text:
    MICHIGAN CENTRAL RAILROAD CO. v. WAYNE CIRCUIT JUDGE.
    1. Preliminary Injunctions — Discretion op Court,
    Where, on petition of certain railroad companies for a writ of mandamus to compel the trial court to issue a temporary injunction restraining the Michigan railroad commission from enforcing its order relative to excess baggage rates, under Act No. 313, Pub. Acts 1907, pending a judicial determination of its validity, it appeared, in the trial court and in this court, by concession of counsel, that said rates are not confiscatory, but afford some remuneration over and above expenses ; that petitioners were afforded a full hearing before the commission, but refrained from furnishing any information concerning the same; that they had not, under said law, applied to the commission to change the rates so fixed; and that said roads operating in part in another State were there, without protest, charging a much lower average rate than that fixed by the commission. Held, on such showing, it was not an abuse of discretion to deny the writ.
    2. Carriers — Railroad Commission — Fixing Rates — Discrimination.
    Under section 16, Act No. 312, Pub. Acts 1907, the rates fixed by the commission are maximum rates, and do not prevent railroads from fixing lesser rates, provided there is no discrimination or rebating. And between competing points roads having the longer haul may charge the same rates as roads having a shorter haul.
    3. Same — Constitutional Law — Railroad Commission — Fixing Rates — Power op Courts.
    Under section 26, Act No. 312, Pub. Acts 1907, the power conferred upon the courts is solely to determine the reasonableness of the rates fixed by said commission, and if it is judicially determined that the rates so fixed are unreasonable, the court has not authority to determine what are reasonable rates, but will refer the question back to the commission to establish other rates.
    4. Preliminary Injunction — Not Allowed as Matter op Law.
    Where, under said act, provision is made for a speedy remedy for parties claiming to be aggrieved by the order of said commission, by a resort to- a court of equity, and such suit given precedence in the circuit and this court over all other cases, and the trial judge is expressly by said statute given power and discretion to determine whether a preliminary injunction should issue pending a hearing upon the merits, complainants are not, as a matter of law, entitled to the issuance of the writ.
    Mandamus by the Michigan Central Railroad Company and others to compel Alfred J. Murphy, circuit judge of Wayne county, to vacate an order denying a temporary injunction.
    Submitted April 18,1909.
    (Calendar No. 23,293.)
    Writ denied April 29, 1909.

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

      John E. Bird, Attorney General, George S. Law, Assistant Attorney General, and Maybury, Lucking, Emmons & Self man, for respondent.
    In 1907 the legislature passed an act entitled:
    “An act to regulate railroads and the transportation of persons and property in this State, prevent the imposition of unreasonable rates, prevent unjust discrimination, insure adequate service, create the Michigan Railroad Commission, define the powers and duties thereof, and to prescribe penalties for violations hereof.” Act No. 312, Pub. Acts 1907.
    The following sections of the act are involved in the motion now before us:
    “Sec. 16. If any common carrier or any agent or officer thereof, shall directly or indirectly, by any special rate, rebate, drawback, or by any means of false billing, false classification, false weighing, or by any other device whatsoever, charge, demand, collect or receive from any person, firm or corporation, a greater or less compensation for any service rendered or to be rendered by it for the transportation of persons or property or for any service in connection therewith than that prescribed in the public tariffs then in force, or established as provided herein, or than it charges, demands, collects, or receives from any other person, firm or corporation for a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, or shall knowingly and wilfully assist or wilfully suffer and permit such greater or less compensation to be charged, demanded, collected or received, such railroad shall be deemed guilty, of unjust discrimination, which is hereby prohibited and declared to be unlawful, and upon conviction thereof shall pay into the State treasury not less than one hundred dollars nor more than one thousand dollars for each offense, and any agent or officer offending shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars for each offense, or imprisonment in the county jail for a term not to exceed three months or both in the discretion of the court. It shall be unlawful for any common carrier to demand, charge, collect, or receive from any person, firm or corporation a less compensation for the transportation of property or for any service rendered or to be rendered by said railway in consideration of said person, firm or corporation furnishing any part of the facilities incident thereto: Provided, Nothing shall be construed as prohibiting any railroad from procuring any facilities or service incident to transportation and paying a reasonable compensation therefor. * * *
    "Sec. 22. (a) Upon complaint of any person, firm or corporation or association, or any mercantile, agricultural or manufacturing society, or of any body politic or municipal organization, that any of the rates, fares, charges or classifications, or any joint rate or rates are in any respect unreasonable or unjustly discriminatory, or that any regulation or practice whatsoever affecting the transportation of persons or property, or any service in connection therewith, are in any respect unreasonable or unjust, discriminatory, or that any service is inadequate, the commission may notify the railroad complained of that complaint has been made, and twenty days after such notice has been given the commission may proceed to investigate the same as hereinafter provided. Before proceeding to make investigation the commission may give the railroad and the complainants ten days’ notice of the time and place where such matters will be considered and determined, and said parties shall be entitled to be heard and shall have process to enforce the attendance of witnesses. If upon such investigation the rate or rates, fares, charges or classifications, or any joint rate or rates, or any regulations, practice or service complained of shall be found, to be unreasonable or unjustly discriminatory, or the service shall be found to be inadequate, the commission shall have power to fix and order substituted therefor such rate or rates, fares, charges or classifications as it shall have determined to be just and reasonable, and which shall be charged, imposed and followed in the future, and shall also have power to make such orders respecting such regulation, practice, or service as it shall have determined to be reasonable and which shall be observed and followed in the future.
    “(b) The commission may, when the complaint is made of more than one rate or charge, order separate hearings thereon, and may consider and determine the several matters complained of separately and at such times as it may prescribe. No complaint shall of necessity at any time be dismissed because of the absence of direct damage to the complainant.
    “(c) Whenever the commission shall believe that any rate or rates, or charge or charges may be unreasonable or unjustly discriminatory, or that any service is inadequate, and that any investigation relating thereto should be made, it may, upon its own motion, investigate the same. Before making such investigation, it shall present to the railroad a statement in writing, setting forth the rate or charge to be investigated. Thereafter, on ten. days’ notice to the railroad of the time and place of such investigation, the commission may proceed to investigate such rate or charge in the same manner and make like orders in respect thereto as if such investigation had been made upon complaint.

      “(d) This section shall be construed to permit any railroad to make complaint of like effect as though made by any person, firm, corporation or association, mercantile, agricultural or manufacturing society, body politic or municipal organization. * * *
    “Sec. 24. (a) Whenever, upon investigation made under the provisions of this act, the commission shall find any existing rate or rates, fares, charges or classification, or any joint rate or rates, or any regulation or practice whatsoever affecting the transportation of persons or property, or any service in connection therewith, are unreasonable or unjustly discriminatory, or any service is inadequate, it shall determine and by order fix a reasonable rate, fare, charge, classification or joint rate to be imposed, observed and followed in the future in lieu of that found to be unreasonable or unjustly discriminatory, and it shall determine and by order fix a reasonable regulation, practice or service to he imposed, observed and followed in the future in lieu of that found to be unreasonable or unjustly discriminatory or inadequate, as the case may be, and shall make an order that the carrier shall cease and desist from such violation and shall conform to the regulation and practice so prescribed, and it shall cause a certified copy of each such order to be delivered to an officer of the railroad affected thereby, which order of its own force shall take effect and become operative twenty days after the service thereof, or at such later time as the commission may in any particular case direct. All railroads to which the order applies shall make such changes in their schedule on file as may be necessary to make the same conform to said order, and no change shall thereafter be made by any railroad in any such rates, fares or charges, or in any joint rate or rates, without the approval of the commission. Certified copies of all other orders of the commission shall be delivered to the railroads affected thereby in like manner, and the same shall take effect within such times thereafter as the commission may prescribe.
    “(6) The commission may at any time, upon application of any person or any railroad, and upon notice to the parties interested, including the railroad, and after opportunity to be heard as provided in section twenty-two, rescind, alter or amend any order fixing any rate or rates, fares, charges or classifications, or any other order made by the commission, and certified copies shall he served and take effect as herein provided for original orders.
    “Sec. 25. All rates, fares, charges, classifications and joint rates fixed by the commission and all regulations, practices and services prescribed by the commission shall be in force and shall be prima facie, lawful and reasonable until finally found otherwise in an action brought for the purpose pursuant to the provisions of section twenty-six of this act, or until changed or modified by the commission as provided for in paragraph (b), section twenty-four, of this act.
    “ Sec. 36. (a) Any railroad or other party in interest, being dissatisfied with any order of the commission fixing any rate or rates, fares, charges, classifications, joint rate or rates, or any order fixing any regulations, practices or services, may within sixty days commence an action in the circuit court in chancery against the commission as defendant to vacate and set aside any such order on the ground that the rate or rates, fares, charges, classifications, joint rate or rates fixed is unlawful or unreasonable, or that any such regulation, practice or service fixed in such order is unreasonable; in which suit the commission shall be served with a subpoena. The commission shall file its answer, and on leave of court any interested party may file an answer to said complaint, whereupon said action shall be at issue and stand ready for hearing upon ten days’ notice by either party. All suits brought under this section shall have precedence over any civil cause of a different nature pending in such court, and the circuit court shall always be deemed open for the hearing thereof, and the same shall proceed, be tried and determined as other chancery suits. Any party to such suit may introduce original evidence in addition to the transcript of evidence offered to said commission, and the circuit courts in chancery are hereby given jurisdiction of such suits and empowered to affirm, vacate or set aside the order of the commission, in whole or in part, and to make such other order or decree as the courts shall decide to be in accordance with the facts and the law.
    “ (b) No injunction shall issue suspending or staying any order of the commission except upon application to the circuit court in chancery or to the judge thereof, notice to the commission having been given and hearing having been had thereon.
    “(c) If, upon the trial of said action, evidence shall be introduced by the complainant which is found by the court to be different from that offered upon the hearing before the commission, or additional thereto, the court, before proceeding to render judgment, unless the parties in such action stipulate in writing to the contrary, shall transmit a copy of such evidence to the commission, and shall stay further proceedings in said action for fifteen days from the date of such transmission. Upon receipt of such evidence the commission shall consider the same, and may alter, modify, amend and rescind its order relating to such rate or rates, fares, charges, classifications, joint rate or rates, regulations, practice or service complained of in said action, and shall report its action thereon to said court within ten days from the receipt of such evidence.

      “(d) If the commission shall rescind its order complained of, the action shall be dismissed; if it shall alter, modify or amend the same, such altered, modified or amended order shall take the place of the original orderJ complained of, and judgment shall be rendered thereon as though made by the commission in the first instance. If the original order shall not be rescinded or changed by the commission, judgment shall be rendered upon such original order.
    “(e) Either party to said action, within sixty days after service of a copy of the order or judgment of the court, may appeal to the Supreme Court, which appeal shall be governed by the statutes governing chancery appeals. When the appeal is taken the case shall, on the return of the papers to the Supreme Court, be immediately placed on the calendar of the then pending term, and shall be brought to a hearing in the same manner as other cases on the calendar, or, if no term is then pending, shall take precedence of a different nature except criminal cases at the next term of the Supreme Court.

      “(f) In all actions under this section the burden of proof shall be upon the complainant to show by clear and satisfactory evidence that the order of the commission complained of is unlawful or unreasonable, as the case may be.”
    Acting under the authority of this law, four wholesale dealers in merchandise filed a petition before the State railroad commission, alleging that the railroads named therein charged unreasonable rates for excess baggage of their traveling agents in traveling from place to place over the roads, and prayed the commission to declare such rates unreasonable and excessive, and to fix and establish reasonable rates. The railroad companies were duly notified, a hearing was had, proofs taken, and on January 15, 1909, the commission determined that the rates and charges for excess baggage fixed. by the railroad cornpanies were unreasonable and excessive, and established maximum and minimum rates per hundred pounds according to distances.
    The order further provided that the companies should, on or before February 15, 1909, within 20 days after date of service of this order, make such changes in their schedule of rates as may be necessary to make such schedule conform with this order, and “permission to file tariffs on less than statutory notice will be granted by the commission in any case where such permission is necessary to enable any defendant herein to comply with the provisions of this order.”
    On February 13, 1909, the relators here filed a bill in chancery in the circuit court for the county of Wayne, praying that the above order of the commission be adjudged and decreed unlawful, unreasonable, and void, and that, pending a judicial determination of the validity of the order, the commission be enjoined from making said order effective and from commencing any proceedings to enforce compliance therewith. The relators asked for a preliminary injunction, which the circuit court in chancery refused. Relators thereupon filed their petition in this court for the writ of mandamus to compel the court below to grant a preliminary injunction until the case can be heard upon its merits upon pleadings and proofs.
    This court thereupon granted an order to show cause, which order contains the following provision:
    “And it is further ordered that, pending the further order of this court, said order of the Michigan railroad commission shall be suspended and all proceedings to compel compliance therewith stayed as to any of relators who shall, by a bond, with sufficient surety, to be filed with and approved by the clerk of this court, undertake to give to every shipper of excess baggage over its line, between points in Michigan, a receipt for the excess charges paid, showing the amount of excess baggage carried and the points of origin and destination, and, if said order of the Michigan railroad commission shall be judicially determined to be valid, redeem said receipts by paying to the bearers thereof upon demand the amounts paid for the transportation represented by such receipts in excess of the amounts payable under the schedule of rates fixed by said order of the Michigan railroad commission. The Michigan railroad commission, as trustee for the holders of said receipts, shall be named as obligee in said bonds, and said order of the Michigan railroad commission shall not be suspended as to any of relators until its bond shall be approved and filed as above provided. The penalty of bonds filed by the Michigan Central Railroad Company and by the Pere Marquette Railroad Company, in compliance with this order, shall not be less than twenty thousand dollars, and the penalty of bonds filed by the other relators shall not be less than ten thousand dollars.”
    To this order to show cause the learned circuit judge returned that in his opinion the constitutional questions raised were better reserved for the final hearing of the cause; that counsel for the railroad companies did not complain upon the hearing before him that the rates fixed by the commission were confiscatory, but, on the contrary, admitted for the purposes of that hearing that the earnings would be remunerative for the services performed. He further returns as follows:
    “This respondent did not deem petitioners entitled to any temporary injunction, since there was no claim before respondent that the rates fixed by the commission are confiscatory or unremunerative. The rates heretofore charged by petitioners being so admitted on said hearing to be exorbitant, this respondent was not of the opinion that the discretionary, temporary writ of injunction should be used to overturn a remedial order made by the legislative branch of the government, especially in view of the admissions made before respondent on that subject, as hereinbefore stated. * * * ”
    He further returned that—
    “When the counsel for the railroad commission was proceeding before this respondent to argue the excessive character of the excess baggage charges of the petitioners herein, and that the schedule of rates fixed by the commission was amply remunerative, the counsel for the petitioners herein repeatedly, in open court, asserted that it was unnecessary to argue that proposition, because they admitted for the purposes of said hearing that the rates fixed by the railroad commission were not confiscatory nor unremunerative. * * *
    “This respondent became convinced upon March 1, 1909, that the policy of the petitioners herein was one of obstruction, for the following reasons: By the admissions of their counsel, it appeared that at the public hearing had before the commission they had refrained entirely from putting in any testimony. When a tentative schedule of rates had been prepared and submitted to them by the commission, they still refrained from rendering any assistance to the commission in determining whether that schedule was reasonable and a fair one. The schedule having been adopted and promulgated, petitioners waited until the last available day, under the rule, before taking steps to obtain a postponement of the operation of the commission’s order through the intervention of this court. This delay was coupled with the admission that up to February 17, 1909,'no effort whatever had been made to prepare the schedule of tariffs required by the order; that, in spite of the claim made upon said last-mentioned day that the preparation of such a schedule was a prolonged task, said petitioners had by March 1, 1909, prepared a practicable schedule, thus demonstrating their failure to take steps to prepare such a schedule to be not only ‘ inexcusable negligence,’ as it was characterized in respondent’s opinion of February 17, 1909, but thereby also refuting one of the equitable grounds theretofore urged as entitling petitioners to a suspension of the order. The application presented upon March 1, 1909, was deferred until the latest day possible. From the attitude of the petitioners throughout, it thus appeared to respondent that the equities of the matters were not with them, and that the discretionary writ of preliminary injunction ought not to issue.” ■
    The sworn answer of the Michigan railroad commission was filed February 16th, and denied all the equities of the bill.
   Grant, J.

(after stating the facts). 1. Are the relators, as a matter of law, entitled to a preliminary injunction ? 2. If they are not, did the circuit judge abuse the discretion, which the law places in him, in denying a preliminary injunction pending the hearing ? These are the questions which we understand are now presented to this court. The second question is very readily answered in the negative. The relators conceded upon the hearing in the court below and in this court that the rates fixed by the commission are not confiscatory, but afford some remuneration over and above the expenses. They were accorded a full hearing before the commission, but chose to put in no testimony before it, and to furnish no information as a basis for the determination of just rates by the commission. The law expressly makes the rates fixed by the commission prima facie lawful and reasonable, and casts the burden of proof to the contrary upon the railroad companies contesting. Neither have they made application, as the law provides, to the commission to change the rates.

It further appears that the roads of these relators, with perhaps one exception, extend into the State of Indiana, and that for about two years they have been operating in that State under rates fixed by the act of the legislature, much lower on the average than those fixed by the commission in this case, and without any protest or attempt to test the validity of the rates. Under these circumstances, the relators have made no case appealing to the conscience of the court to exercise a discretion in their behalf.

Counsel for the relators attack certain provisions of the law (Act No. 312, Pub. Acts 1907) as unconstitutional:

(1) Section 16, in that it prescribes a punishment for failure to collect the rates fixed by the order of the commission pending a judicial determination of their validity; and also makes it an offense punishable by fine or imprisonment for the carrier to charge, demand, collect, or receive greater or less compensation than that prescribed in the order of the commission.
(2) In that the act confers upon the commission legislative and executive powers.
(3) Section 26, in that it confers upon the courts the power to establish rates, if those found by the commission are unlawful or unreasonable.

In view of the conclusion we have reached, to deny a preliminary injunction, and the fact that the relators must therefore proceed to adopt and charge the rates fixed by the commission until the final hearing on the merits, we will dispose of two of the questions above raised. The rates fixed by the commission and now attacked are maximum rates. The carriers may within those rates fix lesser rates, provided there is no discrimination or rebating. The statute is aimed to prevent discrimination and rebating, and not to prevent carriers from charging rates less than the maximum, provided they treat all their customers alike. It follows that between competing points, where the haul of one road is longer than that of the other, the one having the longer haul may charge the same rates as are charged by the one having the shorter haul.

We do not construe the provisions of this act to lodge in the courts the power to establish rates. The power conferred upon the courts is solely to determine whether the rates are confiscatory or unreasonable. If the courts should so find, they are not authorized to determine what are reasonable, but the matter must again be referred to the commission to establish other rates. If they are found to be reasonable, the courts will sustain the action of the commission. If, however, it should be determined that such power was conferred upon the courts and is unconstitutional, the act would still be held valid, because it could stand with that clause eliminated from the statute. Courts declare legislative enactments invalid only when they are able to determine from the act itself that the legislature would not in all probability have enacted the law with the objectionable features eliminated. This act expressly declares that, so long as the main purpose and object of the act can be sustained, any provision held void shall not affect its validity. We are not now prepared to hold that, if all the provisions which counsel for relators now attack should be held void, it would invalidate the entire law. Similar acts have been sustained by the courts of many of the States, and we prefer to reserve this important question until the final hearing. We the more readily reach this conclusion because, from the record now before us, it does not appear that the relators are liable to be deprived of any of their rights.

Preliminary injunctions have been denied in similar cases by the Federal courts. Capital City Gaslight Co. v. City of Des Moines, 72 Fed. 829; Tilley v. Railroad Co., 5 Fed. 641; Chicago, etc., R. Co. v. Dey, 38 Fed. 656; In re Arkansas Railroad Rates, 163 Fed. 141.

In this connection the case of Ex parte Young, 209 TJ. S. 123 (13 L. R. A. [N. S.]932), has received due consideration. The facts in that case are so different from those in this, that we are of the opinion it does not control here. In that case the order complained of was made without a hearing. The law made every agent of the corporation violating its provisions guilty of a gross misdemeanor, punishable by a fine of not less than $2,500 nor more than $5,000 for the first offense, and not less than $5,000 nor more than $10,000 for each subsequent offense, and imposed a like penalty upon the corporation. By another act involved in that case any officer, agent, or representative of the corporation violating any provision of the act was made guilty of a felony, punishable by a fine not to exceed $5,000, or by imprisonment in the State prison for a period not exceeding five years, or both. It was held that the purpose and the effect of the law was to intimidate the company and its officers from resorting to the courts to test the validity of the legislation, and that “the result is the same as if the law in terms prohibited the company from seeking judicial construction of laws which deeply affect its rights.” We cannot hold that the penalties provided in the law now before us are within the condemnation of that case. The statute of Michigan provides for a hearing before the commission, and for giving notice of such a hearing to all the railroad companies to be affected thereby.

A petition by proper parties in accordance with the law was presented to the commission, setting forth the facts and reasons for claiming that the rates were exorbitant. Due notice was served, and the parties appeared; the commission took testimony, and gave the relators ample opportunity to produce evidence and present their views. Various hearings were had, the commission deliberated six months, and no reason appears upon this record for believing that this important body did not exercise their best judgment in fixing the rates. Usually laws of this character are enforced by providing penalties, and those wishing to determine the validity of such a law violate its provisions and test the question in a suit at law, as was done in People v. Railway Co., 116 Mich. 132.

The act here in question provides for a speedy remedy for parties, claiming to be aggrieved by the order of the commission, by a resort to a court of equity, and provides for an expeditious hearing. Such suit is given precedence both in the circuit and Supreme courts over all other cases. The bill in this case was filed February 13th, and answer filed the 16th of February. We find no good reason appearing upon this record why the case could not have been heard in the court below and a final determination had in this court within 60 days from the time of filing the bill. More than that time has already elapsed since the answer to the bill was filed. There is no attempt by this law to prevent a judicial determination upon the action of the commission. On the contrary, every reasonable facility is offered to parties complaining for a prompt appeal to the courts. The facts and enactment in this ease bear little resemblance to the facts and the enactment in Ex parte Young. The legislature has expressly lodged in the circuit court in chancery the power and discretion to determine whether in a given case a preliminary injunction should issue pending the hearing upon the merits. We do not think the relators, as a matter of law, are entitled to the preliminary injunction.

Notwithstanding the strictures made by counsel for the respondent upon the action of the relators and their counsel, it may be fairly assumed that relators and their counsel have acted in good faith and in reliance upon what they conceived to be their right. It may therefore be possible that the relators should have a brief additional time within which to prepare their schedules and comply with the order of the commission.

The writ of mandamus is therefore denied, and the case remanded to the circuit court with leave on the part of the relators to apply to that court for such additional time.

Blair, C. J., and Montgomery, McAlyay, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    KLEINFELT v. J. H. SOMERS COAL CO.
    1. Master and Servant — Death — Negligence — Neglect of Statutory Duty — Assumption of Risk.
    Where the statute imposes a duty upon the employer for the protection of the employé, an injury from the neglect of this duty is not a risk assumed by the employé.

    2. Same.
    Under section 8, Act No. 100, Pub. Acts 1905, providing that only competent and trustworthy engineers shall be permitted - to operate cages and hoisting devices in coal mines, the master is not entitled to notice of the incompetency of a fireman so employed; since by the very employment the master neglected a statutory duty.
    3. Same — Death—Proximate Cause — Negligence—Concurring Negligence of Master and Fellow-Servant — Liability.
    Where, in such action, if one of the proximate causes of the injury was the act of the fellow-servant, still the master would not be relieved from liability if it neglected the performance of duties imposed by the statute; since, where an injury results from the fault of the fellow-servant, concurring with that of the master, both may be liable.

    Error to Saginaw; Gage (William G.), J.
    Submitted January 20, 1909.
    (Docket No. 74.)
    Decided April 30, 1909.
    Case by Ida Kleinfelt, administratrix of the estate of Otto Kleinfelt, deceased, against the J. H. Somers Coal Company for the negligent killing of plaintiff’s decedent. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      J. P. Devereaux and Vincent & Nash (B. L. Crane, of counsel), for appellant.

      Fred L. Vandeveer (TV. J. Lamson, of counsel), for appellee.

       As to servant’s assumption of risk of master’s breach of statutory duty, see note to Denver, etc., R. Co. v. Norgate (C. C. A. 8th C.), 6 L. R. A. (N. S.) 981.

       As to the relation of the proximate cause doctrine to the rule of liability of a master for injuries to his servant caused by combined negligence of himself and a fellow-servant, see note to Lutz v. Atlantic, etc., R. Co. (N. M.), 16 L. R. A. 819.

   Montgomery, J.

This action was brought to recover for damages resulting to the estate of Otto Kleinfelt by negligently causing his death in one of defendant’s mines at St. Charles, Mich., October 24, 1905. At the close of all the proofs, the court directed a verdict for the defendant. It becomes necessary therefore to determine whether there was any testimony offered on behalf of the plaintiff which fairly tended to show facts from which a liability could be drawn.

The defendant’s, mine was about 195 feet deep, and miners and others customarily entered and departed from the mine by means of cages operated in the main hoisting shaft. These cages were raised and lowered by means of cables attached to drums operated by the hoisting engine at the surface, and so arranged that while one cage was ascending the other was descending. The cages used for hoisting coal were the same cages upon which the men were carried. The cage upon which the accident occurred was 6 or 7 feet long and about 4 feet wide. It was open at the two ends, but on the sides a piece of sheet iron extended upwards about 8 feet from the floor. Upon the floor there were laid two tracks lengthwise of the cage, upon which the cars of coal were run. In the middle portion of these tracks, the sections of the floor upon which they were fastened were so constructed that, as the cage started upward from the bottom of the shaft, these sections, each 6 inches wide by 2 feet long, would drop down from 6 inches to a foot, for the .purpose of allowing the car wheels to settle down, and thus hold the car securely in place. These sections dropped down as described when no car was being hoisted. Overhead a trip bar extended across the cage from side to side, so placed that it was about 18 inches from one end. This bar was about li or 2 inches in diameter, and was placed upon the cage for the purpose of dumping it. Where this trip rod was there were also two rollers which held that part of the cage level. The height of the cage was about seven feet. Running from the ends of the trip rod downwards were braces placed outside of the sheet iron sides. At the top of the cage, hinged near the middle, were two covers or lids of sheet iron, the purpose of which was to prevent falling objects from striking persons in the cage. The inside of the shaft was lined from top to bottom with squared timbers or buntings, so laid that there was alternately a timber, then a space, and so on. The cage ran up on guides inside these timbers, and with a very narrow space between the floor of the cage and the inside faces of these timbers.

On the date in question plaintiff’s intestate, who was a miner in defendant’s employ, was down in this mine breaking down coal for removal the following day. He was accompanied by his son, Gus Kleinfelt, a boy between 12 and 13 years of age. About dinner time Kleinfelt and his son and an Italian miner started to walk out towards the shaft to go to the surface. On their way they met the superintendent of the mines, John T. Phillips, and the foreman of this mine, No. 3, Hugh McKenna, Sr., and another man named Alexander, who were working at a pumping engine. Mr. Kleinfelt spoke a few words with Mr. McKenna, and the latter directed him to hurry up and get on the cage. Mr. Kleinfelt, his son, and the Italian immediately went to the cage, got on, and the cage started to go as soon as they got on. Upon this cage when it started to ascend was Clarence Curtis, who was the regular engineer, having in charge the hoising engine at the surface, but who was then doing work in connection with fitting up the pumping engine, also Sidney Traver, helper to the master mechanic, and Kleinfelt, his son, and the Italian. There was also placed upon the cage by Curtis and Traver a piece of iron pipe 1£ inches in diameter and 14 feet long, which they had brought from the pumping engine where they had been working under Phillips and McKenna, and which they were taking to the surface to have recut. Curtis had raised one of the sides of the lid or hood and stood it up against the cable. He then passed the pipe up through the top of the cage alongside of the lid, with the lower end resting on the floor of the cage. The lid was not fastened in any way, but merely stood up in a vertical position against the cable. He then, during the ascent, held the pipe with his hand. Mr. McKenna knew that the pipe was about to be taken in this manner. Gus Kleinfelt, who was at the side of his father daring all of this time, testifies that he did not see the pipe until after he was on the cage. The cage ascended with great rapidity, so that the lights on the caps of those in the cage were all extinguished immediately after starting, leaving the cage in total darkness. It appears that the hoising engine was at this time in charge of one George Tigner, who was not employed as an engineer, but as a fireman. There was some testimony that his reputation was bad as to speed in handling the cage. When the cage had reached a point about 40 feet from the surface, there was a great rattling and shaking of the cage and an outcry by the men, and the cage came to a stop in about 15 feet. All of those on the cage, with one exception, were thrown down flat on the bottom of the cage. They got up when the cage stopped and climbed to the surface, up the buntings or timbers. They found the lid or cover, which Curtis had stood up against the cable, fallen over in its usual horizontal position, and had to push it up again in order to crawl out. When a light was taken into the cage, it was found' that the end of the pipe was stuck into a timber at the side of the shaft, and the pipe was curved around inside of the cage. The two ends of the pipe were 18 inches or 2 feet apart; the platform of the cage being past the timber in which the top of the pipe was caught about 15 inches. Mr. Klein-felt’s body was found between the timbers; the bottom of the cage having come up past his head and shoulders, and he being crushed to death. Life was extinct before he was found. There were no bars or rings placed on this cage to furnish handholds for passengers thereon.

The plaintiff charges the defendant with negligence: In failing to have this cage in the mine fitted with iron bars or rings in proper place, as required by section 15, Act No. 100 of the Public Acts of 1905; in permitting a fireman to operate the cage and hoisting device, contrary to the provisions of section 3 of the same act; in directing the deceased to go upon the cage at the same time that a pipe 14 feet long and 1^ inches in diameter was to be carried; in allowing said pipe to be carried on the cage together with deceased and other passengers; and in not providing a proper catch or safety device for holding the lid at the top of the cage in a vertical position.

The statute (Act No. 100, Pub. Acts 1905) provides, in section 3:

“That only a competent and trustworthy engineer shall be permitted to operate the cages and hoisting devices in all coal mines (any coal mine) of this State.”

By section 15 it is provided :

“Every cage on which persons are carried must be fitted up with iron bars or rings in proper place, .and a sufficient number to furnish a secure handhold for each person permitted to ride thereon.”

That the testimony offered on the part of the plaintiff tended to show a neglect by the defendant of each of the duties defined by these two sections, is beyond controversy. It is also settled in this State that, where a statute imposes a duty upon the employer for the protection of the employe, injury from the neglect of this duty is not one of the risks assumed by the employé. See Sipes v. Starch Co., 137 Mich. 258; Murphy v. Grand Rapids Veneer Works, 142 Mich. 677; Swick v. Cement Co., 147 Mich. 467; Layzell v. J. H. Somers Coal Co., ante, 268. It is suggested that the passenger might have caught hold of the braces or trip rod or sheet iron sides to protect himself, but it is not clear that it would not have been an act of negligence on his part to have caught hold of some of these places. It certainly would have been a great inconvenience for a man of the height of deceased to have reached the trip rod, and it does not appear that the miners were accustomed as a rule to resort to these makeshifts. It was at least a question for the jury as to whether there was a neglect to comply with the statutory provision of providing rings or bars in the proper place to furnish a secure handhold.

The circuit judge seems to have been of the opinion that any fault of the fireman would be a fault of a fellow-servant of the defendant, unless notice of his incompetency was brought home to the company. This view ignores the fact that the fireman was not of the class of mechanics who, under the statute, are authorized to operate hoisting engines such as these, and, this being so, the deceased did not assume the risk of his incompetency. No notice was required to the company of his incompetency, as in his very employment the company had neglected a statutory duty.

It was also the view of the circuit judge that there is no evidence that would indicate that, had the handles been there, this accident would not have happened. It was in evidence that when the crash came all the employés of the cage were thrown violently to the floor of the cage. It was open to inference that, had handles been provided, and had they been in use, this would not have happened, and it might very well have been found by the jury that the death of this decedent might have been averted had these provisions been made. This being so, the most that can be said upon the question of proximate cause is that the presence of this rod might have been a cause of the crash, and that its presence may be said to have been the fault of the fellow-servant; but, if this be so, there were concurring acts of the fellow-servant and negligent acts of the employer in intrusting its hoisting device to one not an engineer who was running the car at great speed, and the failure to provide handles which might have enabled the deceased to avert the injury which came from the concurring fault of the co-servant. The rule is that, where an injury results from the fault of the fellow-servant, concurring with that of the master, both may be liable. McDonald v. Railroad Co., 108 Mich. 7; Hayes v. Stearns & Co., 130 Mich. 287; Lockwood v. Tennant, 137 Mich. 305. To say that the proximate cause of the injury, in the absence of handholds, is something other or different from that neglect of duty, would be practically to render this statute of little value to employés. The occasion for the handhold arises only when an accident occurs, either unforeseen or through the fault possibly of a fellow-servant. It is in this emergency that the handhold is of some value to the employé, and undoubtedly it was with the view of meeting this emergency that the legislation was enacted. It would not meet the purpose of the legislation if the courts should say that it would be impossible to offer direct proof that had the handholds been provided the injury would not have happened, and that therefore no recovery could be had.

The judgment will be reversed, and a new trial ordered.

Blair, C. J., and Grant, Moore, and Brooke, JJ., concurred.


author: Ostrander, J.

text:
    WHITE v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    Railroads — Personal Injuries — Negligence — Evidence — Sufficiency.
    In an action against a railroad company for injuries to a brakeman by reason of a collision of two trains, evidence examined in tbe light most favorable to plaintiff, and held, insufficient to establish negligence on the part of defendant, and a verdict was properly directed in its favor.
    Error to St. Joseph; Yaple, J.
    Submitted February 18, 1909.
    (Docket No. 93.)
    Decided April 30, 1909.
    Case by William White against the Lake Shore & Michigan Southern Railway Company for personal injuries. There was judgment for defendant on a verdict
    directed by the court, and plaintiff brings error.
    Affirmed.

      Richard Price, for appellant.

      Dallas Boudeman, for appellee.
   Ostrander, J.

Plaintiff, employed as a brakeman by the defendant, was injured on the morning of February 23, 1901, in a collision of freight trains at White Pigeon. The collision occurred within the yard limits as fixed by the rule of defendant company. It is the claim of defendant that the crews of both trains were at the moment violating rules of the company and rules of ordinary prudence, the west-bound train in going upon the main line track without protection from trains lawfully using the track, the east-bound train in approaching the yard at an improper speed and, as no switch lights were seen in the yard, without stopping to ascertain if the road was clear. The court below was of opinion that there was no evidence to support a finding that the injury to plaintiff was the result of negligence of defendant. It is the contention of plaintiff that the testimony tends to prove that the brakeman whose duty was, it is said, to protect the west-bound freight against incoming eastbound trains, did not understand his duty, had not been instructed in the manner of its proper performance, and was therefore an incompetent and improper person, at the time, to be employed in that service, and that it also tends to prove that the trainmen in charge of the westbound freight had been notified that the east-bound train in question had been annulled. Both of these facts being established, or either of them, it is claimed that negligence of the master which contributed with negligence of fellow-servants of plaintiff to the injury and the consequent liability of defendant is also established.

As often occurs, the attempt to fix responsibility for the catastrophe is one of some difficulty. We are, however, called upon to decide whether, viewing the testimony which was produced in a light most favorable to plaintiff, questions of fact determinative of the legal liability of defendant to plaintiff in this action ought to have been submitted to the jury. It is convenient to consider events in the order of their occurrence. Freight train 551 is a regular scheduled train running from Grand Rapids to White Pigeon; thence to Elkhart. It bears the same number whether on the Grand Rapids branch or on the main line. On February 22d, in its trip from Grand Rapids to White Pigeon, and because of an excessive fall of snow, a portion of the train was left on the road and the remainder was moved to White Pigeon. There, at 1:45 a. m., February 23d, the conductor and engineman of this train received the following order:

“The Lake Shore & Michigan Southern Ry. Co. “ Telegraph Train Order No. One (1).
“Superintendent’s Office, White Pigeon,
2V23, 1901.
“For White Pigeon, to C. and E. of No. 551.
“No. five fifty No. 550 of February Twenty Third 23rd is annulled.
“A. H. S.
“Conductor and Engineer must each have a copy of this order.
“Time received, 1:45 A. M. — O. K.
“ Given at 1:46 A. M.

The reason for this order may be stated here. Train No. 550, on which plaintiff was riding, is a regular freight train running from Elkhart to White Pigeon; thence to Grand Rapids. It has the same number on the main line and on the Grand Rapids branch. Compared with No. 551, it is the superior train. It is scheduled to leave Elk-hart at 1:40 a. m., reaching White Pigeon at 2:50 a. m., and Grand Rapids at 10:10 a. m. If, therefore, the locomotive and crew of train No. 551 returned over the Grand Rapids branch to move the abandoned cars, they would be using the track of the division upon the time of train No. 550, since they did not expect to arrive with them at White Pigeon before 2:50 a. m. After receiving this order, train No. 551 did move the abandoned cars, arriving at White Pigeon at some time later than 4 a. m. It was there, and for the purpose of proceeding to Elkhart, made train No. 553, by the following order:

“The Lake Shore & Michigan Southern Railway
Company.
“Telegraphic Train Order No. 11.
“ Superintendent’s Office, Toledo, Ohio.
2/23, 1901.
“ For White Pigeon to Conductor and Engineer of Engine No. 362.
“Engine No. 362 three sixty two will run as number five fifty three, 553, White Pigeon to Elkhart.
“A. H. S.
“ Conductor and Engineer must each have a copy of this order.
“ Time received, 4:34 A. M. Given at......M.
Conductor Train Made At Received by O’Doud Engine No. 362 Complete A. H. S. 4:35 A. M. Davenport.”

Train No. 553, on the time card, is a regular train on the main line, leaving White Pigeon at 1:40 a. m., arriving at Elkhart at 2:40 a. m. The train crew was not changed. Nevertheless, train No. 551, then nearly 12 hours overdue, was, by force of this order, and so far as the main line was concerned, canceled. It was train No. 550 and train No. 553 which were in collision. The conductor of No. 553 was Michael O’Doud, the engineman was Frank J. Bock, and the head brakeman was Earl Allison. W. H. Davenport was night train dispatcher of the Grand Rapids branch and was also telegraph operator for the main line. He in no manner controlled the movement of trains on the main line. That control was exercised from Toledo, Ohio. But all orders were signed with the initials of the superintendent, Smith — A. H. S. — by the respective train dispatchers, and the various orders indicated from which office they emanated by being dated at Toledo and White Pigeon, respectively. Before the train left the Grand Rapids branch and proceeded by the left leg of the Y to the main line, Conductor O’Doud asked Davenport where No. 550 was. Davenport inquired and told him it was about leaving Elkhart. This was not an order. The information was not given in writing. O’Doud thereupon told his engineman, Bock, to take the train out and to back in on a main line siding ready to proceed to Elkhart at the proper time. He also told Allison, the head brakeman, to get on the engine, ride around the Y, and go out with a flag. He himself undertook to protect the train from the east. Allison rode to the main line switch, opened it, and, according to his testimony, rode out on the main line upon the engine, intending when the train was clear of the Y to drop off with his lantern and protect the train from anything approaching from the west. To this point there is little material disagreement concerning the facts. The engineer testified that he did not know that Allison rode out on the main line in the engine cab, and that the last he saw of him he had gone ahead of the engine to, and had thrown, the main line switch. He admits that he at once pulled his train out upon the main line. Bock’s excuse for his own actions is that he understood that train No. 550 had been annulled, not on the division only, but also on the main line. He testified:

“ I would not have gone out on the main track at that time in that manner were it not for that order which I received annulling 550.”

Allison’s excuse is: First, that in throwing the switch and in riding out as he says he did he supposed he was obeying the orders of the conductor; second, that after throwing the switch the train came on so fast that he could in no event have preceded it. There is testimony to the effect that, if 550 had been annulled on the main line, then 553 would have had no occasion to send out protection because, at the time, it was using the track, within yard limits, on the time of no train except 550. There is testimony tending to support a finding that Allison, who had no experience as brakeman prior to February 16,1901, had not received the instruction necessary to a proper performance of all of the duties of a flagman. His own testimony, while not entirely in harmony with that given by him at the coroner’s inquest, indicates pretty clearly that he understood that he was obeying the orders of the conductor, and that he was confirmed in his understanding by the fact that the engineer, who had the right to direct his movements, proceeded upon the main line track. It is unquestioned that the engineer knew he had gone ahead to throw the main line switch, knew he' had thrown it, and obeyed his signal to go ahead. It is unquestioned that as the train was moved the brakeman could not have preceded it out upon the main line. There is no testimony tending to prove that the brakeman did not possess intelligence. He knew the necessity for, and had prepared to take with him, a red lantern. There is every reason to believe that he would have left the engine on the main line and remained there until recalled. It does not appear from his testimony that he knew anything about the position of train 550 or about the order annulling it. He did not control or direct the movements of the train, but acted under the orders of the conductor and engineer. The situation, as developed from the testimony of these three men, was as follows: Each was bound to know the right of all trains on the time card. Each was bound to know that in going out upon the main line track with No. 553 the superior right of No. 550, if that train was not annulled, was invaded. O’Doud understood that No. 550 had not been annulled, so far as the main line was concerned, but supposed there was time to make the siding before it could run from Elkhart. He, however, ordered protection for his own train. Bock supposed No. 550 had been annulled upon the main line. Allison did not know it had been annulled, and did not know where it was, but undertook to protect the train in obedience to the order of the conductor, as he understood the order, and as the conduct of the engineman, Bock, indicated that he was expected to do.

It is clear that the fault, so far as the operations of train No. 553 are involved, consisted in leaving the Y without sending out a flag to the west. For this, responsibility rests either upon Bock alone or upon Book and O’Doud. Allison’s competency or want of competency had nothing to do with it. It is not alleged that Bock was incompetent. It is established by the testimony, so conclusively that an opposed finding would be set aside by the court, that Bock should have known that No. 550 from Elkhart to White Pigeon was not annulled by the order first above set out. We therefore reach the conclusion that there is no testimony tending to establish the alleged negligence of the defendant. It is not necessary to examine the testimony showing the manner in which train No. 550 was operated. It is sufficient to say that it tends strongly to prove that when it entered the yard limits it was running at an excessive speed, that the conductor, who was riding in the snow plow, and who from there controlled the movements of the train, discovered that for some reason none of the switch lights in the yard were visible, and that it was practically in collision with No. 553 when the headlight of that train was first noticed.

The judgment is affirmed.

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


text:
    McGREGOR v. McGREGOR’S ESTATE.
    1. Estates of Decedents — Allowance of Claims — Evidence —
    Sufficiency.
    A son presented a claim against the estate of his mother for moneys lent to, and paid out for, her. There was oral testimony tending to prove a loan of $450 in August, 1889, and of various other sums during the years from 1898 to and including 1906. He also produced a writing, dated in November, 1904, executed by his mother, admitting a loan of $450 to pay a mortgage “on my property,” in August, 1889, $50 to pay taxes, in August, 1904, and concluding, “It is my request that these debts and all other money he has given me from time to time be paid out of my property after my death.” Held, there being no testimony tending to disprove the making of the loans as alleged, and none tending to prove that the writing was not intelligently and freely executed, that a verdict for claimant was properly directed.
    2. Same.
    Evidence that claimant’s father, who died in August, 1889, , paid and discharged, in November, 1888, a real estate mortgage upon premises on which his fishery was located had no tendency to prove that the alleged loan of $450 by the son to his mother was in fact a loan to the father, and was rightly excluded.
    3. Same.
    Evidence examined, and held, that in that received and that excluded there is none tending to prove that the writing in question was not intelligently executed by the deceased.
    Error to Saginaw; Gage (William G.), J.
    Submitted April 6, 1909.
    (Docket No. 12.)
    Decided April 30, 1909.
    James McGregor presents a claim against the estate of Elizabeth McGregor, deceased, for money loaned during her lifetime. The claim was allowed in part by the commissioners, and the executor appealed to the circuit court. There was judgment for claimant on a verdict directed by the court, and contestant brings- error.
    Affirmed.

      F. E. Emerick, for appellant.

      William, E. Grane, for appellee.
   Ostrander, J.

James McGregor presented a claim against the estate of his mother, Elizabeth McGregor, who died June 8, 1906. The executor of her estate appealed from the allowance of a portion of the demand to the circuit court. An item of the demand presented is, “August, 1887, to money loaned to release mortgage on property at Pt. Lookout — $450,” with interest for 19£ years at 6 per cent, per annum. The testimony tended to prove a loan of money in the year 1889, instead of in the year 1887. Claimant waived any allowance for interest. The verdict, directed by the court, included the amount of the alleged loan. Claimant introduced in evidence a writing, of which the following is a copy:

“ Cheboygan, November 4th, 1904.
“I hereby acknowledge that I owe my son, Jamés Mc-Gregor, four hundred and fifty dollars, which he loaned me in August, 1889, to release the mortgage on my property, the fishery, at Point Lookout; also fifty dollars loaned me in August, 1904, to pay the taxes on my property. It is my request that these debts and all other money he has given me from time to time be paid out of my property after my death.
her
“Elizabeth (X) McGregor.
mark
“In presence of
“Maude McGregor.
“Subscribed and sworn to before me November 4th, 1904.
“Edward Bouchard,
“Notary Public.”

There was testimony tending to prove the execution of this writing by the deceased on the day it bears date. The appellant (executor) claims that it was error for the court below to direct a verdict because:

(1) There was testimony which raised a question of fact concerning the intelligent execution by deceased of the said paper writing.
(2) Testimony was improperly excluded which tended to prove that she did not intelligently execute the writing.

It appears to be conceded that the paper was executed by deceased on the date it bears, and that it was produced by claimant'. It is further conceded that, if it was fairly and intelligently executed, it is evidence of a continuing contract sufficient to answer the provisions of 3 Comp. Laws, § 9740'. It is not certified that the bill of exceptions contains all, or the substance of all, of the testimony produced at the trial. This court has not had the benefit of an oral argument of the Cause. In each of the briefs filed are eight printed pages, under the head “Statement,” largely devoted to argument. In the brief for appellee but a single correction is made to the statement found in the brief for appellant; yet it is clear that the two statements cannot refer to a single state of facts. We have therefore at some pains examined the record.

Some testimony was introduced which it is claimed tended to prove that no such sum of money was lent by claimant to his mother in 1889 or at any time. Attention will first be given to this subject. It appears that her husband, claimant’s father, died in August, 1889. Testimony for claimant tended to prove that in a few days creditors appeared at Point Lookout, where he had a fishery, and sought to take possession of the fishing outfit; that it was on this occasion that application was made to the claimant for aid which was furnished by him. Thereafter the widow and her daughter managed the fishery business, and it was sold by the widow, seven or eight years later, for $1,500. The real estate connected with the fishery was purchased by James McGregor, Sr., in 1888. It was mortgaged for $500, and the mortgage was paid and discharged November 14, 1888. The record of the mortgage and of its payment and discharge was offerred in evidence upon the theory that, if claimant lent money, it was to his father and to pay this debt. The court excluded it, and we sustain the ruling. There is nothing but the proximity of the event to the date of the alleged loan to connect the transactions in any way.

It appears, also, that the deceased owned a cottage at Boint Lookout and sold it for $400. She owned, also, some houses, which she rented. After the death of the father, the children released to her their interests in the estate. From 1895 to the time of her death she carried balances of cash in bank of from $300 to $850. She was a much respected woman, with a reputation for paying her debts promptly. But it also appears, and checks for the money were produced in evidence, that in 1898,1899, 1901, 1903, 1903, 1904, and 1906 claimant paid, or gave to her, orient her, money in sums varying from $8.50 to $50. It is not proved that she ever repaid any of these sums. They are included in the demand presented by claimant. We find nothing in these facts to show invalidity of the writing relied upon, or to dispute the fact of the original loan.

It further appeared that Elizabeth McGregor was 74 years old when she died, that she had for some time been afflicted with a serious affection of the kidneys, and in various ways exhibited the infirmities attending on old age. In many respects the position of the executor is like the one assumed by contestants in Hibbard v. Baker, 141 Mich. 134; it being claimed in that case, as it is in this one, that the decedent, at the time the instrument in question was executed, was suffering from senile dementia. We said in the opinion in that case, and it may be repeated as applicable here, that:

“ If decedent was afflicted as it is claimed he was, no test can well be applied to determine lucidity and disposing power at any particular time or during any particular interval. It may well be said * * * that, if decedent was competent to make the disposition of his property which he did make, no separate question of undue influence is involved.”

Counsel for the executor made the following offer of proof:

“ We intend to prove that from 1901 on, Mrs. McGregor, she then being past 70 — she was 74 when this paper was signed — that she became in 1901 subject to physical breakdown ; that she was the victim at that time of chronic, permanent, and incurable organic disease, which affected her health and mind, and which led to senility; that that condition of things continued through 1901, 1902, 1903, and 1904, including the time this paper was made, and up to the time of her death. I offer that as a foundation. Then I expect to call other witnesses to prove that the old lady herself had referred to something that she called— that they had induced her to sign — that she didn’t know what it was.”

It appears that the executor who is contesting the allowance of this demand is also a son of Elizabeth McGregor. It is disclosed by the record that counsel and the trial court assumed, in various statements which were made in the presence of the jury, that in the month of May following the alleged execution of the writing here in question, Elizabeth McGregor executed her last will and testament, that it was duly probated, and her mental capacity to make the will was not questioned. In the state of the record, we assume these facts to have been established or admitted at the trial. Before the offer was made, two physicians had been called as witnesses and examined on the part of the estate. One of them had treated the deceased in the years 1905 and 1906, and he stated he did not know her physical or mental condition in 1904. It was while he was upon the witness stand that the offer to prove was made. The other physician had treated Mrs. McGregor professionally for several years. He testified that she was suffering from senility.

“ I believe she had a mental weakness common in people of her age; but not perhaps what you would call insanity. In other words, she was perfectly rational at times and perfectly irrational at other times. She had. what I should consider queer notions, delusions possibly, but they were not present all the time.”

He also testified about her general health, and that the infirm mental condition was more noticeable as she approached ■ the end of life. Testimony of a nonexpert, a neighbor, was to the effect that Mrs. McGregor was sometimes ‘ ‘ a little off, other times she was not. * * * She was all right in her mind, but once in a while she would talk like that. Sometimes she would be all right and the next time she didn’t know much.”

Many objections were made and several rulings; the substance of the rulings being that until some testimony had been introduced tending to prove that the paper writing had been procured by undue influence no further testimony concerning her general health and mental condition would be received. We ought not to, and do not, assume that, in his offer to prove, counsel used the word “ senility ” as meaning “ imbecility,” a meaning sometimes given to it. Appellant appears in court in the right and character of an executor of a will made many months after the writing in question was executed. Such testimony as was received does not tend to prove permanent or continuing mental infirmity; quite the opposite. The offer, then, at best, is one to prove what had already been proved, viz., that this woman had periods during which there was apparent an impairment of normal mental powers resulting from disease and advancing years. Such delusions as she is supposed to have had were harmless and related in no manner to her business affairs. The rulings, in effect, required some testimony directed to the time and act of executing the writing and to her condition at that time. If she was then mentally competent, it does not appear, and it is not claimed, that she was unduly influenced. No witness intimates that she was not at that time mentally competent to do what the writing indicates she did do. On the contrary, the undisputed testimony is that she left her home in Saginaw, traveled alone to and from Oheboygan, remaining a week at Cheboygan. Her ability to transact business before and after November, 1904, is not questioned otherwise than has been stated. Undoubtedly considerable latitude should be given in cases like this one to efforts to establish the exact relations of the alleged contracting parties. Much time has elapsed since this considerable amount of money is claimed to have been lent by a son to his mother. She could read printed matter, but did not read writing and did not sign her name. Such a demand is generally regarded with some suspicion unless it is fairly established by evidence. But, when supported by testimony fair on its face, mere suspicion that wrong has been committed is not sufficient to make an issue of fact to be decided by a jury. We find no testimony tending to prove that the writing relied upon, was not intelligently executed.

The judgment is affirmed.

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


author: Blair, C. J.

text:
    HAEHNLE BREWING CO. v. BOARD OF SUPERVISORS OF JACKSON COUNTY.
    Intoxicating Liquors — Local Option — Elections—Canvass oe V otes — Effect.
    Under Act No. 207, Pub. Acts of 1889, as amended by Act No. 185, Pub. Acts 1899, the determination of the board of supervisors of the vote on the question of prohibiting the manufacture and sale of intoxicating liquors within the county, in the absence of anything in the record impugning the regularity of the proceedings or the accuracy of their canvass of the votes, is final.
    Mandamus by the Haehnle Brewing Company to compel the board of supervisors of Jackson county to recanvass the vote on the question of prohibiting the manufacture and sale of intoxicating liquor.
    Submitted April 26, 1909.
    ( Calendar No. 23,387.)
    Writ denied May 11, 1909.

      Wilson & Cobb, for relator.

      Albert O. Reese, Prosecuting Attorney (Thomas E.. Barkworth, of counsel), for respondent.
   Blair, C. J.

The question of local option having been submitted to the electors of J aekson county at the recent annual election, and the board of supervisors having met for the purpose of canvassing the vote thereon, relator' filed with said board the following protest, supported by affidavits to the truth of the material facts therein alleged, viz.:

“And now comes the Haehnle Brewing Company, a manufacturing corporation, organized and doing business under the laws of the State of Michigan, and engaged in the manufacture and sale of malt, brewed, and fermented liquors in the township of Blackman, in said county, and a taxpayer of said township, having property which is assessed for taxation, and protests against the canvass of the returns made by the board of election inspectors of the first precinct in the township of Columbia, and in the townships of Leoni, Springport, and Norvell, for the following reasons:
“ (1) That in said first precinct of the township of Columbia ballot boxes were used containing no locks, and the ballots cast in said first precinct in the township of Columbia, on the question of local option, were deposited in boxes containing no lock, in violation of the statute of the State.
“ (2) That the ballot boxes used in said first precinct of the township of Columbia, and in which the ballots cast on the question of local option were deposited, were opened by the inspectors of election, or some of them, during the progress of the voting, and not at an adjournment of said board.
“ (3) That in said township of Leoni the ballots cast on said question of local option were not counted or canvassed by the township board of inspectors.
“ (4) That in the township of Springport the voting was carried on in an irregular and illegal manner by the chairman of the board of election inspectors in said township permitting and directing men to enter the voting booth, where electors were preparing their ballots, and prepare the ballots of such electors, without any request on the part of such electors for assistance, in consequence of which a large number of ballots were cast in the presence of persons so entering the voting booth with the elector, thereby illegally exposing the ballots of electors, and destroying the secrecy of the ballot.
“ (5) There was no secrecy or attempt at secrecy in the casting of ballots in said township of Springport.
“ (6) That said election in said township of Springport was unfair, in that no reasonable opportunity was given electors to cast their ballots.
“ (7) That there was no canvass by the board of election inspectors of the ballots cast in said township of Springport.
“ (8) That the ballot box used in the township of Norvell in which the ballots cast on the question of local option were deposited was the same box the ballots cast on the good roads proposition were deposited in, in violation of the statute of the State of Michigan.
“(9) That the undersigned, the Haehnle Brewing Company, protests against the canvass of the votes cast in the townships above mentioned, and also in the townships of Concord, Grass Lake, Hanover, Henrietta, Liberty, Napoleon, Pulaski, Rives, Sandstone, Spring Arbor, Summit, Tompkins, and Waterloo on the question of local option, for the reason that all the questions submitted to the electors at such election were not printed on one ballot, but on separate and distinct ballots, in violation of section 3657, 1 Comp. Laws.”

Relator also presented to and filed with the board a petition for a recount supported by affidavits containing, among other allegations, the following:

“Your petitioner further shows that it is informed and believes that in the township of Concord 11 votes cast on said proposition were thrown out and not counted by the township board of inspectors, all or a majority of which were against the proposition of local option, and should, as your petitioner believes, have been counted and certified by said board; that in the township of Spring Arbor a large number of votes, to wit, 35, as your petitioner is informed and believes, were cast, which contained distinguishing marks, but which were counted and certified by the board, a majority of said votes so containing distinguishing marks being in favor of local option; that in the township of Grass Lake a voter who was being instructed under the direction of the board how to prepare his ballot was importuned to vote in favor of local option, in violation of the statute, which constituted, as your petitioner is advised and believes and charges, a fraud; that in the township of Tompkins four votes cast against the proposition for local option were, as your petitioner is advised and believes, thrown out, which should have been counted and certified by the board in its return; that in the townships of Henrietta and Norvell the ballots on the amendment regarding the good roads proposition and the local option ballots were put in the same box. Your petitioner further shows that it has good reason to believe, and does believe, that errors were made in the canvass and return of the votes upon said proposition in the townships of Columbia, Concord, Grass Lake, Hanover, Henrietta, Leoni, Liberty, Napoleon, Norvell, Pulaski, Rives, Sandstone, Spring Arbor, Summit, Tompkins, and Waterloo, and that the correction of such errors will materially change the number of votes reported as cast for and against said proposition. Wherefore, this petitioner asks that said board of supervisors, constituting the board of canvassers, appoint a committee to investigate the facts set forth in this petition, and to make a recount of all the votes cast on such proposition in the townships last above mentioned, except the townships of Columbia, Leoni, Norvell, and Springport, and that, in case said board of canvassers refuses to exclude from its canvass the votes certified from the townships of Columbia, Leoni, Norvell, and Springport, then that a recount of all the votes cast in said townships of Columbia, Leoni, and Norvell be made, and that said board make correction of the mistakes and errors in said returns, and that your petitioner have such other and further relief in the premises as it may be entitled to.”

The board of canvassers declined to consider either the protest or the petition for a recount, but canvassed the vote, and determined that the result of the election was in favor of prohibiting the liquor traffic within said county, adopting the resolution required by section 18 of the local option act (Act No. 207, Pub. Acts. 1889) as amended by Act No. 183, Pub. Acts 1899.

Upon application by relator, an order to show cause was issued, directed to respondent. The return of the respondent includes the following:

It admits that it ignored the protest and petition so presented by said petitioner, believing that the same presented no question which the board had any right to investigate or inquire into, the same in no way impeaching the regularity of the returns made by inspectors of election of the various precincts in said county, canvass of which was being made by respondent. And it further admits that it did ascertain and determine from such returns before it that a majority of all the legal voters voting on such proposition within said county had voted to prohibit within such county the manufacture of liquors and the liquor traffic, and that, having so determined and declared, it did in accordance with the provisions of the statute governing such proceedings order the prohibition within the limits of such county of the manufacture, sale, keeping for sale, giving away or furnishing of any vinous, malt, brewed, fermented, spirituous, or intoxicating liquors, or any mixed liquor or beverage, any part of which is intoxicating, and to prohibit the keeping of a saloon, or any other place where such liquors are manufactured, sold, given away, or stored, adopting therefor a resolution at the same meeting of the board, which said resolution was spread in full upon the journal of its proceedings, and set forth in a preamble thereto the fact that said election was duly held in the county, and that sufficient returns and statements had been canvassed by them and the result thereof ascertained, and that such result was in the affirmative of such proposition, and that the majority in favor thereof in said county was 64, and that the same had been so determined and declared by respondent board, and that all the proceedings taken by said board in the premises were in absolute accordance with the provisions of the law governing the same; that in such canvass by this respondent each and every voting precinct of the county had duly and properly made return in accordance with the requirements of law, and the same had been duly examined by said board as laid before them by the county clerk of said county, and a tabulated statement of all the votes cast was duly made by said board and entered in full upon the journal of their proceedings for that day, and signed by the acting chairman and clerk of the board, and that the regularity of each of said returns or statements of the election inspectors of the various precincts and all thereof in said county was duly and properly determined by said board.”

We are of the opinion that consideration of the questions presented by this record is foreclosed by our previous decisions.

In Feek v. Bloomingdale Township Board, 82 Mich. 393, Chief Justice Champlin, writing for the court, said:

“I do not see that the section [12] vests judicial power in the board of supervisors. The preceding section (11) makes them a canvassing board for the purpose of tabulating the votes and ascertaining and declaring the result. * * * There is no judicial action or determination, but their action under this section is wholly administrative. It is not every exercise of discretion in administrative affairs that makes such action judicial. Wherever a trust or confidence involving the exercise of discretion is reposed, it must be exercised, but, because it involves investigation, inquiry, and the exercise of discretion and choice, it is not necessarily the exercise of judicial powers. The law does not authorize them to reject any return made to them.- On the contrary, they are to tabulate all the returns made.”
In Thomas v. Abbott, 105 Mich. 687, it was said:
“Section 13 of the act in question provides for action by the board when the result of the county canvass shall show that a majority of the votes cast is in the affirmative. Unless we are to hold that the validity of the local option law is subject' to attack by every citizen in the county in succession, and liable to be held valid one day and invalid the next, as the testimony in individual cases varies, we must conclude that the determination of the board is final. Such is the rule in county-seat cases, and this statute cited (section 13) implies as much in this case, while section 14 explicitly states that the resolution of prohibition is conclusive upon the regularity of the prior proceedings. The jurisdiction being shown by a valid record, a valid canvass, followed by the adoption of prohibifcion, must be held conclusive upon all. Pinkerton v. Staninger, 101 Mich. 373.”
In Pinkerton v. Staninger, cited in support of the court’s conclusion in Thomas v. Abbott, supra, it was said:
“It has been settled by the repeated decisions of this court that the decision of the supervisors in canvassing and determining the vote upon the question of the removal of the county seat is conclusive, and that no judicial review of their action is provided by law.”

In the absence of anything in the record impugning the regularity of the proceedings of the board or the accuracy of their canvass of the votes before them, their determination must be considered final, and the application for the writ of mandamus is denied, with costs to respondent.

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