley had .taken him home, that she wanted any one of the Hinkley family that would take Mr. Hinkley and take care of him to have the 40 acres back again. * * *
“He would do things that was awfully funny. It seemed to me that, if he was in his right mind, he wouldn’t have done them. * * * Why, he would do some funny things when I would be there, you know, and ma would make the remark, ‘ Why, grandpa wasn’t capable of doing as he once did,’ and such things as that, you know, would be brought up.”

She says he would go away and not seem to know why he went, ‘' but he went just like a child.” She also speaks of his eating some chicken which had been put on a plate for his wife when she was sick in bed, as well as the portion on his own plate, and apparently not knowing that he had eaten both portions. “That is one act I can think of. Of course, I could give you others, if I could think— lots of such little things, of course.” Charles Carpenter rented the 40 acres in January, 1903, and transacted the business entirely with Mrs. Hinkley, and, when he would come to settle, he would settle with her; that he was not able to have any connected conversation with Mr. Hinkley.

William Ware testified:

“ I heard her say a great many .times that Albert did not have any more mind than a child, that she had to dress him and show him how to dress, that in putting on his boots he was liable to undertake to put them on with the heel ahead, and that in putting on his socks he would sometimes take hold of the leg with one hand and toe with the other and try to put it on in the middle, and swear that they wasn’t made right. I have heard that a number of times, the same thing over. Mrs. Hinkley told it in her own house and in our house, and I saw Albert myself undertake to put on his coat and get his hand in the sleeve and say that somebody had sewed up the sleeve, or that the coat wasn’t made right. That is my own observation. % # #
“ Q. Now, were these occasions frequent, when Mrs. Hinkley told you with reference to the things he would do, and that his mind was that of a child — was that frequent ?
“A. Oh, yes, she told me this after she got to Pittsford and before.”

In the instances given by defendants’ witnesses of business transacted by complainant, we are satisfied that they were not so far conducted by complainant as to establish his competency to transact- business for himself. In the case of borrowing the $500 and giving the mortgage to Dr. McKellar, he testifies that they came together at first:

Q. She did some of the talking, I suppose?
“A. Yes; some of it.
Q. And womanlike, I suppose ?
“A. The same as all the rest of them.
Q. And did she explain what was going to be done with the money? They were going to buy a place in Pittsford?
“A. Yes, sir.
Q- And you thought that would be a good thing for those old people to get off from the farm and get into Pittsford ?
“A. Yes.
Q. And so you made the loan ? Was it made that day ?
“A. No; they came and saw me in regard to the loan, and then they come up to Hillsdale here. The loan was made in Hillsdale.
Q. Come up and looked over the record ?
“A. Yes.
£ Q. And then you took the mortgage here ?
“A. Yes, sir.
Q. She was here ?
c£A. She was; yes.
•‘£ Q. She did some of the talking here ?
“A. Part of it.
“ Q. Yes; most of it, didn’t she ? •
“A. Well, she could talk better than he could.
Q. And she did most of it ?
“A■. Hinkley was a man.
££ Q. And she seemed to know all about the deal, didn’t she — what they were going to do with the money ?
“A. Yes, sir.”

The scrivener who drew and took the acknowledgment of the deed testified that Mrs. Hinkley spoke to him about it first, and that no explanation was' made of the effect of the deed.

Q. What did he tell you that day ? Do you remember anything that he said to you that day ?
A. I don’t remember anything that he said. I could not say — I could not say that I had any conversation with him, any more than prompting him in regard to getting-up to the table and signing the deed when he signed it.”

She was present when the witness Rarick tried to buy some timber from her husband. Rarick testified:

“Well, he said it was not enough, and he would not let it go. She seemed inclined to have him sell it; talked with him in regard to selling it; thought they had better sell it and put the money into some fences there. He would not let it go, and I went away. A few days after that, I met Mrs. Hinkley on the street in Pittsford, and she said she guessed, if I went down, that I could buy that timber; that Albert had about made up his mind that he would let it go. So I went down and asked him if he had made up his mind to let me have the timber, and he said he thought he would.”

Defendants’ witness Anna Solomon testified that she had a talk with complainant about his property:

“Q. Well, didn’t you understand, from the way he talked to you, that he wanted it, not to go to his children, but after he was through with it to have it fixed so that she would have it — his wife ?
“A. Why, that is what I thought he meant. That is the way I understood it.”

Redirect examination:

“Q. In his conversation to you he said that he deeded this to her because she had been so good to him, or that in substance ?
“A. Yes, sir.”

The complainant was in court during the hearing. The defendants’ counsel criticise complainants very harshly for bringing complainant into court. We think the criticisms are entirely uncalled for and unjust. It was perfectly proper and in furtherance of justice to bring the complainant before the court, and afford the judge an opportunity of seeing him, and, if he desired, of questioning him. It was the theory of complainants’ counsel that he was incapable of holding a connected conversation. His nephew Ben Hinkley testified that he was incapable, as he sat in court, of holding connected conversation. If defendants’ counsel desired to dispute this testimony, they had an opportunity to apply a decisive test by calling the old gentleman as a witness. They did not do so, and we think their brief shows that the reason was that they were satisfied that at that time he was incapable of testifying.

The person who knew the most about complainant’s mental competency was his wife, and she repeatedly told her daughter, Mrs. Newell, down to the day of her death, that he was not competent to transact business. It is clear from Mrs. Newell’s testimony that her mother never intended to deprive her husband of this land if he survived her, and it is clear from Mrs. Solomon’s testimony that complainant did not intend to part with his interest in. the land completely during his lifetime. His actually doing so is a circumstance of some weight in determining whether he was capable of understanding the obvious effect of his deed in case his .wife died first. It is contended, however, that the declarations and admissions of Mrs. Hinkley were “incompetent, immaterial, and irrelevant.” It is well established that such declarations and admissions are competent, and considering them in connection with the other evidence in the case, as well as the admitted appearance of the complainant in court, we think the court arrived at the proper result. 16 Cyc. pp. 985, 986, 990; 2 Wigmore on Evidence, § 1081; Brown v. Stutson, 100 Mich. 574.

The decree is affirmed, with costs of both courts to complainants.

Grant, Montgomery, Ostrander., and Hooker, JJ., concurred.

ON MOTION EOR REHEARING.

Per Curiam.

Appellants apply for a rehearing. It is argued in support of the motion that most of the testimony of. admissions by Mrs. Hinkley upon which the court relied was incompetent because the admissions were not shown to have been made while Mrs. Hinkley held the title; that the court gave weight to the fact that the alleged incompetent person was present in court and observed by the judge, whereas he was in fact at the time dying of pneumonia and actually died the next day; that, eliminating the incompetent hearsay statements of Mrs. Hinkley, the misconceived and misconstrued testimony of Charles Carpenter, and the appearance of Albert Hinkley before the court, the weight of the evidence is conclusively in favor of defendants.

In consequence of this application, we have again reviewed the record in the light of the briefs furnished upon this application, and are satisfied that the court misconstrued the testimony of Carpenter; that some of the declarations or admissions cited in support of the opinion were incompetent under the rule referred to by counsel and recognized by the court in the opinion, as shown by the authorities cited, and that the fact that the circuit judge observed Mr. Hinkley in court was probably not entitled to any weight. We are still, however, of the opinion that the court reached the right result.

The conclusion arrived at was based principally upon the testimony of Mr,s. Newell, which was competent as to the admissions of her mother and as to the mental competency of Mr. Hinkley. There was no attempt to set out all of the testimony upon which the court relied. Of the witnesses who were referred to, Carpenter testified as stated in the opinion; but we think, on fuller consideration, that his statement that he was not able to have any connected conversation with Mr. Hinkley was a conclusion not based upon an attempt to hold such conversation. Ware’s testimony as to admissions by Mrs. Hinkley was thought to be admissible because he stated she made them after she got to Pit'tsford; but, as it does not appear distinctly that they were made after she acquired the title, they were inadmissible. His testimony as to what he saw himself was admissible. The testimony of the scrivener and other witnesses referred to tended to show, as to the business transactions, that Mrs. Hinkley was really the moving party, and supported Mrs. Newell’s testimony.

We still adhere to our construction of Mrs. Solomon’s testimony, and there was other testimony, which was not referred to in the opinion, which was considered competent and as supporting Mrs. Newell’s. There was nothing in the record to indicate that Mr. Hinkley was dying of pneumonia, and although the attention of defendants’ attorneys-was directly challenged to his appearance in the court-room, they put in no evidence that his condition was due to pneumonia, or any other cause than the progress of paralysis, but contented themselves with testimony tending to show a decided change in his condition.

Our criticism of the brief of defendants’ attorney, upon the basis of the record, was mild.

The application is denied.


text:
    EDWARD HINES LUMBER CO. v. TOWNSHIP OF WELLS.

    Taxation — Personal Property — Ownership—Sales.
    Where, pursuant to a contract of sale of lumber to be delivered on dock, the lumber is piled on docks ready for shipment, its amount and quality estimated by the parties, it is marked as the purchaser’s property, 90 per cent, of the estimated purchase price is paid and the insurance policies assigned, the lumber is the property of the purchaser and properly assessable to him for taxation.
    Error to Delta; Stone, J.
    Submitted November 14, 1905.
    (Docket No. 129.)
    Decided December 22, 1905.
    Assumpsit by the Edward Hines Lumber Company against the township of Wells for taxes paid under protest. There was judgment for plaintiff, and defendant brings error.
    Reversed, and judgment entered for defendant.
    Plaintiff was assessed upon the tax roll of the defendant in 1900 for lumber valued at $30,000. It paid the tax under protest and brought this suit to recover it, claiming that it had not at the time the .title to the lumber, and that therefore it was improperly assessed to it. The facts were stipulated, and, so far as material, are as follows: On March 33, 1899, the I. Stephenson Company wrote the following letter to the plaintiff:
    “We will sell you the cut from our Escanaba logs to to be manufactured by us for the coming season of 1899 at the following prices, on our dock at our steam mill, mouth of the Escanaba river. [Then follow the kinds of lumber, price, etc. ]
    “ We to pile the stock about 90 days. We to insure the stock three months, and any insurance running longer than three months you are to pay.
    “Terms the same as the season of 1898 which are as follows: Two per cent, discount for cash when stock is shipped and invoice rendered with inspector’s certificate attached.
    “ In the fall of the year all stock in pile 90 days and not shipped, to be estimated and an advance of 90 per ■cent, of its value to be made on same in cash.
    “ The vessels Schr. Bertha Barnes and City of Chicago to carry the lumber at the going rate of freight. You to unload vessels in Chicago at your dock, promptly, at' $75.00 per cargo.
    “ Shipments subject to inspection by George F. Gilbert, whose inspection shall be final. Each to pay one-half of the fees. * * *
    “What rejected culls and skoots we make are to be piled, and if more than we want for our Escanaba yard, you are to have them at the market price.”
    This letter was accepted. Plaintiff had bought the prod' ■uct of defendant’s mill on similar terms the season before. A quantity of this lumber, manufactured during September and October, was carried over under the provisions of the contract. Representatives of both parties examined and counted the courses in the piles of lumber, and estimated and marked them “Edward Hines Lumber Co. ” This estimate was in writing, and stated the different binds of lumber, amounting.in value to $36,033.25. February 12th plaintiff paid defendant 90 per cent, of this estimated value, less the 2 per Cent, for cash. In the letter accompanying the check plaintiff wrote: ‘ ‘ Enclosed we hand you our check in payment of 90 per cent, of the lumber, being carried over at Elat Rock.” On February 26th the I. Stephenson Company mailed to plaintiff the insurance policies, accompanied by a statement showing the amount of premiums under the provisions of the contract. Plaintiff paid the amount of these premiums a few days thereafter. Plaintiff did not commence to remove the lumber upon the opening of navigation in the spring of 1900, and on April 20th the I. Stephenson Company wrote plaintiff to make shipments as soon as possible. Plaintiff promised to expedite shipments. The lumber was not shipped on the boats named in the contract, which were owned by the I. Stephenson Company, but by the plaintiff by boats chartered or owned by it. The I. Stephenson Company had nothing to do with the loading or shipping the lumber. Plaintiff sent boats for the lumber when it suited its convenience. During the season of 1899 the I. Stephenson Company used some hemlock lumber in the construction of a bridge. It was not a part of that carried over. Upon learning this the plaintiff claimed the.hemlock timber so used, and the I. Stephenson Company paid for it. The plaintiff not having removed this lumber when the time for assessing property came, it was, as above stated, assessed to the plaintiff. From the stipulated facts the court found that it was the intention of the parties that the title should not pass, and that the title had not passed, and entered judgment for plaintiff.

      F. D. Mead, for appellant.

      Ball & Ball, for appellee.

      Rehearing denied June 4, 1906.

   Grant, J.

( after stating the facts). We think that the learned circuit judge was in error in holding that this case is ruled by Grand Rapids Bark & Lumber Co. v. Township of Inland, 136 Mich. 121. In that case the vendor agreed to sell lumber to be manufactured from logs from his lands, and to manufacture into lumber certain other logs which were to be purchased. The delivery was to be made by the vendor on board the cars. Lumber delivered direct from thé saw onto the car was to be a shilling less in price than that piled in the mill-yard. There had been no inspection, estimate, or delivery. The contract was executory until the lumber was delivered on the cars. In this case the lumber had been piled upon the docks ready for shipment. The amount and quality determined by examination and estimation by the parties. It was set apart and marked as the property of the plaintiff. It was under its control, and it could ship when it chose. Ninety per cent, of the purchase price had been paid. It had taken an assignment of the policies and paid for the insurance. The vendor had performed everything required of it by the contract, and, as this court said in Whitcomb v. Whitney, 24 Mich. 486:

“Everything now depended upon the action of the defendant [the vendee] which might be expedited or delayed as should suit his own convenience.”

For its own accommodation plaintiff left the property upon the dock after the opening of navigation, instead of removing it, as requested by the vendor. It is true that the exact amount might be varied by the inspection in Chicago, but this is not conclusive of the question of title. The retention of the 10 per cent, of the purchase price was to cover any inaccuracy in the amount of the estimate made. The case falls within Byles v. Colier, 54 Mich. 1, in which numerous cases are cited, and Lingham v. Eggleston, 27 Mich. 324, is distinguished from Byles v. Colier. While actual delivery is not essential to the passage of title (Byles v. Colier), we are of the opinion that the delivery contemplated by the contract was made, and the lumber was appropriated to the contract. McElwee v. Lumber Co., 69 Fed. 302.

The question put by Justice Cooley in Whitcomb v. Whitney is applicable here:

“ Suppose the defendant’s vessel had called at the dock for it [the lumber]; could plaintiff have refused to allow him to take the lumber away and maintained replevin for it if he had done so ?”

The reasoning of the learned justice in reply to the question is equally applicable here. See, also, Jenkinson v. Monroe Bros. & Co., 61 Mich. 454. The money which the I. Stephenson Company had received in payment of this lumber would have been subject to assessment for taxation to that company if in its possession at the time provided by law for the assessment of the property. We think it clear that the parties intended title to pass, and that it had passed.

Judgment reversed, and judgment entered in this court for defendant, with costs of both courts.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    JOCQUE v. McRAE.
    1. Bills and Notes — Checks—Maturity—Days of Grace.
    Under section 4877, 2 Comp Laws, a check drawn on a bank, payable 90 days after date, matures at the expiration of 90 days, without grace; section 4871, Id., providing for grace on bills of exchange, etc., not being applicable.

      2. Limitation of Actions — Accrual of Action — Check.
    The drawer of a check payable 90 days after date has the whole of that period in which to provide for its payment, and, since an action will not lie until the day following the expiration of that period, the statute of limitations will not begin to run until that day.
    Error to Delta; Stone, J.
    Submitted November 14, 1905.
    (Docket No. 132.)
    Decided December 22, 1905.
    Assumpsit by Henry Jocque against Peter McRae upon a certain check. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      George Gallup and A. H. Byall, for appellant.

      Davidson & Hudson, for appellee.
   Blair, J.

The opinion of the trial judge so fully, clearly, and correctly disposes of the sole question involved in this case that we adopt it as our own without further comment, as follows:

“This action was brought to recover the amount claimed to. be due upon a certain check or order for the payment of money, a copy of which was set forth in the declaration, as follows:
“ ‘Esoanaba, Mich., 17th Sept., 1896.
»* No. 783.
“ ‘ The First National Bank. Ninety days after date pay Henry Jocque or bearer, 5775.00. Seven hundred and Seventy-five dollars. Pine purchase.
“ ‘ J. L. MoRae & Co., Dec. 16.’
“ The sole defense relied upon by the • defendant at the trial was the statute of limitations.
“I am satisfied that this check became due on Decern-' ber 16, 1896, and that the caséis governed by section 4877, 2 Comp. Laws, and not by section 4871. The last-named section has been upon the statute books of this State since the Revised Statutes of 1846. Section 4877 is a part of Act No. 137 of the Laws of 1867, entitled ‘An act in relation to commercial paper,’and relates to checks, etc., drawn upon banks, banking associations, etc. It being the last expression of the legislature, and applying to bank checks, it must be held to govern in this case. So it is very clear that this check became due upon December 16, 1896, and under the holding of our Supreme Court in Wiesinger v. First National Bank, 106 Mich. 291, and the authority there cited, the defendant had the whole of that day in "which to pay the check, and that action on the check could, not have been brought on that day. A suit begun on that day would have been premature. 2 Am. & Eng. Enc. Law (1st Ed.), p. 396, and cases cited. This being so, the only remaining question is When did the statute of limitations begin to run ?
“That there maybe no misapprehension here, it is well that we look at our statute. It provides (3 Comp. Laws, § 9728) that the following actions (including assumpsit founded upon any contract or liability, express or implied) shall be commenced within six years next after the cause of action accrue, and not afterwards. Now, when did the cause of action accrue ? Manifestly on December 17, 1896. A cause of action does not accrue until the party owning it is entitled to begin and prosecute an action thereon. It accrues at the moment when he has a legal right to sue on it, and no earlier. 19 Am. & Eng. Enc. Law (2d Ed.), p. 193, and cases cited.
“Promissory notes, etc., payable at a fixed time, may be sued upon only after their maturity as thus fixed, and until then the statute does not begin to run. Id. 199.
“ The statute does not begin to run until the day after the day of payment. The cause of action having accrued on December 17, 1896, it is evident, under the Michigan decisions, that the 17th day of December must be excluded in computing the time under the statute of limitations. Such has been the law of this State since the case of Warren v. Slade, 23 Mich. 1. There an action was commenced by summons on March 15, 1869, upon a judgment rendered in a court of record on March 15, 1859, and it was held that it was not barred by the statute, which provides that every action upon such a judgment shall be brought within 10 years next after the judgment was entered, and not afterwards, and that in computing the time upon such statute the day the judgment was entered is excluded. In that case it is very clear that suit could have been commenced on the judgment on the day of its entry. That day must, therefore, be excluded in making the computation. The confusion has arisen by confounding the day when the check became due with the day when the cause of action accrued. When time is to be reckoned ‘ from ’ or after ’ a day named, such day is excluded in the computation. Gorham v. Wing, 10 Mich. 486; Doyle v. Mizner, 41 Mich. 549.
“ The case of Warren v. Slade 'has been cited and followed in Shelton v. Gillett, 79 Mich. 173, and in Chaddock v. Barry, 93 Mich. 542 (18 L. R. A. 337). In Shelton v. Gillett, the rule was applied where a grantee agreed that, if he disposed of the land at any time within five years from the date of the contract, he would pay the grantor a specified sum.
“ The contract was dated December 24, 1883, and the grantee sold the land December 24, 1888, and there was no evidence outside of the contract to show the intentions of the parties as to the computation of time, and the sale was held to have been within five years.
“In concluding the opinion of the court in that case Judge Grant said:
‘ ‘ ‘ The ruling of the court below cannot be sustained without overruling Warren v. Slade. The rule there laid down is the correct one, and is sustained by the weight of American authorities.’
“ I have not gone outside of Michigan to cite the many authorities, both ways, that can be found. An interesting review of the authorities will be found in Wood on Limitations (3d Ed.), § 54 et seq.
“ The summons in this case was issued and placed in the hands of the officer to serve on December 17, 1902. It must be held, therefore, that the statute of limitations had not run in the case, and that the action is not barred.”

The judgment is affirmed.

Grant, Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Blaib, J.

text:
    FLYNN v. HOLMES.
    Appeal and Error — Appealable Decisions — Order Overruling Demurrer to Cross-Bill.
    An order overruling a general demurrer to a cross-bill is appealable.
    Bill by Lawrence Flynn against Andrew J. Holmes to set aside an execution levy and sale. From an order overruling a demurrer to defendant’s cross-bill, complainant appeals: On motion to dismiss.
    Submitted December 5, 1905.
    (Calendar No. 21,407.)
    Denied December 22, 1905.

      Osborn & Mills, for the motion.

      William A. Luby, contra.
   Blaib, J.

The defendant, being a judgment creditor of the complainant, sued a writ of execution out of the circuit court for Kalamazoo county, and levied it upon a house and lot in the city of Kalamazoo, which the complainant occupied and still occupies as his homestead. After all the steps required by law had been taken the property was sold and bid in by the defendant. The time for redemption from the sale has expired. About the time that the period for redemption from the sale expired complainant filed the bill of complaint in this case, in which he prayed that the levy and sale, and all proceedings thereunder, be set aside, vacated, and held for naught. In due time the defendant filed his answer to the bill of complaint, and, among other things, alleged:

“That at the time said levy was made and said sale took place the complainant was the real owner of the land levied upon and sold; that before the levy was made he had borrowed a certain sum of money from one Charles F. Davis, and, to secure the repayment thereof, gave him a deed of the property, and took back from him a land contract as a mere security, for the fraudulent purpose on the part of said Flynn, as this defendant believes and charges, to cover up the said property and to cheat and defraud this defendant by causing it to appear of record that said Davis was the owner of the property, when he was not in fact the owner, thereof, and has never claimed or pretended to be; that complainant has always, since said levy upon said land, claimed the same to be his homestead, and still claims it as such in his bill of complaint and otherwise.”

The defendant, upon the strength of this allegation, prayed relief as by way of cross-bill, and that the transaction between Flynn and Davis might be declared to be a mere mortgaging of the property, and defendant permitted to redeem therefrom. To this answer, as by way of cross-bill, the complainant filed a plea and demurrer, which were heard together and overruled by the court, and leave granted to answer within 14 days. From the order overruling the demurrer and plea, the complainant has taken an appeal to this court.

Defendant now moves to dismiss the appeal, apparently for the reason set forth in the argument of his counsel that the demurrer is not in effect a general demurrer, and that the practice should not be the same as on demurrer to an original bill of complaint. It was held in Hackley v. Mack, 60 Mich. 591:

It was not the intention of the rule to deprive a party of any of his substantial rights secured to him by resort to a cross-bill, but to preserve to him all the benefits to be derived from a cross-bill by stating the substance thereof in the answer. Upon the filing of a cross-bill the complainant had the right to demur or answer thereto, and take issue on the matter set up in the cross-bill, and support his defense by proofs; and there is nothing in the rule which deprives the party of the benefits of such an issue, or the complainant of any rights to which he was entitled,, in making defense to the matter set up in the answer, as fully as he could have done before the rule was made.”

We think the cross-bill, prior to Chancery Rule 9, would have been subject to a general demurrer for the defects specified in the demurrer, and that therefore the order overruling the demurrer was appealable. Greenley v. Hovey, 115 Mich. 504; Robinson v. Kunkleman, 117 Mich. 193; Daschke v. Schellenberg, 124 Mich. 16.

■ The motion is denied, with costs.

Moore, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.