text:
    THOMSON ELECTRIC WELDING CO. v. PEERLESS WIRE FENCE CO.
    1. Contracts — Patent Rights — Lease.
    Where a lease of certain patent rights specified the in- ' ventions by number, and included 111 distinct patents, which were not all that defendant then owned, and the lease did not refer to such other rights of the same character as plaintiff had and controlled, the term of the lease was limited to the life of those rights which were specifically enumerated, and could not be extended by the proof of other patents that were owned or held by plaintiff at the time of making the lease, and expired at a later date than those referred to.
    2. Same — Construction—Royalty Contract.
    Express reference in a contract to one or. more things in. a given class, implies that others not so included are not within its provisions, especially in a contract drawn and prepared by one of the parties, who asks that it be interpreted in a light favorable to him, being subject to the rule of construction that a contract is to be construed most strongly against the party using the language.
    3. Same — General Rule.
    And it must be. construed as an entirety, so far as possible, reconciling and giving meaning to every part and clause; general and unlimited terms are restrained and : limited by particular recitals when used in connection with them, and recitals, as well as operative clauses, should be considered as a part of the whole.
    Error to Lenawee; Chandler, J.
    Submitted January 6, 1916.
    (Docket No. 51.)
    Decided March 30, 1916.
    Assumpsit by the Thomson Electric Welding Company, a foreign corporation, against the Peerless Wire Fence Company, a corporation, for damages for breach of covenants in certain leases. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Daniel J. Lyne and Edwin Merrick Dodd, Jr., for appellant.

      J. N. Sampson and Wilber Owen, for appellee.
   Steere, J.

Plaintiff brought this action to recover from defendant damages for breach of the covenants contained in four leases it had given to defendant of certain electric welding machines. The case was tried before a jury in the circuit court of Lenawee county, and a verdict directed for defendant.

Each of the four leases was for a single electrical welding machine, the same printed form being used for all, and the blank spaces pen-filled with the varying identifying numbers, dates, etc. They were respectively dated June 1, 1905, November 15, 1905, August 31, 1907, and December 2, 1907. These machines wer;e received, accepted, used, and the stipulated rental or royalties paid for them by defendant until July 14,1910, when it returned the four machines to plaintiff and refused to make further payments. As disclosed upon the record, the chief contention between the parties arises over the duration of the leases, the material portions of which having a possible bearing upon this question may be stated as follows:

In each lease the subject-matter, in relation to which the parties contract, is introduced by the following recitals, which immediately precede and connect with the first contracting clause of the instrument as indicated:

“Whereas, the lessor is the owner of the following letters patent of the United States [designating by numbers a list of 111 patents], relating to the art of welding or otherwise treating metals by electricity, or to apparatus for use in connection therewith; and the lessor may apply for and secure letters patent of the United States on other similar inventions;
“And whereas, the lessor is engaged in the manufacture of apparatus operating according to or embodying the invention described in said letters patent or some of them;
“And whereas, the lessee desires to acquire the right to use the apparatus so* manufactured which is specified in the schedule hereinafter contained, for the purpose hereinafter named in clause 3, within the places or territory specified in said clause:
“Now, then, it is hereby mutually covenanted and agreed between the parties hereto as follows:
“(1) The lessor, in consideration of an initial rental to it paid by the lessee on the execution hereof, to wit, the sum of four hundred dollars ($400), and of the covenants of the lessee hereinafter contained, * * * this lease to continue in force until the expiration of all the letters patent of the United States now or hereafter owned by the lessor, the inventions of which are or shall be embodied in said apparatus, or at any time involved in the use thereof.”

Clause 3, mentioned in the second recital, restricts use of the apparatus leased to defendant’s - factory at Adrian, Mich., “for the sole purpose of welding iron and steel wire into lengths from coils or reels.” Clause 6, which states, “Following is the schedule heretofore referred to,” has different numbers inserted in each lease to designate the machine it applied to, and otherwise des'cribes the property leased as:

“Marks 2A — 2EE—Electric welder, 300 volts, 15 amperes, with spring pressure device, including automatic ‘G’ brake switch. Reactive coil.”

By clause 7 the privilege is given defendant to purchase the leased machines for a nominal sum after fully complying with the terms and conditions imposed, “upon the expiration of all the letters patent of the lessor the inventions of which shall at any time be embodied in the leased apparatus or involved in the rise thereof,” and by clause 9 plaintiff reserves the right, in case of defendant’s default, to terminate the leases upon 15 days’ notice in writing, “but the lessee shall not'by any such termination be released from liability to pay all sums then already accrued under the instrument.” By clause 10, “upon any termination of this lease under the provisions of clause 9,” plaintiff is authorized to repossess itself of the property, or pursue its appropriate remedies “against the lessee or the persons in ‘whose possession said apparatus or any parts thereof may be found.” Neither party, however, took any steps to avail itself of these clauses, as the machines were sent back upon the date stated, and plaintiff brought this action against defendant to recover rental or royalties for their longer use, on the ground the leases had not yet expired. Other provisions and covenants not material here are contained in the instruments.

Upon the trial plaintiff introduced the evidence of Mr. Hodges, its general manager, to the effect that its last expiring patents embodied in the respective machines leased to defendant were numbered 649,179 and 719,508 — numbers which were not included in the list of patents enumerated in the leases nor elsewhere particularly pointed out as those owned by plaintiff at the time the leases were executed. Plaintiff then sought to introduce certified copies of the letters patent in relation to which Hodges testified, for the purpose of showing that they were yet in force when defendant,, on July 14, 1910, returned the machines and refused longer to pay royalties upon them. To these counsel for defendant objected on the ground that they were, not mentioned in the leases and had no connection with, them; that the contracts were complete in and of themselves to the exclusion of the patents sought to be proven, and nothing in the evidence so connected the. contracts with those patents as to entitle them to be considered.

While other objections were made and other questions raised on rulings, the case finally turned on the admissibility of proof of these patents. The court ruled that they were not admissible, and directed a verdict for defendant, construing the leases as too indefinite in that particular to permit receiving in evidence any letters patent not enumerated in them for the purpose of fixing their duration, saying in part:

“In other words, the construction I put upon this contract, there is no proof could be offered as to the time it was to run, excepting as it would be mentioned in the letters patent which are enumerated in the contract ; and, none such having been offered in evidence, there is nothing to go to the jury.”

It is conceded in the briefs of counsel that the exclusion by the trial court of the patents offered in evidence and the rulings in that connection are the controlling matters for consideration here. This raises but the single question whether, on the issue made, duration of the leases is limited by their terms to the life of such patents or inventions as are by number stated in their recitals, or whether the wprding of the leases, taken as a whole, authorized other patents not specifically mentioned, but relating to such inventions and embodied in the apparatus leased and then owned by plaintiff to be proved and taken into consideration. No question of later inventions or subsequently acquired patents is involved. Plaintiff makes no contention here, and did not claim or offer to prove upon the trial, that any patents “hereafter owned” by it (speaking from the date of the leases) were ever embodied in the leased apparatus, or that any of its patents enumerated in the leases were unexpired when the machines were returned. The only direct provision as to duration of these leases is in the concluding portion of clause 1, above quoted. Plaintiff contends that the language there used is so plain and unequivocal that it can have but one meaning and permits no other by construction or interpretation; that the letters patent it •sought to prove covered inventions embodied in the apparatus leased which had not expired and were owned by it when the leases were made, all of which it was able and ready to prove if permitted; that the contract -was neither indefinite nor uncertain as to time of termination, for that is certain in law. which can be made certain. While defendant contends that, construing the contract as a whole, the language relied upon by plaintiff is qualified by the context, and restricted in its application to patents which it was recited, understood, and agreed between the parties plaintiff owned at the time the contract was made or to those thereafter acquired, if subsequently embodied in the machines. In other words, as we understand defendant’s claim, it invokes a doctrine of estoppel by recital.

The nature of the contracts makes apparent the reason for, and no misunderstanding could well arise over, the provision protecting defendant in the right to use any patented improvements subsequently acquired by plaintiff which might be added to or embodied in the machines, and which, if used by defendant, would prolong the time during which rental or royalties should be paid; otherwise the time of termination of the contracts could be definitely fixed when the agreement was entered into, either by general reference to all the patents plaintiff then owned or to particular ones definitely designated covering inventions made use of in the machines. Plaintiff apparently attempted to do both, which defendant contends resulted in so clouding the agreement, considered in its entirety, with misleading language and confusing provisions as to render applicable the excluding rule of construction that:

“The expression in a contract of one or more things of a class implies the exclusion of all not expressed, although all would have been implied had none been, expressed.” 9 Cyc. p. 584.

These contracts, considered as a whole, are not harmoniously worded with reference to the time of their termination, and at least give opportunity for misunderstanding. The question is whether by fair interpretation it should be held as a matter of law that the minds of the contracting parties met, or should have met, upon the proposition contended for by plaintiff. The form of contract was furnished by plaintiff, and the language used is of its choosing. It related to plaintiff’s products of manufacture, inventions, and patents in the peculiar knowledge of which the parties were not on an equality. Any words, or clauses which are ambiguous, uncertain, or which tend to doubtful meaning by modifying each other are to be construed most strongly against the party who has prepared the contract and is responsible for the language used. It is true that recitals are not necessary to a valid contract. The parties might, if they chose, have omitted them. Plaintiff saw fit to adopt them in framing the contract, and both parties accepted them. When resorted .to in drafting contracts, recitals serve as a preface or preliminary statement introducing the subject in relation to which the parties contract, indicating to a greater or less degree the reason for and intent of what follows. Recitals are of two kinds, particular and general. Particular recitals involving a statement of fact are, as a rule, to be treated as conclusive evidence of the fact stated; while general recitals may not be.

It is stated in the beginning that plaintiff owns “the following letters patent,” which are definitely designated by number, “relating to the art of welding or otherwise treating metals by electricity,” etc., and may secure others, that it is engaged in manufacturing apparatus utilizing the “inventions described in said letters patent, or some of them,” and that defendant “desires to acquire the right to use the apparatus so manufactured,” and as described in clause 3. Having thus introduced the subject-matter and designated by number said letters patent which plaintiff then owned, and in relation to which it was intended to contract, including in general terms any plaintiff might later secure involving similar inventions, the granting^, or contracting portion of the instrument follows, stating in close connection that it is to continue in force “until the expiration of all letters patent of the United States now or hereafter owned by the lessor, the invention of which,” etc. Thus, following plaintiff’s plain enumeration of the possibly applicable patents it then owned, protected by which, or some of them, plaintiff was declared to be manufacturing the apparatus defendant desired to lease, can it be said that the minds of the parties met, or, by fair construction of all the language used in that connection, ought to have met, upon the proposition that it was intended to include other patents, nowhere else described or suggested in the contract, which plaintiff then owned, but refrained from disclosing, or by fair intendment should all the letters patent plaintiff “now” (then) owned be limited by the context to those it particularly- enumerated as then owned by it?

It cannot be questioned that the enumeration of patents then owned by plaintiff is a distinct statement of a material fact related, as the instruments are worded, to the time of their termination. Presumably this was stated for a purpose and intended to be treated as one of the settled facts in the contract:

“Stated in full, the general rule of law appears to be this: A fact agreed or assumed to be true, as the basis of a contract, must be taken to be true, specifically, until the contract itself is lawfully impeached by plaintiff or by defendant, or until some legal proceeding is taken to impeach the truth of the (supposed) fact. * * * In other words, supposing the contract to be lawful and binding, the party or parties (it may be one, it may be all) pledging or justly assuming the fact in question will be estopped from taking any position, to the detriment of other parties, inconsistent with the special fact, except for the purpose of reforming the language of a written contract and making it conform to the real terms of agreement.” Bigelow on Estoppel (6th Ed.), p. 495.

It is said in Torrance v. McDougald, 12 Ga. 526:

“The rule of construction applicable to all writings, Constitutions, statutes, contracts, and charters, public or private, and even to ordinary conversation, is this: That general and unlimited terms are restrained and limited by particular recitals, when used in connection with them.”

The question here is not whether the language uséd would, if unqualified by other parts of the contract, be sufficiently definite in an agreement for the use of patented articles to determine the duration of the contract. Authorities cited sustain the contention that it is, but in those cases the contracts under consideration were without recitals so far as shown, and made clear in plain, though general, terms, without any qualification or restricting language, what the undertaking covered in the way of inventions or patents. There the provisión for duration of the contracts was no more comprehensive than the licensing clause for use of patents by the life of which- it was to be measured. No question of estoppel by recital was involved in those cases, and there were no conflicting clauses in other parts of the contract which served to limit the general scope of the duration provision. Counsel for plaintiff say in their brief:

“So far as the printed form was concerned, it was necessary for the lessor to choose between giving the lessee no information at all as to the patents' which he owned and giving him an enumeration which, however complete at the date when the printed form was drafted, was very likely to be incomplete at the later-date at which the particular lease was executed. The incompleteness of the enumeration in the present case is thus a defect which, so far as the printed form is concerned was unavoidable. If the lessee had wished more complete iriformation on the subject, it would have been perfectly easy for it to have asked for it at the time when the lease was executed.”

Plaintiff’s reason or purpose in adopting this general form, if proven, would be of little significance, unless known and assented to by the opposite party; neither would it have been a serious task when perfecting the form into a contract between these parties to have added to the list the two numbers now claimed as of controlling importance.

In construing written agreements the actual undertaking of the parties is to be deduced from the entire instrument, taking into consideration, reconciling, and giving meaning to all its parts so far as possible, including recitals as well as operative clauses, and, when so considered, language which has a distinct meaning standing alone may, in the connection used, become doubtful or its meaning modified by other parts of the instrument, including particular recitals-. -

That the introductory declaration enumerating just what patents plaintiff owned at the time the parties contracted is a particular recital of a material fact, which, would be evidence by way of admission when questioned, is evident. The provision for terminating the leases is in general terms of application to all used patents then or thereafter owned by plaintiff without otherwise designating or describing them. , Considering the contract as a whole, the thought is insistent that to ascertain those then owned by plaintiff it would naturally be contemplated and understood by the contracting parties that resort should be had to plaintiff’s preceding enumeration in the same instrument of those it did then own. Otherwise the recital but serves to create a wrong impression and mislead the defendant to its detriment. While, as its counsel point out, the recital contains no direct statement that plaintiff does not own any other material patents, its silence in that particular, when enumerating as the subject-matter of the contract a long list of those it did own, by fair inference equates with a declaration that those were all it owned.

We are of opinion that by a fair construction of these instruments considered in their entirety plaintiff is estopped by contract from urging as evidence of their duration patents then owned by it, but not disclosed in the unqualified representations in the recitals of those it did own when the contracts were entered into, and the trial court rightly sustained the objection to their admission in evidence for that purpose.

The judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Moore, Brooke, and Person, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    FOLEY v. DETROIT UNITED RAILWAY.
    A. Master and Servant — Compromise and Settlement — Workmen’s Compensation — Certiorari—Award—Reopening.
    Where an injured servant entered into an agreement with his employer for compensation, approved by the Industrial Accident Board, and later it became evident that he had suffered more serious injuries than it was at first supposed, and he applied to the board to secure compensation for partial incapacity, the board was authorized to open the case, and, though the servant had executed, without securing its approval, a receipt in full for his damages or compensation, to make an additional award for the injuries as developed subsequently to the compromise. 2 Comp. Laws 1915, §§ 5458, 5459.
    2. Same — Industrial Accident Board — Additional Award.
    Evidence that claimant, at the time of hearing, had been able during his employment by defendant railway company, after his injuries, to earn about as much as before, and that he had been employed at other labor after losing his position and had earned as much as he had prior to the accident, ■ did not preclude the board from granting the additional award, under testimony of his earning capacity. 2 Comp. Laws 1915, §§ 5440, 5441.
    Certiorari to the Industrial Accident Board.
    Submitted January 18, 1916.
    (Docket No. 56.)
    Decided March 30, 1916.
    Petition by Patrick Foley for the reopening of petitioner’s claim for compensation against the Detroit United Railway, and for further compensation. From an order awarding further compensation respondent Brings certiorari.
    Affirmed.

      Corliss, Leete & Moody and Benj. S. Pagel, for appellant.

      Beaumont, Smith & Harris and Albert E. Meder, for appellee.
   Steere, J.

Appellant seeks by writ of certiorari to' review and reverse an order, of the State Industrial Accident Board reopening claimant’s case and awarding him additional compensation.

Claimant was employed by respondent as a motor- ■ man working ten hours per day at an average weekly wage of $16.25. .On .July 22, 1913, his car was in a collision which resulted in a compound fracture of his left leg above the ankle. He was at once taken to a. hospital, and there remained until February 17, 1914. While there he was paid one-half his average weekly wages and provided with doctors, special nurses when, needed, medicine, general hospital attendance, and his wants all supplied, at appellant’s expense. When his condition became such that he said he was well enough to go back to work and desired to do so, he was discharged from the hospital. He testified that he was kept there until he recovered, and prior to his discharge he walked out for exercise, and “used to come downtown and walk around lots of times.” He returned to work on February 22, 1914, as a watchman at one of respondent’s car barns, receiving $2.50 per working day of nine hours each for seven days in the week, which amounted to more than the wages he had been receiving as a motorman prior to his injury.. While he-was yet in the hospital, on September 16,. 1913, an agreement for compensation was entered inte between him and appellant in accordance with provisions of Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5458 et seq.), using a form of the Industrial Accident Board as follows:

“Agreement in Regard to Compensation.
“We, Patrick Foley, residing at city or town of Detroit, Michigan, and Detroit United Railway, have reached an agreement in regard to compensation for the injury sustained by said employee while in the employ of Detroit United Railway, 12 Woodward Ave., Detroit, Michigan, 8:50 p. m. July 22, 1913, Jefferson and Cadillac Ave., Detroit, Michigan. Collided with car ahead when he ran his car too close to it. Leg broken.
“The terms of the agreement follow:
“$8.13 per week payable under act. Average weekly wage $16.25.” [Duly dated, signed, and witnessed.]

This agreement was approved by the Industrial Accident Board on the following form:

' “State of Michigan “Industrial Accident Board “Oakland Building “Lansing
“Members of Board: John E. Kinnane, Chairman, Bay City; Richard L. Drake, Secretary; J. A. Kennedy, Sault Ste. Marie; Ora E. Reaves, Jackson.
“December 6, 1913.
“In re D. U. R.: Patrick Foley.
“Detroit United Railway Co.,
“Detroit, Michigan.
“Gentlemen:
“The agreement in regard to compensation in the above case has been passed upon by the Industrial Accident Board and approved. Very truly yours,
“Secretary.
“Note: It is required by the Industrial Accident Board that receipts on account of compensation (Form No. 11) be taken when weekly payments are made, same to be submitted to the board monthly. A settlement receipt (Form No. 12) will be signed when last payment is made and will be accompanied by final report of accident (Form No. 7 a). If above forms have already been submitted kindly disregard this clause.”

On February 17, 1914, when claimant applied to return to work, he was paid in full the compensation then due him according to previous agreement and signed a receipt therefor, but he dM not resume work until five days later, for which intervening time he was also paid on the basis of their agreement, after which he gave appellant a receipt in full, as follows:

“Settlement Receipt.
“Received of Detroit United Railway the sum of ($4.65) four dollars and sixty-five cents, making in all, with weekly payments already received by me, the total sum of ($248.55) two hundred forty-eight dollars, and fifty-five cents, in settlement of compensation under the Michigan Workmen’s Compensation Law, for all injuries received by me on or about the twenty-second day of February (July), 1914 (191S), while in the employ of Detroit United Railway, 12 Woodward Ave., Detroit, Michigan, subject to review and approval by the Industrial Accident Board.
“Witness my hand this. 4th day of March, 1914.
“Patrick Foley,
“242 Lycaste St., “Detroit Michigan.
“Witness: Nell S. McDonald, Detroit, Michigan-
“Being in addition to the settlement receipt signed, by said Foley Feb. 17, 1914, he having been ready to work Feb. 18, but not actually starting to work until Feb. 22, 1914.”

The $248.55 paid claimant for the intervening time between his injury and resuming work was clear to him and in addition to all expenses of his care and medical attendance which were assumed and paid by appellant.

On April 7, 1914, claimant filed a petition with the Industrial Accident Board, reciting briefly the facts of his injury, the compensation and care received until discharged from the hospital, his resumption of work as watchman for appellant, stated that in attempting/ to perform his duties in that capacity his leg became swollen at the end of the day’s work and was so weak that he was unable to walk any great distance or be on. his feet any great part of the day, and—

“that he has consulted, an eminent physician in the city of Detroit, who states that while the results obtained by the Detroit United Railway’s physician have been good, still the injured leg, as a result of the aforesaid injury, is now one-half inch shorter than the other leg, and that your petitioner will not be able to> follow any occupation in which it will be necessary for him to be on his feet any great portion of the day, or in which much walking or lifting is required.”

For which reason he asked the board to adjudge him further compensation.

The return of the Industrial Accident Board to this writ of certiorari does not traverse nor deny the facts stated in appellant’s affidavit on which the writ was allowed. It briefly states that claimant made application for a reopening of the case and an award of further compensatiqn; that testimony was taken thereafter by deposition at the instance of both parties, after which a hearing was had on July 8, 1915, and the award complained of was made. “A resume of such testimony,” copies of claimant’s petition, and the order of said board, are attached to said return as exhibits and part of said return. Counsel for the respective parties also stipulated in writing to the same as “the return of said board,” with exhibits attached to the affidavit for writ of certiorari considered as a part thereof. The material parts of those exhibits (three in number) are quoted above. No findings of fact or conclusions of law are returned, and, so far as shown, none were made or filed by the board.

Appellant’s two principal contentions against the validity of this order are that the agreement between the parties after being approved by the board was “final and binding” under the statute and the board had no authority to reopen the case after claimant had signed a final settlement receipt in full, “in the absence of fraud, duress, or mistake being alleged and proven as a basis for such reopening,” and—

“that there is no evidence in the record which would warrant an award to claimant of any further compensation as it is undisputed that at the time of the filing of the petition claimant was earning in respondent’s employ in a shorter period of timg, an amount equal to if not greater than that earned by him prior to the accident.”

The act clearly favors and contemplates an agreement between the parties as to compensation in case of an industrial accident and that the board in its supervisory control shall favor and approve such agreements when understandingly made, without fraud, duress, or undue advantage. Section 5, pt. 3 (2 Comp. Laws 1915, § 5458). An attempt to reach such an agreement is a prerequisite to an application to the board for an arbitration and award. Section 6, pt. 3 (2 Comp. Laws 1915, § 5459). It is questions arising under the act, “not settled by agreement,” which the board is authorized to determine, except as otherwise provided. Section 16, pt. 3 (2 Comp. Laws 1915, § 5469). Section 14 of part 3 (2 Comp. Laws 1915, § 5467) provides:

“Any weekly payment under, this act may be reviewed by the Industrial Accident Board at the request of the employer, or the insurance company carrying such risks, or the commissioner of insurance as the case may be, or the employee; and on such review it may be ended, diminished or increased, subject to the maximum and minimum amounts above provided, if the board finds that the facts warrant such action.”

At the time the agreement in regard to compénsation, which the board approved, was entered into, claimant was lying in the hospital totally incapacitated for work as the result of a compound fracture of his left leg sustained while in appellant’s employ. Under section 9, pt. 2, of the act (2 Comp. Laws 1915, § 5439), he was entitled to receive from his employer one-half his weekly wages while his incapacity for work resulting from the injury was total, not to exceed 500 weeks. This agreement stated his average weekly wages and provided he should receive one-half of that amount “per week payable under act.” This was just what the law provided as applied to the undisputed facts and then existing conditions, and nothing more. It did not specify how long such weekly payments should continue, though an intent to cover the period of total incapacity might be inferred. So far as it went it was according to law and fixed a weekly basis of compensation for the ascertained total incapacity. • This the board approved. But it made no provision for the unascertained future partial incapacity which might follow the total, or for any lump sum which should be paid in final settlement.

The approval by the board of this manifestly incomplete agreement, in view of the time when made and the nature of the injury,^ did not divest the board of jurisdiction, nor deprive it of its general supervisory powers in material matters necessarily left open for adjustment before final disposition of the case. The settlement receipt in full, given by claimant before he resumed work, is not shown to have been filed with or approved by the board. Had it been, a different question would confront us under said section 5, pt. 3, of the act (2 Comp. Laws 1915, § 5458).

The last matter in the case brought to the attention of the board, so far as shown, before claimant filed his petition for additional compensation under a claim of partial incapacity, was an agreement for weekly payment under the act on a basis of total incapacity, which it approved. Section 14, pt. 3 (2 Comp. Laws 1915, § 5467), gives the board the right, if it finds that the facts warrant such action, to end, diminish, or increase “any weekly payment under this act.” It is said the parties interested had settled this question by, agreement, as evidenced by the settlement receipt claimant signed, but to “be deemed final and binding upon the parties thereto” under the act it was necessary that it should be filed with and approved by the board.

Defendant’s second contention is that, if it be found the board had authority to reopen the case, no award could be made by it for further compensation, as it is conceded claimant at the time of filing his petition, and when the testimony was taken as to his physical condition, was and had been since February 22, 1914, earning as much or more wages than he did before the accident causing his injury, and section 10, pt. 2, of the act (2 Comp. Laws 1915, § 5440) provides:

“While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter. * * *”

If this were the only and controlling provision in the act upon that subject, appellant’s contention could not be questioned; but the last sentence of the next ensuing section (11), which concludes a long series of provisions in it and preceding sections classifying injuries, treating total and partial incapacity, specifying and defining weekly rates, time payments shall continue, amount of compensation, methods of arriving at the same, etc., is as follows (2 Comp. Laws 1915, § 5441):

“The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee, computed according to the provisions of this section, as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, the same to be fixed as of the time of the accident, but to be determined in view of the nature and extent of the injury.”

Appellant urges that the provision is directly contradictory of section 10 and an interpolation which means nothing, as “weekly loss of wages” is not mentioned in the act. While not referred to in exact language, in substance it is inevitably connected with and treated in what goes before touching compensation for incapacity resulting from the injury.

Although this provision is apparently restrictive, we do not find it directly contradictory of section 10, and vif it were, being the last of the two provisions, it should prevail under the general rules of construction, provided either must be disregarded. The language of this last provision is plain, and has but one obvious meaning, designating as the test capacity to earn in the same employment in which the employee Was injured. That under this rule instances may arise where it works inequitably, does not authorize the court to read exceptions into it or modify its plain language defining the basis for estimating incapacity, which at best can only be approximated. If the method ought to be changed or exceptional cases provided for, the remedy rests with the legislature. ,

A ready disposition »of this case is embarrassed by total absence of any findings of fact by the board,, which the statute appears to contemplate, though not in express language commanding. Section 12, pt. 3 (2 Comp. Laws 1915, § 5465). Counsel have stipulated to the return as satisfactory, and “a resume of such testimony” with the order of award made by the board have been passed up for this court to help itself to what it can find. Technically the order contains an implied finding of facts legally sufficient to support it, and in that view the court may search the testimony to ascertain if the necessarily inferred facts presumptively found have evidential support. The dates when the testimony was taken are not disclosed, though it appears to have been taken at intervals between the time of filing claimant’s petition and the hearing, and most of it while claimant was in appellant’s employ. But when recalled for further examination some weeks later, near the conclusion of the proofs, claimant disclosed that he had been “let go” about the time he “blackened this fellow’s face,” which episode resulted, as he stated, in his taking a ride to the county jail in a patrol wagon, where he asserts, however, he was only detained from Saturday night until 2 o’clock Sunday afternoon. It is stated without denial in appellant’s affidavit that an investigation of charges made by county officials and a “passenger upon whom he had committed a trespass” led to claimant’s discharge from its employ. Just what appellant claims for ,the fact that claimant had misbehaved and been discharged is not clear, and what weight the board gave the fact he was not shown to be employed at the time of the hearing is not apparent. It would be equally competent to show that after claimant filed his petition appellant had arbitrarily discharged him, if such were the fact. In either case his incapacity to engage in the employment in which he was working at the time of the accident would 'be the same, and the possibility of either contingency but illustrates that the rule appellant contends for is also fallible, and open to contingencies which might operate inequitably.

To sustain its award the board must have been able to find from competent testimony a continuing partial incapacity to properly perform the work of a motorman, in which claimant was engaged at the time of the accident. There is testimony tending to sustain such a finding. Aside from claimant’s own testimony as to continuing pain, weakness, and swelling in his leg which rendered it difficult for him to be upon his feet long and get around readily, the physicians called by both sides agree that he had a shortening of the leg of from a half to three-quarters of an inch which would be permanent, and that otherwise it would be months, if not years, before it would be strong and normal, if ever; that in its condition at the time they testified the lost percentage of normal use 'and strength was from 25 to 75. Dr. Dolman, the physician who attended and operated upon claimant at the time of the accident and cared for him until he was discharged from the hospital, called as a witness by respondent, testified: The broken limb was so seriously injured that, “under usual circumstances, the'injury would undoubtedly have caused him to lose his leg by amputation.” That he, however, decided to perform an operation and try to save the limb, which started to improve some five weeks after the operation and ultimately made a very successful recovery. That the injured leg was about half an inch short, and the impairment of function at the time witness was testifying was presumably 25 per cent, and not more than 33 1/3. That when claimant left the hospital he “was able to walk about on his leg with difficulty. He could put his foot down and bear his weight on the broken limb.” That perfect union was not restored and circulation had not fully established itself in the leg; witness would say it would re-establish itself so that claimant would be able to work eventually as a laborer, in perhaps a couple of years. The testimony of physicians called by claimant was somewhat along the same lines, but on the whole tending to show a greater degree of impairment than that of Dr. Dolman, and, touching his ability to work as a motorman, was to the effect that his condition would detract from efficiency, and it would be difficult for him to work in that capacity successfully; various reasons being given therefor.

The agreement approved by the board only provided for a weekly payment of indefinite duration, which was discontinued without its approval. Under such circumstances, we conclude authority yet remained with the board to review the matter of weekly payment and diminish, or approve of ending the same, as it found the facts warranted, as provided in section 14, pt. 3, of the act (2 Comp. Laws 1915, § 5467); and, having such authority, its order has support in testimony tending to sustain facts essential to its validity.

Its order is therefore affirmed.

Stone, C. J., and Kuhn, Bird, Moore, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.


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    GRAND RAPIDS LUMBER CO. v. BLAIR
    1. Master and Servant — Workmen’s Compensation — Constitutional Law.
    In an action brought by an employer against the receivers of a railroad, corporation for damages which the former had been compelled to pay out to an injured servant by reason of the negligent injury thereof by the defendants and the consequent recovery of compensation by the employee from the plaintiff before an arbitration committee of the Industrial Accident Board, the trial court erred in directing a verdict for the defendant receivers on the theory that the statute was unconstitutional as the plaintiff construed it, and under the contention that the damages should be conclusively fixed by the amount of the award which the injured servant had obtained (2 Comp. Laws 1915, § 5468), the claim of plaintiff's attorney being merely too broad, and the act, when correctly construed, being valid.
    2. Same — Constitutional Power oe Legislature — Workmen’s Compensation Act.
    A former judgment against the employer in proceedings of which the tort feasors had no notice may be made prima facie evidence of the liability, though the omission-to give notice may have deprived the parties so responsible of any opportunity to appear in the original action; and, accordingly, they would be entitled to interpose any defense to the suit for indemnity or contribution that might have been made by the master in the former action, with the burden of proof resting upon them to establish the defense by a preponderance of evidence.
    3. Same — Evidence.
    In an action against third parties to whose negligence the employee’s injury is imputed, proof of the amount of compensation paid to the workingman under the compensation act, either by an award or by agreement of the parties, is prima facie evidence of plaintiff’s damages, subject to the right of the defendants to meet it by competent evidence that the amount was unreasonable, not paid in accordance with the statute, or not authorized by the board.
    Error to Kent; Perkins, J.
    Submitted January 14, 1916.
    (Docket No. 93.)
    Decided March 30, 1916.
    Case by the Grand Rapids Lumber Company, a corporation, against Frank W. Blair, and others, receivers of the Pere Marquette Railroad Company, a railroad corporation, for damages plaintiff had been compelled to pay to a servant injured through the negligence of defendants. Judgment for defendants ón a verdict directed by the court. Plaintiff brings error.
    Reversed.

      Stevens T. Mason, for appellant.

      Parker, Shields & Brown and Chas. E. Ward (John C. Bills, of counsel), for appellees.
   Steere, J.

On November 9, 1912, Herman Spinner, who was a teamster employed by the Grand Rapids Lumber Company, sustained a serious injury in the course of his employment, caused by an accident resulting from a wagon drawn by a pair of mules he was driving colliding with a switch engine of the Pere Marquette Railroad Company, on an alley in the city of Grand Rapids, Mich. Previous to this accident the Grand Rapids Lumber Company elected to come under the terms of the Michigan workmen’s compensation act (Act No. 10, Extra Session 1912 [2 Comp. Laws 1915, § 5428 et seq.]), and had insured its liability with the Maryland Casualty Company, for whose use and benefit this action is brought. Spinner claimed and received compensation for his injury from his employer under the act, which was paid by it through its insurer, consisting of physician’s fees, hospital bills, and other necessary expenses, with weekly compensation while wholly incapacitated from work, amounting in all to about $900. An agreement was early made under the act between Spinner and his employer for payment of compensation while totally incapacitated, on the basis of one-half his weekly salary at the time of the accident, which was approved by the Industrial Accident Board. The length of time payments should continue was not provided for, and after a time plaintiff ceased paying, claiming Spinner was able to work, but at a hearing on June 31, 1913, at which both parties were represented, a committee of arbitration, selected under the act, awarded further compensation which was thereafter paid until the total, including medical attendance, hospital, and other necessary expenses, amounted to $902.50, for which a receipt in full satisfaction of his claim for compensation was signed by the injured employee and filed with the Industrial Accident Board. Plaintiff claimed that Spinner’s injury was caused under eircumstánces which created a legal liability for negligence on the part of defendants as receivers for the Pere Marquette Railroad Company and brought this action under provisions of section 15, pt. 3, of the workmen’s compensation act (2 Comp. Laws 1915, § 5468), which is as follows:

“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages, or against the employer for compensation under this act, but not against both, and if compensation be paid under this act the employer may enforce for his benefit or for that of the insurance company carrying such risk, or the commissioner of insurance, as the case may, the liability of such other person.”

Upon the trial plaintiff introduced testimony tending to show an accidental collision between defendant’s engine and plaintiff’s conveyance at the time and place charged; that in the accident Spinner sustained an injury which arose out of and in the course of his employment with plaintiff, the agreement and proceedings under the act by which compensation to the injured employee was determined and paid, his receipt in full therefor filed with the board, and circumstances surrounding the accident which the court intimated sufficiently showed actionable negligence on the part of the defendant to present an issue of fact for a jury, so far as that issue was concerned, but granted a motion for a directed verdict in favor of defendant, made at the close of plaintiff’s testimony, on the ground that the section of the workmen’s' compensation law under which this action is brought—

“is unconstitutional because the right of an individual or a corporation under the Constitution cannot be taken away from him or it, or an obligation created whereby his property may be taken away, until he has had due notice and an opportunity to have his rights determined by a court of competent jurisdiction.”

During the introduction of plaintiff’s testimony, counsel for the defense made timely and sufficient objections to preserve and present the questions urged in their motion for a directed verdict. Early in the progress of the trial, when Spinner as a witness for' plaintiff was narrating the circumstances of the accident, he stated that after he, was injured they took him “up to the home” before he “came to,” and that his leg was broken, whereupon defendant’s counsel objected to such testimony, and moved that it be stricken out as not covered by the declaration, stating that:

“The declaration was drafted upon the theory that there is a law which gave the plaintiff the right, if there was a liability, to sue in this way to recover the amount paid out, without regard to the extent of the injury; that there was no allegation in the declaration that his leg was broken; and that it would be conceded, for the purpose of the case, that he was sufficiently injured to be justified in going before the Industrial Accident Board, but that to go into the proof of the accident was incompetent and improper because it was not any part of the theory of the plaintiff’s case.”

To this counsel for plaintiff replied in part:

“What difference does it make? We have alleged that he was injured. We do not propose to go into his account of suffering in the hospital. * * * The-only question I want to ask is whether or not he was injured.”

After some discussion between court and counsel, defendant’s counsel admitted “that he (Spinner) was justified in going before the Accident Board,” saying, further, “there isn’t any question about that; we know enough about his injuries to know that.” In answering an objection to the admission of the employee’s final settlement receipt, counsel for plaintiff said:

“If your honor please, there is nothing in the act which requires an arbitration. The only thing we are required to do is to pay the compensation. * * * It makes no difference whether he had an arbitration or not. The fact that we paid the compensation is the whole thing in this case.”

In moving for a directed verdict counsel for defendant said in part:

“I move now, the case of the plaintiff being in, that the court direct a verdict for the defendant on the ground that no case is made by the declaration or proof under the Workmen’s Compensation Act, entitling the plaintiff to recover anything in this case; and at this time I want simply to call attention to one fact, and that is that under the declaration and proofs in this case — and I take it, it is following out what are conceived to be provisions of this act — the attempt is made to say that Mr. Spinner and the Maryland Casualty Company, the insurance company, got together and made an agreement to which these defendants were no parties whatever, had nothing whatever to do with the agreement, and that the defendants are bound by the agreement so far as the amount of the injury is concerned. I say that if any statute undertakes to do that it is absolutely void as taking away a man’s rights to his day in court, and as taking away his property without due process of law.”

Upon this subject the record contains a further statement that during his argument in opposition to said motion counsel for plaintiff—

“acquiesced in the following statement by the court as to the theory upon which the plaintiff’s case was baséd: I have understood you to claim, and that your declaration was based upon the theory, that the amount of liability was fixed definitely and inflexibly by the de-termination of the arbitration board, and that the only question here was as to whether or not there was a common-law liability against the railroad company for negligence.”

In discussing and ruling upon this motion before instructing the jury, the court expressed the view that under plaintiff’s pleadings, proofs, and theory of the case the only question for a jury would be that of negligence, damages having been determined by the arbitration board and agreement of parties without notice to or participation on the part of defendant, which raised a serious question “as to whether liability, so far as the amount is concerned, is finally and conclusively fixed,” and held that portion of the act which so provided, apparently and as plaintiff claimed, was therefore unconstitutional. During discussion of the motion by the court counsel for plaintiff further said:

“The act provides how compensation shall be paid, and in the absence of irregularity in the payment of that compensation, we must presume that the amount was legally fixed, and properly fixed, and reasonably fixed. The agreement had the approval of the board, .and the extent of the payments was fixed by the board.”

Counsel for defendant state in their brief that their motion for a directed verdict was based “on the ground that the statute as interpreted by the plaintiff was unconstitutional.” The record not only seems to support this statement, but the views expressed by the court indicate that a verdict was directed against plaintiff upon that ground. Counsel for plaintiff contends here that some misunderstanding as to his position apparently arose in the minds of the court and defendant’s counsel from the dialogues upon this subject during the progress of the trial, and that what he said has been interpreted as putting a stricter construction upon, or giving a narrower meaning to, the act than he intended to express, in substantiation of which he refers to his statement then made that the presumption obtained only in “the absence of any evidence of irregularity,” etc., and urges his position then and now was in harmony with the following from Binsse v. Wood, 37 N. Y. 526, 531:

“The result of the litigation to which the present defendant committed himself, is binding upon him, without notice, leaving him, however, at liberty to show fraud, collusion, and perhaps that there was a good defense which the party neglected to interpose. The judgment or decision is evidence against him, and until attacked in one of these modes, is conclusive.”

The record as a whole gives the impression that plaintiff’s counsel took an extreme position, emphasized by acquiescing in the interrogating statement of the court, which was not altogether modified or made clear by his subsequent explanation; but can it be said that the court should accept an erroneous construction of the statute, because counsel so construed it, and direct a verdict for defendant on the ground that the law under which the action had been brought was unconstitutional, if the statute properly construed is constitutional and under it plaintiff’s proofs make out a prima facie case? As the court and defendant viewed it, counsel for plaintiff was claiming under the statute more for a line of testimony which he had introduced than he was entitled to, by contending that it was final and conclusive rather than prima facie proof. Plaintiff had introduced testimony showing or tending to show that its employee suffered an accidental injury arising out of and in the course of his employment under circumstances which the court held created, prima facie, a liability on the part of defendants; that plaintiff as an employer was liable for and did pay compensation under the act to the injured employee,, and proved the amount so paid, as evidenced by the: written agreement of the parties, approved by the board, by an order requiring it to make further payment, and receipts in full therefor. Its counsel’s contention, as understood by the court and opposing counsel, that proof of the amount so paid was final and conclusive as to the measure of damages could have no greater significance than a request to so instruct the jury. If a proper case for submission to the jury was presented by plaintiff’s evidence, the fact that counsel tendered an erroneous request to charge the jury as to the force and effect of a portion of that evidence would not authorize the court to dispose of the case as a matter of law because the theory of such request was wrong.

It is unnecessary to consider the argument made and authorities cited for defendant to sustain the contention that a [aw fixing conclusively the damages against a third party in a proceeding of which he had no notice, to which he was not a party, and in which he had no opportunity to be heard, is unconstitutional. For the purposes of this case it may be conceded that man of straw has been successfully overcome.

This case involves a relation of indemnitee and indemnitor, in which a liability over is placed upon the original tort-feasor whose negligence caused the injury, a relation which may be created by contract or legislation for protection of the party who, though not actively guilty of the tort, may, by law, be liable therefor to the injured party. In such cases the weight of authority indicates that a former judgment against the indemnitee, in which notice of the litigation is not given to the party who may be liable over, is adequate to create a right of action against the latter, and admissible as prima facie proof of his liability, though the omission to give notice gives him the right to make any defense which he could have made in the former action, with the burden of proof shifted to him. Grant v. Maslen, 151 Mich. 470 (115 N. W. 472, 16 L. R. A. [N. S.] 910); Oceanic Steam, etc., Co., v. Transatlantica Espanola, 144 N. Y. 663 (39 N. E! 360), and cases there cited.

Said section 15, pt. 3, of the Michigan act (2 Comp. Laws 1915, § 5468) is identical in substance and apparently copied almost verbatim from section 6 of the English Workmen’s Compensation Act of 1897 (Stat. 60, 61, Viet. chap. 37). Amongst the rules promulgated in 1898 for administering the English act a provision is made for notice to any third party who may subsequently be held as an indemnitor, with opportunity for him to appear before the arbitration board if he desires, while no such provision is found in the Michigan act, or any rules relating to it. In Nettleingham & Co. v. Powell & Co., 1 K. B. (1913) 113, plaintiffs had paid a certain amount to an injured employee by agreement between the parties and a further sum under a compensation award, just as in the cáse before us, and brought an action under section 6 of thé English act to recover from defendant the amount so paid, claiming the workman’s injury was caused by an accident imputable to the latter’s negligence. It was there urged that plaintiff was not entitled to recover by reason of having failed to comply with the rule relative to notice in such cases/ The court held that service of notice was not a prerequisite to right of action, but if the employer chose, he might—

“without serving any notice under that rule, sue in the high court for an indemnity subject to the obligation of having to satisfy the court that the amount claimed was properly paid by him.”

The case of Thompson & Sons v. N. Eastern Marine Eng. Co., 1 K. B. (1903) 428, 435, contains an interesting discussion of various aspects of this section in which it is said, of compensation paid by an agreement made under the act:

“But the decisive words in this case are, as it seems to me, ‘if compensation be paid under this act,’ in the latter part of the section. Now, is such a payment as has been made here under the agreement within those words? I think that I must hold that it is. If it is not paid under the act, why and how is it paid? It is clearly part of the scheme of the act that the parties may agree, and the agreement is one of .the modes of settlement under the act. * * * I cannot * * * .construe the section in any other way than according to the natural meaning of the words of the section; and I feel bound to hold that an agreement to pay compensation, being one of the methods contemplated by the act, payment under such an agreement is payment of compensation under the act, and the plaintiff’s right to indemnity from the defendants follows.”

While it is true these English cases cannot be regarded as direct authority on constitutional questions, they are, when an English statute has been adopted here, authority to be recognized in the constrüction of such statute.

We think the closing portion of the paragraph under consideration clearly means that in an action against a third party to whose negligence a workman’s injury is imputed, proof of the amount of compensation the employer paid the workman under the act, either by agreement of the parties, approved by the board, or by order of the board under and as provided for in the act, is prima facie evidence of plaintiff’s damages, which the defendant is at liberty to meet and overcome, if able by any competent evidence showing that the same is unreasonable, not paid under or in accordance with the act, or not-approved nor authorized by the board. So construed, we find the act constitutional.

The judgment is reversed, and a new trial granted, but without costs to either party.

Stone, C. J., and Kuhn, Bird, Moore, Brooke, and Person, JJ., concurred. Ostrander, J., did not sit.


text:
    AUSTIN v. HAYDEN.
    Equity — Partnership—Supplemental Bill — Bankruptcy — Insolvency — Accounting—Creditor’s Suits.
    A supplemental bill to discover or sequestrate assets of an individual partner will not lie after, decree in a suit, brought against the members of the firm by their trustee in bankruptcy, to secure an accounting of their dealings with the firm, since the purpose of the supplemental proceeding is not germane to that of the hill of complaint for an accounting.
    Appeal from Wayne; Mandell, J.
    Submitted January 13, 1916.
    (Docket No. 23.)
    Decided March 30, 1916.
    Bill by Fred G. Austin, as receiver of Cameron Currie & Company, against Charles Hayden and others, copartners as Hayden, Stone & Company, for an accounting and other relief. Complainant was later selected trustee in bankruptcy of said firm and given permission to prosecute this suit as such trustee. From an order denying complainant’s petition to file a supplemental bill, complainant appeals.
    Affirmed.

      Selling & Brand and Alfred J. Ducharme, for complainant.

      Stevenson, Carpenter, Butzel & Backus (Henry W. Beal, of counsel), for defendants.
   Steere, J.

This is an appeal from an order overruling an application for leave to file a supplemental bill. The supplemental bill itself, duly verified, was filed with the petition for leave to file. The defendants appeared specially by counsel for the purpose of opposing the granting of the petition. After an argument the learned circuit judge denied the petition upon the following grounds:

“First. The parties having fully litigated the matters within the scope of the original bill, and the defendants having satisfied the final decree rendered thereon, the court lacks jurisdiction to grant the leave requested by complainant.
“Second. The subject-matter of the supplemental bill is not germane to that of the original bill, nor to the matters litigated thereunder.
“Third. It is the opinion of the court that it does not accord with equity and good morals to compel defendants to litigate in this suit the question of their liability for the proceeds of the New York and Boston Stock Exchange seats.
“Fourth. If complainant is justified in instituting proceedings to recover the proceeds of the New York and Boston Stock Exchange seats, he should institute them by an original suit commenced in a court having jurisdiction to render a personal decree against defendants.”

The original bill was filed on July 22, 1908, by complainant as receiver of Cameron Currie & Co., against defendants, in which suit an accounting was sought between the firm of Cameron Currie & Co. and defendants. An amended bill was filed on the 27th day of July, 1908. It appears that a petition in bankruptcy was filed against Cameron- Currie & Co. on the 10th day of August, 1908, and on the 26th day of August, 1908, said Cameron Currie & Co. and Louis H. Case, as copartners and as individuals, were adjudged bankrupts, and that thereafter complainant was duly elected trustee in bankruptcy of said Cameron Currie and Louis H. Case, as copartners, and as individuals. An order was thereafter made in the District Court for the Eastern District of Michigan permitting the trustee in bankruptcy to prosecute his suit in the Wayne circuit court. This order contained the following provisions :

“This order is made upon the understanding as basis therefor that in so far as said suit in chancery involves claims of customers or creditors of Cameron Currie & Co., the said circuit court for the county of Wayne, in chancery, will be limited to the determination of adverse claims by way of ownership of the various securities involved in said suit (or in lieu thereof to proceeds derived from the sale of such securities, respectively, pursuant to the order made by said court on the 13th day of August, 1908), and will not determine any claim of preference, priority, or security in respect to the fund or funds involved in said suit in chancery' not based on ownership as aforesaid — it being deemed proper that the administration of the estate of the bankrupts and all questions of preference, priority, or security other than those based on ownership, as aforesaid, should be had and determined in this bankruptcy court; also that said chancery court will cause notice to be given to all parties who claim ownership as aforesaid of any of the securities involved in said suit, and who have not already intervened therein, of the pendency of said suit, and give reasonable opportunity for the presentation in said suit of all claims of ownership as aforesaid; also that the claims of Hayden, Stone & Co., referred to in the order and receipt under which said sum of $310,000 was paid to said receiver shall be limited to such as pertain to their rights as pledgees of said stock or as owners thereof; also that said chancery suit be finally determined without waiting for the expiration of any statutory period of limitation for the presentation, recovery, or enforcement of any class of claims contemplated by this order, including claims on the part of Hayden, Stone & Co., said trustee being hereby instructed, upon his substitution, to take proper steps for the reformation of the order of said chancery court of September 24, 1908, in accordance with the understanding stated in this order, and to take such further steps as may be necessary for obtaining, so far as practicable, a complete report by said Hayden, Stone & Co. of the sales of securities, as provided for by the order of said chancery court of August 13, 1908.”

Many petitions of intervening creditors were filed in said cause in the Wayne circuit court, and a final decree was entered in that court on December 31, 1912. The matter was reviewed in this court and will be found reported (Austin v. Hayden, 171 Mich. 38, 42 [137 N. W. 317, Am. & Eng. Ann. Cas. 1915B, 894]), and a final decree was entered in this court in accordance with the said opinion on August 15, 1913. The purpose of the bill, in our opinion, in that case is stated as follows:

“The bill of complaint in this suit is filed by Fred G. Austin, as receiver of Cameron Currie & Co., an insolvent firm. Its general purpose, briefly stated, is. to obtain an accounting as to the transactions between defendants and said insolvent firm, an adjudication of the respective rights of numerous creditors of said Cameron Currie & Co., to restrain said creditors from instituting separate proceedings in relation thereto and to allow them to intervene herein, and, pending these proceedings, to enjoin defendants from selling or disposing of certain enumerated stocks and bonds which they held as collateral security, and in which complainant, as receiver, and said creditors claimed an interest.”

The supplemental bill sets out that on the 18th day of July, 1908, Cameron Currie, as an individual, was a member of the New York and Boston Stock Exchanges, and that his seat in the New York Stock Exchange was of the approximate value of $80,000, and that in the Boston Stock Exchange of the approximate value of $28,000. It further sets out the rules and regulations governing the conduct of the New York and Boston Stock Exchanges, and avers, that on December 8,1913, the New York Stock Exchange paid to the defendants as and for the proceeds of the sale of the seat of Cameron Currie the sum of $90,989.40, and that upon January 9, 1914, the Boston Stock Exchange paid over to defendants as the proceeds of the sale of the seat of Cameron Currie in the Boston Stock Exchange, the sum of $30,511.33. Further averments contained in said supplemental bill are to the effect that at the time of the receipt of said sums, of money by the defendants they had not satisfied the decree of this court in the original case, and:

“Your orator further represents that prior to the time that the proceeds of said Stock Exchange seats were paid by said respective Stock Exchanges to Hayden, Stone & Co., your orator had commenced a suit against the said Hayden, Stone & Co., and the Surety Company, which appeared as surety upon the supersedeas bond filed in this court by Hayden; Stone & Co., to obtain a review in the Supreme Court upon the last appeal hereinbefore referred to; that said suit came on for trial in the District Court of the United States for the Eastern District of Michigan in March, 1914, and resulted in a judgment in favor of your orator against Hayden, Stone & Co., for the amount adjudged due your orator from Hayden, Stone & Co., in this proceeding, together with the interest and costs, which judgment upon such decree, together with the decree, have been satisfied by the payment of the amount of said decree, interest and costs by Hayden, Stone & Co.
“Your orator further represents that he was asked by certain creditors of Currie & Co., to file a supplemental bill in this cause to restrain Hayden, Stone & Co. from obtaining or seeking to obtain from the New York and Boston Stock Exchange seats, it being claimed by such creditors that Hayden, Stone & Co. could not legally assert a claim against the Stock Exchange seats or another assets of the firm of Currie & Co., or of either members of such firm growing out of transactions which have been declared by a court having competent jurisdiction to be joint torts committed by Hayden, Stone .& Co., and Currie & Co.; that the petition of such creditors was at the request of your orator put in the form of a motion in the District Court of the United States for the Eastern District of Michigan, which had appointed your orator trustee in bankruptcy of the estate of Cameron Currie & Co., and Cameron Currie, and which motion was heretofore submitted to the Honorable Arthur J. Tuttle, District Judge.
“Your orator further represents that conceiving that the order of the Honorable Loyal E. Knappen, District Judge, hereinbefore referred to, might possibly stand in the way of the filing of such supplemental bill, said creditors so petitioning, asked that the order of Judge Knappen be modified; that after a hearing before the Honorable Arthur J. Tuttle, United States District Judge, the order of Judge Knappen was modified by an order, a true copy of which is hereto annexed and marked Exhibit A.
“Your orator further represents that a proceeding was pending in the District Court of the United States for the Eastern District of Michigan in which the said Charles L. Freer was complainant, and Cameron Currie and your orator were defendants, which proceeding was brought for the purpose of foreclosing the pledge which the said Freer had upon the Stock Exchange seats of Cameron Currie & Co., in the New York and Boston Stock Exchanges; that upon the taking of proofs in said proceedings, certain definite find-, ings of fact were made by the Honorable Arthur J. Tuttle, District Judge, a true copy of which findings of fact are hereto annexed and marked Exhibit B, upon which findings of fact a decree was thereafter entered by the Honorable Arthur J. Tuttle, District Judge, upon the 26th day of. January, 1914, a true copy of which is hereto annexed and marked Exhibit C.
“Your orator further represents that if the firm of Hayden, Stone & Co. be permitted to retain the proceeds of the sale of the seats in the New York and Boston Stock Exchanges of Cameron Currie, Hayden, Stone & Co. will have been permittfd to satisfy up to the amount of the proceeds of such seats, the decree rendered in this cause and in this court and in the Supreme' Court in favor of your orator against Hayden. Stone & Co., out of assets belonging to your orator as trustee in bankruptcy of Currie & Co., and Cameron Currie; that such assets rightfully belong to your orator, but that such assets never, by reason of the failure and refusal of the New York and Boston Stock Exchanges to pay the same to your orator, came into the hands of your orator; that assets rightfully belonging to your orator as trustee in bankruptcy of Currie & Co., and Cameron Currie may not legally be used to satisfy a decree arising out of a joint wrongful action by _Hayden, Stone & Co., with Currie & Co., out of which no right of action or cause of action could, under the law, be asserted by Hayden, Stone & Co., against Currie & Co., or the assets of Currie & Co., there being no contribution between joint tort-feasors.
“Your orator further represents that to the amount of $121,500.63 the said Hayden, Stone & Co., have reimbursed themselves out of assets belonging to your orator (subject, to the rights of Charles L. Freer) to satisfy the decree obtained by your orator against them, and that thereby Hayden, Stone & Co., have indirectly evaded and set at naught the decree of this. court and of the Supreme Court of the State of Michigan, finding them joint tort-feasors with Currie & Co., on and after June 23, 1908, and holding them liable as such.
“Your orator further represents that he has been advised that Hayden Stone & Co. had and have ño right to the proceeds of the New York and Boston Stock. Exchange seats to reimburse them for moneys they were required thereafter to pay to satisfy your orator’s decree against them, and that neither the New York nor the Boston Stock Exchanges had jurisdiction to order said moneys so to be paid to the said Hayden, Stone & Co.; the said New York and Boston Stock Exchanges having been informed of the claims of your orator to the proceeds of such Stock Exchange seats.
“Your orator further represents that he has been advised that it is within the jurisdiction of this court to entertain -by supplemental bill, the matters herein-before set forth, which have accrued since the filing of the original bill in this court and cause, and your orator therefore prays.”

The prayer for relief is as follows:

“(1) That your orator may be permitted to file this bill as a supplemental bill in this court and cause, and to aid in the enforcement of the decree hereinbefore entered.
“(2) That the defendants Charles Hayden, Galen L. Stone, N. Bruce MacKelvie, Jare Arthur Downs, and F. R. Rosen, copartners as Hayden, Stone & Co., be required to make full, true, and direct answer to this supplemental bill, paragraph by paragraph, under their several and respective corporal oaths.
“That a subpoena issue out of this honorable court directed to Charles L. Freer as a proper party, and that he be required also to make answer to this supplemental bill.
“(4) That the defendant Hayden, Stone & Co. be required to turn over to your orator the moneys received by them from the New York and Boston Stock Exchanges as hereinbefore set forth, as assets belonging to said estate in bankruptcy of Cameron Currie & Co., and Cameron Currie, the individual.
“ (5) That after the amount due to the said Charles L. Freer shall have been determined in conformity with the decree of the United States District Court for the Eastern District of Michigan, the balance be held by your orator as trustee in bankruptcy of the assets of Cameron Currie & Co., and of Cameron Currie individually, to be by your orator disbursed as a part of said assets.
“(6) That your orator may have such other and further relief in- the premises as is consistent with equity and good conscience.”

By the terms of the decree of this court, defendants were required to pay to the complainant the sum of $192,000. At the time the petition for leave to file a supplemental bill was argued in the court below, the decree of this court had been fully satisfied.

With reference to the right of the complainant to the fund in question, the matter is further complicated by the fact that he sought to compel the New York Stock Exchange to pay over to him, as. trustee for Cameron Currie and others composing the firm of Cameron Currie & Co., the proceeds of the sale of the New York Stock Exchange seat. That proceeding was prosecuted by petition in the District Court of the United States for the Southern District of New York. An opinion was rendered by the District Court denying his claim and upon appeal to the Circuit Court of Appeals, the order denying relief was affirmed upon the opinion of the trial judge. In re Currie, 185 Fed. 263 (107 C. C. A. 369). Certiorari to the Supreme Court of the United States was later denied. Austin v. Stock Exchange, 220 U. S. 621 (31 Sup. Ct. 724).

It is the contention of the appellant that the supplemental bill tendered by him is in aid of the decree, and that the subject-matter of the bill is germane to the issue determined in the original case.

The rule is stated in 16 Cyc. p. 360, as follows:

“A supplemental bill may be filed either before or after decree. If after decree it may be in aid thereof where some further action proves to be necessary in order to obtain its benefit, or it may be to impeach the decree, and it is then a supplemental bill in the nature of a bill of review.”

The rule is stated in Story’s Equity Pleadings, § 338, as follows:

“A supplemental bill may also be filed as well after as before a decree, and the bill, if after a decree, may be either in aid of the decree, that it may be carried fully into execution, or that proper directions may be given upon some matter omitted in the original bill or not put in issue by it, or by the defense made to it, or to bring forward parties before the court. * * * But where a supplemental bill is brought in aid of a decree,' it is merely to carry out and to give fuller effect to that decree, and not to obtain relief of a different kind on a different principle; the latter being the province of a supplementary bill in the nature of a bill of review, which cannot be filed without the leave of the court.”

Counsel for appellant cite the cases of O’Hara v. Shepherd, 3 Md. Ch. 306, and Root v. Woolworth, 150 U. S. 401 (14 Sup. Ct. 136). In both cases the principle stated in the text finds support. The rule is stated in 3 Daniell’s Chancery Practice, 159, as follows:

“A supplemental bill after a decree * * * must be strictly in aid of that which the court had already done. It cannot be filed for the purpose of introducing a completely new case.”

It is the claim of the defendants that the supplemental bill is not in aid of the decree entered by this court; that the relief sought is not germane to that sought in the original cause; and, further, that the right of the defendants to the fund in question has been adjudicated by a court of competent jurisdiction so fair as'it relates to the proceeds’of the seat belonging to Currie in the New York Stock Exchange; and as to the proceeds of the sale of the seat in the Boston Stock Exchange, the decision in the New York case is a binding precedent.

We are of opinion that the order of the court below denying complainant the right to file a supplemental bill must be affirmed upon the ground that it is not germane to the original bill. The original bill was filed by complainant, not in the interest of the individual creditors of Currie, but in the interest of the partnership creditors of Cameron Currie & Co. It is, we think, clear that an issue between Currie’s individual creditors and the defendants, involving an individual asset of Currie’s, is entirely foreign to the issue presented and litigated’in the former proceeding. Moreover, it is, we think, apparent that the supplemental bill cannot be considered a bill in aid of that which has already been done. The purpose of the original bill was to secure a money decree against the defendants upon the issues and facts presented in that proceeding. Such a decree was entered, and defendants, by the payment of the decree in full, have thereby accomplished plenary satisfaction thereof.

We are of opinion that the issues presented by the supplemental bill should be prosecuted by an original bill in another suit, for the reason that it involves an individual asset of Cameron Currie and is between other parties than those concerned in the original litigation. It has no relation to the original bill, nor to the issues therein raised.

Under this view of the case, it is unnecessary to consider the effect of the decision of the Federal court, cited supra.

The order is affirmed, with costs.

. Stone, C. J., and Kuhn, Bird, Moore, Brooke, and Person* JJ.„ concurred. Ostrander, J., did not sit.


author: Moore, J.

text:
    CHESBROUGH LUMBER CO. v. CHIPPEWA CIRCUIT JUDGE.
    Where -witnesses in two causes came from without the State to testify for the same party in both proceedings, in which, however, the opposite party was different, the side prevailing in the action was entitled to tax their fees for mileage in both cases at the rates established by and under 3 Comp. Laws, § 11221. (See 3 Comp. Laws 1915, notes to sections 13720, 14400, 14603.)
    Costs — Taxable Witness Fees — Witnesses.
    Mandamus by the Chesbrough Lumber Company, a corporation, against Patrick H. O’Brien, circuit judge of the twelfth judicial circuit, presiding in Chippewa circuit, to compel respondent to vacate an order of relaxation of costs entered in a suit in which relator was •defendant.
    Submitted January 18, 1916.
    (Calendar No. 27,002.)
    Writ granted March 30, 1916.

      John W. Shine, for relator.

      Davidson & Hudson, for respondent.
   Moore, J.

This mandamus proceeding is brought by the relator against Patrick H. O’Brien, circuit Judge, to vacate an order entered in the case of E. F. Perry & Co. v. Chesbrough Lumber Co., retaxing relator’s costs therein, and requiring him to tax the costs of relator as taxed by the clérk of said court, or to dismiss the appeal taken from the taxation thereof by said clerk. Questions are raised about the regularity of the appeal from the taxation of the clerk; but, as the case is fully argued, we will dispose of it upon the merits. There were three cases in the circuit court: Packard v. Lumber Co., E. F. Perry & Co. v. Lumber Co., and the case of the Chesbrough Lumber Co. v. Railway Co. In each of these cases Chesbrough & Co. obtained a judgment against the opposite party, with the order that the Chesbrough Lumber Company recover against the opposite party its costs and charges to be taxed. In the case against the railroad company a bill of costs was prepared and presented, but before it was taxed the parties settled. It is said the plaintiff deducted an amount approximating the proposed bill of costs. In the proposed bill of costs were the witness fees of F. B. Chesbrough and C. L. Neal, of Massachusetts, for their attendance and. mileage from the boundary line of the State at Toledo. In the case before us the relator prepared its proposed bill of costs, which amounted to the sum of $120.90 and served a copy thereof on the attorneys for the plaintiff, and noticed the same for taxation before the clerk December 10, 1914. This bill of costs included the witness fees of Freemont B. Chesbrough, of Newton, Mass., and C. L. Neal, of Boston, Mass., for their attendance and mileage from the boundary line of the State, at Toledo. The affidavit in support pf it shows that Mr. Chesbrough and Mr. Neal were material and necessary, and that they had respectively resided at the places named, and traveled the number of miles and attended the number of days specified in the bill. The plaintiff filed an affidavit in opposition, stating in brief that the relator had two other cases on the calendar for trial at the same term, and that the witnesses Chesbrough and Neal were also witnesses in the other cases, and that they did not return to Boston after testifying in one of the other cases, namely the Chesbrough Lumber Co. v. Railway Co., and as we have before stated about the settlement. The clerk taxed the bill as proposed. The circuit judge, after hearing the case, being of the opinion that the Chesbrough Lumber Company was entitled to mileage fee in only one case, disallowed the mileage fees. Mandamus is brought to review that action.

In Jeffrey v. Hursh, 58 Mich. 246 (27 N. W. 7), it is said:

“The right to recover costs is conferred by the statute, and did not exist at common law. It is to the statute, therefore, that we must look for the authority to recover costs in any given case.”

The applicáble statute under the head, “Fees of Witnesses,” reads:

“For attending in any suit or proceeding pending in any court of record one dollar for each day and fifty cents for each half day * * * for traveling at the rate of ten cents per mile in coming to the place of attendance to be estimated from the residence of such witness if within this State, or from the boundary line of this State, which such witness passed in coming,if his residence be out of the State,” etc. Section 11221, 3 Comp. Laws (3 Comp. Laws 1915, §§ 14603; 13720, note; 14400, note).

The language of the statute is not ambiguous; it is, “For attending in any suit or proceeding pending in a court of record.” There is no suggestion that if one party in a suit pays the mileage fee of a witness in that suit, it shall inure to the benefit of another party in another suit and absolve him from paying the mileage.

Similar statutes have been construed. See Waterman Co. v. Lockwood (C.C.), 128 Fed. 174, and cases cited therein. Vernon, etc., R. Co. v. Johnson, 108 Ind. 126 (8 N. E. 700); McHugh v. Railway Co., 41 Wis. 79.

The order retaxing the costs should be vacated, and the costs remain as taxed by the clerk.

The writ of mandamus will issue, with costs to the relator.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, Brooke, and Person, JJ., concurred.


text:
    BAXTER v. CITY OF LANSING.
    Master and Servant — Municipal Corporations — Electricity— Negligence.
    A lineman in the employ of a city plant, who had notice that the line which he was ordered to repair had been for some time in poor repair, and that the insulation was defective, and who, in the exercise of reasonable care for his own safety, might have observed a fallen connection and avoided it in climbing defendant’s pole, was chargeable with negligence contributing to his injury, barring his recovery.
    Error to Ingham; Collingwood, J.
    Submitted January 3, 1916.
    (Docket No. 11.)
    Decided March 30, 1916.
    Case by Arthur C. Baxter against the City of Lansing for personal injuries. Judgment for defendant on a verdict directed by the court.
    Affirmed.

      Warner, Raudabaugh & Person, for appellant.

      Joseph H. Dunnebaelce (L. B. McArthur, of counsel), for appellee.
   Moore, J.

The defendant city has owned and operated an electric light plant for many years. It furnishes electric lights for the use of the city and for its citizens. One of. the most important lines of wires runs from the plant west on Allegan street and serves a large territory. This line had been in use for many years, and it got in a condition which made it desirable that it should be generally repaired and put in proper condition. It was what is known as a single-arm construction. It was decided while repairing the line to make it a double-arm construetion. Plaintiff was an experienced lineman with 15 or more years’ experience. While making repairs on the Allegan street line July 3, 1911, he received a shock of electricity which rendered him unconscious. He regained consciousness before reaching home. He was burned in several places. About the 10th of July he worked at light work at the waterworks for the city. A month after receiving the injury he resumed work as a lineman. Later he was put in charge of a truck, and continued to work for the city in-the electrical department until July, 1913. During this time he made no claim because of his injuries against the city. This suit was commenced in March, 1914. At the conclusion of the testimony offered on the part of the plaintiff, the trial judge directed a verdict in favor of the city. The case is brought here by writ of error.

The important question is: Should the case have been submitted to the jury? It is the claim of counsel that defendant failed in its duty when the line was originally constructed. It is the contention that an iron brace which stayed one of the cross-arms was fastened by an iron bolt which passed through the brace and the cross-arm near a metallic lightning arrester, which was placed under a high voltage feed wire, which wire became unfastened from the insulator and rested upon the lightning arrester, and when the insulation wore off the feed wire it charged the lightning arrester,, which in turn charged the bolt and the metallic brace, and when plaintiff took hold of the brace the electric current passed through his body. We quote from the brief of counsel:

“What we have in mind is an original defect in the construction of the system of electric wiring on this pole. As to such negligence, in the absence of other circumstances, the general rule seems to be that an electric lineman is not barred from recovery by the rule of assumed risk or the rule of fellow servant, where, as in this case, there is no evidence that any of the linemen employed at the time of the injury were so employed at the time the system was built, or that plaintiff had any knowledge, or means of knowledge, of the original defect, and it seems to be the rule that plaintiff does not, by his contract of employment, assume the risk of the negligence of the original lineman who created the system and did the work thereon, with whom he did not assume the relation of coemployee, and whose acts are unknown and unknowable to him.” Citing Livingway v. Railway Co., 145 Mich. 86 (108 N. W. 662); Huber v. Electric Co., 168 Mich. 531 (134 N. W. 980); Morgan v. Electric Co. (Pa. Sup. Ct.) 19 Am. Neg. Rep. 504.

The specific claim of negligence is that the lightning arrester should not have been placed so near the bolt which passed through thé iron brace.

It will be profitable to refer here to the testimony of the plaintiff. He had worked for the city as lineman for more than a year, having had much experience when he entered its employ. He knew the Allegan line was an old one, out of repair in many respects, and that it was proposed to give it a general overhauling and put it in repair. He knew it was in bad shape, that it needed new cross-arms, that some of the wires were loose, and were improperly insulated. He knew of the feed wire, and that it was charged day and night with upwards of 2,000 volts, and that the current would not be turned off while the work was going on. It was part of his duty as lineman, not only to string new lines, but to repair defects generally. He knew the insulation was worn off in places, and the cross-arms and insulators needed renewing, and the braces needed tightening. Plaintiff and his companions had a complete line of materials and tools with which to do the work. The city did not possess any information of defects which he did not possess. He knew that no person was sent ahead of him and his companion to inspect conditions of safety before commencing the work of repairs. He had been engaged in putting defective wires in repair for the city for a year and a half. He testified that, if the feed wire had not become detached from the insulator, the lightning arrester, the bolt,- and the brace would not have become charged with electricity. He testified that before going up the pole he made no examination of its condition; that it was not until after the injury that he examined to find out what was the trouble. He testified that, upon his return in the afternoon of the same day, he could see from the ground the proximity of the bolt to the lightning arrester, and could also see that the feed wire was detached from the insulator and was resting on the top of the lightning arrester, and that he could have seen these conditions just as readily before he went up the pole if he had looked.

The testimony was much more in detail than we have given it.

It is clear that, as originally constructed with the feed wire attached to the insulator, the injury could not have happened. It is also clear that the plaintiff knew, or might have known by the exercise of ordinary care, as much about the existing conditions as any one. An examination of the cases cited by counsel for appellant will show they are easily distinguishable from the instant case. Indeed, so far as they are applicable at all, they sustain the action of the circuit judge in directing a verdict.

In Baldwin, Personal Injuries, § 357, it is said:

“The same rule (assumption of ordinary risks by workman) applies to servants engaged in repairs, since, where a servant is employed to put a thing in a safe and suitable condition, it would be unreasonable and inconsistent to require the master to have it in a safe condition and good repair for the purpose of such employment. In such a case, the servant must admittedly work in a place out of repair, and therefore to a greater or less extent unsafe, for the purpose of making it safe.”

See notes.

In 3 Labatt, Master and Servant (2d Ed.), § 1176, it is said:

“A principle analogous to that which is stated in the preceding section is that a servant who engages in the work of bringing back to a safe condition any part of the plant which has become abnormally dangerous assumes all the risks which are obviously incident to the work thus undertaken. As regards such a servant, those risks are ordinary, even though their existence may, as regards servants whose duties involve merely the use of the instrumentality in question, imply culpability on the master’s part. In other words, a servant put to work to repair a defective appliance cannot be heard to complain of its being defective, "inasmuch as that very thing is the cause of his being there, and he undertook to set it right, being paid for the risk he ran, and voluntarily incurring it.’ The rule which casts upon the master a liability for failing to provide reasonably safe instrumentalities for the use of his servants is deemed to be suspended under such circumstances.”

See, also, Manning v. Railway Co., 105 Mich. 260 (63 N. W. 312); Chisholm v. Telephone & Telegraph Co., 176 Mass. 125 (57 N. E. 383); Pembroke v. Electric Light Co., 197 Mass. 477 (84 N. E. 331); and Perry v. Railway Co., 72 W. Va. 282 (78 S. E. 692).

Judgment is affirmed.

Stone, C. J., and Kuhn, Bird, Steers, and Brooke, JJ., concurred.- Ostrander and Person, JJ., did not sit.