author: Montgomery, J.

text:
    CHANDLER v. HEISLER.
    1. Constitutional Law — Legislative Powers — Delegation — Boards of Supervisors — Drains.
    Act No. 21, Pub. Acts 1905, conferring power upon the boards of supervisors of certain counties to add to the conditions to be complied with as prerequisites to the construction and repair of drains, is not an unconstitutional delegation of legislative power to boards of supervisors, but is a valid delegation of control over a local matter authorized by section 36, article 4, of the Constitution.
    2. Drains — Establishment—Consent of Township Boards.
    Where a resolution of a board of supervisors, adopted pursuant to Act No. 21, Pub. Acts 1905, provides that no expenditure for a drain shall be authorized until permission in writing shall be signed by “at least a majority of the members of the township board or boards affected by” the proceedings, a majority of the members of each board affected is necessary, a majority of the members of the several boards collectively not being sufficient.
    3. Constitutional Law — Legislative Powers — Delegation — Boards of Supervisors — Township Boards — Drains.
    A resolution of the board of supervisors of a county, adopted pursuant to Act No. 21, Pub. Acts 1905, providing that no expenditure for a drain shall be authorized until permission in writing shall be signed by a majority of the members of the township boards affected thereby, is not invalid as an attempt by the board of supervisors to delegate to the township boards the authority reposed by the statute in the supervisors, but is a valid legislative protection of township rights.
    4. Same — Township Boards — Individual Members.
    That the authority to withhold their assent to the proceedings is conferred upon the members of the township board, instead of upon the board, is immaterial, since the power is not of a legislative character, and the members in giving or withholding their assent act as business agents of the township.
    5. Drains — Restraining Construction — Certiorari—Remedy.
    A bill in equity will lie to restrain the construction of a drain on the ground that requirements prescribed by the board of supervisors pursuant to Act No. 21, Pub. Acts 1905, have not been complied with, since the proceedings to establish the drain may be regular and not open to the certiorari provided by the general drain law, and still there be no compliance with the supervisors’ requirements.
    Appeal from Montcalm; Davis, J.
    Submitted April 10, 1908.
    (Docket No. 15.)
    Decided May 26, 1908.
    Bill by Chester E. Chandler against Charles L. Heisler, county drain commissioner, to restrain the construction of a drain. From a decree for complainant, defendant appeals..
    Affirmed.

      Fred L. Williams, for complainant.

      John Nichol, for defendant.
   Montgomery, J.

The bill in this case was filed to restrain the defendant from proceeding to construct a drain without having procured the assent of a majority of the members of the township boards of the townships through which the drain extends. The proceeding rests upon the provisions of Act No. 21 of the Public Acts of 1905, which is an amendment to the general drain law, and provides that the boards of supervisors of certain named counties, including Montcalm,

“May from time to time, by resolution, fix and determine such further conditions than those herein set forth, to be complied with, before all or any contract shall be made or entered into for the construction, improvement or clearing out of any drain as hereinbefore provided, as to such boards shall seem necessary and proper to protect all persons anfi townships that may be affected by the proceedings; and no contract or expenditure shall be made or entered into by the drain commissioner or his deputy, without first complying with such conditions.”

Acting under the authority of this law, the board of supervisors of Montcalm county, at the October session, 1905, passed the following resolution:

“Resolved, That pursuant to said Act No. 21 of the Public Acts of 1905, the county drain commissioner shall not enter into any contract for the construction, improvement or clearing out of any drain and no expenditure shall be made therefor without having first obtained permission in writing to that effect, signed by at least a majority of the members of the township board or boards affected by such action of the county drain commissioner.”

The circuit court granted the relief prayed, and the de- ' fendant appeals to this court.

It is contended that, if it was the purpose of Act No. 21 to confer power upon the board of supervisors to fix a condition that would render a general law of the State inoperative, it is unconstitutional. • Section 38, article 4, of the Constitution, provides:

“ The legislature may confer upon organized townships, incorporated cities and villages, and upon the board of supervisors of the several counties, such powers of a local, legislative and administrative character as they may deem proper.”

In Albert v. Gibson, 141 Mich. 698, the precise question of whether authority corresponding to that delegated to the board of supervisors by the act in question was within this provision of the Constitution was presented and such authority affirmed. See, also, Hurst v. Warner, 102 Mich. 238 (26 L. R. A. 484), and Friesner v. Charlotte Common Council, 91 Mich. 504. As was said in Albert v. Gibson:

“It has been frequently'held by this court that the laying out of drains is a mere neighborhood matter.”

It is peculiarly a matter control of which might be delegated to townships, cities, or boards of supervisors within the terms of this constitutional provision.

It appears that a majority of the aggregate number of the members of the township boards of the three townships affected by this drain signed the permission in writing provided for by the resolution of the board of supervisors, but not a majority of the several boards of the townships affected. It is contended that this was sufficient to answer the requirements of the resolution, and Brady v. Hayward, 114 Mich. 326, is cited as authority. That case presented a very different question. In that case, the court was dealing with the sufficiency of a petition filed under a statute which required that the petition should be signed by not less than five freeholders of the township or townships in which such drain or the lands to be drained thereby and to be assessed therefor may be situated, one or more of whom shall be the owners of the lands liable to be assessed for benefits. The contention made was that the petition must be signed by not less than five freeholders of each township. The court held that this was not required.

It will be noticed that a fixed number of freeholders was required by the statute, and that a residence in any of the townships in which the drain was to run answered the requirements, and it required but one of the petitioners to be the owner of lands liable to be assessed for benefits. The freeholders in this case were in no sense representatives of the township or townships. For they acted in their own behalf and in their individual capacity, whereas the resolution in question in this suit was adopted under the authority of the legislature which gave the board the right, and imposed the duty of protecting all persons and townships, and, obviously, the purpose of the requirement was to protect the several townships, and the signers of the permission were in their action acting in protection of their several independent townships, and the language employed must be construed with reference to the plain purpose in reposing this authority, and the requirement that the permission shall be signed by a majority of the members of the township boards of the townships affected, when so construed, requires the action of a majority of the members of each of the township boards, as the townships were necessarily acting severally.

But it is contended that, if this construction be placed upon the action of the board of supervisors, then it must be considered an attempt on the part'of the board to delegate to the township boards of the various townships the authority reposed in the board of supervisors by Act No. 21, in question, and the case of City of St. Louis v. Russell, 20 L. R. A. 721 (116 Mo. 248), is cited to show that this would render the action invalid. The case is one in which the city, acting under authority to license and regulate livery stables, passed an ordinance which required any person, before commencing to build a building for that purpose, to secure the consent of the owners of a majority of the property in the block in which the building was situated. It was held that this was a delegation of the power reposed in the council and was not authorized.

The case of City of Chicago v. Stratton, 162 Ill. 494 (35 L. R. A. 84), distinguishes this case and holds that a delegation of the power to fix the location of a livery stable is not effected by an ordinance prohibiting the location of one upon a street where two-thirds of the buildings are devoted to residence purposes, except where a majority of the lot owners on such street consent in writing to the location of a livery stable there.

We need not determine whether these cases may be reconciled, or as to which case makes for the better rule. Both cases are dealing with an attempt by the municipality to control a proposed business acting under the police power. It may be assumed that any person has a right to engage in the business of keeping a livery stable subject only to the legitimate exercise of the legislative authority, either State or municipal, in fixing such restrictions as the public health or convenience may require. But we know of no rule which confers upon anyone a vested right to a proposed pew undertaking in the nature of a public improvement. And so it is that under the general drain law and many similar enactments, public improvements are stayed until there shall be a petition of a stated number of those directly interested. This is not a delegation to the persons whose signatures are required of legislative power. It is rather a legislative protection of individual rights. So in this case, the township is liable to assessment for a portion of the benefits derived from a public drain. Either wisely or unwisely the legislature has conferred upon the board of supervisors the authority to fix conditions in these various counties, and, under the delegated legislative authority, the board in the county of Montcalm has determined that no such improvements shall be entered upon unless, in addition to all the requirements fixed by the general drain law, the assent of the several townships shall be obtained in the manner prescribed by the resolution above quoted.

Criticism is made of this action upon another ground, namely, that the board of supervisors has conferred upon the individual members of the township board authority of a legislative character, and that this is unauthorized delegation of authority. We do not regard this power conferred as legislative in its character. The individual members of the township board are authorized to withhold their assent for the purpose of protecting the interests of the township from an unnecessary or excessive burden. They act as conservators of the townships’ interests — not in a legislative capacity. They are the business agents of the township for this purpose. The fact that they are not convened for the purpose of taking this action as a board does not affect the validity of their action. They are constituted the agents of the township, and individual action by members of the board is not unusual. Eor instance, the supervisor may approve the bond of the treasurer. 1 Comp. Laws, § 2354. The supervisor or clerk may approve of the, security given by constables, and under the general tax law — section 3922 — it is provided :

“ Where any statement, certificate, or record is required to be made or signed by a school district board or a township board, such statement, certificate or record may be made and signed by the members of such boards, or a majority thereof, and it shall not be necessary that other members be present when each signs the same.”

We think it was within the power of the board of supervisors, acting in its legislative capacity, to dispense with the formality in the action required of the township board.

It is contended that a bill in equity will not lie to restrain the construction of this drain, and that certiorari is the proper remedy. Section 3 of chapter 5 of Act No. 254 of the Public Acts of 1897 — the general drain law — provides for certiorari, and also provides:

“ Notice of such certiorari shall be served on the county drain commissioner within ten days after the copy of the final order of determination of such commissioner in establishing any drain has been filed with the county clerk as provided in section one of chapter four.”

Section l of chapter 4 requires that the certified copy of such order of determination shall be filed with the county clerk within 5 days after the order is made, that is, the order establishing the drain. The same section then proceeds to impose the duty upon the drain commissioner of giving notice of the time and place of letting, which should be not less than 10 days, so that the certiorari provided for was evidently intended as a means of reviewing the action of the drain commissioner in establishing the drain.

Section 14 of chapter 9, which was added by the amendment of Act No. 21, Pub. Acts 1905, simply confers upon the board of supervisors authority to fix and determine further conditions than those prescribed in the general act to be complied with before any contract shall be made or ehtered into for the construction, improvement, or clearing out of any drain, so that, although all the proceedings of the establishment of the drain may be regular and not open to complaint on certiorari, there is under this section and the action of the board an additional requirement which has been omitted, and there would seem to be no way to protect the rights of the complainant except by the present remedy. If it be suggested that an appeal might be taken under chapter 5, it is a sufficient answer to say that such an appeal would not be permissible in this cause because it would be to the township board, which has a duty inconsistent with that required when sitting in review of the proceedings. As bearing upon the question of whether a remedy in equity is open, see Hinkley v. Bishopp, 152 Mich. 256; Hoffman v. Shell, 151 Mich. 669.

The decree should be affirmed.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    ENGEL v. LADEWIG.
    1. Deeds — Reservations—Life Estate — Husband and Wife as Grantors.
    A husband owning a fee in land, and his wife owning an inchoate right of dower therein, may give a conveyance that passes the title in fee, or may impose any limitations they see fit; whence they may reserve a life estate to themselves and the survivor of them.
    2. Same — Reservations—Construction—Life Estate — Lien for Payments.
    A deed containing the words “grant, bargain, sell and confirm ” and the covenants of warranty and seisin in common use in warranty deeds, reserving to the grantors “all right, title and control so long as we or either of us shall live’’and directing that the grantee shall pay “out of the above described real estate ” certain sums to the grantors’ children, creates a life use for the grantors, and provides a lien upon the land for the payment of the sums mentioned.
    3. Mortgages — Redemption—Right oe Remainderman — Fraud of Life Tenant.
    Where, by connivance with the life tenant of certain land, her brother bought a mortgage thereon and foreclosed it and deeded the land to her for the purpose of cutting off the remainderman’s title, he is entitled to redeem by paying the amount of the mortgage, less the value of an annuity equal to the annual interest charge payable by the life tenant during her expectancy of life as shown by the standard life tables.
    Appeal from Ottawa; Padgham, J.
    Submitted April 10, 1908.
    (Docket No. 29.)
    Decided May 26, 1908.
    Bill by Gustav Engel against Charles Ladewig and Maria Engel to redeem from a mortgage foreclosure. From a decree for . complainant, defendants appeal.
    Affirmed.

      Smedley & Corwin, for complainant.

      Walter I. Lillie, for defendants.
   Moore, J.

Complainant is one of the children of defendant Maria Engel and Frederick Engel, now deceased. Defendant Charles Ladewig is a brother of Maria Engel. On November 20, 1899, Frederick Engel was the owner of a fractionapforty acres of land which on that day, his wife, Maria Engel, joining in the deed, he conveyed to the complainant. The farm was mortgaged for $200, the money having been paid to Gustav at the time the mortgage was given for personal property he sold his father.

The deed was in the usual short form of warranty deed, and after the description of the lands, in the blank space was written:

“We, the parties of the first part, reserve all right, title and control so long as we or either of us shall live, and after the death of us, said party of the second part shall pay out of the above described real estate the follow ing sums of moneys to the within named persons, to wit: To our son Wilhelm Engel the sum of two hundred dollars; to our daughter Elizabeth Voelker the sum of one hundred dollars; to our daughter Mal vine Sharp the sum of one hundred dollars; to our daughter Mathilde Engel the sum of one hundred dollars; to our grandson John Bruisema the sum of one hundred dollars; said above sums of money shall be paid one year after our death, and this indenture shall have no effect until said sums of money have been paid; the amount of $100 set forth to our grandson John Bruisema shall not be paid to him until he is twenty-one years of age. ”

Then follows the habendum clause, with the covenant of seisin, and warranty against encumbrances, as follows:

“Except a mortgage of two hundred dollars given to Benton Green, and that we will and our heirs, executors and administrators shall warrant and defend the same against all lawful claims whatsoever, except the mortgage aforesaid.”

Then follow the signatures of the said Frederick and Maria Engel and seals, and the acknowledgment was taken before the said Charles Ladewig, notary public. The deed was delivered to the grantee on its execution, and by him later placed on record. The father, Frederick Engel, died in January, 1900; after that the mother stayed upon the farm. Gustav worked the farm on shares, dividing the proceeds with his mother. The second year a disagreement arose between Gustav and his mother and it ended in his leaving the management and control of the farm to her since that time. The father paid the interest on the mortgage for the year 1899. The mother, Maria Engel, paid the interest the next year, 1900. No more interest was paid. In 1902 the defendant Ladewig procured an assignment of the mortgage and later foreclosed it, by advertisement, and upon receiving a sheriff’s deed of the premises he conveyed the land to his sister Maria Engel, by warranty deed, who offered the land for sale, asking $1,600 for it, and it was from a prospective purchaser that Gustav first learned that Ladewig had bought the mortgage, foreclosed it, and deeded the land to his mother. He then tendered the amount of the mortgage and interest to Ladewig, who refused to take the money. This suit was then brought to allow him to redeem the land.

The case was tried in open court. After hearing all the testimony the trial judge- expressed himself in part as follows:

‘ ‘ I am satisfied that the agreement and understanding between Mrs. Engel and her brother, Charles Ladewig, was fraudulent in respect to the rights of Gustav and if not an active fraud was a legal fraud on his said rights under all evidence in the case. I am of the opinion that Gustav Engel should be allowed to redeem this property by paying what the law, under the circumstances, would require him to pay at this time. ,By the terms of the said deed from the parents to Gustav, he, Gustav, did not assume or agree to pay the said mortgage held by Benton Green, the only obligation resting upon Gustav was to pay the mortgage in the case of .foreclosure, to protect his own title to. the property, and in case of his neglect to do that he would lose it.
The proofs in this case show Maria Engel to be sixty-two years of age. Her expectancy, as shown by the life tables introduced in evidence, would be 12.86 years. The interest she was required to pay was $10 per year on a principal of $200, the amount of the mortgage, reckoning interest at five per cent. The amount she would be required to pay for the said 12.86 years, calculating the present worth of $10, would amount to $92.87. Deducting this amount from $200 leaves $107.13-which Gustav Engel, as remainderman, should pay to redeem this property. He should not be charged with any costs of the foreclosure, and, under the circumstances of the case, no costs will be allowed either party in this cause.”

From a decree rendered along the lines of the ppinion, an appeal is taken to this court.

Counsel concede that, if the title to the land had been in Frederick Engel and wife jointly, the first provision in the deed would have reserved to both the use of the property during their natural lives and to the survivor during his or her natural life, but he argues:

“But the title to the land was in Frederick Engel. His wife, Maria Engel, had only her inchoate right of dower therein. Could Frederick Engel reserve to his wife a greater estate than she owned ? Could Maria reserve to herself a greater estate than she was then possessed of ? To both questions we answer, No.”

He then cites many authorities and claims:

So we say that this reservation gives to Frederick Engel a life estate in the farm during the lives of himself and his wife; at the death of the survivor of the two, and not before, was Gustav to have the use of the land (providing all other conditions are complied with, of course). Frederick Engel dying before his wife, his estate descends to his heirs and shall be held by them during the life of his widow. This leaves Maria then with her right of dower, to wit, the use of an undivided one-third of the land, and the children,— Gustav, .Wilhelm, Elizabeth, Mal vine and Mathilde, — with the use of the remaining two-thirds during the life of Maria, their mother.”

The trouble with this argument is that it ignores Frederick Engel. He was owner of the fee. His wife was the owner of an inchoate right of dower. The tyro could give a conveyance that passed the title in fee or they might impose any limitations they saw fit. They in fact used language that reserved to both of them or the survivor of them the use of the land so long as either of them lived. 1 Jones on Real Property, §§ 525, 526; Cable v. Cable, 146 Pa. 451; Cates v. Cates, 135 Ind. 272.

With reference to the other provisions in the deed. The whole deed must be read together to find out the intention of the grantor. The words of the deed are “grant, bargain, sell * * * and confirm,” and the grantor binds himself by the covenants of warranty and seisin which form a part of the warranty deed in common use in this State. And the condition, read in the light of the grant, is to be interpreted as creating, as to the first provision, a life use for the grantors, and as to the other provisions a lien upon the land for the payment of the sums of money mentioned therein. Hitchcock v. Simpkins, 99 Mich. 198; Martin v. Cook, 102 Mich. 267.

There was an abundance of testimony to show that the defendants planned to have the mortgage foreclosed for the purpose of cutting off complainant’s title and having it inure to the benefit of the defendant Maria Engel. This being so, the only other question calling for' consideration is, Upon what terms should complainant be allowed to redeem ?

The rule has been stated as follows:

“The general doctrino of contribution applies to such owners, but is modified in its operation by the new element of inequality in the nature of their respective estates. As has already been shown, the holder of a partial interest is always compelled to redeem the whole mortgage. By a settled rule of the law, the life tenant, A, is bound to pay the annual interest on the mortgage accruing during his own lifetime. * * * This is his own debt, and for what he thus pays in keeping down the interest, he is not entitled to any contribution from B, the owner in fee. When, therefore, A redeems the' mortgage, a certain part of the money paid to the -mortgagee would be the equivalent of the annual interest on the mortgage which A was obliged to pay at all events, and this part, being his own debt, need not be refunded to him by B; but all of the mortgage debt over and above such part equitably belongs to B to pay; it is the share which should fall upon him by virtue of his reversionary interest.
“The problem then is to ascertain what portion of the total mortgage debt represents the annual interest on the mortgage which A is bound to pay during his life; subtracting that amount from the total sum, the balance is the share which B must contribute, and for which A may hold the mortgage as a lien on the land. An element of uncertainty — the duration of A’s life — is inherent in the problem; but the courts, both of England and of this country, have adopted the standard ‘life tables’ as the basis of calculation in all such cases. The rule is settled that the present worth of an annuity equal to the annual interest running during the number of years which A is liable to pay as his individual indebtedness.” 3 Pomeroy on Equity Jurisprudence (3d Ed.), § 1223.

See, also, Campbell v. Campbell, 21 Mich. 438; Damm v. Damm, 91 Mich. 424, 109 Mich. 619; Hodges v. Phinney, 106 Mich. 537; Lewis v. Wright, 148 Mich. 290.

The decree is affirmed, with costs of this court.

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


text:
    TOLSMA v. JAMES E. SCRIPPS CORPORATION.
    1. Injunction — Denial—Laches—Comparative Damages.
    An injunction to restrain the obstruction of an area between the buildings of complainants and defendant will not be denied on the ground that complainants have delayed commencing suit until its issuance would cause defendant more damage than its refusal would cause complainants, where long before defendant’s building was commenced defendant was notified that complainants insisted upon the area being left open, and tendered defendant the amount of money required by their deed and contract to entitle them to have it left open, which defendant refused.
    2. Same — Denial—Grounds—Absence oe Injury to Complainants.
    An injunction to restrain the obstruction of an area between the buildings of complainants and defendant will not be denied on the ground that defendant is leaving open an area which will be much more advantageous to complainants’ building than the one in controversy, complainants being entitled to decide that matter for themselves as long as they keep within their legal rights.

      Appeal from Wayne; Brooke, J.
    Submitted April 10, 1908.
    ( Docket No. 36.)
    Decided May 26, 1908.
    Bill by Charles S. Tolsma and Alexander S. Tolsma against the James E. Scripps Corporation to enjoin a building upon certain premises. .From a decree for complainant, defendant appeals. Affirmed.

      Thomas O’Hara, for complainants.

      Jasper O. Oates (Herbert O. Munro, of counsel), for defendant.
   Moore, J.

This is an appeal from an order of the cir-

cuit court for the county of Wayne', in chancery, Brooke, circuit judge, issuing a writ of injunction restraining de-' fendant and appellant frombuilding upon or otherwise obstructing above the grade line ” a certain area or space upon defendant’s land, 6 feet wide northerly and southerly by 31 feet, 8 inches long easterly and westerly, lying next to and southerly of a portion of the “ Tolsma Building ” which is situated on the southwest corner of State and Rowland streets in the city of Detroit. Both parties claim title under John Atkinson and James Atkinson, who on the 1st day of June, A. D, 1886, owned lot 55 and easterly 10 feet of lot 56 of section 8 of the Governor and Judges’ Plan of Detroit. The plat attached will aid in understanding the situation.

Complainants are the owners of the north 27 feet of this property. Defendant is the owner of the remainder. In November, 1907, defendant commenced the construction of its building. The bill of complaint was filed December 4, 1907, the order appealed from granted December 13th, and the appeal perfected December 17th. The rights of the parties grow,out of a contract dated May 31, 1886, and a deed of June 1, 1886, both of which were placed upon record and both of which appear in the record at length.

The important claims of the appellant are as follows:

“a. Complainants claim that the rights of the parties are governed by the contract of May 31, 1886, Exhibit I, and that, therefore, the area in question extends to the west line of the Atkinson property and is 31 feet, 8 inches in length.
“6. We contend that Exhibit I was superseded by the deed of June 1, 1886, and that the ‘area’ was ‘in the jog caused by the north wall of the Tribune building ’ and is, therefore, only 21 feet, 8 inches in length and covers no part of lot 56.
“c. We claim that, under their deed from James J. Atkinson, complainants’ rights are limited to ‘the area of space between ’ said dwelling on said 27 feet and the Tribune building, and that no part of Lot 56 was ever between these buildings.”

It is sufficient reply to these contentions to say that a fair construction of the deed entitles the complainants to an area 31 feet and 8 inches in length, the rear of said area to be 60 feet from Rowland street.

It is further claimed:

“An injunction ought tó be denied because complainants have delayed commencing suit until the issuing of an injunction would cause more damage to us than its refusal would cause to complainants. Moreover this delay was for the purpose of extortion.”

This claim has no merit. Long before the building was commenced defendant was notified that complainants insisted upon the area being left open and tendered to the defendant the amount of money required by the deed and contract to be paid to entitle complainants to have the area left open. The defendant refused to take this money and proceeded to erect its building.

Counsel further say:

“It is clear from the answef and the affidavits of the three architects that even if complainants were right in their claims as to the location and character of the area in question, that the area which we are leaving open is very much more advantageous. It leaves open four tiers of windows instead of the two which would be left open if the area was constructéd according to their claims.. The area we are leaving open is 150 per cent, larger, it opens into a 10-foot alley communicating with the public alley, thus giving air circulation as against a mere unventilated well hole of insignificant proportions which would be left if complainants’ contentions were sustained. ”

It is not for the defendant to decide what would be most advantageous to complainants; as long as they are within their legal rights that is a matter for them to decide. The contract and deed were both of record. The correspondence shows that defendant knew about them and their terms long before it commenced to build. As before stated, it knew that complainants insisted upon having the area. It acted at its peril. There is a full discussion of the last two propositions of the solicitors for the defendant in Ives v. Edison, 124 Mich. 402 (50 L. R. A. 134), where there is a large array of authorities gathered and cited.

The other contentions of counsel have been examined. We do not deem it necessary to discuss them.

The decree is affirmed, with costs.

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


text:
    WIPFLER v. WIPFLER.
    1. Deeds — Delivery—Surrioienoy.
    Where a husband prepared, signed, and acknowledged certain deeds naming his wife as grantee, and kept them in his own possession for several years, and on the eve of departing on a journey handed them to his wife with instructions that if anything of a fatal nature should befall him she should have them recorded, which she did forthwith, though he returned in safety, there was a sufficient delivery to pass title to her, since he reserved no right to recall the deeds.
    3. Same — Delivery to Grantee's Husband.
    Where a husband bought property with his own funds, taking deeds therefor naming his wife as grantee, the delivery of the deeds to him was sufficient to vest the title in her.
    3. Trusts — Resulting Trusts — Conveyance to Purchaser’s Wire.
    Under section 8835, 8 Comp. Laws, no relief can be granted a husband against his wife with respect to property which he bought with his own funds, taking deeds therefor naming her as grantee.
    Appeal from Wayne; Brooke, J.
    Submitted April 13, 1908.
    (Docket No. 44.)
    Decided May 26, 1908.

      Bill' by Charles Wipfler against Lucy Wipfler for a divorce, to set aside a deed, and to compel the conveyance to complainant of certain real estate. From a decree for complainant, defendant appeals. Modified.

      Charles It. Robertson, for complainant.

      William C. Qottman (Jonas B. Houck, of counsel), for defendant.
   Montgomery, J.

Complainant filed a bill for divorce, also praying to have set aside a deed of certain lands made by complainant running to the defendant, and to compel the conveyance by defendant to complainant of certain other lands, title to which was taken in defendant’s name, the consideration price having been paid by complainant. The complainant prevailed on all points in the court below and defendant appealed. The grpund for the divorce alleged was extreme cruelty. The circuit judge, who saw the witnesses and noted their appearance upon the stand, was of the opinion that the case of extreme cruelty was made out. We are not disposed, upon the record made, to disturb the circuit judge’s finding upon this question.

Upon the question of the right to set aside the deed executed by complainant and placed in defendant’s hands, we encounter what we deem a legal obstacle to granting the relief prayed. The equities of the case are undoubtedly very strongly with complainant, and if the rules of law would admit, we should, unhesitatingly grant the relief prayed. The property involved represents substantially all the earnings of the complainant for a lifetime, and the insistance by the defendant upon her legal rights, which will result in turning complainant out almost penniless, is most unconscionable and inequitable. We have struggled to find authority for relieving complainant in the case, but upon a full consideration and a re-examination of the question determined by this court in Dyer v. Skadan, 128 Mich. 348, we are unable to find such authority.

Complainant’s testimony is that he prepared, signed, and acknowledged the deeds in question, and retained them in his possession for several years, but that in the month of August, 1890, when about to take a railway trip to the Gr. A. R. encampment, which he deemed hazardous on account of a strike of the employes of the road he would travel over, he, before leaving home, handed the deeds to the defendant with instructions that if anything of a fatal nature should befall him, she should have the deeds recorded; that he returned in safety, and several years thereafter found that defendant had caused the deeds to be recorded during his absence on this trip. The defendant denies that there was any condition annexed to the delivery of the deeds to her, but asserts that complainant handed her the deeds telling her to record them, and instructing her in what office to have them recorded. But assuming complainant’s version to be correct, the transaction constituted a delivery of the deeds to the grantee without any express reservation of the right to recall them, and with intent that in a certain contingency they should be effective, without any further act on the part of the complainant.

The case of Dyer v. Skadan reviews the authorities and follows the rule laid down by this court in Dawson v. Hall, 2 Mich. 390, that a delivery of a deed by a grantor to a grantee in escrow or upon condition is effectual to pass title presently. This question has arisen and is considered and discussed in a vast number of cases. Many cases may be found in which the manual custody of a. deed had been entrusted to the grantee temporarily and evidence was admitted to show that no delivery was intended. But these cases when examined and analyzed are found to be, we think, cases in which there was no intent that the deed should take effect ultimately without any further act on the grantor’s part if the condition upon which it was delivered should be performed. See a discussion of this subject in Gilbert v. Insurance Co., 35 Am. Dec. 543 (23 Wend. [N. Y.] 43), in which case it was held that leaving the deed in the hands of the grantee to be by him transmitted to .a third person to hold in escrow until the happening of a certain event is not a delivery to the grantee so as to vest title in him. But in that case it is manifest that nothing but the bare possession of the deed was vested in the grantee, and it was not to be retained except by a breach of faith. The deed could not presently take effect in the hands of the grantee, nor could it take effect without an intervening act by the grantor or his agent. In the present case, no act of the grantor was required which was not performed. It is true the condition which it is attempted ,to annex to the delivery has not been fulfilled, but had the death occurred, no other act of the grantor was essentiál to the passing of title. The case of Gilbert v. Insurance Co., it should be stated, was later distinguished and its doctrine questioned by so able a jurist as Judge Selden in Braman v. Bingham, 26 N. Y. 491, in which it was sought to avoid delivery of a deed on the ground that it was deposited with the grantee with instructions to leave it with one of the clerks of the register’s office, and it was contended that these facts showed that there was no delivery with intent that title should pass. It was held, however, that it was immaterial whether these facts were properly pleaded; that if the answer, in addition to what it contained, had embraced these facts, it would not, in the opinion of the court, have presented a defense. Referring to Gilbert v. Insurance Co., it was said:

“ In that case, the grantee had deposited the deed with the third person in pursuance of the arrangement, the condition had not been performed, and the grantee made no claim under the deed. The case presented merely the question, whether the grantor still retained an insurable interest in the premises described in the deed, the nominal grantee testifying to the terms in which the deed was delivered to him. Limited to its peculiar circumstances, no fault can be found with the decision; but if the grantee had retained the deed, claiming that its delivery to him was absolute, and in a contest between him and the grant- or parol proof of a conditional delivery had been offered, I think the result would have been different. If I am wrong in this conclusion, the case discloses an avenue for the overthrow of titles, by parol proof, which was supposed to be closed by the rule to which it would seem to form an exception. * * * If a delivery to the grantee can be made subject to one parol condition, I see no ground of principle which can exclude any parol condition. The deed having been delivered to the grantee, I think the parol evidence that the delivery was conditional was properly excluded.”

See, also, Foley v. Cowgill, 5 Blackf. (Ind.) 18 (32 Am. Dec. 49); Worrall v. Munn, 5 N. Y. 229 (55 Am. Dec. 330).

But if we assume it to be correct to hold that a deed may be delivered to a grantee as a mere agent or bailee of the grantor to transmit such deed to a third person to hold in escrow, it does not aid the complainant in this case. Nor do we know of any authority which goes to the extent of holding that a deed delivered to a grantee with an intention on the part of the grantor .that it shall be subject to a future condition, but with no express provision for recall by the grantor and requiring for its validity no additional act on the part of the grantor or any third person, can be defeated by parol proof of such condition.

Certain Michigan cases are cited which are claimed to make for a different rule. Pennington v. Pennington, 75 Mich. 600, cited by complainant, was a case which perhaps may be said to recognize the principle of Gilbert v. Insurance Co. In that case deeds had been prepared by the grantor and deposited with a third party not to be delivered during complainant’s lifetime. The testimony tended to show that it was understood that the deeds were subject to the grantor’s order. Some months after the execution of the deeds the grantor gave an order to the grantee, directed to the custodian, asking him to deliver up the deed to the grantee. The testimony showed that the order was given in order that the deed might be taken to the grantor so that arrangements could be made for taking from the grantee security to be given to otheir heirs of the grantor, which the grantor intended as a condition to letting the grantee have title, and that in fraud of the grantor, the grantee caused the deed to be recorded. This was clearly a case in which it was never expected that the deed in the hands of the grantee should have effect on any condition or in any contingency. It was a clear case of. a breach of faith on his part.

The case of Schuffert v. Grote, 88 Mich. 650, was a case in which a father executed a deed to a son and handed it to him, the son at the same time handing it back to him and saying that he didn’t desire to take possession of the property until the father’s death. The testimony showed that the deed was signed, acknowledged, witnessed, and handed to the son and by him immediately handed back to the father. One of the witnesses to the deed testified that the father said that he—

‘' Calculated to deed that property to Charlds, that his son Gus had had his ‘share, so that there would be no trouble after he was dead; that the father said he would not like to see the deed go on record until after he was dead; and that Charles said that he need not be afraid the deed should go on record, and that he could beep it himself.”

The court construed this testimony as showing in effect that there was no intentional present delivery of the deed, that it was retained in the grantor’s possession, and that it was not the intention of the grantor to convey either the title or possession to the son at the time.

The case of Burk v. Sproat, 96 Mich. 404, has no bearing upon the present case, as in that case the deed was never delivered into the possession of the grantee, but was placed in the hands of a third party, as the court held, subject to recall by the grantor.

The case of Chick v. Sisson, 95 Mich. 412, was also a case which might be controlled by the principle of Gilbert v. Insurance Co.

The case of Hogadone v. Insurance Co., 138 Mich. 339, was a case where a deed was executed and placed of record by the grantor but never delivered to the grantee. It is well settled, and the case recognizes the fact, that the record of a deed by the grantor is not necessarily a delivery, but simply evidence of a delivery, and it was held that the title had not passed.

The case of Roup v. Roup, 136 Mich. 385, was very similar in its facts to Schuffert v. Oróte, supra, and it was held that there was no delivery and acceptance by the grantee, the custody of the deed being retained by the grantor.

We find no case cited from Michigan, therefore, contrary to the conclusion which we reached in Dyer v. Skadan, supra. See, also, Tabor v. Tabor, 136 Mich. 255; Wilbur v. Grover, 140 Mich. 187; and Nolan v. Garrison, 151 Mich. 138, in which the rule in Dyer v. Skadan is recognized. It must be held that the deed in question passed title to the defendant.

Certain property known as the Hamtramck property was purchased by complainant, and deed from the grant- or was made to the defendant, by complainant’s direction. The deed was delivered to the complainant and retained by him. That such delivery was sufficient to vest title in the defendant, see Thatcher v. St. Andrew's Church, 37 Mich. 269. We see no escape from holding that this vested title in the defendant irrevocably and defeated complainant of any equitable remedy to recover the property.

Section 8835, 3 Comp. Laws, provides:

“ When a grant for a valuable consideration shall be made to one person, and the consideration thereof shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the persons named as the alienee in such conveyance, subject only to the provisions of the next section.”

Which provisions have no relation to the question here. The case is clearly within the statute. See Barnes v. Munro, 95 Mich. 612; Winans v. Winans’ Estate, 99 Mich. 74. It is beyond our power to grant complainant relief as to this property.

The decree must be modified as indicated by this opinion. But the want of equity and good conscience in defendant’s attitude in this case is so marked that we are disposed to exercise our discretion and withhold any award of costs.

Grant, C. J., and Blair, Carpenter, and McAlyay, JJ., concurred.


author: Blair, J.

text:
    De KALLANDS v. WASHTENAW HOME TELEPHONE CO.
    1. Master and Servant — Personal Injuries — Negligence op Master — Question por Jury.
    In an action by the employé of a telephone company for personal injuries, evidence examined, and held, that whether it was the duty of the company to have furnished plaintiff with a sufficient quantity of insulated wire, and whether it discharged that duty, were questions for the jury.

    2. Same — Fellow-Servants—Concurring Negligence op Master.
    An employé may recover for the negligence of his employer, although the negligence of a fellow-servant contributed to the injury.
    3. Same — Method op Work —Negligence op Servant — Question por Jury.
    In an action by the employé of a telephone company for personal injuries, held, under the evidence, to be a question for the jury whether the plaintiff's method of drawing two wires across certain other highly charged wires at once was more unsafe than to draw them one at a time.
    4. Same — Proximate Cause of Injury.
    Where, in an action by the employé of a telephone company for personal injuries, there was evidence from which the jury might have found that the defendant was negligent in not furnishing plaintiff with a sufficient quantity of insulated wire, and plaintiff’s injuries were caused by another employé allowing the wires they were stringing to sag and come in contact with a trolley wire over which they were crossing, it was not error to refuse to direct a verdict for defendant on the ground that the uninsulated wire was not the proximate cause of the injury.
    5. Same — Assumed Risk — Application of Doctrine.
    The doctrine of assumed risk applies, and is limited in its application, to dangers which the employé either actually knows or should know.
    6. Same — Ignorance of Dangers — Effect.
    Actual ignorance of the dangers of the employment will not alone suffice to relieve an employé from his assumption of the risks of the employment; the ignorance must also be excusable.
    7. Same — New Dangers.
    The doctrine of the assumption of obvious risks applies as well to those risks which arise or become known to the employé during the employment as to those in contemplation at the original hiring.
    8. Same — Basis of Doctrine — Contract of Employment.
    The doctrine of the employe’s assumption of the risks of his employment rests upon the contract of employment, which the law implies he accepts with all the risks incident to the employment, without regard to the magnitude of the danger.
    9. Evidence — Judicial Notice — Physical Characteristics of Objects — Electricity.
    Electricity is to be classed with gunpowder, dynamite, and other dangerous and treacherous and destructive agents, of whose dangerous qualities courts take judicial notice, as well as of the fact that society recognizes them and acts accordingly.
    10. Master and Servant — Assumption of Risk — Obvious Dangers.
    It is not merely the physical surroundings of the servant that must be obvious to him in order that he may be held to have assumed the risks arising therefrom, but it must be obvious to him, or, at least, to an ordinarily prudent servant, under the circumstances, that there is danger in such a situation.
    11. Same — Direction of Verdict.
    When there is a possible phase of a case where the risk was not assumed, the trial judge cannot properly direct a verdict on the ground that such risk was assumed.
    12. Same — Telephone Lineman —Risk Assumed — Question for Jury.
    In an action by an employé of a telephone company for personal injuries received while stringing a line of wire, caused by the wire coming in contact with a trolley wire, evidence examined, and held, that whether plaintiff actually had knowledge of what constituted a grounding of himself or of the telephone wires, and whether he was ignorant of the fact that he was not insulated while in his position on the pole, were questions of fact for the jury.
    13. Same — Ignorance of Danger — Effect.
    A servant employed by a telephone company as lineman cannot avoid the effect of his assumption of the obvious risks of his employment by showing his ignorance of what constitutes a grounding, and whether he was insulated while upon a pole in contact with telephone wires, since the danger from contact with highly charged wires was a characteristic risk of his employment, and it was implied in the contract of employment as lineman that he knew those things with reference to the creating of grounds and circuits which a telephone lineman must necessarily know in order to conduct his business with any degree of safety whatever to himself, his employer, or his co-employés,
    14 Same — Employer’s Negligence.
    The rule that an employé does not assume the risk of dangers arising through the negligence of his employer does not apply to cases where the negligence and the resulting danger are discovered by and known, to the employé before enteringiupon the performance of the work; to hold otherwise would be to apply to such cases the rule which is only applicable in cases where the risk grows out of the violation by the employer of statutory provisions for safeguarding employés.
    Error to Washtenaw; Kinne, J.
    Submitted April 13, 1908.
    (Docket No. 53.)
    Decided May 26, 1908.

      Case by Valentine Gh de Kallands against the Washtenaw Home Telephone Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      A. J. Sawyer & Son, for appellant.

      Frank A. Stivers and M. J. Lehman, for appellee.

       As to liability of electric company to employé injured by shock, see note to Western Union Tel. Co. v. McMullen (N. J.), 32 L. R. A. 351.

   Blair, J.

Plaintiff brought this action to recover for injuries received by him while in the performance of his duties as a lineman in the.employ of defendant in stringing wires for a telephone, which he had been directed to put in by defendant. The declaration contains one count and charges as negligence:

(1) The failure to furnish a sufficient number of competent fellow-servants. <

(2) The failure to furnish properly covered or insulated copper wire.

(3) The failure to furnish suitable and proper hand lines.

(4) The failure to furnish suitable reels.

Upon the conclusion of the plaintiff’s case, the defendant moved the court to direct a verdict for the defendant, which motion was denied.. The motion .to direct a verdict was renewed by defendant at the close of the case and again denied. Defendant also submitted requests to charge, requiring the direction of a verdict, which were refused by the court and the case was submitted to the jury upon the question whether the defendant had negligently failed to furnish insulated copper wire, the court having determined the other allegations of negligence against the plaintiff. Defendant has removed the record to this court for review upon writ of error, insisting that a verdict should have been instructed in favor of the defendant for the reasons:

(1) That the plaintiff’s injuries were due to the negligence of a fellow-servant.

(2) Because the plaintiff had chosen an unsafe way of stringing the wire when a safe way was equally open to him.

(3) That the failure to furnish insulated wire was not the proximate cause of the injury.

(4) That the plaintiff assumed the risk of the dangers due to the use of uninsulated wire.

(5) That the defendant was not guilty of negligence.

Plaintiff testified as follows as to his experience:

“ I worked for the company here in the city about seven months, perhaps six or seven, and for the Bell Telephone Company for about a year altogether. That would make two years very nearly that I worked at the business, lacking a few months. I think I was at the University about three months. I did whatever I was told to do.
“I worked for the Wash. Light & Power Co., too. I did what they told me to, if I could do it. I always attempted to obey orders. If I did not know, somebody quickly explained it to me. I did not always, when they told me to do anything, find out what it meant and why it was done. * * *
“I passed my degree as an apprentice, and first got my card as an apprentice, and after I had shown myself competent for the business, was given a full fledged lineman’s card. I think I received that card from the hands of the union about June, 1904. I was hurt in August, 1905.”

He was assisted in the work in question by a young man by the name of Werner, who had worked for the company for some time and who was, as he testified, a competent assistant.

The stringing of the wires required them to cross over an electric trolley wire and certain electric light wires.

Plaintiff testified that Mr. Spence, the wire chief of defendant company, gave him a card with the address of the place that he was to put the telephone in.

“All these companies simply give an order to put in light or telephone in such a house, or wire such a house, that is all there is to it. We have sense enough to know that we have the job in our hands, and we have to go and do it. And we take such help and material as we please, and go and do it, if the help and material are there. We are not instructed how to climb the pole or throw the line or draw it or anything of that kind. That is part of the work that we are expected to know enough to do. * * *
“ I cannot recollect who got the material for me when I got the order to put in this telephone. Henry Werner waS to help me. Henry and I went and got the material, * * * and loaded it onto the wagon. * * *
“Q. They did not select the wire for you ?
“A. We had to take what there was, there was none to select from. They did not select the wire.
“Q. You did not enter any complaint to them that there was not any such wire there as you wanted ?
“A. I spoke about it, yes, sir.
“Q. To whom did you speak ?
“A. Mr. Spence, Í think.
“Q. What did you say to Mr. Spence ?
“A. I simply mentioned the fact, I cannot remember the words or anything, but merely the fact that I mentioned the absence of covered wire on the day when I went over the trolley the first time, because we did not have enough that time, and I had to splice it out with bare wire in order to make the whole space between the poles.
“Q. Hid you make any complaint to Mr. Spence that you did not have covered wire to make this connection ?
“A. I asked for more, yes. * * *
“Q. Did he make you any answer at all ?
“A. Oh, yes, but I cannot remember it. * * * I couldn’t have selected the kind of wire or the proper wire, there was none other. There was nothing to select from. I took all there was, and then I told Mr. Spence that there was no copper wire and he told me to finish the job.”

Plaintiff further testified:

“ The pole that I went up in the first place was exactly on the corner, and I was practically stringing my wires across to the cross corners from that, diagonally, but on the other two corners were two Bell Telephone Company’s poles carrying about three arms full of wires. It might be about 30 wires, something like that, and I had to cross over them and about three feet, I think about that, our wires extended perhaps higher, and then on the other side of them, perhaps six feet out farther, these Bell wires were about 20 feet from the pole, I think, I am not sure, and about six feet on the other side of them the Light & Power Co.’s arc light wires were running parallel with those Bell wires, and beyond those were one or two guy wires that were helping to hold up these poles on the corner, and underneath all of those the trolley wire ran parallel with the street running up the hill, running right along the center of the street in the same direction with the street, and I had to throw the rope I had in the first place over the top of all these wires, because our wires weré higher than any of those and I had to bring it up over everything and clear all. * * *
“Q. You were right in there mixed up among the wires ?
“A. Yes, not way up, but so my head and shoulders were on a level with the first armful of wires.”

He knew his clothes were wet, and that damp clothes, damp weather, damp anything was more likely to áttract electricity, and he knew what a live wire was, and that a wire that is charged with electricity, whether lightor heavy, is a live wire, and he knew that every one of the wires he was going up among was a telephone wire and in constant use and was charged with electricity.

“<9. Before you commenced to string this wire on Saturday afternoon and when you got up your pole, you could see all the dangers that were there, you could see every wire, and you were above the trolley wire, you could see the electric light wire, you could see all the wires there could you not ?
“A. Yes.
“Q. You knew they were there before you commenced work ?
“A. Yes, sir. * * *
“Q. When did you first learn that it was dangerous to cross a trolley wire with these telephone wires ?
“A. I always understood it was dangerous to cross any highly charged electrical wires.
“<9. What do you mean by always understood ? You mean ever since you commenced the business at all ?
“A. Ever since I can remember I have understood it was unsafe to handle highly charged wires.
“<9- How long since you found out that it was dangerous when crossing wires that you must be careful not to touch those wires with the wires you were stringing ?
“A. I have taken it for an understood fact, I cannot remember the date.
“Q. It has been an understood fact with you ever since you first commenced the business ?
“A. Yes.
Q. When you started out with your card to install this telephone you knew how to install it, did you not ?
“A. Yes, sir. .
“Q. And you knew the system of crossing electric light wires and trolley wires, you knew the system by which that was done ?
“A. Yes. * * *
“Q. You took the chances, you knew what you had?
“A. Yes, I knew what boy I had, I knew what wire I had, and I knew what rope I had, and I knew the danger of crossing that wire. * * *
“Q. You could see this danger ?
“A. No, sir.
"Q. You could see that trolley wire ?
“A. I could see the danger of a chance of dropping that wire.
“Q. You could see the danger if he did drop it?
“A. Yes, sir.
“Q. You knew if he did drop it what the result would be?
“A. No, sir.”

Plaintiff further testified that he instructed Henry Werner to hold onto the wires:

Explained to him that if the wires, after I had drawn them along a little ways, if they were allowed to lie loose they would go down onto the Bell wires, which we were instructed to not interfere with in any manner, and also down onto the trolley which would have, of course, spoiled our work, because it would burn our wires, and cause us to do it all over again, or spoil some of the Bell phone wires by crossing the wires; I instructed him that if any strong electric shock came through there, and he would get it by hanging onto the wires, to step back onto the tar sidewalk and he would, in my opinion, insulate himself completely, because it was a very dry, hot day; after I told him that I proceeded up the road with the end of the rope, and went to the pole with it and pulled the rope over hand over hand in order to get the wire to me, and cautioned Henry Werner several times to be very careful, and not to let the slack of the wire down onto the trolley. I think we were about fifteen feet above it when we kept the wire up tight. * * *
"Q. At the time you gave the boy instructions, what had you principally in mind, what was your purpose in warning him ?
“A. Why, I thought on account of crossing over so many wires, and the trolley wife and everything else, of course, I supposed we were running the chance of dropping it onto those wires and I thought he might get a sound or something and imagine he was badly hurt, and drop the wires and then we would have to do all the work over again, if they dropped down onto the trolley wires and the trolley might burn our wires in two because our wires passed over the pole and onto the ground, and it would burn and ground our wires so we would have to do our work all over again, and it might spoil some of the Bell phone wires and phones.
“Q. What would it do to you if that boy let those lines sag so it would strike the trolley wire, what would happen to you ?
“A. I had no idea at that time, I thought I was well insulated by being upon this dry cedar pole.
“Q. You were right in there mixed up among the wires ?
“A. Yes, not way up, but so my head and shoulders were on a level with the first armful of wires.
“Q. Did you know at that time how those wires were grounded ?
“A. No. * * *
“Q. Did you know you were in any danger from those wires at all ?
“A. No. I did not have the least idea.”

One of defendant’s experts testified that, in his judgment, plaintiff got in the most dangerous position in doing his work that he could, except to lie on the cross wires, and that unless he was trying to commit suicide, plaintiff had little apprehension of the danger that he was in, and that he should judge he was wholly incompetent to do that kind of a job or was incapable of appreciating the danger. Plaintiff also testified that this was the first telephone wire he ever ran; it was the first job the company ever gave him to take and do alone, and it was the first time he ever went out to string a wire of any length; never ran one as far as this; had only done this kind of work working with other men; never had charge of a similar job before; and had never appreciated any danger. He understood that if a wire touched the trolley wire up in the air it would have been charged with electricity from the trolley wire, but he thought at the time if he were insulated from the ground, he couldn’t be affected by electricity in the trolley wire because the other electricity is in the rails themselves and he did not think it could hurt him; that he did not know that there couldn’t be a live wire without its being grounded. He did not know that if the wire touched the ground and touched the trolley wire it was grounded and would hit him, and had no idea that touching the ground would affect him. He did not know at the time how the wires were grounded but he learned afterwards. He learned afterwards that they led back to the central office and were there connected with the ground. He knew nothing about it at the time. He did not have the least idea that he was in any danger from those wires that touched his body. He was ordered to have this job finished without fail by Saturday night and had worked about a day and a half when he was hurt, through the wire in some way getting away from Werner, the assistant, and falling upon the trolley wire and the ground, causing him quite serious injuries.

There was an abundance of testimony to justify the trial judge in submitting to the jury the question whether it was the duty of defendant to have furnished the plaintiff with a sufficient quantity of insulated wire and whether it discharged such duty.

Even if the evidence were undisputed that the wire fell upon the trolley wire through the negligence of plaintiff’s fellow-servant, Werner, this fact would not have authorized the instruction of a verdict, since an employe may recover for the negligence of his employer although the negligence of a fellow-servant contribute to the injury. Lockwood v. Tennant, 137 Mich. 305.

Whether the plaintiff’s method of drawing two wires across at once was more unsafe than to draw them across one at a time was, upon this record, a question of fact for the jury.

The trial judge did not err in refusing to instruct a verdict on the ground that the uninsulated wire was not the proximate cause of the injuries. Swick v. Cement Co., 147 Mich. 454; Logan v. Railway Co., 148 Mich. 603; Warren v. Railway Co., 141 Mich. 298; Southwestern Telegraph & Telephone Co. v. Robinson, 50 Fed. 810 (16 L. R. A. 545).

Assumed risk. This raises the really serious question in the case. The principles underlying the doctrine of assumed risk were examined at some length in Brad-burn v. Railroad Co., 134 Mich. 575. It was there said:

The doctrine of assumed risk applies, and is limited in its application, to dangers which the employe either actually knows or should know.”

See, also, Harrison v. Railway, 137 Mich. 78.

In Ragon v. Railway Co., 97 Mich. 265, it was said:

“ The master has a right to expect him to be alert to inform himself of existing conditions, and he cannot attack the master from the shelter of unjustifiable ignorance of the business, machinery, and methods which he is employed to use. Actual ignorance will not alone suffice to charge a master; the ignorance must also be excusable.”

In Foley v. Light Co., 54 N. J. Law, 411, it was said:

“The immunity of the master rests upon the contract of hiring. The master says to the servant: You understand fully the nature of the employment and the- danger attending it; will you enter upon it ? The servant says: I accept it; and the law implies that he accepts it, with all the risks incident to it, without regard to the magnitude of the danger.”

It is the general rule that the doctrine of the assumption of obvious risks applies as well to those which arise or become known to the employé during the employment as to those in contemplation at the original hiring. 26 Cyc. p. 1180; Kean v. Rolling Mills, 66 Mich. 277.

In Warren v. Railway Co., supra, it was said:

“ Electricity is to be classed with gunpowder, dynamite, and other treacherous and destructive agents, of whose dangerous qualities we may take judicial notice, as well as of the fact that society recognizes them, and acts accordingly. No prudent man handles these things with a low degree'of caution.”

It is also well settled, however, as stated in Burns v. Telephone Co., 70 N. J. Law, 745:

“It is not merely the physical surroundings of the servant that must be obvious to him in order that he may be held to have assumed the risks arising therefrom, but it must be obvious to him, or, at least, to an ordinarily prudent servant, under the circumstances, that there is danger in such a situation. ”

See, also, Smith v. Car Works, 60 Mich. 501; Ribich v. Smelting Co., 123 Mich. 401 (48 L. R. A. 649).

And when there is a possible phase of the case where the risk is not assumed, the trial judge cannot properly direct a verdict on the ground that such risk was assumed. Murphy v. City Coal Co., 172 Mass. 324.

Davis v. Thresher Co., 126 Mich. 429, is quite similar in principle to the present case. In that case the plaintiff’s regular employment was as a helper in the machine shop, but, needing a man to take the place of one Riggs, who looked after the electrical wiring of the lighting plant for defendant, defendant had selected Davis to fill this position in addition to his regular duties. Davis had been engaged in assisting a regular electrician in rewiring the plant and repairing the same and had had some two or three months’ experience prior to the injury which resulted in his death. He had been informed that contact with a live wire was dangerous and his attention had been called at one time to a flash of fire that came from a guy rod to a water tank tower with which one of the wires in question accidentally came in contact. There was no evidence that Davis knew the extent of the current, and, as stated by his counsel in their brief:

“ He did not know these live wires were carrying such a dangerous current nor how dangerous contact might be made, nor the precautions necessary, and he received no instructions on that point or warning of the danger, except possibly the most general kind of a warning from Riggs, as he was ascending the ladder, to look out for the electric light wires. Riggs had been doing this wiring around the premises for some time, but he was not a lineman, nor did he profess to be, and seems to have been ignorant of the precautions which should have been taken in crossing live wires with another wire which might form a ground connection, but Davis had no knowledge of this ignorance and it only developed on the trial.”

Davis, after crawling with the wire he was to string under the electric light wires,—

“Attempted to walk westerly on the south side of the east and west gable, and as he did so he seems to have slipped, as the testimony puts it, and, either to save himself from falling or thoughtlessly, he took hold of the electric wire with his hand. In the other hand he held the bell wire, the coil of which Riggs had on his arm standing on the ground, which formed a complete ground connection. The electric current passed from the wire through his arm and body, and down this wire into the ground, and killed him instantly.”

The ruling of the circuit judge directing a verdict was affirmed on the ground that the plaintiff had assumed the risk.

Referring to Smith v. Car Works and Ribich v. Smelting Co., supra, the court said:

“In each of these cases the injured party was ignorant of any danger of injury. In none of them was it held that it is the duty of the master to foretell the exact extent of the injury likely to follow any negligence of the warning of danger. This is never precisely known in the case of an obvious danger. If deceased knew that contact with this wire would cause him severe injury, he had sufficient warning. This is all the most expert could have known in advance, and there can be no doubt on this record that deceased knew this.”

It is apparent, from the testimony of the plaintiff himself, that he fully understood the danger of contact with the trolley wire or the electric lighting wires, but it is insisted on his behalf that he did not know that he would come in contact with the trolley wire in case thé wire which he held in his hand fell upon it; that he supposed that he was insulated by being upon the dry cedar pole and did not know that the live telephone wires which were in contact with his body were grounded; or that if the wire he was stringing got away from his helper and fell upon the ground that would create a circuit through his body. As to whether the plaintiff actually had knowledge of what constituted a grounding of himself or of the telephone wires, and as to whether he was ignorant of the fact that he was not insulated while in his position upon the pole, were questions of fact for the jury. As to whether plaintiff’s lack of knowledge was justifiable or not presents another question. We think it must be held that it was not.

It was said by the court in Chisholm v. Telegraph Co., 176 Mass. 125:

“The danger from an imperfectly insulated wire is the most characteristic risk which a lineman has to encounter. That general risk the deceased assumed by entering upon his employment.”

So in this case the danger from contact with the highly charged wires, which, in a city the size of Ann Arbor, in view of modern conditions, plaintiff was likely to have to pass over with the wires of defendant, was a characteristic risk and the principal risk which he was likely to have to encounter. Contact with the highly charged wires might be formed and was most likely to be occasioned by other means than seizing hold of said wires, and we think it was implied in the contract of hiring plaintiff as a lineman that he knew those things with reference to the creating of grounds and circuits which a telephone lineman, must necessarily know in order to conduct his business with any degree of safety whatever to himself, his employer, or his co-employés. We also think it must be held that knowledge of the grounding of defendant’s telephone wires was such an essential fact in their business that the plaintiff, who had worked in their employ as “trouble man,” lineman, ground man, and otherwise for over a year, must be charged with constructive notice of such fact.

It is argued, however, that, regardless of his knowledge, actual or constructive, of the negligence of his employer and the danger involved in consequence thereof, he is protected by the rule that the employé does not assume the risk of dangers arising through the negligence of the employer. While the rule is well settled, it does not apply in cases where the negligence and the resulting danger are discovered by and known to the employe before entering upon the performance of the work. To hold otherwise would be to apply to cases like the present the rule which is only applicable in cases where the risk grows out of the violation by the employer of statutory provisions for safeguarding employés. Swick v. Cement Co., 147 Mich. 454.

The judgment is reversed, and a new trial ordered.

Montgomery, Carpenter, and McAlvay, JJ., concurred. G-rant, C. J., concurred in the result.


text:
    SCHWARTZ v. MINERAL RANGE RAILROAD CO.
    1. Railroads — Injuries at Crossings — Contributory Negligence — Pres umptions.
    The presumption that one killed at a railway crossing, in the absence of testimony as to his conduct, did not fail to take proper precautions before attempting to cross the track, cannot be indulged to support a verdict against the railroad company in a case where it appears that shortly before reaching the crossing deceased stopped his team and took a position on the side of his load from which a train, according to the schedule, might be expected, but on the opposite side from that which the train in fact came, and went from thence to the crossing without stopping.
    2. Same — Contributory Negligence.
    Where trains from the east and from the west were due to' pass a crossing at shortly before 1:35 and shortly after 1:55, p. m., respectively, the fact that it was after 1:55 when deceased approached the crossing did not justify him, considering the season of the year and the locality, in withdrawing his attention entirely from the east.
    Error to Ontonagon; Cooper, J.
    Submitted April 14, 1908.
    (Docket No. 5.)
    Decided May 26, 1908.
    Case by Kate Schwartz, administratrix of the estate of John Fravert, deceased, against the Mineral Range Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      A. B. Eldredge and A. E. Miller, for appellant.
    P. H. O’Brien, for appellee.
   Blair, J.

This is an action for the negligent killing of one John Fravert on the 3d of February, 1904. The accident occurred on the Chicago, Milwaukee & St. Paul Railway, where the same crosses a public highway known as the Rockland road, running from Ontonagon to Rock-land. This highway, at the point in question, crosses the railway at an angle of about 65 degrees, the railway running northwesterly and southeasterly; the highway at the point of crossing running almost due north and south. The crossing is about one mile east of the village of Ontonagon, and almost immediately west the railway begins to curve, and descends a sharp grade into the village of Ontonagon. One thousand one hundred and forty feet east of the center of the crossing is a whistling post, and at this whistling post the railway has commenced to curve quite sharply to the southeast. On the east side of the highway, 197 feet from the railway track, is a barn. On the southerly side ■ of the railway, 56 feet south of the south rail and extending 1,080 feet from the crossing easterly, was a high, board, snow fence, 7 feet 6 inches in height, with an average space between the boards of about 2\ inches, the widest spaces being 5$ inches. Some of the spaces were only an inch.

The highway sloped down to the railway track, and, at a point 96 feet south, was, in its natural condition, 3-J-feet higher than at the crossing.

At the time in question there was snow upon the ground, to a depth of two or three feet in the traveled part of the highway. The snow thrown out by the snow plows of the railroad company into the highway at and near the crossing had been thrown up on each side of the highway for a distance of 15 to 20 feet back from the crossing. Its height was in dispute; the witnesses for the plaintiff claiming that it was 6 or 7 feet high, the defendant’s witnesses, that it was from 4 to 5 feet.

By reason of the removal of the snow from the railroad track, the inclined 96 feet above referred to had, at the time of the accident, been shortened up so that for the last 30 feet it was quite sharp; and the witnesses are all agreed that a loaded team which started down this incline could not be stopped until it had reached the track.

The track east of the crossing is in a cut, the south bank of which is about 6 feet above the track at the crossing and gradually decreases in height to the east end of the snow fence which stands upon it.

“ It is on a bank about 3 feet above the highway and about 6 feet above the level of the railway track.”

Defendant’s train, which struck and killed plaintiff’s intestate, was due in Ontonagon at 1:35 p. m. and due to leave on its return trip east at 1:55 p. m. The accident occurred at about 2:05 p. m.

The only witness of the accident testified as follows:

“I saw John Fravert that day about a mile on the other side of the crossing, or a mile and a half, on the Rockland side of the crossing. I was coming to Ontonagon with a load of hay. John Fravert was hauling wood to Ontonagon with a double team of horses. He had a big load of cordwood. I was behind him. I drove right up pretty close to him, 5 or 6 feet may be, the team was behind. We stopped once at the barn up there by the crossing; I mean the barn that is near the railroad crossing; it is on the right-hand side as we were going along. We stopped on the railway side of the barn.
“Q. What did John Fravert do, if anything, after you stopped there ?
“A. He changed over onto the left-hand side of the load, and started up, went down to the crossing. Just as he got on the crossing the train came along and struck him. The train ran into the load and dragged him down the track, and threw the sleigh off the railroad.
“Q. Now, state whether you were listening for a train as you were approaching that crossing ?
“A. Yes, I was listening for a train. I did not hear any whistle blown or bell rung. I was about 15 or 20 feet from the crossing when the train went by. The snow was piled up pretty high from the barn to the crossing on both sides. * * *
“Q. Now, how was the snow with reference to that fence, how high was it ?
“A. Well, it was piled up pretty high; I think it was up to the top of the fence all right, if it wasn’t over. Coming from the barn along the highway, towards the railway, I couldn’t see a train until it got to the crossing, then I seen it pretty near to the crossing.
“Q. Why couldn’t you see the train ?
“A. Well, there was too much snow piled up there. * * * It was a pretty cold day, and he was well bundled up. I didn’t notice whether he had his cap down over his ears or not. It was a very cold day. He stopped at the barn two or three minutes anyway, stopped to rest his horses, and then he changed to the other side of the track, of the sleigh, that is nearest on — that is towards the west; the left-hand side, so that the way the train came, the wood was between him and the train.
Q. And then he went down to the crossing from that spot without stopping at all ?
“A. Yes.
Q. The team walking ?
“A. Yes.
Q. Now, when you say that on account of the snow a man couldn’t see from the barn across that fence, you mean a man walking in the highway ?
“A. Yes.
Q. You could have seen from the top of that load of hay if you had looked ?
“A. Yes, I guess I could. * * * From the top of the load of hay I seen the train when it was about 20 or 25 feet from where the wagon road crosses — I guess 20 feet; and then the train was coming towards the crossing, about 20 feet from the crossing. * * * At the time that Fravert stopped there I didn’t know what he stopped for; he didn’t say what he stopped for.
Q. Now, did you know whether he stopped to rest his horses or not ?
“A. No, I did not. I had my cap pulled down, but I guess I could hear all right if there was anything to hear.
Q. Mr. Snyder, do you remember whether you looked toward the east that day ?
“A. I looked both ways.
Q. Did the bell ring or did it not?
“A. No, the bell did not ring.
Q. Did the whistle blow as the train approached from the east ?
“A. No, the whistle didn’t blow; I didn’t hear it blow.
Q. Mr. Snyder, you weren’t paying any attention to the whistle or bell were you ?
“A. If the whistle blew, I was right there; I would have heard it.
Q. You weren’t paying any attention to it, were you, up where you could see ?
“A. Well, I couldn’t see much that day; it was pretty stormy.
Q. You weren’t paying any attention, were you ?
“A. O, yes; I was paying a little; I was kind of expecting the train to come along.
Q. You weren’t paying any particular attention as to whether that bell rang or the whistle blew, were you ?
“A. I was right there; if it blew I would have heard it.”

It was a stormy day and the snow was drifting with the wind, although it was not actually snowing.

The fireman testified:

“ I stopped cleaning the window as soon as I saw the load of wood; I think we were about 200 feet from the crossing then. We had been going through a snowbank and the plow had been throwing snow back against the window, so that it was impossible to see ahead if you did not keep the snow off.”

The engineer testified:

“It was not snowing any. Of course, it was windy, and the wind was drifting the snow, so that I was not able to see the crossing ahead until I got a clear rail. A bank of snow extended up to within 200 feet of the crossing, and the only time I had a view of the crossing would be from a point 200 feet from it. * * * My engine carried a plow. * * * My usual speed over that crossing is from 15 to 18 miles or 20 miles — say 15 miles an hour; and the reason why I was running at a greater speed than fifteen miles an hour was to get through those snowbanks. * * * The snow was drifting quite bad, and my view was pretty bádly obscured going through the bank, until we were within 200 feet of the crossing, and we passed that two hundred feet in a few seconds.”

Defendant’s station agent testified:

“I know it was a bad day, snowing or blowing; you can’t tell whether it snows or blows in this country; it left the atmosphere kind of snowy.”

The testimony was in dispute as to whether a man walking north in the highway from the barn could see a train approaching from the east all the way until he reached the line of the snow fence; the plaintiff’s testimony indieating that from the snow fence to the track a view could not be had until too late to be of service, but that between the snow fence and barn there were places where a train could be seen and places where it could not be seen. As stated in plaintiff’s brief:

“A person’s ability to see a train approaching that crossing would depend upon his being in a particular spot at the time the train was approaching.”

It was stipulated that there is a curve east of the crossing on the railway, at a distance of 1,080 feet from the crossing, and beyond this curve it is impossible to see the train from the highway.

A witness testified that he measured the height of the engine and coaches, and the engine was 12 feet 6 inches from the top of the smokestack to the track. The coaches measured 13 feet 6 inches from the rail to the top of the coach.

At the close of the testimony, defendant’s counsel moved for a view of the premises by the jury, whereupon the following occurred:

“Mr. O'Brien: I think that we would be willing to have the jury view the premises, but on account of the conditions being dissimilar now as to what they were on that day, as far as snow is concerned, winter time then, summer time now, we object to the train running back and forth.
“Mr. Eldr.edge: The view would not be of any use unless the court will allow the jury to see the train running back and forth.
“The Gourt: I shall allow the jury to proceed to view the premises. * * *
“The court thereupon took a recess for the purpose of having the jury view the premises, and after a view of the premises, and of the train going back and forth, the jury returned to the court-room, and the following proceedings were had:
“Mr. Eldredge: We have measured and agreed upon the heights of these two cars that were with us, and the engine, and they are, respectively: the coaches thirteen feet, six and a half inches; that was the passenger coach; and fourteen feet the baggage car and smoker combined, and the engine fourteen feet, six. That being the height above the rail of each of them. That would make the baggage car six inches higher than the Mineral Range car, and the engine higher, but I can’t recall how much.”

At the close of plaintiff’s testimony and at the close of the case, defendant’s counsel moved for a verdict in its favor on the ground that under the undisputed evidence the plaintiff was guilty of contributory negligence. The same point was made by several requests to charge.

The trial judge charged the jury, among other things, as follows:

“If you find from the testimony that if he looked he could have seen said train in time to avoid his injuries, and you further find from the testimony that he failed to look, then in that case it will be your duty to say that he is guilty of contributory negligence, which will defeat his recovery in this case. On the other hand, if you find from said circumstances which I have outlined to you, and all the other circumstances in the case, that he did look, but by reason of the nature of the crossing and the conditions thereabout he was unable to see the train, and that he took such measures to avoid injuries as a reasonably prudent man occupying his situation under the same circumstances would have taken, then the said John Fravert cannot be said to be guilty of contributory negligence. * * *
“ Every person is bound to know that a railroad crossing is a dangerous place, and he is guilty of negligence unless he approaches it as if it were dangerous. Fravert knew that the crossing where the accident complained of occurred was a dangerous one. He was bound to know that a train might be approaching, and if he did not look or listen to ascertain whether one was coming, at every place where he could look or listen, but on the contrary drove directly down from the barn on the south side of the crossing to the track, and that he did so without ascertaining, or using any effort whatever to ascertain whether a train was coming from either direction or both directions, then I charge you, gentlemen of the jury, that John Fravert would be guilty of contributory negligence. In other words, the fact that the train was late did not excuse Fravert from using diligence in ascertaining whether a train was coming from either or both directions upon the day in question. It was his duty to use care and precaution in approaching this crossing — such care and precaution as a prudent man would use, and that care and precaution imposed upon him the duty to observe and look and listen continually until he reached that crossing, to ascertain if possible whether a train was approaching either from Ontonagon or from the other direction.”

Under this charge and their own view, the jury must have determined that Fra vert looked and listened “at every place where he could look and listen,” but by reason of the nature of the crossing and the conditions thereabout he was unable to see the train.

There was no evidence whatever that decedent looked or listened at any point, and the finding of the jury can only be sustained upon the ground that, in the absence of any testimony as to decedent’s conduct in approaching the crossing, the jury would be justified in finding that he took proper precautions to ascertain whether a train was approaching. Mynning v. Railroad Co., 64 Mich. 93; Underhill v. Railway Co., 81 Mich. 43; Schremms v. Railroad Co., 145 Mich. 190.

But in the case before us there was testimony as to decedent’s conduct, showing that after leaving the barn he placed himself on the west side of his large load of cord-wood, “so that the way the train came the wood was between him and the train,” and then went down to the crossing without stopping at all. There is no room for a presumption or inference that he stopped, that he went, at any point, to the east side of his load, or that he looked towards the east at all.

All the circumstances required great care. The snow was being drifted and whirled through the air by the high wind and tended, with the snow fence, to obscure the view of a train approaching from the east; the wind was blowing strongly away from the drivers and towards the oncoming train, making it more difficult to hear; midway between the snow fence and the track a steep descent began, during which the team could not be stopped. Without pausing for even a second, at the top of the descent or anywhere else, to exercise his senses to the best purpose, either of sight or hearing; without, apparently, taking any precaution whatever against a train from the east, he drove upon the track.

The testimony shows that he knew the time of the trains, that the train which struck him was about due from the west, which adequately explains why he left the east side of his load at the barn and walked upon the west side, where he could seethe train if it came from the expected direction. There was no evidence that he was relying upon Snyder to look to the east and warn him, and his conduct was negligent, unless the circumstance that if the train was on time it would be coming from the west excused him from giving any attention whatever to the eastern approach. Considering the short interval between the scheduled arrival and departure of this train, the season of the year and the locality, decedent was not justified in withdrawing his attention entirely from the east after leaving the barn. Tucker v. Railway Co., 122 Mich. 149.

We are of the opinion that the defendant’s motion for an instructed verdict should have been granted. ■

Judgment reversed, and new trial granted.

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


text:
    GOEBEL BREWING CO. v. MEDBURY.

    1. Judgment — Action—Pleadings—Surplusage—Effect.
    Where the declaration in an action on a judgment contains sufficient allegations as a declaration on a justice’s judgment, it will support a judgment against a defendant who had full opportunity after personal service to present his objections in the usual way, though it also contains allegations showing invalid proceedings by which a transcript of the judgment was attempted to be filed in the circuit court, and the declaration purports to be upon the judgment as a circuit court judgment; since the fact that the declaration contains more than sufficient should not be permitted to defeat it.
    2. Same — Default Judgment — Assessment of Damages — Order —Entry Nunc pro Tunc.
    Where in an action on a judgment defendant’s default was entered without any order for the assessment of damages, and several months later the circuit judge heard the case on assessment of damages, and entered judgment accordingly, a subsequent order amending the default order nunc pro tunc so as to provide for an assessment of damages by the court was properly granted, no appearance having been entered or step of any kind taken by the defendant.
    Error to Wayne; Donovan, J.
    Submitted April 14, 1908.
    (Docket No. 75.)
    Decided May 26, 1908.
    Debt by the Goebel Brewing Company against Samuel Medbury and others for the amount of a judgment. There was judgment for plaintiff, and defendant Medbury brings error.
    Affirmed.

      Jonathan Palmer, Jr. {Elbridge F. Bacon, of counsel), for appellant.

      Lewis A. Stoneman, for appellee.

      Rehearing denied September 10, 1908.

   Blair, J.

On July 10, 1896, the plaintiff obtained a judgment against the defendant Medbury and others after personal service of summons upon him, plea of the general issue and participation in the trial. No appeal was taken from this judgment and its validity is not questioned. Afterwards a transcript of the judgment was filed in the circuit court.

On the 9th day of July, 1906, suit was commenced in the Wayne circuit court by summons, which was later personally served upon defendant Medbury, as appears by the return of the officer and proof of service filed February 28, 1907, as well as by his affidavit filed in answer to an affidavit by Medbury denying such service. On the 1st day of March, 1907, plaintiff filed its declaration, in substance as follows:

“For that, whereas, the said plaintiff heretofore, to wit: on July 10th, 1896, before John McKinley, Esq., a justice of the peace in and for the city of Detroit, said county and State (Simpson Docket No. 1,359) recovered a judgment against the said defendants for the sum of $371.29, which judgment was afterwards, to wit: on September 11th, 1896, removed from said justice’s courts of the city of Detroit, to the circuit court for Wayne county, Michigan, by transcript, which transcript appears as transcript No. 2,811 in the files and records of said circuit court for Wayne county, Michigan, and thereupon, to wit: on September 11th, 1896, by the consideration and judgment of said circuit court for Wayne county, Michigan, the said plaintiff recovered against the said defendants the sum of money above demanded, being the sum of $373.29 for damages and costs of said transcript, which sum of money, in and by the said circuit court, was then and there adjudged to the said plaintiff for its damages which it had sustained, as well as by reason of the nonperformance by said defendants of certain promises and undertakings then lately made by the said defendants to said plaintiff as for its costs and charges by it about its suit in that behalf expended, whereof said defendants were convicted, as by the record and proceeding thereof remaining in said court more fully appear, and which said judgment still remains in full force and effect, not reversed, satisfied or otherwise vacated, and the said plaintiff has not obtained any execution or satisfaction of or upon the said judgment so recovered, as aforesaid, whereby an action has accrued to said plaintiff to demand of and from the said defendants the sum of money above demanded.”

May 16, 1907, defendant’s default was entered, without reference to the clerk or otherwise, for an assessment of damages, and on October 2, 1907, judgment on default was entered for $667.21 and costs, as assessed upon a hearing for that purpose by the circuit judge.

October 24th, defendant Medbury moved to vacate the judgment and default rendered against him in said cause. This motion was heard October 28th and denied November 15, 1907. On October 28, 1907, the default order of May 16th was amended nunc pro tunc so as to provide for an assessment of damages by the court. On the 29th day of October, 1907, defendant Medbury filed a written request for findings of facts and law, and on December 9, 1907, the court made and filed such findings, resulting in a determination that plaintiff was entitled to an order overruling the defendant’s motion. On the same day, defendant Medbury filed proposed amendments “to the several findings of law,” which were refused, and thereupon he filed exceptions to the findings of law and the refusal to amend the findings of law.

All of these proceedings, including the testimony and proceedings before the circuit judge on the assessment of damages October 2d, counsel for defendant Medbury have incorporated in a bill of exceptions and bring the record here for review by writ of error upon 15 assignments of error and numerous subdivisions.

The only defense against the judgment of the justice’s court, apparently rendered on a promissory note, is the bar of the statute of limitations. Conceding the invalidity of the transcript proceedings, they left the justice’s judgment in full force, and if the declaration in this case may be treated as a declaration on that judgment, the judgment of the circuit court was supported by the declaration. We think it may be so treated. It contains sufficient allegations for such purpose, and the fact that it contains more than sufficient should not be permitted to defeat it at the instance of one who had full opportunity after personal service to present his objections in the regular way.

The circuit judge, having heard the case on assessment October 2d, after several months had elapsed, and no appearance having been entered or step of any kind taken by defendant, was justified in entering the order nunc pro tunc. Bogue v. Prentis, 47 Mich. 124; Steers v. Holmes, 79 Mich. 432.

The only record before us is the common-law record brought up by the writ of error. The defendant was not entitled to findings of fact or of law. Brown v. Haak, 48 Mich. 229; Stafford v. Crawford, 118 Mich. 285.

The judgment is affirmed.

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