text:
    HOLMES v. HUIZENGA.
    1. Fraud — Equity—Application of Funds' — Contracts — Remedies.
    Affirmance of a contract induced by fraud eliminates any defense on that ground in a suit to compel an accounting for funds received by virtue of it.
    2. Accounting — Specific Performance — Mortgages—Bills and Notes.
    The holder of a mortgage under an assignment requiring him to pay a portion of the amount received on the instrument, to cancel an obligation of the assignor, may be compelled to account to the assignor where he forecloses and bids in the property.
    3. Bills and Notes — Indorsers’ Liability — Mortgages —Assignment — Equity—Clean Hands.
    The holder of a note and mortgage by indorsement and assignment, who neglects to take necessary steps to charge the assignor and indorser, may not interpose the same as a defense in a suit for accounting and application of the proceeds on foreclosure in accordance with the contract of assignment.
    4. Mortgages — Assignment—Negligence of Assignee.
    Such assignee is not chargeable by the assignor with negligence for failure to collect insurance on the mortgaged premises, which the assignor failed to have insured for his benefit while he held the mortgage, and which burned shortly after the transfer, the insurance being collected by the owner.
    Appeal from .Ottawa; Padgham, J.
    Submitted January 13, 1910.
    (Docket No. 44.)
    Decided March 19, 1910.
    Bill by Joseph S. Holmes against Gerrit T. Huizenga for an accounting. From a decree for complainant, defendant appeals.
    Affirmed.

      Wilkes & Stone, for complainant.

      Diekema & Swollen, for defendant.
   Hooker, J.

In September, 1904, Holmes, the complainant, owned a farm in Ottawa county. On the 23d of that month he traded it for a dwelling in the city of Holland, Mich., subject to a mortgage for $300, which he assumed, taking from Van Der Meulen, with whom he dealt, two promissory notes for $300 and $2,000, respectively, secured by mortgage upon the farm, which mortgage contained an insurance clause. He subsequently sold the notes and mortgage to Huizenga, the defendant, who required him and his wife to indorse the notes, and who paid down $1,983.6?, and executed the following writing, viz.:

“Whereas Joseph S. Holmes and wife have this day sold and assigned to Gerrit T. Huizenga a certain mortgage dated September 23, 1904, and recorded in the register’s office for Ottawa county, in liber 78 on page 173 of mortgages, and said Gerrit T. Huizenga having paid said Holmes and wife $1,983.67 for said mortgage, it is agreed and understood by the undersigned that whereas said mortgage is of the amount of $2,300 and is represented by two notes, one of $300 and one of $2,000. It is agreed that all the interest which said Huizenga receives upon said $300 note he will pay to P. H. McBride to apply on the mortgage on the house and lot of said Holmes, being No. 248 W. 10th street, Holland, Mich., and when said $300 of principal shall be paid he will pay same on said mortgage on the said homestead of Holmes and wife; the said $300 not having been paid by said Huizenga for said mortgage, but when the same is paid to be used for the payment of said mortgage on said Holmes homestead, to wit, No. 248 W. 10th St.
“Witness our hands this 4th day of January, A. D. 1905.
“G. T. Huizenga.
“Joseph S. Holmes.”

Holmes informed defendant that he had sold the farm to Van Der Meulen for $4,500 in answer to defendant’s question, and that the mortgage was secured by insurance, or as Holmes himself testified:

“ There was some talk about the buildings on that property being insured. The buildings on the farm were insured, and I said the insurance was all right as far as I knew; that is what I said. I don’t know that I told him the amount of the insurance. I had had the property insured, and when I sold it to Van Der Meulen, I assigned the policy to him, and he assigned the policy on his house in Holland to me.
“Q. Was there a clause put on the insurance policy to make it payable to the mortgagee ?
“A. That I heard.
“Q. You never saw to that ?
“A. No, sir; I didn’t care anything about it.
“Q. But you had a mortgage on the place, and you didn’t care whether the insurance was made payable to the mortgagee or not ?
“A. I didn’t have no mortgage there.
C‘Q. Didn’t you have a mortgage on your place from the time you sold the property to Van Der Meulen until the time you sold the mortgage to Huizenga?
“A. Yes; I had it on for a little while there.
Q. But in the meantime you didn’t care whether it was protected by insurance or not ?
“A. I supposed it was all right.”

A short time after his purchase of the mortgage, defendant heard that the house was burned, and without delay made inquiry about it, and received somewhat positive assurance that it was other property. However, within three days he wrote the agent of the company about the matter and received a letter from him, stating that the policy had been paid to Van Der Meulen who held it, that the company was ignorant of any claims by Huizenga upon the fund, the policy containing no such provision, but that Van Der Meulen expressed the intention of using the money received ($600) to rebuild, “so it would probably be all right anyway.” Van Der Meulen did not do this, but kept the money, and began to commit waste on the place, and under advice of counsel the defendant foreclosed the mortgage by advertisement, and bid the place in for $2,300, declining to attempt collection from complainant on his indorsement, saying he was as well able to stand his loss as the complainant. He afterwards repeatedly asked complainant to take back the place and pay him back $1,983, but complainant refused. After his purchase at the foreclosure sale he endeavored to get full title to the place, made necessary by Van Der Meulen’s continued neglect and. waste, which was injurious to the property. He sued Van Der Meulen on the $300 note, and obtained a judgment for that sum, and finally canceled this judgment, upon which execution had issued, and paid Van Der Meulen $45 for a quitclaim deed and immediate possession of the premises. Again he offered complainant a deed of the premises for $1,983.67, but complainant refused to accept the offer. Holmes after-wards filed the bill in this case on the theory that the defendant accepted the note and mortgage in trust to the extent of $300, and has either received the money through his purchase, or, if not, has failed to collect the sum through his neglect, asking an accounting and payment of the same. These things were decreed, and defendant has appealed.

By the terms of the notes and mortgage the $300 was the first due, and under the terms of the agreement, had it been paid at maturity, it would have been defendant’s duty to apply it on payment of the mortgage. It would seem equally plain that the proceeds of a sale on foreclosure would have to be applied first in payment of the $300 note, and the balance to defendant, unless we are to he unreasonably technical, and say that, unless the note was paid by Van Der Meulen, there was no obligation to pay the note, notwithstanding the fact that the foreclosure produced funds- enough to pay the whole debt. ■ There is some ground for saying that complainant was not free from fault, for he told defendant that he sold the farm for $4,500, when in fact he included considerable personal property, and his statement about the insurance was misleading. But the record does not show that these things were the inducement for defendant’s purchase, for he exacted an indorsement that made the security ample. Had he taken the steps necessary to charge the indorser (if he did not), and been less magnanimous, he need not have lost a dollar in the transaction, so far as we are able to discover. He elected to affirm the contract, and the question of fraud becomes unimportant.

We are, however, impressed with the good faith of the defendant, and we think that he is not chargeable with neglect in his failure to collect the insurance, or in failing to collect the judgment against Van Der Meulen, or to realize more from the premises. But his contract requires him to pay the $300 mortgage from the first proceeds of the mortgage. He has the farm, and should pay the note. We are unable to tell from this record what his rights are upon the indorsement made by complainant. No claim is made for it apparently, and there may or may not be any legal obligation growing out of it. Should we say that the complainant has come here without clean hands, and is asking equitable relief when not willing to do equity ? We cannot say so in view of his indorsement' and the apparent failure of defendant to avail himself of all of his security; i. e., his indorsement. If we were able to say that he had not lost his right to relief upon the indorsement, we would deny complainant relief, but apparently the right to enforce payment against the indorser is lost. As we cannot be certain of this, we affirm the decree, with costs, but without prejudice to any rights defendant may have upon the indorsement.

Decree affirmed as modified.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    JENKINS v. PILCHER.
    Bankruptcy — Fraud and Deceit — Effect of Fraudulent Representations in Obtaining Possession of Note.
    Bankruptcy proceedings are a bar to an action for fraud and deceit brought by a creditor of the bankrupt who is alleged to have obtained possession of the creditor’s note by fraud although without a cancellation or release of the indebtedness, where the declaration alleges that his discharge will be soon obtained by the bankrupt; since the cause of action remains and is enforceable in bankruptcy, and no damage accrued from the surrender of the instrument.
    Error to Wayne; Hosmer, J.
    Submitted January 14, 1910.
    (Docket No. 74.)
    Decided March 19, 1910.
    Case by Isaac G. Jenkins against Prank E. Pilcher for fraud and deceit. An order sustaining a demurrer is reviewed by plaintiff on writ of error.
    Affirmed.

      William H. Wetherbee, for appellant.

      Jackson, Millis, Culver & Griffin, for appellee.
   Blair, J.

Plaintiff prosecutes his writ of error in this case to reverse the judgment sustaining the defendant’s demurrer to his declaration.

The declaration alleges, in substance, that, for the purpose of aiding defendant to obtain a medical education, secure his admission to the practice of his profession, and support him while acquiring a practice, plaintiff loaned to defendant the sum of $3,487.50, for which he took his note payable after date, with the understanding that defendant should repay the loan as soon as he should become established in the practice of medicine and surgery; that defendant failed to pay the note as agreed, and plaintiff brought suit against him “in the circuit court for said county of Wayne in an action of assumpsit * * * for the recovery thereofthat, for the purpose of getting possession of the said note and terminating the said suit, and in order that he might get time to fraudulently dispose of, conceal, and cover up his property, and later obtain his discharge in bankruptcy and defeat the collection of plaintiff’s debt, defendant on the 16th of November and on previous days fraudulently represented “that he, defendant, during a considerable time then immediately preceding had done and transacted considerable business in his said practice and profession, but that all the money he had been able to collect and realize from his said business was the sum of $15 during the last preceding month, which constituted his income for that month, and that he, defendant, was wholly unable from his then said income to make any payment upon said indebtedness so owing to plaintiff as aforesaid; that, if said plaintiff would surrender up said promissory note and return the same to him, defendant, and take no judgment in said cause, record and file number 43,611, and consider the same ended, he, the said defendant, would be greatly aided and assisted thereby, and would then and there be enabled to make, and would make, regular considerable payments upon said indebtedness so owing to plaintiff for the recovery of which said action was brought, * * * would make considerable and substantial payments upon said indebtedness, and would soon pay the entire amount thereof, if he were not annoyed, hindered, and prevented by actions or proceedings brought for collection and enforcement of the same;” that plaintiff, relying upon the fraudulent representations, turned back the note, took no judgment, and “ considered said action atan end, . * * * and, relying upon the same, was led and induced to, and did, delay, prolong, and put off bringing any other or further action against defendant for the recovery of said several sums until the 18th day of April, 1906, when he began a similar action in said circuit court, and, before judgment could be recovered therein, said defendant had matured, carried out, and fulfilled his fraudulent plans and intentions, as aforesaid stated, to collect, receive, and obtain from his, defendant’s, said business, practice, and profession of medicine and surgery, divers other large sums of money, to wit, the sum of $10,000 and upwards, and to unlawfully, wrongfully, and fraudulently assign, conceal, secrete, and dispose of the same, and place the said sums beyond plaintiff’s knowledge and ability to trace the same, and thereafter to go through bankruptcy and secure discharge from the payment of his just debts, and particularly from his said indebtedness to plaintiff.

“And plaintiff further avers that said statements, representations, pretenses, and promises so made by defendant as aforesaid were then and there false and untrue, that defendant’s said promises to make regular considerable payments upon said indebtedness so owing by him to plaintiff were then and there a mere subterfuge designedly made in connection with said statements, representations, and pretenses, as part and parcel thereof, and of the general scheme therein embraced to cheat and defraud him, said plaintiff, and with the preconceived and well matured intention on the part of defendant not to carry out and fulfill the same or any part thereof, and not to make any payments whatsoever upon said indebtedness; that the said defendant then and there at the time of making said false, unlawful, deceitful, and fraudulent statements, representations and pretenses concerning his said income was receiving in money from his said business practice and profession of medicine and surgery an income of nearly $500 per month; that the said defendant in the month of October, 1903, collected, received, and obtained from his said business the sum of $493.75 or thereabouts, and that during the year then immediately preceding the said defendant collected and received from his said business $300 and upward in money per month; that since the said 16th day of Novembor, 1903, and up to the time of filing his petition in bankruptcy, the said defendant had received, collected, and obtained from his said business as income therefrom more than $12,500 in money, and that said defendant during said time, assigned, concealed, secreted, and disposed of the greater part thereof, to wit, of the sum of $8,000 and upwards, with the intention of going through bankruptcy at such opportune time as presented itself, for the purpose of obtaining a discharge from the payment of his just debts, which he is entirely able to pay, and particularly from his said indebtedness to plaintiff, and that said defendant did, on, to wit, the 22d day of October, 1907, or about that date, and before judgment could be recovered in said second action, begin proceedings in the bankruptcy court of this jurisdiction, scheduling but a few debts of small amounts in addition to his said indebtedness to plaintiff; that said bankruptcy proceedings are still pending undetermined, and that in due time the said defendant will procure his coveted discharge. * * *

“ And plaintiff further avers that he but lately learned that the said statements, representations, pretenses, tokens, and promises so by the said defendant made as aforesaid were wholly designedly false and untrue.” The declaration further avers that defendant, by means of his fraudulent practices and representations, “did then and there designedly, unlawfully, falsely, and fraudulently deprive him, plaintiff, of said promissory note and the said action at law thereon based, and did further designedly, unlawfully, falsely, and fraudulently deprive him, plaintiff, of all further effort, action, and proceeding to enforce, compel, and collect payment of said indebtedness during the time aforesaid when he, defendant, received and collected the said sum of $12,500 and upwards of his, defendant’s, money, and then and there and thereafter by means of said bankruptcy proceeding the said defendant did designedly and intentionally fraudulently deprive him, said plaintiff, of all action and proceeding to enforce, compel, and collect payment of said indebtedness; wherefore, by reason of the promises, the said plaintiff was cheated and defrauded of said divers large sums of money, and has been damaged in a large sum, to wit, at the county of Wayne aforesaid, to his, the said plaintiff’s damage, $10,000.”

Among the causes of demurrer assigned are the following:

“(21) Because the adjudication in bankruptcy of said defendant on October 22d, 1907, and the consequent discharge of defendant’s liability to said plaintiff, is pleaded in said declaration.
“(22) Because in so pleading plaintiff admits that his claim, if any, was a provable debt, from which bankruptcy of defendant is a discharge.
“(23) Because it nowhere appears in said declaration that defendant failed to turn over and account to his trustee in bankruptcy all of his assets.
“(24) Because plaintiff himself admits in said declaration that his failure to collect all that was due him from defendant prior to defendant’s adjudication and discharge in bankruptcy was due to his own laches.
“(25) Because plaintiff admits in said declaration that the bankruptcy of defendant is a discharge of his alleged claim.”

Although the record does not disclose the ground upon which the circuit court sustained the demurrer, plaintiff states such ground in his brief as follows:

“ The decision in the lower court was based upon the effect of defendant’s discharge in bankruptcy. Had it turned upon any point which would have left defendant in court after amendment, the case would not now be in this court.”

It is apparent from the declaration that plaintiff has never parted with his original cause of action. Whether at the time of surrendering the note he took a new note in its place, as claimed by defendant, does not appear, but, at least, it does appear that he retained his cause of action and commenced a similar suit to the original suit thereon and was entitled to and would have proceeded to judgment except for the bankruptcy proceedings. As the defendant admitted the cause of action by scheduling the debt, it is clear that plaintiff suffered no damage by merely surrendering the note. The plaintiff did not lose his cause of action and have remaining ah action of fraud and deceit alone because of the bankruptcy proceedings. The enforcement of his cause of action was merely transferred to another forum, and the trustee in bankruptcy “is subrogated to the rights of creditors and may sue to avoid any conveyance which a creditor could have avoided, although made more than four months prior to the adjudication of bankruptcy.” Collier on Bankruptcy (6th Ed.), p. 612, par. 6; In re Mullen, 101 Fed. 413; Bush v. Storage Co., 136 Fed. 918; In re Gray, 47 App. Div. (N. Y.) 554 (62 N. Y. Supp. 618); Beasley v. Coggins, 48 Fla. 215 (37 South. 213).

In view of the allegations of the declaration that the defendant is really the owner of much more than sufficient property to satisfy his claim and all other claims which can be collected by the trustee as well as by himself, it is not apparent how the plaintiff has been injuriously affected by the bankruptcy proceedings, or why he could not have collected his claim in full if he had seen fit'to file it against the bankrupt’s estate. But, however this may be, we are satisfied that the declaration shows an indebtedness or liability provable against the bankrupt’s estate, and that, therefore, the bankrupt’s discharge would terminate his liability. U. S. v. Rob Roy, 1 Woods (U. S.), 42 (Fed. Cas. No. 16,179); In re Blumberg, 94 Fed. 476; Wolf v. Stix, 99 U. S. 1; Hennequin v. Clews, 111 U. S. 676 (4 Sup. Ct. 576); Crawford v. Burke, 195 U. S. 176 (25 Sup. Ct. 9); Tindle v. Birkett, 205 U. S. 183 (27 Sup. Ct. 493); Collier on Bankruptcy (6th Ed.), p. 224; Brown v. Broach, 52 Miss. 536; Bank of North America v. Crandall, 87 Mo. 208; Hatten v. Speyer, 1 Johns. (N. Y.) 41.

The declaration alleging the pendency of the bankruptcy proceedings “and that in due time the said defendant will procure his coveted discharge,” we think the case may be considered as though the declaration alleged a discharge.

Since such discharge in our opinion would be a bar to the maintenance of the action, the judgment sustaining the demurrer is affirmed.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


author: Stone, J.

text:
    MICHIGAN CENTRAL RAILROAD CO. v. MICHIGAN RAILROAD COMMISSION.
    1. Constitutional Law — Railroad Commission — Departments of Government — Delegation oe Legislative Functions — Administrative Acts.
    The action of a railroad commission in fixing rates is not legislative but administrative or ministerial in character.
    2. Same.
    An attempt by the legislature to delegate purely legislative functions to a commission would be unconstitutional.
    3. Same — Statutes.
    Act No. 312, Pub. Acts 1907, creating a railroad commission with power to fix maximum rates is not in contravention of section 2 of article 4 of the Constitution of 1909, the duties of the commission in determining the reasonableness of rates being purely ministerial.
    4. Same — Presumptions—Burden oe Prooe — Excess Baggage-Carriers.
    Under the provision of the statute making the rate fixed by the commission prima facie reasonable and lawful, the burden rests on a railroad company to show by satisfactory evidence that the order of the commission determining a maximum charge for excess baggage is unreasonable.

      5. Same — Rates—Reasonableness—Evidence — Carriers — Excess Baggage.
    Evidence showing, that wholesalers’ traveling men carry 1,500 pounds of excess baggage, that the rates therefor were the same for seven miles as for forty-five miles, that no additional expense was required to handle the baggage, that the carriage would cost less for short than for long hauls, and that the prior rates were arbitrary in character, justifies the'order of the State railroad commission in fixing new rules.
    6. Same — Method of Fixing Rate — Mileage.
    A change by the commission of the method of fixing rates from the amount of fare to mileage, does not invalidate the order, although it may result in temporary inconvenience to the company.
    Appeal from Wayne; Murphy, J.
    Submitted January 18, 1910.
    (Docket No. 116.)
    Decided March 19, 1910.
    Bill by the Michigan Central Railroad Company and others to enjoin the Michigan railroad commission from ' enforcing certain excess baggage rates. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      McPherson, Bills & Streeter (O. E. Butterfield, James H. Campbell, and L. C. Stanley, of counsel), for complainants.

      John E. Bird, Attorney General, and Lucking, Emmons & Self man, for defendant.
   Stone, J.

Many of the questions presented in this record were before this court in Michigan Cent. R. Co. v. Wayne Circuit Judge, 156 Mich. 459 (120 N. W. 1073). The complainants here were the relators there. Upon the filing of the bill in this cause they had asked for a preliminary injunction to restrain the defendant, the Michigan railroad commission, from making its order establishing rates, after a full hearing, effective pending the litigation. This was refused by the circuit judge, whereupon relators filed their petition in this court for the writ of mandamus to compel the circuit judge to grant a preliminary injunction until the case could be heard upon its merits on pleadings and proofs. This court thereupon granted an order to show cause. The writ was denied by this court. The sworn answer of the defendant denying all the equities of the bill had been filed when that case was here. Since the matter was here before, a general replication has been filed, and the cause has been heard upon its merits. It is significant, however, that at the hearing the complainants offered no evidence other than that which had been taken by and before the commission. So the case is not substantially different in its facts from that presented to us on the former occasion. On that occasion, after quoting largely from Act No. 312, Pub. Acts 1907, Justice Grant, among other things, said:

“These rates, fixed by the commission and now attacked, are maximum rates. The carriers may within those rates fix lesser rates, provided there is no discrimination or rebating. The statute is aimed to prevent discrimination and rebating, and not to prevent carriers from charging rates less .than the maximum, provided they treat all their customers alike. It follows that between competing points, where the haul of one road is longer than that of the other, the one having the longer haul may charge the same rates as are charged by the one having the shorter haul.
“ We do not construe the provisions of this act to lodge in the courts the power to establish rates. The power conferred upon the courts is solely to determine whether the rates are confiscatory or unreasonable. If the courts should so find, they are not authorized to determine what are reasonable, but the matter must again be referred to the commission to establish other rates. If they are found to be reasonable, the courts will sustain the action of the commission. If, however, it should be determined that such power was conferred upon the courts, and is unconstitutional, the act would still be held valid, because it could stand with that clause eliminated from the statute. Courts declare legislative enactments invalid only when they are able to determine from the act itself that the legislature would not in all probability have enacted the law with the objectionable features eliminated. This act expressly declares that, so long as the main purpose and object of the act can be sustained, any provision held void shall not affect its validity. We are not now prepared to hold that, if all the provisions which counsel for relators now attack should be held void, it would invalidate the entire law. Similar acts have been sustained by the courts of many of the States, and we prefer to reserve this important question until the final hearing. * * *
“A petition by proper parties, in accordance with the law, was presented to the commission, setting forth the facts and reasons for claiming that the rates were exorbitant. Due notice was served and the parties appeared, the commission took testimony, and gave the relators ample opportunity to produce evidence and present their views. Various hearings were had, the commission deliberated six months, and no reason appears upon this record for believing that this important body did not exercise their best judgment in fixing the rates. Usually laws of this character are enforced by providing penalties, and those wishing to determine the validity of such a law violate its provisions, and test the question in a suit at law, as was done in People v. Railway Co., 116 Mich. 132 (74 N. W. 520). The act here in question provides for a speedy remedy for parties claiming to be aggrieved by the order of the commission, by a resort to a court of equity, and provides for an expeditious hearing. Such suit is given precedence both in the circuit and Supreme courts over all other cases.”

We have thus quoted, perhaps at unnecessary length, from the opinion of Justice Grant, because it appeared there, as it did upon this hearing, that the rates fixed by the commission are not confiscatory, but afford some remuneration over and above expenses, and because the law expressly makes the rates fixed by the commission prima facie lawful and reasonable, and casts the burden of showing the contrary upon the railroad companies contesting, who are the complainants here. While the holding of this court in the mandamus proceeding may not be res judicata, yet it shows clearly the view held at that time as to the law of the case. It appears by the settled case on appeal that at the hearing counsel for the complainants advised the court that they would submit the case upon the record made at the hearings before the Michigan railroad commission, and would offer in support of the allegations of the bill of complaint no other evidence. The certified proceedings before the railroad commission were thereupon offered and received in evidence. This testimony was voluminous, and with the exhibits covers about 200 pages of this record. We have carefully read the testimony, as well as the arguments before the commission, and its opinion.

It is the claim of complainants:

‘ ‘ (1) That Act No. 312, Pub. Acts 1907, violates the provisions of section 2, art. 4, of the Constitution of Michigan (1909), because it confers upon the railroad commission both legislative and executive powers, {a) The power of prescribing rates to be applied in the future, and of establishing regulations for the future conduct of business, is legislative. (6) The duty of enforcing the law and making investigations to determine whether or not existing laws are being violated is beyond doubt an executive function.
“(2) The Michigan railroad commission’s order, dated January 15, 1909, is void, because it is not supported by any evidence that complainants’ rates are unreasonable.”

The learned circuit judge held that the question of the constitutionality of the act is not properly raised in this case, because the order complained of is purely legislative in character. He said in his opinion on the final hearing:

“ Concededly the rate-making power is a legislative prerogative. The only authority exercised by the defendant in any of its acts involved in this controversy is accordingly legislative in character, since the conduct questioned relates exclusively to the promulgation of a new schedule of rates. If, then, it be assumed, for the mere purpose of clarifying the situation, that other duties, executive in character, are sought to be conferred upon the commission by the statute, what effect, if any, has such an assumption upon the pending issue, since the performance of any such duties, or the exercise of any power incidental to them, are in no wise involved in the proceedings of the commission here in issue ?
“ In answering this question the legislative intent, evidenced in section 50 of the act, is of vital, and, I think, of controlling, importance. That section provides that:
“ ‘Each section of this act and every part of each section is hereby declared to be an independent section and part of a section, and the holding of any section or part thereof to be void and ineffective for any cause shall not be deemed to affect any other section or any part thereof.’
“Eliminating, as executive in character, the provisions by which the enforcement, both of statutory requirements and of its own orders and regulations, is made the duty of the commission, and discarding similarly other features vesting in it for enumerated purposes the power to make certain defined appointments, the legislative purpose to enact the remaining provisions, under which the commission has proceeded herein, is made distinct and emphatic by the language just quoted. It is a familiar rule of construction that any unconstitutional feature of an act will not of itself invalidate the entire enactment, where it appears that, without the invalid provision, the legislature would have passed the remaining and valid sections. The sections claimed to be constitutionally defective are not germane, since they have not been invoked herein by the commission. There is the formal declaration of the legislature that, if these sections be void, the remaining sections here relied upon would yet have been enacted. It follows that the objection is not tenable; for, if well taken, it does not destroy that authority conferred upon the commission which has been exercised herein. It is obvious that in what has been said no intimation is conveyed that the constitutional objection urged is in law sound. That question should be left for consideration when properly raised.”

In view of the peculiar language of section 50, above quoted, there is much force in the position of the circuit judge. But we prefer to place our decision upon the proposition that, under the act in question, the duties of the Michigan railroad commission are neither purely legislative nor executive, but that they are ministerial in their character. The following cases bear more or less upon this question: People v. Board of Supervisors of Ingham Co., 20 Mich. 95; Attorney General v. Common Council of Detroit, 29 Mich. 108; Feek v. Bloomingdale Township Board, 82 Mich. 393 (47 N. W. 37, 10 L. R. A. 69); Turner v. City of Detroit, 104 Mich. 326 (62 N. W. 405); Hurst v. Warner, 102 Mich. 238 (60 N. W. 440, 26 L. R. A. 484, 47 Am. St. Rep. 525); Attorney General v. Bolger, 128 Mich. 355 (87 N. W. 366); Albert v. Gibson, 141 Mich. 698 (105 N. W. 19). It is said in the case last above cited:

“It is well settled that the statutes must be so construed as to .render them constitutional, if such construction is reasonably possible.”

See, also, McCall v. Calhoun Circuit Judge, 146 Mich. 319 (109 N. W. 601).

The distinction between what is constitutional and unconstitutional is clearly pointed out by Justice Carpenter in King v. Insurance Co., 140 Mich. 268 (103 N. W. 620). He there quotes language from Locke’s Appeal, 72 Pa. 498 (13 Am. Rep. 716), as follows:

“ The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact, or state of things, upon which the law makes, or intends to make, its own action depend.”

It is held not to be an unauthorized delegation of power for the legislature to authorize a board of railway commissioners to provide reasonable rules and regulations in respect to fixing transportation tariffs. 6 Am. & Eng. Enc. Law (2d Ed.), p. 1030, and note 14, citing cases. The grant of authority to various officers and boards to prescribe rules, etc., in certain cases has been held not to be a delegation of legislative authority. 8 Cyc. p. 832 et seq., and cases cited. Commissions of the character we are considering in this case are now as much an integral and indispensable part of our governmental system as any other of our administrative bodies, with the exception of the legislature itself. It is now quite uniformly held by the courts that the action of such a body in fixing a rate is not a legislative act upon its part, but is only administrative or ministerial in its function, in putting into effect the legislative will which has been previously declared by the legislature. If the legislature were to attempt to delegate a purely legislative power to a commission, it would be unconstitutional, as in fact this court has repeatedly held. It is unnecessary to point out the cases. But the legislative will is declared when the law is passed, affirming that all rates shall be reasonable and just. This is done by the legislature itself. The work of the commission making the investigation upon the facts, and declaring what is a reasonable and what is an unreasonable rate, is by the courts held to be simply administrative of the law as previously enacted by the legislature. It is held that the functions and duties of such commissions are administrative or ministerial, and neither legislative, executive, nor judicial. 2 Elliott on Railroads (2d Ed.), § 675.

In Reagan v. Trust Co., 154 U. S. 362 (14 Sup. Ct. 1047), the court said:

“Passing from the question of jurisdiction to the act itself, there can be no doubt of the general power of a State to regulate the fares and freights which may be charged and received by railroads or other carriers, and that this regulation can be carried on by means of commission. Such a commission is merely an administrative board created by the State for carrying into effect the will of the State, as expressed by its legislation. Railroad Commission Cases, 116 U. S. 307 (6 Sup. Ct. 334, 388, 1191). No valid objection, therefore, can be made on account of the general features of this act, those by which the State has created the railroad commission and intrusted it with the duty of prescribing rates of fares and freights, as well as other regulations for the management of the railroads of the State.”

In Beale and Wyman on Railroad Rate Regulation, § 1309, it is said, with reference to this question:

“ It is much more convenient for the legislature to confer on a subordinate administrative body the power to fix rates than to do so itself. This has been done in England by placing the power in the board of trade, one of the executive or rather administrative departments of the government. In this country, the power has, in the last quarter century, not infrequently been referred to an administrative commission. The reason for delegating the power of fixing rates in detail to a commission has never been better expressed than by Mr. Justice Brewer:
“ ‘ The reasonableness of a rate changes with the changed condition of circumstances. That which would be fair and reasonable today, six months or a year hence may be either too high or too low. The legislature convenes only at stated periods; in this State once in two years. Justice will be more likely done if this power of fixing rates is vested in a body of continual session than if left with one meeting only at stated and long intervals. Such a power can change rates at any time, and thus meet the changing conditions of circumstances. While, of course, the argument from inconvenience cannot be pushed too far, yet it is certainly a matter of inquiry whether, in the increasing complexity of our civilization, our social and business relations, the power of the legislature to give increased extent to administrative functions must not be recognized.’ Chicago, etc., R. Co. v. Dey, 35 Fed. 866, 875 (1 L. R. A. 744).”

Also in section 1319;

“ It has already been seen that the rate-making power may be delegated to a subordinate body, whether municipal corporation or commission; and this is not unconstitutional as a delegation of legislative power. The legislative act of requiring the rates to be reasonable is either the act of the common law, or is part of the act by which the delegation of authority is conferred. The functions of such bodies in determining and fixing reasonable rates are administrative rather than legislative. The authority conferred on them relates merely to the administration in practice of the general rules laid down by the common law and by the legislature. So in the Railroad Commission Cases (116 U. S. 307, [6 Sup. Ct. 334]), the legality of the action of the Mississippi legislature in creating a railroad commission with power to fix rates was involved. The rate so fixed could be enforced in the courts, unless the courts should find it unjust. The delegation of the rate-fixing power to a commission in this way was held to be constitutional.”

In Noyes on American Railroad Rates, p. 206, the author says, with reference to State regulation of railroad rates:

“The legislature cannot delegate its power to make laws. Statutes can be enacted only by the agency created by the constitution for the purpose. But when the legislature has adopted general rules, it may delegate the power to apply them to specific facts, and to exercise discretion in respect thereto. A commission may be created to perform legislative functions of a quasi administrative character. When the legislature has declared that railroad rates shall be reasonable and just, it may authorize a commission to fix the specific charges. Any other conclusion would practically prevent the legislature from exercising its power to make rates. The country is so large, the railroads so numerous, and conditions so variable and changeable, that direct rate making by the legislature, with annual or biennial sessions, would be wholly out of the question. Moreover, legislatures are not adapted to pass upon the matters of detail necessary in making rates.
“Laws have, therefore, been adopted in several States conferring upon commissions power to prescribe rates for railroad services. These laws have been sustained by the Supreme Court of the United States. * * *
When a commission, in the exercise of power delegated by the legislature, makes a rate, the result is the same as if the legislature directly acted. The act of the commission supplements and makes effective the act of the legislature. The rate resulting from the joint action of the legislature and its agent is the law. Making a rate in legal effect is making a law that such shall be the rate.”

The authorities upon the question are extensively reviewed in the case of State, ex rel. Taylor, v. Railway Co., 76 Kan. 467, 481 (92 Pac. 606, 611), where the court said:

“ In fact the power of the legislature to delegate merely administrative functions in this manner has been so thoroughly established in the several States, and so often held by the Federal Supreme Court to apply to acts of congress, that the question is no longer an open one. The latest utterance of the United States Supreme Court upon the subject is in the case of Atlantic Coast Line R. Co. v. Corporation Com’n, 206 U. S. 1 (27 Sup. Ct. 585), in which Mr. Justice White, speaking for the court, uses the following language:
“ ‘ The elementary proposition that railroads, from the public nature of the business by them carried on, and the interest which the public have in their operation, are subject, as to their State business, to State regulation, which may be exerted either directly by the legislative authority or by the administrative bodies endowed with power to that end, is not and could not be successfully questioned, in view of the long line of authorities sustaining that doctrine.’ ”

See, also, Minneapolis, etc., R. Co. v. Railroad Com’n, 136 Wis. 146 (116 N. W. 905, 17 L. R. A. [N. S.] 821).

An examination of the provisions of the railroad commission act in force in this State will demonstrate clearly that the commission as such has no power to legislate for the railroads of the State. The legislature by the terms of the act had declared what shall be the law affecting the various railroads, and merely conferred upon the commission authority to administer the laws passed by the legislature. The rights of the railroad companies are carefully guarded by the provisions for hearings in all cases before any order is made, and provisions for the review of such orders by the courts. It is difficult to see how, in view of the long line of authorities sustaining the constitutionality of similar acts, the court can say that this law in its general features is invalid. As to the constitutionality of laws of this character generally, we cite the following authorities: Chicago, etc., R. Co. v. Minnesota, 134 U. S. 418 (10 Sup. Ct. 462, 702); Reagan v. Trust Co., 154 U. S. 362, 393, 394, 397 (14 Sup. Ct. 1047); Smyth v. Ames, 169 U. S. 526 (18 Sup. Ct. 418); Tilley v. Railroad Co., 5 Fed. 641; Chicago, etc., R. Co. v. Dey, 35 Fed. 866 (1 L. R. A. 744); McWhorter v. Railroad Co., 24 Fla. 417 (5 South. 129, 2 L. R. A. 504, 12 Am. St. Rep. 220); Storrs v. Railroad Co., 29 Fla. 617 (11 South. 226); Georgia Railroad v. Smith, 70 Ga. 694, 71 Ga. 863; Chicago, etc., R. Co. v. Jones, 149 Ill. 361 (37 N. E. 247, 24 L. R. A. 141, 41 Am. St. Rep. 278); State v. Railway Co., 38 Minn, 281, 298 (37 N. W. 782); State v. Railway Co., 40 Minn. 156 (41 N. W. 465); Stone v. Trust Co., 116 U. S. 307 (6 Sup. Ct. 334, 388); People v. Harper, 91 Ill. 357; Atlantic Express Co. v. Railroad Co., 111 N. C. 472 (16 S. E. 393, 18 L. R. A. 393, 32 Am. St. Rep. 805); Interstate Commerce Com’n v. Railway Co., 167 U. S. 479, 496 (17 Sup. Ct. 896); Louisville, etc., R. Co. v. McChord, 103 Fed. 216; Western Union Tel. Co. v. Myatt, 98 Fed. 335; State v. Johnson, 61 Kan. 803 (60 Pac. 1068, 49 L. R. A. 662); Steenerson v. Railway Co., 69 Minn. 353 (72 N. W. 713); Chicago, etc., R. Co. v. Winnett, 162 Fed. 242 (89 C. C. A. 222); Atlantic Coast Line R. Co. v. Corporation Com’n, 206 U. S. 1 (27 Sup. Ct. 585).

We repeat that no power to make a law or do a purely legislative act is conferred, or attempted to be conferred, by the act in question. The duties are purely administrative of the law as established by the legislature.

Our attention has been called to the recent case of Oregon Railroad & Navigation Co. v. Campbell, 173 Fed. 957, in the United States circuit court, district of Oregon. This is a well-considered case, holding that the railroad commission act of Oregon, which requires every railroad to charge reasonable and just rates, creates a State railroad commission, with power to determine in the first instance the reasonableness of rates charged, and, if found unreasonable, to fix rates which shall be prima facie reasonable and just, and shall be conformed to by the railroad company, with the right, however, to bring suit in a court of the State to determine their reasonableness, in which suit it shall have the burden of proof, is not unconstitutional, as conferring legislative, executive, and judicial functions on the commission, in violation of article 3, § 1, of the State constitution, providing that the powers of government shall be divided into three separate departments, legislative, executive, and judicial, and that, except as provided in the constitution itself, no person charged with official duties under one of these departments is competent to exercise any function of the other. It is there held that, in the constitutional division of the powers of a State into legislative, executive, and judicial departments, there can be no absolute line of demarcation between the functions of such departments; and, where it is scarcely ascertainable whether the several powers conferred by a statute belong more properly to one or the other departments, and their assignment to one works no practical encroachment on the functions of another, the fact that all such powers are vested in a single body or tribunal, for practical reasons, will not invalidate the statute. In the above case all of the authorities cited by counsel are referred to and reviewed, and the court concludes :

“The legislature can fix rates upon traffic, but in their establishment they must be reasonable. If unreasonable, the courts will declare them so.. In fixing such rates, an investigation must necessarily precede the legislative action; but the law declares that the legislature may fix rates through a functionary called a ‘ commission,’ and, when the commission acts, it is as if the legislature had fixed the rates. But, like the rates established by the legislature, if unreasonable, such rates are not binding upon the transportation companies affected. Recognizing this condition, the act in question has provided a remedy whereby the rates fixed may be judicially determined as it respects their reasonableness. The act of the commission being valid prima facie, the rates fixed become a law unto the carrier until a competent court declares them to be unreasonable. Just so with an act of the legislature fixing rates, because no law fixing unreasonable rates can bind the carrier. I see no legal or constitutional objection to the legislation proceeding in this way to a regulation of rates and tariffs upon transportation lines within the State.
“That the burden is cast upon the carrier of first resorting to a court of justice for a determination of the reasonableness of a rate, if he desires to contest the action of the commission, rather than upon the commission to sue if resistance to the' rate ordered to be observed is made, as provided in the interstate commerce act, is not a distinction that differentiates the two acts in principle. In either case the carrier is given his day in a coui;t of justice upon the question of the reasonableness of the rate prescribed, with the identical presumptions of law attending the controversy.”

In view of the authorities above referred to, and of the rule that the courts will presume in favor of the constitutionality of a law until the contrary plainly appears, we conclude that the act in question is constitutional.

This brings us to the question as to whether or not there was any evidence before the commission tending to show that the rates theretofore in effect were unreasonable. It should be borne in mind that under the statute all the rates fixed by the commission are prima facie lawful and reasonable, and that the burden of proof was upon the railroads to show by satisfactory evidence that the order was unreasonable. It was well said by the court in Missouri, etc., R. Co. v. Interstate Commerce Com’n, 164 Fed. 650:

“In approaching the consideration of a case like this, the court should start with the presumption that the order is valid, and was made after careful consideration and correct determination of every question of fact underlying it, and it should be accorded that respect and influence which ought to attend, and does attend, the action of a legislative or administrative board, whose members are, in point of ability, learning, and experience specially qualified to determine such matters. In short, the burden of showing that the facts are such as to render the order invalid rests upon the carrier assailing it, and unless the case made on behalf of the carrier is a clear one, the order ought to stand.”

There is no doubt that had the railroad companies offered in evidence before the commission many things that were peculiarly within their knowledge, the commission would have been greatly assisted. But as they saw fit to offer no testimony there, nor on the hearing of the case, after a reading of the testimony offered before the commission, we. are clearly of opinion that there was evidence before that body upon which it was justified in making the order. There was evidence before the commission that the average trip of the wholesaler’s traveling men, carrying large quantities of excess baggage, was about 8 miles; that these trips had to be made often during the year; that each man carried an average of at least 1,500 pounds of excess baggage, and that the said railroads were charging as much for carrying his baggage 8 miles, or 7 miles, or 6 miles, or less, as if he traveled 45 miles. In other words, the charge was precisely the same for 2, 3, 5, 7, or 8 miles as for 45 miles. The proof showed, without any contradiction, that no additional men were required, no additional power, no additional expense, except occasionally an extra man at terminal points where large amounts of baggage were handled, like Detroit or Grand Rapids. Taking into consideration the expense of operating a train of cars, it is difficult to understand how it can cost the railroad company as much to carry baggage 6 or 8 miles as it does to carry it 45 miles. Certainly to carry it the shorter distance does not take as much time, nor as much fuel, nor as much space, for the space or room in the baggage car is relieved or vacated for other baggage. We think that it was proper to show by comparison that the rates for short hauls were unreasonable. McMorran v. Railway Co., 3 Interst. Com. Com’n R. 261, 262. That a usual method of proof of unreasonable charges is by comparsion see the following cases: Interstate Commerce Com’n v. Railway Co., 85 Fed. 107; Board of Trade v. Railway Co., 6 Interst. Com. Com’n R. 1, 22, 23; Maricopa County Commercial Club v. Wells, Fargo & Co., 16 Interst. Com. Com’n R. 182; Board of Railroad Com’rs v. Railway Co., 7 Interst. Com. Com’n R. 380; Marten v. Railroad Co., 9 Interst. Com. Com’n R. 581; Denison Light & Power Co. v. Railway Co., 10 Interst. Com. Com’n R. 337.

There was evidence showing that the former rates were unjust in that the increases were all arbitrarily 5 cents per hundred; that is, up to 45 miles 15 cents per hundred pounds; from 45 miles to 60 miles, 20 cents; from 60 to 75 miles, 25 cents, and so on, so that a traveler pays for 2,000 pounds excess, 45 miles $3, for 46 miles $4. Where his passenger fare increases but 2 cents his baggage charge increases $1. This would seem to be unreasonable, and it was remedied, at least in part, by the commission. As to claimed discrimination against small shippers, see Willcox v. Consolidated Gas Co., 212 U. S. 19 (29 Sup. Ct. 192).

The last ground of complaint made by the complainants is that the rate fixed by the defendant is based upon mileage instead of upon the passenger fare. We are content with the treatment of this subject by the circuit judge, wherein he said:

“ The rate for excess baggage heretofore in vogue was based upon a percentage of the first-class passenger fare in effect between the points, between which the baggage moves. Substantially the passenger was required to pay, per 100 pounds of his excess baggage, for all distances in excess of 45 miles, 16§ per cent, of the fare paid for his journey. This plan is in general use by the carriers of the country, outside of the movements of local baggage in the State of Indiana. In that State the baggage charge is placed upon a mileage basis. The commission has in its schedule adopted the mileage basis for establishing and computing the rate in this State. It is urged that this is unreasonable, in that it will entail much inconvenience upon the traveling public. The plan of computation is surely discretionary, provided, always, that there be no abuse of discretion. To base the charge for carrying property directly upon the distance it is conveyed cannot in the abstract be said to be unreasonable, even though that be not the method generally employed. The commission, in its judgment, has determined that to be the equitable method, and has fully advanced the reasons for its view in the opinion it filed contemporaneously with its order. The resulting inconvenience, if any, in the checking of through baggage, growing out of the substitution of this plan for the former one, does not constitute ground for invalidating the commission’s action.”

We are of the opinion that the commission had sufficient proof before it to justify its action. The law expressly makes the rates fixed by the commission prima facie lawful and reasonable, and casts the burden of proof to the contrary upon the railroad companies contesting. The complainants have failed to show that the order of the commission is unreasonable or unwise, much less illegal and unlawful.

The decree of the court below will be affirmed,, with costs of both courts.

Montgomery, C. J., and Hooker and Moore, JJ., concurred with Stone, J. Ostrander, J., concurred in the result.


author: Hooker, J. Ostrander, J.

text:
    TIMM v. GRAND RAPIDS BREWING CO.
    1. Corporations — Ultra Vires Contracts — Intoxicating Liquors — Manufacturer as Surety.
    A brewing company may further its business by giving a bond to secure sureties on a liquor dealer’s bond of one of its customers, and the contract is not ultra vires, or outside the scope of its business. Ostrander, J., dissenting.
    2. Same — Estoppel—Ultra Vires — Liquor Bonds — Principal and Surety.
    Such corporation is estopped to defend an action upon the bond on the ground that it was beyond its powers to execute the contract.

    3. Same — Contracts—Public Policy — Principal and Surety.
    The giving of an indemnity bond by a brewing company to obtain sureties for a liquor dealer is not against public policy.
    Certiorari to the superior court of Grand Rapids; Stuart, J.
    Submitted January 18, 1910.
    (Docket No. 83.)
    Decided March 19, 1910.
    Assumpsit by Charles Timm, Sr., against the Grand Rapids Brewing Company upon an indemnity bond. An order overruling a demurrer, is reviewed by defendant on writ of certiorari.
    Affirmed.

      Smedley, Hall & Freeland (Bichard L. Newnham, of counsel), for appellant.

      William, F. McKnigM and Fred P. Geib, for appellee.

       As to estoppel of corporation to set up plea of ultra vires, see note to Miller v. American Mut. Accident Ins. Co. (Tenn.), 20 L. R. A. 765.

   Hooker, J.

The defendant is a corporation engaged in the business of manufacturing and selling all kinds of malt and fermented liquors. The declaration alleges that it made a practice of furthering its business by aiding such keepers of saloons as purchased its product in obtaining sureties upon their bonds required by law; that in April, 1906, the defendant owned a hotel including a bar with fixtures and equipment designed for the retail liquor trade, and it desired to have such a business conducted there by one Carrel, and, to induce the plaintiff to become one of the sureties upon the bond required by the State of said Carrel, promised to indemnify the plaintiff against loss thereby and in accordance with such promise executed and delivered to the plaintiff a bond of indemnity set forth in the declaration; that Carrel entered upon said business and subsequently a judgment upon the bond executed by the plaintiff was rendered against Carrel and heirs, and execution was issued thereon, and plaintiff was compelled to and did pay said judgment. It alleges, further, the liability of defendant and its duty to reimburse plaintiff, and its refusal to do so. The defendant demurred to plaintiff’s declaration on the ground that the execution and delivery of said bond of indemnity was beyond the power of defendant, being outside of the scope of the business for which defendant was organized, and that the promise was ultra vires and the bond void. Upon the argument in this court, it was also claimed that the bond was void because against public policy. The demurrer being overruled, the cause is before us on certiorari.

The purpose for which the “Brewing Co.” was organ-j ized was stated in its articles to be “the manufacture and sale of malt and all kinds of malt and fermented liquors and aerated and charged waters.” Under the well-settled rule the defendant had implied power to do those things} necessary and helpful to the conduct of its authorized business. It could itself engage in the sale at retail of its product in as many places as it might desire, and therefore might contract with its own sureties requisite to such business, and in our opinion it might also render assistance j to purchasers of its product in furtherance of a contract for such purchase. Thus it has been held that the guaranty of the performance of the covenants in a lease by a saloon keeper was a contract within the power of a brewing company. See Aaronson v. Brewing Co., 56 N. Y. Supp. 387. The same was held of a guaranty of payment of rent by one of the brewing company’s customers. Winterfield v. Brewing Co., 96 Wis. 239 (71 N. W. 101). Also of the guaranty of payment of notes given by a saloon keeper to enable him to commence business. Blue Island Brewing Co. v. Fraatz, 123 Ill. App. 26; Standard Brewery v. Kelly, 66 Ill. App. 267; Keeley Brewing Co. v. Emrick, 64 Ill. App. 247. It has also been held that the signing of a saloon keeper’s bond as surety was not an ultra vires act. Horst v. Lewis, 71 Neb. 365, 370 (98 N. W. 1046, 103 N. W. 460). See, also, Kraft v. Brewery Co., 219 Ill. 205 (76 N. E. 372).

In Best Brewing Co. v. Klassen, 185 Ill. 37 (57 N. E. 20, 50 L. R. A. 765, 76 Am. St. Rep. 26), the supreme court of Illinois held that the signature of an appeal bond for a defeated defendant in a forcible entry case was an act that was ultra vires under articles which showed the corporation signing the bond to have been organized to manufacture and sell beer, ale, and porter and to carry on a general brewing business in all its branches'. The opinion states that there was no evidence tending to prove that the business of the corporation had been or was ever likely to be benefited in any degree by the execution of the bond. In a later case the same court held that loaning money to enable a borrower to erect a building in which he promised to sell only the beer manufactured by the corporation loaning the money was not ultra vires. The case is distinguished from the Klassen Case in the opinion. See Kraft v. Brewery Co., 219 Ill. 205 (76 N. E. 372). The foregoing and other cases cited by counsel sufficiently indicate the application of the general rule as to implied powers to such cases as the present.

| Furthermore, the great weight of authority sustains the ¡claim of the plaintiff’s counsel that the defendant is (estopped from denying its liability on the ground that the act was ultra vires. In Carson City Sav. Bank v. Elevator Co., 90 Mich. 550 (51 N. W. 641, 30 Am. St. Rep. 454), we said:

“ The plea of ultra vires should not as a general rule prevail, whether interposed for or against a corporation, when it would not advance justice, but, on the contrary, would accomplish a legal wrong.”

See, also, Coit v. City of Grand Rapids, 115 Mich. 493 (73 N. W. 811); Rehberg v. Surety Co., 131 Mich. 135 (91 N. W. 132); Citizens' Sav. Bank v. Globe Brass Works, 155 Mich. 9 (118 N. W. 507).

Counsel’s contention that the giving of this bond is contrary to public policy is perhaps a proper suggestion to be considered for its bearing upon the questions already discussed. We are of the opinion, however, that it is not controlling. The sale of beer was lawful, and, while restricted to persons or companies giving the statutory bonds, there is nothing to justify the inference that one may not hire or indemnify lawful bondsmen, or that the implied powers of the corporation are restricted or the rule relating to ultra vires acts affected thereby.

The order of the learned judge of the superior court is affirmed.

Moore, McAlvay, and Stone, JJ., concurred with Hooker, J.

Ostrander, J.

I think the business of becoming surety upon saloon keepers’ bonds ultra vires the powers of defendant. I concur in the result upon the ground that defendant is estopped to urge the defense of ultra vires.


author: Hooker, J.

text:
    AVIKAINEN v. BALTIC MINING CO.
    Master and Servant — Fellow-Servant — Mining Boss — Safe Instrumentalities.
    A miner who has supervision over a working assistant does not represent the master so as to charge the latter with negligence in permitting his assistant to descend by a worn-out rope, not intended for such purpose, or in failing to supply a sufficient rope for his assistant who might have descended by a ladder provided by the employer, but lowered himself into a stope by the defective appliance.
    Error to Houghton; Streeter, J.
    Submitted January 20, 1910.
    (Docket No. 106.)
    Decided March 19, 1910.
    Case by Matt Avikainen against the Baltic Mining Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      P. H. O’Brien, for appellent.

      Allen F. Bees, for appellee.
   Hooker, J.

In the annexed diagram, A, B, and C are, respectively, the fourth, fifth, and sixth levels in the Baltic mine. The letters O, O, O, represent a stope from the fifth level, in the bottom of which is waste rock, which has been broken down by miners from the overhanging wall above. This rock is refuse, and is left there. W, X, Y, and Z represent places called “mills,” being spaces left at intervals in the refuse rock, into which ore-bearing: rock, which has been broken down, is thrown, to be loaded on a car which runs in drift or level 5. They are also the places through which the miners ascend to and descend from the top of the accumulated refuse, the place where they work. The sides of the mills are walled up, and ladders are furnished and used by the miners in ascending and descending, and no provision is made for any other method of access. Ropes are furnished and used for drawing up tools, water, etc., and they are sometimes used by the miners as a means of ascent and descent, especially when rock is being thrown in the mill for loading, when the ladder is removed. Apparently the miners prefer to use the rope, rather than to take the trouble to put down and take up the ladder; but they are forbidden to use mills, in which rock is being thrown, for ascent and descent.

The plaintiff was, at the time of the accident, what is called a “ stemmer,” which we understand to mean that he is a miner who is engaged in place of another temporarily absent. Whether his regular business in the mine was stemming, or whether he was only temporarily so engaged, we cannot ascertain from the record, and it is not apparent that it would make any difference. He had worked as a miner for six months. On the day on which the accident occurred, he — plaintiff—was engaged in drilling at the place marked “K” with a miner whose mate had been disabled. Kangas, plaintiff’s mate at that time, directed plaintiff to get a pail of water from a hole in drift 5. It is marked “ D ” in the diagram. There were two ways which he might have taken to go to the hole. He might have gone to the mill marked “ Y ” and descended by a ladder. He chose to go down by a rope in mill W, which rope was fastened to a rail lying across the mill, as he had done many times before. While suspended by the rope, it broke, and he fell, injuring himself, and has brought this action against the mining company to recover damages for the injury. The learned circuit judge directed a verdict for defendant^ and plaintiff has appealed.

The rope was badly worn. The evidence shows that the ropes are furnished to the miners on request, for the purpose stated; that when a rope is worn out the miner asks for a new one, and if they think a rope too old for use they do not use it. That was the condition of this rope, and Kangas had been directed to get a new one. . It was against orders to go down mill W where the rock was dumped, and it was the rule that the mill where the ladder was should be used, and Kangas testified that, had the mine captain caught them going down through that mill, where the rock was dumped, they might have had trouble. He said the reason they used it was because it was'not so high and was a nearer way to the water hole. He said on recross-examination:

“We used both the rope and a piece of ladder to go down. We used whichever was handy. We used that for the reason that, if we used the ladder, it would have been necessary to pull them up every time, and we machine men, when we were going, we just used the rope. Nobody ever told us anything about using the rope. We didn’t have no order to use the rope to go up and down. We used that because we didn’t have no other order, and we thought that was the quickest way. We knew it was the regular rule of the mine to use the mill where the ladder was when we wanted to go up and down. That is a general rule. We had no business to go down there with the rope.”

The negligence charged was the furnishing of a worn-out or rotten rope, and it was the theory of the plaintiff that, in allowing plaintiff to go down, Kangas acted as a master. The last thing said before the charge was by plaintiff’s counsel, and it was that:

My contention is — and I will frankly say that, if we cannot maintain that contention as a matter of law, we have no case — that the miner, Louis Kangas, in allowing the plaintiff to use that rope to go down into that mill in that stope, acted as the master as far as Mr. Avikainen was concerned as a stemmer. If that miner represented the master, and if it was carelessness on his part to allow the stemmer to use the rope, that was carelessness on the part of the defendant, and it is the particular carelessness charged in our declaration. * * * While I will admit that it is a narrow proposition, I claim that in allowing the plaintiff to use that rope the miner, Kangas, represented the master; and if that proposition, as a proposition of law, is not true, if it is not the law, then I will say frankly to this court that we have no case, because I want to get the thing just as clear before the court as I can. There is no necessity of citing decisions on that point.”

Upon this statement the court directed the verdict. The rope was new when it was put in use. It had become worn by long use. It was not designed to be used for climbing or descending, and, if we understand the testimony aright, it was unfit for raising drills, and was no longer used for that purpose; Kangas having been ordered to get a new one. If there was any negligence upon which plaintiff may recover, it is the failure of Kan-gas to get a new rope for another purpose, thereby making it possible for his fellow-servant to be injured through an improper use of the rope and a disobedience of orders. We are of the opinion that no negligence on the part of the master was shown, and that, if Kangas was negligent in omitting to get a new rope, or allowing plaintiff to attempt a descent of the rope (if he knew of his intention to do so), it was the negligence of a fellow-servant. Kangas was simply a fellow miner, who by reason of seniority was director or boss of their operations, much as a section foreman is to a section gang on a railroad.

The judgment is affirmed.

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


text:
    MACDONALD v. FREEMAN MANUFACTURING CO.
    1. Master and Servant — Negligence — Questions of Law and Fact — Set Screws.
    Evidence that plaintiff caught his clothing in a projecting bolt of an elevator because a pile of wooden blocks on which he was working gave way, gives rise to a question of fact, if disputed.

      2. Same — Safe Place — Assumption of Risk.
    While plaintiff’s knowledge that blocks accumulated at the base of the elevator shaft where he was obliged to work, charges him with the assumption of risk of that negligence, the question of the safety of the place, in view of the projecting bolts and their dangerous character, and of the plaintiff’s actual or constructive knowledge, was for the jury.
    8. Same — Warning—Knowledge of Servant.
    The employer’s duty to warn his servant of the projecting bolts, being dependent on the plaintiff’s knowledge of the danger, was a question for the jury.
    A Same — Statutory Duty — Safe Place.
    Although failure to protect projecting bolts may not have been a breach of the defendant’s statutory duty, it was negligence if, by reason of the limited space and accumulated blocks, the place was rendered unreasonably dangerous for the employé to work.
    5. Same — Trial—Requests to Charge — Instructing Jury.
    In the absence of formal requests to charge the jury on the question of the assumption of risk, a charge which is correct as far as it goes, is sufficient on appeal.
    6. Same — Proximate Cause.
    It is not a proper application of the rule of proximate cause, to say that the slipping of the blocks, which brought plaintiff in contact with projecting bolts, constituted the only proximate cause of the injury.

      7. Same — Contributory Negligence.
    The contributory negligence of a servant, who was caught by projecting bolts of defendant’s machinery while reaching through an opening into an elevator shaft to remove accumulated blocks, was, under the testimony, a question of fact.
    Error to Kalkaska; Chittenden, J.
    Submitted January 14, 1910.
    (Docket No. 75.)
    Decided March 19, 1910.
    Case by Norman MacDonald, by next friend, against the Freeman Manufacturing Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Smurthwaite & Alway, for appellant.

      Ernest C. Smith, for appellee.

       As to right of servant to recover for injuries caused by projecting screws in shafts and other moving machinery, see note to Ford v. Mt. Tom Sulphite Pulp Co. (Mass.), 48 L. R. A. 96.

   Hooker, J.

The plaintiff recovered a judgment for injuries in defendant’s factory, where he was employed, operating a machine called the “drum saws,” which cut material into blocks the proper length for clothespins. He had worked in this factory for two years, and had operated the drum saws for about two weeks at the time of the accident. These blocks dropped into a chute as they left the drum saws, and from the chute they fell into an elevator, which extended from the basement floor to the upper floor of the factory. The drum saws were upon the floor next above the basement. Blocks would occasionally fall from the-elevator cups and accumulate on the basement floor, inside the elevator shaft, and often clogged the elevator and stopped it. When this happened, and this was often, it was the duty of plaintiff and another workman to go below and take the accumulated blocks out of the shaft, and start the elevator. The blocks were thrown on the floor outside the shaft, and at intervals they were put into the elevator and taken above. This happened usually, if not always, when directions to that effect were given, and at times when these men were not engaged in running the machines. Plaintiff had done this twice.

South of the elevator shaft, and at a distance of 3 feet 8£ inches therefrom was a line shaft, extending through the mill, about 2£ feet above the level of the basement floor. This shaft was of two ór more pieces, and there was a safety coupling said to be the safest coupling made. The coupling was in two pieces which clamped the shaft. No set screw was used, and the halves of the coupling were held in place by bolts the heads and nuts being between two ridges on the couplings. These bolts did not project from the shaft at right angles as set screws do. There was one bolt, possibly more, that was so long that it projected beyond the nuts and ridges. Owing to the accumulation of blocks outside of the elevator, the men lay down upon them, and, reaching through the door in the shaft, removed the blocks. In some way the leg of plaintiff’s overalls was caught by this bolt, and he was seriously injured. No one was able to testify how it happened, except the plaintiff, who said that some of the blocks gave way under his feet, causing him to slip against the coupling. Evidence was given to the effect that he had stated to one or more persons that he did not know how it happened. Manifestly this was a question for the jury. The defendant offered no testimony, and requested the court to direct a verdict in its behalf, and has appealed.

The negligence relied on, and upon which it was submitted to the jury, was:

(1) Failure to provide a reasonably safe place in which to work.

(2) Failure to warn plaintiff of the danger of the exposed bolt.

(3) Failure to keep the bolt covered.

The defendant contends:

(a) That the place was reasonably safe.

(5) That there was no occasion to warn the plaintiff of the bolt which was plainly visible, and with which he must have been familiar, and for the further reason that it was remote from the place where he was at work, and was not the proximate cause of the injury.

(c) That there was no order of the factory inspector to cover the set screw.

(d) Contributory negligence.

(e) Assumption of risk.

Safe Place. We are of the opinion that the accumulation of blocks did not alone make defendant chargeable for not furnishing a safe place to work. The plaintiff knew of this accumulation and assumed the risk of working upon them. Taken in conjunction with the proximity of the shaft with the projecting bolts, a question of the reasonable safety of the place was one for the jury; the assumption of risk being dependent upon plaintiff’s knowledge or omission to reasonably observe what was in plain sight, if it was so. The distance from the shaft was not so great as to be eliminated from consideration in determining the safety of the place.

Warning. We also think that the question of negligence in not warning plaintiff of the presence of the bolts was for the jury. They might have found that he knew of it, or should have seen it, if he had used reasonable care in observing his surroundings. If either of these were true, there was no negligence in not warning plaintiff of what he already knew or should have discovered.

Covering the Bolts. We infer from the record that the failure to cover the bolts was not a breach of statutory duty, and therefore as an abstract proposition not actionable negligence, but, taken in connection with the limited space, the accumulated blocks (which was necessarily a common condition), it may have been.negligence to leave them exposed as we intimated in our discussion of “safe place.” There are other questions which bear on these alleged grounds of negligence, such as plaintiff’s familiarity with the place, his knowledge of or duty to have known of the bolt, and his own negligence, all of which were for the jury; and we think the learned circuit judge did not err in declining to direct a verdict for defendant. We have examined the authorities cited, and think them readily distinguishable from the case before us.

While we have held that the use of an uncovered set screw upon an elevated shaft was not negligence under usual conditions, and that an employé must expect the use of set screws to fasten pulleys, etc., upon shafts, we have not held that a dangerous and unnecessary projection of a bolt at a place, where, from the nature of the work to be done, there was an unusual danger, was not to be considered in determining the danger of the place, and the duty of warning an inexperienced man. Although it has been commonly held that the use of set screws- and possibly projecting bolts upon shafts was not per se negligent, it does not follow that it would not be negligent to use them without protection, where from the proximity to the floor and in places where workmen would be subjected to unusual danger. Such a case is found in Homestake Mining Co. v. Fullerton, 69 Fed. 923, 16 C. C. A. 545:

“ In view of the undisputed fact that the kind of coupling appliance, which was attached to the line shaft when the accident occurred was then in very general use, the doctrine invoked and the authorities cited by the defendant in support of its last-mentioned contention, would doubtless relieve it from liability for using that kind of coupling appliance, although a safer and better coupling appliance might have been used to connect the line shaft. But the doctrine in question cannot be successfully invoked for the purpose of relieving an employer of the duty of placing a suitable guard around a piece of machinery or an appliance which is of that nature, or so located, that it is a constant menace to the safety of those, who, in the discharge of their duties, are frequently compelled to pass in close proximity to it. In such a case the obligation of the master to place a suitable guard around a dangerous piece of machinery is no less imperative than his duty to xemedy a defect in the machine itself.”

Counsel complain of the charge:

(a) That it allowed the jury to find negligence in the accumulation of blocks.

(5) That proper instruction was not given upon the subject of assumed risk.

(c) That the record shows that the bolt was not the proximate cause of the injury.

(a) We are of the opinion that the charge did not leave the case to the jury on the question of negligence in allowing blocks to accumulate, but only on negligence in leaving an exposed set screw, and fairly to warn plaintiff. We think it sufficiently limited the jury upon the subject of the character of the negligence.

(6) The attention of the learned circuit judge was called at the conclusion of his charge to his omission of the subject of assumed risk, and he was requested to instruct the jury upon that subject. No formal request was made, and we think defendant cannot complain that it did not sufficiently cover the subject to meet its desires or expectations, so long as it was correct so far as it went.

(c) It was not error to submit the case to the jury notwithstanding the claim that the bolt was not the proximate cause of the accident. It would be a technical application of the rule in this case to say that inasmuch as the slipping upon the blocks caused plaintiff to come in contact with the bolt which caused the overalls to be caught, which resulted in his being drawn over the shaft and the consequent breaking of his members, the slipping of the blocks was the only proximate cause. The rule of proximate cause has a place in actions for negligence. It is perhaps true that there is some want of harmony in the cases, as to the rule itself, but more particularly as to its application. We are of the opinion that this case is well within the rule. See Detzur v. Brewing Co., 119 Mich. 282 (77 N. W. 948, 44 L. R. A. 500); Shaw v. Township of Saline, 113 Mich. 342 (71 N. W. 642); White v. Township of Riley, 113 Mich. 302 (71 N. W. 502); Burrell v. City of Greenville, 133 Mich. 235 (94 N. W. 732); Swick v. Cement Co., 147 Mich. 462 (111 N. W. 110).

The question of contributory negligence was for the jury.

The judgment is affirmed.-

Moore, McAlvay, Brooke, and Blair, JJ., concurred.


text:
    DUFF v. JUDSON.
    1. Breach of Marriage Promise — Evidence.
    That the testimony for the plaintiff, in an action for breach of promise of marriage, tends to establish a contract and its breach, is concluded by a former judgment between the same parties. Judson v. Judson, 147 Mich. 618 (111 N. W. 78).
    2. Same — Evidence—Admissions.
    It is competent to show, in behalf of the plaintiff who claims that she cohabited with the defendant in reliance on his promise of marriage, that defendant treated her and two children adopted by her as members of his family.
    3. Same — Damages—Consequential Injuries.
    As against the defendant, who was a physician and had notice of the probable effect on plaintiff of his refusal to support her or perform his agreement, damages are recoverable for the loss of plaintiff’s arm caused by its use in performing labor while affected by an ulcer, as a natural result of the breach of marriage promise.
    4. Same — Compromise—Instructions to Jury.
    No error prejudicial to the defendant is committed where the judge instructed the jury concerning a claimed compromise, that while the Supreme Court or the trial court on a previous trial did not consider the settlement a bar to the suit, a settlement upon a full understanding would operate as a complete defense.

      5. Appeal and Error — Record—Index.
    Assignments of errors not based on exceptions, or founded on exceptions not indexed or referred to by page, as required by Supreme Court Rule 36, will not be considered on error.
    6. Same — Assignments of Error — Speoifio Character.
    A general assignment of error, based on several requests to charge and the instructions to the jury as a whole, is too broad.
    Error to Wayne; Donovan, J.
    Submitted February 8, 1910.
    (Docket No. 121.)
    Decided March 19, 1910.
    Assumpsit by Mary J. Duff against Henry C. Judson for breach of promise of marriage. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      George X. M. Collier, for appellant.

      Philip A. McHugh and William Henry Gallagher, for appellee.
   Blair, J.

This is an action to recover damages for an alleged breach of promise of marriage and seduction accomplished thereby. The plaintiff recovered a verdict and judgment for $1,250, and defendant has brought the record to this court for review upon writ of error.

According to the statement in the brief for defendant and appellant the questions for consideration are:

(1) Whether the facts set forth in the said record by the plaintiff and defendant constitute a legal contract of a promise to marry, and a breach thereof.

(2) Whether the testimony supporting the common-law marriage was admissible, and did tend to prove a promise of marriage and a breach thereof.

The plaintiff testified to a promise of marriage by defendant, its acceptance by her, and to the postponement of the fulfillment of his promise by defendant from time to time with renewed promises of marriage, until he finally refused some years after their engagement, to keep his agreement. In support of her cause of action, plaintiff put in evidence tending to show that defendant treated her as his wife and so held her out to those to whom he had any occasion to speak of her. The defendant denied any promise of marriage at any time, or that he ever treated plaintiff as his wife or so held her out, but insisted that they lived together in lewd and lascivious cohabitation. We regard both of the questions above stated as having been settled in favor of plaintiff by the opinion of this court in the prior case between the same parties. See Judson v. Judson, 147 Mich. 518 (111 N. W. 78). In that case it was said:

“ This testimony establishes a promise of marriage, a breach of that promise, and seduction; but it does not establish a marriage.”

We find no such change in the relations of the parties, as disclosed by the testimonylin this record, as to require a reconsideration of the legal effect thereof. The conflicting testimony was for the jury and not for the court.

Notwithstanding his statement of the questions for consideration, defendant’s counsel presents numerous other questions in discussing the assignments of error. It is contended that it was error to admit testimony as to defendant’s conduct and statements in holding the plaintiff out as his wife, and relative to two children legally adopted by her, and not by him. The testimony was limited by the court to acts and declarations of defendant himself or in his presence, and was unobjectionable. The plaintiff claimed that she was cohabiting with defendant, relying in good faith upon a continuing promise of marriage. The defendant claimed that she was living with him as his concubine. Under such circumstances, his conduct towards her, his statements as to their relations, his treatment of her adopted children as his own, and causing one of them to be baptized in his own name, were properly received in evidence to enable the jury to ascertain the true relation between the parties and the effect upon plaintiff of the termination of such relation. Simmons v. Sim mons, 8 Mich. 318; Rutter v. Collins, 96 Mich. 510 (56 N. W. 93).

Defendant also contends that the court erred in admitting testimony as to injuries suffered by plaintiff through burning and in consequence thereof the loss of her arm. The testimony discloses that plaintiff was horribly burned, necessitating some seven operations, and finally causing a cancerous growth, which compelled the amputation of her arm at the shoulder joint. She testified that defendant—

“Would not let me go to the hospital. He insisted on keeping me home, and he was very kind to me. * * * Dr. Judson was very kind to me, and he came to my room one day, and he said, ‘ Minnie, don’t give up.’ And when he saw I was going to recover, he came to me one day and said, ‘ Just as soon as you are able to leave the house, we will be married.’ He came to my room one evening all alone and impressed these words upon me.
“Dr. Tibbals performed an operation on my arm a year ago last September, where a cancer had set in from an exposure, and in the work I had had to do since the doctor put me out of the house. Since that time I have made my living in every way, doing washing and sewing, and now I am keeping a little store. I have cared for the children the last five years, and have had no assistance from the doctor. * * *
“Dr. Judson told me since I got burned my looks chilled him. I was not able to fix up and look like other women did. That was in April before we separated, the same year, 1903.”

Dr. Tibbals testified:

“Of course, the original burn was the primary cause. A burn which is deep is always followed by scar tissue, and scar tissue is unhealthy, for it is a tissue'of low vitality, and it is liable to undergo degenerative changes in later life. Now, the continued irritation at that point, plus the unhealthy tissues from the original burn, was the cause of the development of the cancer at that point. I think it might have been prevented possibly at that point, but we cannot be certain of these things; and, in addition to that, is the fact which has already been alluded to, that on account of the necessity of caring for Judson’s children it was impossible to give that arm the rest which was necessary in order to secure the healing of the ulcer.”

The court said nothing in his charge to the jury relative to these injuries as affecting the plaintiff’s damages, and defendant presented no request to charge upon the subject. In view of the amount of the verdict, it is not probable that any compensation therefor was included' in their estimate of the damages, since any adequate award for such (injuries would have been far in excess of the total amount I of the verdict. We think, however, that if the jury I found, as they might from the testimony, that the defendant violated his agreement, with reasonable grounds ifor believing, as a physician and surgeon, that as a result thereof the plaintiff would be compelled to perform manual labor to support herself and the children, which might interfere with the healing of the ulcer in her arm and eventually necessitate its amputation, he might be held responsible in damages for such loss. According to the plaintiff’s testimony, defendant, instead of marrying her as soon as she got out of the hospital after the first operation to restore the use of her arm, cast her off as no longer fit to minister to his lust, and we see no valid reason why he should not be held responsible for the results which naturally followed and which might reasonably have been anticipated by a medical man.

We do not think there was prejudicial error, if any at all, in the preliminary remark of the trial judge, relative to the claimed settlement, that:

“While the higher court and Judge Hosmer seem to have passed by the settlement, in any event they did not consider it a bar to the suit, but if they did settle and settle understanding in full and knew all about it, each of them, without any fraud or deceit, I would charge you that would be the end of the suit.”

Considering the entire sentence, the jury would naturally understand that the reference to the prior decisions was intended to mean that the question of the effect of the settlement had not been determined, but remained an open question for their determination.

Several of the assignments of error discussed in the brief are not based upon exceptions, and as to several others there is no reference, in the index or the assignments of error, to the page of the record where the exceptions appear, as required by Supreme Court Rule 36; we have therefore not considered such assignments.

The 16th assignment of error is as follows:

“ Further, the court erred in refusing to grant the requests to charge of the defendant numbered 1, 2, 3, 4, 5, and 6, and more especially the entire charge as being prejudicial to the defendant, in that the court did not make it clear upon the question that there was no liability on the part of the defendant to support the children in question, or to be liable in any manner for the unhappy physical condition of the plaintiff arising from the injuries of the burning, loss of her arm and the mutilation of her body, leaving these questions open for the jury to give damages to the plaintiff out of sympathy for the physical condition of the plaintiff and the loss that she claimed to have suffered.”

The discussion of the 16th assignment in defendant’s brief is as follows:

“We respectfully submit that it becomes the duty of the trial court to grant the requests of the defendant to charge, if they contain the correct ruling of law appertaining to the case, and there is no legal objection to the said requests, and the defendant should have been given the benefit of such requests, either in modified form or in the charge as a whole covering the points of law arising in the case, but in this case the court refused to give the defendant’s requests to charge the jury Nos. 1, 2, 3, 4, 5, and 6 as a whole or in any modified form, and the refusal to give the same was disastrous and prejudicial to the interest of the defendant in this case.”

This assignment is too general, and the only aid afforded by the discussion in the brief is in eliminating everything except the alleged failure to give defendant’s requests. Our attention is not directed to any specific instance in which the court failed to give the substance of any particular request, but we are left to examine the requests in connection with the charge to ascertain wherein the court committed error. Such examination discloses that the substance of the requests, so far as proper, was given.

The judgment is affirmed.

Montgomery, C. J., and McAlvay, Brooke, and Stone, JJ., concurred.