text:
    HOWARD v. FACTORY LAND CO.
    Joint Stock Companies — Partnership Associations Limited-Contracts — Statutes.
    A contract of a partnership association, limited, for the purchase of real property, signed by one of the association managers, creating a liability of more than $500, was valid where the action was authorized by the board of directors, and the record of the meeting at which the contract was authorized was kept in writing. 2 Comp. Laws, § 6083.
    Appeal from St. Clair; Law, J.
    Submitted February 16,1911.
    (Docket No. 112.)
    Decided May 8, 1911. Decided November 3, 1911.

      Rehearing denied December 8, 1911.
    Bill by Rose Howard against the Factory Land Company, Limited, George B. Lloyd, Yiolet Lloyd, Emery Brown, William A. Jowett, and Mary A. Jowett to foreclose a land contract. From a decree for complainant, defendants appeal. Error to Muskegon; Davis, J., presiding. Case by Sena Pearson against Charles Schoenberg for unlawful sales of intoxicating liquors to plaintiff’s husband. Judgment for plaintiff. Defendant brings error.

      Affirmed.

      Walsh & Walsh, for complainant.

      W. L. Jenks, for defendants.
   Blair, J.

The bill of complaint in this suit was filed by complainant, as heir at law and devisee of Peter Landschoot, to foreclose a contract for the sale of land, dated March 11, 1903, signed by Peter Landschoot, as vendor, and the Factory Land Company, Limited, by W. L. Jenks, chairman, as vendee.

The defendant company was organized under Act 191 of the Public Acts of 1877, art. 3 (2 Comp. Laws, § 6079 et seq.), defining its business as the purchasing, improving, and selling of land, encouraging manufacturing, building, and renting of houses, warehouses, docks, factories, etc. The records of the company show that at a meeting of the board of managers, held March 3, 1903, at which all were present, except Chairman W. L. Jenks, “Land contract of Landschoot was submitted and action deferred until next meeting;” that at a meeting held March 10, 1903, with the same men present, “Moved and supported that the land contract with Landschoot be closed. Motion carried.” It appears from the evidence of Mr. Jenks that he drew the contract in question some time in February, and signed it, and was thereafter absent from Port Huron until after the middle of March, and, from the evidence of E. L. Moak, that the contract is dated March 11th and the first payment was made on that date. The date was written in by Secretary Moak. The contract itself, Exhibit A, shows that it was signed by Peter Landschoot and W. L. Jenks, chairman, for the Factory Land Company, and was not signed by any other manager or officer of the company.

Payments were made upon the contract by the company, beginning March 11, 1903, down to and including March 25,1910, and there is a balance unpaid substantially equal to the original price. The contract provided that the property might be platted and separate lots sold, and deed given by the vendor to any lot upon the payment of $100. It appears on the testimony of the secretary that the property was surveyed, stakes driven, but the plat was not recorded or made public; that lot 7 in block 1 was sold upon contract to Jowett, and lot 10 in block 1 upon contract to Lloyd; that a house has been built by defendant upon the Lloyd lot, and cellar excavated and yard graded; that the value of this house is about $1,500, and that it could be removed without injury to the property; that the Jowett place is worth from $800 to $1,200. The managers of the defendant partnership association, in March, 1903, were W. L. Jenks, chairman; E. L. Moak, secretary; F. A. Peavey; E. H. Moak; and T. A. Gould en.

Defendant in its answer denies that it ever “made any valid or legal contract for the purchase of said land,” and asks relief as follows:

“This defendant, Factory Land Company, Limited, alleges that it built, or caused to be built, one house upon the land described in said bill, of the value of $1,500, and that the removal of the same would not in any wise injure or depreciate the value of the remaining property; that the complainant is not entitled to retain the said building, nor the said amount of money so paid, as aforesaid, by this defendant, and that this defendant is entitled to a return of said money and the right to remove said dwelling house, and this defendant asks the same aid of this court in the matter as if it had itself begun proceedings in this court for the ascertainment and decision of its rights in the premises.
“ These defendants therefore ask that the bill of complaint of said complainant be dismissed, with costs, and that it, the Factory Land Company, Limited, be decreed to have a lien upon said premises for the amount of money paid, as aforesaid by it, and also the right to remove the said building erected by it.”

It was stipulated that the answer of the land company should be considered the answer of the purchasers from it of a part of the land involved.

On June 29, 1910, the day of hearing, there was due and payable the sum of $1,547.84, which includes $52.68 taxes paid. The whole sum yet remaining unpaid on June 29, 1910, was $2,622.91.

From a decree in favor of complainant, defendants appeal to this court.

Defendants’ counsel contends that the contract in question is a mere nullity, without force as to either party, citing in support of his contention: Citizens’ Sav. Bank v. Vaughan, 115 Mich. 156 (73 N. W. 143); Rhoades v. Pure Food Co., 149 Mich. 235 (112 N. W. 940); Armstrong v. Stearns, 156 Mich. 597 (121 N. W. 312); Hoyt v. Grape Juice Co., 158 Mich. 619 (123 N. W. 529); Beach v. Publishing Co., 163 Mich. 226 (128 N. W. 177).

The present case differs from the cases cited, and others involving the validity of such agreements in that the agreement was authorized by every one of the managers, and a record made in writing upon the books of the association, showing such authorization. Although the paper was signed by the chairman in advance, doubtless, in view of his anticipated departure from the State, it was not treated as an executed agreement, as appears from the records of the company. It appears that the shareholders had provided for and elected an advisory board of directors, consisting of five members, and they were always treated the same as if they were managers; that is, called to all meetings, and their voice and vote was taken. There were five managers and six directors, so-called, and meetings were called of the five so-called directors with the managers.

The record for March 10th shows the following:

“At a meeting of the board of managers and directors of the Factory Land Company, Limited, called by order of the vice chairman and held at the First National Exchange Bank, March 10, 1903. Present, the entire board of managers and directors, except W. L. Jenks. Moved and supported that the land contract with Landschoot be closed. Motion carried.”

It further appears that the blanks for dates, which were unfilled when the proposed contract was submitted to the board March 3d, were filled in on March 11th, and that a material clause of the contract as prepared by the chairman was stricken out on March 11th. Other slight changes were also made. It thus appears that this contract, as it was delivered to Mr. Landschoot, was authorized and concurred in by every member of the board of managers, and that such concurrence is shown by written evidence.

We think that this action of the board, preserved in its records, complies with the spirit of the statute, and the decree is affirmed.

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


source: Caselaw Access Project

author:
Bird, J.
      Moore, J.

license: Public Domain

text:
    PEARSON v. SCHOENBERG.
    1. Intoxicating Liquors — Jurors—Qualification—Trial—Voir' Dire.
    In a civil-damage action plaintiff was entitled to excuse for cause a member of the panel who admitted on his preliminary examination that he was opposed to some of the provisions of the liquor law.
    2. Same — Trial—Prejudice—Evidence as to Family.
    It was error to show by plaintiff that during her husband’s debauch she remained alone with her infant daughter; nor was the error cured by subsequently striking out the testimony, although the jury was advised of the existence of her child by its presence in the courtroom and by certain colloquies between counsel and the court. Moore, J., dissenting.
    8. Same — Damages—Charge—Husband and Wife.
    Error was committed by charging the jury that plaintiff had a right to a sober, industrious husband, to his support, and to the comfort of her home to the ability and extent of her husband to provide, upon a showing that her husband had not been sober and industrious before defendant sold him the intoxicating liquor.
    4. Same — Statutes.
    Under 2 Comp. Laws, § 5398, plaintiff was entitled to recover what she had lost by way of support considering the relations between her and her husband at the time of the alleged sales.
    Submitted October 26,1911.
    (Docket No. 126.)

      Reversed.

      Stephen H. Clink, for appellant.

      John Gt. Anderson, for appellee.
   Bird, J.

The plaintiff brought this action against the defendant to recover damages for having sold liquor to her husband in violation of law. From a judgment in her favor, the defendant assigns error in this court.

Error is assigned by the defendant because the trial court excused for cause the juror Vos. It appeared from his examination upon his voir dire that he had been previously engaged in the saloon business, and that he was opposed to some provisions of the present liquor laws. Under those circumstances, we do not think the mind of the proffered juror was in that even position in which it ought to have been to qualify him as an impartial juror. The trial court did not abuse his discretion in excluding him for cause.

Complaint is also made because the fact that plaintiff had a little daughter present in court with her was gotten before the jury by plaintiff’s counsel. The husband of plaintiff was a witness in her behalf and was interrogated by her counsel as follows:

“Q. Who constituted your family at that time ?
Mr. Clink: I object to that as incompetent.
The Court: What is the purpose of that?
Mr. Turner: I don’t know, if your honor please, as that would be.
The Court: Outside of the wife. It already appears that he had a wife.
Mr. Anderson: I think that is a competent question for this reason: If there were any children in that family it shows — I think that we have a right to show that; to show why it was necessary, in part, for her to dispose of these goods to support herself and small child.
“ The Court: Before that is passed upon, I simply advise counsel to look at the case of Haberstumpf, decided about four years ago by our Supreme Court, which I think will satisfy counsel upon that question.
“Mr. Anderson: There is no question but what the child would have an action also. It would tend to show the damage it was to her; she having to support that child during that time.”

Following this, an extended colloquy over it was indulged in by the court and both counsel, and if the jury were not already fully advised of the fact they certainly were after the colloquy ended. The testimony was finally rejected, and the jury were instructed not to consider it. Later in the trial plaintiff testified that during her husband’s two months’ spree she stayed alone with her little child night after night. This was objected to and was subsequently stricken out upon motion of the defendant’s counsel. This court has held on several occasions that the admission of such testimony was reversible error. Larzelere v. Kirchgessner, 73 Mich. 276 (41 N. W. 488); Johnson v. Schultz, 74 Mich. 75 (41 N. W. 865); Boydan v. Haberstumpf, 129 Mich. 137 (88 N. W. 386); Manzer v. Phillips, 139 Mich. 61 (102 N. W. 292); Montross v. Alexander, 152 Mich. 513 (116 N. W. 190). If these cases are to be followed, this case must be reversed. The fact that the little child with plaintiff in the courtroom was hers was as effectually gotten before the jury as though it had been proven on the witness stand. It is true the testimony first offered was rejected and the jury cautioned not to consider it, and the indirect testimony that plaintiff had a little daughter was subsequently stricken out upon motion of defendant’s counsel, but we think the harm which the rule seeks to prevent was accomplished. In Boyden v. Haberstumpf, the plaintiff testified that she had children. The testimony was subsequently stricken out, but this court held that the error was not thereby cured. In Manzer v. Phillips, the fact that plaintiff had children was indirectly admitted, and on review in this court it was held to be reversible error.

The trial court instructed the jury that plaintiff “had the right to a sober, industrious husband; she had a right to his support, and to the comfort of her home to the ability and extent of that husband to give it to her.” Exception is taken to this part of the charge, on the ground that it permitted a larger recovery than the statute does. The statute authorizing a recovery in such cases provides that:

“Every wife * * * who shall be injured in person or property or means of support, or otherwise * * * shall have a right of action,” etc. Section 5398, 2 Comp. Laws.

Under this statute, the plaintiff would clearly be entitled to recover what she had been deprived of by way of support, but it would not permit her to recover for what she did not have before the illegal sales were made. If she were receiving support from a sober and industrious husband, who was contributing to her means of support to the extent of his ability, and she was deprived of it, in whole or in part, by the illegal sales of defendant, she would be entitled to recover therefor. On the other hand, if she did not have a sober, industrious husband, who was supporting her to the extent of his ability before such illegal sales were made, it could not be reasonably insisted that she had lost what she did not possess. The testimony does not show that she had such a husband before the illegal sales were made. The jury should have considered their relations as they were at the time the illegal sales were made, and from that determine what she had been injured in her means of support. Ganssly v. Perkins, 30 Mich. 492. While the trial court, in another part of the charge, correctly stated the rule, we cannot say that the jury was not misled by this erroneous instruction.

For the errors pointed out, the judgment will be reversed, and a new trial ordered.

Ostrander, C. J., and Steere, McAlvat, Brooke, Blair, and Stone, JJ., concurred with Bird, J.

Moore, J.

I concur with Bird, J., in the result he has reached, but, in view of the effort of the judge to control the effect of what was said and done as to the child, I do not think the case should be reversed for that reason.


author: Stone, J.

text:
    GROESBECK v. GRAND TRUNK RAILWAY COMPANY OF CANADA.
    1. Railroads — Negligence—Death by Wrongful Act — Cars — Evidence as to Control.
    Under testimony, in an action for personal injuries, that several railroad companies constituted a system that was operated as a unit, that one of the companies having shipped a freight car conveyed the same over its own line, and over another line upon which it had a right of way to the junction with one of the other companies of the system, and that the car was then taken over such road to the yards of the latter company, it was not established that the original carrier had relinquished control of the car.
    2. Master and Servant — Railroads — Conjectural Injury — Negligence.
    Evidence tending to show that the wooden ladder on the end of a freight car was split and would spring outward if it was pulled, that decedent climbed on the car to brake it and' prevent it from drifting, that he gave a spring towards the brake and in some way fell, but that the ladder did not break with him, does not have a tendency to show that the condition of the ladder frightened decedent and caused him to leap from it to the brakes; the cause of his fall being conjectural, the court should have directed a verdict for defendant.
    8. Same — Declaration—Inspection.
    Under a declaration containing no averment that defendant failed to inspect the freight car, and under the statement of her attorney that failure to inspect was not relied upon, the point should not have been left to the jury.

    4. Same — Contributory Negligence.
    The question of decedent’s contributory negligence was for the jury-
    Error to Shiawassee; Miner, J.
    Submitted June 26, 1911.
    (Docket No. 39.)
    Reargued October 12, 1911.
    Decided November 3, 1911.
    Case by Emma Groesbeck against the Grand Trunk Railway Company of Canada and the Grand Trunk Western Railway Company and the Toledo & Muskegon Railway Company for the wrongful killing of plaintiff’s decedent. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Harrison Geer, for appellants.

      Seth B. Terry (O’Dell Chapman, of counsel), for appellee.

       Duty of master to inspect tools or implements furnished servant, see note in 1 L. R. A. (N. S.) 944.

   Stone, J.

Emma Groesbeck, as administratrix, brought this action of trespass on the case, seeking to recover damages under the death act (3 Comp. Laws, § 10427), so called, for the killing of Alden B. Groesbeck, yard foreman, in the Detroit, Grand Haven & Milwaukee Railway Company’s yards in Durand, at about 10 o’clock a. m. on the 18th day of M&y, 1907.

It will be noted that the Detroit, Grand Haven & Milwaukee Railway Company was not made a party defendant. The following excerpt from the declaration is here made:

“For that whereas, heretofore, to wit, on the 18th day of May, 1907, the above defendant the Grand Trunk Railway Company of Canada was and is a foreign corporation, but doing business in the State of Michigan, and was operating one or more of its lines of railroads in and through the county of Shiawassee, and the defendant the Grand Trunk Western Railway Company was and is a corporation organized and doing business under the laws of the State of Michigan, and operating its line of railroad in the county of Shiawassee, and the Toledo, Saginaw & Muskegon Railway Company was and is a corporation organized and doing business under the laws of the State of Michigan; all of said railroads being a part and parcel of one and the same system, known as the Grand Trunk Railway system; and all of which railways being so operated together and in conjunction with each other under the management and control of the Grand Trunk Railway Company of Canada.
“And on account of said railroads being so operated it became and was the duty of said defendants to furnish to any and all of their servants reasonably safe tools and appliances with which to work, and particularly to furnish to switchmen and brakemen cars whose ladders should be reasonably safe and sound for such employes to do the work required of them by.said companies in switching and braking and making up trains, and it was their duty not to require any of their said employés to work upon cars in doing switching and braking that had defective ladders which would give way, or bolts draw out, and thereby cause them to lose their balance, or to slip on said ladders and fall and be injured. And it owed the further duty not to use cars with ladders where the boltings of said ladders to said cars were loose to such an extent that switchmen and brakemen in using them would believe that they were pulling out or off from said car, and cause said brakeman or switchman to believe that said ladders were dangerous and were giving way, and to believe that they were being put in danger of losing their lives, and on account thereof cause such switchmen or brakemen to endeavor to save himself by taking hazardous chances. * * *
“Yet, notwithstanding this fact, said defendants caused to be used in their yards in Durand, on the date aforesaid, a certain car, upon the end of which was a ladder that was defective, in that the sides of said ladder was split, and when an employe in the usual and ordinary course of his employment would take hold of the rounds of said ladder in the usual and ordinary way that said ladder would give way or spring from its fastenings to said car, and would cause one so using said ladder to believe that the same would give way entirely and was dangerous, and would cause him to fall. And in doing the work of his employment, when the car was necessarily in motion, it would cause him to believe that he was in great danger of losing his life or receiving severe injuries to his person, and would cause him to take desperate chances to prevent such loss of life or serious injuries.
“And for that whereas, in the yards of said defendants at the village of Durand, Shiawassee county, at the time aforesaid, Alden B. Groesbeck was switching for said defendants in said defendants’ yards at Durand, Mich. And, notwithstanding the duties aforesaid, said defendants were using said car with said defective ladder thereon above described, and it became and was the duty of said Alden B. Groesbeck to mount said car by the ladder aforesaid in the usual and ordinary course of his employment, and acting in the usual and ordinary way of doing his business as switchman he attempted to mount said ladder, and while so doing, on account of the defective condition of said ladder being split, loose, old, worn out, and rickety, it gave way, loosened, and sprung out from its fastening on said car, said car at the time being in motion, and on account thereof said Alden B. Groesbeck believed himself to be in great and imminent danger; and believing that unless he could save himself by attempting to secure a hold of the brake wheel, and getting a safe position on the sill along the end of said car, that he would be killed or receive great and serious injuries, he attempted to so save himself, and in so doing fell, and was run over by said car and instantly killed.”

Upon the trial of the case, one George W. Alexander, a witness sworn on behalf of the plaintiff, testified in substance as follows:

“Direct Examination. By Mr. Chapman: I am secretary of all the companies composing the western division of the Grand Trunk system; the roads are the Grand Trunk Western Railway Company, the Detroit, Grand Haven & Milwaukee Railway, the Toledo, Saginaw & Mackinaw Railway, the Chicago, Detroit & Canada Grand Trunk Junction Railroad, and the Michigan Air Line Railway. All these roads are west of the Port Huron tunnel, and are in the western division of the Grand Trunk system. The roads east of the tunnel as far as Toronto are called the middle and southern division and the roads east of Toronto and extending to Portland, Me., are the eastern division of the Grand Trunk system. These roads are operated in connection with each other under one president and one general manager. Charles M. Hays was general manager of the whole system on the 18th of May, 1907. A train starting from Muskegon over the Toledo, Saginaw & Mackinaw runs over its own line to Ashley, then over the Ann Arbor Railroad to Owosso, and the Detroit, Grand Haven & Milwaukee Railway to Durand; the latter road is a part of the Grand Trunk system. The Grand Trunk Railway Company of Canada extends east from the Port Huron tunnel to Portland, Me., and is a part of the Grand Trunk system, so called. I know that the Grand Trunk of Canada does not own or lease all of the roads in the Grand Trunk system. It leases some of them. The Grand Trunk of Canada leases the Cincinnati, Saginaw & Mackinaw Railroad, which extends from Bay City to Durand. I suppose the trains running over the Cincinnati, Saginaw & Mackinaw are made up at Durand. As treasurer, I understand that the expenses in keeping the yards in Durand are borne by the Detroit, Grand Haven & Milwaukee Railway. The Grand Trunk of Canada is lessee of the Cincinnati, Saginaw & Mackinaw and the Grand Trunk Western Railway. I should say that the Toledo, Saginaw & Mackinaw Railway would not be interested in any of the expenses at Durand. The money earned by the Toledo, Saginaw & Mackinaw is sent directly to the Old Detroit National Bank at Detroit, and is placed to the credit of the Grand Trunk Railway system. This is true also of the Grand Trunk Western Railway. After it has been deposited in the bank to the credit of the Grand Trunk system, Mr. Frank Scott, treasurer of the Grand Trunk Railway, has authority to draw it out. Checks to pay the men on those various railroads are drawn on a number of banks The roads that deposit in the Old Detroit National Bank, their men are paid from those funds deposited to the credit of the Grand Trunk system. Exhibit A is a time-table of the Western Division of the Grand Trunk Railway system. The roads mentioned there are in the system of the western division. All the roads on the time-table were not in the Grand Trunk system on the 18th of May, 1907; the Pontiac, Oxford & Northern was not.
“Mr. Chapman: Now we offer to read all the names of those roads that are in the system, except that one.
“Mr. Terry (reading): Grand Trunk Railway system, Western Division, Grand Trunk Western Railway, Detroit & Milwaukee Division, Detroit Division, Oinoinnati, Saginaw & Mackinaw Division, Michigan Air Line, Toledo, Saginaw & Muskegon Division. Should the Toledo, Saginaw & Muskegon haul freight from some point on its line bound for Battle Creek, the Toledo, Saginaw & Muskegon, the Detroit, Grand Haven & Milwaukee, and the Grand Trunk Western Railway would each get its mileage proportion of the through rate; that is, as to the number of miles each company hauled.
“Q. So if a car came down from Yickeryville upon the T., S. & M., billed for Liverpool, and it started at Yickeryville, I say, billed for this place, and came down from Yickeryville over the T., S. & M. at Ashley, and then running over the Ann Arbor road to Owosso, and then ran over the D. & M. down to Manhattan Junction, and I think there it would leave the Grand Trunk track — I mean Milwaukee Junction — it went, I think, to Milwaukee Junction, near Detroit, and there left the Grand Trunk line, that freight would be divided according to the distance the T., S. & M. hauled it and the other Grand Trunk lines hauled it, it would be divided between those roads, would it not ?
“A. The Grand Trunk system’s proportion of the through rate would be divided in this way.
“Q. The money derived therefrom would go to this bank and be deposited in one fund of the Grand Trunk system ?
“A. Not unless the shipment was prepaid, and I don’t suppose it was.
“Q. Not unless the freight was prepaid ?
“A. Yes, sir.
“Q. No, the freight wasn’t prepaid; the freight was paid at Manhattan Junction.
“A. That money wouldn’t go in the bank at Detroit at all.
“Q. Where would that money come to ?
“A. It would come to the company, a remittance from the southern company.
“Q. It would come to the company; what company do you mean ?
“A. I don’t know how this particular shipment traveled.
“Q. It traveled by way of the D., G. H. & M. down to Milwaukee Junction.
“A. If it was delivered to the Detroit & Toledo Shore Line at Detroit, they would pay the Grand Trunk the total charges up to Detroit.
“Q. They would pay the Grand Trunk system ?
“A. Yes.
“Q. What would be done with the money, put in the bank?
“A. It all depends how it was paid. Yes; it would get into some bank.
“Q. Suppose it was paid, it would be paid to the D. & M. agent would it not, at Milwaukee Junction ?
“A. Very likely.
“Q. Then what would he do with the money ?
“A. Well, if the Detroit agent got it, it would go into the same bank in Detroit that we spoke about before.
“Q. No matter who got it, it would finally reach—
“A. Some bank.
“Q. It would finally reach the treasury of the system, would it not ?
“A. Yes. There is a continuous line of railroad from Portland, Me., to Chicago. It is the Grand Trunk of Canada to the tunnel, then the St. Clair tunnel, and the Grand Trunk Western Railway to Chicago.
“Q. It comes right along through; there is no break in the trails, as you said ?
“A. No.
“Cross-Examination. By Mr. Geer: Leaving Montreal, the railroad passes through the States of Vermont, New Hampshire, and Maine. I could not say whether they are separate corporations in each State. The Grand Trunk of Canada is a Canadian corporation. Its line terminates at Point Levis, opposite Quebec. You would not go to Quebec to reach Portland. You would go over part of the system.
“Q. What line of road do you go over?
“A. It is a part of the system; I don’t know the names of the eastern—
“Q. You do know there is a road that goes through New Hampshire part of the way ?
“A. Yes; the line runs through three States to go to Portland.
“Q. But the Grand Trunk of Canada is a corporation?
“A. Yes.
“Q. And it ends at Sarnia?
“A. Yes; Sarnia. Then the St. Clair tunnel has about two miles of track. The Grand Trunk Western Railway is a separate and distinct corporation, and has its separate officers. It runs between Port Huron and Chicago. They have a separate and distinct organization entirely; they pay their own taxes. The D., G. H. & M. has an entirely separate and distinct organization and also the T., S. & M. The Michigan Air Line is a separate company, and is under lease. The T., S. & M. Ry. runs between Muskegon and Ashley, and from Ashley it passes over the Ann Arbor railroad tracks to Owosso Junction, and from Owosso Junction runs over the D., G. H. & M. track to Durand. The T., S. & M. Ry. is a separate and distinct corporation. There is no such corporation as the Grand Trunk system. It is simply an advertising name for economical work. I have given the different corporations in Michigan which go to make up the system, so called.
“ Redirect Examination. By Mr. Chapman: The lines of railroad in New Hampshire and Vermont, referred to by Mr. Geer, are included in the eastern division of the Grand Trunk system. I understand that the eastern division covers everything east of Toronto. It is a continuous line all the way through, and under one management. Mr. Hays is president of all the different companies, and all the roads are under his direction. He is president of the roads comprising the eastern division, the middle division, and the western division, and is general manager. Each of the companies comprising the western division has a separate organization, and he is president of them, and they are under his management. Mr. Egan is superintendent of these western roads, and is subject to the direction of Mr. Hays.
“Recross Examination. By Mr. Geer: Mr. Hays was not president of the Grand Trunk of Canada in 1907; he was second vice president and general manager. He was president of the Grand Trunk Western Railway and of all of the lines west of Port Huron.
“Redirect Examination. By Mr. Chapman: Mr. Hays, in 1907, was president of the lines composing the western division of the Grand Trunk system, but he was not president of the Grand Trunk of Canada. He managed the western division, and the road was managed just as it is now, only there was one more man in the management.
“ Recross Examination. By Mr. Geer: Mr. Hays was president of the western lines in 1907. There has been no change, so far as the western lines are concerned. Since this time, he has been elected president of the Grand Trunk of Canada.
“Redirect Examination. By Mr. Ohapman: Mr. Hays was subject to the direction of the president in 1907, so far as the lines east of the river are concerned. He was president of the lines west of the river.”

Upon the trial of the case, the plaintiff offered in evidence certain time slips used by plaintiff’s decedent for the men who worked for him. The evidence tended to show it was his duty to keep their time. The following is a specimen of these time slips, as appears by Exhibit C:

“ Grand Trunk Railway System. Form 161. Engine No. 1220. Fifth month, eleventh day, 1907. Fireman A. B. G. Switchman E. E. Smith, worked this day 10 hours. Got engine from roundhouse at 7 o’clock a. m., left engine at roundhouse at 6 o’clock p. m. [Signed] A. B. G., Signature of Foreman.”

It appeared that the letters “A. B. G.” stood for Alden B. Groesbeck. These time slips were upon printed forms, and the writing thereon was in the handwriting of plaintiff’s decedent.

It further appeared upon the trial that one Charles E. Chittendon ordered, through the agent of the Toledo, Saginaw & Muskegon Railway Company at Vickeryville, on the morning of May 13, 1907, a box car to be loaded with barrel heading; the destination of said car being East Liverpool, Ohio. The agent ordered such car by telegraph from the master of transportation at Durand, and, on the 14th day of May, Pennsylvania box car No. 84,410 arrived at Vickeryville. The car was loaded on the 16th of May, and left Vickeryville at 12:50 p. m. on train No. 72, on the 17th day of May, 1907.

The Toledo, Saginaw & Muskegon Railway Company is one of the roads comprising the Grand Trunk system, but it is a separate and distinct organization. There is no such corporation as the Grand Trunk system. This is simply an advertising name for economical purposes. The railroad extends from Muskegon to Ashley, in this State; and from the latter point trains running over this road run over the Ann Arbor Railroad under a running agreement as far as Owosso Junction, and from that point over the Detroit, Grand Haven & Milwaukee Railway to Du-rand.

Upon the 17th day of May, the train from Muskegon, when it reached Yickeryville, took on the car in question. When this train reached Owosso Junction, it proceeded over the Detroit, Grand Haven & Milwaukee Railway to Durand, and the train was placed on one of the side tracks in the Detroit, Grand Haven & Milwaukee yards, at Durand.

The main line of the Detroit, Grand Haven & Milwaukee Railway runs substantially east and west at Durand. To the south of this main line are six side tracks and a rip, or repair track. To the east of these sidings is a lead, track, connecting with each siding or track.

On the day of the accident, plaintiff’s decedent was yard foreman, and had been working in the Durand yards for about 17 years, having been a switchman, yardmaster, and for several years before his death foreman, which is the same as conductor; and he was in charge of the switching crew on the day in question. They started work in the Detroit, Grand Haven & Milwaukee yards that morning; and, after switching out some passenger coaches, went on the scale track to weigh some cars, among which was the car in question. The car in question was kicked up No. 1 switch track, which was the first track south of the main line of the Detroit, Grand Haven & Milwaukee Railway. This yard declines toward the east, and where the cars are not blocked, or brakes set, it frequently occurred that they would, when kicked in, run back and run afoul of the switch, or into some other car, and cause damage. Plaintiff’s decedent having had this car kicked up No. 1 track did nothing about blocking it, or setting the brake. It was soon discovered that this car was drifting back, and the attention of Mr. Groesbeck was called to the fact. He replied, “ I’ll get it.” He ran over to the car, which was coming easterly, and when he met it got upon the east end, stepped upon the sill, and, while attempting to reach a horizontal brake wheel which was on the east end of this car, and is termed an auxiliary brake, between two and three feet from the ladder, he in some way lost his balance and fell off the car, and was killed. The ladder was on the east end of the car, and about 16 or 18 inches from the southeast corner of the car in its then position. It is claimed that this ladder was defective, and that in taking hold of it while on his way toward the brake wheel the ladder yielded to such an extent as to induce plaintiff’s decedent to believe that it was unsafe, and in letting go thereof, and trying to reach the brake wheel, he slipped and fell and received the injury, causing instant death.

Upon the trial of the case the plaintiff had a verdict and judgment in the sum of $5,000. The defendants have removed the case here by writ of error. There are many assignments of error, some of which we do not deem it necessary to consider. Among defendants’ requests to charge were the following:

“(2) I charge you that under the undisputed evidence in this case the Toledo, Saginaw & Muskegon Railway Company was not guilty of any negligence in the premises ; and I further charge you that the Toledo, Saginaw & Muskegon Railway Company owed no duty to plaintiff’s decedent, and you are therefore to return a verdict in favor of said defendant of no cause of action.
“(3) I charge you that the Grand Trunk Western Railway Company, one of the defendants in this case, has not been shown to have been guilty of negligence in the premises, and you will therefore return a verdict in its favor of no cause of action.
“(4) I charge you that under the undisputed evidence in this case plaintiff’s decedent was killed while employed as yard foreman in the Durand yards of the Detroit, Grand Haven & Milwaukee Railway Company, which road is not a party defendant in this suit, and I further charge you that none of the defendants can be made to respond in damages under the facts in this case for the death of plaintiff’s decedent, which occurred in the yards of the Detroit, Grand Haven & Milwaukee Railway Company. Your verdict will therefore be no cause of action.”

These requests were refused, and error is assigned thereon in the twenty-fourth, twenty-fifth, and twenty-sixth assignments of error.

This brings us at the threshold of the case to consider the question here raised by defendants’ counsel by the requests above quoted. It is his contention that the defendants in this suit are not liable; that it appears by undisputed evidence that plaintiff’s decedent was working in the yards of the Detroit, Grand Haven & Milwaukee Railway Company, which is not made a party in this suit; that the Grand Trunk Railway of Canada is a Canadian corporation, whose line of road extends as far west as Sarnia tunnel, Ontario; that the Grand Trunk Western Railway Company is a railroad corporation operating a railroad from Port Huron, in the State of Michigan, to Chicago, in the State of Illinois, and passes through Durand; that the Toledo, Saginaw & Muskegon Railway is a railroad which operates from Muskegon over its own line to Ashley; thence by running agreement over the Ann Arbor railroad tracks to Owosso Junction; and thence, also by agreement, as appears by the undisputed testimony, over the Detroit, Grand Haven & Milwaukee Railway tracks to Durand; that the defendants are separate and distinct railroad corporations, as appears from the undisputed testimony of George W. Alexander, secretary of |both the Grand Trunk Western and Toledo, Saginaw & Muskegon Railway Companies, whose testimony we have here copied in full; that the Detroit, Grand Haven & Milwaukee Railway Company is no part of any of them; that it is a separate and distinct corporation, and pays its own taxes, and has its own entity, as has been held by numerous decisions of this court, and the Supreme Court of the United States. Counsel have cited in support of this position the following cases: Attorney General v. Joy, 55 Mich. 94 (20 N. W. 806); People v. Railway Co., 157 Mich. 144 (121 N. W. 814); Detroit, etc., R. Co. v. Powers (C. C.), 188 Fed. 264; Powers v. Railway Co., 201 U. S. 543 (26 Sup. Ct. 556).

We cannot agree with defendants’ contention that it appears from this record that the car in question had been turned over by the defendant the Toledo, Saginaw & Muskegon Railway Company to the Detroit, Grand Haven & Milwaukee Railway Company at the time of the injury complained of. For aught that appears, the car was yet under the control of the defendant the Toledo, Saginaw & Muskegon Railway Company, or at least was under the control of the associated roads, or system, of which the defendant the Toledo, Saginaw & Muskegon Railway Company was a member. This being so, we are of opinion that the circuit judge did not err in refusing to charge as above requested.

Upon the trial of the case, the two eyewitnesses to the accident testified in substance as follows: Howard Groesbeck, a son of decedent, who was 12 years of age at the time of the accident, testified:

“I saw the accident. I left home about 9 o’clock, and went down town on an errand. On my way back, I went up in the yards, where my father was switching. I stood there about 10 minutes, and was talking with him. In the meantime he kicked with the engine, and pushed a car up the track west of where we were standing. I don’t know what the track number was. He later noticed the car was drifting back, and walked over and got on the stirrup, took hold of the ladder with his left hand, and then made a spring for the wheel, but missed it and fell. He made a spring and grabbed at the brake wheel as he fell; he was reaching, or made kind of a spring, toward the brake wheel with his right hand; he made a very quick spring. All I can say is he made a very quick effort, and sprang toward the brake wheel with all the vigor he had; that is what I saw. Then he fell. * * * When my father made the leap with his hand stretched out, he fell to the ground inside the rail, and as the car was not coming very fast he rolled over the track and was caught on the north side of the track, and was killed. The car was in motion when he tried to mount it, when he made the spring, and when he fell; it passed over him and killed him. I could not see how close he came to making the brake wheel; I could not tell. His hand was stretched toward the brake wheel when he fell.”

Edgar Smith, a witness called by the defendants, testified relative to the accident as follows:

“ I called to him [Groesbeck], and said: c That car is coming up there; you better get it.5 And he answered, ‘ I’ll get it,’ and walked right across, probably within six feet of it, opposite No. 8 switch. He got on the end sill, walked right across, and that is the last I noticed of him until I saw him fall. He fell square on his feet, striking with his heels inside of the outside rail of the ladder on the north side of the wheel.”

On cross-examination this witness testified:

“I saw him walk as far as the ladder, as far as the beam; then didn’t see him until he fell-off. I simply saw him reach and get the ladder, and then didn’t pay any more attention to him. I didn’t notice anything further than that he was making towards the ladder. * * * I saw him when he dropped. I can’t tell you what position he was in when he fell, or anything about it. He was on the north side of the wheel, and certainly passed the wheel entirely, because his heels were up against the rail on the north side of the car, and the ladder is on the south side of the running board. The car was going east.”

Among the defendants’ requests to charge, which were refused by the circuit judge, and which refusals are made the basis of the thirty-fourth and thirty-fifth assignments of error, are the following:

“ (12) I charge you that the plaintiff has failed to show what caused her decedent to slip or fall from the sill of said car. I further charge you that to permit you to find that, as decedent was in the act of passing over the sill on east end of said car, the ladder thereon pulled out, so as to cause him to lose his balance and fall to the ground, would be to permit you to base your verdict upon guess or conjecture.
“ (13) I charge you that under the evidence in this case you would not be warranted in finding that the ladder on east end of said car in question caused or contributed to cause plaintiff’s decedent to fall from the sill of said car, and your verdict will therefore be in favor of the defendants.”

A careful reading of the entire record constrains us to say that the defendants were entitled to have the requests last above quoted given. There is no evidence that dece' dent became frightened because of the condition of the ladder. There is no evidence that any part of the ladder gave way, or in any manner yielded, as decedent was in the act of attempting to stop the car; and to permit the jury to find from the evidence that decedent’s injury and death were in any way due to the condition of the ladder was to permit a verdict to be based upon conjecture and speculation. We are of the opinion that the cause of the fall from the car was purely conjectural. Manning v. Railway Co., 105 Mich. 260 (63 N. W. 312); Powers v. Railroad Co., 143 Mich. 379 (106 N. W. 1117); Micari v. Stone Co., 154 Mich. 362 (117 N. W. 939). In our opinion, there was no evidence in the case that the condition of the ladder was either the proximate cause of the injury and death of decedent, or that such condition contributed to such injury or death.

As the case must be reversed for these reasons, it should also be stated that the charge of the court upon the subject of inspection was not warranted under the declaration, and in view of the repeated statement of plaintiff’s counsel upon the trial that they did not claim any negligence on account of want of inspection.

We are of the opinion that the question of contributory negligence was for the jury.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted.

Ostrander, O. J., and Bird, Moore, McAlvay, and Steers, JJ., concurred. Brooke and Blair, JJ., concurred in the result.


author: Brooke, J.

text:
    BONEWELL v. NORTH AMERICAN ACCIDENT INSURANCE CO.
    1. Insurance — Principal and Agent — Brokers—Fraud.
    Insurance brokers having no authority to execute a policy, but merely being authorized to receive applications for health and accident insurance which they forwarded to the home office where the policy was issued, were not agents of the insurer in such a sense that notice to them of the falsity of statements contained in the application was notice to the insurer.

      2. Same — Accident Insurance — Warranties.
    As in the case of life insurance, so in the case of accident insurance, the insured is required to know that representations set forth in a copy of the application contained in the policy were true.
    3. Same.
    Nor was the insurer bound by knowledge obtained by its agents several months before the relation of principal and agent was created.
    4. Same — Fraud—Intent.
    That representations contained in an application for a policy of insurance were not intentionally false does not obviate their effect; they amount to constructive fraud.
    On rehearing.
    Former opinion affirmed November 3, 1911.

       Effect of knowledge of insurer’s agent of falsity of statements in application, see note in 16 L. R. A. 33.

   Brooke, J.

For former opinion, see 160 Mich. 137 (125 N. W. 59). Plaintiff urged a rehearing upon the following grounds:

“(1) Because the decision of the court is based upon a misapprehension of the facts, as shown by the record; (2) because the decision of the court regarding notice to the agent being notice to .the principal is not in accordance with the rule of law laid down by the court in similar cases; (3) because the court was misled by the brief and argument of counsel; (4) because the court’s decision is based upon grounds *of fraud on the part of the applicant and agents, Wrock & Watson, of defendant, and there is no fraud shown in the record, indicating that the facts in this case were confused with those of another; (5) because the decision of the court was based upon a misapprehension that the defendant company issued the policy upon the application as made by Wrock & Watson, when, in fact, the policy was issued upon the information given defendant by Eastman, its State agent.”

With reference to the second ground urged, it should be noted that the rule which holds that notice to the agent is notice to the principal in insurance cases has, in this State, ordinarily been applied in cases arising under fire insurance policies, where the agent had authority to countersign and issue the policy, or where the insured was ignorant of or misled as to the misrepresentations contained in his application. In the case at bar, neither Wrock & Watson, the brokers, nor Eastman, the State agent, had authority to issue policies. The authority of the State agent was limited to taking the application and forwarding it to the home office in Chicago, where the policy was issued. Nor can it be claimed that the plaintiff was ignorant of the fact that the application did not truthfully set out the answers which he had given to Wrock & Watson. Upon cross-examination, he testified:

Q. Did you know what was in the paper when you signed it ?
“A. He read it over
“ Q. To you ?
“A. Yes, sir.
eQ. You are sure that Mr. Watson did this ?
"A. He surely did, because there are things in there, technical points, that I don’t know, and we just read it over together, if my memory serves me right, the same as any policy or any life insurance.”

Neither the question touching the refusal of insurance to the applicant nor that relating to the receipt by him of indemnity for accident was technical in character. Each called for a simple statement of fact within the knowledge of the applicant, and plaintiff was immediately advised of the erroneous statements by his perusal of the application before signature. Moreover, the policy itself contained a “ Schedule of Warranties,” in which was included the false statements.

We have recently held in a case involving life insurance that, where a copy of the application was set out in the policy, it was the duty of the insured to know that the representations therein contained, and which constituted the inducement for the issuance of the policy, were true. Metropolitan Life Ins. Co. v. Freedman, 159 Mich. 114 (123 N. W. 547, 32 L. R. A. [N. S.] 298). We can see no good reason for applying a different rule to accident insurance, where the policy is issued by the home office upon the representations contained in the application.

But in no event could the defendant company in the case at bar be bound by the knowledge of the facts possessed by Wrock & Watson, because, at the time the plaintiff communicated the information to them, they were acting as insurance brokers, and not as agents for defendant. McGrath v. Insurance Co., 88 App. Div. (N. Y.) 153 (84 N. Y. Supp. 374); Grace v. Insurance Co., 109 U. S. 378 (3 Sup. Ct. 207); Freedman v. Insurance Co., 182 Pa. 64 (37 Atl. 909).

It is urged by plaintiff, however, that defendant should be bound because, at the time of the renewal of his policy, Wrock & Watson were in fact State agents for the defendant. We do not understand that it is claimed that the defendant would be held chargeable with knowledge of facts communicated to its agents several months before the relation of principal and agent was established. The principal is bound only by such notice or knowledge as comes to the agent while he is agent. Mechem on Agency, § 719; Houseman v. Building & Loan Ass’n, 81 Pa. 262; Roderick v. McMeekin, 204 Ill. 638 (68 N. E. 473).

It is the position of the plaintiff, however, that at the time of the renewal of his policy Wrock & Watson (then being State agents for defendant) were again truthfully advised of the facts through his application for additional insurance. An examination of the application for insurance in the United States Casualty Company, made on that day, shows that it contains a warranty as follows:

“I have never had any application for accident insurance declined or acceptance postponed, and no company or association or order has ever canceled or refused to renew a policy or certificate for me, except as follows.”

No exception is noted. This warranty misrepresented the fact in substantially the same language as did that contained in the application to the defendant company. It is not necessary to conclude that either plaintiff or Wrock & Watson were guilty of intentional fraudulent conduct. If the misrepresentations contained in the application tended to induce the issuance of a policy, which, had the facts been truthfully set forth, might not have been issued, those misrepresentations amount to constructive fraud upon defendant.

As stated in the opinion heretofore filed, the company had a right to make them material, and it did so.

A careful re-examination of the record and the authorities cited in the briefs of counsel has convinced us that the opinion of Mr. Justice Montgomery was not based upon any misapprehension of the facts, and that the legal conclusions are fully warranted by decisions of our own court, as well as by those of other jurisdictions.

The judgment stands affirmed.

Ostrander, O. J., and Bird, Steere, Moore, Mc-Alvay, Blair, and Stone, JJ., concurred.


author: McAlvay, J. Ostrander, O. J.

text:
    MOLYNEAUX v. BRADLEY, MILLER & CO.
    1. Master and Servant — Assumed Risk — Knowledge.
    The doctrine of assumed risk does not, as a matter of law, bar the recovery of a common laborer employed about a mill, who, on being called by the foreman from his regular work to operate a molding machine in the place of an employé who was absent, attempted to run the machine without receiving any instructions or warning concerning the dangers of the same, and in attempting to look under the machine which was working improperly,, placed his hand on the bed plate which appeared to plaintiff smooth and level, but in doing so placed his fingers among rapidly revolving knives, which he claimed were invisible.

    2. Same — Contracts—Dangers Known or Obvious.
    The assumption of risks arises from the contract 'of employment; the servant assuming the risk of all obvious dangers incident to the service which were known or should have been known by him.
    3. Same — Contributory Negligence — Instructions.
    Plaintiff, claiming that he had never operated a similar machine, and that he so informed the foreman at the time he was placed in charge of it, and that he followed the usual method when he placed his hand on the bed plate of the machine, was not, as a matter of law, guilty of contributory negligence. Ostrander, C. J., dissenting.

      4. Same.
    On the basis of testimony given by one of plaintiff’s witnesses that he supposed plaintiff was proceeding to seize a sliver that stuck up from plaintiff’s molder, that he did not see the accident; that if a man had reached over and taken hold of the sliver it would have easily pulled off, defendant was not entitled to an instruction that if the jury should find he was reaching over the bed plate to get out a sliver, he assumed the risk; because the conclusion of the witness was not competent evidence.

      5. Evidence — Impeachment. •
    Testimony tending to show the foreman’s knowledge of dangers attendant upon plaintiff’s work was admissible to impeach the testimony of the foreman given on defendant’s behalf, relating to the obvious character of the danger.
    6. Same — Custom—Operation op Machine.
    It was competent to show the oustom of experienced operators of the molding machine to place their hands on the bed plate - in looking underneath.
    Error to Bay; Collins, J.
    Submitted June 16, 1911.
    (Docket No. 32.)
    Reargued October 17, 1911.
    Decided November 3, 1911.
    Case by Thomas Molyneaux against Bradley, Miller & Company, a corporation, for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Pierce & Kinnane, for appellant.
    Kenna, LigMner & Oxtoby, for appellee.

      Assumption by servant of risks incident to service, see note in 47 L. R. A. 162.
      Master’s duty to warn and instruct servant, see notes in 44 L. R. A. 33; and 29 L. R. A. (N. S.) 111.

   McAlvay, J.

Plaintiff recovered a judgment against defendant for a permanent in j ury to his hand received while in defendant’s employment while working at a molding machine in defendant’s mill. The contention on his part was that he was employed as a common laborer to shovel coal» and handle lumber at the rate of #1.50 per day; that on the morning of the day in question, while shoveling coal, he was ordered by the acting foreman, who was in charge, to leave his work and go to work on this molding mnchine for a short time, for the reason that the regular man who operated it was away; that plaintiff told him he had never run a molder, and knew nothing about it; that the foreman told him to go and run it for a short time, that he had sent for a man who would soon be there, and then plaintiff could return to shoveling coal. The foreman gave him no instructions relative to running this machine and no warning as to its dangers. This machine was located in the new part of the mill, and on each side of it were other molding machines operated by experienced men. Plaintiff spoke to one of these men, telling him that the foreman, Cameron, had sent him to run a molder, and that he had never run one and knew nothing about it. This man, whose name is Richards, said that he would show him all he could about it. The molding machine was running at the time plaintiff came there, and the man Richards, whose machine was also running, and requiring his attention, showed plaintiff how to operate the feed of this machine. Plaintiff then started to feed the strips of lumber into this molding machine and worked about half an hour, when his attention was called to the fact that something was wrong by Richards, who motioned him with his hand, which he understood meant to shut off the feed. He did this at once, and then went around towards the back of the machine, and discovered that the strips of lumber were running one on top of the other, and noticed a sliver coming up through the machine about as large as a lead pencil and twice as long. He says that he did not know the cause of the strips running on top of one another, and went back to the end of the machine to find out what was the matter. He stooped over for the purpose of looking under to discover the trouble, at the same time putting his hand on the bed 'plate of the machine. His fingers were immediately cut into pieces. He had put his hand upon the rapidly revolving knives in and below the bed plate, one foot from the rear end of the machine.

He says that he had no knowledge that the knives were there under the bed plate, and had been given no notice of that fact. He says that the bed plate looked perfectly smooth, that no knives were visible or anything to indicate anything in motion. These knives were revolving at more than 3,000 revolutions per minute. Upon this proposition as to the appearance of the knives, he was supported by the testimony of Richards and Charters, both experinced operators of such machines. No witness but the plaintiff testifies how the accident occurred. Richards was at his machine, but did not see plaintiff at the time of the injury. There is no material contradiction of plaintiff’s testimony relative to the circumstances under which he was directed to run this machine, or that no instructions were given him at the time or notice of dangers attending its operation. The fact that he had not before run a molder was disputed, and testimony was offered which it is claimed showed that he was acquainted with machinery of the general character of this molder. The same is claimed, also, to be the effect of his cross-examination. The jury, at defendant’s request, was taken to view the premises, and observed the machine both when it was still and when it was running. At the close of plaintiff’s case, defendant moved for an instructed verdict for reasons which appear in the errors assigned and relied upon by defendant. At the close of the case, counsel for plaintiff stated that the only negligence relied upon was the failure of defendant to perform its alleged duty to warn and instruct plaintiff.

The errors assigned, which are relied upon by defendant, are presented in its brief under the following synopsis:

“ (1) The court erred in not directing a verdict for the defendant.
“ (2) The court erred in not properly presenting to the jury defendant’s theory, viz.: That plaintiff was injured as he was reaching to remove a sliver from above the machine.
“ (3) The court erred in its instructions to the jury upon the question of negligence on the part of defendant and. of the plaintiff’s contributory negligence.
ce (4) The court erred in its rulings upon the admission of evidence.”

Under its claim that a verdict should have been directed in its favor, the contention made in the court below, and this court is that upon this record (a) defendant owed no duty to warn or instruct plaintiff; (6) that plaintiff assumed the risk connected with operating the machine ; (c) that plaintiff was guilty of contributory negligence in placing his hand on the bed plate without looking.

As the only negligence relied upon by plaintiff when the case was closed was that defendant was guilty of negligence in not warning and instructing plaintiff as to this machine, the first contention made by defendant upon this branch of the case is of the greatest importance. The claim that no such duty was imposed is based upon what defendant contends this record discloses as to the knowledge and experience of plaintiff as to the operation of machinery used in and about defendant’s business, in planing, dressing, matching, and molding lumber and timber; the claim being that plaintiff was an experienced millman, who required no warning or instruction. It appears from the record that plaintiff from December, 1899, to February, 1908, had been employed at defendant’s mill during five different periods; that the last hiring was January 9, 1908, as a common laborer at $1.50 per day, and that he went to work handling lumber and shoveling coal. At the time he was injured he was called from his work shoveling coal to run this molding machine. Three of his terms of employment were for two months and less in length and two were for ten and eight months, respectively. The business was carried on in what the record designates as the “ old mill ” and the “ new mill.” The old mill contained most of the machinery. In the new mill there were three molding machines and a resawing machine. The record shows that plaintiff, during the times he worked for defendant, had frequently been engaged in taking lumber to certain machines and the finished product away from others. It appears, also, that he had worked for short periods upon several of the machines in the old mill, either as operator dr assistant. He denies that he had ever worked at machines in the new mill or had ever run a molder. He worked upon machines only when called from his work to help at a machine temporarily when they were short handed. There is no evidence that he ever received wages other than as a common laborer. The record shows that upon all of the machines in the oldmill the knives were protected and guarded; that the rear knives of the molders in the new mill were not guarded or covered. The molders differed from the machines upon which plaintiff occasionally had worked when ordered, in that they had uncovered knives in the rear bed plate. The foreman of defendant’s plant testified that plaintiff was “ the most trustworthy young man in his employ, and in that respect he was the exception to them all.” The record also shows that in operating this molding machine, by reason of the hood over the knives and parts of the machine obstructing the view, the rear bed plate cannot be seen from the front. It also appears that it was the general usage and custom in operating such machines for the operator, if the machine went wrong, to go to the rear and look [under the machine to discover the trouble, and in so doing to put his hand on the bed plate. The conclusion drawn by defendant is that the court should have instructed a verdict in its favor, and held, as a matter of law, that, in this case, by reason of the acquaintance of plaintiff with machinery in this mill, and his experience, defendant owed him no duty to warn and instruct. All but three of the cases cited in support of this contention are cases where the doctrine of the assumption of risk has been applied.

It does not appear to us that the doctrine applies, for the reason that the service required was not within the scope of his employment. Assumptions of risk arise from the contract, the servant assuming the risk of all obvious dangers incident to the service which were known or should have been known by him. There was no contract of hiring express or implied to do this work. Plaintiff was a common laborer who did the work he was hired to do, except as he was called from such work in cases of emergency.

At the final analysis the questions of his employment, his knowledge of machinery generally in the mill, and of this molding machine, and the uncovered knives in the rear bed plate were in dispute, and therefore questions for the jury, and the view of this machine, both in operation and standing still, was doubtless of great assistance to the jury in determining some of these questions. We cannot hold as a matter of law that in this case defendant was not under a duty to warn and instruct plaintiff, or that plaintiff assumed the risk.

The last reason urged why a verdict should have been directed for defendant is that plaintiff was guilty of contributory negligence in placing his hand upon the bed plate without looking. Much of what has already been said relative to a directed verdict must necessarily be applicable to this last contention. The defendant has considered all of these reasons together and cited cases as applying to all of them. Three of these cases are clearly determined upon the contributory negligence of a plaintiff, but in our opinion no one of them is in point, as a reading of the opinions will disclose, viz.: Sakol v. Bickel, 113 Mich. 476 (71 N. W. 833); Perlick v. Wooden-Ware Co., 119 Mich. 331 (78 N. W. 127); Beghold v. Auto Body Co., 149 Mich. 14 (112 N. W. 691, 14 L. R. A. [N. S. ] 609). In the instant case plaintiff testifies that he had never worked on a molding machine; that whatever he had done about machines had been done in the old mill. It is undisputed that all the knives in those machines were protected. He testifies without dispute that the foreman was informed when he ordered him to run this machine that he had never run one, and knew nothing about one. It is also undisputed that he so told the man Richards, who then showed him about the feed. He found the machine running when he came to it, and he worked at feeding it for half an hour. He was notified that something was wrong by Richards, and at his signal stopped the feed. He went to the rear, where the uncovered knives making 3,000 to 4,000 revolutions a minute, projecting one-sizteenth of an inch above the bed, were running. He says that they were invisible, that the bed plate looked perfectly smooth. Stooping to look under the machine, he put his hand on the bed plate, and was injured. This, briefly, is his testimony, which is supported by other witnesses. Some of it is sharply contradicted. Therefore the question of contributory negligence in this case was a question of fact, and not of law.

The claim that the court did not fairly submit defendant’s theory of the case to the jury is based upon the claimed effect of the testimony of the witness Richards. This witness testified:

“ He stopped the feed and went to the rear part, and I saw him stick out his hand like that, and I supposed he was going to grab the sliver sticking up, and I turned my attention to my machine, and turned around and he was pulling his hand out of the knives. * * * I was not looking at the time he got hurt, for my piece ran out and it was time to put another one in. * * * I heard a noise, and I turned around to look, and he was pulling his hand out of the knives. * * * I noticed the sliver there after plaintiff got hurt. * * * I think that, if a man had reached over and taken hold of the sliver, it would have pulled off easily.”

The request bearing upon this testimony, which was refused, reads:

“If you believe from the evidence that, at the time plaintiff was injured, he was reaching his hand over the bed plate, getting a sliver out of the machine, then your verdict will be for the defendant, because, under such circumstances, plaintiff assumed the risk of what he was doing.”

In the brief it is claimed:

“ If what Richards said was true, we think it apparent that plaintiff was guilty of contributory negligence.”

This was not the ground upon which the request was asked nor upon which it was properly refused; nor was such a request warranted by the testimony of Richards, who did not see the accident, and whose conclusion was not competent evidence. This disposes of the refusal to give other requests based upon the same testimony.

It is next claimed that the court erred in its instructions to the jury upon the question of defendant’s negligence and plaintiff’s contributory negligence. This covers practically the entire charge of the court as given upon these questions. We find that the court correctly stated the law as to what would constitute negligence of defendant, and contributory negligence on the part of plaintiff, and that in this and other respects the charge of the court, as given, does not warrant criticism.

Errors assigned upon the admission of evidence.. Under this subdivision 11 assignments of error are grouped and conclusions are drawn by counsel; that by admitting certain of the testimony the issue was diverted from the question of defendant’s negligence to that of the veracity of the witness; and that the admission of certain other testimony was error, in that it was not competent as bearing upon the questions involved.

The first objectionable testimony refers to the matter of impeachment of the foreman of the plant which was material as bearing upon his knowledge of the dangers of this machine and the plaintiff’s ignorance.

The second referred to the established usage or custom of experienced operators of these molding machines placing their hands upon the rear bed plate in looking under the machine. It is claimed by the plaintiff that this was for the purpose of showing that plaintiff in this matter was in. the exercise of ordinary care by following the usage and custom of persons engaged in the same work.

The court was not in error in admitting the evidence.

The judgment is affirmed.

Bird, Steers, Moore, Brooke, Blair, and Stone, JJ., concurred with McAlvay, J.

Ostrander, O. J.

(dissenting). Plaintiff was operating a machine which, as he knew, finished the material he was running through it on all four sides. After a time the machine did not properly dispose of the material which was being run through it, and the feed was stopped by the plaintiff, the knives which did the finishing were not stopped, and plaintiff went to the rear of the machine to see what the matter was. Proposing to look under the machine, he put one hand on the bed plate into a set of revolving knives, the bearings of which were below the bed plate, but which through an opening in the bed plate planed the material as it passed over them. He lost his fingers.

As is stated by Mr. Justice McAlvay, the only negligence of the defendant which the plaintiff relied upon was that the defendant should have instructed him concerning the use of the machine, pointing out to him (warning him of) the dangers connected with its operation. With the printed record are exhibited certain photographs of the machine, and from an examination of them we find what we should expect to find, and what plaintiff from his knowledge of machinery must have known about, namely, that the location of the revolving knives, by the use of which the material which was run through the machine was finished, was indicated by a shaft and pulleys and a belt outside of the machine. In other words, the most casual observation of the machine would have discovered to the plaintiff that a rapidly revolving shaft ran through the machine just below the bed plate directly under the point where he placed his hand. It is not clear what instruction would have done for his benefit. The argument made in his behalf, based upon his testimony and that of others, is that in looking at the bed plate of the machine the rapidly revolving knives were not visible, the whole bed plate appearing to be a mass of smooth, shiny metal. The testimony is that short knives, not so long as the opening in the bed plate, were in use. But, aside from this, it is clear that, having stopped the feed of the machine, that portion of it which was left running was connected with and operated the knives by which the finishingof the material was done. It was obvious that the revolving shaft, immediately over which, on the bed of the machine, he placed his hand, performed some duty with respect to the operation of the knives. Plaintiff, as matter of law, was guilty of contributory negligence, and the jury should have been so instructed.

The judgment should be reversed, and no new trial granted.


author: Steers, J.

text:
    KAISER v. DETROIT UNITED RAILWAY.
    1. Evidence — Admissions—Foundation eor Testimony on Trial oe Separate Action.
    The official stenographer’s minutes of testimony taken in another cause, not sworn to by the stenographer, were not admissible in evidence to show that the president and general manager of defendant admitted that defendant, at a time several years previous to plaintiff’s injury, owned the street car line on which plaintiff was injured.
    2. Same — Street Railways — Inoompetenoy.
    It was prejudicial error to admit such evidence, aside from which the showing as to ownership was meager and inferential, and to refer to it in the charge to the jury as an admission of defendant’s officers which the jury might consider on the question of its ownership of the road.
    3. Damages — Permanent Injuries — Declaration.
    A claim for permanent injuries must be plainly averred in the declaration either in exact words or by an equivalent statement of facts.
    4. Same.
    While it was permissible, under plaintiff’s declaration, which did not aver prospective pain or permanent injury, to show the extent of his suffering and of his injuries at the time of the trial, the court erred in permitting the jury to find damages for permanent or future suffering, annoyance, or anxiety.

      Error to Wayne; Hosmer, J.
    Submitted April 13, 1911.
    (Docket No. 58.)
    Reargued October 9, 1911.
    Decided November 3, 1911.
    Case by Christopher E. Kaiser against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Corliss, Leete & Joslyn and Brennan, Donnelly & Van De Mark (Benjamin S. Pagel, of counsel), for appellant.

      William M. Mertz and B. M. Dalton, for appellee.
   Steers, J.

Christopher E. Kaiser, the plaintiff, sued the Detroit United Railway to recover damages for injuries sustained by being assaulted and forcibly thrown from a moving car by one of defendant’s conductors. A verdict was rendered in favor of the plaintiff for $2,000, and judgment followed on November 5, 1909. A motion for a new trial was denied, and the case is in this court on a writ of error.

The chief contentions of counsel for appellant are (1) that a verdict should have been directed in favor of the defendant for want of any competent testimony tending to show that defendant owned or operated the car on which plaintiff was assaulted; (2) that certain testimony offered to show such to be the fact was erroneously admitted; and (3) that the charge of the court relating to the measure of damages was erroneous. Error is also alleged as to statements made by, and conduct of, plaintiff’s counsel during the trial; and the refusal of the court, after reading certain of defendant’s requests in the presence of the jury, to give them as a part of his charge.

Touching the first and second allegations of error above referred to, it appears that during the introduction of plaintiff’s testimony defendant’s counsel, in answer to an inquiry by the court, stated they could not concede that the defendant owned or operated the car from which it was claimed plaintiff was thrown. He said further as follows:

“We simply contend that these two corporations are separate and distinct; that the Rapid Railway is in no way connected with the D. TJ. R. Now, if Mr. Mertz attempts to hold the Detroit United Railway, it is up to him to produce proof, * * * but it is not within our province to do that. It is up to Mr. Mertz, if there is any such proof. We cannot produce what we have not got. We say they are distinct.”

Plaintiff’s counsel, in an effort to produce such proof, stated to the court that Messrs. Hutchins and Brooks, the president and general manager of defendant, were absent from the State, and for that reason he wished to offer, and have read by the stenographer who took it, their testimony given in a former case, entitled “Mathzeit v. Detroit United Railway.” He claimed that their absence in another State attending a ball game had been admitted by defendant’s counsel. Thereupon he called as a witness Edward Carlisle, who was sworn, and testified as follows:

“ I am one of the reporters of the circuit court for the county of Wayne, and I took the testimony in the case of Catherine Mathzeit v. Detroit United Railway. I have my notes upstairs, and will produce them. The testimony in the Mathzeit Case I now have, including all the witnesses. That is, pertaining to the ownership or the relationship between the Detroit Railway and the Rapid Railway system.”

Plaintiff’s counsel then asked that everything pertaining to that relationship be read. This was duly objected to as incompetent, irrelevant, and immaterial, and that the people whose testimony it was proposed to read were living and should be produced. The court allowed the testimony to be read.

The record fails to disclose any admission that the witnesses whose testimony was read were absent from the State.

The suit in which this testimony, which the stenographer then read, was originally taken, was tried in 1908. It related to conditions existing in 1904-5. It was not between the same parties and involved a separate and distinct issue. The transactions in controversy in that case were different from those in the case at bar, and the conditions as to ownership and management were not shown to remain the same. The stenographer who took and read this testimony did not swear either from memory or from his notes that it was a true and correct reproduction of the evidence given at the trial in the other case. His notes were not, therefore, vested with the character of sworn minutes. No proper foundation was laid for the admission of such testimony. Howard v. Patrick, 38 Mich. 795; Kellogg v. Secord, 42 Mich. 318 (3 N. W. 868); Edwards v. Heuer, 46 Mich. 95 (8 N. W. 717); Toohey v. Plummer, 69 Mich. 345 (37 N. W. 297); Barker v. Hebbard, 81 Mich. 267,(45 N. W. 964).

This testimony, which constitutes many pages in the record, having been allowed in evidence and read to the jury, the court in his charge particularly called attention to it as containing important admissions made against the defendant by its officers, saying to them:

“Now, gentlemen of the jury, that was not read as testimony. Of course, gentlemen, the testimony which has been taken in another case between other parties cannot be read in this case as testimony. The only thing that I admitted that testimony for, gentlemen of the jury, that was taken in the other case, was in the nature of an admission on behalf of the executive officers of the Detroit United Railway. There was some things in that testimony which Mr. Mertz conceded to be in the nature of an admission with reference to the operation of the road, and it is for that reason alone that that testimony has been admitted into this case. * * * You have heard the testimony or the lack of testimony with reference to that as to any change of control, and I think from that and from the testimony and from the statements of the officers of the corporation which has been read to you, it is within your province, gentlemen of the jury, to say that the Detroit United Railway were in the operation of the car at the time that the plaintiff was ejected therefrom.” '

Aside from this incompetent testimony, the evidence is very meager, remote, and vaguely inferential on the question of defendant’s ownership or control of the car from which the plaintiff was claimed to have been ejected, and the conclusion is inevitable that this objectionable testimony entered into the deliberations of the jury, was considered by them, and influenced their verdict. The admission of such incompetent testimony, followed by instructions from the court as to its weight and bearing, was prejudicial error.

The only other serious question we deem it necessary to consider is the charge of the court relative to damages for permanent injury, an element not declared upon, and of which it is claimed there is no evidence.

Plaintiff’s declaration contains two counts; the nature and extent of his injuries being stated substantially the same in each. The first is as follows:

“ By means whereof one of plaintiff’s feet became and was sprained, and his back badly hurt and wrenched, and the said plaintiff became and was injured about the heart, and his head severely jarred, and the said plaintiff was otherwise bruised, wounded, and injured; and also by means of the premises the plaintiff became and was sick, sore, lame, and disordered, and suffered violent and excruciating pain in and about the region of the heart, and became and was a nervous wreck, and was afflicted with severe attacks of dizziness, and so remained and continued for a long space of time, to wit, hitherto — ”

Neither count alleges that the injuries were permanent. To maintain the issue on his part, plaintiff introduced testimony tending to show that on the evening of October 21, 1907, he took a car called the Detroit United Railway Rapid Car to Mt. Clemens down at the waiting room on Griswold street, to ride about 10 miles out on the Gratiot Road to a station called Hund, near where he resided. When his station was reached, he had difficulty in getting to the rear platform to alight owing to the car being crowded, and it again started before he could get off. He requested the conductor to stop and let him off, and not take him to the next station. Some altercation followed, resulting in the conductor’s kicking him in the breast as he stood on the lower step of the rear platform, causing him to fall from the car while it was in motion, and hurting him seriously. He described the immediate effect of the assault and fall as follows:

“When I got up, I was sore all. through, could hardly move from the place. My face was full of sand, and I could not see for sand in my eyes. My head was hurt, my back was sprained, and my left foot was sprained. I could just about get to Hund. The next day my foot was swollen so bad, and had fever in it, and I could not sleep nights for the pain. The foot bothered me for six months. I was not able to work. I was not laid up in bed.”

As to the extent and continuance of his injuries, he testified:

“ I tried to doctor my foot with liniment. It seemed to get worse; also my back. About six weeks after I went to see a doctor. I felt I was getting broke down, instead of getting better. Besides my foot paining me, I had pain in my heart. My head bothered me. I could not sleep at all. Sometimes awake all night until morning. Sometimes two or three nights. Waked up trembling as though electricity was running through my nerves. This condition has never left me. If I do not do anything, do not work at all, it is not so bad, but the least little bit of excitement of using my muscles a trifle puts me in that condition. I never suffered any of those troubles before the accident.”

He also further testified that he was over the trouble with his lame foot, but was not otherwise fully recovered at the time of the trial, and was suffering from nervous debility, pain around the heart, headache, and sleeplessness.

The court charged the jury on the measure of damages as follows:

“ If the plaintiff is entitled to compensation, * * * he is entitled to damages for his injuries, past, present, and prospective. The elements that the jury are entitled to take into consideration consist of all the injuries complained of in the way of personal inconvenience, sickness, which the plaintiff enumerated — bodily and mental suffering, permanent annoyance, if you find permanent annoyance, which is liable to be caused by the injury, if any, and such loss or damage that the plaintiff is shown to have suffered. * * * You are at liberty to consider, not only bodily pain, past as well as future, but the mental suffering, anxiety, and suspense.”

The rule is well settled that a claim for permanent injury must be plainly averred in the declaration, either in exact words or by an equivalent statement of facts and circumstances from which such result naturally and necessarily follows. Where a statement of the nature of the injury contains in it allegations which indicate it must necessarily be permanent, like the loss of an arm, leg, or eye, there can be no misunderstanding or surprise, and in such cases permanent injury would be sufficiently pleaded; but in the case at bar the injuries stated in the declaration are not such as to be necessarily permanent, and there is no averment in exact language that such is the case. Neither does plaintiff’s testimony preclude hope and possibility of future recovery. That all the circumstances attending willful trespass may be given in evidence before the jury and considered by them in estimating damages is a familiar principle. It was competent in this case to show that the plaintiff was yet suffering from his injuries at the time of the trial, as bearing on the severity and extent of the same, but in the absence of proper averments in the declaration there can be no recovery for permanent injuries, and it was error for the court to charge the jury that damages could be awarded therefor. Baldwin on Personal Injuries, § 613; Shadock v. Plank Road Co., 79 Mich. 7 (44 N. W. 158); Kuhn v. Freund, 87 Mich. 545 (49 N. W. 867); French v. Wilkinson, 93 Mich. 322 (53 N. W. 530); Montgomery v. Railway Co., 103 Mich. 46 (61 N. W. 543, 39 L. R. A. 287). By reason of the errors referred to, which in the opinion of the court were prejudicial, the defendant is entitled to a retrial of the case.

As the other errors alleged are not likely to arise on a new trial, no useful purpose will be served by reviewing them.

The case is reversed and a new trial ordered.

Ostrander, 0. J., and Bird, Moore, MoAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Bird, J.

text:
    GRINNELL v. MAYES.
    Pleading — Notice of Defense — Limitation of Actions.
    In an action of trespass for cutting a tree on plaintiff’s land, described as the E. -J of the N. W. % of section 32, in a certain township and county, defendant could show under his plea and notice alleging that the tree was on the E. \ of the S. W. i of said township, etc., that the tree stood upon a strip of land which was by the original survey part of plaintiff’s eighty, but to which defendant claimed title by adverse possession, and which, by the construction of a line fence more than 15 years previously, was included within defendant’s boundaries.
    Error to Montcalm; Davis, J.
    Submitted January 4, 1911.
    (Docket No. 15.)
    Decided November 3, 1911.
    Trespass quare clausum fregit by Adelbert J. Grinned against John Mayes. Judgment for plaintiff. Defendant brings error.
    Reversed.

      E. A. Miller and George E. Nichols, for appellant.

      N. 0. Griswold, for appellee.
   Bird, J.

This is an action of trespass, which originated in justice’s court, to recover damages for the unlawful cutting and carrying away of an oak tree from the premises of the plaintiff, which premises were described as the E. £ of the N. W. £ of section 82, Town 10 North, of Range 5 West, in Montcalm county. The defendant pleaded the general issue, and gave notice thereunder that he would prove that the tree was taken from his own premises, which were described as the E. £ of the S. W. of section 32. Upon filing this plea and notice, together with the statutory bond, the cause was thereupon certified to the circuit court by the justice as one involving the title to land.

At the trial in the circuit court it developed that the line fence between these two 80’s was not built originally upon the line of the government survey, but was built several rods north of it, leaving a strip of land a few rods in width lying between the line fence and the quarter line. The tree stood upon this strip. It was conceded by the defendant that the tree stood upon this strip, but he attempted to defend his action by establishing his title to the strip by adverse possession. The plaintiff objected to the evidence, ánd insisted that defendant could not show title to any part of the E.£ of the N. W. £ by adverse possession under his plea and notice. The court sustained the objection. The defendant then asked permission to amend his notice, so that it would include that defense, but his motion was denied. The defendant complains of these rulings, and assigns error on them in this court.

The question raised by the first objection is as to whether the disputed strip is properly described in defendant’s plea and notice as the E. £ of the S. W. J of section 32. If the disputed territory was included within that description, it would follow that the defendant had the right to show that the tree stood on the strip, that the strip was a part of his close, and by what means he acquired that particular part of the close. A like question was raised and decided in Husted v. Willoughby, 117 Mich. 56 (75 N. W. 279). That case was an action of trespass between adjoining landowners, and a narrow strip of land was in dispute as in this case. One of the contentions of defendant was that the alleged trespass did not occur upon the lands described in plaintiff’s declaration. This court, in holding the declaration sufficient, said:

“ If, then, the agreement as to what should be regarded as the true line between these two descriptions, which was made when the surveyor was employed, is conclusive, it would logically follow that the line so established was the south line of the N. W. J- of N. W. £, and the north line of S. W. £ of N. W. J.”

We are of the opinion, under this holding, that the description in defendant’s plea and notice was sufficient to admit the proof which he offered. In view of this conclusion, it will be unnecessary to consider the question of an amendment as it becomes immaterial.

The judgment of the trial court is reversed, and a new trial ordered.

Brooke and Stone, JJ., concurred. Ostrander, C. J., and Blair, J., concurred in the result.


text:
    McCAULEY v. DETROIT UNITED RAILWAY.
    1. Evidence — Husband and Wife — Loss of Services — Damages.
    It was prejudicial error, in a personal injury case brought by a married woman, to permit her to show that her husband conducted a store of which she was chief manager, and that by reason of her injuries she was unable to perform the same duties as formerly and in consequence the business failed. That defendant brought out, on cross-examination of plaintiffs physician, the fact that had she submitted to an operation promptly her sufferings would have been diminished, did not justify the admission of the objectionable testimony, and plaintiff should not have been permitted to go further after testifying that neither she nor her husband had sufficient means to pay for the operation.
    2. Husband and Wife — Negligence— Personal Injuries — Action for Loss of Wife’s Services.
    If the husband suffered the loss of his wife’s services, they could only be recovered for in an action instituted by him.
    Error to Wayne; Hosmer, J.
    Submitted January 19, 1911.
    (Docket No. 126.)
    Reargued October 6, 1911.
    Decided November 3, 1911.
    Case by Catherine McCauley against the Detroit United Railway. Judgment for plaintiff. Defendant brings error.
    Reversed.
    Gorliss,, Leete & Joslyn {William G. Fitzpatrick, of counsel), for appellant.

      William H. Turner, for appellee.
   Bird, J.

Plaintiff recovered a judgment in the Wayne circuit court against the Detroit United Railway for personal injuries which she claims to have received while attempting to alight from one of its cars in the city of Detroit. The defendant asks for a reversal of the judgment on several grounds, chief of which is that the trial court erred in the admission of testimony.

While plaintiff was on the witness stand, her counsel developed that she was a married woman, residing with her husband at Merrill, in this State; that on the day of the accident she was in Detroit on business, and while in the act of alighting from one of the defendant’s Jefferson avenue cars she was thrown to the pavement by the sudden starting of the car, and seriously injured; that the most serious injury which she suffered was a retroversion of the uterus. Following this, plaintiff’s counsel showed by Dr. Kennedy that the injury was a serious one. Upon cross-examination Dr. Kennedy testified that, while the injury was a serious one, it could probably be cured by a surgical operation, and that the proper time for such an operation was within a reasonably short time after the injury, and he further gave it as his opinion that much of the pain and suffering which plaintiff had endured since the accident might have been averted by a prompt surgical operation. Plaintiff then showed by the doctor that such a surgical operation would cost from $500 to $1,000. Subsequently plaintiff was recalled to the stand, and testified that neither she nor her husband had the means with which to procure such an operation as Dr. Kennedy advised. She further testified that her husband, prior to her injury, was conducting a store, and that she was the chief manager of the business, and as a consequence of her injury she was taken away from it and it went bankrupt. This testimony of the plaintiff is complained of as error. Counsel argues that it was prejudicial to his case, and was a temptation to the jury to make good the business losses of plaintiff’s husband. Plaintiff’s counsel argues in justification of its admission on the ground that defendant developed the testimony to the point where he could argue to the jury that, had plaintiff submitted to an operation promptly, her suffering would have been very much lessened.

We are of the opinion that it was competent for plaintiff to show the seriousness of the injury and what the probable cost would be to effect a cure, and, after defendant had shown that the proper time for an operation was immediately following the accident, we think it was proper for plaintiff to show that neither she nor her husband had the means to pay for such an operation. But we are inclined to agree with defendant’s counsel that when she went further and testified that her husband was engaged in conducting a store, and that it went bankrupt by reason of the loss of her services and attention, that she went further than was proper, and further than was necessary to explain any unfavorable inferences which might have been drawn by defendant’s counsel from her failure to be operated upon promptly. Evidence of what her husband had lost on account of her injury would be more misleading than helpful to a jury, in determining what loss she had sustained.

Her husband was entitled to her services, and, if he lost them through the wrongful act of defendant, they could be recovered for only in a suit instituted by him. We think the testimony was incompetent, and that the effect of it was to augment the damages allowed her by the jury.

There are other assignments of error, but they are of such a character that they will not likely arise upon a new trial. Therefore they will not be considered.

For the error pointed out, the judgment will be reversed, and a new trial granted.

Steere, Moore, Blair, and Stone, JJ., concurred. Ostrander, C. J., and McAlvay and Brooke, JJ., concurred in the result.