text:
    O’CONNOR v. HOGAN.
    1. Waters and Watercourses — Surface Waters — Diversion-Obstruction.
    Where a landowner unlawfully diverts from their natural course and casts upon his neighbor surface waters in addition to those which naturally flow in that direction, the lower proprietor has a right to protect himself from such additional flow though in so doing he necessarily obstructs the waters which naturally flow upon his land and which it is his duty to receive.

    3. Same— Pleading — General Issue — Defenses Available.
    Where the declaration alleges that defendant obstructed either a natural water way or a water way gained by prescription or adverse user, it is competent for defendant to show, under the general issue, without special notice, that the water way which he obstructed was made by the unlawful act of plaintiff.
    3. Same — Damages—Evidence—Sufficiency.
    In an action for the unlawful obstruction of a water way, testimony of plaintiff that he told another that the water was doing a lot of damage to him, and more to defendant, because it ran over the latter’s lands more than-on plaintiff’s, sufficiently showed that the water was an injury to defendant.
    4. Evidence — Res Inter Alios.
    A settlement of a controversy between plaintiff and a township board arising out of a flowage of surface water, in which plaintiff agreed to permit the water to flow in the natural channel across his farm, thence across defendant’s, made in defendant’s absence, is not binding on defendant, and does not determine the natural channel of the water as between plaintiff and defendant.
    5. Witnesses — Impeachment—Competency op Evidence.
    On an issue as to the direction of the natural flow of surface waters, a witness, who had been highway commissioner, testified to a conversation between plaintiff and defendant in which defendant stated, without protest from plaintiff, that the water always went west. A few weeks after the alleged conversation a controversy between plaintiff and the township, arising out of the flowage of water, was settled in the witness’ presence by an agreement which recited that plaintiff would permit the surface water to flow in the natural channel east across defendant’s farm. Held, that the witness was not called upon at the time of the settlement to repeat the statement of what he had heard said in the conversation some weeks before, and the fact that he did not say anything, as evidenced by the terms of the settlement, was not an impeachment of his testimony to the conversation.
    6. Appeal — Cure op Errors — Exclusion op Testimony — Subsequent Admission.
    The exclusion of a question asked of a witness, held cured by permitting the excluded question to be put to other witnesses. .
    7. Trial — Instructions—Erroneous Hypothesis.
    A request to charge that the undisputed testimony showed' that certain waters flowed west, etc., was properly refused where there was evidence that a portion of the waters, at least, flowed east,

      8. Same — Inspection of Premises — Violation of Stipulations.
    The fact that plaintiffs attorney went to the premises in question in violation of a stipulation that the jury alone should visit and view the premises was not ground for new trial, where he did not go or come with the jury, nor see or converse with any of them, and it was not claimed that he had anything to do with the jury or influenced them in any way.
    Error to Ionia; Davis, J.
    Submitted May 2, 1905.
    (Docket No. 86.)
    Decided June 29, 1905.
    Case by James O’Connor against Patrick Hogan for the obstruction of a drain. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      John Nichol and George E. & M. A. Nichols, for appellant.

      A. A. Ellis, for appellee.

       For rights as to flow of surface water, see note to Gray v. McWilliams (Cal.), 31 L. R. A. 593.

   Blair, J.

Plaintiff sued defendant in an action on the case to recover damages for alleged unlawful acts of defendant in obstructing and interfering with the drainage of plaintiff’s lands. The declaration charges in the first count:

“ That for more than twenty years * * * water which has run from adjacent lands upon the said land of the said plaintiff, and water which has accumulated from storm and other natural causes, has been carried and drained therefrom through natural depressions or low land onto and through the southeast quarter of the southwest quarter of section fifteen, * * * and that from time immemorial, and for more than twenty years before the committing of the grievances hereinafter stated, the surface waters in times of freshet and at all times of high water flow, by reason of the natural depressions of the sur-' face of the soil, through and along a drain or low ground from the lands of this plaintiff onto and through the lands of said defendant, thereby securing to this plaintiff sufficient and proper drainage of surface water for his lands; and this plaintiff claims that by reason of the use of a passageway on said southeast quarter of the southwest quarter, and the use thereof for the purpose aforesaid for more than twenty years before-the committing of the grievances herein stated, he has a lawful easement and right of way across the said lands of the said defendant above described, for the purpose of draining the waters so accumulating upon the lands of the said plaintiff through and across the lands of the said defendant. * * *
“Nevertheless the said defendant, well knowing the premises, on, to wit, the 1st day of June, 1895, and at various other dates between that date and the commencement of this suit, at or near a point where said water naturally passed over and from the lands of this plaintiff onto and over the lands of the said defendant, the said defendant, by means of certain obstructions of sod and stones thrown, put, and laid along, by and in the place where said water was wont to flow in high-water times and in times of rain onto the lands of the said defendant from the lands of this plaintiff, created a dam or obstruction in said waterway, and wrongfully and unjustly obstructed the surface water from passing over said low lands through its natural water way in its ancient channel or course onto and over the lands of the said defendant, and thereby purposely caused said surface water to back up, lie, and remain on the lands of the plaintiff.”

The second count contains the following allegations:

“ And whereas from time immemorial there has been a natural depression across said above-described lands, creating a natural water way for surface waters, extending therefrom onto and over-the lands of the said defendant, known and described as the southeast quarter (£) of the southwest quarter (J) of section fifteen (15), town eight (8) north, of range five (5) west; that in times of freshet or high water, from time immemorial, the waters from the lands of this plaintiff have been wont to flow through said natural water way from the lands of this plaintiff onto the lands of said defendant, and thence on and across said lands into a swamp or low piece of ground, easterly over the lands of the said defendant; that, by reason of the situation of the lands of this plaintiff, divers large amounts of surface water flowed from adjacent lands situated south of the lands of this plaintiff from and across the lands of this plaintiff, and on and over the lands of the said defendant above described; that said above-described water way also formed a natural watershed for a large portion of the lands of this plaintiff above described, and by reason of said watershed the lands of this plaintiff were very valuable for agricultural purposes, and were used by this plaintiff for the raising of corn, wheat, and other valuable crops, and on, to wit, the 1st day of June, 1895, and for a long time prior thereto, the said defendant owned and occupied the lands above described, known as the southeast quarter of the southwest quarter of section fifteen, town eight north, range five west, and during all of the time aforesaid, by reason of the natural depressions of the surface of the soil, and a drain cut by the natural flow of the water, the surface waters on the lands of this plaintiff passed therefrom over and across the lands of the said defendant, thereby securing to this plaintiff a proper and sufficient drainage of the surface waters from his lands and such water as might accumulate thereon from adjacent lands, and this plaintiff claims that by reason of the use of a passageway on said southwest quarter, and the use thereof for the purpose aforesaid, for more than twenty years before the committing of the grievances hereinafter stated, he has a lawful easement and right of way across the said land.", of the said defendant above described, for the purpose of draining the waters so accumulating upon the lands of the said plaintiff, through and across the lands of the said defendant; * * * that by reason of the large amount of water that had accumulated from adjacent lands, and also by reason of the water that flowed upon the watershed of the lands of this plaintiff, and their commingling together on the lower portion of the lands, and their passage on and over the lands of the said defendant, a ditch had been cut by the flow’of the waters, which was lower than the surface of the adjacent lands, and through this run or ditch in times of high water or floods the water would pass off quickly, and do little or no injury to the lands of this plaintiff; that said above-described water way formed a natural watershed for a large • portion of the lands of this plaintiff, and that by reason of said watershed the lands of this plaintiff were very valuable for agricultural purposes, yet the said defendant, well knowing the premises, but maliciously, intending to deprive the plaintiff of the use and profit of his said lands, and deprive him of his easement in the lands of the said defendant, on, to wit, the 1st day of April, 1895, and on divers other dátes thereafter between that date and the commencement of this suit, obstructed and dammed the passageway for the said water over and through the lands of the said defendant, which said dam was constructed by the said defendant in divers ways, to wit, the said defendant plowed or back-furrowed along the said drain so formed across the lands of the said defendant, and thereby filled up and dammed the same, and, instead of a drain, caused the surface of the land where the water had been wont to flow to be higher than the adjacent lands, and on, to wit, the 1st day of June, 1895, and on divers days thereafter, on the line between the lands of this plaintiff and the said defendant, where said water was wont to flow, placed sod, stones, and other obstructions, and dammed the passage of the said waters by plowing parallel with the line fence and across the water way, and refused to remove the same, threatened personal violence to this plaintiff should this plaintiff in any manner attempt to enter upon the lands of the said defendant and remove the said obstructions, and the said defendant continuously since the time aforesaid, up to the time of the commencement of this suit, obstructed said ancient watercourse or water way, at the county aforesaid, in the manner aforesaid.”

Plaintiff is the owner of the southwest quarter of the southwest quarter of section 15 in the township of North Plains, Ionia county. Defendant is the owner of the southeast quarter of the southwest quarter of section 15. Plaintiff’s 40 acres lie directly west of defendant’s 40.

There is a highway running east and west on the south side of these lands, and to the south of this highway, or directly across the road to the south, are the lands of Matthew Behan. There is also a highway running north and south on the west side of the lands of plaintiff, and to the west of this highway are the lands of Thomas Cusick. There is a natural divide running north and south across the lands of the plaintiff, and the waters from rains and melting snows on the east of this divide have, without dispute, always flowed to the east onto and over the lands of the defendant. And the rains and melting snows accumulating on the west side of this divide have always flowed to the west and across the highway onto the lands of Thomas Cusick.

The lands of the plaintiff are also the watershed for 15 or 20 acres of the lands of Matthew Behan. The waters from rains and melting snows accumulate on the lands of Matthew Behan, and flow across the road to the north onto the lands of the plaintiff, some distance west of the line between defendant and plaintiff. These waters have formed a gully at or near the highway which runs to the north and west onto the lands of plaintiff for a distance of .15 or 20 rods, where said gully reaches a level or a flat tableland on the top of the divide.

It was the contention of the plaintiff that, when the water reached this tableland in a state of nature, it flowed to the east onto and over the lands of the defendant; and it was the contention of the defendant that, when the water reached this tableland in a state of nature, it always flowed to the west, and onto the lands of Cusick, and that none of it came onto his lands, except rains and melting snows that naturally fell on the east side of this divide.

It also appeared in evidence and was conceded that in 1889 a ditch was dug along the highway to the west from where the waters crossed the road from Behan’s land onto that of the plaintiff, and that a large portion of the water from the Behan land from the year 1889 until 1893 was carried west; that considerable of the water from the Behan land ran to the west for a period of four years; that in 1893 this ditch became filled up so that it threw the waters back onto the Behan land, and also was injuring the highway, and plaintiff was sued by the township. The case was finally compromised and settled between the plaintiff and the township, at which time, in 1893, he again opened the water way onto his own lands, and from that time on the water has flowed north through the old channel until it reached the divide on plaintiff’s land, and thence east onto and over the lands of the defendant.

It was claimed by the plaintiff on the trial that all this water, after leaving his land, and when it reached the lands of the defendant, formed a natural ditch or water way at or near the line fence between them, which ran to the east across the lands of the defendant, and that this waterway or ditch was 2 or 3 feet wide and 18 inches deep, and that defendant filled up this ditch or water way, and also placed, stone and sod at the line fence between them, which formed a bank or dam which cast the waters back onto the lands of the plaintiff, and injured his crops.

On the other hand, defendant claimed that there was never any ditch or water way across his lands, and never had been, and that he did not make any dam or embankment at the line fence to throw the waters back onto the lands of the plaintiff, and that the waters from the Behan lands never had flowed from the divide onto his lands until after the year 1893, and that in the year 1893, or some time during the time the water had been running to the west through the ditch along the highway, plaintiff had plowed back-furrows, or by some other artificial means had raised and formed a ridge west of the mouth of this ravine, on the divide so as to throw the waters east onto his land, and that, if he did make any dam or embankment, he had a right to do so.

The jury rendered a verdict in favor of the plaintiff for nominal damages, and the defendant brings the case to this court for review upon writ of error.

The assignments of error relied upon by counsel for appellant for a reversal are:

First. That the court erred in refusing to give defendant’s fourth and fifth requests to charge, and in his charge to the jury as to the subject-matter of such requests.

Second. That the court erred in permitting plaintiff to introduce in evidence a certain receipt attached to a justice’s judgment against plaintiff and in favor of the township of North Plains.

Third. That the court erred in refusing to allow a witness, after having stated his examination and investigation of the locality in question, to express his opinion as to the course of water in a state of nature.

Fourth. That the court erred in refusing to charge that the period from 1889 to.1893 should be deducted in computing the time of adverse user.

Fifth. That the court erred in refusing to grant the motion for a new trial.

1. Defendant’s fourth and fifth requests to charge were as follows, viz.:

Fourth. If you find that the natural watercourse for the water from Behan’s land, in a state of nature, was to the west, and not to the east, then I charge you that the plaintiff had no right by any artificial means to change the course of such water so as to throw it upon the lands of the defendant, unless he had acquired such right by user or prescription, as above set forth, and that if the plaintiff did flow upon the lands of the defendant waters from the Behan land which did not naturally flow upon defendant’s land, if you find such to be the case, without having acquired the right so to do by user or prescription, then the defendant would have the right to obstruct the flow of such waters, either by erecting dams or otherwise, even if in so doing it would obstruct the flow of waters upon his land that naturally flowed in that direction, and if in so doing the plaintiff’s crops were injured, and would by so doing not subject himself to any liability for damages to said plaintiff.

‘ Fifth. If you find that the natural watercourse for the waters from the Behan land was to the west across the plaintiff’s lands, and upon Cusick’s land, and that prior to 1889, when the ditch was constructed by plaintiff along the highway, such waters from the Behan land had always flowed across the lands of the plaintiff to the Cusick land, on the west, and that since that time said plaintiff had by artificial means changed the course of such Behan water, or a sufficient portion thereof to do damage, and flowed the same upon the lands of the defendant, then your verdict must be in favor of the defendant, of no cause of action.”

These requests were refused by the court, and he instructed the jury, as follows:

The plaintiff had the right, in the interest of good husbandry, and in the good-faith improvement and tillage of his farm, to fill up the sag holes so that no water would accumulate or stay on him, even if the water arising from rainfall or melting snow should thereby, in natural process, find its way in the natural watercourse upon the land of the defendant, and incidentally increase the flow thereon; but he cannot, by artificial drains or ditches, cast the water from sag holes, basins, and ponds on his own lands over upon the proprietor below, to his injury; that is, where the natural flow does not go in that direction.
“ If you believe from the evidence that the water from the plaintiff’s land did not naturally drain from his land by a flowing upon the land of the defendant, but that he, by drains and by artificial means did drain the water from his own lands, and caused it to flow in unnatural quantities upon defendant’s land, and that the defendant only stopped such unnatural flow by stopping the lower end of such ditches, or other means of drainage, to the extent of setting back this excess of water, then he is justified in so doing, and is not liable for such acts, provided you believe from the evidence that such drain had not existed before the acts complained of, and for this space of time that I have named — upwards of fifteen years.”

We think that the court should have given the defendant’s fourth request. While the charge of the court was technically correct, so far as concerned the right of the upper owner to fill up sag holes, etc., in the process of good husbandry (Gregory v. Bush, 64 Mich. 37), it was not applicable to the facts of this case, and might have had a tendency to mislead the jury. It was the primary claim of the plaintiff that a natural water way existed over defendant’s lands “since the world was made.” “ It was not a dug ditch. It was a washed ditch. What I mean is a ditch made by the water.” And he claimed that the waters from the south flowed through this natural water way or channel.

It was the primary claim of defendant, also, that there was a natural water way for the waters flowing from the south, but that it did not carry the waters easterly from the divide on plaintiff’s lands over his lands, but westerly from the divide over onto the lands of one Cusick. It was the secondary claim of plaintiff that even though the waters, in a state of nature, flowed to the westward, and he had by artificial means caused them to flow to the east, such flowage had been for a period of upwards of 15 years. It was the secondary contention of defendant that the waters had not flowed across him through the alleged water way continuously and uninterruptedly for a period of 15 years and upwards.

The request under consideration excludes from its operation the secondary claim of the parties, and is based solely upon their primary contentions. It asserts the legal proposition that one proprietor cannot divert a natural water way so that its waters shall be discharged upon his neighbor — a proposition which we regard as clearly correct, and which was probably so regarded by the learned trial judge. Doubtless the trial court refused the request for the reason that it stated the law to be that in case of such diversion of the water way the defendant would have the right to obstruct it, even if in so doing he “ would obstruct waters upon his land that naturally flowed in that direction” since it was the opinion of the court, as shown by his instructions to the jury in that regard, that the defendant’s right in such case would be limited to obstructing and preventing the flow of the excess waters.

We cannot agree with this view, as applied to the facts of this case. The main controversy in the case was over the course and disposition of the waters flowing from Behan’s lands upon the south after they reached the divide upon plaintiff’s lands. There was no dispute that the waters which fell upon plaintiff’s lands east of the divide flowed easterly somewhere upon the lands of defendant, and no complaint had ever been made of such flow-age. But defendant claimed, and the request proceeds upon that theory, that the plaintiff, by means of back-furrows or other artificial means, diverted all of the waters theretofore flowing from the south through a natural water way, and none of which had previously come upon his lands, and cast them all upon his lands. If the waters from the south were by the wrongful act of the plaintiff mingled with the waters from the east, he is not in a position to complain because the defendant, in protecting himself against the water unlawfully cast upon him, necessarily obstructed waters which otherwise it was his duty to receive. Manifestly the defendant could not distinguish between and separate the waters from the south and east, and dam only against the waters from the south, unless he went upon the lands of plaintiff at the risk of resistance and breach of the' peace, which, in our opinion, no legal duty required of him.

In Leidlein v. Meyer, 95 Mich. 586, after calling attention to the fact that “there is no evidence that plaintiff turned upon the defendant’s land any more than the natural flow of water,” the court said:

“We need not refer to the decisions of other courts, where there is great conflict of authority as to the rights of the flowage of water from the upper estate over the lower. It is the settled law of this State that the natural flowage of water from the upper estate is a natural servitude which the owner of the lower estate must bear. Boyd v. Conklin, 54 Mich. 583. In that case Mr. Justice Campbell ably and exhaustively discussed both the principle and the authorities, and arrived at the conclusion that ‘ the adjoining owners owe mutual duties — the one to receive the natural flow, and the other not to injuriously change its conditions.’ The facts in that case are similar to those in the present case. We are in entire accord with the rule there laid down, which seems to us to be founded in good sense and reason. * * * There is nothing to indicate that the plaintiff has increased the natural flowage of water, or has in any manner changed its condition to the detriment of the defendant.”

In Horton v. Sullivan, 97 Mich. 282, it is said:

“ The circuit judge carefully guarded the defendant’s rights in the admission of evidence and in his instructions to the jury. He very clearly instructed the jury that plaintiff had no right to construct and maintain open ditches and ■drains which would collect the water from his premises, ponds, sag holes, or pools, and cast it in unusual quantities upon defendant’s land, and, if they should find he had done so, that he could not recover.”

In Finkbinder v. Ernst, 126 Mich. 565, the court say:

“ There was some testimony given that Hotrum, in plowing and cultivating his fields, left an embankment or furrow which caused the waters to be turned from and across plaintiff’s lands, and turned them in the direction of defendant’s. The court charged the jury upon that subject, as follows:
“ ‘If you find from the evidence that in process of time those water channels were changed; that, by reason of the natural and ordinary husbandry and tillage of the lands, the surface waters had changed their course, and that, where this dam is erected, the waters from the lands of the plaintiff naturally flowed over and spread upon the lower lands of the defendant; and that this flow-age is not due to any other artificial means than ordinary husbandry and to natural causes — then the defendant would have no right to obstruct the flowage of those waters, even though the flowage had existed only for a few years.’
“We think this was error. The claim made by the defendant was that all these waters had from time immemorial flowed across the lands of the plaintiff; that none of them flowed across defendant’s land until Hotrum had, by cultivation, made an embankment which prevented the waters from flowing across plaintiff’s land, and precipitated them upon defendant’s lands; and that, in view of that, he had a right to erect his dam to keep the waters from flooding his land. We know of no rule that would allow one to gather even surface water into one channel, and precipitate it even upon lower lands, to the damage of those lands.”

In the case of Highway Com’r of Tittabawassee Township v. Sperling, 120 Mich. 493, the rights and duties of the parties were fixed -by statute. In Cranson v. Snyder, 137 Mich. 340, complainant had three tile drains extending from his land into that of defendant. Up to 1895 two of these drains were constructed with three-inch tile. In 1895 complainant replaced the one with four-inch tile, and in 1896 he replaced the other with six-inch tile. In 1902 defendant closed up the mouths of all three of the drains, and the complainant filed his bill tó restrain the maintenance of the obstruction. The circuit judge dismissed the bill as to the two drains relaid with larger tile, saying:

“ It follows, therefore, that, as to drains Nos. 2 and 3, the claims of the complainant cannot be sustained; that in removing the old tile, of three inches in size, and substituting or placing thereon a four and a six. inch tile, he exceeded his own rights; and, if the defendant embanked upon his own land against this increased flowage, he did that of which the complainant cannot complain until the rights of the parties are placed in statu quo.” '

The decree was affirmed in this court, and Mr. Justice Grant, delivering the opinion of the court, said:

“Manifestly a four-inch and a six-inch tile will carry more water and carry it more rapidly than a round or horseshoe three-inch tile. It is conceded that the purpose of putting in the larger tile was to carry the water off more rapidly, and that it accomplishes the purpose. We think it is clear, from the cases'above cited, that the owner of a dominant estate has not the right to collect the water upon his land by means of drains or ditches, and empty it in a body upon the servient estate. Complainant, therefore, in doing this, exceeded his right acquired by prescription, and his right to drainage in the usual course of good husbandry.”

The rule as between adjoining owners, under our decisions, is one of mutual rights and duties. It protects alike the servient and the dominant tenements. The holder of the dominant estate cannot violate the rule in a substantial degree in so far as it protects the holder of the servient estate, and then invoke its aid in so far as it protects him.

But it is contended by counsel for plaintiff that such a defense was not open to the defendant, because not within the pleadings, and, if it was, no damages were shown from the excess of waters. We think the defense was competent under the general issue, without special notice. The plaintiff claimed that defendant obstructed either a natural water way, or a water way gained by prescription or adverse user. It was certainly competent to show, under the general issue, that the defendant did not obstruct such a water way, but only obstructed a water way caused by the unlawful act of the plaintiff. If it was necessary to prove that the excess of water was an injury to defendant, such damage was abundantly shown by the testimony of the plaintiff himself, who testified as to a conversation with Behan about removing the dam which had diverted these waters to the west: “I told him he was doing a lot of damage to me, and more to Patrick Hogan, because it ran over through his lands more than on mine.”

2. One Byron Brayton, a witness for defendant, who was highway commissioner, testified that in April, 1893, he heard the following conversation between O’Connor and Hogan:

“ At the time O’Connor and Hogan were there, and Hogan would not help clean it out, O’Connor stated that, if the water was turned onto him, he would turn it onto Hogan. Hogan said, ‘ Don’t you know the water always went west ?’ and O’Connor said it didn’t make any difference if it always did — ‘ If you turn it onto me, I will turn it onto you.’ ”

On cross-examination the following occurred:

“I think Mr. Hogan was pathmaster the time we were having this controversy about the ditch along the highway. I went there in the interest of Mr. Behan, because it was backing the water onto his land. There was no complaint that it hurt the highway. Hogan nor O’Con-nor were not there at the time I opened the dam along the highway. There was no water there at the time. It was dry. I think the complaint was made in the name of the supervisor against Mr. O’Connor. I didn’t sue it out. I came down to see Mr. Hawley, prosecuting attorney, about it. I didn’t attend the case. I was there at the time the case was settled. The supervisor was there attending at the time I was there. I was there at the trial, and was there at the time they settled it.
Q. Now, witness, how much did they settle for ?
“A. The township got a judgment against him for $25.
Q. What did they settle for ? Wasn’t there an agreement drawn up there in your presence ?
Mr. Hawley: I object to this testimony as immaterial as bearing upon the question at issue in this case.
“Mr. Ellis: I want to show that there was a settlement under his own evidence, as bearing upon the question of whether Mr. O’Connor told Mr. Hogan in his presence there that, if he took that out, that it didn’t make any difference which way it run — he was going to make it run east and over him; that there was an agreement made there, and read over in his presence, that the water should run east over the natural course, and run over across Mr. Hogan. The question gives it bearing upon his credibility, and as to whether or not there was any such talk as he says.
‘ ‘ The Court: I think, upon the question of credibility, it may be received for that purpose. If Mr. Hogan did not take part in it, it could not be considered binding upon him.
“Mr. Hawley: An exception.
Q. Wasn’t this agreement read over in your presence, as follows ?
“ ‘This judgment is this day satisfied by James O’Connor paying the costs of this suit and ten dollars damages to the Township of North Plains, he agreeing to keep a certain ditch on the south side of section fifteen open as it now is, allowing surface water to flow in the natural channel, nearly north, thence nearly east across Patrick Hogan’s farm.
his
[Signed] “ ‘James X. O’Connor.
mark.
“ ‘ Jas. F. Dalzell.’
“A. No, sir.
“ Q. You heard the settlement ?
“A Yes, sir.
“ Q. You knew how much was paid ?
“A. Yes, sir.
“ Q. Didn’t you hear the agreement that it was to be kept open, and that the water be allowed to run over Mr. Hogan’s land ?
“A. That was all the suit was brought for — was to open this under the fence.
Q. Wasn’t Mr. Cusick a member of the board ?
“ A. Yes, sir; and he owns the farm right west of it.”

Mr. Cusick was also asked about this same matter, and Mr. Sessions, the supervisor; and after defendant rested, plaintiff and a member of the board testified that the receipt was read over in the presence of Brayton, and that he must have understood it. At the close of the case by plaintiff, the following occurred:

“To further maintain the issue, the plaintiff offered in evidence memorandum of agreement made between the township board and James O’Connor, stating that heoffered it as bearing upon the credibility of Cusicb’s and Brayton’s evidence, tending to show that Brayton claimed that he did not know where the water flowed at that time, and his story — what he claimed was said in his presence by O’Connor and Hogan as to what he would do about the water — was not true. Also offered in evidence the judgment simply to fix the date as to the transaction. The court said that the papers were not admissible as binding Patrick Hogan in any manner, but thought that the paper might be received as bearing upon the credibility of witness Brayton, to which ruling the attorney for the defendant excepted. Thereupon the paper was read in evidence.”

It is manifest that the contents of this receipt could not but be extremely prejudicial to the defendant, as conveying to the jury the judgment of the township board that the natural water way was easterly over- the lands of defendant. While this alone would not afford sufficient ground for rejecting the offer, it justified careful scrutiny and great caution. The town board had nothing to do with determining the natural channel in this case, as between Hogan and O’Connor. Hogan was not present, and his rights could not be affected by anything the board and O’Connor agreed upon. We do not think that the circumstances required a statement from Brayton of what he had heard O’Connor say someweeks before, and therefore that his silence was not an impeachment of the truth >of his narration.

3. If error was committed by overruling the question to the witness Beebe, it was afterwards cured by permitting fhe same question to be put to several other witnesses; and, if defendant desired Beebe’s testimony on this point, .he should have recalled him.

4. Defendant’s sixth request to charge was as follows:

■“Sixth. The undisputed testimony in this cause shows that from the spring of 1889 to and until the spring of 1893 the Behan waters flowed west in a ditch constructed by the plaintiff in the spring of 1889, along the highway, and from thence was cast upon Cusick’s lands to the west; and I charge you that this period of time must be deducted from the fifteen years required to gain a prescriptive right, and constituted an interruption of the statute of limitations, and, unless you find that the requisite period of fifteen years had already run prior to the digging of this drain along the highway in 1889, then the plaintiff had never acquired any prescriptive right to have the Behan water flow upon defendant’s lands.”

The court did not err in refusing this request, for the reason that the testimony was not undisputed as to the facts stated in it. The request implies that all of the Behan waters flowed west through the ditch along the highway from the spring of 1889 to the spring of 1893. There was evidence that a portion of these waters, at least, during the period mentioned, flowed in what plaintiff claimed was the natural water way onto defendant’s lands.

5. A motion for a new trial was made, stating several grounds. The only ground relied upon here is that Mr. Ellis, the attorney for plaintiff, went to the premises in question a short time in advance of the jury, in violation of a stipulation that the jury alone should visit and view the premises. After the view by the jury, Mr. Ellis was sworn as a witness, and the following occurred:

“He further testified on cross-examination that he was on the premises the day that the jury were there at the last trial, but did not go nor come with the jury, nor see them, nor converse with any of them while they were on the premises, and was not where they saw him; that he had no talk with the jury, one way nor the other, and, so far as he knew, none of them knew he was there or had been there; and thereupon the court said, ‘ Is it claimed that Mr. Ellis interfered in any manner with the jury, or that they saw him or had anything to do with him ?’ And the attorney for the defendant answered, ‘No; nobody claims that he had anything to do with the jury, or influenced them in any way.’”

There is no merit in this point, and we pass it without further discussion.

For the errors above pointed out, the judgment is reversed, and a new trial granted.

Moore, O. J., and Carpenter, McAlvay, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    FORNIA v. WAYNE CIRCUIT JUDGE.
    1. Statutes — Title—Expression op Objeot.
    Anything included in a statute which is not germane to the general purpose as expressed in its title will bring the statute within the prohibition of article 4, § 20, of the Constitution.
    2. Same.
    The title of Act No. 81, Pub. Acts 1903, viz.: “An act to regulate the method of procedure and the practice of the law in the circuit court for the county of Wayne,” is broad enough to cover the drawing of juries upon the trial of causes in said court, and is not, because it provides for the drawing of juries, repugnant to article 4, § 20, of the Constitution.
    3. Courts — Terms—Drawing op Jurors — Constitutional Law.
    Act No. 31, Pub. Acts 1903, § 3, regulating practice in the circuit court for the county of Wayne, and providing in section 3 for the drawing of a fresh panel of jurors once in each calendar month, neither abolishes the terms of court, nor provides for twelve terms, nor for one continuous term, in such manner as to render the act repugnant to article 6, § 11, of the Constitution, which requires that four terms of the circuit court shall be held annually in counties of 10,000 inhabitants.
    4. Statutes — Amendments—Repeals—Yalidity.
    Act No. 31, Pub. Acts 1903, substituting the county clerk for the Wayne county jury commissioners in drawing juries for that county, and not otherwise changing the procedure, and not assuming in terms to revise, alter or amend any prior act or section of an act, but by various transfers of duties, having an amendatory effect by implication, does not conflict with the provision of the Constitution requiring acts amended or revised to be republished at length, though it contains a clause which repeals all inconsistent acts.
    5. Jury — Drawing—Improper Ofpioer.
    Under section 3 of Act No. 31, Pub. Acts 1903, requiring the county clerk of Wayne county to draw the jury in that county, a jury drawn by a member of the board of jury commissioners is. illegal and is subject to challenge, though drawn in the presence of the clerk.
    Mandamus by Susie M. Forma to compel Robert E. Frazer, circuit judge of Wayne county, to set aside an order sustaining a challenge to the array of a certain jury.
    Submitted June 2, 1905.
    (Calendar No. 21,149.)
    Writ denied June 29, 1905.

      James Swan, for relator.

      J. Walter Dohany (Timothy E. Tarsney, of counsel), for respondent.
   McAlvay, J.

This is an application for a mandamus against one of the Wayne circuit judges, requiring him to proceed with the trial of a certain cause pending in said court before a jury, wherein relator is plaintiff and the city of Detroit is defendant. After the jury in said case was duly impaneled and sworn, defendant filed a challenge to the array for the following reasons:

“ 1. The act under which said jurors have been drawn and taken their seats for the trial of this cause is Act No. 31 of the Public Acts of 1903, which act is void because it violates article 4, § 20, of the Constitution of the State of Michigan.
“2. The twelve jurors who have been drawn and who have taken their seats in the jury box for the trial of this cause were not drawn as is described by section 3 of Act No. 31 of the Public Acts of 1903.”

The circuit judge held the challenge well taken upon both points raised, and declined to proceed further with the trial of the case. All proceedings were held in abeyance pending an application and hearing in this court to review such action.

Article 4, § 20, of the Constitution, provides, “No law shall embrace more than one object which shall be expressed in its title. * * * ” It is well settled that anything included in a statute which is not germane to the general purpose as expressed in its title will bring such a statute within the prohibition of the Constitution. The purposes of this constitutional provision are familiar to the profession, and need not be discussed. The title of Act No. 31 of the Public Acts of 1903 is as follows:

“An act to regulate the method of procedure and the practice of the law in the circuit court for the county of Wayne.”

It is claimed that it is not broad enough to cover the drawing of juries upon the trial of causes in said court; that this would not be included within the fair and reasonable meaning of the words of the entitling, “ to regulate the method of procedure and the practice of the law.” The words used are broad enough to include every act and proceeding usual and necessary in the procedure and practice of the law in the circuit court for Wayne county, and this to us would seem to have been the clear intent of .the legislature. It is true that this act does not cover the entire field of such procedure and practice, and treats only of the making up of the docket of cases for trial and the drawing of juries. The drawing of juries is a part of the procedure and practice of the law in the courts, and to provide how and when juries are to be drawn is within the entitling of the act in question.

It is urged by respondent that the act in question is in conflict with the Constitution (article 6, § 11), in that it abolishes the terms of court of Wayne county, and operates either to provide for twelve terms or for one continuous term of court each year. We do not so construe the act. The terms of court are not referred to directly or by implication. The drawing of a new panel of jurors each month as provided by this act cannot be considered as abolishing or changing the regular terms of court.

Section 5 of the act reads, All acts and parts of acts inconsistent herewith are hereby repealed.” Before this law was enacted the jury commissioners of Wayne county, under the provisions of Act No. 204 of the Public Acts of 1893, made out the jury lists and drew the juries for the circuit courts. The law of 1903 under discussion provides (section 3):

“ The county clerk shall, under the direction of the circuit judges of said circuit court, in the manner authorized by law, once in each calendar month, draw a fresh panel of citizens’ qualified for jury duty to sit and act as jurors in said court.”
‘ ‘ The manner authorized by law ” refers to the law in force in Wayne county as provided by Act No. 204 of the Public Acts of 1893, under which the jury commissioners performed the act of drawing juries. By the act of 1903 the clerk is designated as the officer to perform this duty. This act in no other way changed the duties of the jury commissioners. The clerk is substituted in the place of the commissioners. Under the direction of the circuit judges, he each month makes the drawing. This must be done in the presence of the presiding judge and sheriff, and all the provisions of the law as to the details of the proceeding must be followed strictly. This act .does not assume, in terms, to revise, alter, or amend any prior act or section of an act, but, by various transfers of duties, has an amendatory effect by implication, and, although it expressly repeals all acts and parts of acts inconsistent therewith, does not conflict with any provision of the Constitution. People v. Mahaney, 13 Mich. 496. The circuit judge was in error in holding the first ground of challenge to the array good.

The second ground of challenge charges that this jury was not drawn by the clerk as provided by this act of 1903, but that , the names were drawn from the box by some member of the board of jury commissioners. The record shows this to be true, but it is claimed to be a mere informality, and that, if performed in the presence of the clerk, it is a substantial compliance with the statute. The statute leaves no discretion as to the officer who shall perform the act of drawing the jury. The clerk and no other officer, must draw the names from the box. This court, in People v. Labadie, 66 Mich. 702, where the sheriff, and not the clerk, drew, the names from the box, said:

“The statutes which establish the rule for the drawing of jurors leave no discretion in the officers designated to conduct such drawing, but plainly indicate how the proceedings shall be conducted. * * *
“The law has so apportioned the duties of the several officers who are to serve in securing the jury provided by the Constitution to try the respondent that the clerk must take the names from the box, and no other officer or court can legally disregard this plain provision of the statute.”

_ind also citing and approving Gott v. Brigham, 45 Mich. 424:

“ The law has apportioned the duties with extreme care. The list and box are under the sworn custody of the clerk. His oath of office applies to the duty of drawing, and the oath of tho others applies to the duties assigned to them. If they exchange duties, their respective oaths do not accompany the exchange.”

Upon this ground the ruling and decision of the circuit judge in holding the challenge to the array good was correct. The writ of mandamus is therefore denied, without costs.

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


author: Blair, J.

text:
    CHATFIELD v. LENAWEE CIRCUIT JUDGE.
    1. Mandamus — Injunction—Compelling Dissolution.
    Mandamus will not issue to compel a circuit judge to dissolve a temporary injunction for want of equity on the face of the bill, where, after hearing, he has denied a motion to dissolve on the same ground.
    2. Same — Irreparable Injury.
    Mandamus will not issue to compel the dissolution of a temporary injunction on the ground of irreparable injury where the applicant procured a postponement of the injunction suit after it had been set down by stipulation for an early hearing.
    Mandamus by Willis Chatfield, drain commissioner of Lenawee county, to compel Guy M. Chester, circuit judge of Lenawee county, to dissolve a temporary injunction.
    Submitted June 6, 1905.
    (Calendar No. 21,134.)
    Writ denied June 29, 1905.

      Theodore M. Joslyn, for relator.

      B. L. Hart and Bird & Sampson, for respondent.
   Blair, J.

Relator, who is county drain commissioner of Lenawee county, asks that a writ of mandamus may be issued out of this court, directed to the circuit judge of the county of Lenawee, requiring him to dissolve a temporary injunction issued in the case of Ira Starkweather and others, as complainants, against the said Chatfield, as defendant.

The complainants filed their bill of complaint in the circuit court for Lenawee county, in chancery, on the 24th day of September, 1904, and secured a temporary injunction restraining the defendant, as county drain commissioner, from proceeding with the construction of the Silver Creek drain, so called, in the township of Seneca, in said county. The bill prayed for a permanent injunction, and proceeded upon the grounds that the petition under which the drain commissioner was acting was void and of no legal force for the reasons, first, because said petition was not signed by ten freeholders of the township of Seneca; second, because the petition was not signed by five freeholders of the township whose lands would be liable to assessment for benefits in the construction of said drain.

On the 26th day of April, 1905, the defendant made a motion to dissolve the temporary injunction, which motion was heard on the 8th day of May, 1905, and the court refused to dissolve the injunction. After making the motion to dissolve, and on'the 1st day of May, 1905, the defendant filed his answer, denying all of the material allegations of the bill of complaint. After the order of the court overruling his motion to dissolve, relator petitioned this court for an order to show cause, directed to the said circuit judge, why writ of mandamus should not issue, requiring him to dissolve said temporary injunction, which order was issued by this court, and to which the circuit judge makes return, among other things, that:

“ On the 8th day of May, 1905, the motion to dissolve said injunction came on to be heard before me, and, after hearing the motion read and the arguments of counsel, I denied said motion; it appearing to me that there was equity in said bill, as shown upon the face of it.”

Defendant’s motion to dissolve the temporary injunction set up the following grounds:

“First. There is no equity on the face of said bill.
Second. All material allegations of said bill are denied by an answer of the defendant and affidavits filed therewith.
Third. That, although some of the signers of the petition referred to in said bill of complaint were in possession of the property liable for an assessment for benefits in the construction of said drain by reason of a contract for the purchase thereof, although they do not appear on record as owners of the fee, yet they were still freeholders, within the meaning of the statute provided for the construction of public drains.”

The affidavits filed in support of said motion were made by defendant and one Clifford Lord, and set forth:

“ That the region traversed by said drain is low, damp, and unhealthy, and is in its present condition a menace to the health of the residents of the townships residing in that section; that the highway, or a portion thereof, about forty rods in length, is absolutely impassable for loads, and is very difficult to cross in any kind of a vehicle in a very wet time; that the contracts for the construction of the drain amount to about six thousand dollars, and that the contractors are men who are engaged in the sole business of constructing drains, and suffer great financial loss by being delayed by said injunction; that it is very important that the contractors ascertain as soon as possible whether said drain is to be constructed this season; that the delay in construction would be great damage and cause great injury to the territory drained by said Silver Creek drain; that the lands lying along said drain are in many cases valueless, and labor bestowed on said land is useless, on account of the lack of proper drains.”

It is also set forth in the petition to this court that the drain is a large one, which would require several months for construction, and that, unless the injunction is dissolved, it will be impossible to build the same during the season of 1905; that the circuit court calendar for the county of Lenawee is congested, and that it has been impossible to reach said cause, so as to secure a hearing thereon, up until the present time, and that it will be impossible to reach said cause upon the calendar during the present year of 1905, and, if the drain is not constructed during the season of 1905, it will be impossible to construct it during the year' 1906. It is also alleged in the petition that one of the owners of land along said drain, who has 80 acres of land crossed by the drain, will be forced to lose his property, on which he has expended great efforts and expense in clearing and breaking up the land, but which by reason of said lack of drainage is yearly a source of loss to him.

The respondent also returns, at the request of complainant’s counsel, the affidavits of Ira Starkweather, one of the complainants, and Mr. John E. Bird, his counsel in the chancery case, which were filed on the 29th day of May, 1905, and are entitled in the present matter in this court. The affidavit of Mr. Bird alleges that his clients were desirous of a speedy settlement of the questions involved in said chancery cause, and stipulated with the relator and his counsel to place the cause on the calendar for the October, 1904, term of court; “that afterward the said relator came to this deponent and asked him to permit said cause to pass to the next term of said court, as he had another drain proceeding on which the tax was payable in November, to which the same objections might be made as in this case, and he did not want these questions raised in court until after the time for paying the other tax had passed, for fear that the other parties might object to paying the tax upon the same ground;” that the case was again stipulated upon the calendar for the January, 1905, term of said court; that no answer was filed in said cause until after the motion to dissolve the injunction, and that said cause was not at issue until the 10th day of May, 1905, when complainants filed their replication; “that, had relator desired a speedy adjustment of said cause, he could have obtained it, because this deponent and his clients have been ready at all times to have the matter submitted to the court as soon as the answer was filed therein.” The affidavit of Starkweather alleges that Loudenslager, the person referred to in the petition as the owner of 80 acres, who would lose his farm unless the drain w;as put through, has suffered no more proportionately in the last two years on account of said land being wet than farmers have generally, and that, if he has suffered to any great extent by reason of water, “it has been due to his own fault, in failing to keep the ditch which he already has properly cleaned out, but, on the other hand, he has permitted the drain which would give .him relief to become filled up on his own land, so that it does not reasonably serve tbe purpose for which it was originally constructed.”

It is the contention of the relator that, inasmuch as the bill of complaint filed simply alleges matters that, if true, would destroy the jurisdiction of the drain commissioner, and there being no other question raised, the proper proceedings would have been certiorari; that the bill fails to show any equity on the face of it; and that therefore the circuit judge had no jurisdiction to issue the injunction, and it should have been dissolved upon application. It is also contended that if this injunction is not dissolved the case cannot be heard upon its merits for something like a year, and that then the drain could not be constructed, so as to be of any value, until 1907, and that this would be a great injury to the landowners, as well as the contractors who took said contracts, and had a right to rely upon the proceedings ; no appeal or proceedings in certiorari having been taken to attack the same.

Respondent contends that the claim of pressing necessity for the relief asked is met by the fact set forth, showing that Loudenslager’s injuries are due to his own negligence, and that the failure to bring the cause to a hearing was due to the default of relator or his counsel.

It was said by this court in Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 271:

It is a general rule that the writ will not lie where tbe law has provided another remedy. It is said a writ of mandamus issues because there is no other adequate remedy, and justice and good government require a redress of the wrong. A court will not be required by this writ to take any action when another remedy is provided. It will not take the place of an appeal or writ of error. Merrill, Mand. §§ 201, 209. To this rule an exception is made if the slowness of ordinary legal forms is likely to produce such immediate injury or mischief as ought to be prevented. Merrill on Mandamus, § 198; People v. Cass Circuit Judge, 39 Mich. 410; Talbot Paving Co. v. Detroit Common Council, 91 Mich. 262. The writ will be entertained when the court has refused to retain jurisdiction, supposing it had no jurisdiction when it had jurisdiction in fact., because, if tbe writ was not entertained under such circumstances, the party would be without remedy. On the contrary, if the court claims jurisdiction in a case where it is not entitled to exercise it, such action of the court can be reviewed by appeal or writ of error. In such a case the writ of mandamus ought not to issue. Applying these general principles to the case now here, we do not regard it as a case where the writ should issue. If the court is wrong in asserting jurisdiction, the aggrieved party has a remedy by writ of error.”

And in the case of Roberts v. Lenawee Circuit Judge, ante, 115, we said:

“The motion is, in effect, a motion to dismiss for want of jurisdiction. The trial judge, in overruling the matter, held he had jurisdiction. Under these circumstances, the order of the court cannot be reviewed by mandamus. Stevens v. Harris, 99 Mich. 233; Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 113 Mich. 270; Steel v. Clinton Circuit Judge, 133 Mich. 698.”.

Under these decisions, we think that the application must be denied; it appearing to us that the relator’s default in filing his answer, and thereby delaying the hearing of the cause, puts him outside of the exception referred to in Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270.

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


text:
    HARLEY v. IONIA CIRCUIT JUDGE.
    Bastardy — Nature oe Proceedings — Civil or Criminal — Private Counsel.
    Bastardy proceedings are not strictly criminal, and the guardian of an infant complainant may properly employ counsel to represent her interests notwithstanding the provisions of the statutes (§§ 2556, 2561, 2569, 1 Comp. Laws) prescribing the qualifications and duties of prosecuting attorneys.
    Mandamus by Maude Harley, guardian of Jeanette A. Brown, a minor, and Frank M. Burbank, prosecuting attorney of Ionia county, to compel Frank I). M. Davis, circuit judge of Ionia county, to set aside an order denying the right of the complaining witness to employ an attorney in the prosecution of bastardy proceedings.
    Submitted June 6, 1905.
    (Calendar No. 21,144.)
    Writ granted June 29, 1905.

      A. A. Ellis, for relators.

      Scully & Davis, for respondent.
   McAlvay, J.

This is an application for a writ of mandamus against Ionia circuit judge. Jeanette A. Brown, an unmarried woman, and a minor of the age of 17 years, began proceedings under the bastardy statute against one Myron Hannah, charging him with being the father of her unborn child. He was arrested, and, after a hearing and a finding duly made supporting the charge, was required to and did give a bond to appear for trial before the circuit court for’Ionia county. Afterwards the child was born and is now living. Maude Harley, the guardian of Jeanette A. Brown, with the consent of the prosecuting attorney, employed A. A. Ellis, an attorney, to appear for and represent said minor in said bastardy proceedings. The case came on to be heard in the circuit court. The prosecuting attorney appeared in behalf of the people, and A. A. Ellis also appeared with the consent of the prosecutor, representing the complainant. The attorneys for defendant objected to such appearance on the part of Attorney Ellis for the reason that the prosecuting attorney, not being disqualified, was by virtue of his office the only person who could appear in the prosecution of this case, and because it appeared that A. A. Ellis, who proposed to assist in the trial of said case, representing the interests of Jeanette A. Brown, was employed by others than the county of Ionia to act in such capacity, and such private employment disqualified him to act as assistant prosecuting attorney. The court sustained the objection, and'an order was entered “that said A. A. Ellis be not allowed to aid in the prosecution of this cause, he being employed by said guardian.”

A peremptory writ of mandamus is prayed for to vacate said order, and to allow said Ellis to .take part in said prosecution. The contention on the part of the respondent here is that this case comes within the rule applicable to criminal causes prohibiting and disqualifying attorneys employed by private parties from taking part in their prosecution; that it is a case criminal in its character, and to be conducted by the representative of the people, and, not being a felony, no assistant prosecutor could be allowed. It is admitted on .the record that Attorney Ellis is employed by complainant’s guardian to represent her interests; and claimed that defendant is not charged with a misdemeanor or felony, and that the proceeding begun by said Jeanette A. Brown is not a criminal cause within the statute invoked by defendant, but a civil proceeding, wherein she is entitled to be represented by her own attorney employed in her own behalf.

It is provided by statute:

“ Prosecuting attorneys shall in their respective counties appear for the State or county and prosecute or defend in all the courts of the county, all prosecutions, suits, applications and motions whether civil or criminal in which the State or county may be a party or interested.” 1 Comp. Laws, § £556.

A prosecuting attorney cannot receive fees from private individuals, nor be permitted to prosecute any criminal case, where he is interested in a civil case growing out of the same state of facts. 1 Comp. Laws, § £561. He is allowed an assistant only in cases of felony, and such assistant must have the same qualifications as a prosecuting attorney. 1 Comp. Laws, § £569. If this bastardy proceeding is a criminal prosecution within the meaning of these statutes, the attorney employed by the guardian is clearly disqualified to act on behalf of the complainant, and, the prosecuting attorney admittedly being qualified to act, and the defendant not being charged with a felony, no assistant could be appointed.

The nature and character of the proceedings under the bastardy act have been frequently defined by this court. In the case of Semon v. People, 42 Mich. 141, this court said:

‘ ‘ The proceedings are not criminal in the proper sense, but special and peculiar. The rule of establishing misconduct beyond a reasonable doubt does not apply. The judgment, if it can properly be called a judgment, involves none but civil consequences.”
“In this State bastardy proceedings are not regarded as criminal, or as dealing with a crime or misdemeanor.” People v. Harty, 49 Mich. 490.

They are not criminal proceedings in the proper sense of the term. Cannon’s Case, 47 Mich. 485. They are quasi criminal so far as they aim to protect the public. Semon v. People, 42 Mich. 141. No judgment known to the common law follows the verdict. Cross v. People, 8 Mich. 113. In the case of Sutfin v. People, 43 Mich. 37, the court said of these proceedings that they are partly for the benefit of the complainant, and may be instituted in her name, and partly for the purpose of indemnifying the public, and may be instituted in the name of the people. The many decisions of this court clearly recognize that these are not strictly criminal proceedings. The rules of evidence applying to criminal cases as to the proof required to find against the defendant are not applied. This case was the complainant’s case. She was th6 proper party to bring it. The interest of the public is not the only interest involved. The statute wisely provides against the contingency of such a child becoming a public charge, but it recognizes that the complainant is interested, and must also be protected. To properly protect •the interests of a minor under such circumstances by the employment of counsel would appear not only to be a right but the duty, of a parent or guardian. The prosecuting .attorney representing the people and the attorney representing the complainant do not represent conflicting interests; nor is the complainant’s attorney in any sense an .assistant prosecutor.

The writ of mandamus is granted, setting aside the order of the circuit court and allowing complainant’s attorney to take part in the trial of the case representing her interests.

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


author: Moore, C. J.

text:
    HARDING v. AUDITOR GENERAL.
    1. Taxation — Sales—Deeds—Misdescription—Correction.
    Where- the record of a tax sale shows a valid sale of an undivided four-twelfths interest in a tract of land, an error in the deed issued to the purchaser in describing the tract conveyed as an undivided four-twelfths of an undivided eleven-twelfths does not vitiate the sale, but the deed may and should be corrected by the auditor general.
    3. Same — Duty of Purchaser — Payment of Taxes — Invalidity of Sale — Recovery.
    It being the duty of a purchaser at a tax sale to pay the unpaid taxes for prior years and taxes subsequently levied on the property, the fact that the sales for certain of the years covered by a purchaser’s deed are invalid does not entitle him to a return of the amounts paid for those years where the sale for .one year was valid.
    Mandamus by Vine Harding and others to compel James B. Bradley, auditor general, to refund the purchase money on void tax sales.
    Submitted June 6, 1905.
    (Calendar No. 21,067.)
    Writ denied June 29, 1905.

      Wilkes & Stone, for relators.

      John E. Bird, Attorney General {Charles W. McGill, of counsel), for respondent.
   Moore, C. J.

The relators are the sole legatees of Josiah E. Harding, who in his lifetime purchased from the State certain lands for the taxes of 1891, 1892, 1894, and 1895. Later ejectment was brought to recover possession of the lands. A judgment in the ejectment case was rendered in favor of the defendant therein. Application was then made to the auditor general to have the amount paid for these lands refunded. He denied the application. A writ of mandamus is asked to compel him to grant it-

The relators claim that, as the deeds were declared invalid in the ejectment suit, they are entitled to have their money returned under the provisions of section 3896, 1 Comp. Laws, citing Newton v. Auditor General, 131 Mich. 547; Gurd v. Auditor General, 122 Mich. 152. The auditor general admits that relators would be entitled to be paid back the amount paid for the taxes of 1891,1894, and 1895 if these were the only taxes involved, but insists that because of the proceedings in relation to the tax of 1892 none of them should be refunded. In relation to the tax of 1892 the circuit judge in the trial of the ejectment suit found:

“I find plaintiffs’ tax deeds for the year 1892 void because the deed purports to convey an undivided four-twelfths of an undivided eleven-twelfths. An undivided one-twelfth' of the tract was not returned delinquent for any taxes. An undivided eleven-twelfths was sold, and the defendant’s grantor, Annie M. Miller, properly redeemed from said sale an undivided seven-twelfths of the entire tract. The auditor general therefore had no right, authority, or jurisdiction to deed more than an undivided four-twelfths of the property. He had undertaken to deed an undivided four-twelfths of an undivided eleven-twelfths, thereby purporting to convey an apparent interest in the four-twelfths of the seven-twelfths which had been redeemed.”

In his,answer the auditor general says of this tax:

“The circuit judge did not find any invalidity in the sale made to Josiah E. Harding for taxes of 1892, and, although the deed issued by the auditor general was in error in reciting that it was for an undivided four-twelfths of an undivided eleven-twelfths of the property, the sale itself at the county treasurer’s office at the regular county treasurer’s sale was of an undivided four-twelfths of the property, seven-twelfths having been paid before sale, leaving the sale absolutely good as to an undivided four-twelfths of the property in question. The sale for taxes in Emmet county in 1892 is an unattacked sale. The sale of the undivided four-twelfths of the property to Josiah E. Harding is good, and the deed erroneously issued does not convey title, but the sale itself must be depended upon to determine whether or not. the title rested in Harding by virtue thereof.”

Attached to this answer and made a part thereof is Exhibit A, showing copy of the tax record covering the land in question. This record shows the description, “Undivided eleven-twelfths of private claim 335,” etc., and in column 15 the interest sold which was “four-twelfths entire,” and in column 20 sale to “Josiah E. Harding.” The record shows a sale of an undivided four-twelfths interest in the entire tract to Josiah E. Harding, and the sale must be taken as the best evidence of the Harding title, but, if the deed was in error — and it is admitted to have been an error in deeding an undivided four-twelfths of an undivided eleven-twelfths — such deed should be corrected. The deed is wrong, and not the sale. The undivided four-twelfths of description was purchased at a time when such purchase gave absolute title to the lands purchased, and by the purchase for taxes of 1892 Harding became the owner of the land after the period of redemption expired. The ejectment proceedings do not determine an invalidity of the taxes in any case, and, although the sales except for taxes of 1892 are ,held valid, the taxes themselves are good, and Harding must be held to a responsibility for payment of the taxes by reason of his ownership under his purchase of the undivided four-twelfths for taxes of 1892.

The attorney general, in his brief, contends that the sale for the taxes for 1892 was a valid one, as shown by the record, and that the deed issued to Mr. Harding which contained an incorrect description of what he had purchased, is subject to correction; that the auditor general is ready to correct it; and that the sale is not invalid. We think this position is sustained by Kneeland v. Hull, 116 Mich. 55, and that the deed should be corrected so as to contain a proper description of what was sold to Mr. Harding. When Mr. Harding became a purchaser for the taxes of 1892, it became his duty to pay the tax of 1891, and any taxes subsequently levied thereon. The auditor general should make the correction indicated.

The writ is denied, without costs to either party.

Carpenter, McAlvat, Grant, and Blair, JJ., concurred.


author: Moore, C. J. Grant, J.

text:
    KOPF v. MONROE STONE CO.
    Master and Servant — Injuries to Servant — Negligence — Evidence — Question for Jury.
    In an action for injuries to a servant by the premature explosion of dynamite in a quarry, evidence examined, and held, to require submission of the issue of defendant’s negligence in failing to instruct plaintiff of the danger of the work to the jury. Grant and Ostrander, JJ., dissenting on the ground that plaintiff, by voluntarily assuming to perform duties not required of him, assumed the risk.
    Error to Monroe; Lockwood, J.
    Submitted January 6, 1905.
    (Docket No. 22.)
    Decided July 21, 1905.
    Case by Christ Kopf against the Monroe Stone Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed,

      Bowen, Douglas, Whiting & Murfin, for appellant.

      Willis Baldwin and Ira G. Humphrey, for appellee.
   Moore, C. J.

This case has been here before, and is reported in 133 Mich. 286. A reading of the opinions then filed will do away with the need of making a long statement here. Upon the second trial, plaintiff recovered a verdict. The defendant brings the case here by writ of error. After the second trial a motion was made for a new trial. The trial judge filed in writing his reasons for refusing this motion. As they state clearly some of the questions involved, we quote in part from them:

‘ ‘ The defendant’s counsel in the argument of this motion did not urge any of the reasons assigned, except that the court should have taken the case from the jury and directed a verdict for the defendant. * * * I am aware that upon the hearing of this case in the Supreme Court the majority of that court were of the opinion that there was no testimony to submit to a jury tending to show that the shooter had authority to direct plaintiff to load holes; that there was no evidence of a custom on the part of the drillers to load holes, sufficient to charge the defendant with notice thereof, or to make the defendant in duty bound to warn plaintiff of latent dangers incident to the use of dynamite in loading holes. The evidence upon these points was very complete upon this trial. Admitting that there is a conflict in the evidence, because the officers of the defendant and its foreman denied knowledge of such custom, still it cannot be said that there is no evidence tending to show the authority of the shooters to direct drillers to load these holes, or of a long, continuous, and notorious custom among all the drillers employed in this quarry to load holes with dynamité, and to do this upon the orders of the shooters. The testimony shows that for a period of about seven years the custom has prevailed in this quarry for the shooter to furnish dynamite to the drillers to load the last hole at shooting time, and to order them to load their holes when finished, and for the drillers, in compliance with these orders, to load these holes. The shooting occurred four times a day — at half past nine, at twelve, at half past three, and at six, spoken of as quarter time. There is the evidence of several witnesses showing the defendant’s general foreman had actual knowledge of the loading of these holes by the drillers, and on some occasions assisted the drillers in so doing. When it is remembered that this work is done in a large open pit, covering from two to three acres of ground, that all or nearly all parts of this pit were open to view from any point on the banks, and that this practice had continued for a period of about seven years, and that the loading by drillers occurred every day and usually by many drillers each day, it must be conceded that this custom was open and notorious ; and it is hard to conceive how it could have continued without the knowledge, consent, and acquiescence of the men in charge of the quarry.
“It seems to me that there was abundant proof to submit to the jury upon the question of this custom, and upon the question of the authority of the shooter to direct the drillers to load these holes. In my judgment, this question was fairly submitted to the jury in the charge given.
“ I think that the testimony in this case clearly shows that the liability of dynamite to explode by friction,- or of dynamite being exploded by pressing the stick into a hole, was a latent danger incident to the use of dynamite in the loading of holes; that this liability to explode from friction is known to those familiar with the use of dynamite. Mr. Sundstrum, who has a scientific as well as a practical knowledge of the subject, explains this very clearly in his testimony; and the witnesses Navarre and Sharkey, and in fact all those who had special acquaintance with the use of dynamite, admit that it is dangerous to press it into a hole which is too small. I think that the court would not be justified in holding, as a matter of law, that this was a danger of which the plaintiff, a common laborer, was bound to know; and it seems to me that the contention that the defendant is not liable in this case, because the plaintiff pressed the dynamite into a hole too small for it, when he had not been specifically told to do this, has no merit in it, for catastrophies of this kind never would occur if no one did an imprudent thing. It is the lack of knowledge of the danger that explains the plaintiff’s conduct. The rule that the employer should warn his servant of the latent dangers could have no possible application if the employer was only required to perform the particular work once in the presence of the employé, and was then permitted to say that the least variation from the method was an assumption of risk by the laborer. * * *
“ It is contended that the defendant was not bound to anticipate that the plaintiff would attempt to force a dynamite cartridge into a hole that was too small to receive it.. In view of the testimony of Mr. Sundstrum and of the other experts produced by the plaintiff as well as by the defendant, I do not think that the court can hold, as a matter of law, that defendant was not bound to anticipate just what occurred according to plaintiff’s testimony in this case. The holes were drilled, when the drills were perfect, only large enough to, admit the dynamite. There is abundant testimony showing that the bits of the drills constantly wear away, thus making the holes too small. There is testimony tending to show that it was frequently found necessary by those handling dynamite to break up the cartridges in order to get them into the holes, and by so doing avoid the friction incident to pressing the cartridge into the hole.
“The testimony upon this trial of this case is very much fuller on all these points than it was upon the former trial.
“In fact, upon many of these points at the former trial there was very little, and, according to the opinion of the majority of the Supreme Court, no evidence whatever, in favor of the plaintiff’s contention. It seems to me that upon this trial there is evidence in support of the plaintiff’s theory on all these points.”

In this connection it may be well to quote from the testimony of Mr. Sundstrum, who was not • a witness in the other trial:

“ I am general manager of the Sibley Quarry Company, and am 52. I am a graduate of Royal Polytechnic, Stockholm, as a chemical and mechanical engineer. From that time, in 1873, I have been for 16 years engaged in the dynamite manufacturing business, until I changed to another branch of the business. Since that time I have been upon a commission to investigate dynamite and its qualities on three different commissions. * * * I was engaged in the manufacture of dynamite from 1873 to 1884. Have built five dynamite factories. * * * I have used thousands and thousands of pounds. I was general manager of the Forsyth Powder Company, that made nearly every pound of dynamite used in the New York Aqueduct. Have full chemical knowledge of dynamite, and have had charge of a good many men using dynamite.
Q. In this case the testimony will show that they were using what is called ‘Hercules Powder,’ with 40/ or 60/ dynamite. It will show where the accident occurred the hole was small in diameter (the hole was in the rock), and that the driller (the man who was injured) had taken a piece of fuse, with the cap on the end of it, and had put this fuse, with the cap on the end, down into this hole, which was five or six inches deep, and that he had then taken up a stick of this dynamite (Hercules powder) and attempted to put it into this hole. The h'ole was a little small for it. He pressed slightly upon it to get the stick two or three inches down in the hole, when it exploded. From your knowledge of dynamite and its use, I would ask you whether that was a reasonably safe thing for man to do ?
“A. I must first repeat, so that I understand it. You said: Take a piece of fuse and put on a cap. You put the fuse in the .cap. After that the fuse and cap was put down in the bottom of the hole. After that was there he took a dynamite cartridge and pressed it into the hole. It was a little too small. He forced it down. Is that the language ?
Q. Put his thumb on top.
A. And pressed it down. I must ask one question ? Was the dynamite frozen, or not?
Q. The testimony shows that the dynamite was frozen.
“A. You ask my present opinion. It is most terribly reckless to put dynamite in and push it in. Every time it is done it is only good luck that an explosion does not take place.
Q. What would likely cause the explosion under such circumstances ?
A. One is that the cap is not properly fastened to the fuse— The dynamite being too small, even if it had not been frozen it will take hold of the fuse and push it down. It is sensitive, and it will explode the dynamite under these circumstances. If the dynamite is frozen it will be still harder — the explosion easier. I have seen a dynamite cartridge that is frozen exploded by a stick of wood. There was no cap or fuse on it. When the cap and fuse is on it, it is more dangerous.
Q. If I understand you rightly, if the cap and'fuse were at the bottom of the hole, and you took a stick of dynamite and pressed down on it, it pressed the fuse against the fulminate matter ?
“A. Yes, sir. Against the fulminate, and it makes it explode. The hard friction is enough between the side of the hole and the frozen dynamite — is enough to cause the explosion.
Q. I would ask you if these matters which you have just told us are matters of common scientific knowledge ?
“A. Very common.
“ Q. Is this knowledge of these facts which you have stated necessary to the safe use of dynamite by any person ? * * *
“A. I deem it so, and it is only good luck that no explosion has ever happened — that is all. * * * The custom in other quarries is to use a hole that is large enough, so that the dynamite goes very easy down. _ It is the custom in other places where they use dynamite to only allow certain men, well instructed, to use dynamite, and no others. As to those men who use dynamite, it is the custom to tell them about the danger of frozen dynamite, and instruct them exactly how every shot should be loaded. They are told that the hole should be at least one-quarter of an inch larger in diameter than the cartridge —allow one-eighth of an inch on each side. We never put the fuse down alongside the dynamite cartridge. I would discharge the man who did. The proper method of loading holes for pop shots is to take a small piece of cartridge, looking that it is thawed out so that it is soft, make a little hole in the center of the cartridge with a pin, put a cap or fuse with a cap well pinched together with the fuse, put the cap with the fuse into this hole in the cartridge, with a piece of paper with a string, and sink the whole thing into the hole, and fill the rest of the hole with sand. The cap on the top of the cartridge, the other way, I regard as a dangerous way to load holes.”

If this testimony is true, it shows that the manner of putting the dynamite into the hole as shown to the plaintiff was not the best method, but was a dangerous method. It also shows defendant should have known the extreme danger of using frozen dynamite where friction was likely to be generated, and should have warned any employe whose duty it was to use it of this danger.

There was much testimony in this case, not in the other trial, in relation to the custom of the drillers loading the last hole, and also of the knowledge the foreman had of that fact. Ben Lavoy testified he was a driller, and loaded the last holes, thinking it was his duty to do so. We quote:

“ Lemerand was foreman while I was there. He was the only foreman when I was working there. Sometimes he was in the quarry, sometimes on the' bank, sometimes on the crusher, sometimes in the blacksmith shop. I guess lie had entire charge inside and outside.
Q. Did he ever see you when you loaded holes?
“ A. Yes, sir; he handed me a shovelful of dirt to help pour in. I asked him if he would give me a shovelful and kelp fill it. He did so.”

It would profit no one to set out the different and additional testimony introduced upon the second trial. We think it, however, very clear the trial judge was right in saying a very different case was presented, and one which it was his duty to submit to the jury. This he did very fully and carefully.

Judgment is affirmed.

Carpenter, McAlvay, Blair, and Montgomery, JJ., concurred with Moore, C. J.

Grant, J.

(dissenting). This case is now before us a second time. See 133 Mich. 286. An extended statement of facts is unnecessary. For that we refer to the former opinion. For three reasons we then held that the plaintiff had not established a cause of action, and that the court should have directed a verdict for the defendant. If the present record as to any one of these reasons is substantially the same as that upon the former trial, the judgment is, of course, erroneous.

The first reason for reversing the judgment before was that the plaintiff voluntarily assumed to do work which he was neither employed nor required to do, and that therefore he assumed the risk. Upon this point we said:

“ Plaintiff knew that he was employed as a driller; that Lemerand was the foreman who employed him, and who alone had the right to direct him. He saw Lemerand daily. He knew that Freedon was the loader and shooter, and was under control of Lemerand, and, after Freedon was injured by an explosion, that one Poland was the loader and shooter. Freedon was injured about a month before plaintiff’s injury. Plaintiff testified: 6Mr. Ed. Lemerand had charge of the drilling. He was boss.’ He knew that Freedon had no control over him. Freedon sometimes asked him to load the last hole, and he continued to do so under Poland. Plaintiff gave no word of testimony tending to show that he supposed that Freedon had any control over him, or the right to direct what he should do. He testified:
‘ Ed. Lemerand, the boss of the quarry, set me drilling holes. Charles Ereedon had charge of shooting these holes. He was the man under the foreman that had charge of the shooting — drilling, loading, and shooting blasts. Freedon had charge of the loading and shooting of the holes after they were drilled. As far as I know, Mr. Ed. Lemerand had charge of the drilling. He was boss. * * * Freedon did not give me any orders while I was drilling there about drilling and loading the holes. Freedon set me to work there. I was working under Lemerand, as far as I knew. Freedon, he told me to load the last holes. There were two — one at 11:30, and another in the afternoon. * * * When Freedon asked me to load the holes, I said I did not want to load them; “I am afraid of it.” He said: The rest handled it. You might handle it.”’
“Evidently the boles before had been large enough to receive the stick of dynamite, and there was no danger in loading such holes. He found this one too small. Upon this point his testimony is as follows:
“ ‘ Q. You found the hole was too small ?
‘A. Yes, sir.
“ ‘ Q. Why didn’t you leave it alone ?
‘A. I never had any warning to do anything of the kind.
“ ‘ Q. You knew the hole was too small ?
‘A. I didn’t think it would do any harm to squeeze it.
“ ‘ Q. What did you do with this to get it down into the hole ?
“ ‘A. I squeezed on this a little. It was sticking up a little, and I squeezed it. I thought I had better let it alone.’
“ Plaintiff’s counsel, in their brief, say:
“ ‘It is probable knowledge, common to the ordinary man, that dynamite will explode when sufficiently jarred.’
“Plaintiff was familiar with the use of dynamite, and he had seen it used every day for eight weeks. He had handled it before. He knew its liability to explode; that the only danger was from an explosion; that jarring is liable to cause one; and if the hole was too small he might have drilled another; * * * yet, without requirement from anybody to force this dangerous material into a hole too small, without any pretense that he had ever seen the work so done before, without any protest to his employer or any direction from him, knowing that his employer had never seen him do this work, and that he was not employed for that purpose, he chose to handle this dangerous material, and to force it into a hole in the rock, at the request of one whom he knew had no control over his action and no right to direct him. One servant has no right to assume that a fellow-servant has any control over his movements, or any authority or right to direct him in his work. It is his duty to look to the master or his alter ego for directions, and when he is employed to do one kind of work, which is entirely safe, he has no right to assume to do another bind, especially when dangerous, without the direction of his master. Where the servant may perform this work in two ways, one safe, the other dangerous, the master is not responsible for injuries to him when he voluntarily assumes the dangerous way. Upon the same principle, when he is employed to do work unattended with danger, he cannot make the master liable because he either occasionally or habitually chooses to do dangerous work which he knows another is assigned to do. Under all the authorities, as I read them, he assumed the risk. The injury was the result of his own carelessness and voluntary assumption of work he was not required to do. It would seem to me unnecessary to cite authorities. The following, in my judgment, sustain the proposition: Bailey on Master’s Liability, p. 169; St. Louis Bolt & Iron Co. v. Brennan, 20 Ill. App. 555; Brown v. Byroads, 47 Ind. 435; Knox v. Coal Co., 90 Tenn. 546; Lindstrand v. Lumber Co., 65 Mich. 254. The language of Mr. Justice Campbell in the last casé is applicable here:
“ ‘Mill owners cannot be supposed to anticipate that laborers in other work about the mill will handle the saws, or assume that any such direction as was given in this case was meant to give any such direction. Plaintiff does not testify that he supposed the foreman required him to run any such risk. Had such orders [for a laborer to use a circular saw] been given, they would not have justified him in doing what he did.’
“ The law does not impose upon the master the duty to warn or instruct his servant in regard to work he is neither employed nor required to do.”

Upon this branch of the case the testimony of plaintiff is substantially the same as before. He does not testify that he had ever seen a stick of dynamite forced into a hole too small. He testified that he had seen the loaders load holes, when the stick was too small, by breaking it up. He testified that at the time of this accident one Robert took a stick of dynamite too large to go in a hole, and that Robert, “when he found the hole was too small, did not try to force it in, but laid it there.” This occurred at the same time the plaintiff was injured. In regard to this transaction, Mr. Robert was present when Kopf got hurt, and testified:

“ I was pushing the car towards Kopf. When I heard the report I was behind the car, about 150 or 100 feet away. Before the explosion my partner went to dinner. I took the car to the incline. I went up and got my coat and vest. There was a stone on the end of my track, about 20 inches or 2 feet thick, that was loaded. There was a hole in the stone, and the fuse was coming out of it. It must have been on top. There was, I suppose, about 4 or 5 inches to fill that up. The candle was in the bottom. I seen an old pail. There was a piece of dynamite about 4 or 5 inches long in it. I took the piece. That piece of dynamite was in an old pail. I took the piece and tried it over that hole that was loaded. It wouldn’t fit in. Kopf said, ‘ Will it go in ? ’ I said, ‘ No.’ He said, ‘ What is the matter ? Doesn’t it go in ? ’ I said, ‘ No; it is too big.’ ‘ Are you afraid ? ’ I said, ‘Yes. I will not try to put it in.’ I didn’t want to monkey with it. He said, T can put it in.’ I asked, was it full ? He said, ‘ I am going to fill up this hole.’ He said that. He said, ‘ I will put it in.’ I took my vest and walked away. I walked away to the man pushing a car away from another man that wanted to get in with a loaded car. I hadn’t been gone but 10 or 15 feet when I heard a noise.”

This testimony is not denied by the plaintiff. In this connection I quote further from plaintiff’s testimony:

Q. Why did you want to put a piece of dynamite in a hole that was too small for it ? What did you do that for ?
‘ ‘A. Because I thought I would fill the hole.
“ Q. Had you ever done it before?
“A. Yes, sir.
Q. Put a big piece of dynamite in a small hole ?
“A. Yes, sir.
Q. Didn’t you think you had better let it alone, when you found it was sticking out of the hole ?
“A. I squeezed on it a little, and it went.
“ Q. You thought before that that you had better let it alone ?
“A. Yes, sir.
Q. Don’t you remember—
“M. I thought I would squeeze it down a little. I hardly thought that; then it went.
‘ ‘ Q. Didn’t you think you had better not do that ?
“A. Yes, sir.
e: Q. What were you thinking of ?
“A. I didn’t have my thought done until it went off.
Q. You thought you had better let it alone, and, before you could take your hand off, it exploded ?
“A. Yes, sir.
“Q. Why did you think you had better let it alone? Did you think it might blow up if you pressed on it ?
“A. I thought it might blow up. * * *
Q. When you went to put the old stick in the other hole, what did you think you ought to leave it alone for ? You did think you ought to leave it alone ?
“A. Yes, sir.
Q. Did you think that ?
“A. Yes, sir; I didn’t have my think done when it went. * * *
Q. Why didn’t you leave it alone. It didn’t make any more money for you to load it ?
‘‘A. No, sir.
“ Q. You would not get any more money ?
“A. No, sir.
“ Q. You would get your pay just the same for a day’s work if you left it alone ?
“A. Yes, sir.
“ Q. You wasn’t hired to do it?
“A. I worked under Freedon’s instruction.
Q. You wasn’t hired to do that work ?
“A. I worked under Freedon’s instruction.
Q. You would have got just as much pay if you didn’t do it ? No one told you to load that hole ?
“A. No, sir; they did not; but I worked under Free-don’s instruction.
Q. Was there anybody there — when you found that hole too small was there anybody there that told you to load it ?
“A. No, sir. Freedon said he didn’t leave the stick of dynamite for me; he did — the same piece I put in the hole.
“ Q. Was there anybody there that told you to do it ?
“A. No, sir.
Q. When you found the hole was too small, you did it because you wanted to do it ? Is that the only reason— you tried to do it because you wanted to ?
“A. I didn’t know'what danger there was.
Q. .Was there any reason in the world why you tried to load it if you found the hole too small, except that you wanted to try it ?
“A. I thought I would load it.
“ Q. You thought you would load it ?
“A. Yes, sir.
‘ ‘ Q. That is the only reason ?
“A. Yes, sir.”

Under such a record, for the reasons stated in the former opinion, I am unable to hold that there is either law or justice to sustain the judgment; and I think it should be reversed, and no new trial granted.

Ostrander, J., concurred with Grant, J.

Hooker, J., did not sit.