text:
    LEHTO v. ATLANTIC MINING CO.
    1. Master and Servant — Personal Injuries — Warnings — Necessity-Question por Jury.
    Where a boy of unusual intelligence was injured while attempting, within the scope of his employment, to shift a belt in the manner in which he claims he had been accustomed to do and had seen others, including his foreman, do, without instructions to the contrary, the question whether, without instruction or warning, he appreciated and so assumed the risk, is not a question of law but one of fact; and where defendant offers testimony tending to prove that instructions were given, another issue of fact is made, requiring submission of the issue to the jury.

    3. Appeal and Error — Review—Question op Fact.
    This court cannot determine from a model and drawings, assisted by testimony, that a verdict should have been directed for defendant on the theory that it was impossible for plaintiff to have been injured in the manner in which he claims, where the trial judge did not regard the demonstration at the trial as conclusive, and told the jury they had the right to consider it with all the other testinlony.

      3. Master and Servant — Personal Injuries — Action—Instructions — Propriety.
    Where plaintiff testified that he had to exert his full strength and employ his weight to shift the belt by which he was injured, by the means which he employed, and, according to his theory, some older, or stronger, or heavier man might have performed the operation in the same way with less danger, testimony on the part of defendant that no particular force was needed, when the means provided was properly employed, is not controlling upon the question, so as to render erroneous an instruction submitting plaintiff’s physical strength as an element of defendant’s liability.
    4. Same — Instructions—Warning—Burden of Proof.
    Where plaintiff’s case established, and defendant’s emphasized, the youth of plaintiff, his inexperience, the imposition of the duty in the performance of which he was injured, and the performance of the aot in a hazardous way to the knowledge of his superior and director, and the risk which was in fact assumed would and should have been removed by instruction and was therefore not necessarily or properly a risk incident to the employment, an instruction is not erroneous which places upon defendant the burden of proving that the necessary warning was given.
    Error to Ontonagon; Cooper, J.
    Submitted January 24, 1908.
    (Docket No. 163.)
    Decided May 1,1908.
    Case by Toivo Lehto, by next friend, against the Atlantic Mining Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Ghadboume & Bees, for appellant.

      John Kiiskila (Burritt & Burritt, of counsel), for appellee.

        As to the duty to warn or instruct servant, see note to James v. Rapides Lumber Co. (La.), 44 L. R. A. 33.

   Ostrander, J.

Plaintiff, a boy 15 years old, was employed by defendant to perform certain duties connected with the operation of what are designated in the record “roughing machines,” which perform the operation of separating copper and rough sand. Defendant had a number of these machines and on the same floor with them a “grinder” run by a 12-inch belt passing from an elevated line shaft to and over a 36-inch pulley, running by the side of the grinder and close to the floor of the room. By the side of this pulley was an “idler,” or loose pulley, to which it was customary to shift the belt when it was desired to stop the grinder. The belt had a speed of approximately 2,000 feet per minute, the upper side moving toward the pulley, the pulley revolutions being 230 per minute. No shifting device had been installed. On December 10,1904, plaintiff attempted to shift this belt and was injured. He used a stick, kept for the purpose, applied it to the belt, and neither he nor any one else knows just what thereafter happened. In a suit brought to recover for his injuries, he recovered a verdict and judgment. In seeking a.reversal of the judgment, appellant presents three main contentions, which are:

“(1) The motion of defendant made at the close of plaintiff’s case and also at the close of the testimony to direct a verdict in favor of the defendant, and the request to charge to the same effect, should have been granted and given.

“(2) The court erred in submitting to the jury as an element tending to establish defendant’s liability, that plaintiff did not have physical strength to enable him to perform the labor in question without injury to life or limb.

“(3) The court erred in charging the jury that ‘the burden of proof is on the defendant to show that the plaintiff was warned.’”

In connection with the first he urges:

a. “The danger incurred by plaintiff in attempting to shift the belt in the manner in which he claims he did attempt it, was obvious.”

b. “It must have been obvious and apparent to and capable of being fully appreciated by plaintiff, notwithstanding his age and alleged want of experience.”

c. “ Under any aspect of the evidence and considering his age and experience, plaintiff was guilty of contributory negligence.”

d. “It is indubitably established that plaintiff could not have made the attempt in the manner he has described, and therefore that he has given a false account of the accident.”

1. Plaintiff described the operation, as he attempted to perform it, substantially as follows: He stood upon a sill or timber some 15 inches above the floor of the room, with the pulley, and of course the belt, in front of him, grasped the stick with a hand at each end, leaned over the pulley, applied the stick' to the belt (the belt running toward him),

“Pushed the belt with all my might and weight on it. I weighed about 130 or 135 pounds. I had to use all my strength and all my weight to throw the belt off. On the 10th of December I don’t know if I threw the belt off at this time or not. I tried to. The pulley and belt were in motion; it was running very fast. I got jerked on my hands, but-1 didn’t know anything after that.”

Counsel agree that it was exceedingly dangerous to attempt to shift the belt in the manner indicated. It appears that plaintiff was hired by defendant in July, 1904. He worked at the settling tank not quite a month, then at the “tables’’for more than two months, then at the “roughing machines.” During the last week of his employment, it was his duty as night shift to shift the belt for the purpose of stopping the grinder, and this he did each night, with perhaps one exception, from Monday up to Saturday night, when he received the injury. There was a guard rail in place between the grinder and the belt and the safe way to shift the belt was to stand behind this guard rail, lean over it, and, using the stick, force the belt from the fast to the loose pulley.

The testimony on the part of the defendant tends to prove that on Monday night of that week the shift boss, a man 49 years old, who had been working in stamp mills from the time he was 14 years old, and had served in almost every capacity in which a boy ánd man could be employed, finding that the plaintiff, after properly performing the other duties of his position, was about to shift the belt, came from his own position to see whether he proposed to shift it in a proper manner. The boy took a position facing the pulley, substantially as he described his position on the night he was hurt. .But he held the stick, not with one hand at each end thereof, but with both hands at one end. The boss called to him, told him he must not do that in that way, took the stick, went in' behind the guard rail, and with the guard rail across his chest pushed the belt off, saying to him:

“When you shift the belt that way your stick gets in there and you get in danger and you are killed. * * * You musn’t do it because you get the stick in there and you get under and you get killed.”

And plaintiff said: “Yes, I see.”

On Tuesday night, the boy took the same position he had taken the night before, but when he saw the boss was looking at him he went around behind the rail and pushed the belt off. On Wednesday night, the same thing happened, and the boss called to the lad and motioned to him and the boy again went in behind the guard rail and pushed the belt off, and that night after the machine had been oiled he said to the lad again:

“You musn’t put the belt off the way you did last night. • You will get killed.”

The boy said that other boys did that, to which the boss replied:

“That doesn’t make any difference. Never mind what the other boys do, you do it the way I tell you to do it and you will be all right.”

If we understand the record, on Thursday and Friday nights the boss knew or assumed that the lad shifted the belt in the right way. He did not have to be told when to shift it or to perform any of his duties. He went about them as was required, without any commands. On Saturday night, the boss noticed the machine was checked and that it then started again. Looking over, from the position he occupied, he could not see the lad, and, coming down from the platform, found him lying under the pulley. It was his judgment that he had attempted to use the stick in the manner in which he had been instructed not to use it, and got drawn under the pulley.

The testimony on the part of the plaintiff was that about a month before he began work on the roughing machines he was told by the shift boss to throw this belt, and did it; that the plaintiff had seen somebody do it before, throwing it off with a stick; that he took the stick with both hands and pushed the belt on the loose pulley as he had seen others do it; that he never had' any instruction concerning the throwing of the belt and had never had any experience except in throwing this belt; that when he was told to throw the belt he took the stick and threw it off; that during the last week of his employment he, in the presence of the shift boss, shifted the belt six or seven times, using the stick and standing as he claims he stood on the night he was injured. He testifies that he had seen one of thé other boys employed there, and the “skimmer ” as he was called, and the shift boss himself, throw the belt in the same way. He denies having had his attention called to or knowing about the guard rail. At the trial, plaintiff was called upon to make a demonstration. in the presence of the jury. Accurate distances were used and the theory of defendant that plaintiff could not have reached the belt from his position, holding an end of the stick in each hand, and that he must have held the stick by one end only, was exploited. With this sharp conflict of testimony, the trial judge refused to direct a verdict for defendant.

We have re-examined Monforton v. Pressed Brick Co., 113 Mich. 39; Hess v. Woodenware Co., 146 Mich. 566; Berlin v. Mershon & Co., 132 Mich. 183; Van Wyck v. Dickinson, 148 Mich. 418; White v. Owosso Sugar Co., 149 Mich. 473; Pearce v. Quincy Mining Co., 149 Mich. 112, cited and relied upon by the plaintiff in error. We find in them nothing which warrants the ruling that this case should not have been submitted to the jury. Let it be assumed that the danger — some danger — was obvious. Let it be assumed, also, that the testimony given by the plaintiff was true. We have then the case of a boy, who counsel concedes and the court . certifies was at the time of the trial of more than ordinary intelligence, employed to do the very thing in doing which he was injured. He had seen his boy predecessor in the place shift this belt, had seen a workman shift it, had seen his boss, director and instructor, shift it, had himself shifted it on five or six occasions. Upon the occasion of his injury, he attempted to shift it as he had seen the others do and as he had himself performed the operation. Undoubtedly it was dangerous work. . But it was a part of the work to be performed, a part of plaintiff’s duty, and upon the assumption which is indulged it could be performed as he performed it, safely. He had the right to suppose, in the absence of instructions, that he was doing his work, dangerous though it was, in a proper way. It was reasonably probable that his way of doing the work was a safe one if he used the skill and caution he had theretofore used and had seen others use. His way had the sanction of experience and of authority. Having been injured, his employer denies liability while asserting that there was a safe way to do the work; a way which, to plaintiff’s knowledge, was never employed by the men or by the boss, and never made known to him. In such a case, the question whether, without instruction or warning, he understood — appreciated—and so assumed the risk, is not a question of law but one of fact. See Allen v. Jakel, 115 Mich. 484; EIrtz v. Pierson, 130 Mich. 160; Kolodziejski v. Seestadt, 143 Mich. 38. And defendant having offered testimony tending to prove that instructions were given, another issue of fact was made.

As to the demonstration in the presence of the jury, it is clear that the members of this court cannot appreciate or determine from the model and drawings, aided by the testimony, how successful it was. It would appear that it would be impossible for plaintiff, standing where he said he stood and holding the stick in the manner he described, to apply it to the belt, at the point indicated by him, without extending his body at full length over the pulley and lying down, so to speak, upon the belt. It is evident that the trial judge did not regard the demonstration as conclusive, and we are not in a position to reverse him upon this point. He told the jury they had the right to and should consider it in connection with all other matters in evidence.

A careful reading of the charge does not convince us that what the court said to the jury upon the subject of plaintiff’s physical strength was prejudicial to defendant. Plaintiff testified that he had to exert his full strength and employ his weight to shift- the belt by the means' he employed. According to plaintiff’s theory of the case, some older, or stronger, or heavier man might, it is to be inferred, have performed the operation, in the same way, with less danger. The testimony on the part of defendant to the effect that no particular force was needed when the stick was properly applied to the belt, is, clearly, not controlling of the question.

The court said to the jury in his charge*.

“If the jury find that the plaintiff did not appreciate the danger because of his youth and inexperience, and that the defendant knew or should have known of the plaintiff’s inability to appreciate said danger, then it was the duty of the defendant to caution and warn the plaintiff how to throw said belt so that the plaintiff might have knowledge equal to the knowledge of the defendant, and the burden of proof is on the defendant to show that the plaintiff was warned.”

.- When the entire charge is read and considered, with reference to the theories of the parties and the testimony adduced, this portion of the charge stated the law correctly. Plaintiff’s case established (and defendant’s case emphasized), the legal duty of the defendant to instruct. It established the youth of the plaintiff, inexperience, the imposition of a duty to perform the act of shifting the belt, the performance of the act in a hazardous way, to the knowledge of plaintiff’s superior and director. The risk which was in fact assumed should have been removed and would have been by instruction. It was not necessarily or properly a risk incident to the employment. The principle involved is recognized in Swoboda v. Ward, 40 Mich. 423; King v. Lumber Co., 93 Mich. 172; McDonald v. Steel Co., 140 Mich. 401.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Moobe, J.

license: Public Domain

text:
      In re KLEIN’S ESTATE.
    1. Descent and Distribution — Persons Entitled — Grandnephews.
    Under 3 Comp. Laws, § 9064, subd. 2, and Act No. 331, Pub. Acts 1905, § 1, subd. 7, grandnephews and grandnieces of a woman dying intestate and leaving no husband, father, mother, children, or issue of deceased children, are not entitled to share by right of representation with sisters and the children of deceased brothers and sisters in the distribution of intestate’s personal estate.
    2. Statutes — Construction—Ambiguous Provisions.
    Where a statute is plain and unambiguous in its terms, the courts have nothing to do but to obey it. They may give a sensible and reasonable interpretation to legislative expressions which are obsoure, but they have no right to distort those which are clear and intelligible. The fair and natural import of the terms employed, in view of the subject-matter of the law, is what should govern.
    Error to Wayne; Hosmer, J.
    Submitted February 18, 1908.
    (Docket No. 30.)
    Decided May 1, 1908.

      The probate court ordered the distribution of the estate of Sevilla Klein, deceased, among the sisters and children of deceased brothers and sisters. Julius J. Christensen, a grandnephew, appealed to the circuit court. There was a judgment sustaining the appeal, and Marie Cecilie Nielsen and others bring error.
    Reversed.

      Russel, Campbell, Bulkley & Ledyard, for appellants.

      Miller, Smith, Alexander & Paddock, for appellee.
   Moobe, J.

Sevilla Klein died intestate, leaving no husband, father, mother, brothers, children, or issue of deceased children, her surviving. Her estate consists partly of personal property.; and this appeal involves its distribution. The probate court ordered distribution among the sisters and children of deceased brothers and sisters. An appeal from this order was taken to the circuit court by a grandnephew of said intestate, claiming that grandnephews and grandnieces were entitled to participate in the distribution by right of representation. The circuit court sustained the appeal. The case is brought here by writ of error.

The only point in controversy is whether grandnephews and grandnieces are entitled to share in the distribution of the personal property belonging to the estate of Sevilla Klein. This involves the construction of certain portions of the statute relating to the distribution of personal property, and of the statute of descent. Subdivision 2 of section 9064, 3 Comp. Laws7 reads as follows :

“If the intestate shall leave a husband or widow and no issue, one-half of the estate of such intestate shall descend to such husband or widow and the remainder to the father and mother of the intestate in equal shares; and if there be but one of the parents living, then to the survivor alone; and if the intestate shall leave no issue, husband or widow, his or her estate shall descend to the father and mother in equal shares, and if there be but one of the parents living, then to the survivor alone; and if the intestate shall leave no issue, father or mother, his or her estate shall descend subject to the provision herein made for the widow or husband, if a widow or husband survive the deceased, in equal shares to his or her brothers and sisters and the children of deceased brothers and sisters by right of representation. The provision herein made for the widow shall be in lieu of dower, unless she shall within one year after the appointment of an administrator of the estate of the intestate begin proceedings for the assignment to her of dower in the intestate’s estate, in which case her interest in such real estate shall be limited to her dower therein, and the residue of such estate shall then descend as herein provided for the portion thereof not taken by such widow.”

This statute was construed in Re Chapoton’s Estate, 104 Mich. 11, where it was held that, under the wording of the statute we have quoted, grandnephews and grandnieces could not share in the estate.

The other provisions of the statute requiring construction, read as follows:

“In case any femme covert shall die possessed of any personal estate, her sole property, or any right or interest therein not lawfully disposed of by her last will and testament, the same shall, after the debts of the deceased, funeral charges and expenses of administration are paid, be distributed as follows: One-third to the husband, and the remaining two-thirds to her children, or- the issue of any deceased child or children, if any there be, by right of representation, except that if there be but one child, or the issue of a deceased child her surviving, then such residue shall be divided between such husband and such child, or the issue of such deceased child, as aforesaid, in equal proportions, and if there be no husband nor child of the intestate living at her death, her estate shall be distributed to all her lineal descendants, and if all said descendants are in the same degree of kindred to the intestate, they shall share the estate equally, otherwise they shall take by right of representation. If there shall be no child or issue of any deceased child her surviving, one-half of said residue shall go to the husband of the deceased and the other half to her father and mother, if living, in equal shares. If either parent be deceased, such share shall go to the survivor, and if both parents be deceased, such share shall be distributed equally to the brothers and sisters and the lineal descendants of any deceased brother or sister, bjr right of representation; and if there shall be neither father nor mother, nor brother nor sister, nor children of such brother or sister surviving, then such residue shall go to the surviving husband; and in any other case, the residue, if any, of the personal estate shall be distributed in the same proportion and to the same persons, and for the same purposes as prescribed for the descent and disposition of the real estate.” Act No. 331, Public Acts 1905, § 1, subd. 7.

It is insisted by counsel for appellee:

“ That when the legislature in 1905 amended the statute of distribution, by striking out the word ‘ children ’ and replacing it with the words ‘lineal descendants,’ they intended to broaden the statute sé as to give it the force and effect it formerly had, when issue of deceased col-laterals of intestate were allowed to take. If read literally, the 1905 amendment is inharmonious, inconsistent and ambiguous, and under such circumstances it becomes the duty of the court to so interpret the statute as to carry out the evident intent of the lawmaker, if such intent can be ascertained from the whole act. If construed as we contend it should be, the amendment at once becomes harmonious and intelligible. Moreover, no possible, valid, or conceivable reason can be or is assigned by the appellants why the legislature should have intended to dispose of the property of intestates, as they contend it should be' distributed, under their construction of the statute.”

If the legislature intended to-effect the result for which counsel contend, it was easy for it to indicate its intent by appropriate language. This it did not do. The language employed by it is not equivocal or ambiguous; it states clearly:

“ In any other case, the residue, if any, of the personal estate shall be distributed in the same proportion and to the same persons, and for the same purposes as prescribed for the descent and disposition of the real estate.”

- We cannot give these words the construction they were given in the court below, without reading into the-statute words which the legislature did hot put there. In Peo ple, ex rel. Twitchell, v. Blodgett, 13 Mich. 127, it was said:

“ There are certain well-settled rules for the construction of statutes which no court can safely disregard. Where the statute is plain and unambiguous in its terms, the courts have nothing to do but to obey it. They may give a sensible and reasonable interpretation to legislative expressions which are obscure, but they have no right to distort those which. are clear and intelligible. The fair and natural import of the terms employed, in view of the subject-matter of the law, is what should govern.”

Township of Leoni v. Taylor, 20 Mich. 148, at page 154:

‘ ‘ The consequence of adopting the proposed interpretation would be the rejection, in substance, of those qualifications of the act which seems to us to be plainly a part of it, and this we apprehend would be tantamount to a judicial amendment of the law. In every exposition of a statute, the intention of the legislature is undoubtedly the end to be sought; but the construction to be given should not be repugnant to the clear meaning of the words. The courts are not at liberty, in order to effectuate what they may suppose to have been the intention of the legislature, to put a construction upon the enactment not supported by the words, though the consequences should be to defeat the object of the act. When the meaning of the words is plain and obvious, the only safe course is to suppose the legislature to have intended those things which the words denote, and to abstain from all attempts to discover a different meaning by suppositions and conjectures.”

See, also, Wilt v. Cutler, 38 Mich. 189; Reithmiller v. People, 44 Mich. 280; Face v. City of Ionia, 90 Mich. 104; People v. Crucible Steel Co., 150 Mich. 563, and the cases there cited.

The judgment is reversed, and new trial ordered.

Grant, 0. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


author: Blair, J.

text:
    WALDO v. JACOBS.
    1. Ejectment — Action—Evidence—Foundation of Defendant’s Claim.
    In an action of ejectment against- one in possession of land under arrangement with plaintiff’s ancestor, evidence examined, and held, to show that defendant based his claim and his right to hold the land depended solely upon a lease executed by plaintiff’s ancestor.
    2. Landlord and Tenant — Termination of Relation —Notice to Quit — Necessity.
    A tenant holding possession after the death of his landlord, and claiming under a lease executed by decedent which is void as a matter of law, is not entitled to notice to quit as a tenant by sufferance.
    3. Same — Lease — Agricultural Lands — Validity — Constitutional Law.
    A lease of agricultural lands for a period of 20 years from the date of its execution, placed in escrow to be delivered upon ' the death of the lessor, takes effect upon delivery in accord- • anee with the terms of the deposit, and where such delivery occurs more than 12 years prior to the date of expiration of the lease, it is void under section 12, article 18, of the Constitution.
    Error to Ingham; Wiest, J.
    Submitted February 18, 1908.
    (Docket No. 92.)
    Decided May 1, 1908.
    Ejectment by Miranda Waldo against Mark S. Jacobs. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      William T. Wébb and O. J. Hood, for appellant.

      W. F. Cairns (Bollin H. Person, of counsel), for appellee.
   Blair, J.

This is an action of ejectment prosecuted by Miranda Waldo, widow of Scott Waldo, to recover possession of a farm which descended to her upon the death of her husband, intestate, October 3, 1906. On the 18th day of January, 1900, the defendant, Jacobs, was occupying the farm substantially as manager under an arrangement made in 1897, whereby he was to put in his time against Mr. Waldo’s farm, they to stock it together and each take half.

On the last-mentioned day, Jacobs and Waldo executed a written lease, whereby Waldo leased the farm to Jacobs,—

‘ ‘ To have and to hold the said demised premises with the appurtenances unto the said party of the second part, his executors, administrators and assigns, for and during the full end and term of twenty years from and after the 18th day of January, 1900; fully to be complete ánd ended, the said party of the second part yielding and paying during the continuance of this lease, unto the said party of the first part, his heirs and assigns, for rent of said premises for said term of twenty years the sum of five dollars, payable as follows: Five ($5.00) dollars on or before the first day of January for each and every year during the continuance of this lease.

“And the said party of the second part for his executors, administrators and assigns does hereby hire the said premises for said term of twenty years as above mentioned and covenants well and truly to pay or cause to be paid unto said party of the first part, his representatives, heirs and assigns, at the days and times above mentioned, the rent above reserved,” etc.

The lease purports to have been “signed, sealed and delivered in presence of E. N. Crossman, Jas. A. Dana,” by both parties. The lease was recorded in the ofSce of • the register of deeds October 9, 1906.

About the time of its execution, the lease was delivered to the witness Crossman, a banker, enclosed in a sealed envelope upon which was indorsed in Mr. Waldo’s handwriting the following:

“Mark S. Jacobs,

“ Williamston, Mich.

“This package to be delivered to Mark S. Jacobs only in case of my death.

“Scott Waldo.”

Mr. Crossman testified that there were no verbal instructions, “only that it was to be delivered according to instructions on the paper. I think his words were that that was to be delivered to Mr. Jacobs on his death.”

Mr. Dana, the other witness to the lease, testified:

“That is my signature. I remember of signing the paper. I signed it in Crossman & Williams’ bank. Ned Crossman signed as the other witness. Mr. Waldo and' Mr. Jacobs were there at the time, I don’t remember Mr. Waldo giving Mr. Crossman any instructions about the delivery of the paper. Mr. Waldo told Mr. Jacobs that he was going to leavé it with Mr. Crossman. He said he would leave it at the bank. I don’t know whether he did or not. Mr. Jacobs and Mr. Waldo signed it at the bank. We all four signed it there in the bank.”

The package was delivered to Jacobs soon after Waldo’s death and constitutes his main ground of defense in this suit.

On the 26th of November, 1906, a full settlement was had between the administrator of Mr. Waldo’s estate and Mr. Jacobs. On the 29th of December, Jacobs came to Mr. Cairns, Mrs. Waldo’s attorney, and offered him $5.

“He said he wanted to pay his rent due the first of January on the farm, that he was holding the Waldo farm under that lease.”

Mr. Cairns received the money with the understanding that it should be returned if Mrs. Waldo or the administrator would not accept it. On January 11th, Mr. Cairns returned the money to Jacobs. On the same day he demanded possession of the farm for Mrs. Waldo, which Jacobs refused to surrender, and the present suit was commenced.

The circuit judge directed a verdict in favor of plaintiff, on the ground that defendant’s rights depended entirely upon the lease, which was void under article 18, § 12, of the Constitution, providing:*

“ No lease or grant hereafter of agricultural land for a longer period than twelve years, reserving any rent or service of any kind, shall be valid. ”

The questions involved under the assignments of error in this case, as stated and argued by counsel for defendant in their brief, are as follows:

“1. If Mr. Waldo executed this lease January 18, 1900, and delivered it in escrow with instructions to deliver it to Mr. Jacobs upon Mr. Waldo’s death, so that the term of said lease was for an indefinite period, was the lease invalid ?

“2. If said lease was not invalid because it purported to convey a future contingent estate of indefinite duration, did it become invalid at the time of Mr. Waldo’s death because more than twelve years intervened between the time of his death and the time fixed in the lease for its expiration ?

“8. The term of said lease being an indefinite one, commencing, if at all, in the future, subject to the contingency of Scott Waldo’s death within twenty years from January 18, 1900, was it a lease for a longer period than twelve years and therefore void within the prohibition of the Constitution, and did the court err in directing a verdict for that reason in favor of the plaintiff ?

“4. Was defendant entitled to show by his wife the real consideration which led to the giving of the lease, the express consideration being a nominal one of five dollars per annum and the taxes during the term thereof, and further, that it was contemplated that he should have a continuous possession ?

“ 5. Did the court err in instructing the jury that defendant was no mote than a tenant in common with Mr. Waldo in the stock and farm produce raised, and that when he adjusted the matter of his interest in the stock and property owned in common by him and Mr. Waldo, with the administrator of Mr. Waldo’s estate, he closed the business and should have moved from the farm ? ”

We are satisfied that the court correctly held that defendant’s right to hold the farm depended entirely upon the lease. Defendant obtained the lease immediately upon the death of Mr. Waldo and put it upon record; he tendered the rent reserved by it and told Mr. Cairns, “that he was holding the Waldo farm under that lease.” The receipt for the rent given by Mr. Cairns stated that it was tendered under the lease, and such statement was adopted as correct when the money was returned to Mr. Jacobs by him in his receipt. The evidence in the record is clear that no tenancy was created by the original agreement ; that a full settlement was had of the rights of the parties thereunder, and that after Mr. Waldo’s death defendant Jacobs claimed, and so notified Mrs. Waldo, to rely solely upon the written lease. Under such circumstances, the defendant was not entitled to any notice to quit. Kunzie v. Wixom, 39 Mich. 384.

The circuit judge did not err in rejecting a conversation between the parties to the lease antedating its execution. There was no offer to show that the consideration was different from that stated in the lease. The offer was as follows:

‘ ‘ What I want to show by it is this: They had in mind that he was in possession, and according to the understanding and talk, that was to be a continuous possession for a long time afterwards, that it contemplated a continuous possession by Mr. Jacobs; that Mr. Waldo contemplated, whether the writing is effectual to show or not to make it out, it would bear on the understanding of the parties in regard to the possession, the length of possession that Mr. Jacobs was to have the place.”

The important question for consideration is, whether the lease was in conflict with the constitutional provision quoted. If it was, it was absolutely void. Clark v. Barnes, 76 N. Y. 304.

Counsel for appellant admit that the lease by its terms is clearly in contravention of the Constitution, but they argue that the indorsement upon the envelope is to be considered in connection with and as a part of the lease; that, so interpreted, the lease was to begin at the death of Mr. Waldo, the term was for an indefinite period, might not exceed twelve years, and was not, therefore, within the inhibition of the constitutional provision, citing: Barton v. Gray, 57 Mich. 622; Smalley v. Mitchell, 110 Mich. 650; Carr v. McCarthy, 70 Mich. 258; Stephens v. Reynolds, 6 N. Y. 454; Parsell v. Stryker, 41 N. Y. 480; Rutherford v. Graham, 4 Hun (N. Y.), 796; Odell v. Durant, 62 N. Y. 524; Parish v. Rogers, 20 App. Div. (N. Y.) 279; Robertson v. Hayes, 83 Ala. 290; Wegner v. Lubenow, 12 N. Dak. 95.

In the case of Parish v. Rogers, upon which counsel strongly rely as closely analogous to the case at bar, the term of a lease of agricultural land was during the natural life of the lessor and his wife, reserving an annual rental of $300. A majority of the court held:

“ Where the term is specified in the lease and exceeds the limitation, it is void per se; but where it is left indefinite and its termination depends upon the contingency of death, which may happen within the period of limitation, it cannot be said to be void ipso facto, as being made for a period longer than twelve years. Non constat but that the estate will terminate within the period.”

The question whether a lease for life violates the constitutional provision was raised in Nichols v. Nichols, 94 Mich. 569, but was not decided. In Case v. Green, 78 Mich. 540, the validity of such a lease was attacked upon the ground that it was in contravention of the statute against perpetuities, but the point that it violated the constitutional provision as to agricultural leases does not appear to have been raised and is an open question, so far as our decisions are concerned.

None of the cases cited are precisely in point but it is contended that they are not distinguishable in principle and rule it by analogy. We do not agree with this conclusion.

The indorsement on the lease was not a part of the lease any more than the verbal instruction to Mr. Cross-man. At most, the indorsement only affected the time when the lease just as executed should become effective.

“It is the well-established rule in this State that the delivery of a deed by a grantor to a third party, to be by him- delivered to the grantee after the grantor’s death, is valid. It conveys the fee, and operates as a conveyance in prasenti, though the enjoyment is postponed until the grantor’s death.” Meech v. Wilder, 130 Mich. 29.

“It is very well settled that a lease may be made to take effect in future, and that the estate does not begin with the contract, but with the future period.” Whiting v. Ohlert, 52 Mich. 462.

“ The general rule is that a lease takes effect so as to vest the estate or interest to be conveyed only from its delivery, and not from its date, or the time the signatures were affixed to it.” 24 Cyc. p. 905.

Applying these rules to the case at bar, the defendant’s lease became effective on and spoke from the 3d day of October, 1906, so far as the-term was concerned, and as its termination was fixed by the lease as January 19th, 1920, it was for a period longer than 12 years. The term was not really indefinite as in the case of a lease during the life of another where the term begins at a definite day but may terminate at any time within the range of human life. In the case at bar, the term was for a definite period, viz., from the death of Mr. Waldo to the 19th day of January, 1920. The situation was the same, in legal effect, as though the lease had been executed October 3, 1906.

The judgment is affirmed.

Grant, O. J., and Montgomery, Ostrander, and Moore, JJ., concurred.


author: Moore, J.

text:
      In re KOENIG’S ESTATE.
    Appeal and Error — Decisions Review able — Discretionary Orders — Probate Orders — Special Administrator — Perishable Property.
    No appeal lies from an order of the probate court under section 9327, 3 Comp. Laws, authorizing a special administrator to sell perishable and other personal property.
    Error to Wayne; Mandell, J.
    Submitted February 17, 1908.
    (Docket No. 164.)
    Decided May 1, 1908.
    Mary C. Koenig, special administratrix of the estate of August W. Koenig, deceased, petitioned for authority to sell certain personal property. The petition was granted in the probate court, and Adam Koenig and William Koenig, administrator of the estate of Catharine Koenig, deceased, appealed to the circuit court. There was an order dismissing the appeal, and appellants bring error.
    Affirmed.

      Thomas Hislop (Ed. E. Kane, of counsel), for appellants.

      William E. Henze ( Greer, Williams, Martin & Butler, of counsel),,for appellee.
   Moore, J.

August W. Koenig died intestate August 25, 1905. He left a widow named Mary but no children. Adam Koenig, one of the appellants, was his father. His mother, Catharine Koenig, died intestate about December, 1906, and William Koenig, the other appellant, is administrator of her estate.

August W. Koenig was engaged in the retail dry goods business at Detroit and New Baltimore, and, while he had built up a large business, he was indebted at the time of his death in a large sum to merchandise creditors. His indebtedness nearly equaled the appraised value of his stock of goods and other personal property. The record shows that if they had been sold at forced sale it is doubtful if enough would have been realized to pay his creditors. His widow, Mary C. Koenig; was appointed special administratrix of his estate. On September 22, 1905, she petitioned the probate judge of Wayne county for authority to sell the stock of goods and other personal property to a corporation which had been organized to take over the same and assume the indebtedness, and on the same day the probate judge granted the petition and the sale was made.

On November 6, 1905, the appellants filed their petition for leave to appeal. The appeal was heard in the circuit court on April 11, 1907. The circuit judge took the case from the jury and dismissed the appeal. The appellants bring the case here by writ of error.

At the outset we are confronted with the question of whether this court has jurisdiction on this writ of error to review the action of the circuit court. It is the claim that proceedings for the sale of perishable and other personal property by a special administrator are wholly statutory, and in no sense according to the course of the common law; that the power of the probate judge to make the order was derived solely from section 9327, 3 Comp. Laws, which provides that a special administrator “may sell such perishable and other personal estate as the probate judge may order to be sold.” It is claimed that the making of the order was clearly discretionary with the probate judge and that an appeal did not lie to the circuit court under section 669, 1 Comp. Laws. It is also claimed that a writ of error will not lie to review the action of the circuit court in dismissing the appeal, because the proceeding was not according to the course of the common law.

On the part of the appellants it is insisted the order is an appealable one and that a writ of error will lie to review the action of the circuit judge in taking the case from the jury and dismissing the appeal. None of the cases cited by counsel are on all fours with the case at bar. Counsel for the appellants in support of their contention cite Daly’s Appeal, 47 Mich. 443; Goss v. Stone, 63 Mich. 319; Grady v. Hughes, 64 Mich. 540; and Jenks v. St. Clair Probate Judge, 96 Mich. 122. An examination of these cases will show that but one of them reached this court by writ of error, and in that one the appeal was not sustained.

Appellant’s counsel also cite Defoe v. Bay Circuit Judge, 116 Mich. 569. This case was overruled in United States Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668.

In Holbrook v. Cook, 5 Mich. 225, on appeal from the probate court, the circuit court reversed an order for the removal of an administrator, entered nunc pro tunc some months after being made, and remanded the case to the probate court for action upon the administrator’s account. Held, that a writ of error would not lie from this court to review the action of the circuit court. This court said in part:

To allow a writ of error to the circuit court, for the purpose of reviewing its proceedings upon these [probate] appeals, would interminably procrastinate the settlement of estates, and operate as a most oppressive burden upon the public. This consideration, of itself, were the question a doubtful one, would induce us to hesitate long, before we recognized this remedy; but a consideration of the nature of the writ, and the remedy, satisfies us that it lies in no case where the proceedings are not after the course of the common law, and only after judgment on an issue formed according to it; and it is not enough that the proceedings are in a court which ordinarily and primarily exercises common-law jurisdiction.”

In Brinsmade’s Appeal, 52 Mich. 537, it was held that .a writ of error would not lie from this court to the circuit court to review an order of the latter setting aside the appointment of an administrator. This court said:

“ It has been decided in this court several times that a writ of error is only allowable to bring up such controversies and questions as are according to the course of the common law. Probate appeals sometimes involve such questions where there is a contest over the will itself or over contested claims. In other cases they include equitable matters, as in case of accounting, and matters involving more or less discretion. Where no such issue is involved as could ever be a common-law question, the relief must be had by some other process, if it can be had at all.”

See, also, Smith v. Sup’ts of Poor of Lapeer Co., 34 Mich. 58; Fletcher v. Clark, 39 Mich. 374; Moore v. Moore, 48 Mich. 273; Woolley v. Crane, 86 Mich. 360; Sanborn’s Appeal, 107 Mich. 189.

In Sparrow v. Ingham Circuit Judge, 109 Mich. 272, there is a full discussion which tends to support the claim of counsel for appellee.

The question was up in the recent case of United States Gypsum Co. v. Kent Circuit Judge, 150 Mich. 668, where the right of appeal from proceedings in probate court is fully discussed. It is there said:

“ It is the general rule that unless the statute expressly gives an appeal, there is no appeal, nor can a review be had by writ of error, in special or extraordinary proceedings, not according to the course of the common law.” Citing many cases.

The order made by the probate judge was based entirely upon the statutory provision which we have already cited. It provided for. the sale of merchandise, some of which was perishable, much of which would greatly depreciate in value because of the change of styles. In the meantime the rent of the store where these goods were kept amounted to more than $6 a day. Attention to the dates given in the first part of this opinion shows that two and one-half years have elapsed since the order was made by the probate court. The reasons given in the cases quoted by us why an appeal should not lie find an illustration in this case. We think there is much force in the following statement of counsel:

“There are practical reasons why an appeal should not lie in the case at bar. In fact the casó itself presents the very strongest argument against it. If by an appeal such an order could be stayed, what would become of the property in question in the meantime ? What would this stock of goods, hats, dresses, shoes, bonnets, millinery, etc., be worth at the time this litigation had been ended, and how much would it bring now, are very pertinent questions.”

Whatever remedy may be open to appellants if any injustice has been done them, and we do not express any opinion upon that point, we think it clear that appeal to the circuit court and writ of error from this court is not open to them.

The judgment is affirmed.

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


author: Grant, 0. J.

text:
    LEONARD v. PIGGOTT.
    1. Money Lent — Action—Evidence—Sufficiency.
    In an action for money lent by plaintiff to defendant, the defense being that the money belonged to plaintiff’s husband, since deceased, and had been repaid to him by defendant, evidence examined, and held, sufficient to go to the jury on the issue whether the money was owing to plaintiff.
    2. Evidence — Letters—Admissibility.
    In an action for money lent and for money received, evidence of the contents of letters written to defendant by plaintiff demanding payment may be received to show a demand, notwithstanding defendant’s denial of their receipt, there being no claim by plaintiff that defendant’s failure to answer them admitted liability.

      3. Monet Lent — Action—Evidence—Materiality—Prejudice.
    In an action for money lent, the defense being that the money belonged to plaintiff’s husband, since deceased, and had been repaid to him, evidence as to whether the husband was owing any debts at the time of his decease, or had any children or other heirs, was immaterial, but its admission nonprejudicial.
    4. Witnesses — Competency—Husband and Wipe.
    In action for money lent, the defense being that the money belonged to plaintiff’s husband, since deceased, and had been repaid to him, plaintiff could testify that the farm which produced the money was hers, that its management was turned over to her by her husband, that she managed the farm, and that its proceeds were hers; such testimony is not prohibited by section 10213, 3 Comp. Laws, which prohibits a husband or wife to be examined as a witness for or against the other without consent.
    Error to Clinton; Searl, J.
    Submitted February 19, 1908.
    (Docket No. 78.)
    Decided May 1, 1908.
    Assumpsit by Margaret Leonard against Leonard J. Piggott for money had and received. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Walbridge & Kelley, for appellant.

      William M. Smith, for appellee.
    Plaintiff, a widow, brought suit to recover money claimed to have been loaned by her to the defendant, her nephew, before the death of her husband, and also money which came into defendant’s possession for her after his death. She recovered a verdict for $785.05. The items loaned before her husband’s death consisted of $400 and $175, upon both of which plaintiff testified that defendant paid her interest for several years. Defendant admitted borrowing $400, but claimed that he borrowed it from plaintiff’s husband without interest, and had repaid it to him. He denied the receipt of the $175. There was no dispute over the amount received after the death of the husband, except a few dollars which it is conceded defendant paid for the plaintiff for which she testified that she gave him the money. The dispute over the transactions after the husband’s death arose upon amounts claimed to have been paid by defendant for the plaintiff and certain items of offset.
    There was a bank account in the bank at Fowler, standing in the name of Michael Leonard, the husband. Both he and his wife drew upon this account whenever each chose. Her husband was ill for five years before he died. He deeded the farm property to his wife reserving a life interest to himself. She testified that she ran the farm during these years, and that the receipts therefrom belonged to her, and that the money loaned to the defendant was hers.
   Grant, 0. J.

(after stating the facts). Error is assigned upon the refusal of the court to instruct the jury that there was no competent testimony that plaintiff was the owner of the money deposited in the bank, or of any part of the $400 loan, and to direct a verdict for the defendant for that claim. The court instructed the jury that if they found that the defendant paid this $400 to the plaintiff’s husband it was a valid payment whether the money belonged to her or her husband, and that the relations existing between plaintiff and her husband were such that he was authorized to receive the money though it belonged to the plaintiff, and the loan was in fact made by her. Under these instructions the jury could not have found a verdict for the plaintiff for this sum and interest without determining that the defendant had not paid it. It being determined that defendant has not paid this debt, it remains to determine whether he borrowed the money of the plaintiff. She testified positively that he did, and that the money which was' deposited in the bank was hers though it stood in the name of her husband. The fact that it stood in his name is not conclusive of his ownership. There is very convincing evidence that defendant dealt with plaintiff, that the arrangement for the money was made with, her, that he recognized it as her debt by paying interest, and that she had as much control of the funds in the bank as did her husband. If the funds in the bank belonged to the husband and wife jointly, or to the husband alone, and he permitted his wife to take them and loan them as her own, that arrangement is no concern of the defendant. The court instructed the jury that she must show by a preponderance of evidence that the money was owing to her. The jury evidently found that it was. The testimony was in sharp conflict. The request was properly refused.

Evidence was introduced of the contents of certain letters claimed to have been written for the plaintiff (she being herself unable to write ) demanding payment of the moneys involved in the suit. Counsel claim that this was error under State Bank of St. Johns v. McCabe, 135 Mich. 479. Defendant denied receiving these letters. The court limited evidence of their contents to the making of a demand. He instructed the jury that even if the defendant received the letters, he was not bound to answer them, and that his silence could not be taken against him in any way to establish the debt. He further instructed them that he admitted the contents of the letters for the sole purpose of showing that plaintiff made a demand upon him for the money. There is no claim in the record or in the briefs of counsel that the failure to answer these letters was argued to the jury as evidence of an admission of liability. There was no error in the ruling.

It was, of course, wholly immaterial whether the husband was owing any debts at the time of his decease, or whether he had any children, or other heirs. But we cannot even suppose that this had any influence with the jury upon the issue. This testimony might very properly have been rejected, but its admission was error without prejudice.

It was not error to permit the plaintiff to testify that she owned the property; that the management of the farm was turned over to her by her husband; that she managed it, and that the proceeds were hers. Such testimony is not prohibited by section 10313, 3 Comp. Laws, which prohibits a husband or wife to be examined as a witness for or against the other without consent.

Judgment affirmed.

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


author: Moore, J.'

text:
    WAYNE COUNTY SAVINGS BANK v. SCHOOL DISTRICT NO. 5 OF MIKADO TOWNSHIP.
    Schools and School Districts — Liability on Bonds — Organization of Districts — Reorganization — Effect — Change of Township.
    The act of the legislature in detaching a part of the territory of a township and erecting therefrom a new township of another name does not have the effect of putting an end to the school district organizations in the detached territory, and the holder of bonds issued thereafter by a district in such territory may recover thereon notwithstanding a subsequent reorganization of the district.
    Error to Alcona; Connine, J.
    Submitted February 30, 1908.
    (Docket No. 69.)
    Decided May 1, 1908.
    Assumpsit by the Wayne County Savings Bank against School District No. 5 of Mikado Township for the amount of a bond. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Charles B. Henry, for appellant.

      Fred A. Beede {Be Vere Hall, of counsel), for appellee.
   Moore, J.'

The plaintiff brings this suit on a school district bond and coupons connected therewith, alleged to have been made by the defendant school district, on the 5th day of October, 1888. The case was tried before the circuit judge who made the following findings of fact and law:

“Findings of Fact.

“ 1. On June 18th, 1887, the township of Greenbush, said county, contained three geographical townships, to wit, 25 north, range 7, 8 and 9, east. On that day the legislature, by Local Act No. 523, detached towns 25-7 and 8 from Greenbush and formed the same into a new township named Mikado. ' This act was ‘ ordered to take immediate effect by the house,’ whatever that may mean.

“2. On August 22d, 1887, the board of school inspectors of Greenbush organized a new school district, to be known as District No. 5, which was composed of the following lands: Sections 16, 17, 19, 20, 21, 22, 28, 29 and 30, town 25 north, of range 8 east.

“ 3. On October 4th, 1887, the same board of school inspectors detached from the district last mentioned the following lands to wit, s. £ of s. e. £ and s. £ of s. w. J of section 28, and w. £ of w. £ of section 1.9 and w. £ of w. £ of section 30; and at the same time attached to said district the following lands, to wit: n. £ of n. e. £ and n. £ of n. w. J of section 27, and w. £ of section 14, all in town 25 north, of range 8 east. So that from and after October 4th, 1887, said District No. 5 of Greenbush contained the following lands — all of sections 16, 17, 20, 21, 22, and 29, and also w. £ of section 14, the e. £ of section 19, the e. £ of section 30 and the north £ of section 28, all in town 25 north, of range 8 east.

“4. On August 11th, 1888, the board of school inspectors of Mikado township met for the purpose ‘of hearing the application for the organization of a new district, in such township, and for the purpose of renumbering the old district,’ and resolved that ‘ District No. 5 of the township of Mikado be known as District No. 2 of the township of Mikado.’ From a map offered in evidence, it appears that the following lands were then contained in District No. 2 last above mentioned, to wit, the w. £ of section 15, all of sections 16, 17, 18, 19, 20, 21, 22, 28, 29, 30, 31, and the w. £ of 32, town 25-8.

“No notice appears to have been given by the board of school inspectors to the officers of the school district of this last action by the board until after the issuance of the obligation herein sued upon.

“ 5. On October 5th, 1888, the officers of School District. No. 2, under the name, ‘ School District No. 5 of the Township of Mikado,’ issued to plaintiff, under the name, ‘ S. D. Elwood, Treasurer or Bearer,’ the bond sued on, in the sum of five hundred dollars, with interest at the rate of seven per cent, per annum, payable annually in each and every year until the principal was paid, with ten interest coupons, each in the sum of thirty-five dollars, due and payable on the 5th day of October in the years. 1889 to 1898, both inclusive, at which later date the principal of said bond matured.

“6. The plaintiff purchased said bond before maturity for a valuable and full consideration, in good faith, without notice of any defect claimed therein.

“7. The several interest coupons maturing October 5, 1889, 1890 and 1891 have each been paid and discharged as the obligation of said School District No. 2, and there remains unpaid on such obligation the principal sum of five hundred dollars and the interest coupons maturing October 5, 1892 to 1898, inclusive, with interest thereon at the rate of seven per cent, per annum, after maturity.

“8. On December 4th, 1901, the board of school inspectors of Mikado township organized ‘ School District No. 5 of the Township of Mikado,’ which contained the following lands, to wit, the w. i of section 15, all of sections 16, 17, 18, 19, 20, 21, 22, 28, 29, 30, 31, and s. J of section 32, all in town 25 north, of range 8 east, which district is the defendant in this case.

“ That after the last organization the last-named school district sold an old schoolhouse in which school had been held about twenty years ago, and appropriated the avails of the sale; this old school building was situated on the territory of the defendant.

“ 9. This section is brought against School District No. 5, so reorganized, to recover the principal of said obligation, and such interest coupons maturing October 5, 1892, to October 5th, 1898, both inclusive, with interest at seven per cent, per annum; there being due thereon as such principal and interest on July 5, 1906, the sum of twelve hundred and sixty-three one-hundredths dollars.

“Conclusions of Law.

“ I conclude from the foregoing:

“ 1. That defendant is obligated to pay plaintiff the bond sued upon with interest at seven per cent, per annum.

“ 2. That plaintiff is entitled to judgment in the sum of one thousand two hundred dollars and sixty-three cents, with interest at the rate of seven per cent, per annum from July 5th, 1906, with costs.”

The case is brought here by writ of error.

It is the claim that the findings of fact are not supported by the evidence. It is a matter, of common knowledge that in a new country it often happens that the officers of a school district are not careful business men, and do not always appreciate the importance of accurate records of what is done at the school meetings and by the school officers; and while the records in this case are not as full and complete as could be desired, still a fair inference from them and from the testimony of the witnesses sustains the findings of the circuit judge. Wood v. La Rue, 9 Mich. 160; Schmidt v. Miller, 22 Mich. 278; O'Connor v. Beckwith, 41 Mich. 657; Wertin v. Crocker, 47 Mich. 642; Cook v. Burnett, 83 Mich. 251.

Counsel for defendant make the following claim; we quote from the brief:

“On June 18, 1887, the territory embraced in the defendant school district in this suit was detached, with other territory, from the township of G-reenbush, and made into the township of Mikado. All territory in the new township then was void of school district territorial organization.”

And it is argued that, until the new township institutes and sets in motion a complete school system, there are no school districts in the new township, citing, in support of this contention, People v. Ryan, 19 Mich. 203. An examination of that case will show it does not sustain the doctrine above stated.

In considering a question like the one involved here, Justice Campbell, speaking for the court, used the following language:

“We do not think this makes any difference. The respondents are in law the same corporation as the old and larger district. The only effect o£ these acts was to detach certain lands from the district, but not to change its corporate identity. We- have already disposed of this question in Maltz v. Board of Education of Wilson Township, 41 Mich. 547, in which we held that the debts could not be parceled out in.a proceeding in the courts so as to give creditors a remedy against any but the present respondents. A debt once existing must remain a debt" against the corporation that created it, and its obligation is not destroyed by a change in corporate limits. If contribution is required, it must be obtained by the corporation and not by its creditors, unless otherwise provided by law.” Turnbull v. School District, 45 Mich. 496.

The following cases stand for the same proposition: Brower v. Palmer, 13 Mich. 104; Halbert v. School District, 36 Mich. 421; Maltz v. Board of Education of Wilson Township, 41 Mich. 547. They justify the judgment of the lower court.

Judgment is affirmed.

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


author: Ostrander, J.

text:
    PRINGLE v. CITY OF DETROIT.
    Highways and Streets — Defective Sidewalks — Personal Injuries — Ioy Walk — Evidence—Suffiuienoy.
    In an action against a city for personal injuries received from a fall on a defective sidewalk, evidence examined, and held, that a verdict was properly directed in defendant’s favor, for the reason that no more was shown than that, in the course of a journey made perilous hy an' accumulation of ice due to natural causes, plaintiff unfortunately slipped upon the ice and was injured.
    Error to "Wayne; Donovan, J.
    Submitted February 18, 1908.
    (Docket No. 37.)
    Decided May 1, 1908.
    Case by Annie Irene Pringle against the city of Detroit for personal injuries. There was judgment for defendant on a verdict directed by the. court, and plaintiff brings error.
    Affirmed.

      . H. M. & D. B. JDuffield, for appellant.

      J. Walter Dohany ( Timothy E. Tarsney, of counsel), for appellee.
   Ostrander, J.

Plaintiff was injured on the afternoon of February 10, 1904, in daylight, by slipping and falling on an icy sidewalk. She sued the defendant city and upon the trial of her case a verdict for defendant was directed by the court. No testimony was offered for defendant. Two principal contentions are urged here by plaintiff in error, which are:

“First. The trial judge having directed a verdict for the defendant because the plaintiff slipped on an icy walk, it necessarily must follow that he was in error in taking the case from the jury, unless the evidence clearly shows such to be the fact. If there was any reasonable doubt as to whether plaintiff did slip on the ice or not, then that question should have been submitted to the jury. We therefore claim that the trial judge was in error because he did not leave it to the jury to determine whether the plaintiff slipped on ice or not.

“In the second place, even supposing that plaintiff slipped on ice, then it was error not to submit to the jury for determination the question whether the defective condition of the sidewalk accumulated ice artificially.”

Plaintiff fell at a place where a wooden walk had existed, had been removed and a cinder foundation had been laid for a cement walk. It was not completed because begun too late in the season. The cinders were confined, as is usual, by timbers or stringers marking the width of the walk, and had been leveled. It does not appear that they had been rolled. There were no houses on the lots in front of which the walk was laid. No one saw plaintiff fall. The alleged improper condition of the sidewalk is described in the declaration, in the first count, as follows:

“ Said sidewalk was not in proper repair and safe condition in that loose cinders had been laid in a soft condition as and for a sidewalk and said cinders had been left in such loose and soft condition.”

In the second count the allegation'is:

“ Cinders had been spread for the foundation of a stone or cement sidewalk to be built or laid thereafter, and were allowed to remain in that condition for an unreasonable length of time and until the same became and were unsafe and dangerous to walk upon and over as hereinafter described. Persons walking on these cinders left an impression where they had stepped, and thereafter in the natural course of the seasons cold weather came and the sidewalk froze up hard, leaving a very rough and uneven surface.”

The manner in which plaintiff received her injury is set out, in the first count, as by a fall while she, using due care, was passing over the walk; in the second count, as by a sudden fall while she was “proceeding along said • sidewalk with great care to avoid slipping or stumbling over the rough places.”

A brief reference to local conditions is required. On February 1, 1904, the snow on the ground was 14 inches deep on a level, and on February 2d there was about 14J inches of snow, with a maximum temperature of 25 degrees and a minimum of 17 degrees. On February 3d, the maximum temperature was 13 degrees, the minimum 4 degrees. On the 5th, the maximum was 39 degrees, which somewhat reduced the snow; the minimum temperature for that day was, however, 9 degrees. From 7 p. m. on the 6th to 7:50 p. m. on the 7th, a severe rain had reduced the depth of snow from about 11 inches to 4 inches, and at 11 p. m. on the 7th the temperature had fallen to 7 degrees. The highest temperature on the 8th was 8 degrees and the lowest 1 degree, and on the 9th the highest temperature was 12 degrees and the lowest 1 degree. The same condition existed on February 10th, with a slight fall of snow in the early morning. The walk in question was not cleaned and its condition, except for such travel as occurred, was the condition in which it was left by the elements. A witness for plaintiff familiar with the walk described it as rough and hard to walk over; that it was not smooth, but was smooth where there was ice; that the cinders were lumpy and there were depressions filled with water and then elevations where the ice did not cover the cinders; the roughness was caused by different sized cinders, loose and ground down — some pieces small and others large — half of it frozen over. All the walk was not rough, some .of the cinders were rough, and the general appearance was that of a rough walk.

In attempting to pass over the street, plaintiff chose this cinder way as affording the best footing in the vicinity and this because in places cinders appeared above the ice. She picked out the cinders in order to miss the ice. She had known the walk from the time, in the preceding October, when the cinders were drawn there, and had been over it several times before they were leveled; she had never before been over it after they were leveled. Her testimony leaves no room to doubt the cause of her fall. She slipped on ice.

“Why, I slipped and fell, and just as quick as I fell I lost consciousness from the pain. * * * I slipped and fell. * * * I did not stub my toe against anything. ■!» ^»

Q. You did not catch your foot in anything, in any wire or in any obstruction ?

A. No, sir.

Q. You did not catch your toe on any obstruction ?

“A. No, sir.

“ Q. And trip down ?

“A. No, sir.

The Court: Do I understand you tripped and fell or slipped ?

“A. I slipped and fell down.

Q. If it had not been for the ice you would not have slipped ?

“A. I think I slipped going through there more or less.

Q. So if it had not been for the ice you would not have slipped?

“ A. I do not think so. * * *

Q. Then it was the ice that caused it ?

“A> I do not know whether I could slip on cinders or not, if they crumbled under my heel it would be very bad slipping.

Q. Then it was the ice that caused you to slip?

“A. It was the combination.”

Further references to the testimony of plaintiff are hereinafter made. She does not claim that her fall was occasioned otherwise than by slipping on ice. The court was not in error in assuming the fact to be established.

The person who found plaintiff and assisted her testified that near where she was lying there was a wagon track five or six inches deep “running across.” It is assumed that he meant running across the cinder walk. Plaintiff herself testified that there was a track there of a big moving van, and again:

“There was a groove about that deep (indicating) in which my heel went and turned my ankle. * * * I really fell in a groove. * * * I do not remember whether it was with my right foot that I slipped on this glassy place, or whether it was my left foot, but I do remember that my right foot went into this groove. I do not remember what foot I had down when I slipped. I turned my ankle in and it threw me around that way facing the inside with my head toward the north. * * *

“ Q. Now, Mrs. Pringle, do you want to tell us that you turned your ankle instead of your foot slipped, as you told me a few minutes ago ?

“A. It was the slip that turned my foot.

“ Q. And then your foot did go out from under you like a flash as you told me a few minutes ago ?

“A. Yes, sir, it certainly did.

‘' Q. Flew right from under you ?

“A. I do not know how, but I know it turned under me.

Q. Your foot flew out and you fell facing the north ?

“A. Yes, sir. * * *

“ Q. Now, you do not know whether your ankle turned before your foot slipped, or turned just after, it slipped, it was all done so quick ?

“A. It was all done very quickly, but I think.

Q. I want to know what you know ?

e‘A. I am almost sure.

Q. Do you want to be understood to tell these gentlemen that you remember ?

“A. I remember my foot flew out that quick.

Q. You remember your foot flew from under you and you fell facing the north ? ■

‘■A. Yes, sir.”

It is the theory of counsel for plaintiff that the case made presented the question of fact whether the accumulation of ice was due to natural causes only, see McKellar v. City of Detroit, 57 Mich. 158; Kannenberg v. City of Alpena, 96 Mich. 53; Rolf v. City of Greenville, 102 Mich. 544; Gavett v. City of Jackson, 109 Mich. 408 (32 L. R. A. 861); Wesley v. City of Detroit, 117 Mich. 658, or whether such accumulation, and the resulting condition, was due to an original defective condition of the walk; whether the combination of ice and cinders which existed was not the cause of her injury and referable directly to an original defective condition of the walk. See Navarre v. City of Benton Harbor, 126 Mich. 618, and Burrell v. City of Greenville, 133 Mich. 235.

We find no testimony to support the proposition that the walk as laid was defective or dangerous; it was simply not completed. It is matter of common knowledge that it would be likely to accumulate less ice than the completed walk would have done. The testimony supports this view. We find no testimony tending to prove that the peril which plaintiff faced was increased by the manner in which the sidewalk was constructed. Her testimony and her actions are strongly opposed to such a conclusion. Her actions approved this as the way of least peril. Her testimony is not in harmony with the theory that the general surface of the walk was dangerously uneven or that it was not substantially level at the point where she slipped and fell. If the groove or wheel track in the walk played some part in the matter, that defect is not connected with the original construction of the walk and its existence is not brought to defendant’s knowledge by actual or by constructive notice. We assume that the court, in directing a verdict, had in mind the averments of the.declaration. Those averments require that there be established some causal connection between the manner of constructing the sidewalk and the injury which plaintiff suffered. Indulging, as we must, that view of the testimony most favorable to plaintiff and all reasonable inferences therefrom which favor her, we still think that no more is shown than that, in the course of a journey made perilous by the ice, she most unfortunately slipped upon the ice and was injured.

The judgment is affirmed.

Grant, O. J., and Blair, Montgomery, and Moore, JJ., concurred.


text:
    SMITH v. DRESSELHOUSE.
    T. Waters and Watercourse^— Mill Rights —Conveyances— Operation.
    The grant of a mill operated by water carries with it, unless express reservation is made, the right to the use of the watercourse coming to the mill and furnishing power for working it, and also to the canal or raceway which carries the water from the mill, to the full éxtent of the grantor’s right and power so to grant them
    2. Easements — Transfer—Appurtenances.
    Where the owner of two tenements sells one of them, the purchaser takes the portion sold with all the benefits and burdens which appear at the time of the sale to belong to it as between it and the property which the vendor retains.
    3. Deeds — Construction—Property Granted.
    Every grant of a thing naturally imports a grant of it as it actually exists. " . '
    4. Waters and Watercourses — Mill Rights — Conveyances— Operation.
    Two mills at opposite ends of a dam, after being owned in severalty for many years, became the property of one person who mortgaged them together, with their appurtenant water right, and subsequently mortgaged the west one to the same mortgagee. The second mortgage was foreclosed, the mortgagee purchased, and conveyed the west mill together with “ the mill privilege and water power there situate * * * together with the right and privilege to use and make use of the water power there situated and hereby conveyed in any manner whatsoever.” Held, that unity of title did not oper- ■ ate to change the water right appurtenant to each mill, and that the claim of the grantee of the west mill that by his deed he acquired the whole of the water power was untenable.
    5. Same — Laches—Effect.
    Laches of fifteen years in asserting his claim held fatal and not excused by advice of counsel that, subject to his right to use, the mortgagor and his grantees might make lawful use of the water while it was on their premises.

      Appeal from Washtenaw; Kinne, J.
    Submitted February 19, 1908.
    (Docket No. 82.)
    Decided May 1, 1908.
    Bill by Edwin R. Smith against Charles Dresselhouse ' to enjoin the use of certain water power. From a decree •for defendant, complainant appeals.
    Affirmed.

      A. F. & F. M. Freeman (F. B. Norris, of counsel), for complainant.

      A. J. Waters (Frank E. Jones, of counsel), for defendant.
   Ostrander, J.

The title to two parcels of land, one on either bank of the river Raisin, theretofore owned and, with the appurtenant water power, conveyed in severalty, upon each of which parcels a mill, operated by water power, had for many years existed, passed to a single owner. The water power is not created by the use of the water from the river in its natural state. There is a pond or reservoir, a dam holding the water and causing it to overflow a considerable territory. The owner, under date June 6, 1878, mortgaged both parcels of land and in the mortgage conveyed, also,

“All the right and privilege which the said parties of the first part may have or possess of raising water and flowing lands for mill purposes. ”

Under date June 9, 1879, he executed to the same mortgagee a mortgage upon the land upon the west side of the river, the mortgage containing the following:

“Also granting and conveying to the said party of the second part, her heirs and assigns, all the right and privileges which said party of the first part may have or possess for raising water or flowing land for mill purposes, together with the privileges of the water power to be used in any manner whatsoever.”

These mortgages were duly recorded. Upon foreclosure of the last-mentioned mortgage, the sale táking place December 1,1888, and the mortgagee being the purchaser, the commissioner’s deed describes the property and water rights as in the mortgage. In March, 1889, being still owner of the first mortgage, the purchaser conveyed to complainant the land acquired by the foreclosure, describing the water rights in the following manner:

“The mill privilege and water power there situate, with the right to flow all the lands now overflowed by the water by the mill dam at its present height together with the right and privilege to use and make use of the water power there situated and hereby conveyed in any manner whatsoever.”

In 1894, the original owner and mortgagor conveyed to the mortgagee — counsel have assumed in payment of the first mortgage — the land on the east side of the river:

“Also conveying the mill privilege and water power there situate with the right to flow all of the land now overflowed by water and necessary to overflow by water, to keep and maintain the dam there situated at its present height together with the right and privilege to use and to make use of the water power there situated and hereby conveyed in any manner whatsoever.”

The purchaser (mortgagee) conveyed this land to defendant May 4,1900, describing water rights as last above set out. Previously, she had leased the sawmill and mill yard and “ also all the water power of the river Raisin, all situated on the east side of the river.

Defendant first went into possession of the land on the east side of the river in 1897 under a contract for its purchase, and has ever since been in possession. He repaired the sawmill and flume, put another water wheel in position, and put in feed-grinding machinery. Complainant seems to have made no use of the water; on the contrary, he filled up the flume on his land with earth.

It is the contention of complainant that at the foreclosure sale the purchaser acquired the lands on the weBt side of the stream and all the water power — that the owner and mortgagor was divested of all water rights and that the deed from the purchaser to himself conveyed all water rights. He seeks to enjoin defendant from exercising any authority over, and from- using, the water power, flowage, and dam, and a decree determining that he is exclusive owner. Assuming that the owner of both banks of a stream, of a dam, of the right to impound water and set it back upon upper proprietors, and of all water rights appurtenant to the land on either bank, may by grant of either parcel of land attach to it all of the water rights, a point not here for decision and not decided, it is clear that the intent to do so, there being, and having for many years been, a mill on each parcel, must be clearly expressed. Undoubtedly, the grant of a mill operated by water carries with.it, unless express reservation is made,

“ The right to the use of the watercourse coming to the mill and furnishing power for working it, and also to the canal or raceway which carries the water from the mill, to the full extent of the grantor’s right and power so to grant them. Prescott v. White, 21 Pick. (Mass.) 341.” Richardson v. Bigelow, 15 Gray (Mass.), 156.

See, also, Horne v. Hutchins, 71 N. H. 117; Curtis v. Norton, 58 Mich. 411; Mandeville v. Comstock, 9 Mich. 536, 539. But the implication must be clear which would sustain the grantee in a claim that the rights appurtenant to the property had been increased . or diminished. Complainant’s rights do not rest in implication but in a grant. The rights of his grantor rested in a grant. It is a general rule of the law of easements that where the owner of two tenements sells one of them, the purchaser takes the portion sold with all the benefits and burdens which appear at the time of the sale to belong to it as between it and the property which the vendor retains. Seymour v. Lewis, 13 N. J. Ch. 439. Every grant of a thing naturally imports a grant of it as it actually exists. United States v. Appleton, 1 Sumn. (U. S.) 502. Whether we consider the words employed in the mortgage or in the deed or 1 ook for evidence of intention in the physical situation of the property and the relations of the parties, we reach the same conclusion. We should expect that a mortgage of all the land and of all the water power carried a grant of all of the water power. We should not expect that a grant of the land on one side of the river only, the grantor retaining the land and mill on the other side, and using the water there appurtenant, conveyed an exclusive right to the entire water power. The terms of the grant to complainant are express and seem to be unambiguous. The land is described by metes and bounds. One boundary is the center of the main channel of the river. The mill tract and the mill are within the boundaries. It is the mill privilege and water power “there situate,” i. e., appurtenant to the land conveyed, which is deeded, with the right to flow lands and to “useand make use of the water power there situated.” Looking outside the deed, it appears that upon each bank of the river mills had been built and in operation for many years. For many years the water privileges were owned in common. Unity of title did not of itself operate to change the water-rights appurtenant to each mill. A mortgage or a deed of either parcel would have still conveyed appurtenant rights. When complainant received his deed of the land on the west side of the river, his grantor still held her mortgage upon all the land. It will not be assumed that whatever she may have supposed her rights in the water to be, she intended tó render the mill property on the east side valueless. For the reasons stated, the relief prayed for was properly denied to complainant.

There are also other sufficient grounds for denying him relief. When complainant obtained his deed, the original owner was in possession of the land on the east side of the river and using the water in operating the mill. He continued to use it for six years. The tenant of his grantee used it. Defendant has used it since 1897. He has expended money in repairing the flume and in new machinery. Complainant has in no manner interfered with or questioned this use of the water or defendant’s right and has asserted no claim to an exclusive right to control it until he began this suit in 1906. He explains this conduct by his reliance upon advice of counsel obtained in 1889. A letter of advice from counsel appears in the record. It is to the effect that, subject to the right of complainant to use, the mortgagor and his grantees may make lawful use of the water while it is on their premises; that the grant was not a grant of the water but of the power, with the use of which the mortgagor and his grantees could not interfere to the detriment or injury of complainant. Complainant testified that when he consulted counsel he took the commissioner’s advertisement of the sale, told counsel that he understood defendant had a contract and certain rights on the other.side of the river and was then working about the mill. He is chargeable with notice of defendant’s claim of right. He at one time, at the request of defendant, paid part of the expense of repairing the dam. He also testified:

“ I got the impression some way that Mr. Dresselhouse had been there nearly long enough, nearly fifteen years, and I wanted to look up the title.”

This was just before beginning this suit. Whatever may have been the object of complainant in purchasing this mill site and the power, he has rested too long upon the rights which he now asserts — rights disputed by his deed, by his grantor’s conduct, by defendant’s record title and conduct, and by his own inaction.

In the decree, the court below settled the respective rights of the parties in and to the use and employment of the water and the power by the determination that each was entitled as tenant in common with the other to one-half part thereof. In a form of decree prepared by complainant’s counsel, it is asked that the court, if exclusive rights were denied, award to complainant a two-thirds interest instead, and to defendant a one-third interest, upon the ground that the intake and flow on the west side of the stream has always been twice the size of the intake on the east side of the river. This fact might, in some cases, have weight in determining proportional rights to water if it indicated the quantity actually used and its value as energy actually secured. In this case, the fact appears to be immaterial. Some earlier deeds granted with each description of land one-half the water. The evidence as well sustains the ordinary presumption that each tenant in common has a moiety as it sustains complainant’s contention. We do not find reason for modifying the decree in this particular. It is affirmed, with costs of the appeal to the defendant.

Grant, C. J., and Blair, Montgomery, and Moore, JJ., concurred.


text:
    HAZEN v. BAY CITY TRACTION & ELECTRIC CO.
    1. Carriers — Passengers—Setting Down — Duty oe Carrier.
    It is the duty of a carrier by rail to stop its car for a sufficient length of time to enable a passenger, in the exercise of reasonable diligence, to alight from the car and get beyond danger from its movement.
    2. Pleading —Declaration —Inconsistent Counts —Election— Personal Injuries — Action Against Carrier.
    i A declaration against a carrier for personal injuries alleging in the first count that defendant started its car while plaintiff was in the act of alighting, and in the second that defendant started its car before plaintiff had had an opportunity to-move away from the car after stepping from it, does not present an election, since the substantial difference in the counts is that the same negligence affected the plaintiff at an earlier point of time in the' one case than in the other.
    3. Trial — Instructions—Interest oe Witnesses — Propriety.
    A requested instruction on the necessity of considering the interest of witnesses in determining the weight of the testimony, which assumes that plaintiff’s daughter, who, so far as the record shows, has no financial interest in ,,the case, is an interested party, is properly refused.
    Error to Bay; Collins, J.
    Submitted February 20, 1908.
    (Docket No. 126.)
    Decided May 1, 1908.
    Case by Eva Hazen against the Bay City Traction & Electric Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      T. A. E. & J. O. Weadock, for appellant.

      De Vere Hall, for appellee.
   Blair, J.

Plaintiff brought this action to recover for injuries alleged to have been received at Wenona Beach, a summer resort on Saginaw Bay, while a passenger on one of defendant’s cars, through the negligence of defendant’s employés in starting the car while she was alighting therefrom or just after she had alighted.

The first count of the declaration alleged that:

“ It then and there became and was the duty of said defendant to furnish and provide for and have in control of such cars capable, skillful, careful and competent men to act in the capacity of motormen and conductors, so that persons entering, riding upon or alighting from its said cars might not have their person, life or health injured or jeopardized by the acts of unskillful employés and agents.

“And plaintiff avers that said defendant carelessly, negligently and wrongfully disregarded its duty in that behalf, and the duty that it then and there owed the plaintiff, in that it did furnish, provide and have in control of the said car incapable, unskillful, careless and incompetent employés and agents, and while said plaintiff, at the invitation of defendant, was in the act of alighting from said car at the regularly designated and established stopping place and station therefor at said resort, and at the terminus of said line to and upon such platform, as aforesaid, being in the exercise of reasonable prudence and due care, and not guilty of any negligence on her part, said defendant and its said employés and agents carelessly, negligently^ and wrongfully did start and move its said car without giving the plaintiff sufficient time to alight therefrom, and while her foot was still resting and being upon such step or ledge attached to said car, and she was in the act of alighting therefrom, and the -fact that she desired to alight from said car at such terminus was then and there known to said defendant and tó its conductor and motorman in charge and in control of said car, or should have been so known, and thereupon carelessly, negligently and wrongfully did hurl and throw said plaintiff to such platform with great force and violence.”

The second count alleges that it was the duty of defendant—

“At such resort or terminus of said line, and at such platform, to stop said cars for a reasonable and sufficient length of time to allow plaintiff and the passengers so carried by it and desiring to do so, to alight therefrom upon such platform without hurt or injury to them. * * * That while plaintiff was in the act of alighting or stepping from its said car, at such resort, and upon such platform, and while in the exercise of due care and caution, and without negligence on her part, defendant, well knowing or having reason to know that plaintiff was, in the act of alighting from said car, carelessly, negligently and wrongfully caused the same to be moved and started in a quick and violent manner and thereupon did throw and thrust said plaintiff down and on to the platform or ground at said terminus.”

The third count alleges:

“And plaintiff avers that defendant then and there and on the said eleventh day of August, 1905, further carelessly, negligently and wrongfully failed to discharge the duty that it then and there owed to plaintiff, in that regard, in that it then and there failed to advise and warn plaintiff of her liability to be hit and struck by the rear end of said car so moving and swinging, and as plaintiff was lawfully in' and upon said platform after alighting from such car thereat, and in the exercise of due prudence and care and without any negligence on her part, then and there without notice or warning to her carelessly, negligently and wrongfully did propel the rear end of said car against her and she was thereupon thrown down with such violence that her left arm at or near the shoulder was broken;” etc.

The testimony on behalf of the plaintiff tended to show that after stopping at the platform to enable passengers to alight and while plaintiff was either in the act of alighting, with one foot on the platform and one foot on the ground, or had just placed both feet on the ground, the conductor negligently started the car. The testimony in behalf of the defendant tended to show that the conductor assisted the plaintiff to alight, saw that she had moved to a safe distance from the car and then started the car; that after the car started, plaintiff came back towards the car for some purpose and before the car could be stopped was struck by the rear end, which, on the curve, projected out 45 inches beyond the rail.

At the close of the plaintiff’s proofs, the defendant moved that plaintiff be required to elect on which count she would go to the jury, which motion was overruled and exception noted. The case was submitted to the jury and plaintiff recovered. Defendant brings the case to this court for review upon writ of error, relying in their brief upon the following points:

(1) The court should have compelled an election of counts.'

(2) The court erred in refusing to give defendant’s 5th, 8th and 10th requests to charge.

(8) Errors in the charge as given.

Counsel for appellant contend that:

“The second and third counts are absolutely inconsistent. Plaintiff to sustain the first cause of action alleged in her declaration must necessarily establish the existence of the following facts, that while still on the defendant’s car and in the act of alighting therefrom without any negligence on her part, the defendant’s employés negligently started said car and threw her to the ground. On the other hand, to sustain the second cause of action, plaintiff would be required to show that after she had stepped from defendant’s car, and while on the alighting place or platform, without negligence on her part, the defendant’s employés did not afford her a reasonable length of time to move away from said car, but carelessly and negligently ran said car against her and struck her to the ground, causing the injuries complained of. It is readily seen that the facts which are necessary to sustain the first cause of action m,ust necessarily be a perfect defense to the second cause of action. Among the rules which have become axiomatic is one that a party must be consistent and not contradictory in the positions which he takes. Repugnancy is as objectionable in a petition as it is in ah answer, and it is universally held that inconsistent defenses cannot be pleaded.”

The contention of the defendant is undoubtedly well founded, if the alleged inconsistency exists. Capen v. Stevens, 29 Mich. 496; 4 Current Law, p. 998; Drolshagen v. Railroad Co., 186 Mo. 258.

Although the question is a close one, we incline to the opinion that the counts are not essentially inconsistent within the legal meaning of the term. It was the duty of the defendant to stop its car for a sufficient length of time to enable the plaintiff, in the exercise of reasonable diligence, to alight from the car and get beyond danger from its movement. Smalley v. Railway Co., 131 Mich. 560; Bass v. Railway Co., 142 Mich. 177.

The gist of the allegation of negligence in the counts alleged to be conflicting is that the defendant did not perform this duty. In both counts the negligence complained of is, substantially, that defendant did not afford sufficient time for plaintiff to get beyond danger from movement of the car. The substantial difference in the counts is that the same negligence affected the plaintiff at an earlier point of time in the one case than in the other.

The 5th request to charge was sufficiently covered ’ by the charge. The 10th request was properly refused, since it omitted the essential element of affording sufficient time for the plaintiff to get beyond danger. The 8th request to charge was as follows:

“8. In determining which- side has the weight of evidence you should consider the interest of the witnesses. In this case, upon the part of the plaintiff, she has testified in her own behalf, and her daughter has also testified in her behalf. They are the only witnesses in her interest who claim to have seen the accident, and you are to take into consideration the fact that they are interested parties.”

This instruction, if given by the court, would have indicated to the jury that the daughter, who, so far as the record shows, had no financial interest whatever in the result of the suit, was an interested party, the same as her mother, and that they must consider this fact in weighing her testimony. We think the request was properly refused. Marquette, etc., R. Co. v. Kirkwood, 45 Mich. 51; Gregory v. Railway, 138 Mich. 368.

We have examined the other assignments of error and are of the opinion that they are not well founded. The issue was really within a very narrow compass, the theories of the opposing parties were fairly and clearly stated to the jury with appropriate instructions as to the rules of law applicable, and the verdict of $270.90 indicates a dispassionate consideration of the case by the jury.

The judgment is affirmed.

Grant, O. J., and Montgomery, Ostrander, and Moore, JJ., concurred.