author: Hooker, J.

text:
    TOWNSHIP OF BANGOR v. BAY CITY TRACTION & ELECTRIC CO.
    1. Highways and Streets — Encroachment — Street Railroad —Abatement—Chancery Jurisdiction.
    A township may maintain a hill to remove a street railroad built in one of its highways without the consent, and against the repeated protests, of the township authorities, sections 4121-4126, 2 Comp. Laws, providing a legal remedy for encroachments upon highways, not being intended to apply to such a case.
    2. Estoppel — Townships—Officers—Encroachments on Highways.
    Failure of the officers of a township to take steps to prevent the unauthorized building of a street railroad in its higliway, or acquiescence therein, does not estop the township from maintaining a bill in chancery to compel removal of the tracks.
    Appeal from Bay; Collins, J.
    Submitted November 16, 1906.
    (Docket No. 129.)
    Decided February 5, 1907.
    Bill by the township of Bangor and Andrew Carlson, highway commissioner, against the Bay City Traction & Electric Company to enjoin an encroachment upon a highway. From a decree dismissing the bill, complainants appeal.
    Reversed, and decree entered for complainants.

      Pierce & Einnane, for complainants.

      T. A. E. & J. O. Weadock, for defendant.
   Hooker, J.

The defendant purchased a street railway constructed in a highway, within the township of Bangor, in Bay county. The, township files this bill alleging that the railway was built without the consent, and against the repeated protests, of the township authorities, and has been so maintained and operated ever since. It prays the removal of the road. A hearing was had upon the merits, on pleadings and proofs taken in open court, and the bill was dismissed upon the ground that the court of chancery has no jurisdiction in such a case, unless given by statute; that the only statute upon which jurisdiction can be predicated is 1 Comp. Laws, § 433, and that such statute applies only where an encroachment is shown; that this statute was not intended to modify the rule that where the law affords a plain, speedy, and adequate remedy, such remedy should be sought, instead of a remedy in equity, and that an adequate legal remedy is provided by 2 Comp. Laws, §§ 4121-4126. As a further ground, the learned circuit judge said that the case was within the rule followed in the cases of Township of Lebanon v. Burch, 78 Mich. 641, and Township of Greenfield v. Norton, 111 Mich. 53.

We infer from the defendant’s brief that the testimony sustains the bill upon the point that the railway was built without obtaining authority from the township in the way pointed out by statute, but defendant seems to rely on an estoppel, based on the acquiescence of the officers of the township, or failure to take steps to prevent the construction of the railway. The testimony shows that the construction of the railway began in 1889. The highway commissioner was informed that work was being done in the highway, and a meeting of the township board was held soon after to consider what should be done, and the board looked over the premises where the work was being done. The record of this meeting shows:

“Before calling the meeting to order the board proceeded to examine the highway between sections 9 and 10, town 14 north, range 5 east, pursuant to the request of the highway commissioner of the township of Bangor, and ascertained the following facts, viz.: The West Bay City Street Railway Company is constructing a street railway on the highway running north and south between said sections, using d'irt from near the center of the highway for the construction of said railway, and grading on the east side of said highway, and whereas said railroad proposes to secure lands on the west side of the said highway to widen the highway, and the people adjoining said highway are satisfied, therefore it is
Mesolved, That the board take no action at the present and leave the consideration for some future date.
“ Carried.”

The supervisor had some talk with officers of the company, and was informed that it was its intention to buy as much land on the west side of the highway as it was using of the highway on the east side, and to widen the highway to that extent, and this project was talked over at the meeting. Action was purposely deferred to see if that should be done. The railway company proceeded to complete the railway. It neither bought the land nor widened the street. The township officers complained several times about the condition of the highway, but could get nothing done. . The township board took no further action until some years after.

In June, 1902, notice was served by the township authorities on the receivers of the railway company demanding a removal of the road from the highway, for reasons enumerated in the notice. On August 14, 1902, Mr. Weadock, the managing receiver of the railway company, and in charge and control of the business of the company, had some negotiations with the township officers upon his application, and was present at one or more meetings of the township board, and these negotiations resulted in the granting of a franchise for a railroad along the highway in question, to. the United Traction Company, its successors and assigns, upon terms and conditions stated therein. The record of the township treats this as, an application of the Bay Cities Consolidated Street Car Company “ for a franchise of its road through Bangor township, on the east side of the line between sections 9 and 10 and 3 and 4.” The record states the fact of the arrival of Mr Weadock, the examination of the premises upon the question of a proposed doubling of the track, and that Mr. Weadock paid the expenses of the meeting. The record of August 16, 1902, shows a meeting on that date, and an adjournment of the meeting to August 20th, “ to meet Mr. Weadock, the receiver.” The record of the meeting held on August 20th is significant. It states that the township board met on that date pursuant to adjournment, to consider the terms and conditions on which “a franchise might be granted to the United Traction Company, formerly known as the ‘ Bay Cities Consolidated Street Railway Company ’ running its cars on the line of the highway ” (describing it). It continues :

“ This road was first built in 1889, by Fisher, Aplin and Magill without acquiring any right to lay their track in the highway. The first mile was then an established highway, and the second mile was private property, and now, when the township had entered an action to oust them, they apply for a franchise.”

It shows that. Weadock, receiver, and E. S. Dimmock, general manager, were present representing the United Traction Company, and that Mr. Weadock presented “ the request of his company ” for a franchise for 30 years and a right to lay a single or a double track, and to charge a 5-cent fare on these two miles. The substance of the negotiations follow. Again Mr. Weadock paid the costs of the meeting, and the franchise was agreed upon and was entered in the record. At that time it was contemplated that the road would soon be sold at receiver’s sale, and the purpose of asking for the franchise was understood to be to give the purchaser a franchise under which it could operate the road, and it was given in the name of a company not then in existence, to avoid giving another later, it being expected that it would be transferred to such company as should purchase the road. The road was sold to the Bay Cities United Traction Company, a company organized for the purpose of purchasing it, and this franchise was assigned to it, without any consideration, other than reimbursing the receiver for the expense incurred in procuring it. The Bay Cities United Traction Company was afterwards consolidated with the Traction & Power Company, under the statute, taking the name of the Bay City Traction & Electric Company. It is said that, either before or after such consolidation, it was determined not to operate the road u,nder this franchise, and the new company has refused to comply with its terms.

The points relied on by defendant seem to be:

1. That the court has no jurisdiction of this cause, because there is an adequate remedy at law, if complainant’s claim is valid.

2. That it is estopped from asking the relief sought, because of the acquiescence of its officers in the building and maintenance of the road, it being contended also that the proceedings of 1902 have no force as against this defendant.

A railway which is built in a highway without authority of law is not rightfully there, and the public has a right to have it removed, whether it be called an encroachment, an obstruction, or a nuisance. Defendants appear to contend that this is neither an obstruction nor a nuisance, for the reason that we have held that' the use of public highways, by street railway companies, is a legitimate use of the highway, and does not create an additional servitude upon the land of the adjoining proprietor, and that it must, therefore, be an encroachment or a trespass; if the former, not the subject of equitable relief; and, if the latter, waived by the conduct of the officers. While a railroad, lawfully constructed on a highway, and rightfully there, cannot be held to be an unlawful obstruction of, or encroachment upon, the highway, it is an obstruction in the sense that any structure or new use may be an obstruction to its use by the public generally to a greater or less extent. Thus in the case of Attorney General v. Brick Co., 115 Mass. 431, it was held that a track laid across the highway by the owner of lands adjacent, by the consent of the township authorities, might be an obstruction, and, if the surveyors should so determine (the surveyors being public officers authorized to determine such questions), a court of equity would not review their action, notwithstanding the consent of the township authorities. The inference deducible is that, though the person who built the track owned the fee of the highway, and might use it so'long as his use did not interfere with the public use (though they reserved that question), when it should appear, as matter of repair, that the railway interfered with public travel and the proper use of the highway, it was an obstruction. The case contains an intimation that such tracks might be considered inconsistent with the use of the public, but, as already said, that question was not decided. This defendant was not an adjacent landowner, and has no color of right to occupy the street except such as the statutes then in force conferred, and, in building its line, placed an obstruction in the way, of which the township authorities had a right to complain and to take measures to remove, and we hesitate to say that it may not have been a nuisance which they might ask equity to abate, for we think that it does not follow, from the recognition of a lawful- street railroad, as a proper adjunct to a highway, that an unlawfully constructed one cannot be a nuisance. See Elliott on Roads and Streets (2d Ed.), §§ 644, 802, and cases cited. If it is so claimed, equity has jurisdiction to try the question, and the township may bring the suit, as we held in Township of Merritt v. Harp, 131 Mich. 174. The cases of Township of Lebanon v. Burch, 78 Mich. 641, and Township of Greenfield v. Norton, 111 Mich. 53, upon which defendant rests its contention that equity is not the proper forum to seek redress in a case of this kind, were cases of encroachment by adjacent proprietors. The opinion in the former case indicates that the court was considering cases where the landowner seeks to extend his adjacent occupancy beyond the highway line, and the discussion applied to cases where the proceeding is to settle highway lines, cases there said to be peculiarly within the jurisdiction of highway officers, and in which class of cases it was held there was no occasion for resort to equity, unless possibly under some peculiar circumstances which cannot generally exist. See, also, City of Grand Rapids v. Hughes, 15 Mich. 54, defining encroachment. The case of Township of Greenfield v. Norton, supra, was a similar case, a barn being erected partly in the highway. We are of the opinion that if this cause can be said to be within the general rule stated in those cases, it is also within the exception suggested, and that equity may entertain a bill to determine and enforce the rights of the parties.

The defendant’s alleged estoppel cannot be sustained. If private persons can create easements by estoppel, under our statute of frauds, and our decisions, or if a license may be implied from the acquiescence of a private person, who stands by and sees, without protest, his land used for a railway, the same cannot be said of township officers, who have no authority except such as the statute gives, and if it could be, the testimony does not justify such a finding. See Goose River Bank v. Willow Lake School Township, 1 N. Dak. 26. We must hold that the only authority that the defendant has is traceable to the action of the board in 1902, and it must submit to a decree in accordance with the prayer of complainant’s bill, unless, within 30 days after service of a copy of this opinion, it file an election to take a decree adjudging such relief, conditioned upon its failure to accept and comply with the terms imposed by the township board in said resolution or franchise. The complainant will recover costs of both courts.

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


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    BURKE v. BAY CITY TRACTION & ELECTRIC CO.
    1. Carriers — Street Railroads — Injuries to Passengers — Alighting from Car — Contributory Negligence.
    It is not negligent, as a matter of law, for a street-car passenger to attempt to alight at a regular alighting place, where the car has apparently stopped for the purpose of permitting him and other passengers to alight.

    2. Same — Setting Down Passengers — Negligence.
    It is negligence to suddenly start a street car while a passenger is in the act of alighting therefrom, at a regular alighting place, after having been invited to alight by the stopping of the car apparently for that purpose.
    3. Same — Alighting from Moving Car — Contributory Negligence.
    It is not negligence, as a matter of law, to attempt to alight from a moving street car, the question of negligence in such cases depending on the circumstances, the most important of which is the rapidity of motion.

      i. Same — Trial—Special Interrogatories to Jury — Inconsistency.
    A special question to the jury, “Was the car at full stop when the plaintiff stepped or got off ?” answered in the affirmative, is not inconsistent with a general verdict for plaintiff nor with the answers to other special questions showing that the car came to a stop and suddenly started again while plaintiff was in the act of alighting.
    5. Trial — Verdict—Special Findings — Inconsistency—Effect.
    Inconsistency of special findings with each other does not affect the general verdict.
    6. New Trial — Newly-Discovered Evidence — Diligence.
    In the absence of a showing of diligence, a new trial on account of newly-discovered evidence is properly denied.
    Error to Bay; Collins, J.
    Submitted November 6, 1906.
    (Docket No. 105.)
    Decided February 5, 1907.

      Case by Asa Burke against the Bay City Traction & Electric Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      T. A. E. & J. C. Weadock, for appellant.

      De Vere Hall and E. P. McCormick, for appellee.

       As to negligence in getting on or off a moving street car, see note to Jagger v. People’s Street R. Co. (Pa.), 38 L. R. A. 786.

   Carpenter, J.

Plaintiff brings this suit to recover compensation for injuries sustained October 7, 1904, while he was a passenger on one of defendant’s street cars in Bay City. He testified that, as the car approached Twenty-Third street, he indicated his desire to alight by giving the customary signal.

“When it came within 12 or 14 feet of the crossing * * * she slacked down. * * * It had every appearance of stopping. * * * I went * * * on the rear platform. * * * Two passengers * * * got off before me. * * * I took hold of one [a bar] at the left side. I had my dinner basket in my right hand. After the second passenger got off, I fell down — I stepped down. The car was * * * probably five or six feet past the crossing. * * * When those passengers got off the car was not standing still. The car was right on the point of stopping when I went to step off. The last I noticed was when the second man stepped off, then it was right on the point of stopping. And I was satisfied, certain without any doubt, that it would be stopped by the time I could get down. I had to look so close to see the lower step that I didn’t notice whether she had come to a stop or not, but, in my opinion, she had, but just as I stepped she shot off and I struck. * * * As soon as I struck I let go. I might have held on an inch longer than I did if the car had not started. ”

In consequence of this sudden starting of the car he (plaintiff) was thrown to the ground and injured. Plaintiff obtained a verdict and judgment in the circuit court. Defendant seeks a reversal upon several grounds.

First. It contends that a verdict should have been directed in its favor. This contention compels us to consider this question, Was there evidence that plaintiff was injured (a) in consequence of defendant’s negligence, and (6) while he himself was in the exercise of due care ? The jury might have inferred from plaintiff’s testimony that the car came to a stop for the purpose of permitting him and other passengers to alight, and that, while he was alighting, it suddenly started. To attempt to alight under these circumstances was not contributory negligence. To start the car under these circumstances was negligence. Selby v. Railway, 122 Mich. 311.

Defendant refers to cases (Bradley v. Railway Co., 94 Mich. 35; Etson v. Railway Co., 110 Mich. 494; Conroy v. Railway, 139 Mich. 173) holding that the acceleration of the speed of a street car between its stopping places is not evidence of negligence. The principle of these cases has no application where the car is started when a passenger is alighting therefrom at the invitation — express or implied — of the carrier. In such a case — and this is such a case — it is, as above stated, negligence for the carrier to start the car.

Second. Defendant contends that the court erred in giving the following instruction to the jury:

“If the car was at the usual alighting place at the time that plaintiff attempted to alight, he would not be guilty of contributory negligence, as a matter of law, in alighting there, if he had given the proper signal for the car to stop and at the time he made such attempt he believed it had stopped, but it had not in fact, but was merely moving so slowly that a prudent person under the same circumstances would have alighted. If, however, the car had not practically come to a stop at the point and plaintiff was injured in consequence thereof, he cannot recover.”

Defendant contends that the foregoing instruction was erroneous on the ground that it was contributory negligence for plaintiff (a passenger) to attempt to alight if the car had the slightest motion. Upon this proposition we approve the following reasoning of the supreme court of Illinois (Cicero, etc., R. Co. v. Meixner, 160 Ill. 321 [31 L. R. A. 331]):

“ Electricity as a motive power, while stronger and more powerful and with possibilities of a greater speed, is at the same time more nearly under the control of the person in charge than horse power. The strict rule in force regarding the negligence of a person alighting or boarding an ordinary train of steam -cars had for it many good and sufficient reasons, which are not applicable to the electric car, as in general use. In the latter case, stops are more frequent, and opportunity for great speed is not presented. Steps for passengers are near the ground, and the chances of a misstep or fall are not so great as in steam cars. * * * While, in electric cars, the possibilities of speed are greater than in the case of horse cars, yet the general operation dnd management of such cars so nearly approach that of horse cars that it must be held that the same rule of law * * * that it is not negligence per se to board or depart from such cars while in motion, is also applicable to electric cars.”

This does not mean that a court can never say, as a matter of law, that it is negligence for a passenger to get on or off a moving car. That depends on circumstances, the most important of which is its rapidity of motion. When it is moving as slow as indicated by the testimony in this case that question (the question of contributory negligence) should be left to the jury. See, also, 6 Cyc. p. 648; Beach on Contributory Negligence (3d Ed.), § 291.

Third. Certain special questions were submitted to and answered by the jury. We give those questions and their answers:

“1. Did the plaintiff get off the car before it stopped ?
“A. No.
“2. Did the car stop * * * before plaintiff got off?
“A. Yes.
“3. Was the car at full stop when the plaintiff stepped or got off ?
“A. Yes.
“4. Was the car moving when the plaintiff got off ?
“A. Yes.
• “ 5. Did the car * * * come to a stop * * * at the usual stopping place for passengers to alight ?
“A. Yes.”

Defendant complains because the trial court declined to grant, a new trial upon the ground that these answers were inconsistent with the verdict, and inconsistent with each other. It is apparent from the foregoing reasoning that the answer that the car was moving when the plaintiff got off ,is not inconsistent with the verdict. If, however, the answers imply that the car did not start while the plaintiff was alighting, they are inconsistent with the general verdict, for I think the verdict rests upon the proposition that the car did start at that time. Is it to be inferred from any of these answers that the car did not start while the plaintiff was alighting ? If this inference is to be drawn it must be drawn from the answer “ Yes ” to question 3: “Was the car at full stop when the plaintiff stepped or got off ?” This question is ambiguous. It is susceptible of two constructions. The jury might have understood it as asking if the car was at full stop, either when the plaintiff “stepped” or when he “got off” (and this question they would have answered “Yes” if they found that the car was at full stop when plaintiff stepped, though they found it was in motion before he had time to let go of the supporting bar with his left hand), or they might have understood that the words “stepped” and “got off ” were used synonymously, and that they were asked if the car was at full stop when plaintiff alighted therefrom. If such ambiguous questions are submitted — and the trial court might very properly refuse to submit them — they should be construed as the jury understood them. Otherwise their answer is not given the effect that the jury intend. By what means shall we ascertain the understanding of the jury ? The party who propounds such questions — in this case, the defendant — is responsible for their ambiguous character, and all serious doubts should be resolved against him. Under such circumstances it should be presumed that the jury placed that construction upon the question which makes their answer thereto harmonious with their general verdict and with their answers to the other special questions. Any other rule would give an unfair advantage to the party asking ambiguous questions and encourage him to persist in an improper practice. In the case at bar, by their general verdict and their answers to the other special questions, the jury have found that the car started when plaintiff was alighting. It follows that, by their answer to the question under consideration, they did not intend to declare that the car did not start when plaintiff was alighting; that they understood that question to ask if the car was at full stop, either when the plaintiff “stepped,” or when he “got off.” This question they could not answer “No,” because they determined that the car was at full stop when plaintiff stepped, and therefore, in accordance with this determination, they answered it “ Yes.” The jury’s answer to question 3 is, then, merely a finding that the car was at full stop when plaintiff stepped. We conclude that the jury’s answers to the special questions are not inconsistent with their general verdict, and the same reasoning proves that those answers are not inconsistent with each other; and if they were, the verdict would not, for that reason, be disturbed. Foster v. Gaffield, 34 Mich. 356.

Fourth. It is contended that the court erred in refusing to grant a new trial upon the ground of newly-discovered testimony. It is sufficient to say that, under the rule laid down in Canfield v. City of Jackson, 112 Mich. 123, and Grand Rapids Electric Co. v. Manufacturing Co., 142 Mich. 4, there was no error.

No other question demands consideration.

Judgment is affirmed.

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


author: Ostrander, J.

text:
    BOMAN v. MASHEK CHEMICAL & IRON CO.

    1. Master and Servant — Personal Injuries — Contributory Negligence — Aots in Emergencies.
    Plaintiff, engaged in unloading sawdust from a oar into a hopper in a platform from which ran a conveyor, undermined a frozen mass, and, to escape it in its fall, stepped back into an uncovered place in the conveyor casing, of which he was excusably ignorant, and was injured. He had been warned of the danger of getting into the hopper which he avoided. Held, that he was not guilty of contributory negligence on the theory that, having developed the dangerous situation, he was bound to see to it that there was a safe way to escape from it and to escape by any other way at his peril.
    2. Same — Safe Place to Work — Assumption of Risk.
    A servant, when employed and instructed to commence work at a particular place, is under no obligation, in order to protect himself from a charge of contributory negligence, to first go all over the building or plant and make himself familiar with each piece of machinery, and the danger he may incur in case he comes in contact with it in its then ■ condition.
    Error to Delta; Stone, J.
    Submitted November 16, 1906.
    (Docket No. 122.)
    Decided February 5, 1907.
    Case by August f Boman against the Mashek Chemical & Iron Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    To convey into its mill, for fuel, sawdust brought upon its premises in cars defendant used a platform and a conveyor which ran from above, down to, and through the platform into a pit into which the sawdust was unloaded. The bos or casing in which the conveyor ran, made, with the platform, an acute angle, and there was at the platform level but eight inches between the front or car side of the platform and the front of this casing. Upon each side of the conveyor there was a hopper under the platform, leading into the pit, the opening in the platform being about 5 feet long and of a width varying, proportionally, from 2i feet to 10 inches; the narrowest point being about 4 inches from the side of the conveyor, and the space between the opening and the front or car side of the platform being, uniformly, 3 inches in width. The railroad cars employed had no roofs, the doors of the cars opened outward, and were eight feet high. The method was to bring a car alongside the dock or platform, in which position the floor of the car was some inches, not less than four, from the platform, open the door, place a board from the car floor to the platform to prevent the falling of the sawdust outside the hopper, and, working first from the platform, to empty the car, by pulling or raking, and later from the inside of the car by shoving or pushing the sawdust into the hopper. It was usual for the men to stand on the platform back of the opening or hopper, and with a tool provided,- having a handle properly six feet long, but which was sometimes shortened by breaking, or by being cut off, to work at the sawdust until space had been made in the car. As originally constructed, the casing or shaft of the conveyor, which had been in operation for about one year, had its fourth or upper side uncovered. A short time after it was started its upper front side was covered to keep out rain and snow. Frequently this covering was knocked off by. slabs or other substances carried over and down by the conveyor inside the casing, and such openings had been found at the point where the casing met the platform. It is the testimony of one of the witnesses for defendant, employed as a carpenter, that on the day the plaintiff was injured, at about 6 o’clock in the afternoon, he repaired, by covering, such an opening just above the platform, being directed so to do by one of defendant’s foremen, who gave as a reason ‘ ‘ because I don’t want anybody to get hurt.”

      Plaintiff, a mature man and intelligent, was set to work at about 7 o’clock on the evening of January 18, 1905, to unload a car of sawdust. In going along the platform, with the foreman, he was obliged to pass by and step over or at the front of the elevator. He was told, he says, by the foreman, to be careful. ‘ ‘ If you get into this, you are gone. You will be killed if you get in there,” which statements plaintiff referred to the hopper. The sawdust was frozen. The foreman watched him a short time, and then left him. It was the first time plaintiff had done this work. No artificial light was furnished. There is testimony tending to prove that it was a moonlight night, and that there was snow on the ground and some snow and ice on the platform. No one saw plaintiff at the moment of the injury, although a man was working inside the car, putting sawdust into the hopper on the other side of the conveyor. It is plaintiff’s claim, supported by his testimony, that he did not see the uncovered elevator casing, if it was uncovered when he passed it; did not know it was uncovered; that, being furnished with a hook with a short handle, he stood with one foot in the door of the car and one foot on the platform behind the hopper, and, so straddling the platform opening, he picked at the frozen sawdust, leaning and reaching into the car until he discovered above his head a large lump or chunk of frozen sawdust about to fall upon him; that he stepped quickly back, and apparently to one side, into the conveyor, his left leg being caught by a descending lug. Later his left foot was amputated. He released his leg without stopping the conveyor, and was found sitting or lying on the platform. No one had before been injured by stepping into the elevator. It does not appear that any one had ever before stepped into it. To recover damages for this injury, suit was brought; the negligence of defendant alleged in the declaration being nonperformance of the duties to safely cover and keep covered the elevator and to inform plaintiff of and warn him against the danger incident to the position in which he was placed. There was a verdict and judgment for plaintiff.

      F. D. Mead (E. O. Eastman, of counsel), for appellant.

      G. R. Empson (Gjertson & Lund, of counsel), for appellee.

       Rehearing denied April 30, 1907.

   Ostrander, J.

(after stating the facts). In their main brief counsel asked to have considered contentions stated by them as follows:

First. The court erred in refusing to instruct the jury to return a verdict for the defendant, as requested. The court was requested to instruct .the jury to return a verdict for the defendant, because (1) the plaintiff has, by his testimony, and the testimony in the case, not only failed to show that he was himself free from fault or negligence in the premises, but, on the contrary, that he was guilty of negligence, which contributed tc the injury; (2) the plaintiff assumed the risks incident to his employment; (3) the negligence of the defendant, if any, was not the proximate cause of-the injury. And the injury was not such a one as the defendant, even though negligent, could have reasonably anticipated would be the natural or probable result of its negligence. * * *
“The court erred in instructing the jury as follows:
• * * Take into consideration the time of day, exercising your own judgment and common sense, as to the degree of daylight or darkness at that season of the year and at that time. There are certain things a jury is supposed to know — when the sunrises and sets, and matters of that kind.’
‘ ‘ The court erred in instructing the jury as follows:
“ ‘ A person, when employed and instructed to commence work at a particular place, substantially as in this case, is under no obligation, in order to protect himself from the charge of contributory negligence, to first go all over the building or plant and make himself familiar with each piece of machinery, and the danger he may incur in case he comes in contact with it in its then condition.’ ”

It is clear that the opening in the elevator next to the platform served no purpose of defendant’s business, that the conveyor shaft was not in repair, and the resulting situation was a dangerous one. The contributory negligence of plaintiff is shown, it is claimed, by the fact that he developed the situation from or out of which he hastily retreated, must be held to have anticipated the result of undermining the sawdust, and was bound to see to it that there was a safe way to escape from a position of danger created by himself and to escape by any other way at his peril.

Plaintiff did escape the falling sawdust, in which respect the case is unlike, and therefore cannot be ruled by, Welch v. Brainard, 108 Mich. 38. It is true there was plenty of room on the platform back of the hopper. But we cannot say that safety with respect to the danger which threatened was better attained by moving in that direction than by moving in the one in which he moved, except by assuming that plaintiff knew the elevator was, for 12 or 14 inches and next to the platform, uncovered. The position in which he was standing when he discovered his danger would, probably, control his movements. It is possible that from the position in which he stood he took the only way of retreating. He knew there was great danger if he was, by any cause, carried into the hopper. It is said that the rule that, where one in the presence of imminent danger is compelled to choose a way of escape, he is not guilty of contributory negligence because he makes a wrong choice, does not apply, and that the proximate cause of the injury was not the opening in the elevator, but was the putting himself in a position of danger from which he found it necessary .to flee. The argument assumes the existence of facts, one of which is that plaintiff carelessly created the danger from which he sought to escape, the other that in the usual course of the business it could not have been reasonably anticipated that an employe in escaping the hopper might be obliged to do as plaintiff did, step to the side of the opening in the car and towards the conveyor, instead of at all times standing or stepping back of the hopper. We cannot say, as matter of law, these facts existed. There is room for a difference of opinion as inferences shall be drawn from all the facts and circumstances disclosed. Facts similar to these were found to exist in Groff v. Mill Co., 58 Minn. 333, relied upon by defendant. And, without attempting to here state the facts, we think the case of Rysdorp v. Lumber Co., 95 Wis. 622, also relied upon, opposed to the contention of defendant. No requests to charge were made on the part of defendant except the one that a verdict for defendant be directed. The jury found that plaintiff did not know about the uncovered conveyor, and was not inexcusably ignorant; both questions being fairly submitted to them. They were told that, if they found the elevator had been repaired on the day in question, defendant was not liable. The testimony that it was so repaired is said to be uncontradicted. This point is first made in the supplemental brief, and the testimony is inferentially, if not directly, disputed by the foreman by whose direction the witness who testified to having made the repairs says he made them. The portions of the charge of the court criticised are detached, and do not fairly present the instructions as a whole. Taken as a whole, the charge was favorable to defendant, with great care presented the issues to be determined, and could not have been misapprehended by the jury. That portion of the charge stated which relates to the duty of plaintiff to make himself familiar with his surroundings is a restatement substantially of the rule announced in Swoboda v. Ward, 40 Mich. 420, and was not misapplied here.

The judgment is affirmed.

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


author: Blair, J.

text:
    INDIANA ROAD MACHINE CO. v. KEENEY.
    1. Mandamus — Practice—Matters Admitted.
    Where no issues are framed or settled as to the allegations and denials contained in the answer to an order to show cause, they must be treated as admitted by relator.
    3. Highways — Road Districts — Power to Contract — Purchase of Road Machines.
    Road districts have no power to make contracts as municipalities, and the contract of purchase of road machines authorized by sections 4193 and 4194, 3 Comp. Laws, is entered into by the commissioner of highways in behalf of the taxpayers of the districts interested, and binds them only when a petition signed by the requisite number of taxpayers is made the basis of his action.
    3. Mandamus — Propriety — Purchase of Road Machine — Fruad.
    Mandamus, being to some extent a discretionary writ, is . properly refused when sought to. compel a township to levy and spread taxes to pay for a road machine for certain road districts, bought under the provisions of sections 4193 and 4194, 3 Comp. Laws, where it appears that the signatures to the petition were obtained by the township clerk fraudulently, and it is immaterial that the machine has been delivered to the districts and used by them, and that one installment of the purchase price was paid before the fraud was discovered.
    Certiorari to Arenac; Sharpe, J.
    Submitted December 4, 1906.
    (Calendar No. 21,927.)
    Decided February 5, 1907.
    Mandamus by the Indiana Road Machine Company to compel George W. Keeney, supervisor of Clayton township, and others, to levy and collect a tax for the payment of a road machine. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      De Vere Hall (John J. McCarthy, of counsel), for relator.

      S. E. Hayes and M. I). Snow, for respondents.
   Blair, J.

On the 23d of August, 1898, the commissioner of highways of the township of Clayton, in Arenac county, assuming to act under sections 4193 to 4197, both inclusive, 2 Comp. Laws, entered into a written contract with relator for the purchase of a road machine. A petition in due form was filed with the commissioner, requesting him to purchase the machine, upon which was the following certificate of the township clerk:

* ‘ I hereby certify that the above petitioners constitute a majority of the taxpayers of each of such highway districts, and that they represent more than one-half of the taxable property of said districts, and the days’ work levied for the respective districts, as stated above, is correct as ascertained by the last preceding assessment roll.”

August 23, 1898, the machine was delivered to the commissioner, and he gave a written receipt therefor. The purchase price of the machine was payable in installments, and, in 1899, a tax sufficient to cover the payments due on March 1, 1900, was levied and spread upon the assessment roll and the tax was collected and held by the treasurer, who declined to pay the same to relator until required to do so by the mandate of the circuit court upon mandamus proceedings instituted by relator. Since such enforced payment, the township authorities have refused to levy and spread the taxes to pay the installments falling due thereafter, and relator procured from the circuit court an order for respondents to show cause why a writ of mandamus should not issue to compel them to provide for and pay such installments. On the filing of respondents’ answer, issues of fact were framed, upon which the circuit judge found, among other things, that an agent of relator represented to the township clerk that he had secured all the names he desired on the petition for the purchase of the machine; that he filled out the blank contracts and expressed himself as satisfied that said petitioners represented a majority of the taxpayers of each of said road districts and that they represented more than one-half of the taxable property in each of said districts; that said number of taxpayers and amounts of property were ascertained by said agent and not by the township clerk, who signed the certificate, at the request of the agent, in reliance upon the agent’s statement and not on his personal knowledge. The court further found:

“That said township and-road districts one, two, and three received said road machine into their possession on or about the first day of September, 1898, and that the same has been used by them ever since.”

The answer of respondents alleged, among other things, that relator’s said agent hired the township clerk to assist in securing the names of taxpayers to the petition, and that he did so assist, for hire and reward. The said answer denied that a majority of taxpayers signed the petition, or that they represented one-half of the taxable property of the districts interested, and alleged that said agent obtained signatures by fraudulent representations. No issues were framed or settled as to the allegations and denial last referred to, and they must, therefore, be treated as admitted by relator. Loomis v. Rogers Township Board, 53 Mich. 135. The circuit judge denied relator’s application for the writ of mandamus, and the record has been removed by relator to this court by writ of certiorari.

Except for the facts that this machine was accepted and is still in use, and a payment of a portion of the purchase price had been compelled by the court, the case would be ruled by First Nat. Bank of Traverse City v. Union Township Clerk, 141 Mich. 404. The question for consideration, therefore, concerns the effect of such acceptance, use, and payment. Section 4194, 2 Comp. Laws, authorizes the highway commissioner to contract for and purchase a road machine—

“ If a majority of the taxpayers of one or more highway districts in any township, representing more than one-half of the taxable property in such district, or in each of such districts, tobe ascertained by the last preceding assessment roll and certified to as such by the town clerk of the town, petition the commissioner of such township therefor.”

The commissioner derives his power to contract from a properly signed and certified petition of a majority of the taxpayers representing more than one-half of the taxable property in the district, “to be ascertained by the last preceding assessment roll.” Without such a petition, the commissioner could not make a contract which would bind the minority taxpayers. A petition signed by less than a majority of the taxpayers, or representing less than one-half of the taxable property of the district as shown by the last-preceding assessment roll, would confer no greater authority upon the commissioner to contract than though no petition whatever were presented to him. While the certificate of the township clerk, made in good faith, might justify the commissioner in omitting to examine the last preceding assessment roll, it would not confer authority upon him to contract if, in fact, the petition did not comply with the statute. But, in the case before us, the certificate was not made in good faith; it. was made by a township officer who was in the employ of respondents, for the purpose of obtaining the contract. The agent of respondents obtained signatures to the petition by fraudulent representations. He procured the township clerk to certify, either fraudulently or negligently, to facts which were not true, and his principal is chargeable with notice of his fraudulent acts.

Discussing this statute, in Pape v. Township of Benton, 140 Mich. 165, the court said:

It is evident from a reading of the two sections that the first [4193] provides for these contracts to be made with townships; that in the second [4194] the legislature, in providing a means whereby road districts in a township might purchase a road machine, recognized that such districts were not municipalities which could assume obligations, and sue and be sued, and provided a wáy of payment for this implement necessary in the construction and maintenance of highways, through the provisions of the statute.”

In making such contracts, the commissioner of highways represents the taxpayers, who are to pay for the machine, and they alone could ratify his action. The machine, when received, is under the charge and control of the overseers of highways and the commissioner of highways, and the taxpayers have nothing to do with it except to pay for it. The action of the taxpayers, in paying their taxes to provide for the first installment of the purchase price, could not constitute a ratification of the void contract unless they were chargeable with notice that it was void and relator had acted in good faith. But, as said by the circuit judge, “the taxpayers had a right to assume, when the supervisors and township board ordered this first tax spread, that it was a binding contract, and that they were liable to pay it.” Having afterwards discovered that the contract was void and had been obtained by fraud, they were not estopped to assert the facts in their defense. As said in First Nat. Bank v. Union Township Clerk, supra:

“ The granting of the writ of mandamus by a court involves, to some extent, the exercise of discretion.”

Even though the writ, as in this case, is the only remedy open to relator, we do not think it should be granted upon this record, from which we must assume that the relator procured the contract by fraudulent representations and practices, knew that it did not comply with the statute, and was void.

The order of the circuit court is affirmed.

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


text:
      In re FOX.

    Prisons^-Officers — Deputy Warden — Powers.
    The deputy warden of a prison has power, in the absence of the warden, to issue the warrant for retaking and returning a paroled convict'to the prison for breach of his parole, as provided by the indeterminate sentence law of 1905 (Act No. 184).
    Habeas corpus proceedings by John C. Fox to obtain the release of George B. Fox from the Michigan reformatory at Ionia.
    Submitted December 4, 1906.
    (Calendar No. 22,000.)
    Writ dismissed February 5, 1907.

      Edmund Atkinson and Frank W. Atkinson (William F. Atkinson, of counsel), for petitioner.

      John E. Bird, Attorney General (George S. Law, of counsel), for respondent warden.
   Blair, J.

George B. Fox is now detained in the Michigan reformatory at Ionia. He was sentenced by the Honorable Alfred J. Murphy, then judge of the recorder’s court for the city of Detroit, on the 30th day of January, 1904, to be confined in the Michigan reformatory for a term of not less than 9 months, nor more than 18 months, from that date. On the first day of August, 1905, he was paroled by the advisory board of pardons, and was released from said Michigan reformatory, subject to the conditions of said parole. One year was fixed by the advisory board in the matter of pardons after August 1, 1905, for the said George B. Fox to remain on parole, at which time he would be entitled to a full discharge under section 11 of the indeterminate sentence act (Act No. 184, Pub. Acts 1905).. On September 14, 1905, said Fox was arrested in Wayne county by the sheriff of said county and charged with attempting to commit larceny front the person. On September 37th a preliminary examination was had before Justice Lemkie, and Fox was. bound over to the circuit court for trial. On September 30, 1905, A. T. Montgomery, a deputy warden of the Ionia prison, in the name of and in the absence of the warden, issued a warrant and sent it to Detroit, and on October 3, 1905, Fox was again imprisoned at Ionia, and has been detained there ever since.

The excuse for this imprisonment is given by the return, and is, in effect, that the deputy warden learned that Fox had been arrested in Detroit charged with an attempt to commit larceny from the person of a man at the State fair, and had been bound over to the circuit court for Wayne county for trial. On this information, the deputy warden decided that Fox had broken his parole and caused his arrest.

Petitioner claims that said detention is illegal:

“'1. Because the maximum term of the sentence imposed upon said George B. Fox has expired.
“ 3. Because by virtue of the parole issued to him said Fox was entitled to his liberty, subject to the rules and regulations governing the conduct of prisoners on parole, and there is no record in any court of justice in this State, showing that said Fox has violated any of said conditions.
“3. Because more than one year has elapsed since the issuance of said parole, and by its terms said Fox was, at the end of a year from August 1, 1905, entitled to a full discharge if he shall have faithfully performed the conditions of said parole, and there is no record showing that said George B. Fox has not, so far as it has been in his power, faithfully performed said conditions.
“4. Because sections 8 and 9 of Act No. 184 of Public Acts of 1905, giving the warden the right to retake and confine a paroled prisoner without trial, are illegal and unconstitutional.
‘ ‘ 5. Because, if said sections 8 and 9 are constitutional, the warden has not exercised the right.
“6. Because, if said sections are constitutional and the said Fox has been rearrested in compliance with the terms of section 8, the year has elapsed since the issuance of his parole, and he is now entitled to a final discharge.”

Except as to the question of the authority of the deputy warden to issue the warrant for retaking and returning Fox, this case, so far as it merits consideration, is ruled by In re Manaca, 146 Mich. 697, and People v. Cook, ante, 127.

The act revising and consolidating the laws relative to the State prisons provides for the appointment of a deputy warden by the warden of the particular prison, subject to the approval of the board of control thereof. 1 Comp. Laws, § 2085. The deputy Warden is declared to be an officer of the prison, and required to take and file the constitutional oath of office. Id. § 2083. Section 2086 provides that “each warden shall reside at the prison of which he shall have charge, * * * and he shall be in constant attendance at the prison, except when absent on some necessary duty or sick, in which case his duties during his absence or illness shall be performed by the deputy, and in no case shall the warden and deputy warden be absent from the prison at the same time,” etc. The return to the writ shows that at the time of the execution of the warrant by the deputy warden the warden was absent, in which event the deputy was expressly authorized to act and was, for the time being, clothed with all the authority of the warden. Westbrook v. Miller, 56 Mich. 148.

The writ is dismissed, and the prisoner remanded.

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


author: Grant, J.

text:
    ZULKE v. MICHIGAN CENTRAL RAILROAD CO.
    Master and Servant — Personal Injuries — Railroads—Crossing Flagman — Duty to Warn of Approach of Train.
    A railroad, company owes a crossing flagman no duty to warn him of the approach of trains, and is not liable for the death of such servant caused by his being run over at his crossing while flagging for another train, though he was not warned of the approach of the train that ran over him.
    Error to Washtenaw; Kinne, J.
    Submitted January 8, 1907.
    (Docket No. 4.)
    Decided February 5, 1907.
    Case by Rose Zulke, administratrix of the estate of August Zulke, deceased, against the Michigan Central Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    Plaintiff’s decedent was, and had been for some months prior to his death, a flagman at the crossing of Main street in the village of Chelsea, over the defendant’s right of way. Before such employment he had for many years been section foreman of the defendant at Chelsea. Across Main street the defendant has two main tracks. South' of these two main tracks is a switch track. North of them are three other switch tracks. At 4:13 o’clock p. m. on October 18th, a train known as an “ Extra East” came from the west. It consisted of an engine, an empty air brake coal car, and the caboose. The station agent or operator had received notice to stop this “Extra East,” . and have it pick up a car of fruit which stood upon the side track south of the main tracks. He gave notice of this to the conductor of the train, with the deceased standing within three or four feet. The caboose was detached and left standing on the south main track, west of the street. The engine, with the coal car attached, passed east over the street to a switch about 100 feet east of the street. The switch was turned and the engineer backed up to get the car of fruit. The deceased had been employed in flagging a freight train, and stood watching it as it passed across the street. He was then standing between the south main track and the south switch track. He then stepped onto the south switch track, and, without looking towards the east, stood in the middle of the track, when the engine with the coal car attached was backing up. He evidently did not see it, was run over, and killed. The engineer could not see him on account of the size and height of the coal car. The negligence charged is the failure to notify the deceased of the approach of the coal car and engine. The court directed a verdict for the defendant.

      James S. Gorman (M. J. Cavanaugh, of counsel), for appellant.

      John F. Lawrence (Henry Bussell and O. E. Butter-field, of counsel), for appellee.
   Grant, J.

(after stating the facts). It was the duty of the deceased to watch for trains passing over all these tracks, and warn travelers by waving a white flag. Under plaintiff’s theory it was the duty of the railroad company to employ a flagman to protect travelers by notifying them of the approach of trains, and then to protect the flagman by having some one notify him of their approach. The witnesses all agree that the deceased could have seen the train coming by a simple turn of the head. He was not required to walk or stand on the track. He could have taken two steps to one side and have been in a perfectly safe place, and a place equally as effective for warning travelers. His own negligence was the cause of his death. The learned circuit judge said:

“As a matter of law, I would do violence to my judgment of the law if I did otherwise than grant the motion of the defendant and direct a verdict for the defendant. I have not been able to understand from the first of this case how the company can be responsible for his death.”

The judgment is affirmed.

McAlvay, C. J., and Blair, Ostrander, and Hooker, JJ., concurred.


author: Per Curiam.

text:
    GALINSKI v. SECURITY FIRE-INSURANCE CO.
    Appeal and Error — Failure to Prosecute — Dismissal—Reinstatement-Laches.
    A motion by the surety of a plaintiff in error to reinstate an appeal dismissed for want of prosecution is properly denied where not made until five months after notice of the intention of the plaintiff in error not to prosecute.
    Assumpsit by Wolf Galinski and Louis Galinski against the Security Fire-Insurance Company on a policy of insurance. There was judgment for plaintiffs, and defendant took a writ of error which was dismissed for want of prosecution: On motion of the United States Fidelity & Guaranty Company, surety on defendant’s appeal bond, to reinstate said appeal.
    Submitted January 8, 1907.
    (Calendar No. 21,776.)
    Denied February 5, 1907.

      Moore & Moore, for the motion.

      M. F. Ghiinon and Halstead & Halstead, contra.
   Per Curiam.

This is a motion made by the United States Fidelity & Guaranty Company of Baltimore, surety for the appellant, to reinstate the said cause which was, on motion, dismissed for want of prosecution October 19, 1906, and to allow petitioner to be heard upon the merits in the prosecution thereof.

The grounds of such motion are that the Security Fire-Insurance Company, appellant, has become hopelessly insolvent, and is in the hands of a receiver and unable to prosecute its appeal; that petitioner was not aware of the situation in this court until recently, when the matter was placed in the hands of its Michigan attorneys who shortly afterwards gave petitioner the information that the writ of error had been dismissed for want of prosecution; that said attorneys were ordered to and did make the motion promptly, accompanying the same with an affidavit of merits as to the errors relied upon in the bill of exceptions.

The undisputed facts before us are: That this is the usual statutory bond given to stay execution upon a judgment duly rendered, pending a review of the case in this court; that this surety company on July 31, 1906, and after the case was removed to this court, in a letter to the attorney who tried the case in the circuit court for defendant and appellant, stated that it was advised by the receiver of defendant insurance company of its dissolution, and that it could not prosecute its appeal; that by reason of such dissolution there was no liability on the part of the surety; and that it would be necessary for plaintiffs to re-enter suit against the receiver. On August 2d plaintiffs’ attorney, having been shown this letter, wrote the surety company of that fact, and informed it that, default having been made in the conditions of the bond by failure to prosecute the appeal, the surety was liable upon the bond, and demanded payment of the.judgment and costs. He wrote again August 13, 1906, calling attention to the first letter, to which no answer had been received, and stated that suit would be begun in 10 days if payment was not made. On August 18, 1906, the surety company by its vice president acknowledged the receipt of both letters, denied liability on the bond, and refused to consider the claim against it unless it was reduced to a judgment.

The motion to dismiss the cause from this court for want of prosecution was granted October 19, 1906. Suit on the bond was commenced October 29,1906. Issue was joined December 19, 1906. The case was duly noticed for trial at the present term of the circuit court for Emmet county, to be held January 14, 1907. This motion under consideration was made January 8, 1907.

From this recital of these facts it will appear that this petitioner had ample notice that the case in this court would not be prosecuted by appellant, and of all the steps which were taken to enforce its liability upon this bond. It is true that it was not notified by plaintiffs of the motion to dismiss this case. It was not such a party in interest as to be entitled to notice under our practice.' Its delay for five months after it had notice that appellants would not prosecute the case in this court is not denied or excused.

The authorities cited tending to support petitioner 's contention that it has a right to prosecute the appeal of its principal to effect indicate that such right must be asserted promptly. The petitioner has delayed action without excuse, and must be held to have been • guilty of laches.

The motion is denied.


text:
    POLASKY v. KALAMAZOO CIRCUIT JUDGE.
    Dismissal and Nonsuit —Suit Begun by Capias — Waiver op Tort — Remedy op Dependant.
    After defendant, in a suit begun by capias, had put in special bail, plaintiff brought suit in assumpsit against him and another on a part of the notes involved in the capias case, whereupon defendant confessed judgment in the assumpsit case, and pleaded former adjudication in the capias case and waiver of the tort complained of by bringing the suit in assumpsit. Held, that a motion to releáse defendant from bail and dismiss the capias case, for the reasons given, was not defendant’s remedy, but he should prooeed to trial and support his plea and notice by proof upon which he would obtain judgment, if entitled to it, as upon any other defense.
    Mandamus by George Polasky to compel John W. Adams, circuit judge of Kalamazoo county, to set aside an order denying a motion to discharge petitioner from bail in capias proceedings.
    Submitted January 8, 1907.
    (Calendar No. 22,037.)
    Writ denied February 5, 1907.

      S. H. Van Horn and Harry C, Howard (Odell Chapman, of counsel), for relator.
    iV. H. Stewart, for respondent.
   Hooker, J.

The relator’s petition states that he was arrested upon a capias at the suit of the Central Bank .of Kalamazoo; that he gave special bail, and pleaded to the declaration, after which said bank commenced an action by declaration against him and the A. Simon Iron Company of Lansing, Mich., upon some of the notes which were involved in the capias case; that relator confessed judgment in the assumpsit case for the entire amount claimed in that action. He afterwards added a notice to his plea in the capias case that he should make the further defense in that proceeding, that, by the proceedings in the assumpsit case, the plaintiff had waived the tort sued upon. He then filed a motion asking: First, that he be released from bail in the capias case, upon the ground that the plaintiff had waived the tort, as hereinbefore set forth, and affirmed the contracts referred to in the capias suit, by starting the aforesaid action in assumpsit; second, that the capias suit be dismissed for the same reason. The motion was denied. Thereupon, the relator filed his petition in this court, stating the foregoing facts, and that he will be forced to trial in the capias case, unless the suit be stayed by the order of this court, praying for a 'stay of proceedings, and a mandamus to compel the circuit judge to vacate his order denying said motion, and to enter an order dismissing said cause and discharging relator’s bail. The substance of this application is that, in a suit commenced by capias, where a special bail has been given, and a plea of a former adjudication filed, counsel ask this court to determine, in advance of a trial, the questions of a former adjudication as to part of the claim, and a waiver of the tort charged as to the remainder, upon motion. The ordinary and proper way of determining these is by a trial of the issue made by the pleadings, as in the case of any other defense to the merits. If the defendant’s plea and notice should be supported by the proof,.presumably he will obtain a judgment, if entitled to it. He cannot reach the same result by a motion, to be followed by a mandamus should the motion be denied. It is not a proper remedy. The writ is denied, with costs.

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


author: Moore, J.

text:
    FRANTZ v. DETROIT UNITED RAILWAY.
    1. Process — Alias Summons — Service—Limitations —Failure oe Original Suit.
    Where a writ purporting to be an alias summons has no proper basis as an alias, the previous writ having been informally-returned, the second writ is not for that reason void, but, the statute of limitations not having run against the suit, it should, in case the first suit goes down, be treated as a new writ for a new suit and sustained accordingly.
    2. Same — Court Rule.
    Provisions “ a ” and “£>” of Circuit Court Rule 1, providing for alias and pluries writs, have no application to cases in which the statute of limitations has not run.
    Certiorari to Wayne; Hosmer, J.
    Submitted January 18, 1907.
    (Docket No. 67.)
    Decided February 5, 1907.
    Case by Edward Frantz, by next friend, against the Detroit United Railway and the Detroit, Fort Wayne & Belle Isle Railway Company for personal injuries. There was an order denying a motion to quash the service of an alias summons, and defendants bring certiorari.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellants.

      Charles T. Wilkins, for appellee.
   Moore, J.

November 29, 1904, plaintiff, by William Look, his next friend, caused a writ of' summons to be issued as commencement of suit, out of the circuit court for the county of Wayne, in the above cause. No service was made of this summons, nor was it placed in the hands of an officer for service. According to the affidavit of William Look, the plaintiff’s next friend and attorney, it was inadvertently left in some files in the attorney’s office pending negotiations for a settlement, until the 14th day of April, 1906. On that date, said attorney presented said summons, accompanied by an affidavit, to George S. Hosmer, circuit judge, who indorsed thereon the following:

“ Issue alias.
“George S. Hosmer, “Circuit Judge.
“April 14, ’06.”

A summons, purporting on its face to be an alias summons, was issued in said cause and was duly served. Defendants appeared and moved to quash the service, for the reason, among other things, that said alias writ was not issued and served in accordance with the rules and practice of the court, and because said alias summons, so served upon defendants, was irregularly issued and is void. This motion was overruled, and the case is brought into this court on writ of certiorari to review the action of Judge Hosmer therein.

In overruling this motion Judge Hosmer said:

“ As the plaintiff is an infant, and as the statute of limitation had not run as to the cause of action on which said cause is based at the time when said second, or alias, writ of summons was issued and served, to wit, on the 14th day of April, A. D. 1906, I denied the defendants’ and appellants’ motion to quash the service of said second, or alias, writ of summons in said cause, deciding that, if the last writ had no proper basis as an alias, it was not, for .that reason, void, and that, if the first suit had gone down, this second writ should be treated as a new writ for a new suit and sustained accordingly, and, the sheriff’s return showing proper service of this second writ and no showing or claim being made in contradiction to such return, the case was properly in court, and the defendants’ motion should be denied.”

It is claimed that, because of the provisions “a” and “ Cir. Ct. Rule 1, the second summons was void. At the time the second summons was duly served the statute of limitations had not run against plaintiff’s cause of action. There is nothing in the rule in conflict with the ruling of the learned circuit judge, and it is justified by what was said in deciding Axtell v. Gibbs, 52 Mich. 639.

Judgment is affirmed.

McAlvay, C. J., and Carpenter, Grant, and Hooker, JJ., concurred.


text:
    PEOPLE v. CAHILL.
    1. Criminal Law — Larceny — Evidence — Conversations Between Third Persons.
    In a prosecution for the larceny of a watch, it is error to permit a witness to testify that when respondent and others were in the back room of witness’ saloon, the door being slightly ajar, a policeman came in, and witness told him that the party had a watch they wanted to sell for $3, and he could go in and get them, but the officer did not have the courage to do so.
    2. Same — Trial—Argument of Prosecuting Attorney.
    For the prosecuting attorney, in argument, to refer to respondent’s failure to testify, violates section 10211, 3 Comp. Laws.
    3. Same — Argument—Reference-to Evidence not Admitted.
    It is error for the prosecuting attorney, in argument, .to state of a witness for the respondent that there were some things about her testimony that he would like to have shown, but was not permitted to, that counsel knows what they are and knows they would not be safe for his case.
    Error to recorder’s court of Detroit; Phelan, J.
    Submitted January 24, 1907.
    (Docket No. 147.)
    Decided February 5, 1907.
    Stephen Cahill was convicted of larceny from the person, and sentenced to imprisonment for not less than one nor more than one year in the State prison at Jackson.
    Reversed.

      Thomas J. Mahon, for appellant.

      Ormond F. Hunt, Prosecuting Attorney, and Walter M. Trevor, Assistant Prosecuting Attorney, for the people.
   Moore, J.

The respondent was convicted of the offense-of the larceny of a watch from the person. The case is brought here by writ of error.

The case must be reversed for two reasons: A saloon keeper by the name of Brozo was permitted to testify that when respondent and some others were in the back room of his saloon, the door being slightly open, a policeman came in and characterized the men, including respondent,, as crooks. We quote further:

“ I says to him, I says, ‘Well, I will tell you, Hopp, if they are crooks. I will tell you what they got: They have got a watch they want to sell for $3.’ I says, ‘ If you want them, they are in there. Go and get them.’”

He further testified that the officer did not have the courage to go in and arrest them. This testimony was improper and prejudicial.

The assistant prosecuting attorney in his argument to the jury used the following language:

Mr. Trevor: * * * The defendant has not taken the stand—
Mr. Mahon : Exception.
“Mr. Trevor: And he does not need to if he don’t want to—
“Mr. Mahon: I take exception to that remark: The defendant has not taken the stand.
“Mr. Trevor: It relies entirely on his decision whether he shall or not, but they have put in testimony here of a witness, his sister. He was at her house at 7 o’clock and stayed there three-quarters of an hour. Why? Because, gentlemen of the jury, that covers the time that all the witnesses have testified to on the part of the people.”

This argument was in violation of the provisions of section-10211, 3 Comp. Laws. Like arguments have been condemned over and over again by this court. See People v. Payne, 131 Mich. 474. It is said, however, that in his charge to the jury the circuit judge instructed them they were not permitted to consider the respondent’s failure to testify in determining whether he was guilty, and that this counteracted the effect of the improper argument; counsel citing People v. Hess, 85 Mich. 128; People v. Grant, 111 Mich. 346; People v. Swartz, 118 Mich. 292; Cameron Lumber Co. v. Somerville, 129 Mich. 555.

Without deciding whether the error was thus cured, we desire to call attention to the following: Mrs. Graham, a sister of respondent, was a witness in his behalf. If her testimony was true, respondent could not have committed the offense. In his argument the assistant prosecuting attorney referred to this witness as follows:

“Mr. Trevor: There was some things about her testimony which I would like to have shown, but I was not permitted to.
“Mr. Mahon: Exception.
“Mr. Trevor: Counsel knows what they are, and he knows they would not be safe for his case.
“Mr. Mahon: Exception.”

Counsel was not rebuked at the time by the court, and no reference was made to this portion of the argument in the general charge. The following cases are authority to the effect that such an argument is reversible error: McDuff v. Journal Co., 84 Mich. 2; Ross v. City of Detroit, 96 Mich. 447.

There were other portions of the argument that were objectionable, but as the judge so informed the counsel at the time, we need not refer to them more in detail. We cannot understand why prosecuting officers will persist in making arguments in criminal cases which they must know are improper and which will necessarily result in the reversal of the case, if a conviction is had.

For the reasons stated the conviction is set aside and a new trial ordered.

Beair, Montgomery, and Hooker, JJ., concurred with Moore, J.

Ostrander, J. In my opinion the remark of the prosecuting attorney about the failure of the respondent to testify was prejudicial, the effect was not remedied or prejudice removed by the remarks of the court, and for that reason, as well as the two relied upon by Mr. Justice Moore, the judgment should be reversed.


text:
    VILLAGE OF RIVER ROUGE v. WAYNE CIRCUIT JUDGE.
    1. Mandamus-t-Propriety — Compelling Dissolution op Injunction — Formal Objection to Bill.
    Mandamus will not issue to compel the dissolution of an injunction on the ground that the bill is multifarious, this being a mere formal objection.
    2. Municipal Corporations — Public Improvements — Injunction —Taxpayers’ Suit.
    Taxpayers of a municipality have a right to 'bring suit to enjoin the construction of public improvements and rescind the sale of bonds issued therefor without acting through the attorney general.
    3. Same — Necessary Parties.
    Where taxpayers file a bill against the municipality and its contractor to enjoin the construction of certain public improvements and rescind an issue of bonds therefor, the fact that the contractor is outside the State and has not been served with process does not deprive the court of jurisdiction to issue the injunction nor require its dissolution.
    Mandamus by the village of River Rouge to compel George S. Hosmer, circuit judge of Wayne county, to grant a motion to dissolve a temporary injunction.
    Submitted January 15, 1907.
    (Calendar No. 22,083.)
    Writ denied February 12, 1907.

      Seneca C. Traver {Bowen, Douglas, Whiting & Murfin and Ótto Kirchner, of counsel), for relator.

      Russel, Campbell & Bulkley, for respondent.
   Per Curiam.

Relator was authorized by an act of the legislature to construct a sewer and to issue bonds to the amount of $150,000 for that purpose. Act No. 644, Local Acts 1905. It took proceedings, made a contract with one Bramley, and issued bonds. Certain taxpayers filed a bill in equity against relator and said Bramley to enjoin the construction of said sewer and to rescind the sale of the bonds. Respondent issued the preliminary injunction prayed for. Bramley was outside the State and did not appear. Relator answered and moved for the dissolution of the injunction. Respondent denied this motion. Relator now applies for a writ of mandamus to compel respondent to grant said motion upon four grounds, each of which will be stated and disposed of:

“1. The bill was multifarious.”
This we answer by saying that this is a mere formal objection which does not entitle relator to a mandamus.
“ 2. The bill should have been filed on the relation of the attorney general * * * to redress an alleged public wrong, at the behest of private individuals.”

We think the grievance one of which taxpayers had a right to complain. We also state in this connection, in answer to another objection urged by relator, that we cannot say from this record that complainants have not such an interest as to justify their bringing this suit.

“8. The bill itself did not state any case which would authorize the issuance of an injunction.”

This raises the question of the legality of the contract made by relator with Bramley. Complainants contend and apparently respondent decided that it was illegal. We should not overrule that decision unless relator has convinced us that it is legal. This it has failed to do. We do not, however, go so far as to decide that the arrangement is illegal. We think it would be proper to defer deciding that question until defendant Bramley has a further opportunity of being heard. It may happen, too, that circumstances not shown by this record, and considerations not now apprehended, may put the question in a different light. It is sufficient to repeat, as stated above, that we cannot now decide that the arrangement made was legal.

“4. Giving the bill its most favorable construction, the nonresident defendant, Matthew F. Bramley, was a necessary party to any proceeding of this description, and, not being in the jurisdiction of the court and not served with process, the court has no jurisdiction to proceed.”

For the purpose of this contention it should be assumed that complainants have a right to an injunction to prevent a wrong threatened by relator and Bramley. They obtained that injunction and made due service thereof upon relator, but they can neither serve that nor other process upon Bramley owing to his absence from the State. Does the latter circumstance, viz., the fact that process has not been served upon Bramley, make it the duty of the court to dissolve the preliminary injunction, which is effective ? It seems to us clear that this question must be answered in the negative. It is by no means clear that Bramley is an indispensable party, and if he is, we cannot say he may not be served or voluntarily appear. It cannot be said that Bramley’s absence from the State either deprives the respondent of jurisdiction to issue the injunction or compels him now to dissolve it.

We decline to interfere witlh the decision of the circuit judge under the circumstances of the case. If there is necessity for haste to get ready for work during the warm season, the respondent should grant a speedy hearing, unless, in his judgment, a delay is necessary in order to secure the appearance of Bramley.

Mandamus denied.