text:
    HINCKLEY v. DENNISON.
    1. Highways and Streets — Obstructions —Nuisance —Equity —Possession.
    It is a nuisance to obstruct a public highway by constructing a fence across it, and a bill lies to enjoin a defendant from maintaining the nuisance, even though he is in possession of the premises.
    2. Same — Adverse User — Prescription—Statutes.
    Under 2 Comp. Laws, § 4061, a private road that has been laid out as a public way and used and maintained as such for upwards of ten years, becomes a public highway by prescription whether the original proceedings to take it were valid or not.
    Appeal from Livingston; Miner, J.
    Submitted January 11, 1912.
    (Docket No. 46.)
    Decided March 29, 1912.
    Bill by E. Wray Hinckley, highway commissioner of the township of Hamburg, and others, against James Dennison for an injunction to prevent defendant from obstructing a public highway. From a decree for complainants, defendant appeals.
    Affirmed.

      Louis E. Howlett and W. E. Robb, for complainants.

      Shields & Shields and B. T. O. Clark, for defendant.
   Steere, J.

The bill of complaint was filed in this suit to restrain defendant from closing a road extending in an easterly and westerly direction across his farm of 80 acres, which is described as the E. £ of the N. E. J of section 11 in Hamburg township, Livingston county. Complainants are the commissioner of highways and township board of said township.

The issue in this case is whether this way is a legal highway, open to public travel, or a private road. It is undisputed that the road was originally opened and used, in the early settlement of that locality, as a private road by two pioneers named Crawford and Maloney. Maloney owned the land in question, and Crawford an 80 acres adjoining him on the west. The road was opened from the east across the land now belonging to defendant and up to Crawford’s house. In opening the road, they did not follow a straight line, but varied in direction to secure the best and easiest route. For many years, it bore the name of Crawford’s private road.

Just when it was originally opened is not definitely shown, but apparently somewhere in the neighborhood of 1850. A witness named Hendricks, 72 years of age, who lived in the neighborhood from early childhood, testified that it was in existence when he was a small boy. Another witness testified that he knew it as early as 1854, and a gate was maintained across said road between that time and 1860. It stands undisputed that this was a private road from its inception until 1882, when, in the progress of development, in opening highways through the country, a petition was filed with the commissioner of highways of the township, signed by the requisite number of freeholders, praying for the laying out of a highway, described as follows:

“ Commencing at the quarterpost between Hendricks, Kenney and Bishop, running east eighty rods to the quarterpost between Kenney, Moon, Crawford and Bishop; thence north 80 rods to the quarterpost between Bishop and Crawford; thence east to what is known as Crawford’s private road; thence follow said private road to the highway running north and south.”

The records of the township show that on the 3d day of February, 1882, the highway commissioner proceeded to lay out a highway according to such petition, an order being recorded, evidently following some carefully prepared form, declaring that the commissioner proceeded according to law to review the premises described in the application and determine the necessity for laying out such a highway, and to adjust and impartially appraise the damages thereon, and that he considered and determined that a public highway should be and the same was by said order “hereby laid out” pursuant to the application, describing the highway according to the terms of the petition up to Crawford’s private road, “thence following said private road to the highway running north and south,” returning that he had justly and impartially appraised the damages and made an award. An appeal seems to have been taken from the finding of the commissioner of highways, and in the finding of the township board a brief description of the highway to be laid out does not include Crawford’s private road, but sustains the commissioner in his determination. The testimony shows that at the time such action was taken a gate was maintained across this road near Crawford’s place.

Charles D. McDevitt at that time owned the premises which are now owned by defendant, and therefore owned this road. He testified that he owned and lived upon this land for many years, having bought it some 32 years before. When he bought the place, there was a gate on the road by the creek; that he remembers the highway being laid out through to what is known as Pleasant Lake, which was two or three years after he moved upon the land; that the road started at Pleasant Lake and ran zigzag to Crawford’s and came out to this road at his place, and then came “kittering” 80 rods across his 80; that, he made a claim for damages when the road was laid out, but it was not allowed; that he thought it was three or four years after this action by the highway commissioner when the gate was taken down, and thinks it was the pathmaster who came and did it. He knew at that time that they were laying out a public road across his land, but didn’t think they had a right to do so without paying the expense. This witness continued to own the land in question until 1899. He took no appeal from the action of the township authorities, and did not, in any legal proceedings, dispute the right of the public to take and use this private road for a public highway. Other witnesses testified that the road was opened up right after it was laid out in 1882, and a witness named Crawford testified that the gate was taken down at that time. Numerous witnesses testified as to its continuous use as a public highway from that time on, and of road work being done by' different settlers in the community along this highway at public expense.

One of the issues in this case is whether or not any public work was done upon this road, and the amount of it. We think the testimony is overwhelming to the effect that the road was improved at public expense at different times and to a considerable extent. Three men who, at different times, were overseers of highways testified to having authorized and directed work upon this road; and other witnesses testified to doing work of various kinds, at different times, such as putting a small bridge over a waterway, putting in tile, grading, and scraping. One witness testified that he scraped dirt nearly the whole length of the road.

It is the contention of the defendent that the road was cared for by the private owners, kept in possession by them, and only used by a limited number of well-known persons, who obtained permission from the owners to pass that way. Much testimony was introduced tending to show that it was known as Crawford’s private road, and that its private character was maintained and generally recognized.

No trouble is shown to have arisen or interruption occurred in the public use of the road, or in the public authorities making whatever improvements upon it they saw fit, until the summer of 1910, when a controversy arose between complainant Hinckley, the commissioner of highways, and defendant in regard to a fence which defendant built along a portion of this highway, and which the commissioner claimed encroached upon the same. As a result of such dispute and the bitterness which it engendered, defendant asserted that he was the owner of this road, and the township had no right to interfere. He then built a fence directly across the way, stopping all travel. A rather unseemly scramble arose between Hinckley and defendant, in which the fence was torn down and rebuilt and various threats made and legal proceedings instituted, which finally resulted in this bill of complaint.

The fence defendant built across the road was barbed wire fastened on posts. The highway commissioner served notice on him to remove it, and, it still remaining after 30 days, he went over and removed it, when defendant again rebuilt it. Defendant then stood guard and forbade any one touching the fence. An injunction was finally served on him after the fence had been torn down in the night, by the commissioner, while defendant was temporarily absent. Serious complaint is made of the conduct of complainants in that connection, and it is asked that the bill be dismissed, because they do not come into a court of equity with clean hands.

This is an alleged case of obstruction of a highway, not an encroachment. It was in general use, being traveled by the public, and was part of a rural free delivery mail route. If it is a highway, such improper obstruction of it is a nuisance; and an injunction bill is a well-recognized method of abating such nuisances, even when defendant is in possession. City of Mt. Clemens v. Sanitarium Co., 127 Mich. 115 (86 N. W. 537), and cases cited; Neal v. Gilmore, 141 Mich. 519 (104 N. W. 609).

It is well settled that a private road cannot be converted into a highway by time and public use, standing alone, no matter how long continued. Invited or permissive use granted by the owners will not avail. But where such conditions exist for a time, if the relations between the public and the owners change, where official action is being taken to make it a part of the system, and the owners have notice of that attitude, which is accompanied by the exercise of public control and public maintenance, it may and will, in due course of time, become a highway by prescription. Section 4061, 2 Comp. Laws, provides in part:

“All roads that shall have been used as such for ten years or more, whether any record or other proof exists that they were ever established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used eight years or more shall be deemed public highways, subject to be altered or discontinued according to the provisions of this act.”

This road was originally private, and controlled by the owner of the land, who maintained a gate across it, near a creek, as a physical evidence of private ownership. Action was taken in 1882 by the proper township authorities to open it for a public thoroughfare, as a part of the highway system of the township. By virtue of these proceedings, whether legal or not, the highway commissioner had this gate removed, took charge of the way, and threw it open to the public with full knowledge of the then owner. Its peaceable use as a public highway, thus initiated, continued for much more than 10 years, and until recently interrupted by defendant. It has been improved from time to time at public expense. We concur in the conclusions reached by the learned circuit judge that the testimony clearly shows an implied dedication by user for the statutory period, together with an early acceptance of such dedication and appropriation of the property to the public use by proper officials, who took charge and expended public funds in its maintenance.

The decree is affirmed, with costs.

Moore, C. J., and McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    MENERE v. COPPER RANGE CONSOLIDATED CO.
    1. Master and Servant — Assumed Risk — Peculiarity oe Injury-Mines and Mining.
    An employé in a mine did not assume the risk of a fellow-servant falling from a ladder by reason of a space left between two connected ladders which the miners used in gain-, ing access to the mine, though plaintiff knew of the defective place, being hurt while he was descending within the shaft in a bucket.
    3. Same — Negligence—Contributory Negligence.
    Nor was he chargeable with contributory negligence for failing to report the defect, which was one of original construction, to the servants having charge of the construction of such ladders, who were presumed to know of the dangerous arrangement.
    3. Same — Fellow-Servant—Concurring Negligence.
    The negligence of a fellow-servant concurring with that of the master does not preclude plaintiff’s recovery.

    4. Same — Proximate Cause — Personal Injuries.
    The negligence of defendant was the proximate cause of the injury.
    Error to Houghton; Streeter, J.
    Submitted January 10, 1912.
    (Docket No. 40.)
    Decided March 29, 1912.
    Case by Paul Menere against the Copper Range Consolidated Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      O’Brien & LeGendre (George Q. Driscoll, of counsel), for appellant.

      Allen F. Bees, for appellee.

       Negligence of fellow-servant concurring with failure of the master to establish or enforce proper rules or regulations for conduct of business, see note in 4 L. R. A. (N. S.) 516.

   Blair, J.

Plaintiff brought this action to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant in the construction of a certain ladderway provided for the use of its employés in the performance of their work as miners in its exploration shaft, Some 65 feet above the bottom of the shaft was a pumping station. Below this, the ladderway was constructed of ladders some 16 feet in length placed one above the other and joined together at the ends.

Youch, the shift boss, testified:

“Now, to get at this shaft and to describe it properly, the Globe shaft was an exploration shaft, and as the shaft was built it was built for a permanent working shaft, and below the pump station, the timbers that were put in there, and which are shown on the model, were permanent timbers, so that the shaft was really completed at the place where Abromovich was climbing down where these wooden ladders are, and this ladder that I have spoken of below the pump station, the wooden ladder and all the lengths of the same were nailed to the permanent timbers of that shaft * * *
Q. Do you think these ladders would stay there if they made it a permanent mine ?
“A. No, sir; I don’t think it was. It was while we were there, a temporary ladderway to be used doing that exploring.
“Q. Don’t you know that that was not the permanent ladderway to be put in after they got that sinking done ? That’s true isn’t it ?
“A. It was for all the while I worked there. I don’t think it would be the permanent ladder to be put in there after they got a working shaft. * * * Menere had no duty to perform with reference to that ladder that I know of. The man who put in that ladder was Mr. Beaudin.
“Q. And he was supposed to look after the ladders in the work of repairing them and putting them in ?
“A. He done all that work around the pumps. These ladders were not what you would call ladders that could be taken out and put in; they were in there to stay. I mean from the ladders to the pump down. How long, I don’t know. They were there all the while we were sinking down that far. A miner hasn’t got any right to suggest to Mr. Beaudin how he should build a ladder. I didn’t feel like making a suggestion to Mr. Beaudin because I thought I might get a saucy answer. He had put the ladder in that way. I regarded it as unsafe, personally, the first time I seen it. * * *
“ Q. It was your duty — that is, it would be Mr. Beau-din’B duty — to order the repair of that ladder ?
“A. I couldn’t say, yes or no. As to whose duty it would be to order the repair of that ladder, well, I think it would be both of us. Yes, in one way it would be a miner’s duty to order a repair of that ladder. No, sir; if he knew it, he wouldn’t have a right to order the repair of a ladder that was spiked into the shaft, the timbers, by the man who is building the ladders. * * * Yes, the miners were pretty busy working down there. They were running drilling machines. At times they would shovel their own dirt, so they didn’t have much time to look after the ladders. That work was put upon Mr. Beaudin and myself. And it was put upon me for the safety and protection of the men working down there, and also the safety of the men going up and down on the bucket.
Q. So, in reality there was no duty upon the miners to report that missing step if they knew about it, was there ?
“A. Some would, and some wouldn’t. That would be whether one man might and one might not. There was no duty upon them to do it.”

The defect in the ladderway was that, where the ends of the second and third short ladders came together, there was a double space as though one rung had been left out. A bucket was used in the shaft to hoist and lower men and material. A truck, or crosshead (which ran on rollers in the middle of the shaft, and ran some distance down past the pump station, but stopped before it got to the bottom), was run in connection with the bucket to keep it straight up in the shaft. Pump boys, who worked 13-hour shifts, attended to and ran the pumps. One Smithen was captain and had general charge of the mine, Youch was shift boss, Beaudin was in general charge of the pumps and ladderways, and Abromovich was a pump boy. On August 34, 1907, at 13:30 o’clock, dinner time, plaintiff and three other men were being lowered by the bucket and cross-head through the shaft. Plaintiff stood on the rim of the bucket, having one hand fast to the cross-head and holding on to the cable, or bucket-rope, with the other, riding in the usual and customary manner. Abromovich was at the pump station. He wanted to go up to the surface to dinner by means of the hoisting apparatus. He intended to ride up on the bucket and cross-head. That was customary, and a proper thing for him to do. The bucket and cross-head passed downward through the shaft past the pump station with the plaintiff and the other three men on it. Abromovich had to go down where the cross-head would stop to get on. He had to hurry to get on before they lifted the bucket up. He did not have the bucket stop for him at the pump station because he could not ring the bell, not being strong enough to pull the bell with one hand and hold on to the cross-head with the other. «After the bucket and cross-head had passed the pump station, and while they were still descending, and when they were about 10 feet below him, Abromovich started down this wooden ladderway to get on the cross-head before they lifted the bucket. He was hurrying, but not going one-fourth as fast as he could, and when he got to this “long step,” his feet slipped, and he could not hold fast with his hands. His feet slipped because there where that “long step” existed he thought it was the same as the other staves or rungs. He knew that the “long step” was there, only, while climbing down, he forgot it and didn’t think about it. When he so missed his footing, he fell downward through the shaft and struck the plaintiff, who was holding to the cross-head and still descending through the shaft on the bucket as before stated, knocking him off the bucket and cross-head and causing him to fall to the bottom of the shaft. Plaintiff had personal knowledge of the defect in the ladderway and that it was dangerous. At the close of plaintiff’s case, the court, on motion of defendant, directed a verdict for defendant on the ground of assumed risk.

In the course of his remarks the court said: .

c< Now, in this case, the accident occurred in the manner detailed by the testimony to you, and I think it struck you as it did me, as one of the most peculiar accidents that ever had happened.”

At the opening of his brief, counsel for defendant says:

“ It is difficult by a description to give a clear idea of the situation and circumstances under which there happened the extraordinary accident involved in this case, through which the plaintiff received a serious personal injury.”

The danger to plaintiff in making a personal use of the defective ladder was so obvious that if he had sustained his injuries while so using it he might well be held to have assumed the risk thereof. We do not think, however, that the danger of this most peculiar and extraordinary accident was so obvious that plaintiff can be held as a matter of law to have assumed it. Delbusso v. Plaster Co., 165 Mich. 318 (130 N. W. 702).

It is further contended that the judgment should be affirmed because plaintiff was guilty of contributory negligence, in that, being charged with the duty of seeing that the place in which he was working was safe for himself and the other employés, he failed to report the defect or take any steps to remove the danger; in permitting his knowledge of the defect and danger to pass out of his mind. This ladder was provided by the master, in the first instance, and was sufficiently permanent so that its construction involved its primary nondelegable duty to its employés. The defect is in the original construction. The men who were expressly charged with the duty of seeing that the ladder was safe for use by employés knew about its defective construction and the dangers incident thereto. Under such circumstances, the ordinary employés owe no duty to the master to notify him of what they have a right to presume he knows. Nichols v. Railroad Co., 145 Mich. 643 (108 N. W. 1016); 2 Cur rent Law, p. 816; 4 Current Law, p. 548; 26 Cyo. p. 1208.

The negligence of the master concurring with the negligence of the fellow-servant Abromovich, his negligence does not preclude recovery. Kleinfelt v. Coal Co., 156 Mich. 473 (121 N. W. 118, 132 Am. St. Rep. 532).

We are also of the opinion that the negligence of the defendant was a proximate cause of the accident. White v. Township of Riley, 113 Mich. 295 (71 N. W. 502).

The judgment is reversed, and a new trial ordered.

Moore, C. J., and Steere, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Stone, J.

text:
    CRAWFORD v. KOCH.
    1. Taxation — Personal Property — Statutes — Nonresident Owner — Agent—Consignment.
    Property in the hands of a piano dealer belonging to a nonresident corporation, by which the pianos were consigned to the dealer, was validly assessed to the latter in accordance with 1 Comp. Laws, § 3837, as amended by Act No. 139, Pub. Acts 1907.
    2. Same.
    Pianos so consigned and assessed to the dealer are not required to be assessed separately from other property owned by and assessed to him.
    3. Same — Lien of Agent for Taxes Paid — Detroit Charter.
    The provisions of said public act, giving a lien to the agent or consignee for taxes paid upon property of another, assessed to him, create an enforceable lien, which takes effect as soon as the amount of the tax is determined. Detroit Charter (1904); 1 Comp. Laws, § 3863.
    4. Same — Lien—Property Seized — Assessment.
    Pianos in the hands of the consignee on April 1, 1908 and 1909, when they were assessed, were subject to seizure for any part of the total tax levied on the property of said consignee.
    6. Same. '
    The nonresident owner was bound to take notice that its pianos in Michigan were subject to taxation in the hands of the consignee, and, if dissatisfied, should have appealed to the board of review.
    6. Same — Purchaser in Good Faith.
    A purchaser in good faith of pianos so assessed after the tax became a lien, took them subject to it.
    Error to Wayne j Murphy, J.
    Submitted January 5, 1912.
    (Docket No. 166.)
    Decided March 29, 1912.
    Rehearing denied June 1, 1912.
    Replevin by Grace V. Crawford against Max O. Koch, treasurer of the city of Detroit, for certain pianos. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Walter Barlow (P. J. M. Hally, of counsel), for appellant.

      Lucking, Emmons & Helfman, for appellee.
   Stone, J.

This is an action of replevin, brought to recover from the defendant 42 pianos seized by him, as city treasurer, for the personal taxes assessed against P. J. Schwankovsky for the years 1907 and 1908, and against the P. J. Schwankovsky Company, Incorporated, on or about July 18, 1908, for the year 1909, on the stock of merchandise situated in the store, Nos. 238-240 Woodward avenue, in the city of Detroit. The conceded facts are substantially as follows:

On October 20, 1909, the plaintiff purchased the 42 pianos in question from the Cincinnati Discount Company for $5,250, and received a bill of sale of them. The pianos were removed on the same day by the Cincinnati Discount Company from a storage house in Detroit and delivered to the plaintiff, and by her placed in the store of I. S. Crawford & Co., No. 347 Woodward avenue, Detroit, and there displayed for sale. On November 29, 1909, while the said 42 pianos were held by the plaintiff under said purchase, and in the possession of and exhibited for sale by her agent, I. S. Crawford & Co., at the place last above named, they were seized by the defendant, against plaintiff’s protest, for the purpose of satisfying unpaid personal taxes assessed against F. J. Schwankovsky in the years 1907 and 1908, and against the F. J. Schwankovsky Company in the year 1909. Defendant, at the time of the seizure, certified that he seized the pianos as the property of the F. J. Schwankovsky Company, for the purpose of satisfying personal taxes assessed as above stated.

While defendant was in control of the pianos so seized, plaintiff commenced this suit in replevin to recover their possession, having previously stipulated with the defendant that no objection should be made to the form of the action. The pianos were then taken by the sheriff of Wayne county, under the writ of replevin, and delivered to the plaintiff; she having furnished a bond, as required by law.

Defendant concedes that but 10 pianos, of the value of $1,250, are now involved in this controversy, and admits that he has no claim whatever to the other 32 pianos. This admission is made, because it appeared on the trial of this case in the circuit court that no one of the said 32 pianos was in the store of the said Schwankovsky on the 1st day of April in either of the years 1907, 1908, or 1909. The said 10 pianos were owned by plaintiff’s vendor, the Cincinnati Discount Company, and were in the said store of the said F. J. Schwankovsky, on consignment from the Cincinnati Discount Company, a nonresident of the State of Michigan, for sale. Schwankovsky’s store contained, during the years 1908 and 1909, an average of 500 pianos, which were there on display for sale, among which, on the 1st day of April, 1908, was one of the said 10 pianos, and on April 1, 1909, were the other 9 of the said 10 pianos.

On October 18, 1909, the Cincinnati Discount Company, at the request of the F. J. Sehwankovsky Company, removed its said 42 pianos, among which were the 10 now claimed by the defendant, from said Schwankovsky’s store to a storage warehouse in the city of Detroit, from which place, two days later, it sold and delivered the pianos to the plaintiff, as above stated.

On April 1, 1908, the city of Detroit, through its board of assessors, assessed F. J. Schankovsky’s personal property at a valuation of $65,200. The tax roll of that year contains the following entry, and nothing more:

“City tax roll 1908. First Ward, location 238 Woodwardavenue, Detroit, valuation personal property, $65,200. Amount of tax, $1,000.25, assessed to F. J. Schwankovsky.”

On the back of the tax roll, the board of assessors certified that it contained a true statement of the aggregate valuation of the personal taxable estate of each and every person named in the roll.

The tax roll for the year 1909 is the same as in the year 1908, as respects the assessment against Sehwankovsky, except that it is against the F. J. Sehwankovsky Company, instead of F. J. Sehwankovsky as an individual, and the amount of the tax is $1,178.19. The same certificate appears at the end of the roll as in 1908. The name of the Cincinnati Discount Company does not appear in the roll of either year.

The board of assessors, in making the assessment for the year 1908 against F. J. Sehwankovsky, and the assessment for the year 1909 against the F. J. Schwankovsky Company, did not require Sehwankovsky or his company to file a tax statement of their personal property subject to taxation; but merely notified Sehwankovsky and Sehwankovsky Company that upon their failure to file a tax statement their personal assessment would be $65,200. No tax statement having been filed in either year, the board made no attempt or effort to compel the same, but merely fixed the assessment for each year at the sum as above stated.

Defendant and appellant does not seek to hold plaintiff’s 10 pianos simply for the taxes assessed upon them, but seeks to hold them for the taxes assessed against Schwankovsky upon 500 other pianos which never belonged to the plaintiff, but were in stock. The unpaid personal taxes assessed against F. J. Schwankovsky and the F. J. Schwankovsky Company, in the years 1908 and 1909, exceed the aggregate value of the 10 pianos in question, which is $1,250.

The defendant, at the close of the trial, moved the court to direct a verdict in his favor for the sum of $1,250, the aggregate value of said pianos at $125 each, upon the ground that these identical pianos were in the store at the time the respective assessments were made, and that he had a lien thereon for the taxes assessed, so far as their value would go to discharge said taxes. This motion was denied by the court, and, on the contrary, the court directed a verdict in favor of the plaintiff, holding that she was entitled to the possession of the entire 42 pianos, and assessed her damages at the sum of six cents. Judgment was duly entered on said verdict in favor of the plaintiff.

The defendant has brought the case here for review, and there are only two assignments of error:

(1) That the court erred in directing a verdict in favor of the plaintiff on the motion of her attorneys; and (2) the court erred in denying the motion of the attorney for defendant to direct a verdict in favor of said defendant.

The two assignments of error may well be considered together.

The taxes for the year 1907 being entirely eliminated from the controversy, we may direct our attention to the taxes for the years 1908 and 1909. It is the claim of the defendant that the 10 pianos, above enumerated, are liable for the taxes assessed on said stock of merchandise in said store for the two years last named up to the value of the same, and that he is entitled to a verdict and judgment in the suit for the sum of $1,250.

The Detroit city charter provides that:

“All city taxes upon personal property shall be and remain a lien thereon until paid, and no transfer of the personal property assessed shall operate to divest such lien.” Section 221, Charter of 1904.

It appears that the 10 pianos now in question were the property of the Cincinnati Discount Company, a nonresident of this State, when they were assessed; but they were in the store of F. J. Schwankovsky, or the F. J. Schwankovsky Company, at the time the assessments were made, consigned to them for sale, and commingled with the stock of pianos of Schwankovsky, or Schwankovsky Company, in said store.

Subdivision 8 of section 3837, 1 Comp. Laws, as amended, provides that:

“Personal property of non-residents of the State * * * shall be assessed in the township or ward where the same may be, to the person having control of the premises, store, * * * place of storage or warehouse where such property is situated in such township, on the second Monday in April of the year when the assessment is made.”

Section 3847, as amended, provides, among other things, as follows:

“ Property assessed to one other than the owner shall be assessed separate from his property, and shall show in what capacity it is assessed to him, whether as agent, guardian or otherwise.”

It is the contention of the plaintiff that this property was not lawfully assessed, because it did not comply with the provision last quoted. It is worthy of note, however, that this provision in section 3847 is a general one, providing for the assessment of property generally to agents, guardians, and other persons acting in a representative capacity; while subdivision 8 of section 3837 deals specifically with the personal property of nonresident owners. It is here speaking of the manner in which the property of nonresident owners may be assessed, and it is provided that such property, to wit, the personal property of nonresident owners, shall be assessed to the person having control of the premises, store, etc. The remainder of this subdivision, as amended in the act of 1907 (Act No. 129, Pub. Acts 1907), proceeds to point out the remedy which the person may have against whom the property is assessed; and it is provided:

“That the person, persons or corporations so assessed for any such property belonging to a nonresident of this State shall be entitled to recover from the owner of such property, by a suit in attachment, garnishment or for money had and received, any amount which the person, persons or corporations so assessed are compelled to pay because of such assessment, and shall have a lien upon said property as security against loss or damage because of being so assessed for the property of another, and may retain possession of such property until such lien is satisfied ”— provision then being made that the owner may secure release of the same on giving the bond therein provided for.

This court had occasion to pass upon the substantial provisions of these statutes in the case of Pioneer Fuel Co. v. Molloy, 131 Mich. 465-468 (91 N. W. 750, 751), and there pointed out the distinction between that case and the instant case in the following language:

“The question remains whether, under an assessment in form such as this, property of the present plaintiff could be seized, where the property assessed was not the property seized, and not the property of the present plaintiff. It is conceded in the brief of plaintiff’s counsel that, had the property actually assessed been seized, it would be immaterial in what name it was assessed. But it is contended that, the plaintiff being a nonresident of the State, and not in fact owning any property subject to the jurisdiction of the taxing officers, it is not due process of law against this plaintiff to assess property of a third party to plaintiff’s assumed agent, and then subject the plaintiff’s own property to the payment of the tax.
“1 Comp. Laws, § 3837, provides for the assessment of property, under circumstances such as those existing in the present case, to the person having control of the premises, store, mill, dock, yard, piling ground, place of storage, or warehouse. Section 3847 provides that assessments to one other than the owner shall show in what capacity it is assessed to him; and, as we held in Spanish River Lumber Co. v. Bay City, 113 Mich. 181 (71 N. W. 595), this section does not limit the authority conferred upon the assessing officers by section 3837 to assess property to the person having control. It is very clear that, under the authorities, the assessment to the person having control makes such person personally responsible for the tax. See Forster v. Brown, 119 Mich. 86 (77 N. W. 646); Spanish River Lumber Co. v. Bay City, supra; Township of Orion v. Axford, 112 Mich. 179 (70 N. W. 417); Minneapolis & Northern Elevator Co. v. Traill County [9 N. D. 213], 82 N. W. 727 (50 L. R. A. 266); Lockwood v. Johnson, 106 Ill. 334.
“ This tax was therefore a valid tax against Mr. Beat-tie.”

It is the further contention of the plaintiff that there is no machinery provided by law in the city of Detroit to enforce this lien, and that there is no provision of law which specifies when the lien becomes effective. We cannot agree with this contention. The charter of the city of Detroit provides that the board of assessors shall, before the 1st day of April in each fiscal year, assess at its true cash value all of the real and personal property subject to taxation by the laws of this State within the limit of each ward, respectively, of said city. It will be noted that here the charter provides for the assessment being made against the property itself, rather than against the persons in possession of the property at the time the assessment is made, as is provided by the general tax law of the State, which is as follows •

“All personal property, except as hereinafter provided, shall be assessed to the owner in the township in which he is an inhabitant, on the second Monday in April of the year for which the assessment is made.” 1 Comp. Laws, § 3836.

The description of personal property on the assessment roll maybe made by using the word “ personal ” only. Section 3849. We have already quoted the city charter provision that the city taxes shall remain a lien upon personal property until paid, and that no transfer of the personal property shall operate to divest or destroy such lien. The general tax law provides that:

“All personal taxes shall also be a lien on all personal property of such persons so assessed, from and after the first day of December in each year, and shall take precedence of any sale, assignment, or chattel mortgage, levy or other lien, on such personal property, executed or made after said first day of December, except where such property is actually sold in the regular course of trade.” 1 Comp. Laws, § 3863.

Under the provisions of the city charter, the lien for taxes against personal property would become complete as soon as the amount of tax against it was determined. 37 Cyc. p. 1142; Eaton v. Chesebrough, 82 Mich. 214-220 (46 N. W. 365); Jacobs v. Union Trust Co., 155 Mich. 233-235 (118 N. W. 921).

The charter of the city of Detroit gives the receiver of taxes authority to seize and sell personal property for unpaid taxes. It is as follows:

“On and after the first day of August in each year, and at any time until the taxes mentioned in this section are paid, it shall be the duty of the receiver of taxes, and the clerks or subordinates in his office, designated by him for that purpose, to collect all unpaid taxes which are assessed against any property or value other than real estate, and, if necessary, the said receiver and said clerks or subordinates, under the direction and in the name of the receiver, shall have power to levy upon and sell at public auction the personal property of any person refusing or neglecting to pay such tax.” Charter City of Detroit 1904, § 221.

It must, we think, be held that, under the charter, the lien for taxes would become complete when the common council fully and finally confirmed the tax roll, certainly as early as the first day of August in each year. Here, we think, is ample authority for enforcing the lien created by the charter on personal property for taxes assessed thereon.

The manner in which this tax was assessed, we think, becomes unimportant in view of section 3922, 1 Comp. Laws, and the decisions thereunder. This is recognized in the case of Pioneer Fuel Co. v. Molloy, supra, where the court, referring to this statute, says:

‘c This curative provision might be urged if the property assessed were that in controversy in the case.”

Here it is to be borne in mind that the property in controversy is a part of the property that was assessed. See, also, City of Menominee v. Lumber Co., 119 Mich. 201 (77 N. W. 704); Bradley v. Bouchard, 85 Mich. 18 (18 N. W. 208); Fletcher v. Post, 104 Mich. 424 (62 N. W. 574); Iron Star Co. v. Wehse, 117 Mich. 487 (76 N. W. 66); H. M. Loud & Sons Lumber Co. v. Hagar, 118 Mich. 152 (76 N W. 980).

So we come back to the main question in the case, and that is whether there was a lien upon the 10 pianos in stock, and whether the property may be taken as though the lien was a mortgage, not simply for the tax upon the 10 pianos, but for any portion of the whole tax up to value of the property seized.

In 37 Cyc., at page 1111, the author says:

“Taxes on personal property do not constitute a lien upon it, unless it is so declared by the statute. But when such a lien is given it generally attaches to all the taxable personalty of the owner, and not separately to each item or piece of property for the tax assessed against that article.”

The author cites the following in support of this text: Hill v. Figley, 23 Ill. 418; Commonwealth v. Walker, 80 S. W. 185, 25 Ky. Law Rep. 2122; Farmers' Loan & Trust Co. v. Memminger, 48 Neb. 17 (66 N. W. 1014); Reynolds v. Fisher, 13 Neb. 172 (61 N. W. 695); Hill v. Palmer, 32 Neb. 632 (49 N. W. 718); Foster & Smith Lumber Co. v. Leisure, 3 Neb. (Unof.) 267 (91 N. W. 556). See, also, Bridewell v. Morton, 46 Ark. 73. We have examined the authorities here referred to, and it is sufficient to say that they support the text.

We cannot agree, therefore, with the contention that the property is liable only for the tax assessed against the specific property. It will be borne in mind that the property is taxed as a whole. The taxes assessed upon this property are the extent of the lien or charge upon the class; but, the taxes being assessed upon it as a whole, each several article is liable in solido for the taxes of the class to which it belongs, just as they would be if all were included in a mortgage, or condemned by the decree of the court. In this respect, the rule is not different from that applied in this State to log lien cases, where it has been repeatedly held that any part of the property is liable and subject to lien for work done on any other part of the property. See Chadwick v. Broadwell, 27 Mich. 6, and Hughes v. Tanner, 96 Mich. 118 (55 N. W. 661), where the rule has been applied that, the contract being entire, any part was subject to the lien for work done on any other part.

The discount company was bound to know that its pianos in the possession of Schwankovsky were subject to taxation in Detroit. If not satisfied with the manner of the assessment, it should have appealed to the board of review. Failing to do so, it cannot be heard in the courts in such a case as this. Michigan Sav. Bank v. City of Detroit, 107 Mich. 246 (65 N. W. 101); Hinds v. Township of Belvidere, 107 Mich. 664 (65 N. W. 544).

The plaintiff is in no better position than the company from whom she purchased, after the taxes were a lien. We are of opinion that the court erred in directing the verdict for the plaintiff as to the 10 pianos, and that upon this record the defendant was entitled to a verdict for the sum claimed by him.

For the error pointed out, the judgment is reversed, and a new trial ordered.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Brooke, J.

text:
    RIPLEY v. PRIEST.
    1. Master and Servant — Independent Contractor — Fire — Negligent Escape of Fire.
    Where defendant contracted with other persons to clear his land, at a specified sum per acre, but undertook to control the burning that was done, he was liable for the escape of fires set in a period of extremely dry weather.

      2. Damages — Instructions—Trial—Requests.
    The court’s charge to the jury to go on and determine the damages, was sufficient, in the absence of any requests for further instructions, where there was evidence as to the value of plaintiff’s property destroyed by fire, and the verdict was small in amount.
    B. Estoppel — Actions—Defenses.
    The trial court rightly held that if defendant stated he was liable for and would pay any loss sustained by plaintiff, who brought an action in reliance on such statement, defendant was estopped to rely upon the defense that the negligence was that of independent contractors.
    Error to Emmet; Shepherd, J.
    Submitted January 11, 1912.
    (Docket No. 51.)
    Decided March 29, 1912.
    Case by Frank Ripley against George W. Priest for negligently permitting fire to escape on plaintiff’s property. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      W. 8. Mesick, for appellant.

      E. E. Gilbert, for appellee.

       Liability of employer for acts of an independent contractor in setting out fire, see note in 17 L. R. A. (N. S.) 788.

   Brooke, J.

This action is brought to recover damages for the destruction by fire of property on plaintiff’s farm. It is alleged that defendant negligently permitted the fire to escape from his premises and to invade those of the plaintiff. The case is in this court by writ of error to review a judgment in favor of plaintiff for $250.

At the close of the proofs, defendant requested the court to direct a verdict in his favor upon the ground that the clearing was being done for him, and the fire was set by one of two men, Still or Hook, under an independent contract, which relieved defendant of liability even if there was negligence in setting the fire and permitting it to escape. The refusal of this request constitutes the principal, if not the only, meritorious question in the case. Upon the trial defendant produced and read in evidence the following contract:

“Pellston, Mich., June 19, 1908.
“This is to certify that we, the undersigned, agree to clear forty acres, more or less, of land ready for the plow, and in time for fall wheat, about September 10, 1908, in a good and workmanlike manner, for the sum of $7.00 per acre. The clearing is to be done on G. A. Priest’s lands, across the G. R. & I. from the Petoskey Brewery. We are to be paid in cash on an estimate based on two-thirds the work that is done, and paid every two weeks; and the balance in cash when the work is completed.
“Henry Hook.
“Charles Still,
“G. W. Priest.”

Had the defendant left the conduct of the work to his employés under this contract, his liability, if it existed, would rest upon grounds which we need not here consider. The plaintiff, however, gave testimony tending to show that defendant undertook to control and direct the method of burning. He testified that back-firing was done to minimize the danger of escape upon the suggestion of defendant, and that defendant told him “that he had his hired men in there, but he could not depend on them and wanted me to look after it.” A fire set some time in August had escaped control and had with great difficulty and labor been extinguished. Plaintiff had assisted in this work, and defendant had paid him for it.

The fire which damaged plaintiff was set on Thursday, October 15th, in the forenoon. It was very dry, and a high wind was blowing. At the time it was started, it was 80 rods from plaintiff’s land. It soon became apparent that it was getting beyond control. Plaintiff fought it all that afternoon, then caused a notice by telephone to be sent to defendant, who resided at Pellston, some 18 miles away. Defendant replied to this notice that he would be down or send some one down the first thing in the morning, on the first train. The fire did not reach plaintiff’s land until 3 o’clock on the following day. In the meantime plaintiff, with such help as he could secure from his neighbors, fought it during Thursday night and Friday, when it got beyond control. Defendant did not go to the scene of the fire, nor send any one, as he had promised.

Under the facts disclosed by the evidence in this case, we are of opinion that the learned circuit judge properly submitted to the jury the question whether the defendant, with the consent of Hook and Still, directed them how they should perform their work the same as though they were servants. If the master controls the manner of performance of the acts of which complaint is made, or even reserves the right to supervise or control, he is liable for the negligent performance of those acts. Lake Superior Iron Co. v. Erickson, 39 Mich. 492 (33 Am. Rep. 423); Wright v. Manufacturing Co., 124 Mich. 91 (82 N. W. 829, 50 L. R. A. 495), and cases therein cited and discussed; Central Coal & Iron Co. v. Grider, 115 Ky. 745 (74 S. W. 1058, 65 L. R. A. 455, 493), and note.

Defendant assigns error on the failure of the court to properly instruct the jury as to the rule of damages. Upon this point the court said:

“ Then you will go on and determine what these damages were, and that question you will consider just as carefully as you are to consider the remaining portions of the case.”

Defendant submitted no request to charge upon the measure of damage. The plaintiff had given testimony as to the destruction of certain specified material and as to its value. The total value given by him of the property destroyed was several times greater than the amount of the verdict. In a case of such simplicity, and in the absence of a request to charge upon the subject, we cannot say that the failure of the court to instruct more fully on the measure of damage is reversible error.

Assignments of error 10,11, and 13 relate to the instructions of the court relative to the question of estoppel. Upon this question the court charged:

“ If Mr. Priest said to Mr. Ripley, in effect — it is not claimed here that he said so direct, but if in effect he said • to him — ‘Whatever damages you have sustained, I am liable for, and I am the party to sue,’ and Mr. Ripley sued Mr. Priest, relying on those statements or implied assertions, then Mr. Priest cannot come into court now and deny them. Whether he did or not is solely a question of fact for you to decide. The matter is circumstantial evidence largely — is, to a great extent, a matter of inference. But you are to decide it after a careful consideration of the testimony in the case, regarding that issue.
“Now, if you find that these two men who set this fire were independent contractors, and that Mr. Priest has not, by his actions, induced Mr. Ripley to bring the action against himself, instead of against them — if he is not estopped, in other words, as has been carefully argued by the attorneys — then he has a right to rely upon this defense; then it is your duty as jurymen to give him the benefit of it, and bring in a verdict of no cause of action.
“If, on the contrary, these men were not independent contractors, but were servants of Mr. Priest, or even if they were independent contractors, and Mr. Priest, by what he has said, induced Mr. Ripley to bring the action against himself instead of against them, and at the same time you find that these fires were negligently, carelessly set, and allowed to run over onto the premises of the plaintiff, then you will go on and determine what those damages were.”

In addition to the evidence already noted upon the question of control by defendant, the following evidence was given by plaintiff:

“ Mr. Priest never told me that he had a separate contract and nobody else ever told me he had a separate contract. * * *
“ Q. Now you may relate just what that transaction was, in reference to your receiving certain pay for work that you did, and that Mr. Priest paid you — you may tell the facts to the jury.
“A. Mr. Mesick drew up a receipt in settlement of, in full of, all labor and damages, not just word for word, but to that effect, and I refused to sign it. I told Mr. Mesick there that I only wanted a receipt drawn up for the labor. They were only settling for the labor. That was for myself and the men I had hired to put out this fire.
“Q. Did you demand more than $100 ?
“A. I did. I asked for $120.
“Q. Then what made you accept $100, and what was said by Mr. Priest ?
“A. Because Mr. Priest agreed to come up in the spring, as soon as the snow was off, and look at the damages, and straighten it up with me, pay me the damages, if I would take $100 there that day.”

Under all the evidence, we think the question of estoppel was properly submitted. Meister v. Birney, 24 Mich. 440; Robb v. Shephard, 50 Mich. 189 (15 N. W. 76).

The other assignments of error have been examined, but, in our opinion, disclose no reason for reversal.

Judgment is affirmed.

Moore, C. J., and Steere, McAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Moore, C. J. Ostrander, J.

text:
    MURRAY v. MURRAY.
    Divorce — Intoxication—Extreme Cruelty.
    Where defendant became frequently intoxicated, struck and ill-treated his wife, calling her vile names, his acts authorize the granting of a divorce on the ground of cruelty, notwithstanding evidence tending to show that she acquiesced in his drinking and drank with him. McAlvay and Ostrander, JJ., dissenting.
    Appeal from Ottawa; Padgham, J.
    Submitted January 12,1912.
    (Docket No. 57.)
    Decided March 29, 1912.
    Bill by Carrie Murray against Thomas W. Murray for divorce. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Corie C. Coburn, for complainant.

      Lillie & Osterhous, for defendant.

       Drunkenness as affecting divorce, see note in 34 L. R. A. 449.

   Moore, C. J.

I cannot agree with the conclusion reached by Justice Ostrander. He sufficiently states the averments of the bill of complaint. He also states in a general way what the testimony shows as to the striking of the complainant by defendant, and of the vile names he called her. It will not be necessary to detail the testimony in that respect further than to say that defendant, whenever under the influence of liquor, and this happened often, was ugly toward complainant and called her vile names, and struck her a good many times, leaving black and blue marks upon her person. I do not find anything in her conduct that justified his action.

The language of the court in Berryman v. Berryman, 59 Mich. 605 (26 N. W. 789), is apropos here:

It is urged against the complainant that the testimony shows her not to be of the most refined character; that she has not always been truly ladylike in her behavior, and was at times herself, in anger, guilty of profanity; that she had acquiesced somewhat in the drinking habits of her husband, and had not remonstrated with him as she ought, or rebuked him for using liquor to excess. Be this as it may, it furnishes no adequate excuse for the abuse that defendant has heaped upon her in his drunken moods, which are too frequent not to be habitual. Nor does the fact that he is a good farmer, and kind, when he is sober, to his family and his stock, weigh in the scale to balance the admitted fact that he is the opposite when under the influence of liquor, especially when such influence grows more frequent and stronger every day he lives.”

See Bailey v. Bailey, 121 Mich. 236 (80 N. W. 32); Utley v. Utley, 155 Mich. 258 (118 N. W. 932).

I think complainant should have been granted a decree. We will consider the question of a disposition of the household goods at the time the decree is settled.

The decree of the court below is reversed, and one may be entered here in accordance with this opinion, with costs to complainant.

Steere, Brooke, Blair, and Stone, JJ., concurred with Moore, C. J.

Ostrander, J.

( dissenting). The parties were married April 22, 1903. No children of the marriage are living. Complainant charges in her bill of complaint that defendant—

"Has been guilty of extreme and repeated cruelty toward your oratrix, that is to say, that a few months after their said marriage, he commenced a course of unkind, cruel, and inhuman conduct toward her, which continued until she was forced to flee for safety and left him on the 3d day of April, 1910, after an all night quarrel and fight; that his cruelty became so repeated and extreme that it rendered it unsafe and improper for her to live with him any longer; that the said defendant is a heavy drinker and often becomes intoxicated, and when in such condition is cruel and abusive; that he has beaten, bruised, pounded, and slapped your oratrix on occasions so numerous that it would bo impossible for her to enumerate them; that on the 2d day of April, 1910, he became drunk, came home quarrelsome, and if it had not been for interventions of relatives would have assaulted your oratrix; that about one month before the occurrence of the 2d day of April, 1910, he pounded and struck your oratrix without any provocation whatever; that on the night before Christmas said defendant became intoxicated and struck your oratrix a blow with his fist without any provocation whatever; that the other occasions are too numerous to mention. Your oratrix further represents that the defendant is a man of violent passion and ungovernable temper; that on many occasions he addressed to your oratrix the most opprobrious epithets and threats of personal violence, calling her a ‘ God damn bitch,’ and s black serpent,’ and has repeatedly threatened to take her life; that in consequence of the cruel and inhuman treatment and threats aforesaid, and such conduct as to render it unsafe for her to live with or remain near him, your oratrix was obliged on the said 3d day of April, 1910, to leave the house of the defendant and seek refuge with her friends, since which time she has not dared to return to the defendant’s house or live with him.”

The bill was originally filed for a separate maintenance, but was amended so as to pray for an absolute divorce. Defendant answered, denying the charges of cruelty. At the hearing he expressed a desire to withdraw his answer and to make no contest. He gave testimony but produced no witnesses in his own behalf. The court dismissed the bill. The testimony of complainant tended to prove that upon the occasion when she left defendant in April, 1910, defendant was drunk and abusive and struck at her during the evening of the previous day, and in the morning when complainant was getting breakfast he asserted that she, or her sister, or both, had hid his whisky, which they denied. He told complainant to produce it or there would be trouble, called her names, and told her to get out of the house and stay out. Complainant then left him. On the preceding Easter eve, the parties went from Grand Haven to Muskegon to spend Easter with a sister of complainant. Defendant had been drinking before they left Grand Haven and drank more at Muskegon, and at the table there while all were eating supper, without any prelude or premonitory talk, he looked at complainant, uttered an oath, took up a knife, “and was going to throw it at me, and my sister laid her hand on his arm and said, ‘Tom, what are you going to do?’ and he said, ‘Nothing,’” and laid the knife upon the table, “and that was all there was to it.” He struck her a good many times, the dates not remembered. Asked if she could give the date of any time when he had struck her, she gave one as the night before Christmas, when they were also at the home of complainant’s sister and defendant was drunk. It appears, however, that on that occasion he “struck at her,” called her names, and swore at her. Complainant left defendant once some two years before their final separation, remaining away for ahout four weeks, returning to live with him again in reliance upon his promises that he would be a different man. The charges in the bill of complaint are stated more strongly than the proofs warrant.

By his own admissions defendant was in the habit of becoming intoxicated. He professed that he did not remember much that he said and did while he was intoxicated. He says that he and his wife often boxed and scuffled; she striking him and he her. His testimony tends to prove that his wife habitually drank beer with him, and that on one occasion she and defendant’s sister came home intoxicated. For his conduct upon that occasion defendant was arrested, and upon being released charged his wife with some, or all, of the responsibility for his arrest. It resulted in the separation above referred to. We are satisfied, rather by his testimony than that of complainant, that when drunk defendant has mistreated his wife by his language and by offering her personal violence. We are not so well satisfied that he alone ought to be held responsible for the frequency with which he indulged in liquor and the resulting, or attending, quarrels. He appears to be as truthful a witness as his wife, with less interest in the result of this litigation.

It is said by complainant’s solicitor that upon the facts disclosed the case is ruled in her favor by Berryman v. Berryman, 59 Mich. 605 (26 N. W. 789). The cases are much alike, although it does not appear from the opinion in that case that the wife drank liquor with her husband or ever herself became intoxicated. We think the case must turn upon the conduct of the complainant, and are not so well satisfied that she was blameless as to overrule the trial judge, who had the peculiar advantage of seeing the parties and listening to the testimony.

The decree should be affirmed, but without costs to either party. *

McAlvay, J., concurred with Ostrander, J. Bird, J., did not sit.


author: Ostrander, J.

text:
    CLOSE v. ANN ARBOR RAILROAD CO.

      Í. Evidence — Map or Plat — Inaccuracies.
    It was not error, in an action against a railroad corporation for damage done by setting fire to an elevator, to admit in evidence a plat of the buildings and adjoining tracks containing a line from a position in which plaintiff claimed defendant’s locomotive emitted a spark to the point where the fire broke out, indicating the distance on the ground without allowing for elevation and angles, where the court admitted the plat in evidence, excluding but not erasing the line objected to.
    2. Same — Expert and Opinion Evidence.
    An experienced wool buyerwho had had no experience in estimating the value of wool damaged by fire, but who saw the condition of the damaged wool and knew the kind, value and quantity of it, was a competent witness as to the depreciation caused by the water and fire.

      3. Same — Value.
    A contractor who had been a carpenter for 22 years, and had six or seven years’ experience as a contractor and builder, during which he had made contracts for painting, and who had made improvements on the elevator, who gave testimony as to the cost of painting the building destroyed by fire, was rightly permitted to give his opinion of the cost of such painting.
    4. Same — Memorandum — Refreshing Recollection of Witness.
    A memorandum of property destroyed or damaged, used by a witness to refresh his recollection which was based on personal knowledge of the facts, was properly used.
    5. Same.
    And an inventory, admitted as an original document, which one witness proved and testified was correct, was correctly received in evidence as an exhibit.
    6. Same — Value—Expert and Opinion Evidence.
    Where several witnesses were asked their opinion as to the value of plaintiff’s property, and included in their estimate the element of success of the business, location and similar elements, but the cash value was finally given and the court in charging the jury limited the jury in determining just compensation to the correct rule, the error was not reversible, the damages not being excessive
    7. Pleading — Bill of Particulars — Sufficiency.
    The objection that plaintiff’s bill of particulars did not sufficiently identify certain friction clutch pulleys was not meritorious where no demand for a more specific bill was made and defendant was not shown to have been prejudiced: nor was an objection tenable that certain portions of a heating plant described by the testimony, were mentioned as a heating plant in the bill.
    8. Trial — Rebuttal—Railroads.
    On rebuttal, after defendant had closed its case, the court did not abuse its discretion by receiving evidence that the locomotive in question had set another fire and that it would not have done so if it had been properly equipped and operated as defendant claimed.
    9. Same — Argument—Appeal and Error.
    Objectionable argument must be brought to the attention of the trial judge and be ruled upon in order to be subject to review on error.

      Error to Shiawassee; Miner, J.
    Submitted January 8, 1913.
    (Docket No. 3.)
    Decided March 29, 1912.
    Case by William E. Close, the ¿Etna Insurance Company, and others, against the Ann Arbor Railroad Company for negligent setting of fire to plaintiffs’ property by defendant’s locomotive, under 3 Comp. Laws, § 6395. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Gustavus Ohlinger and Seth Q. Pulver {Alex. L. Smith, of counsel), for appellant.

      Frank A. Dean {A. F. Richards, of counsel), for appellees.
   Ostrander, J.

Plaintiffs recovered a verdict and judgment against defendant for $33,563.70 for damages occasioned by the burning of an elevator and certain outbuildings and their contents, May 35,1909, at Byron, Shiawassee county, Mich. A motion for a new trial was made and was denied. In this court various alleged errors committed upon the trial, and in refusing a new trial, are relied upon and discussed, and will be considered generally in the order in which they are presented in the brief for appellant.

A map or plat of the premises was produced by plaintiffs, and, over objection, was received in evidence and exhibited to the jury. It was a ground plat, and, as showing the size and location of the buildings and their relative positions, its accuracy does not appear to be questioned. Upon it was a red line. Upon the line were the figures 60 feet. It was drawn by the person who made the plat, as his testimony shows, from a point in the foundation of the building first set on fire to a point in the defendant’s track where the locomotive from which fire was supposed to have escaped stood. The figures marked upon the line was the estimated distance from the top of the locomotive stack, 13 feet above the ground, to the point in the roof of the building, 34 feet above the ground, where the fire was discovered. It is said the plat was misleading because the jury might infer therefrom that the figures related to the distance between the two points indicated thereby upon the ground, and therefore that the distance traveled by the spark was considerably more than 60 feet. The witness fully described the meaning of the red line, the estimate of the distance he had made, and how he made it, and the court, upon the request of counsel for defendant, struck out the line, admitted the map without the line — we assume without causing the line to be erased. It is altogether improbable that the jury misapprehended the real facts.

Various witnesses were called by plaintiffs and gave testimony as to the situation, quality, quantity, and values of property destroyed and injured as the result of the fire. Some of the property was injured, but not destroyed, and estimates and opinions concerning the amount of the damage were received. There was a quantity of wool in one of the destroyed buildings and some of it was thrown out of the building and saved. Some fleeces were scorched by fire, some were torn, some soaked with water, and some had gathered dirt and refuse, depreciating the market value of the wool. A witness testified that he had been in the wool business for 17 years, and began work for plaintiff Close in March, 1909, after which time he had been employed in buying, in the wool season, and in packing wool for him. ' He was at the elevator when the fire was discovered. He professed to know, and had means of knowing, approximately, the number of pounds of wool in the elevator at the time, and the quality and value of it; knew what it had cost. He saw and described the condition of the wool after the fire, and put that which had been thrown out into sacks. He gave an estimate concerning the depreciation in market value. It is said in argument that he had no experience in discounting wool for fire damage, and, consequently, was wholly lacking in the experience necessary to enable him to express an opinion, and that he had no such knowledge of the wool in question as was required to form an opinion if he had had the experience. It seems to be unnecessary to say that an experienced wool buyer, who had never inspected wool damaged by fire might, nevertheless, after inspecting wool so damaged, have and give a valuable and reliable opinion concerning the amount of the damage to the fiber and the market value of the fleeces burned, wet, and torn, and made unclean. We think the court was not in error in refusing to strike out his opinion evidence.

A witness who had been a carpenter for 22 years, had 6 or 7 years’ experience as a contractor and builder, had made all, or nearly all, of the improvements which plaintiff Close had put upon the elevator in question, had taken contracts for the erection of buildings in which the cost of painting was included in the bid made, testified to the cost of the elevator, giving as an estimate of the cost of painting $121. It was moved that the estimate as to painting be stricken out as incompetent, and it is argued in this court that he had shown no knowledge sufficient to admit the testimony. It is said that his experience as a contracting painter was shown by him to be limited to the decoration of a tool chest. The statement is refuted by the record and is to some extent indicative of the "character of the exceptions relied upon and the argument made to support them. We have felt called upon, in view of the argument, to read at length the testimony of the witnesses whose competency to express opinions is called in question. The applicable rules of law are not in dispute, and are not in doubt. We find no reason for saying that the testimony criticised should have been excluded.

As to the use made of memorandums: Here, again, there is no dispute and no question concerning the applicable rules of law. It would have been better if counsel for plaintiffs had, with more precision, shown, in the first instance, that the witnesses using memoranda were, by the aid thereof, testifying according to a present recollection. As we read the record with the aid of the briefs, after giving especial attention to those portions of the record recited in the brief for appellant, we think it appears in every instance that witnesses who used memorandums for any purpose had, and meant to affirm that they had, personal knowledge of the facts recorded and testified to; that they made, or caused to be made, the memorandums used at the trial, and while they could not from present recollection, without the aid of the memoranda, state all facts and particulars in detail, with the memorandums recollection was so refreshed that they were able to testify from recollection to the matters detailed. The inventory known as Exhibit Q-, used by one of the witnesses,'the use of which is complained about, was an original document made by the witness. His testimony concerning it is, in substance, that he set down in it what he found at the time it was made, and knew at that time that it was correct. We do not find that any rule of law was violated in permitting the use of memorandums by witnesses.

A witness was sworn who testified that he lived at Morrice, Mich., and had since March, 1895; that he was engaged in the business of buying and selling grain, beans, seeds, wool, etc., and the general elevator business, and had been engaged in such business more than 25 years; that he was the owner of an elevator at Morrice, which he built. He described his elevator and, in some respects, the machinery in it; testified that he had been in the Close elevator a dozen times and at different times had been through the building; that he was there in May, 1909; that in his judgment the machinery and furnishings of the elevator were then in excellent condition, and he was then asked this question:

“ Mr. Towner, what, in your judgment, was the fair value of the Close elevator, building, machinery, and its equipages, for the purpose for which it was used, there at Byron on the 25th of May, 1909 ? ”

At the suggestion of the court the question was amended by using the words “fair cash value.” The witness answered, “$10,000.” The witness was then taken over the different machines in the building and put a price upon them. On cross-examination he made the following statement:

“In making an estimate upon this building, I figured upon what the first cost would be as my experience has given it to me in building elevators at Morrice, Perry, and Ionia. At Ionia I merely put in the machinery. I don’t know how long this elevator had been built. At the time I made the statement, I did not know this was on leased property. In making my statement, also, I certainly took into consideration the business prospects.”

After some further cross-examination, motion was made to strike out his testimony regarding the value of the elevator and its contents, and the motion was denied. A witness for the plaintiffs was asked this question:

Mr. Judson, what, in your judgment, was the value of the elevator building, its machinery, and equipage, fixtures, for the purposes for which it was being used, on the 25th of May, 1909 ?”

The objection was:

“ I object to the question for two reasons: First, there has been no proper foundation laid with this witness for answering such a question; second, the question does not call for a fair market value at Byron the day in question.
The Court: You better change that to market value.
“Q. I will add market value to the question.
The Court: With that he may answer.”

The objection was repeated, and one made to the form of the question.

The Court: He may answer.
“A. I would place the value from $9,000 to $11,000.”

On cross-examination he was asked the question:

“When you fixed the valuation upon this property, you had in mind the advantageous location of the elevator, didn’t you ?
“A. Yes; that would be one thing.
“Q. Also the fact that Mr. Close had a good business at the time, would enter into your consideration somewhat, wouldn’t it ?
“A. Yes, sir.”

There was considerable discussion concerning the proper measure of damages. Counsel for defendant finally stated his position as follows:

“My idea is merely this: The value of the property, in view of counsel’s statements on the other side, is the worth of the property not enhanced by anything by reason of the business which he has or location. He said he would not care to go into the question of profits, but he wants to go into the question of the things that make up those profits. My position under their declaration in this case, the only thing that they can recover for is the fair cash value of this property itself, not enhanced by anything but what it is worth at Byron.
“Mr. Dean: For the purpose for which it is used ?
“Mr. Pulver: There is no question about that, probably, so far as that is concerned. Here is an elevator, machinery, it cannot be used for anything else; here is an elevator building, it cannot be used for anything else; but what, is the fair cash value of the machinery or that building, not taking into consideration the location of the country or the amount of business that has been built up there, but what is the value of the building ? ”

Following this, the witness Judson, who had already expressed his opinion upon this subject, was asked:

“ What, in your judgment, was the fair value of this Close elevator, its machinery, and equipages on the 25th of May, 1909, for the purposes for which it was used at the village of Byron ?”

It was objected to that the question did not contain the necessary elements to determine the true amount of damages. To this another objection was added that the testimony should have been brought out on the first direct examination of the witness, and could not be brought out after the cross-examination was finished. An answer having been permitted, counsel for plaintiffs added to his question: “Take the machinery as it was; the building as it was.” And the witness replied, “$10,000.”

What has been said is sufficient to show the question raised. Counsel for defendant say that the measure of damages in such a case “ is just compensation and money for the property destroyed; such an amount as will fully restore the loser to the same property status that he occupied before the destruction.”

Upon this subject the court instructed the jury as follows:

“If plaintiffs are entitled to recover, they are entitled to recover just compensation for the property destroyed, or such an amount as will restore him or them to the same property status as he occupied before his property burned or they occupied before the property was burned.”

And again:

“ If you find in favor of the plaintiff in this case, then give him such damages, such just compensation for the property destroyed, or such an amount as will restore him or them in this case to the same property status — to the same property status he occupied before his property was burned — so he will be placed in the same position; not a cent more, not a cent less. Plaintiff should not make a cent out of this transaction, and they should not lose a cent so far as the value of this property is concerned. You cannot give them anything for speculation, anything for profit, anything for losses in his business, but what this property is fairly and reasonably worth at the time it was destroyed.”

A witness for the defendant expressed the opinion that the elevator, machinery, and equipment was worth $5,000, for which sum it could be replaced. Another witness said that in his judgment the valuation was around $5,000. On cross-examination this witness said:

“I don’t know as I could say there is a market value for an elevator. Its value depends on the place where it is located a great deal. In making my estimate upon the machinery, I am not making an estimate of what that machinery would be worth if William F. Close was compelled to tear it out of his elevator there and put it on the market and sell it. My estimate is on the basis that I have been able to buy such machinery of like condition for. That would depend upon my good luck in finding bargains. I might not be able to go and buy a safe of this kind for $75 or $50 •whenever I wanted to; I have always been able to buy them about that discount. I do not know anything about the cost of material at Byron. I do not know the cost of labor at Byron.”

A third witness for defendant said that the fair cash value of the elevator building and its equipment at the time of the fire was about $5,000. A witness for plaintiffs testified on cross-examination that the elevator might have been built at the time for $2,500 or $3,000. It maybe said that plaintiffs had testimony tending to show the cost of construction of the elevator and the cost of millwright’s services, exclusive of machinery, was more than $5,000; that the lowest estimate placed on the value of the elevator and machinery by defendant’s witnesses was $5,000. Plaintiffs claimed, and offered testimony tending to prove, that the loss upon buildings other than the elevator was $793.86, and that the loss upon other property, excluding buildings and the elevator and its machinery, was $19,179.79. It thus appears that in the opinion of witnesses the value of the elevator and machinery and fixtures was not less than $5,000 and not more than $11,000. It further appears that the jury had the aid derived from careful cross-examination of the witnesses upon the subject of their means of knowledge, experience, and the factors used by them in arriving at their estimates.

An . elevator building in a village like Byron has no market value. The value of good will, or the success of a business, ought not to be used to swell or depreciate the compensation to be paid when the building in which the business is conducted is destroyed by fire; no malice or active wrong-doing being charged to the one responsible for the fire. In an action of trespass for tearing down and removing a building, the correct rule for measuring the damages was said to be “ the value of the barn as it stood on the premises at the time it was removed.” Kent County Agricultural Society v. Ide, 128 Mich. 423 (87 N. W. 369). So in Johnston v. Insurance Co., 106 Mich. 96 (64 N. W. 5), the fact to be ascertained by the jury was said to be “reasonable worth of articles at the time and place of their destruction.” The real value of the buildings at the time of the fire is the rule approved in Massachusetts. Wall v. Platt, 169 Mass. 398 (48 N. E. 270). Where property destroyed had no market value, the real or ordinary value, based upon all facts connected with such property, such as its cost, its uses to which it has been put, its age, its condition, location, and the like, should be determined. 3 Elliott on Railroads, § 1239. The question asked the witness Towner appears to us unobjectionable.

The charge of the court properly limited recovery. The jury was well informed as to the situation, use, age, condition, etc., of the buildings and equipment. The verdict does not seem to be an excessive one. We conclude that while some of the questions — some of them at the suggestion of counsel for defendant — appear to state elements of value not proper to be considered, no reversible error was committed.

A witness for plaintiffs gave testimony with respect to the machinery in the elevator, and in doing so testified about certain friction clutch pulleys, to which counsel for defendant objected for the reason that the pulleys were not described in the declaration nor in the bill of particulars so as to be identified, and bo as to apprise the defendant of the character, size, and description of them. The bill of particulars describes three friction clutch pulleys. Objection was also made to the testimony on the part of the plaintiffs with respect to certain portions of the heating plant described in the bill of particulars as a heating plant. No demand for a more specific bill was made. We are unable to perceive how, in any event, defendant was prejudiced. The exceptions are without merit. Buckeye Township v. Clark, 90 Mich. 432, 434 (51 N. W. 528); Tanner v. Page, 106 Mich. 155, 158 (63 N. W. 993); Strutz v. Brown, 110 Mich. 687 (68 N. W. 981).

Plaintiffs were permitted to introduce on rebuttal— that is to say, after the defendant had closed its case— certain testimony with respect to another fire set by a locomotive engine of the defendant, and certain testimony as to the distance an engine properly equipped and operated would throw sparks. It is said that this was not proper rebutting testimony and was prejudicial to defendant. Undoubtedly, the tendency of this testimony was to prove negligence on the part of the defendant. It appears, however, that the defendant had offered testimony tending to prove that its locomotive was in good repair and properly operated. It was in reply to such testimony, and to rebut it, that the testimony in question was introduced, properly, we think. In any event, it was not an abuse of the sound discretion lodged with the trial court to permit the testimony to be given.

Alleged improper remarks of plaintiffs’ counsel in argument to the jury. All that the record discloses upon this subject is that counsel for the defendant excepted to certain statements made by the attorneys for the plaintiffs in their closing arguments to the jury, followed by two pages of matter which we assume contains the argument objected to. There is nothing to show that the court’s attention was called to the argument which was being made, that the court was asked to interfere or interrupt the same, or to make any ruling with respect thereto. Bates v. Kitchel, 166 Mich. 695 (132 N. W. 459), and cases cited in opinion.

No prejudicial error having been made out, the judgment is affirmed.

Moore, O. J., and Steers, McAlvay, Brooke, Blair, and Stone, JJ., concurred. Bird, J., did not sit.


text:
    ORBAN v. NORTHWESTERN FIRE & MARINE INSURANCE CO.
    1. Holidays — Justices op the Peace — Judgment.
    Judgment rendered by a justice of the peace on a legal holiday is invalid.

    2. Same — Adequate Remedy at Law.
    A bill in equity does not lie to correct a justice’s docket whioh by accident or mistake shows judgment to have been rendered on a legal holiday; complainant’s remedy at law by bringing a new action is adequate.
    Appeal from Wayne; Murfin, J.
    Submitted January 9, 1912.
    (Docket No. 17.)
    Decided March 29, 1912.
    Bill by John Orban against the Northwestern Fire & Marine Insurance Company to correct a judgment of a justice of the peace. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Samuel G. Thompson and Cullen, Casgrain & Hanley, for appellants.

      Henry G. Nicol, for appellee.

       Validity of court business transacted on legal holiday, see note in 10 L. R. A. (N. S.) 791.

   Ostrander, J.

A justice of the peace having jurisdiction of the parties and the subject-matter rendered a judgment in an action of assumpsit in favor of the plaintiffs and against the defendant on December 24, 1910. The docket entry shows that the cause was heard and the judgment rendered on December 26, 1910. For the purposes of holding court, December 26,1910, being Monday, was dies non. An execution was issued and returned unsatisfied, and later a transcript was filed in the circuit court and an execution issued, which is outstanding. Defendant on February 7, 1911, moved in the circuit court to vacate the transcript and recall the execution upon the ground that the judgment was void because rendered on a holiday. Pending a hearing upon the motion, plaintiffs filed their bill in equity, setting up the above stated facts, and that the docket entry and date were inadvertently and mistakenly made by the justice’s clerk and by inadvertence the erroneous date was not discovered by the justice, asking the court to find that the judgment was rendered December 24,1910, and to enter a decree correcting the docket and transcript accordingly. A temporary injunction restraining proceedings to recall the execution and avoid the transcript was asked for. A general demurrer to the bill was sustained, and a decree entered dismissing the bill. Complainants appeal.

The docket shows a void judgment, which was no bar to a new suit. Rendering judgment by a justice of the peace is a judicial act, to perform which it is necessary to hold court, and he is forbidden to hold court on a statutory holiday. Hemmens v. Bentley, 32 Mich. 89.

Plaintiffs had, and, so far as appears, they still have, an adequate remedy at law. They might have at once begun a new suit. We do not now either affirm or deny the jurisdiction of equity to grant relief upon the ground of accident where the party seeking relief has no other adequate remedy. The question is interesting, and not free from difficulties. Such complaints as the one presented here are usually made by the defendant at law seeking relief from a judgment at law, as in Lothrop v. Duffield, 134 Mich. 485 (96 N. W. 577). See, generally, 6 Pomeroy’s Equity Jurisprudence, chap. 31.

It is said in the brief for appellant that it is settled law in this State that the circuit courts have authority to correct the docket of a justice of the peace so as to make it speak the truth, citing Cagney v. Wattles, 121 Mich. 469 (80 N. W. 245). That case and State, ex rel. Marsh, v. Whittet, 61 Wis. 351 (21 N. W. 245) (see, also, State, ex rel. Fourth Nat. Bank, v. Johnson, 103 Wis. 591 [79 N. W. 1081, 51 L. R. A. 33]), appear to be authority for the proposition that, in the absence of any other remedy, the circuit courts in some cases, in the exercise of the power to supervise and control inferior courts, may grant relief against false judgments by requiring justices to enter such a judgment as the proven or admitted facts and the statute required in the first instance. But this jurisdiction is not invoked in the present case. And see O'Brien v. Tallman, 36 Mich. 13.

The decree dismissing the bill is affirmed, with costs to appellee.

Moore, C. J., and Steere, McAlvat, Brooke, and Stone, JJ., concurred. Blair, J., concurred in the result. Bird, J., did not sit.


author: Moore, C. J.

text:
    LEONARD v. LEAHY.
    1. Pleading — Declaration — Amendment — Cause oe Action— Personal Injuries.
    An amendment to a declaration for personal injuries, describing in greater detail the nature of the injury, and not setting up a new cause of action, was properly permitted by the trial oourt after offering defendant an opportunity to continue the cause to a later date if he desired and after the offer was refused. 3 Comp. Laws, § 10368. '
    3. Trial — Cross-Examination.
    A liberal latitude is allowable on cross-examination.
    3. Same — Earning Capacity.
    Under testimony tending to show the extent of injuries and previous earning capacity of the plaintiff, the court properly submitted to the jury the question of loss of earnings.

      4. New Trial — Motions—Diligence—Newly Discovered Evidence.
    In order to warrant a new trial for testimony afterwards discovered, the moving party must show sufficient diligence in endeavoring to procure the evidence in time for the first trial, and it must appear that the result would probably be changed on a second trial.
    Error to Bay; Collins, J.
    Submitted January 9, 1912.
    (Docket No. 19.)
    Decided March 29, 1912.
    Case by Andrew J. Leonard against James F. Leahy for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James Donnelly and Frank 8. Pratt, for appellant.

      Hall, De Foe & Henry and O. A. Higgs, for appellee.
   Moore, C. J.

Andrew J. Leonard brought suit against James F. Leahy to recover for an injury which he says he sustained on the night of September 11, 1907.

It is the claim of the plaintiff that he was injured by his right foot going through a grating covering an area way under the sidewalk. This claim is denied in toto by defendant.

It is the claim of the defendant that the grating was in good condition, and that it was not the cause of the accident. It is also the claim of the defendant that subsequent to the 30th day of August, 1906, the property in question was leased to the People’s Department Store, and that the People’s Department Store under their lease had charge of the building, and they had it under a lease which required them to keep everything in repair, and that, at the time that the People’s Department Store took .this lease, the grating was in good order, and that if at the time of the accident it was in bad order, that condition arose after the time of this lease, and for that reason, if for no other, he is not liable.

This case was tried before a jury which returned a verdiet in favor of plaintiff of $900. A motion was made for a new trial, which motion was overruled. The case is brought here by writ of error.

The first assignment of error is that the court erred in permitting an amendment to the declaration. When the amendment was permitted, counsel was informed that, if because of it they desired an adjournment to prepare for trial, they could have it, but they preferred to proceed with the trial. Counsel say the amendment introduced a new cause of action. Our examination of the original declaration and the amendment satisfies us that the latter simply described more in detail the injury to which reference was made in the original declaration. The judge was authorized to permit the amendment by virtue of section 10268, 3 Comp. Laws. Schindler v. Railway Co., 77 Mich. 136 (43 N. W. 911), and Gensler v. Nicholas, 151 Mich. 529 (115 N. W. 458, 14 Am. & Eng. Ann. Cas. 452). In the last-named case, there is an elaborate discussion of the authorities.

Error is assigned upon the ruling of the court in allowing a hypothetical question to be put to Dr. Tupper, a witness for defendant. The question occurred upon the cross-examination of Dr. Tupper, and was within the latitude allowed upon cross-examination.

Error is assigned upon the refusal of the court to give defendant’s twenty-sixth request, reading as follows:

“There is no evidence in this case showing that the grating was out of repair and unsafe and unfit for use and travel at the time the premises were leased by the defendant to the People’s Department Store;” and the charge of the court as given upon the subject of defendant’s liability.

There is an abundance of evidence tending to show that the grating was in an unsafe condition when leased by the defendant. The charge is supported by the authorities cited in the brief of plaintiff.

Error is assigned upon the following:

“If you find in favor of the plaintiff, then you will award him such a sum as in your judgment will be reasonable compensation for the loss and injury he has sustained by reason of this accident, and in computing such sum, you may take into consideration the amount he has been required to expend for medical and surgical treatment and care and hospital expense which he has incurred by reason of such injury; the amount of money he would have earned but which was lost to him by reason of his disability; the pain and suffering he has undergone and the inconvenience and hindrance he suffered by reason of the injury to his ankle and instep; and such pain or suffering^annoyance and inconvenience that you may find he will suffer in the future.”

It is said this left to the jury as a matter of speculation the earning capacity of plaintiff. We cannot agree with counsel. There was sufficient testimony as to the prior earning capacity of the plaintiff to justify the charge given.

Error is assigned because the court declined to grant a new trial—

“Because of the discovery of material evidence unknown to defendant and his counsel until after the trial of said cause as shown by the affidavit of Dr. A. J. Radjinski, which evidence would be likely to produce a different result and verdict on the new trial of said cause, and which evidence can and will be produced if a new trial is granted.”

There are two answers to this suggestion; one is that the requisite degree of diligence was not shown to procure this evidence upon the trial, and the other is that it is not made to appear that, if Dr. Radjinski had been sworn as a witness, the statements which appear in his affidavit, which it would have been competent to tell as a witness, would have changed the result in any degree.

Without discussing the other assignments of error, we content ourselves by saying that, after examining them with care, we do not think they are well taken.

The judgment is affirmed.

Steers, McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.