author: MoAlvay, J.

text:
    KNUDSEN v. CITY OF MUSKEGON.
    1. Municipal Corporations — Pleading — Amendment — New Cause oe Action.
    A declaration which charges negligence on the part of a municipal corporation, in leaving an uncovered water meter box in the street, causing plaintiff to fall, and which omitted to charge a specific duty of the defendant, is subject to amendment setting forth the duty relied on as a common-law duty, and such amendment 'does not state a new cause of action, where the count amended charged no statutory duty and referred to the street as incident to the location of the meter box.
    3. Same — Notice oe Claim — Negligence.
    The notice to a municipal corporation is not a pleading, and need not charge negligence.
    3. Practice — Election Between Counts.
    Counts are not so inconsistent as to require an election between them on the trial, where one count charged that the meter box was uncovered, and the other that it was improperly covered with loose boards.
    4. Damages — Pain and Sueeering — Future Operations.
    Evidence that the physical condition of plaintiff would probably require future operations, warrants the court in submitting to the jury the probable future physical sufferings therefrom as an element of damages.
    Error to Muskegon; Sessions, J.
    Submitted May 5, 1909.
    (Docket No. 81.)
    Decided September 21, 1909.
    Case by John A. Knudsen against the city of Muskegon for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      James E. Sullivan, for appellant.

      William Carpenter, for appellee.
   MoAlvay, J.

Plaintiff recovered against defendant damages for personal injuries caused by falling into an uncovered opening which contained a city water meter on Prospect street, in said city. This street runs nearly north and south. Plaintiff lives on the west side of this street. The meter box into which he fell is diagonally across the street, about 66 feet farther south. -The city operates its waterworks, selling water to private citizens, and puts in cement meter boxes in which are located the water meters, which belong to the city and are under its control. This box was within two feet of the cement sidewalk, and about in line with the shade trees in the parking between the sidewalk and the curb. It was 5 feet and 8 inches in depth, and 20 inches square. It was completed by the city employes June 10, 1907.

At about 9 o’clock in the evening of July 80, 1907, plaintiff crossed this street to go to á house farther south and beyond the Jensen property, which he passed on his way. He returned in 10 minutes. He knew that there was a pile of lumber in the street before the lot where Jensen had been building, but did not know about the meter box, or any hole in the ground. On his return home, when passing Jensen’s house, he saw a light in his own house, and started to cross the street. It was too dark to see where he was stepping, and the second step from the sidewalk he fell into this meter box and was injured. The box was not covered at the time. Of the errors relied upon, alleged to have been committed during the course of the proceedings, and upon which a reversal of the judgment is asked, defendant first discusses the amendments to the declaration allowed by the court.

When. the case was first brought on for trial, and the court was about to direct a verdict for defendant, it is stated in both briefs that, upon application of plaintiff, he was allowed to amend his declaration, and the case was continued. Under such permission two counts were added to the declaration. Defendant has in proper form raised the question whether plaintiff can recover upon the amended declaration j it being claimed that a new cause of action has been alleged. The declaration upon which the case was first tried consisted of two counts. The first count alleged that this street was, at the time of the injury, and for many years had been, a street open for public travel and under the care and control of defendant, and charging a duty to keep the same in reasonable repair and in a condition reasonably safe and fit for travel, etc., alleging the construction of this meter box and leaving it uncovered, and charging that it was negligent in so doing, and in not keeping the street in the required safe condition, etc. The second count set forth that this was done by defendant, duly authorized and engaged in selling and furnishing water to its citizens, and the placing of the meter box—

“Constructed in a public street in said city open and used for public travel which defendant negligently left uncovered, * * * and thereby put the said street in a dangerous condition and unsafe for public travel during all that time, into which plaintiff fell,” etc.

In this count no duty is charged. The third count, added by amendment, differed from the first only in that it charged that the opening was negligently and carelessly left with insecure and improper covering. The fourth count, also added by amendment, is substantially the same as the second, except as to the negligent covering, which is alleged the same as in the third count, and it omits the words above quoted:

“And thereby put the said street in a dangerous condition and unsafe for public travel all that time.”

Defendant contends that the first, second, and third counts are all based upon the statutory right to recover damages for personal injuries upon a highway in Michigan caused by negligence of the municipality; that the fourth count charges a new substantive cause of action, charging and setting forth an action for common-law negligence. We do not agree with the defendant that the second count charges negligence under the statute. Although it is set forth that the condition permitted by defendant was in a public traveled street, and put the street in a dangerous condition and unsafe for travel, it is evident that such statements are incidents of location and condition, and the count as a whole would not be sufficient for a recovery under the statute by reason of the omission of material allegations of duty imposed or neglected. Defendant has presented this question learnedly and at length in its brief. It will not be necessary further to consider if or discuss cases cited on either side. The trial court denied a recovery on the first and third counts, and submitted the case upon the second count as amended by the fourth. The court was not in error in allowing the amendments objected to. We are not called upon to say that a recovery could not have been had under the first and third counts, under the facts claimed by plaintiff, and express no opinion upon that question.

Objection was made that the claim as presented'to the council was not sufficient, in that it did not comply with the requirements of the city charter, which provides that—

“No claim against said city for damage growing out of the negligence or default of said city, or of any officer or employé thereof, shall be audited or allowed, unless it shall be accompanied with an affidavit of the person sustaining such damages, stating the time and place at which, and the cause and manner of sustaining such damage, and the facts connected therewith.” Act No. 344, Local Acts 1901, tit. 7, § 20.

The notice in question, filed in due time, detailed with particularity the time, place, and manner of the injury, and upon the question of cause stated that this opening, describing it and its purpose, was left uncovered; that he did not see it in the nighttime, and did not know it was there. The court held the notice sufficient. The objection is that the notice states no negligence on the part of the city. It is not intended that this notice should charge negligence specifically. This court has said: “ This notice is not a pleading,” and in several cases has held notices good which were less specific than the one in this case. Brown v. City of Owosso, 126 Mich. 91 (85 N. W. 256); Wheeler v. City of Detroit, 127 Mich. 329 (86 N. W. 822); Wilton v. City of Flint, 128 Mich. 156 (87 N. W. 86). The notice was sufficient.

An examination of the record relative to alleged misconduct ■ of counsel for plaintiff during the trial discloses no conduct which warrants the criticism made by counsel for defendant, or which was prejudicial to defendant.

Error is assigned upon the refusal of the court to require plaintiff to elect upon which of the counts that were allowed to stand in the case he would proceed, on the ground that these two counts were inconsistent. We have already stated that the second count was not on the statute charging that the city did not keep its streets in reasonable repair and fit for public travel. Defendant claims that, even if this is so, the charges of negligence in the second and fourth counts are contradictory. This is based upon the fact that one charges that the meter box was not covered and was left uncovered until the accident, and the other (which is an amendment) charges negligence, in that the defendant failed to properly cover the meter box, placing over it loose boards, etc. The counts were not inconsistent.

The final error assigned is upon the following charge of the court on the question of damages:

‘c He will be entitled to receive compensation for his physical sufferings in the past and for such as will result in the future from his known physical condition due to his injury and from operations for his relief.”

This charge, under the evidence in the case, was within the decisions of this court. Beattie v. City of Detroit, 137 Mich. 319 (100 N. W. 674), and cases cited.

The judgment will be affirmed.

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


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    CONLEY v. SUPREME COURT, INDEPENDENT ORDER OF FORESTERS.
    1. Insurance — Fraternal Beneficiary Societies — Use op Drugs.
    In an action upon a policy of insurance, which forfeited the interest of the insured, under a by-law, for excessive use of intoxicants or narcotics, the evidence showing that deceased, used morphine to excess, and had twice attempted to be cured of the habit, and no expert testifying that in his opinion the morphine used was not injurious to the deceased, it was error to refuse a peremptory instruction for the defendant.
    2. Same — Suspension prom Society.
    Failure of the representatives of deceased to prosecute his appeal from a suspension from the order precludes a recovery.
    3. Same — Exhaustion op Remedies within Society.
    No aotion could be instituted until the remedies given within the order were exhausted, as provided by a by-law of the association.
    Error to Lapeer; Smith, J.
    Submitted June 8, 1909.
    (Docket No. 8.)
    Decided September 21, 1909.
    Assumpsit by Mary Conley against the Supreme Court, Independent Order of Foresters, on a policy of insurance. A judgment for plaintiff is reviewed on writ of error.
    Reversed.

      Greer, Williams & Halpin, for appellant.

      William E. Brown, for appellee.
   Hooker, J.

The plaintiff, a widow,"recovered a judgment against the defendant upon a certificate issued upon the life of her husband, in which- she was named as beneficiary. The defendant has appealed. The deceased. joined the defendant order in 1897. The undisputed testimony shows that in 1900 or 1901 he began taking morphine, and as early as 1903 he had become addicted to its use, and that in that year he went to an institution for the cure of the habit, and after a stay of three months he returned much improved. The plaintiff so testified, and also stated that he did not use morphine for about a year after his return, during which period his health was much better, and that in 1906 he had again become addicted to the use of morphine, and went to an institution at Dear-born, at the suggestion of his brothers, and afterwards to the hospital at Detroit, because he wanted to be cured of it. There is much evidence justifying the conclusion that the morphine habit is deleterious to health generally, if, indeed, we may not take judicial notice of such fact.

The importance of this testimony arises from a provision (section 154) of defendant’s by-laws, which provides that:

“Any member of the order who shall engage in or participate in any unlawful or foolhardy undertaking, or who shall use intoxicants or opiates or other narcotics to such excess as to endanger his health, or to materially affect the risk upon his life, or to directly or indirectly cause, his death, * * * shall ipso facto forfeit all claims of whatever nature which he or his beneficiaries might otherwise have had upon the supreme court, and all such claims shall ipso facto lapse and become and be absolutely null and void, and he and his beneficiary or beneficiaries, or heir or heirs, or legal personal representative or representatives, shall not be entitled to receive and shall not be paid any benefit whatsoever by the supreme court.”

To break the force of the testimony mentioned above, counsel for plaintiff offered testimony by the plaintiff tending to show that in 1900 or 1901 her husband injured his back, and that he afterwards suffered great pain, and. that so far as she knew he always took morphine for the purpose óf allaying such pain. Upon this, and professional evidence that morphine is a drug given to allay pain, and that when the patient is in extremis its use may prolong life, counsel claimed that it was competent for the jury to find that the deceased had no morphine habit deleterious to health, or to materially affect the risk upon his life; and it is evident that the jury so determined.

The testimony also conclusively showed that a short time before the death of Dr. Conley, and late in August, 1906, the defendant first received information that he had become addicted to the use of morphine to an extent that it endangered his health and materially affected the risk upon his life, and after an investigation a citation was served upon him to show cause to the executive council of the order on October 6, 1906, why he should not be expelled from the order for using morphine. He paid no attention to the citation, and the executive council suspended Dr. Conley on October 6th. Notice to this effect was sent to the local court on October 10, 1906, and also to Dr. Conley, and on October 22d he signed a letter, written by this plaintiff, appealing from the decision to the supreme court of the order, and this was duly forwarded. Dr. Conley died on October 24, 1906. The appeal was not prosecuted by or on behalf of the beneficiary, as it might have been under the provisions of by-laws (No. 196):

“ Sec. 196. (1) The right of appeal shall be vested in every member of the order, and in case of the death or disability of a member the right of appeal shall be vested in his beneficiary or legal personal representative or other person deriving legal rights from him or them or any of them.”

Defendant contends that by reason of this decision of the executive council the deceased was not a member in good standing at the time of his death, and therefore no recovery could be had upon the certificate.

Plaintiff made several claims in answer to this:

(1) That it was an unreasonable by-law, which required the member to go to Toronto, Canada, to prosecute the appeal, and therefore that there was no obstacle to this suit.

(2) That the right of the defendant to assert plaintiff’s habit and suspension as a defense was waived by accepting dues for the month of October, after learning of such habit.

The testimony bearing on this subject is, in substance, that on September 30th, and before it was brought to defendant’s attention that Dr. Conley had such habit, the local court collected $1.19, the dues for October. Of this sum 94 cents was sent to the defendant as its share. This reached defendant on October 23d, which was the first information received by it of such collection. On October 30th it returned the fund to the local court, with directions to hand the money back to the persons who paid it, for the reason that Dr. Conley was not a member in good standing at the time it was paid. As we understand it, the sum of 94 cents was tendered back twice by the local court.

Proofs of death were filed by the plaintiff. ' The bylaws (section 162) provide that, “if the supreme chief ranger has doubt of the validity of the claim, he may reject it.” The by-laws ( section 201) provide further that:

“ Seo. 2Q1. (1) No member of the order, nor his beneficiary, nor his legal personal representative, nor other person in any way interested in any of his benefits, nor any one deriving legal rights from him, or them, or any of them, shall be entitled to bring any civil action or other legal proceeding against the supreme court, or against any other court or branch of the supreme court, until he shall have exhausted all the remedies provided in the constitution and laws by appeals and otherwise; and any member of the order, or his beneficiary, or his legal representative, or other person in any way interested in any of his benefits or deriving legal rights from, through, by, or under him or them, or. any of them, who shall, bring any civil action or other legal proceeding against the supreme court, or against any court or any other branch of the supreme court, before he shall have exhausted all remedies within the order by appeals and otherwise, shall ipso facto forfeit all benefits and all rights, claims, and demands therein and thereto to which he or they or any of them might otherwise have been entitled, and if he be a member of the order he shall ipso facto stand suspended from the order.

“ (2) Where the laws of the Province, State, or Country in which a member has a fixed place of abode, or, if deceased, had a fixed place of abode at the time of his death, legally give and recognize the right of the member or other person claiming legal rights under him to maintain an action after the decision of the executive council on appeal on matters relating to the monetary benefits of the order, the right is hereby expressly reserved to the member himself, or to his beneficiary or legal personal representative, or to other persons deriving legal rights from him or them, or any of them, to bring action thereon in any civil court of competent jurisdiction; provided that all the remedies in section 197 shall first be resorted to and exhausted by appeals and otherwise as a condition precedent to the right to bring any such action or maintain the same in a court of law or equity.”

The points discussed are:

(1) That the undisputed testimony shows that deceased had used morphine to such excess as to endanger his health and materially affect the risk on his life, and the court should have directed a verdict for the defendant for that reason.

(2) That under the contract the occasion of deceased’s use of morphine was immaterial, and it was error to submit the case to the jury upon the theory that, if taken to allay pain, it was not a violation of the contract.

(3) The court should have directed a verdict' upon the ground that by reason of his suspension the deceased was not a member of the defendant order in good standing at the time of his death.

(4) That a verdict should have been directed in defendant’s favor upon the ground that plaintiff did not appeal from the order of the chief ranger disallowing her claim.

(5) That the court erred in denying a motion for new trial.

The proof in this cause that the deceased was addicted to the use of morphine to an extent that was injurious to and endangered his health and was material to the risk is overwhelming. The learned circuit judge must have taken this view of it, for he stated that:

“ I feel very free to say that, if I were to dispose of this as a question of fact, I could not for a moment give this lady a judgment. From my mind the facts are almost overwhelming that he did have the habit of taking morphine, and that under the by-laws of this order and the provisions of the sections that have been read here his beneficiary could not recover; but there is some, and lam not so sure but there is enough, testimony here so that the plaintiff is entitled to argue the question, answers that the doctors gave here, that the danger from the pain was greater than that of the morphine, and he did not have the habit at all, but he was taking it for the pain. I could not believe that at all; but I think it can be argued to the jury. If he had the habit, whether it grew by administering morphine for the pain in the first place, or acquired the habit, the insurance is void, or was void when the question was raised by the order. I have more confidence in the jury than counsel for defendant has. If my record and reputation depended upon it, I think I would take this case from the jury. I think I should. * * *

“ But for one proposition I should have disposed of this case myself. But it is not the province of the court to dispose of disputed questions of fact. Counsel for the claimant present one proposition to you as an excuse by Dr. Conley in the use of morphine, and I can state it no b'etter than reiterate Senator Brown’s version made in your hearing a moment ago. He used this expression: ‘Not a drop, mind you, not a grain a day, of morphine was used by Dr. Conley, except to allay pain.’ And if the jury find this to be so, then the plaintiff is entitled to a verdict. * * *

“ The statement of the claimant is, and the theory presented for her by her counsel is, this: That Dr. Conley had his back injured several years before he died, I think by the lifting of a tub and slipping at the time, and that at some subsequent period, I think two or three years, perhaps I am wrong about the time, he sprained his back again, and that those sprains gave rise to severe — counsel say, excruciating — pain, and that this was continued, and that Dr. Conley, being a physician, took this morphine entirely to allay pain, and that he never did indulge in it as a habit at all; that he took no more morphine than was actually necessary to allay this excruciating pain, ‘ and he never continued it any longer than was necessary to allay the pain.

“ Now, if it is established by a fair preponderance of the evidence that those are the facts, then you may find a verdict in favor of the plaintiff. * * * I have given the law to be that unless Dr. Conley commenced taking this morphine for the purpose of allaying pain, that unless he had continued pain in the back which made it advisable to administer it, and that he took no more of it than was necessary to allay continued pain, so that you can fairly say that the injury from the pain would have been as great without the morphine as in the using of it to allay the pain, your verdict must be for the defendant. But if you can fairly say that this is true from the record, then your verdict should be for the plaintiff in the sum of one thousand seventy-nine and dollars.”

Again, if there is any testimony that tends to show that the morphine taken during this long period was in every instance taken to allay excruciating and continuous pain, resulting from an injury to deceased’s back, and not only that, but that the morphine prolonged rather than shortened his life, and therefore was not injurious to the risk, it must be. found in the testimony of the plaintiff, or the brother of deceased, and that of experts who testified that cases might arise where such would be true. No one testified, however, that in his opinion this was true in this case, either from knowledge of conditions, or in answer to hypothetical questions fairly covering the conclusively shown conditions, and the proof most conclusively shows the contrary.

The wife’s testimony shows that her husband went twice to be cured of the drug habit, after the alleged injury to his back, which she said had “so grown on him that in her opinion he could not control himself in its use.” While she said that he was a very sick man with his back, she also said that, when he said he was going to Eloise to get well, she supposed he meant “well of the morphine habit,” and “the only way he could get well of that was to go somewhere for treatment.” Moreover, on his return he was- better as to the habit, and his general health was “very much improved,” and for a time, perhaps a year, he refrained from taking morphine; but in 1906, he had occasion to go again, at the suggestion of his brothers. She said:

“ He went to the Retreat because his brothers thought he would have good care there. He had become addicted to the use of morphine again, and went there for treatment, because he wanted to be cured of it. I can’t tell exactly how long he had been taking morphine after he came from Eloise before he went to Dearborn, and don’t know how long he was in that Retreat at Dearborn. He went back to Eloise from the Retreat at Dearborn, and' I suppose that .was still a hospital for the treatment of persons addicted to the morphine habit, the same as it was before.”

The testimony of John Conley, deceased’s brother, does not show that the deceased .took morphine for pain, or that he did not go to Detroit and Eloise to get cured of the morphine habit. In fact, there is no testimony from which it can be legitimately inferred that during this period, from 1900 to 1906, deceased wasina condition where morphine was necessary to, or would, prolong his life. He was not in a critical condition, requiring “ temporary relief ” from morphine, certainly not where its habitual and regular use was required to prolong his life. It was, therefore, error to leave this question to the jury.

Counsel for defendant also urged that the deceased was not a member in good standing at the time of his decease, having been suspended and his appeal not having been prosecuted by the plaintiff or deceased’s representative; and, again, that plaintiff’s failure to appeal from the rejection of her claim precluded her from prosecuting it in a court of law, she not having éxhausted her remedy in the tribunals of the order as required by the by-laws (see by-law 201, hereinbefore quoted); and, further, that under the by-laws the decision of the order was final in this State. These propositions are supported by many cases in this State. Van Poucke v. Netherlands St. Vincent De Paul Society, 63 Mich. 378 (29 N. W. 863); Canfield v. Knights of Maccabees, 87 Mich. 626 (49 N. W. 875, 13 L. R. A. 625, 24 Am. St. Rep. 186); Hembeau v. Knights of Maccabees, 101 Mich. 161 (59 N. W. 417, 49 L. R. A. 592, 45 Am. St. Rep. 400); Fillmore v. Knights of Maccabees, 103 Mich. 437, 109 Mich. 13 (61 N. W. 785, 66 N. W. 675); Rose v. Supreme Court, Order of Patricians, 126 Mich. 577 (85 N. W. 1073); Hoag v. International Congress, 134 Mich. 88 (95 N. W. 996); Derry v. Great Hive, L. O. T. M. M., 135 Mich. 494 (98 N. W. 23); Harris v. Typographical Union, 144 Mich. 422 (108 N. W. 362).

It is obvious, also, that the court erred in denying the motion for a new trial; the verdict on the one point submitted being against the testimony in the case. Other points discussed by appellee’s counsel need not be further referred to, as they cannot affect the result.

The judgment is reversed, and a new trial ordered.

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


text:
    UNION TRUST CO. v. COMMON COUNCIL OF CITY OF DETROIT.
    Municipal Corporations — Appropriations—Construction.
    An appropriation for a new pumping station and machinery, in the absence of evidence that a site was not intended, must be construed to include all things necessary for the station, including a site.
    Appeal from Wayne; Mandell, J.
    Submitted June 10, 1909.
    (Docket No. 51.)
    Decided September 21, 1909.
    Bill by the Union Trust Company, administrator of the éstate of Joseph H. Berry, deceased, and others, against the common council of the city of Detroit and others to enjoin the payment for a site for a pumping station. From a decree for complainant, defendants appeal.
    Reversed, and bill dismissed.

      Angelí, Boynton, McMillan & Bodman, for complainants.

      Bichard I. Lawson (P. J. M. Hally, of counsel), for defendants.
   Hooker, J.

In planning and providing for sewers for that portion of the city of Detroit which was previously known as Fairview, it was found necessary to include a pumping station and pumps. The commissioner of public works asked the council and the board of estimates for an appropriation in the following language:

“Newly annexed district, Fairview, for constructing to Connor’s creek, sewer and outlet, $100,000. For pumping station and machinery, $60,000.”

This was referred to the committee on estimates, and it was reported by said committee in the same language. This report was unanimously adopted by the council, and the amount was raised by tax in the year 190?. Thereupon the commissioner of public works entered into a contract for a site for the pumphouse, for the sum of $20,000, and this was confirmed by the council September 8, 1908. Thereupon the complainants filed the bill in this cause, and procured a decree restraining the payment for said site, and the defendants have appealed.

Oral testimony was given showing that the city engineer made the estimate, and that from such estimate remaining in his office it appeared that he did not include any sum for a site. It also appeared by testimony that the sums recommended were found insufficient to pay for the construction of the sewer and the erection of the pumphouse and machinery, and the city engineer has asked for $102,000 in addition to the $160,000 raised, in which he includes $20,000 for a site. The engineer testified that he omitted an item for a site in his first estimate because he supposed the house would be built on land then owned by the city. We do not discover that the council was advised of the engineer’s omission to include an item for a site, or his supposition that the pumphouse would be erected on land then belonging to the city, or that either the council or board of estimates supposed the site not to be included in the estimate, or approved of a location on land then belonging to the city. There cannot well be a pumping station without a site, and it would be naturally inferred that an appropriation for a pumping station and machinery included any and all things necessary for the purpose in view, site, building, machinery, pumps, and any other items not specifically mentioned. We must so hold, in the absence of clearer evidence than this record affords that the council intended something less.

The decree is reversed, and the bill dismissed, with costs of both courts.

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


author: Ostrander, J.

text:
    FORSYTH v. CITY OF SAGINAW.
    1. Municipal Corporations — Negligence in Maintaining Sidewalks — Notioe of Defective Condition — Saginaw Charter.
    Under the provisions of the charter of the city of Saginaw, a declaration charging negligence in keeping sidewalks in repair is demurrable for failure to allege that a notice in writing of the particular defect in the street or walk was actually served on the city board of public works.
    3. Constitutional Law — Notice of Defective Sidewalk.
    The legislature has power, by a local act, to limit the liability of a municipality for injuries sustained from defective streets or sidewalks to cases where a notice in writing of the defect shall have been served upon the board of public works.
    Error to Saginaw; Gage (William G.), J.
    Submitted June 9, 1909.
    (Docket No. 26.)
    Decided September 21, 1909.
    Case by Adeline Forsyth against the city of Saginaw for personal injuries. An order sustaining a demurrer to the declaration is reviewed by plaintiff on writ of error.
    Affirmed.

      Herman Pistorius and James H. Davitt, for appellant.

      John F. O’Keefe, for appellee.
   Ostrander, J.

The action is brought to recover damages for injuries which plaintiff claims were sustained in tripping or falling upon a defective sidewalk in defendant city on November 38, 1906. It is alleged in the declaration that the city had knowledge of the defective condition of the walk, and neglected for a year and more to repair it. The charter of the defendant city contains the following provision:

No civil action shall be maintained against the city for damages or injuries to persons or property sustained in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructive, unless it appear that written notice of the particular defective, unsafe, dangerous or obstructed condition of such street, highway, bridge, culvert, sidewalk or crosswalk was actually given to the board of public works; and that there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger or obstruction complained of. All actions against the city of Saginaw shall be commenced in and trial had in the circuit court for the county of Saginaw.” Act No. 566, Local Acts 1905, tit. 24, § 24.

. There is no allegation in the declaration that any written notice of the defective condition of the sidewalk was •given to the board of public works. Defendant demurred-to the declaration, and the only ground of demurrer to which the attention of this court is directed is the failure to aver the giving of such notice. The demurrer was sustained. It is said in the brief for appellant that, inasmuch as the fact that the defendant had knowledge of the condition of this sidewalk is alleged, there is no necessity for setting out in the declaration the evidence relied upon to prove such knowledge. It is evident, however, that decision in the court below did not turn upon a mere question of pleading. The arguments presented involve both the construction and the validity of the charter provision. It is said that, properly construed, it would have no application to cases where the city itself created a dangerous condition of the highways; that in many cases, as where an improvement was carried on by the city itself, and a dangerous condition of the highways left unguarded overnight, the city would entirely escape liability to one injured during the night. The reasoning employed is that, as in such a case notice would add nothing to the knowledge possessed by the city authorities, so it would add nothing, and should not be required, in any case where the city had actual knowledge of the defective condition of the streets. Assuming that the words employed in the charter cover every case of dangerous and unsafe condition of the highways, however created, we are not now required to determine whether the legislature may thus limit the common-law liability of a city to respond in damages to one injured because of its acts of misfeasance. The case made by the declaration is one of nonfeasance, of neglect to keep a sidewalk in repair. In such a case liability on the part of the city is created by statute. 1 Comp. Laws, §§ 3441-3445. The charter provision is construed as applying to all cases of civil action arising under the general statute above referred to. Beyond this we have no occasion to go.

The question presented, then, is one of legislative power. The general statute which has been referred to applies, in terms, to all cities. It is assumed upon abundant authority that, notwithstanding the general law, the legislature had power to dispose of this whole subject by a local act applicable to the particular community. In Maclam v. City of Marquette, 148 Mich. 480 (111 N. W. 1079), the charter which was considered provided that the city should never be liable for any damages sustained by any person in consequence of the neglect of any person to keep sidewalks clear of snow, ice, dirt, wood, or other obstruction. The charter was enacted in 1871. At that time there was no statute imposition upon cities of any duty in the premises, and the law of the State denied liability for mere neglect to keep highways in safe condition for public travel. If one may indulge conjecture, I should say that the provision was inserted in the charter to save municipal responsibility to citizens who for any reason were permitted to bring their action for injuries in the Federal courts. Later our general statute was enacted. It was held that the general law did not repeal the charter provision. It resulted that in the city of Marquette the special local act was controlling of the subject to which it was addressed. Beyond that, the general statute was operative and controlling. It has also been repeatedly determined that charter provisions which bar the statute right to a recovery for injuries because of a failure, after the fact of injury, to give a prescribed notice or notices to the municipal authorities are valid. The charter of Saginaw recognizes the existence of the general law. It recognizes the duty imposed by general law to keep highways in repair. It limits the liability of the municipality, and therefore the right of the citizen, under the general law. The legislative purpose is clear. Under the general law, liability exists when, and only when, it is shown that the city has had reasonable time and opportunity, after knowledge or notice of the defect, to repair it, and has not used reasonable diligence therein after such knowledge or notice. Under the charter, written notice of the defective condition of the highway must be given to the board of public works, and thereafter unreasonable delay in repairing must occur, or else there is no liability. Upon principle, I am not able to distinguish the case presented and Maclam v. City of Marquette, supra. If the provisions of the charter and of the general law may stand together in one case, there is no good reason why they may not in the other case.

The order sustaining the demurrer is affirmed.

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


text:
    VILLAGE OF LAKE ODESSA v. RANDALL.
    Criminal Law — Appeal and Error — Exceptions Before Judgment.
    A conviction for violation of a village ordinance is not reviewable on exceptions before judgment.
    Exceptions before judgment from Ionia; Davis, J.
    Submitted June 10, 1909.
    (Docket No. 93.)
    Decided September 21, 1909.
    Fred A. Randall was convicted of violating a village ordinance.
    Dismissed.

      Laurence W. Smith, for appellant.

      Thomas Johnson and _R. A. Colwell, for plaintiff.
   Hooker, J.

This cause was begun by complaint and warrant, in justice’s court; defendant being charged with the violation of a village ordinance. He appealed to the circuit court, where he wasfound guilty, but not sentenced; the cause being continued for judgment. A bill of exceptions was settled, and the cause is before us upon exceptions before sentence, and, in that respect, appears to be identical with the case of People v. Smith, 146 Mich. 193 (109 N. W. 411), except that this case was tried by jury. The case has been fully briefed, and the point is made that it is not properly here.

It follows that the cause must be dismissed. It is so ordered.

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


author: Grant, J.

text:
    BANNIGAN v. WOODBURY.
    1. Estates of Decedents — Executors and Administrators — Claims — Negligence.
    ; No action, can be maintained against an estate for negligence which arose subsequent to the death of the intestate.
    2. Same — Neglect of Administrator.
    Allegations in a declaration that an administrator has charge of and controls real property of his decedent, admitted on demurrer, will be construed to allege a lawful possession.
    3. Same — Real Property — Repairs.
    An administrator is bound to exercise reasonable care in maintaining real property, of which he has control, in a sufficiently safe condition to prevent injury to travelers on the adjacent streets.
    4. Same — Pleading—Declaration—Description.
    A description of defendant as administrator of an estate may be treated as surplusage, and does not negative a personal liability for negligence.
    5. Same.
    An administrator is personally liable for negligence in failing to maintain a building under his control in safe repair, whereby a window fell upon and injured a traveler.
    Error to Kalamazoo; Knappen, J.
    Submitted June 10, 1909.
    (Docket No. 52.)
    Decided September 21, 1909.
    Case by Kathryn Bannigan, by next friend, against Edward Woodbury, individually and as administrator of the estate of Jeremiah P. Woodbury, deceased, for personal injuries. An order sustaining a demurrer to the declaration is reviewed by plaintiff on writ of error.
    Reversed, and remanded.

      Jackson & Fitzgerald, for appellant.

      A. M. & E. H. Stearns, for appellee.
    Plaintiff in her declaration complains of defendant, Edward Woodbury, administrator of the estate of Jeremiah P. Woodbury, deceased, and Edward Woodbury, individually. She alleges: That defendant was, and had been for a long time, prior to July 7, 1908, the administrator of said deceased; that he had the charge and control of a building situated on the west side of South Bur-dick street in the city of Kalamazoo, belonging to said estate; that it is a three-story structure composed of brick, stone, and wood, used for a store and business purposes; that the glass windows in the third story of said building were negligently permitted by defendant to become out of repair and unsafe; that the glass in said, windows had become loose; and that on said day, while walking along the street, glass fell out of the windows, striking her upon the head and face and injuring her. The declaration also alleges negligence on the part of Woodbury individually as well as in his capacity as administrator. The defendant demurred to the declaration on the ground that no judgment can be obtained against the estate under the cause of action set out in the declaration or against him individually. The demurrer was sustained.
   Grant, J.

(after stating the facts). The unsafe con-

dition of the windows is sufficiently described in the declaration and constitutes a cause of action for which somebody should be held responsible. No action can be sustained against the estate because plaintiff’s cause of action arose after the death of Jeremiah P. Woodbury. The heirs are not made parties. Whether they are liable for the unsafe condition of the building is not before us. It is true that the administrator is not usually entitled, under our statute, to the possession of the real estate. The demurrer, however, admits that he is in charge and control of the building. It will be assumed that he is legally, in control and possession until the contrary is shown. An administrator may be lawfully in the possession of the real estate of the intestate. If so, it would be his duty to keep it in a safe condition, so as to protect travelers along the streets. The allegation that he is administrator, and that as such he is in possession of the property, does not necessarily negative his personal liability. Such allegation may be treated merely as descriptio personae and surplusage. Ferrier v. Trepannier, 24 Can. S. C. 86; Shepard v. Creamer, 160 Mass. 496 (36 N. E. 475); Belvin’s Ex’rs v. French, 84 Va. 81 (3 S. E. 891).

An agent in the control of property is responsible for his own tortious acts. Ellis v. McNaughton, 76 Mich. 237 (42 N. W. 1113, 15 Am. St. Rep. 308). Ferrier v. Trepannier is very similar to this case. A window fell and killed a traveler. The cause of the fall was the same as in this case. The declaration was framed in a similar manner, and the court say :

“They [the defendants] were, at the time, in actual possession of this building. It was under their exclusive control and superintendence, whether as trustees or executors, as depositaires or sequestrators, or in any other fiduciary capacity whatever, does not make the least difference, or lessen in any way their own personal liability for tortious negligence whereby a third party suffered damages.”

In Shepard v. Creamer, suit was brought against the defendant as trustee, where the plaintiff, a traveler on the highway, was injured by a fall of snow and ice from the roof on an abutting building of which the defendant had control as trustee. It was held that the description of the defendant as trustee was surplusage, and the defendant was held individually liable. In Belvin’s Ex’rs v. French, defendants were sued as executors for negligence in failing to keep a hotel property in proper repair. Held that, while they were not liable as executors, they were liable individually, and the allegation that they were executors was held merely a descriptio personae and surplusage.

The judgment should be reversed, and the case remanded for further proceedings according to the rules and practice of the court.

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


author: Montgomery, J.

text:
    MOODY v. MACOMBER.
    1. Quieting Title — Real Property — Ejectment — Escrow— Delivery of Deeds — Wills.
    In a suit to quiet title to real property, a bill of complaint averring that defendant held title by a conveyance from the widow of the complainant’s testator, that her claim arose from a deed made by the testator intended to take effect as a testamentary disposition of the property, and that it had never been delivered to her, is demurrable for failure to show that the defendant is not in possession.

      2. Same — Equity Jurisdiction — Deeds.
    Jurisdiction is not conferred on the court of equity merely because the sole question involved is the construction of a deed, for which a jury would not be required in an action at law.
    3. Accounting — Estates of Decedents — Personal Property.
    Where the bill of complaint of an executor shows a half interest in personal property in defendant’s hands, claimed by him under a transfer from the widow of deceased, and fails to aver any depreciation or uncertainty in the amount of property, an adequate remedy at law exists.
    Appeal from Lapeer; Smith, J.
    Submitted June 10, 1909.
    (Docket No. 42.)
    Decided September 21, 1909.
    Bill by Paul B. Moody, executor of the last will and testament of John B. Sutton, deceased, against John B. Macomber to quiet title to certain real estate, and for an accounting. Prom an order overruling a demurrer to the hill, defendant appeals.
    [Reversed, and remanded.

      Geer, Williams & Halpin, for complainant.

      B. F. Meed, for defendant.
   Montgomery, J.

This is an appeal from an order overruling a demurrer to complainant’s bill. The complainant is executor of the last will and testament of John B. Sutton, deceased, and in that capacity claims title to 130 acres of land, of which John B. Sutton was the owner at one time during his lifetime. The bill alleges that, after the death of John B. Sutton, his widow, Louisa A. Sutton, caused to be recorded in the office of the register of deeds a warranty deed from John B. Sutton to her of the land described in the bill, and that on the 10th of April, 1907, she conveyed by warranty deed the premises described in the bill to John B. Macomber, the defendant in the suit. The bill further alleges that the deed to Mrs. Sutton was never delivered, and that by its terms it was not to become operative until the death of John B. Sutton, and was in legal effect an attempted testamentary disposition of property, and was revoked by a later will. The bill also alleges that these conveyances constitute a cloud upon the title of complainant, but there is no averment that the complainant is in possession of the land described in the bill, either actually or constructively, or that the defendant is out of possession. The bill alleges that the defendant was the tenant of Louisa A. Sutton on the premises after the death of John B. Sutton and until the death of Louisa A. Sutton, who died on the 11th of January, 1908, and that at the time of the death of John B. Sutton the personal property on said premises belonged to John B. Sutton and John B. Macomber in equal shares, and that, by the terms of the will of John B. Sutton, Louisa A. Sutton became entitled to the use of the interest of his estate in said personal property for and during her natural life, but said John B. Macomber now claims that said Louisa A. Sutton sold the one-half interest in said personal property to him, and now claims to own the whole of said personal property by reason of a bill of sale of the one-half interest given to him by the said Louisa A. Sutton. The bill prays that the cloud upon complainant’s title be removed, and also prays that the defendant account for one-half of the personal property on the farm at the death of Louisa A. Sutton.

We are constrained to hold that the court was in error in overruling the demurrer. The bill is essentially a bill to quiet title to real estate, and to maintain such a bill under the statute (1 Comp. Laws, § 448) it is essential to aver that complainant is in possession or that the defendant is not in possession. See Seymour v. Rood, 121 Mich. 173 (79 N. W. 1100); Chandler v. Graham, 123 Mich. 327 (82 N. W. 814); Crosby v. Hutchinson, 126 Mich. 56 (85 N. W. 355).

It is conceded that this is the general rule; but it is urged that, whereas in this case the question of right depends upon the construction of a deed and there is no occasion for the intervention of a jury, it is immaterial whether the judge is sitting on the law or chancery side of the court, and in such case an exception should be in-grafted on the rule stated in the cases cited. We think it far better that the practice should he adhered to, and that the title to real estate should not be left to be tried in equity where the remedy of ejectment is open, unless the case is distinctly brought under some other head of equity jurisprudence. In this case no charge of fraud appears in the bill, and there is no reason for departing from the rule on that ground.

It is urged in this court that, as an accounting as to the personal property is asked, equity would obtain jurisdiction for that purpose. As the bill is framed, there is nothing to indicate that the title or interest of the executor is other than an undivided one-half interest in the personal property. There is no averment of any uncertainty as to what this property consists of, and no suggestion in the bill that there has been any depreciation of property to be taken into account. We see no reason, therefore, why the rights of the parties as to the personal property may not be tried at law. Nor does the bill allege that there has been any demand for any accounting. We think the case is clearly one of mistaken remedy.

The decree will be reversed, with costs of both courts, and the case remanded.

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


author: Moore, J.

text:
    BLISS v. CAILLE BROS. CO.
    Appeal and Error — Dismissal op "Writ.
    On motion to dismiss writs of error issued three years after judgment, it is held that no rights could be based on a stipulation made by the attorneys which provided that neither party should thereby waive any rights.
    Garnishment proceedings by Allaseba M. Bliss and Lorenzo T. Durand, executors of the last will and testament of Aaron T. Bliss, deceased, against the Caille Brothers, Wilber W. Steele, and A. Arthur Caille, co-partners as the Caille Company, and Wilber W. Steele, A. Arthur Caille, and Adolph A. Caille, as garnishee defendants of Silas W. Tyler and Fred B. Tyler: On motions to dismiss writs of error.
    Submitted July 15, 1909.
    (Calendar Nos. 23,393, 23,394, 23,395.)
    Motions granted September 21, 1909.

      John A. McKay {William J. Gray and Lorenzo T. Durand, of counsel), for the motions.

      Jonathan Palmer, Jr. {George W. Weadoch and Elbridge F. Bacon, of counsel), contra.

   Moore, J.

This is a motion made to dismiss the writs of error issued in the above proceedings. The litigation has been before this court before. A reference to the opinions in Bliss v. Caille Bros. Co., 149 Mich. 601 (113 N. W. 317), Caille Bros. Co. v. Saginaw Circuit Judge, 155 Mich. 480 (120 N. W. 6), and Bliss v. Caille Bros. Co., 157 Mich. 258 (121 N. W. 756), will aid in an understanding of the case. The following data will also be useful: Principal suit commenced December 28, 1905. Writ of garnishment issued February 7, 1906. Garnishee defendants served February 9 and 23, 1906. Writ of garnishment returnable February 27, 1906. Default of garnishee defendants entered February 28, 1906. Default of principal defendant entered June 30, 1906. Judgment against principal defendant entered July 3, 1906. Judgment against garnishee defendants entered September 12, 1906. Motions of garnishee defendants to open their defaults and vacate judgments against them filed November 27, December 5, and December 13, 1906.

The writs of error which it is sought to dismiss were issued May 21, 1909. It is contended that defendants got some rights with' reference to the issuance of the writs of error by virtue of a stipulation entered into by the parties and an order of court entered which was based thereon. A reference to the stipulation and order refutes the claim of counsel, for it is provided therein—

“ That this stipulation shall in no wisé affect the rights or claims of either party to said litigation with regard to matters of substance or matters of procedure, neither party being at liberty to make any use of the stipulation as evidence of the waiver of rights claimed in or arising out of the litigation.”

The defendants seek by the course now taken to have writs of error issued nearly three years after judgment remain in this court, and to have the cases heard therein. This cannot be done. Buckley v. Sutton, 38 Mich. 1; Caille Bros. Co. v. Saginaw Circuit Judge, 155 Mich. 483 (120 N. W. 8), and cases cited; Bliss v. Caille Bros. Co., 157 Mich. 258 (121 N. W. 756).

Motion to dismiss is granted.

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


author: Brooke, J. Brooke, J.

text:
    GERMAIN v. UNION SCHOOL DISTRICT OF CITY OF STANTON.
    1. Contracts — Conditions Precedent — Right of Action.
    While a contractor who fails to construct a school building according to specifications may not recover without furnishing the final estimate of the architects as agreed on, the discharge of such architects by the school district excuses a compliance with the condition under the terms of an agreement specifying that in such case the owner should act in the place of such architects.
    2. Same — Compromise—Offers of Adjustment.
    A written offer to compromise the cause of action is inadmissible in evidence.
    3. Damages — Quantum Meruit.
    In an action on the quantum, meruit for the construction of a schoolhouse which, when constructed, did not comply with the contract between the parties, the measure of damage is the reasonable value of the building, of which the defendant took possession, not exceeding the contract price and the value of the extras, less the reasonable cost of completing the building according to contract.
    ON APPLICATION FOR REHEARING.
    Same — Stipulated Damages — Penalty—Excuse.
    Under a clause in a contract providing for a forfeit of ten dollars a day after a certain date, if the building remained uncompleted, except in the event of strikes or inclement weather, the defendant is entitled to recoup the stipulated sum to the time it took possession, as claimed, unless the jury should find the delay was excused within the terms of the contract; and the delay could not be excused by showing that the defendant’s architects failed to condemn defective glass in time to permit plaintiff to replace it.
    Error to Montcalm; Mayne, J., presiding.
    Submitted June 15, 1909.
    (Docket No. 101.)
    Decided September 21, 1909.
    Assumpsit by George F. Germain against the Union School District of the city of Stanton upon a building contract. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      F. A. Miller and B. A. Hawley, for appellant.

      John J. Zimmer, for appellee.
    On September 26, 1905, plaintiff entered into a written contract with defendant to erect a large school building for the sum of $15,820. The building, by the terms of the contract, was to have been completed on or before August 1, 1906, provided that,
    “In case any delay shall arise from * * * any strike in building trade or other cause clearly beyond control of the said party of the first part, * * * the penalty hereinafter provided for and to be incurred for not finishing said building on or before the first day of August, 1906, shall not be forfeited or become payable by the said party of the first part.”
    Many disputes arose between the plaintiff and the defendant or its architects, White & Hussey. The glass was condemned by the architect, was replaced, and was again in part condemned. A very large number of defects was pointed out by the architects after the plaintiff claimed to have fulfilled his contract, and he was ordered to remedy them. This he never fully did.
    On August 3, 1906, the architects inspected the school building, and reported that it was not ready for acceptance, and so notified plaintiff by letter of that date. On August 24th the architects served upon the plaintiff a nor tice from the school board to complete the job within 10 days. On September 4th, the building not having been completed by the plaintiff, the school board took possession of it and proceeded to complete it. On September 10th the architects wrote a letter to the plaintiff granting him an extension of time of 11 days from that date.
    On the same day the plaintiff went to Stanton and found the school board in possession, which it refused to surrender to plaintiff.

      On September 18th the board discharged White & Hussey as architects, and upon the same day plaintiff brought suit in chancery against defendant, praying for an injunction against defendant, restraining it from interfering with him in the completion of said building. An answer and cross-bill was filed by defendant, and upon consideration thereof, together with affidavits thereto attached, the court found that the defendant—
    “Was in possession of the school building, constructed by complainant, for the purpose of completing amendments thereto, according to the judgment of the architects, after the default of the complainant in making such amendments, and was rightfully in possession under the terms of its contract.”
    The complainant’s prayer for injunction was denied. The school board thereupon proceeded to complete the building in some respects at a cost of $777.29, but still claim that the building is in many respects faulty, and not up to the contract and specifications. After negotiations for an adjustment had failed, plaintiff brought this suit against the defendant, which resulted in a verdict and judgment in his favor for $3,004.17. Defendant brings the case to this court by writ of error.
   Brooke, J.

(after stating the facts). There are a great many assignments of error, only a few of which will be considered. It is claimed by defendant that no testimony on the part of the plaintiff should have been received, because of the fact that the plaintiff never received his final estimate from the architects or the school board, and neither alleged nor proved that the same was fraudulently withheld from him. In support of this position defendant cites Hanley v. Walker, 79 Mich. 607 (45 N. W. 57, 8 L. R. A. 207), and other cases. We are of the opinion that all the cases cited upon this proposition are clearly distinguishable from the case at bar.

As already pointed out, the defendant discharged the architects on September 13, 1906, several months before the plaintiff instituted this suit. It is obvious that thereafter the plaintiff was under no obligation to demand his final estimate from them, and, had it been demanded, the architects could not have furnished it. During the time elapsing between the discharge of the architects and the commencement of suit, many demands were made by the plaintiff upon the defendant for payment of the balance he claimed to be due which were by the defendant refused. The contract provided that, in case the architects were discharged, the school board itself should act in the place and stead of the architects. Under these circumstances, we hold that the plaintiff’s failure to produce the architects’ final estimate or explain its absence was of no consequence. The controversy was upon its face squarely between plaintiff and defendant at the time suit was brought; the defendant at that time being clothed with all the rights and duties of the architects. Testimony was properly admitted.

Error is assigned upon the admission of Exhibit No. 24, which was an offer on the part of the defendant to pay to plaintiff $750 in settlement of his claim. The exhibit was admitted over the specific objection on the part of the defendant that it contained an offer of compromise and was for that reason incompetent. The court remarked that the offer made in the exhibit was not binding on the defendant, but failed to state that it was not an admission of liability. It should have been excluded. Montgomery v. Allen, 84 Mich. 656 (48 N. W. 153).

Error is assigned upon that portion of the charge of the court covering the measure of damages, which was in part as follows:

“The plaintiff claims $3,056. If you find that he has failed to live up to the terms of the contract, that the building which he has furnished is not such a building as was contracted for, then you will deduct from this claim of the plaintiff such sum. as will make it such a building as he contracted to furnish in value. In other words, you will require him to do those things which he ought to have done under the terms of the contract. Not having done the same, you will require him to pay the board for doing those things which he ought to have done, and which they had to do in order to complete the building, and also such sum as will make the building as good as it would have been under the terms of the contract had it been complied with.”

The vice of this instruction is that it assumes that all the plaintiff was bound to do was to furnish a building worth the contract price, whereas he was bound to furnish a building according to the plans and specifications, even though it were worth many hundreds of dollars more than the contract price. Where a contract is nonapportionable, as this one is, and the plaintiff does not complete, as this plaintiff did not, his recovery must be upon the quantum meruit. His measure of damages would be the reasonable value of the building as defendant took possession of it, not exceeding the contract price and the value of the extras, less what it would reasonably cost to complete it and make it comply with the contract and specifications. Eaton v. Gladwell, 121 Mich. 444 (80 N. W. 292), and cases cited.

Many other errors are assigned, but they are not discussed, as they are not likely to arise upon another trial.

Judgment reversed, and a new trial ordered.

Blair, C. J., and Grant, Montgomery, and Mc-Alvay, JJ., concurred.

ON MOTION EOR REHEARING.

Brooke, J.

On an application for rehearing, our attention is called to the fact, that, in the opinion herein, ante, 314 (133 N. W. 534), no mention is made of the claim of defendant to stipulated damages, by reason of the failure of plaintiff to perform his contract within the time limited by the contract.

Section 35 of the contract is as follows:

“It is further agreed by and between the parties hereto, that in case the said building shall not be completed and the said building not finished on or before the first day of August, A. D. 1906, according to the terms and conditions of these articles of agreement, and the said plans, specifications and drawings, then the said party of the first part shall pay to the said party of the second part, and forfeit out of the moneys which shall otherwise be due to him by virtue of this agreement, as and for liquidated and ascertained damages for such default, and not as a penalty, the sum of ten dollars per day for each and every day thereafter that the said work remains incomplete and unfinished, provided only that if such delay is caused by any strike among the workmen or other causes, equally beyond the control of said first party, then such forfeiture is not to be given, and provided also that in case the said party of the first part shall be prevented by any strike among the workmen from complying with this agreement, the said White & Hussey may extend the time for the completion of the work for such reasonable period as they may think proper, under the circumstances and certify in writing to be necessary. And provided also that if the said party of the first part shall be required to suspend work on account of frost or inclement weather, upon receiving a notice in writing to that effect from the architects, the time during which the work shall be so suspended shall be deemed an event beyond the control of the said party of the first part.”

Upon this branch of the case, the learned circuit judge charged the jury as follows:

“It is undisputed that the defendant went into possession of the building September 4th, and claims damages of ten dollars per day between August 1st and September 4th. Is that the extent to which you claim ?

Mr. Hawley: Yes.

The Court: I charge you, gentlemen, after August 15th, the plaintiff would have a reasonable time in- which to get the glass and the sash as required by the architect. On July 27th, he notified the architect, and the defendant in this case relied in part upon the order of the architect to the plaintiff to proceed to make these repairs or make these changes as provided by the contract, and after August 15th the plaintiff would have a reasonable time in which to get the glass; this will practically do away with the claims for liquidated damages, because he could not proceed to get it as he made his demand on July 27th, and was not notified of it until August 15th, after which he would have a reasonable time. It is for you, however, to say just what a reasonable time would be, if from August 15th to September 4th, is more than a reasonable time for him to get these things, then the claim of the defendant for ten dollars a day for such time as the building could not be occupied by them would be good. Had the architect during the month of July ordered these changes another question would have been presented. The plaintiff was not responsible for the neglect of the architect to order the required changes, and consequently he cannot be held liable in damages for the same.”

The defendant claimed the sum of $280.00 for 28 secular days’ delay, from August 1st to September 4th. The provision of the contract was a valid one. Whiting v. Village of New Baltimore, 127 Mich. 66 (86 N. W. 403); Lamson v. City of Marshall, 133 Mich. 250 (95 N. W. 78); Wilson v. Godkin, 136 Mich. 106 (98 N. W. 985).

The jury should have been instructed that this sum was properly chargeable against plaintiff, unless they found the delay to have been the result of one or other of the causes enumerated in section 25 of the contract, as proper excuse for delay.

It was plaintiff’s claim that defective glass was not seasonably inspected and condemned by the architects. This claim is not tenable. It was his duty to furnish glass according to the contract, and he cannot excuse his delay in doing so by showing that defendant’s architects failed to condemn it in time to permit him to replace it within the time limited by his contract.

Blair, C. J., and Grant, Montgomery, and Mc-Alvay, JJ., concurred.


text:
    CAMP v. CAMP.
    1. Judgments — Res Adjudioata — Divorcie.
    On a petition for a modification of a decree of divorce entered upon the default of the husband, and granted upon the ground of extreme cruelty, the parties are concluded as to other alleged misconduct of the defendant and as to the defenses which might have defeated the bill.
    3. Divorce — Compromise—Contracts—Alimony—Fraud.
    A settlement of property rights made by the parties prior to the divorce, is not binding on the court upon a petition to modify the decree as to alimony, where it was shown that the complainant procured the compromise by false representations.
    3. Same — Amendment and Revision — Permanent Alimony — Husband and Wire.
    The court in chancery has jurisdiction at any time to open and alter the provisions in a decree of divorce relating to the alimony to be paid, and that notwithstanding the parties consented to the order.
    4. Same — Alimony—Amount.
    An award of $50 a month, in addition to a cash payment of $1,000, for the care-and maintenance of one of the two children of complainant, where the financial condition of the defendant had materially changed for the worse, is unreasonable, and the allowance should be reduced to $30 a month.
    Appeal from Kent; Perkins, J.
    Submitted June 16, 1909.
    (Docket No. 118.)
    Decided September 21, 1909.
    Bill by Jessie May Camp against Talcott H. Camp for a divorce: On petition of defendant for a modification of the decree respecting alimony. From an order dismissing the petition, petitioner appeals.
    Reversed, and decree modified.

      McKnight & McAllister, for complainant.

      Dunham, & Phelps, for defendant.
   Grant, J.

Complainant and defendant were married April 24, 1899, and lived together as husband and wife until in August, 1907. On September 18, Í907, she filed her bill, seeking a divorce on the ground of extreme cruelty. He did not appear to defend the suit, and an order, pro confesso was entered. Proofs were taken in open court, and a decree entered in her favor on November 25, 1907.

They had two children, a girl named Emily, seven years old, and a boy named Talcott, three years old. By the decree the custody of the daughter was committed to the defendant, and the custody of the boy to the mother. Before the case was heard the parties made a settlement of their property rights, by which he gave her $1,000 in cash and certain personal property, and agreed to pay $50 per month for the support and maintenance of the boy until he attained his majority. It was further provided in the decree that the mother would have the right to have in her custody and control, not exceeding three months during any one year, the daughter, and the right to visit her at all other reasonable times, and that the father should have the right to the custody and control of the son in like manner for the same time, and the right to visit him at all other reasonable times. This agreement was incorporated in the decree, as the defendant now claims, without his knowledge.

Eight days after the decree was rendered complainant went to Chicago, and was there married to a man named Preble. Defendant married again on February 8, 1908. He was a traveling man, selling furniture upon commission. He paid the allowance for the care of the son until March 1, 1908. On May 18, 1908, he filed this petition asking for a modification of the decree of the allowance for the care of the son.

In this petition he details at length their married life; and, if the allegations he there makes are true, she was not entitled to a divorce, and he should have contested the case. She filed a long answer to the petition, charging him with gross and vile misconduct in disregard of his marital relations, of which she makes no claim that she was not informed at the time she filed her bill. T© her answer the defendant filed an answer, denying in detail all the charges made by her. If her allegations of misconduct are true, the defendant was an unfit person to have charge and control of his daughter, and no mother with a proper regard for her daughter would have consented to commit to such a man her care, custody, and education. All these charges and counter charges, however, were settled in the divorce suit, and cannot be reconsidered and retried in this petition. Smith v. Smith. 139 Mich. 133 (102 N. W. 631).

He now charges that the settlement agreement was obtained by fraud and misrepresentations on her part. The chief charge of fraud is that she falsely represented that she would be compelled to go to work to obtain money for her support and that of her boy; that she had made arrangements to do so, and would be compelled to employ a nurse to take care of him, whereas in fact she was then engaged to be married as soon as the divorce was obtained, and, prior to the granting of the decree, had moved many of her household goods to the house of her prospective husband.

. The statute (3 Comp. Laws, § 8641) authorizes courts of chancery to at any time, on the petition of either party, revise and alter the decree as to alimony or allowance for the support of minor children. The learned circuit judge held that the only remedy of the defendant was by a direct proceeding to set aside the contract of settlement. In this we think he was in error. It is immaterial whether the decree for alimony and the support of children is incorporated in the decree by the consent of the parties, or by a determination of the court. When once incorporated in the decree the court obtains jurisdiction to revise it at any time thereafter. The sole question, therefore, is whether the defendant by his petition and evidence has made a case entitling him to any modification.

In determining this question the court may take into consideration the altered condition of the complainant, the conditions under which the amount of alimony and allowance was fixed at the time of the decree, and the financial condition of the defendant. By the decree complainant obtained a thousand dollars in cash, and nearly all of the household goods, under the representation that she would be compelled to go to work to earn money for herself, and would have to employ some one to take care of her child. Defendant’s father was dead, and he believed at that time that he would receive from the estate about $15,000, but upon the closing of the estate his share v was only about $1,500. He borrowed the thousand dollars from his mother, and mortgaged his share of the estate as security. By her immediate marriage she was relieved from her own support, and was provided a home for herself as well as her child. Under these circumstances and the present condition of the párties, we think $50 a month an unreasonable allowance, in view of the fact that he has himself and his daughter to support. Thirty dollars per month is a reasonable allowance.

The decree of the court is therefore reversed, and decree entered in this court for the payment of $30 per month for the support of the child, until the further order of the court; this allowance to date from the time of the filing of the petition, May 18, 1908. No costs will be allowed.

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


text:
    PEREGO v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Negligence — Railroads—Depots and Grounds — Carriers of Passengers.
    A railroad company which provides a safe way for the departure of travelers from its station, and which posts warnings against crossing its right of way in other places, is not liable for the death of a boy of less than nine years who left the way provided, and in crossing the tracks was struck by a switch engine, without gross negligence of the company’s employés.
    2. Same — Gross Negligence — Precautions Required — Contributory Negligence.
    The fact that a fireman in the switch engine saw the boy approaching the track and omitted to notify the engineer, because he thought the boy had time to cross, is not sufficient to sustain a charge of gross negligence, where it appeared that the deceased could have crossed in safety had he not turned and tried to recross.
    Error to Hillsdale; Chester, J.
    Submitted June 17, 1909.
    (Docket No. 28.)
    Decided September 21, 1909.
    Case by Marvin L. Perego, administrator of the estate of Ralph Austin Perego, deceased, against the Lake Shore & Michigan Southern Railway Company for the negligent killing of plaintiff’s intestate. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed, and no new trial ordered.

      Herbert JR. Clark, for appellant.

      F. A. Lyon, for appellee.
    Plaintiff’s decedent, a boy 8£ years old, was killed while crossing the tracks in the defendant’s yard, opposite the passenger house, being struck by the tender of an engine which was backing on a switch track. The boy lived in Chicago. He and his brother, about 20 years old, had come to visit their uncle, the administrator in this case, who lived in a town some miles from Hillsdale. On the morning of the accident deceased with his brother and his uncle came over the Ft. Wayne branch of defendant’s road to Hillsdale on their way home to Chicago.
    The defendant’s depot grounds are surrounded on the north by Monroe street, on the south by Railroad street, on the east by Hillsdale street, and on the west by West street. The passenger depot is located on the north, fronting Monroe street and about the middle of the block. The first track south is the main track of the defendant’s road, running east and west. The second track is known as the Ft. Wayne track. The third track is the middle siding. The fourth track is known as the house track. South of these four tracks are located the freighthouses. South of the freighthouses are two other tracks, the first one being for storing cars, and the last one, called the Plug track, on which cars were stationed for unloading. Track No. 4, the house track, ran to the north side of the freight depot which was located south and east of the passenger depot. The passenger platform extended from the passenger depot across the main line track to the Ft. Wayne track for the accommodation of passengers going to and from the Ft. Wayne train. South of the Ft. Wayne track the tracks were not filled level with the rails.
    When the Ft. Wayne train arrived, on which the deceased, his brother, and their uncle were passengers, it stopped in front of the depot. The main line passenger train going east was then standing on the main line track. A passenger train for Lansing, facing north, was standing on the spur track north of the main track with its dead end west of the passenger depot. A train for Ypsilanti was standing on another spur track, which was north of the main line track, with its dead end east of the passenger depot. The third track or middle siding was occupied by a solid string of box cars extending beyond the end of the Ft. Wayne train. This track was usually so occupied. A switch engine was at the time engaged in switching on the plug and house tracks. The passengers of the Ft. Wayne train disembarked on the north side of the train and passed west in a line to go around the rear of the main line passenger train to the passenger depot; the deceased, his uncle, and brother being among them. Another line of passengers was coming from the depot to take the Ft. Wayne train. When about opposite the engine of the Ft. Wayne train, they stopped for the brother to go back to the ear and get his handkerchief, which he thought he had left there. On his return they started west; the uncle and brother each carrying valises. The deceased then almost immediately ran past the uncle and brother, and went diagonally across the yards around the end of the box cars and onto the fourth or house track, where he was run over by the switch engine backing out from the plug or sixth track to switch onto the house track. It appears that a large portion of the city of Hillsdale is situated to the south of the depot and grounds, and that people were in the habit, instead of coming out upon Monroe street and going around in the way provided, to cross all these tracks to the south. It appears that this was done to such an extent that there was a beaten path. The uncle and brother were not intending to go across these tracks, but intended to go west to West street.
    Plaintiff testified as follows:
    “The first I can recollect of anything occurring unusual, my mind, as I think you stated, was to go to West street, and I was walking in that direction, and by some means, possibly — I don’t know, I wouldn’t attempt to give any reason, but I think — it is my recollection that the young man sitting here was ahead of me, and, as we got up in past the engine that backed our train in there, we stopped over that, in front of that engine, and right at that point. The first I knew the little boy passed me, and what makes me so positive that the young man was ahead of me is that it is firmly stamped in my memory that I saw him make a dive to grab him, but he had his suitcase, and he slipped off, couldn’t stop him, and he kept on turning to the left and crossing the tracks. I was just on the point of saying, ‘Don’t cross here,’ when the imminent danger of the boy interfered, and I cried out to the boy to come back. He kept on. * * * He didn’t seem to hear us, our calling. We were both calling to him, but he seemed to see something where he was going, and bent in that direction. As he got on the track, the engine was — shot out from behind those freight cars, and was right upon him, and he saw it, saw his danger, and attempted to come back, and in his turning to come back he stumbled over the rails and fell with his right limb and arm over the rail and the left hand under him apparently, judging from the way he was mangled,'and the tender passed over him and threw him out, so that the balance of the engine, as near as I can remember, didn’t hit him, threw him outside.”
    On cross-examination plaintiff testified that the boy “was running just as a little boy would start up when he attempted to run by people; that, when he went by me, I says, ‘We aren’t to cross there,’ but he kept right on, and at the same time his brother made a grab for him.”
    Again on redirect examination he testified:
    “Well, of course, he hastened. He hastened by me. I can’t say that he was running as swift as a boy would run to win a race, but he did just like anybody when he attempted to dodge by a person. The first thing I knew he flitted by me, and was going across the track.”
    The brother saw the engine and the smoke above the freight cars, and realized the danger in which his brother was. He also called to his brother and warned him of it, but the boy continued in his course.
    The company had posted three signs in the vicinity warning people not to cross. One of those signs reads as follows :
    “Notice.
    “Railroad Grounds.
    “No Thoroughfare.
    “No Trespassing Allowed.
    “Dangerous.”
    Railroad employés had also repeatedly warned parties not to cross there, but travelers persisted in doing so. The deceased had never been there before, had not been invited to go there, or told by his uncle or brother to go there. The fireman looked out of the cab and caught a glimpse of the boy as he was running towards the track upon which he was switching. Pie did not inform the engineer that there was any danger. He had often seen boys run across there before, and testified that he thought he had time to get across. The engineer was on the opposite side of the cab.
    Counsel for plaintiff conceded upon the trial that it was not the duty of the company to provide a way for people to cross there, and that they had no right to do so. The declaration alleges that the boy “was a bright, strong, intelligent, healthy, and robust child.” The evidence also shows that he was able to take care of himself and avoid' danger on the streets of Chicago. His brother testified:
    “ Q. Did you say anything to your brother about being careful, or anything of that kind, give him any caution ? “A. It wasn’t necessary to caution him. Pie was old enough to take care of himself. I have seen him on the streets at home, and he went out of the way of an approaching buggy, and I have seen him do it time and again, automobiles, and such things, never had any necessity for cautioning him.”
    At the close of the plaintiff’s case both parties rested, and the court was requested to direct a verdict for the defendant, which request was denied.
   Grant, J.

{after stating the facts). The defendant had performed its entire duty to prevent parties crossing its yard and grounds at this place. It had posted warning notices, and had frequently notified travelers against crossing there. It had provided a safe approach from its tracks to its depot, and it was the legal duty of passengers to go to and depart from trains in the way provided. Many trains were going in and out daily, both passenger and freight, and switching of cars was continually going on. The danger was apparent. A traveler choosing to depart from the safe way provided and taking a dangerous way, one where he had no right to go, assumes all the risks and dangers incident to the work to be done in the ordinary way.

Only in case of gross negligence can the defendant be held liable for injury to one departing from the way provided into one not provided and where he was prohibited from going. Plaintiff’s counsel, however, strenuously insists that there was evidence of gross negligence. This is based solely upon the fact that the fireman caught a glimpse of the boy just as he emerged from behind the box cars, and was almost upon the track, and did not notify the engineer. It is quite probable that if the boy had not stopped and turned around to escape, in doing which he fell, but had continued his running, he would have crossed in safety. Whether the boy saw the approaching tender and stopped or whether he stopped in response to the calls of his uncle and brother is a matter of conjecture. The fireman testified that boys had frequently run in front of approaching trains before. There is no evidence that any like accident had ever occurred. We cannot hold that the fireman was guilty of grossly inhuman conduct in not turning and notifying the engineer that a boy was trying to cross the track. It is no uncommon thing for boys to run across tracks in front of approaching trains, and the evidence shows that it was frequently done by boys at this place. If the engineers were obliged to stop their trains every time a boy undertook to cross in front of them, it would seriously interfere with the running of trains. The bell on the engine was ringing, was heard by others, and the fireman had the right to presume that the boy heard it, and believed that he could safely cross as also did the fireman. Under these circumstances, the defendant cannot be held guilty of gross negligence either in the failure of the fireman to notify the engineer or the failure to keep a person upon the rear of the tender to notify parties choosing to cross there. Defendant owed no duty to travelers to station a man at this place to prevent them from trespassing, or to station a man upon the rear of backing trains to warn them of their approach.

It was held in Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250, 53 L. R. A. 271), that a'railroad company was not guilty of gross negligence in running down a boy seven years and four months old upon its right of way, from the fact that he stood on the track in full view of those in charge of the approaching engine for some two minutes before being struck, since the company’s agents, if they saw the boy, were justified in believing that he would step off the track in time to avoid the injury. The same piinciple controls this case. There is no difference in principle between a boy standing upon the track and one attempting to run across in front of a train. We cannot hold that this fireman recklessly caused this boy to be run over on the ground that he saw him in imminent danger. In the Trudell Case the boy was held guilty of contributory negligence. If the boy in that case was guilty of contributory negligence, equally so was he in this case. He was a trespasser, and for some reason left the company of his guardians and rushed into danger which was apparent to every one in the vicinity.

Judgment reversed, and no new trial ordered.

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