author: Fellows, J. Ostrander, J.,

text:
    SMITH v. STARKE.
    1. Contracts — Brokers—Commissions—Statute of Prauds.
    Contracts coining within Act No. 238, Pub. Acts 1913 (3 Comp. Laws 1915, § 11981), providing that the statute of frauds shall include every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate, are absolutely void.

      2. Same.
    The statute applies to contracts between others than those between owner and broker.
    3. Same
    Compensation to be paid a farmer by a real estate broker for furnishing a' customer for certain premises, constitutes “commission” within Act No. 238, Pub. Acts 1913 (3 Comp. Laws 1915, § 11981).
    4. Same.
    The word “commission”, implies a compensation to a factor or other agent for services rendered in making a sale.
    5. Same — Quantum Meruit.
    Under said act, including in the statute of frauds every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate, no recovery can be had upon the quantum meruit for services performed under an agreement which is void thereunder. Ostrander, X, dissenting.
    Error to Berrien; Bridgman, J.
    Submitted January 12, 1917.
    (Docket No. 119.)
    Decided May 31, 1917.
    Assumpsit in justice’s court by Charles P. Smith against Burton G. Starke for broker’s commissions. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed.

      O’Hara & O’Hara, for appellant.

      Will R. Stevens, for appellee.

      On necessity that authority of agent to purchase or sell real property be in writing to enable him to recover compensation for his services, see notes in 9 L. R. A. (N. S.) 933; 44 L. R, A. 601.

   Fellows, J.

Several interesting questions are discussed in this case, in which defendant brings up. for review a judgment of $25 rendered in the circuit court for the county of Berrien, upon appeal from justice’s court; but as we think one question is controlling, we shall omit any discussion of the others. This single question is whether Act No. 238, Pub. Acts 1913 (3 Comp. Laws 1915, § 11981), which adds the following provision to the statute of frauds:

“Every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate”

—prevents a recovery upon the following state of facts: Defendant is a real estate broker; plaintiff, a farmer who had dealt to some extent in the sale of farm property. Defendant had listed with him for sale a farm in plaintiff’s neighborhood known as the “Blowers Farm.” Plaintiff met him early in February of 1915 and asked him what- the defendant would do if plaintiff would furnish him a customer for the Blowers farm. That defendant replied:

“We will divide with you, we will treat you right and we will be glad to, anything that we can do in that way we will be glad to.”

That plaintiff furnished him the names of parties with whom defendant afterwards negotiated, resulting in the sale to them of the Blowers farm and a commission to the defendant of $450. That plaintiff wrote defendant in regard to plaintiff’s commission, what he should have, but received no reply and went and saw him; that after talking with him, and defendant’s refusal to pay, he brought suit. Some of these facts were in dispute, but we give those most favorable to plaintiff. The entire transaction between the parties rested in parol, and the declaration counted on a performed oral agreement for services in finding a purchaser for the Blowers farm.

We have held, in construing the act in question, that contracts coming within its provisions are absolutely void. McGavock v. Ducharme, 192 Mich. 98 (158 N. W. 173). Therefore, if the contract in question comes within the purview of this act, it is void and of no force or effect. The services to be performed and contemplated by the arrangement between the plaintiff and defendant were the services usually performed by a real estate broker, those of procuring, or aiding in procuring, a purchaser of the Blowers farm; that plaintiff was not to perform all the functions of a dealer in real estate does not preclude from characterizing the services performed as those usually performed by a real estate broker. Indeed the services to be performed by plaintiff were of the very essence of brokerage services, viz., procuring a purchaser of another’s property. Compensation to real estate brokers is known, not only to the layman, but also to the law as “commission.” The word “commission” implies a compensation to a factor or other agent for services rendered in making a sale. Mooney v. Hough, 84 Ala. 80-92 (4 South. 19); 1 Bouvier’s Law Dictionary, p. 548; Ralston v. Kohl’s Adm’r, 30 Ohio St. 92-98; Rogers v. Duff, 97 Cal. 66-69 (31 Pac. 836). The compensation which plaintiff was to receive under his oral agreement with defendant was commission, and therefore within the act. Plaintiff so styles it in his testimony, and in this he is correct.

Does the act in question apply to contracts other than those between owner and broker? We think it does. There are no words of limitation contained in it. It reads “every agreement” — not only agreements between owner and broker, but “every agreement”— all agreements. The act is unambiguous, clear in its terms, and without exceptions. Several of the other States of the Union have passed acts of similar purport, but of limited application, applying only to contracts between owner and agent. In passing the act in question the legislature omitted the words of limitation found in the acts of some of our sister States. Without qualification, it declared void “every agreement * * * to pay any commission.” The legislature having failed to use the words of limitation, we cannot add them by judicial construction. Where the legislative expressions are obscure, the courts may construe a statute, giving a reasonable and sensible interpretation thereto, but where the statute is plain and unambiguous in its terms, its construction is not for the courts; the courts have nothing to do but obey it. In re Klein’s Estate, 152 Mich. 420 (116 N. W. 394).

But it is urged by the plaintiff that, even if the statute does render the contract void, he may recover upon the quantum meruit, upon the theory that performance takes the case out of the statute. This question is foreclosed by the recent case of Paul v. Graham, 193 Mich. 447 (160 N. W. 616), where we had this statute under consideration and held that no recovery could be had upon the quantum meruit for services performed under an agreement that was within the provisions of this statute and therefore void.

It follows that, plaintiff’s contract with defendant being void, and no recovery permissible under it or upon the quantum meruit, the judgment must be reversed, and no new trial awarded. Defendant will recover costs of all courts.

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

Ostrander, J.,

(dissenting). I regard the arrangement testified to by plaintiff as a proposition made by defendant to plaintiff to give plaintiff a portion of a commission if it was earned by defendant by plaintiff’s help, a proposition to divide a commission if defendant received one, and if plaintiff was of assistance to him in making the sale by which it was earned. It is as though a real estate broker said to me:

“I have this land for-sale. If you will send me the name of a prospective purchaser who buys it, I’ll give you ten dollars.”

In such a case, I do not promise or agree to do anything. There is no contract. There is a promise of a reward which I may earn by performing the suggested service, and can recover only upon the theory that my services were of some value. The jury found that plaintiff performed a service of value, and returned a verdict in his favor for $25. The judgment entered thereon should not be disturbed; no error being pointed out.


source: Caselaw Access Project

author: FeIllows, J. Bird, J.

license: Public Domain

text:
    YOUNG v. YOUNG.
    1. Contracts — Champertous Agreements — Vat.tmw — Public Policy.
    A paper, signed by a wife in ignorance of its contents, by which she agrees to pay to a certain person part of all moneys, lands, or other property that may be received by her in settlement of a suit to be instituted by her against her husband, and to make no settlement less than a stated sum, and such person agreeing therein to furnish counsel to represent the wife in such suit, is void as being against public policy.
    2. Divorce — Champertous Agreements — Evidence—Good Faith.
    Evidence held, sufficient to show that plaintiff instituted the suit against her husband for divorce in good faith, although she was in ignorance of the contents of the agreement, so as not to warrant the dismissal of the bill. Kuhn, C. J., and Ostrander and Bird, JJ., dissenting.
    3. Same — Alimony—Payment—Discretion oe Court.
    Monthly installments for life, instead of permanent alimony in a lump sum, should be given a wife where she is a woman of middle life, unable to go out to service, and subject to imposition by others.

      Appeal from Calhoun; Tucker, J., presiding.
    Submitted January 15, 1917.
    (Docket No. 129.)
    Decided May 31, 1917.
    Bill by Eugena Young against Myron Young for a divorce. From a decree for plaintiff, defendant appeals.
    Modified and affirmed.'

      H. Attix Kinch (Clink & Farmer, of counsel), for plaintiff.

      Colgrove & Potter, for defendant.
   FeIllows, J.

The defendant at the time this cause was tried in the court below was 63 years old and the, plaintiff 57. They were married July 27, 1898, and their separation took place the fore part of September, 1915. Both had been married before, the defendant’s wife having died in 1894, leaving one child, a daughter seven or eight years old. Plaintiff had a somewhat checkered matrimonial career prior to her marriage to defendant. When 16 years of age she had married a man named Clark, with whom she lived but a month, and then divorced him. In 1877 she married a man named Mudica¿ with whom she” lived until his death in 1888. In 1893 she married a man named Murdock, with whom she lived but a short time, and was divorced from him, due to his dissolute habits. In 1895 she married him again on his promise to lead a better life; in this she was disappointed and left him in a few days. She was divorced from him in 1897, the defendant advancing her money to pay for the divorce. For over a year prior to her marriage to defendant she had been a domestic in his household. She was at the time, of her marriage to him 40 years old. No children were born to them. The defendant’s family at that time consisted of himself, his daughter, and his aged father. He was conducting a large farm and had considerable hired help.

It will be unnecessary to set forth in' detail the pleadings or the testimony taken at the' hearing bearing on their domestic affairs and troubles. After a careful reading of this record we agree with the circuit judge, who saw the witnesses and was well able to judge of their credibility, that the plaintiff had made out a case. We quote from his opinion:

“She had been living in the home of defendant as his housekeeper for about a year prior to her marriage to him, and the parties seem to have had ample opportunity to become thoroughly acquainted with each other prior to their marriage.
“Plaintiff’s mother lives at a place called Yankee Springs, some distance from Battle Creek, and is in poor circumstances. Plaintiff also has several sisters who are not well-to-do.- Her mother lived at the home of defendant for at least a part of the time while plaintiff acted as housekeeper, and one of the sisters and her husband at one time worked defendant’s farm.
“The plaintiff has been devoted to her. mother, -and defendant complains that she has constantly given her money and'merchandise at his expense. As to that, I consider it of no consequence. All the proofs show that whatever she did give her was of small value and was quite the natural thing.
“Plaintiff’s contention is that the defendant was constantly making sneering and abusive remarks about her mother and family, that he was penurious to the last degree with her; was constantly swearing at and about her, telling obscene stories in her presence, and that he made foul and indecent suggestions about her to other men. That a large part of these charges are true I have not the least doubt.
“The defendant gives but one instance of any unwomanly conduct on her part, and that was an unbelievably vile piece of abuse which he claims was directed at him when she was in a fit of anger. It was told with apparent gusto, and I am inclined to discredit it entirely. Defendant did testify to a couple of threats against him by plaintiff which amounted to assault, but I take little stock in them. All of the testimony outside of that, including defendant’s own, goes to show that plaintiff was a hard-working, industrious woman of kindly disposition and a competent housekeeper. No pretense is made that she ever abused or mistreated defendant personally in any way, aside from the incidents above referred to.”

We think it should also be stated that the record discloses that she was all -that could be expected of a mother in the treatment of defendant’s daughter, who was 11 or 12 years old at the time of the marriage, and who was never strong physically and needed a great deal of care. The proof demonstrates this, and defendant admits it. That she was kind and considerate to defendant’s aged father is also established. It should also be stated that when the parties were married defendant owed something over $3,000, and that with the assistance of plaintiff’s economy and good management this was wiped out and a comfortable balance appeared in his bank account. It also appeared in the proof, and we are satisfied, that defendant frequently called her vile names, names imputing a want of chastity; we are satisfied that she was a good woman and fully discharged her duty to the defendant during the upwards of 17 years they lived together.

The defendant not only denies the charges made by plaintiff, but insists in his defense, and this feature of the case is the one most strenuously urged in the brief and oral argument, that this bill was filed as the result of a conspiracy between plaintiff and a man named John H. Quilhot to procure a large amount of money from him by this proceeding, either by way of settlement or decree, and that but for Quilhot this proceeding would not have been instituted. This necessitates a stating of the facts appearing in the testimony bearing on this branch of the case at a greater length than we have felt the case required on the other features.

While the record contains more of insinuations against Quilhot than it does actual tangible evidence, we are satisfied from the evidence that was produced and his connection with this case that he was an adventurer and a crook, and that, so far as his connection with the case was concerned, his motives were purely mercenary.

Prefacing the first meeting between plaintiff and Quilhot, we think it should be stated that it fairly appears that defendant had so arranged the disposition of his property after death as that plaintiff would only receive such part thereof as she would receive by law, and that plaintiff had been made conversant of that fact, that she had purchased a little piece of real estate near her mother’s on a contract; that there was $50 due on the contract which she was unable to pay, and that defendant had refused to let her have this small sum, although he was a man worth somewhere between $20,000 and $25,000. This is not stated in justification of her acceptance of financial assistance from a stranger, but as showing the state of her mind when she first met this smooth and unscrupulous adventurer.

Plaintiff first met Quilhot on an interurban car on September 1st, when she was on her way to Richland Junction to take a train to Hastings. She testifies, and it is all the testimony there is in the case on the subject, that she was crying over the way her husband was treating her. She at that time expected that she was about to lose this little piece of land through inability to make the small payment. She was approached by a stranger who inquired if she was sick. She informed him she was not. He persisted in conversation with her, and finally learned that she was in trouble. He then informed her that he was an attorney, and offered his assistance. Before the conversation ended he learned what her trouble was with reference to the land, and also received information from which he could shrewdly guess that she was having trouble with her husband. As a result of this conversation he offered her a loan and did loan her $90, taking a note from her for $105. After this she saw Quilhot on several occasions and he interested himself in her affairs. Both her attorneys were employed through him. She met her attorney at his residence in Battle Creek, but we do not believe she was over there except on the occasions when she met counsel. She had no means of her own, and he made some small advancements for expenses of the suit and for her to live on, and finally took a deed in the name of a woman whom he called his step-daughter by the name of Dargusch of the land plaintiff had contracted to purchase.

On the cross-examination of plaintiff she was shown a paper which seems to be admitted to be in the handwriting of the Dargusch woman, and the signature of which is admitted by plaintiff to be hers. She, however, denies that she ever signed any such paper, or if signed by her, that she did not know its contents ; that she did sign a paper the day she executed the deed to the Dargusch woman; that she signed it in the Middleville station; that she did not have her glasses with her and did not read it; that it was explained to her by Quilhot that her attorneys had to have some paper showing ’that she would not settle the case out of court, but her attorneys should do the settling; and that she never agreed to give Quilhot a dollar. This paper is as follows:
“Middleville, Mich., September 1, ’15.
“I, Mrs. Myron Young, of the city of Battle Creek, Mich., do hereby agree to pay to John H. Quilhot, one-half of all the money, lands or other property that may come to me in settlement of a lawsuit that I, the said Mrs. Myron Young aforesaid, will be plaintiff in, Myron Young of Battle Creek, Mich., defendant. That no settlement of this case on my part will be made for less than sixteen thousand dollars ($16,000.00).
“John H. Quilhot, of Battle Creek, Mich., agrees on his part to furnish counsel residing outside of Calhoun county, Mich., to represent this plaintiff, wherein Myron Young is defendant, reputed to be worth about fifty thousand dollars, said Quilhot to receive his money the same day that this plaintiff in final judgment of the litigation herein referred to.
“Mrs. Myron Young.”

It is admitted that this paper was not signed the ;day it bears date. If it was signed the day the deed was executed to the Dargusch woman, as testified to by plaintiff, it was signed November 18th. Plaintiff says she does not think she saw Quilhot. after the signing of the paper. The paper was a nullity; as a contract it was void as contrary to public policy. If it was executed with full knowledge of its contents, if this bill was filed as a result of a conspiracy to bleed the defendant, or if this proceeding was instituted because of Quilhot’s influence over plaintiff, and not by reason of a good faith grievance, her bill should be dismissed.

There is no evidence in the case as to the signing of this paper, except that given by the plaintiff, which we have related. It was drawn by Etta Dargusch, who was apparently a tool of Quilhot, but who does not claim to have been present when it was signed. Plaintiff should have signed no papers without first knowing their contents; but she was a weak woman in the hands of a smooth adventurer. She and her husband were having trouble, her relatives were financially unable to assist her in her extremity, her little piece of land would have been taken away but for the assistance of this supposed attorney and friend, but for his assistance, given from mercenary motives it is true, she would have been without the necessities of life waiting for the case to come on. We must deal with human nature as we find it. Plaintiff was credulous and placed confidence where no confidence was due. Had she consulted her attorneys she would have been advised as to the impropriety of signing this or any paper of similar purport. No claim . is made that either of the attorneys appearing for her knew of this paper until it was exhibited to them by counsel for the defendant. They recognize its impropriety and join defendant’s counsel in condemnation of Quilhot and his methods. But can we say, in the absence of •any proof to the contrary, that her version of the transaction is untrue? She is corroborated on other branches of the case by several disinterested witnesses. Her 17 years of faithfulness and service to the defendant and the high esteem in which she is held by all who have known her during her married life and who are called as witnesses all convince us that we should not disregard her testimony on this point, in the absence of any testimony contradictory thereto. Nor do we think this bill is filed through the influence of Quilhot. We have already stated that plaintiff has proven her case; her grievances with her husband are real, and not imaginary; the seriousness of the breach between them is indicated by the defendant’s statements on the stand that he would not live with plaintiff and that it would be impossible to try. We are satisfied that defendant has failed to meet plaintiff’s case, or that he has established any grounds entitling him to a decree.

But we are satisfied that the decree as to alimony should be modified. The allowance to plaintiff was in a lump sum. . The ease with which she was imposed on by Quilhot, and the execution of papers, without knowing their contents, leads us to the belief that a lump sum allowance for alimony is unwise. The plaintiff is now a woman in middle life. She cannot go out to service, and should be provided for by the one legally chargeable with her support. We conclude that this end will be accomplished more surely by a monthly allowance than otherwise. This monthy allowance should be at the sum of $40 during the remainder of her life. The decree will be so modified, and as modified will be affirmed. The alimony will be a lien on defendant’s real estate.

An allowance to plaintiff of $200 for attorney’s fees, together with costs of printing the brief will be made, to be paid on the settlement of the decree.

Stone, Moore, Steere, and Brooke, JJ., concurred with Fellows, J.

Bird, J.

(dissenting). It is too much of a strain on my credulity to believe that these proceedings were instituted and prosecuted in good faith. Matters were reasonably pleasant the morning plaintiff left her home, and her letters afterward indicated that she intended to return. It is more than probable, had she not met the “chance acquaintance” on the interurban car or had he observed the biblical injunction, “Whom God hath joined together let not man put asunder,” she would have returned to her home and husband, and the divorce court would have heard nothing of this case.

Kuhn, C. J., and Ostrander, J., concurred with Bird, J.


author: Fellows, J. Ostrander, J.

text:
    BAYER v. GROCHOLSKI.
    Master and Servant — Res Ipsa Loquitur — Personal Injuries— Question fob Jury.
    In an action by a servant to recover damages for persoiial injuries received as the result of the breaking of a scaffolding which had held three men for two hours while they were at work on defendant’s house and broke when plaintiff went on it, also, held, that it-was a question for the jury whether the scaffold was safe for four men. Fellows and Brooke, JJ., dissenting.

    Error to Wayne; Withey, J., presiding.
    Submitted January 10, 1917.
    (Docket No. 96.)
    Decided May 31, 1917.
    Rehearing denied September 28. 1917.
    Case by Casimir Bayer against Stanislaus Grocholski and another for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      William W. MacPherson, for appellant.'

      John H. Dohrman, for appellee

      On applicability of maxim res ipsa loquitur as between master and servant to fall of scaffold, see note in 28 L. R. A. (N. S.) 586.

   Fellows, J.

(dissenting). The trial court directed a verdict for the defendants. Unless we are willing to apply the rule res ipsa loquitur to the extreme limit of holding that proof of an accident alone is sufficient proof of negligence to take a case to the jury in an action brought by a servant against the master for negligence, the case must be affirmed.

The plaintiff was injured by the falling of a temporary scaffold which had been erected by an independent contractor engaged in the repair of defendants’ dwelling house, in the city of Detroit. Plaintiff testifies that he was employed by defendant Stanislaus Grocholski to work in reshingling this house, which had been damaged by fire, and that while so employed the scaffold collapsed and he was injured. He gave no proof of the use of defective material in the scaffold or improper or defective construction, or that there was any defect that was discoverable upon inspection. It is not pointed out that there are any circumstances proven in the case from which negligence could be inferred, and we are unable to find any in the record.

We have repeatedly held that negligence may be proven by circumstantial evidence, that the circumstances attending the accident and taken in connection with it may be such as to justify an inference of negligence, but that the circumstances must be such as to take the question beyond the realm of guesses and conjecture. Redmond v. Lumber Co., 96 Mich. 545 (55 N. W. 1004); Alpern v. Churchill, 53 Mich. 607 (19 N. W. 549); Stern v. Railroad Co., 76 Mich. 591 (43 N. W. 587); La Fernier v. Wrecking Co., 129 Mich. 596 (89 N. W. 353); Stowell v. Standard Oil Co., 139 Mich. 18 (102 N. W. 227); Casterton v. American Blower Co., 142 Mich. 407 (106 N. W. 61); Powers v. Railroad Co., 143 Mich. 379 (106 N. W. 1117); Sewell v. Railway Co., 158 Mich. 407 (123 N. W. 2); Ammer v. Postal, 168 Mich. 405 (134 N. W. 453).

We have also repeatedly held that negligence must be proven, and that the bare fact of the occurrence of the accident is not evidence of negligence sufficient to take the case to the jury. Early v. Railway Co., 66 Mich. 349 (33 N. W. 813); Toomey v. Steel Works, 89 Mich. 249 (50 N. W. 850); Robinson v. Wright & Co., 94 Mich. 283 (53 N. W. 938); Fuller v. Railroad Co., 141 Mich. 66 (104 N. W. 414); Renders v. Railroad Co., 144 Mich. 387 (108 N. W. 368); Brown v. Bryant, 166 Mich. 180 (131 N. W. 577); Fuller v. Dry Goods Co., 192 Mich. 477 (158 N. W. 1026). We are not unmindful of what was said by Mr. Justice Morse in the prevailing opinion in Barnowsky v. Helson, 89 Mich. 523 (50 N. W. 989, 15 L. R. A. 33). But in that case there was evidence that the roof was not properly braced, and the opinion cites the case of Alpern v. Churchill, supra, to the effect that negligence may be proven by circumstantial evidence, recognizes the rule that “the mere fact of an injury does not impute negligence,” and must not be regarded as holding a contrary doctrine to the cases here cited. Elsey v. J. L. Hudson Co., 189 Mich. 135 (155 N. W. 377, L. R. A. 1916B, 1284).

But it is insisted that, conceding the rule to be that the injury is not of itself evidence of negligence, such rule should no longer obtain in view of the provisions of the so-called employers’ liability act (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5423 et seq.) It is ingeniously argued that the rule now prevailing is based on the theory that the accident may have occurred from either of four causes, (1) through a risk assumed by the servant, (2) his contributory negligence, (3) that of his fellow servant, or (4) the negligence of the master, that it may be a matter of conjecture as to which of these caused it, and that therefore negligence of the master rather than the enumerated causes cannot be presumed to have been the cause — citing Northern Pacific R. Co. v. Dixon, 139 Fed. 737 (71 C. C. A. 555). It is therefore argued that, the defense of assumed risk, contributory negligence, and the negligence of a fellow servant being no longer available to the master under the provisions of the employers’ liability act, the reason for the rule fails and the rule fails with it. We cannot follow plaintiff in this contention; it entirely overlooks the fact that the accident might result from many other than the enumerated causes; nor do we understand the case cited to bear the construction placed upon it by counsel. Judge Sanborn, who wrote the opinion in that case, very clearly, we think, pointed out that there were many possible causes of accident, and did not attempt to limit them to the causes which are no longer available as a defense under the employers’ liability act. He said:

“But the doctrine, ‘res ipsa, loquitur,’ is inapplicable to cases between master and servant brought to recover damages for negligence, because there are many possible causes of accidents during service, the risk of some of which, such as the negligence of fellow servants and the other ordinary dangers of the work, the servant assumes, while for the risk of others, such as the lack of ordinary care to construct or keep in repair the machinery or place of work, the master is responsible. The mere happening of an accident which injures a servant fails to indicate whether it resulted from one of the causes the risk of which is the servant’s, or from one of those the risk of which is the master’s; and for this reason it raises no presumption that it was caused by the negligence of the latter. In such cases the burden of proof is always upon him who avers that the negligence of the master caused the accident to establish that fact, and a naked finding, as in this case, that the accident occurred, and that the servant was guilty of no negligence which contributed to cause his injury, is insufficient to sustain this burden, for there are many other causes than the negligence of the master and that of the servant, such as the negligence of fellow servants and latent and undiscoverable defects in place or machinery, which may have produced it.”

This court said, speaking through Mr. Justice Champlin, in Stern v. Railroad Co., supra:

“We have held that negligence will not be presumed from the mere fact of accident. The fact of accident alone is as consistent with the presumption that it was unavoidable as it is with negligence, and there should be some evidence that it could have been avoided with proper diligence or precaution; in other words, some evidence of negligence other than the mere fact of accident.”

In the case of Powers v. Railroad Co., supra, it was urged upon this court that, inasmuch as no one witnessed decedent’s fall, the presumption of care on his part arose; that the accident occurred from one of two causes, negligence of decedent or negligence of defendant; that the presumption that decedent was in the exercise of due care took the cause out of the realm of conjecture; and that a case was made for the jury. Mr. Justice Hooker, speaking for the court, said:

“This view takes no account of the fact that a man may suffer an injury without being negligent himself, and where a defendant is not negligent, or where, being negligent, such negligence was in no way the cause of the accident. Grant that in this case a presumption takes the place of proof of due care on the part of the deceased, does it relieve the plaintiff also from the burden of proving, as in other cases, (1) the negligence of defendant, and (2) that the injury was caused by such negligence? Upon such a theory the burden of proof, as to both of these facts, is shifted in all cases where the accident is without witnesses, except the injured party, who met death in the accident, and it would follow that many of the cases are wrongly decided; and it would seem that there is no excuse for the enunciation of the doctrine that a case should not go to the jury where a verdict must rest upon a conjecture or guess, a rule which has been iterated and reiterated by many if not most courts, including our own” — citing the cases.

From what we have said it follows that the employers’ liability law does not relieve the servant from proving negligence of the master, and that such negligence will not be presumed from the accident alone.

There is no evidence of any circumstances which, taken in connection with the accident, would permit the inference of negligence of defendants. The undisputed testimony shows that the work was being performed by an independent contractor who built the scaffold the day before, that no defective material was used by him in erecting the same, and that it was properly constructed. The court below correctly directed a verdict for the defendants.

The judgment should be affirmed, with costs.

Brooke, J., concurred with Fellows. J

Ostrander, J.

It is, I suppose, the duty of one who constructs a scaffold for the use of his employees to make it safe. If built for the use of one man, and it falls when he goes upon it, the necessary inference is that it was infirm and insufficient for the use for which it was made and to which it was put. If built for the use of three men, and it supports three men, and breaks when a fourth man is set to work upon it, the necessary inference is, no other cause appearing, that the scaffold was not built strong enough to accommodate four men and was overloaded when the fourth man went upon it.

Thé scaffold in question had held three men during two hours of work; it went down, broke down, when a fourth man was set to work upon it. One of the three men at work upon it protested, if mildly, the introduction of another man, saying that the scaffold would not hold four. It was tendered to the fourth man, the plaintiff, if it was tendered to him at all, by the defendants, as a safe place. I do not think that whether it was safe for four men is conjectural.' The testimony for plaintiff tends to prove much more than an accident and resulting injury. Viéwed favorably to the plaintiff, the testimony made a case for a jury.

The judgment should be reversed, and a new trial granted, with costs to appellant.

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


author: Stone, J,

text:
    CHAPIN v. CITIZENS’ TELEPHONE CO.
    1. Corporations — Rights op Stockholders — Actions — Prerequisites.
    A bill by a stockholder of a corporation by which he sought to have set aside, if illegal, an exchange of dividend paying stock by certain stockholders and officers of the corporation for nondividend paying stock in another corporation owned by such stockholders and officers, or, if such exchange was legal, to have effected a similar exchange of stock owned by plaintiff in both corporations, was demurrable where there was no allegation that plaintiff had first sought redress of the stockholders or directors of the first corporation.
    2. Same — Power to Purchase Other Corporate Stock — Statutes.
    An allegation of the bill that the first corporation had no authority to make the purchase of stock of the corporation by exchange for its own stock, was defective because not stating the particulars in which such purchase was illegal, as such purchases are legal under certain circumstances, under Act No. 129, § 4, Pub. Acts 1883 (2 Comp. Laws 1915, § 8791), providing that it shall be lawful for a corporation to'purchase and hold a portion of the stock of another corporation owning or controlling by patent or otherwise the use of any instrument or device necessary to carry out the purposes of its organization.
    3. Equity — Demurrer.
    The grounds of demurrer of laches and the statute of limitations to a bill by a stockholder in a corporation seeking to have set aside a purchase by the corporation of stock in another corporation, should not be disposed of on demurrer or in advance of the hearing.
    Appeal from Ingham; Collingwood, J.
    Submitted April 10, 1917.
    (Docket No. 125.)
    Decided May 31, 1917.
    Bill by Edward C. Chapin against the Citizens’ Telephone Company and others to set aside the transfer of certain corporate stock, and for an accounting. From an order overruling a demurrer, defendants appeal.
    Reversed.

      Edward C. Chapin and Edwin H. Lyon, for plaintiff.

      Swarthout & Master, for defendants.
   Stone, J,

This case is before us upon an appeal from an order of the circuit court for the county of Ingham, in chancery, overruling a demurrer of the defendants to the bill of complaint. The appeal was allowed by an order of one of the Justices of this court. In his bill of complaint plaintiff alleges his ownership of shares, represented by pooling agreement certificates, in defendant Citizens’ Telephone Company of Grand Rapids (hereinafter called the Grand Rapids company), also ownership of shares, represented by similar trustee certificates, in the Citizens’ Telephone Company of Jackson (hereinafter called the Jackson company).

On information and belief, the bill alleges that in the year 1904 certain stockholders and officers (but what officers is not alleged) of the Grand Rapids company, who also owned stock in the Jackson company, acting as officers and agents of the' Grand Rapids compansq on the one hand, and as individual owners of the Jackson company stock on the other, issued and delivered to themselves sundry shares of Grand Rapids company stock or pooling certificates, in consideration of turning over their Jackson company certificates to the Grand Rapids company on the basis of four shares of Jackson to one share of Grand Rapids stock. The dates of these respective exchanges are tabulated, the first on February 28, 1904, and the last, on October 20, 1904; that the Grand Rapids stock pays dividends, and the Jackson stock does not, and is quoted below par.

Plaintiff states that he did not learn of said exchanges, “until on or about the year 1906, as near as your orator can now state the time, being within the last six years,” since which time he has been trying to get information. The bill was filed September 2, 1911. He nowhere alleges that there was any fraudulent concealment of his claimed right of action. The bill does not allege that plaintiff has asked the Grand Rapids company to bring suit to set aside this transfer of stock as illegal. He does allege that he was asked that company to take over his Jackson stock in the same way. His equities, as he is advised, are set forth in paragraph 18, as follows:

“That said Citizens’ Telephone Company of Grand Rapids did not have authority to exchange its stock for stock of the Jackson company, except in case of a purchase of the Jackson company, and that if such purchase was not made, then the exchanging of the stock by the officers of the Grand Rapids company was a fraud upon the company, your orator, and the other stockholders, or if said Grand Rapids company had the authority to make such exchange, then it was bound to exchange, or offer to exchange, its said stock for any remaining outstanding Jackson company stock.”

This is the only allegation of fraud in the bill. The prayer for relief is in the alternative, as follows:

“If the court finds the exchange of the stock of the Citizens’ Telephone Company of Grand Rapids for the stock of the Citizens’ Telephone Company of Jackson, as stated in the foregoing bill, was illegal and without authority, then that the court decree that all of said defendants, and all other persons whose names may be hereafter ascertained, and made defendants herein, return the stock of said Citizens’ Telephone Company of Grand Rapids, issued to them in exchange for stock of the Citizens’ Telephone stock of Jackson, and all dividends paid them, or either of them, on said stock, with legal interest on each dividend, from time of payment of same by said Grand Rapids company. Or, if the court finds that the said exchange of stock was lawful, then that the Citizens’ Telephone Company of Grand Rapids be decreed to issue to your orator one share of the stock of said Citizens’ Telephone Company of Grand Rapids for each four shares of the stock of the Citizens’ Telephone Company of Jackson now held by him, and also pay your orator in cash a sum of money which will equal the dividends he would have received if the exchange had been made at the date of the last exchange named in the bill of complaint.”

The demurrer is voluminous, containing 41 alleged reasons. We shall not discuss all of them.

The 18th reason is that the bill shows no equity on ■its face, and presents no cause for the interposition of a court of equity.

The 34th reason is that it nowhere appears by the bill that plaintiff has taken the proper and necessary steps and sought redress through the directors or stockholders of the Grand Rapids company. He does not show that he has attended any meeting of the stockholders of that company and asked for relief. He does not show that he has ever called the subject-matter to the attention of the directors of that company. He therefore has no standing in equity.

The 20th reason is that it is alleged by the bill of complaint that the Grand Rapids company has no right or power, under the law to purchase stock in the Jackson company, and that this is not the law.

The first proposition discussed by defendants is that plaintiff does not allege equities which entitle him to file the bill, and particularly not without a demand on the directors and officers of the Grand Rapids company to file, or authorize the filing of, the bill in the name of that company. This is not a mere technicality. It strikes at the right of a stockholder to bring a suit in equity. Puterbaugh’s- Michigan Chancery ('3d Ed.), pp. 639, 640, states the rule as follows:

"The failure or refusal of the corporation itself to demand redress is a condition precedent to the right of a shareholder to sue or appear as plaintiff. The complaint should aver that the corporation, on request, has refused to bring the proper action; otherwise it is demurrable.”

In People, ex rel. Township of La Grange, v. State Treasurer, 24 Mich. 468-473, this court quoted the language of Nelson, J., in City of Memphis v. Dean, 8 Wall. 64:

"This refusal of the board of directors is essential in order to give to the stockholder any standing in court, as the charter confers upon the directors representing the body of stockholders the general management of the business of the company. There must be a clear default, therefore, on their part, involving a breach of duty, within the rule established in equity, to authorize a stockholder to institute the suit in his own behalf, or for himself and other stockholders who may choose to join.”

See, also, Talbot v. Scripps, 31 Mich. 268.

In Robinson v. Motor Car Co., 170 Mich. 163, at page 166 (135 N. W. 897, at page 898), after stating the general rule, this court said:

“A court of equity will however, entertain jurisdiction to redress them [corporate wrongs] at the suit of a stockholder, when it is made to appear that he has made an effort to have the board of directors act, and they have neglected or refused to do so; * * * and,1 in cases where the directors or those in control are guilty of the wrongs against the corporation, the stockholder is excused from making any effort to induce the board of directors'to act, on the theory that the offending parties would be unlikely to start proceedings against themselves. Miner v. Ice Co., 93 Mich. 97 [53 N. W. 218, 17 L. R. A. 412]; Flynn v. Third Nat. Bank, 122 Mich. 642 [81 N. W. 572]; Torrey v. Cement Co., 150 Mich. 86 [113 N. W. 580].”

We adhere to this rule, but it cannot be applied to the instant case in the present condition of the bill. After reading the bill we are unable to say who constituted the board of directors of the Grand Rapids company. Their names are not disclosed, nor are the officers of the company named. We think that the bill is defective in this regard.

It is claimed by the bill of complaint that the Grand Rapids company had no right or power, under the law, to purchase stock in the Jackson company, except in case of a purchase of the latter company. The statute under which the Grand Rapids company was organized contains the following provision:

“And it shall be lawful for any such corporation to purchase and hold a portion of the stock of any corporation owning or controlling by’patent or otherwise, the use of any instrument or device necessary * * * to carry out the purposes of its organization.” Section 4, Act No. 129, Pub. Acts 1883; section 8791, 2 Comp. Laws 1915.

See, also, Home Telephone Co. v. Railroad Commission, 174 Mich. 219, 230 (140 N. W. 496).

The Grand Rapids company, therefore, under certain circumstances, had the right to purchase and hold a portion of the stock of the Jackson company, and the bill is defective in not stating the particulars in which the purchase was illegal. This defect may be remedied by amendment.

In our opinion the bill is inartificially drawn, and had it been taken as confessed, we are at a loss to determine what relief the plaintiff would have been entitled to, not because of the alternate prayer for relief, but because of thé theory of the bill.

Other grounds of demurrer alleged, to wit, the questions of laches and the statute of limitations, cannot properly be disposed of on demurrer, or in advance of the hearing. People v. Railroad Co., 145 Mich. 140 (108 N. W. 772); People v. Railway Co., 169 Mich. 72 (135 N. W. 87).

For the reasons stated the order of the circuit court is reversed and the case remanded, with leave to the plaintiff to amend his bill of complaint, under the rule, with costs of the appeal to appellants.

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


author: Stone, J.

text:
    HYATT v. LEONARD STORAGE CO.
    1. Evidence — Admissions—Corporations—Employees.
    In an action to recover for personal injuries sustained by an interurban car passenger as tbe result of a collision between such car owned by defendant railway company and a moving van owned by another defendant, a storage company, held, that conversations between the driver of the moving van and the superintendent and the motorman of the railway company more than a half hour after the accident as to its cause, were not admissions of the storage company, and admissible as such against it, as such driver was not an agent authorized to admit facts or make statements involving liability of his principal.

    2. Same — Res Gestae.
    The conversations as to the cause of the accident with the driver of the moving van were not admissible as part of the res gestee.

    3. Appeal and Error — Prejudicial Error — Conversations.
    The erroneous admission of conversations as to the cause of a collision between an interurban car and a moving van, in an action by a passenger on the interurban car against the railway company and the owner of the moving van to recover for personal injuries sustained in the collision, was prejudicial error, where they were probably controlling of the verdict in the case.

      Error to Oakland; Smith, J.
    Submitted April 6, 1917.
    (Docket No. 82.)
    Decided May 31, 1917.
    Case by Manly Hyatt against the Leonard Storage Company and the Detroit United Railway for personal injuries. Judgment for plaintiff against defendant storage company, which brings error.
    Reversed.

      Bishop & Kilpatrick, for appellant.

      Charles S. Matthews, for appellee.

      James H. Lynch, for defendant railway.

      On admission in evidence of statements made some time after accident as res gestee, see note in 42 L. R. A. (N. S.) 917.

   Stone, J.

This action was brought jointly against the Detroit United Railway and the Leonard Storage Company to recover damages for personal injuries received by the plaintiff.

On June 30, 1915, at about 12:05 a. m., the plaintiff boarded an interurban car owned and operated by the defendant the Detroit United Railway and running between the cities of Detroit and Pontiac. He boarded the car at the 6-mile road just outside the city of Detroit, and paid his fare to the city of Pontiac. After riding about 30 minutes a collision occurred between the car in which plaintiff was riding and a moving van belonging to the defendant the Leonard Storage Company. The collision occurred at the intersection of the 11%-mile road with Woodward avenue. This intersection was a regular crossing for traffic over said road across the Detroit United tracks to Woodward avenue. The tracks were filled in so that the top of the rail and the roadbed were level, and the intersection was a regular road crossing over the interurban track. The interurban tracks at this point ran parallel with Woodward avenue, along the east side, so that to reach Woodward avenue from a position on the 11%-mile road east of the avenue it was necessary to first cross the interurban tracks.

The plaintiff received, injuries, the nature and extent of which we need not describe. There is no claim that he was guilty of contributory negligence. The moving van was being driven by one Arthur E. Sutton. He had been delivering for the defendant the Leonard Storage Company a load of furniture at a house a short distance east of Woodward avenue and the railroad tracks, on the 11%-mile road. After delivering the furniture the van was driven west on said road, and it is the claim of said defendant the Leonard Storage Company that it started to cross the interurban track onto Woodward avenue, both its head and tail lights being lighted. That the tail light was lighted was disputed by the motorman. It was the claim of said defendant that it was while the van was on this intersection that the collision occurred, although there was evidence tending to show that the van was 200 feet down the track, and practically on the track, “the same as the car was,” and going toward the 12-mile road, so called. There was evidence that there was a very dense fog, that the headlight of the interurban car did not show more than 50 feet ahead, and that the motorman could not see farther than this distance ahead of his car. He testified that at the time of the accident he was going as fast as he .could, and that he did not blow the whistle when he saw the van. On cross-examination he testified:

“I could not see over 50 feet ahead of my car. Above my controller, on the street car, there is a rule of the street car company that on a foggy night you must keep your car under control so you can stop within the distance you can see ahead. I did not have my car under control so I could stop it within 50 feet. My car traveled quite a ways after it struck the truck. I was running my car about as fast as it would go at this point.”

There was other testimony that it was going about 45 or 50 miles an hour, and went about a quarter of a mile after the accident before it stopped. The van was thrown to the side of the tracks a distance of 30 or 40 feet north of the 11%-mile road.

The trial resulted in a verdict and judgment for $1,000 damages against the defendant the Leonard Storage Company and a verdict and judgment in favor of the defendant the Detroit United Railway. The defendant the Leonard Storage Company has brought the case here on writ of error. There are a number of assignments of error, but in our view of the case it is only necessary to discuss the 5th and 7th.

The 5th assignment of error is to the effect that the court erred in admitting over objections and exceptions the following testimony of the witness Mr. Peters: This witness was examined by the attorney for the Detroit United Railway, and he testified on direct examination as follows:

“I am employed by the Detroit United Railway as superintendent. I recall the time of the accident. I was at the accident; I arrived about a half hour after it happened.
“Q. And were the men who were in charge of the car there?
“A. One of them was there.
“Q. Now, did you have any talk with him in regard to how the accident happened?
“A. Yes, sir.
“Q. What did he say?
“Mr. Barbour: I object to that conversation he had with somebody. What a man might say that was working for you is not binding on the Leonard Storage Company.
“The Court: It is a corporation, is it not?
“Mr. Barbour: Yes, your honor.
“The Court: What do you say about a company being bound by a statement of an employee? I think it is admissible. You may take it. (Exception.)
“Q. What did he say; that is, I mean with reference to where it was and how it came there?
“A. Well, you want me to relate the conversation?
“Q. No; answer the question just as it is, what did he say with reference to where he was and why he was there?
“Mr. Barbour: I object to that. Give me an exception. (Exception.)
“A. He said he was on the way to the 12-mile road, and he thought the last car was gone, and he was told so by the people of that vicinity, and he waited two hours for it to go.
“Q. Did you have any talk with the man in charge of the van in regard to these rails that night at that time?
“A. Yes, sir.
“Mr. Barbour: I object to that question.
“The Court: That is covered by the other ruling.
“ (Exception.) ”

The seventh assignment of error complains of the overruling of the objections to the following testimony given by Fred Schultz, the motorman of the wrecking crew, in regard to a conversation alleged to have been held with the employees of the Leonard Storage Company 30 minutes after the accident:

“Q. Did you see the man who operated the van that night?
“A. Yes, sir.
“Q. Did you have any talk with him how the accident occurred?
“A. Yes, sir.
“Mr. Barbour: I make the same objection and take an exception.
“Q. What conversation did you have with him there? (Exception.)
“Q. Tell the conversation, what you said to him and what he said in reply.
“A. I asked him how he happened to be on the track out there like that on a foggy night like that was and ‘Why,’ he says, T was going to the 12-mile road to go across,’ and I says, T shouldn’t think you would take a chance on a night as foggy as this and go on the track.’
“Mr. Barbour: I object to that.
“The Court: May remain. (Exception.)
“Q. What reply?
“A. I says, T shouldn’t think you would want to take a chance on your own risk of going on a track on such a night as this when it was so foggy as this.’ ‘Why,’ he says, ‘they told me — I asked a fellow there, and he said that the last car had gone north,’ and I says, ‘Where were you going this way/ and he says, ‘Why, I was going down the track to the 12-mile road and then going across, and then going back to the city/
“Mr. Barbour: I ask that that be stricken out as being hearsay, not only hearsay, but what somebody else told him.
“The Court: Motion overruled. (Exception.)”

That this testimony of the statement made by Sutton was deemed important, if not controlling, in the case, appears by the following excerpt from the charge of the court:

“If the jury believe that on the night in question Mr. Sutton entered upon the easterly track of the defendant Detroit United Railway with the intention of proceeding northerly thereon to reach the 12-mile road, then I charge you that whether or not he was negligent is a question of fact for the determination of the jury. * * *
“On the part of the defendant Leonard Storage Company I charge you that the crossing at the 11%-mile road on Woodward avenue is a public highway crossing, and that the Leonard' Storage Company had a right to the use of said crossing and was not guilty of any negligence merely by being on and using said crossing for the purpose of travel. But I mean no more in giving you that than this, gentlemen, that the storage company’s van and driver of that van, had a right merely to pass from the east side of the steam road or the side of the electric road across both tracks to the west side. I don’t mean to say he had a right to stop' as long as he wanted to, if he did stop. That means no more than he had a right to use it for the purpose of traveling across it in the usual manner, or in such a way as would be proper and usual for a van of that nature, and I add this: It is due the other parties to this suit that I call attention to their claim that the storage company’s van was doing more than using the crossing, to wit, that the van was in the act of turning north to use the railway track to the 12-mile road.. Now, you will take that into consideration in connection with the request I gave you.”

The record shows that the driver, Sutton, was in Florida at the time of the trial. Upon a motion for a new trial upon the ground of newly-discovered evidence the affidavit of said Sutton denies that he made any such statement as was claimed by the witnesses, and denied that he was attempting to use the trolley track as a roadway.

It is urged by the appellant that the judgment below should be reversed because the court erred in admitting in evidence the testimony of thé said superintendent and the motorman of the wrecking crew as to the conversations alleged to have been held more than one-half hour subsequent to the collision, with the driver of the van; this testimony being purely hearsay in character, and not admissible under any rule of law. It is said:

(1) That the conversations could not properly be introduced as admissions on the part of the defendant the Leonard Storage Company.
(2) That such conversations could not properly be admitted as constituting a part of the rest gestas.

1. It is argued, and we think properly so, that the alleged conversations could not be legally introduced as admissions of the defendant the Leonard Storage Company, because the driver was not an agent authorized to admit facts or to make statements involving the liability of his principal. This rule is well stated in 16 Cyc. p. 1008:

“It is to be observed that in the law of agency it is no part of an agent’s duty to prejudice his principal by narrative statements construing or otherwise affecting his principal’s rights or liabilities, or to discuss the propriety of his conduct even in relation to the subject-matter of the agency. On these grounds, rather than that of irrelevancy, rests the broad general rule that an agent’s narrative of a past transaction does not affect the principal.”

Prof. Wigmore, in his work on Evidence, discusses this question at section 1078, and says:

“The most difficult field in the application of this principle is that of tortious liability. For example, if A. is an agent to drive a locomotive, and a collision ensues, why may not his admissions after the collision, acknowledging his carelessness, be received against the employer? Because his statements under such circumstances are not made in performance of any work he was set to do.”

This doctrine is in accord with the numerous decisions of this court: Horner v. Fellows, 1 Doug. (Mich.) 51; Benedict v. Denton, Walk. Ch. (Mich.) 336; Canadian Bank of Commerce v. Coumbe, 47 Mich. 358, 366 (11 N. W. 196); Andrews v. Mining Co., 114 Mich. 375 (72 N. W. 242); Maxon v. Railroad Co., 117 Mich. 218 (75 N. W. 459); Hall v. Murdock, 119 Mich. 389 (78 N. W. 329); Mott v. Railway Co., 120 Mich. 127, 133 (79 N. W. 3).

In the Andrews Case the trial court permitted the coroner of the county to testify to the contents of the deposition of Captain Maslin, who had been sworn at an inquest. This court said:

“The court was in error in permitting this deposition to be read. It was not offered for the purpose of impeaching Captain Maslin, but for the purpose of proving a substantive fact; that is, that Maslin knew the mine was in a dangerous condition when he ordered the men in there. It is conceded that it was no part of the res gestes. It has many times been held by this court that the declarations of an agent as to a past transaction are inadmissible to bind the principal. Michigan Cent. R. Co. v. Coleman, 28 Mich. 440; Mabley v. Kittleberger, 37 Mich. 360; Patterson v. Railway Co., 54 Mich. 91 [19 N. W. 761]; Stebbins v. Township of Keene, 55 Mich. 552 [22 N. W. 37]; Wormsdorf v. Railway Co., 75 Mich. 472 [13 Am. St. Rep. 453].”

2. It appears to be the claim of the appellees that those statements were admissible as part of the res gestse, and that they fall within the rule stated in Keyser v. Railway Co., 66 Mich. 390 (33 N. W. 867); Smith v. Railway, 155 Mich. 466 (119 N. W. 640); Gilbert v. Railroad Co., 161 Mich. 73, 78 (125 N. W. 745); People v. Johnson, 186 Mich. 516, 521 (152 N. W. 1096); Jolman v. Alberts, 192 Mich. 25 (158 N. W. 170).

We are of the opinion that all of the foregoing cases can be distinguished from the instant case, which we think is controlled by the following decisions of this court: White v. City of Marquette, 140 Mich. 310 (103 N. W. 698); Bernard v. Paper Box Co., 170 Mich. 238, 241 (136 N. W. 374, 42 L. R. A. [N. S.] 930); Rogers v. Railway Co., 187 Mich 490, 493 (153 N. W. 784); Chapman v. Express Co., 192 Mich. 654 (159 N. W. 308).

In the Bernard Case Justice McAlvay used the following quotations:

“ ‘The statements of an agent, when made in the course of his employment, and while engaged in the business of his principal, are binding upon the principal, because they are part of the res gestse; but no agent is employed to make admissions outside of his employment. * * * In the case of Vicksburg & Meridian Railroad v. O’Brien, 119 U. S. 106 [7 Sup. Ct. 118], the court, quoting Mr. Justice Strong {Northwestern Packet Co. v. ClougK], 20 Wall 541, states the principle of the rule to be that, “The agent to do the act is not authorized to narrate what he had done and how he had done it, and his declaration is no part of the res gestse.” Hall v. Murdock, 119 Mich. 390 [78 N. W. 329].’
“ ‘We think there was no error in excluding this testimony. The injury had already occurred. It became a matter of narration, and was not even narration of the incident, but of the cause which led to the incident. We think the question was within the ruling of this court in Andrews v. Mining Co., 114 Mich. 375 [72 N. W. 242]; Michigan Cent. R. Co. v. Coleman, 28 Mich. 440.' Dompier v. Lewis, 131 Mich. 144 [91 N. W. 152].”

In White v. City of Marquette, supra, this court said:

“If such statement is made at or near the time and place of the accident, is spontaneous, and so closely connected with the occurrence as to be evoked or prompted by it, it becomes part of the transaction itself, and is admissible as res gestae. On the other hand, narrations not the natural and spontaneous outgrowth of the occurrence, and so far separated' from the act they are alleged to characterize that they are not a part of it, and so connected with it as to receive credit from it, are purely narratives of a transaction already past and completed, and are hearsay.”

The distinction between the two classes of cases is well defined. We are of the opinion that the conversations testified to were no part of the res gestae.

One cannot read this record without being impressed with the fact that the testimony here complained of was probably controlling of the verdict in the case, and we think, therefore, that its reception was prejudicial error.

Other questions discussed by counsel are not likely to arise upon a new trial.

The judgment of the court below is therefore reversed as to both defendants, with costs to the appellant against plaintiff and defendant Detroit United Railway.

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