text:
    MAIER v. MASSACHUSETTS BENEFIT ASSOCIATION.
    1. Life Insurance — Evidence—Proofs of Death.
    Where, in an action on a life-insurance policy, the defendant refuses to admit that the proofs of death submitted by the plaintiff were in full compliance with the requirements of the policy, it is not error to permit such proofs to be introduced, and read in evidence. Cook v. Insurance Co., 84 Mich. 12, distinguished.
    2. Same — Trial—Order of Proof.
    A life-insurance policy provided that the death of the insured in consequence of the use of intoxicating liquors was a risk not contemplated or covered by the contract, and against which the company did not insure. In an action on the policy, the defendant having introduced testimony tending to show that the insured died from the effects of intoxication, the plaintiff was permitted, on rebuttal, to introduce evidence as to the habits of the insured with reference to the use of liquor. Held, that there was no abuse of discretion.
    3. Same — Cause of Death — Question for Jury.
    In such action, the attending physician, a witness for the plaintiff, testified that the insured died of pneumonia, while two other physicians, who were sworn as experts on behalf of the defendant, testified that, in their opinion, the symptoms detailed by the attending physician were attributable to the use of intoxicating liquors. Conflicting testimony was also introduced regarding the extent to which the insured indulged in the use of intoxicants. Held, that the question as to the cause of death was properly submitted to the jury.
    4. Trial — Instructions to Jury.
    A judgment will not be reversed because of inconsistencies in the charge of the court, where it is apparent that the jury were not misled thereby.
    Error to Wayne; Donovan, J.
    Submitted December 6, 1895.
    Decided December 24, 1895.

      Assumpsit by Elizabeth Maier against the Massachusetts Benefit Association on a life-insurance policy. From ■a judgment for plaintiff, defendant brings error.
    Affirmed.

      Griffin & Warner, for appellant.

      James U. Pound, for appellee.
   Grant, J.

This is a suit upon a policy of life insurance issued by the defendant to Martin Maier, plaintiff’s husband, and made payable to her. On August 23, 1881, Mr. Maier applied for a policy in the Western Union Mutual Life & Accident Society of the United States. November 4,1891, the defendant reinsured Mr. Maier upon the same application that was made to the other company, which application was made a part of the present policy. The two conditions of the policy upon which the,defense is based are as follows:

Death of the insured, in consequence of the use of intoxicating liquors or narcotics, or by Ms own hand or act, whether sane or insane, whether the act be voluntary or involuntary, within three years from the date hereof, is a risk not contemplated or covered by this contract, and against which this association does not insure.
“ If the insured shall fall into the habit of becoming intoxicated, or into the habitual use of narcotics, or shall have delirium tremens within three years from the date hereof, then this contract shall be void, and in such event the insured hereby authorizes and directs this association to cancel this contract, and return to him the sum of all payments made thereon, which sum he agrees to accept, for himself, his heirs, or assigns, in full and complete settlement of all liability of said association under this contract.”

Mr. Maier died November 22, 1893. The defense was that he died from the effects of the use of intoxicating liquors.

1. The court admitted, and permitted to be read in evidence, the proofs of death. It was essential for the plaintiff to prove that she had submitted such proofs, because they were required by the policy. Plaintiff’s counsel had given notice to the defendant to produce them, which was done, whereupon he offered them in evidence, stating that he did not offer them as any evidence of the facts therein contained, but only to show that plaintiff had complied with the conditions of the policy in this regard. Defendant’s counsel objected to the paper as incompetent and inadmissible, and also that there was “ no proper proof of the paper.” The paper was then admitted and read. Before this, plaintiff had shown by one Watkins that he had notified the defendant of Mr. Maier’s death, and in reply had received blank proofs of loss, and that this was the paper which he had received, filled out, and forwarded to it. One Hammond was then introduced as a witness, and testified to the execution of the paper. Upon objection being made to this testimony, counsel for plaintiff stated that all this testimony might be stricken out if the defendant would admit that the proofs of loss were regular. Counsel did not comply with this offer. Under this state of facts the proofs were admissible, and the case of Cook v. Insurance Co., 84 Mich. 12, has no application.

Other assignments of error are based upon the admission and exclusion of testimony. We find no substantial error in the rulings of the court. They are not of sufficient importance to the profession to require discussion.

2. Complaint is next made of certain remarks of plaintiff’s counsel. It is virtually conceded that any one of such remarks, standing alone, is not of sufficient importance to justify a reversal. They were made during controversies between counsel in arguing objections made to the testimony. One remark was promptly held objectionable by the court. The case was very earnestly and warmly contested on both sides. We think the remarks were not of such a character as to justify us in holding that the case should be reversed for that reason.

3. After the defendant had rested its case, the court permitted plaintiff to introduce evidence as to Mr. Maier’s habits before his death, and in rebuttal of the defendant’s testimony that he died from the effects of intoxication. This was a matter resting in the sound discretion of the court, and we see no reason for holding that it was abused.

4. It is insisted, on behalf of the defendant, that it had conclusively proved that Mr. Maier’s death was the result of the use of intoxicating liquors, and that the court should have so instructed the jury. Dr. Stewart, his attendant physician, whose standing in the profession is high, testified that he was called to see him in the evening, that he was suffering from bronchial or catarrhal pneumonia, that he died before morning, and that this disease was the cause of his death. Two prominent physicians were introduced by the defendant as experts, and gave testimony, upon hypothetical questions, tending to show the symptoms of the disease as described by Dr. Stewart to be such as 'were attributable to the use of intoxicating liquors. These physicians also testified that his family physician would have the best knowledge about it. Were there no other testimony than that of these physicians, we could not hold that there was no conflict of evidence, and that it was conclusively established that death resulted from the use of alcoholic liquor. Both parties introduced considerable testimony as to the habits of the deceased in this respeot. The testimony on behalf of plaintiff tended to show that, while he was addicted to the use of intoxicating liquors, such use did not interfere with his attention to business, and did not cause death, while that of the defendant tended to show excessive drinking, which, if true, vitiated the policy. The question was one of fact for the jury, and not of law for the judge.

5. Errors are assigned upon the charge of the court. The sole issue in this case for the determination of the jury was whether Mr. Maier died from the effects of alcoholic drink. In his application for insurance, Mr. Maier stated that he was a moderate user of ardent spirits, malt liquors, and wine. In so far, therefore, as such moderate use had any connection with his death, the defendant was estopped by the terms of the policy. In his oral charge the circuit judge gave certain requests presented on behalf of the plaintiff. At the close of his instructions, he gave the following requests on behalf of the defendant:

“ This action is brought by the plaintiff to recover of and from the defendant an amount claimed to be due upon a certain policy of insurance issued by the defendant on the 4th day of November, 1891. In order to recover, it is incumbent upon the plaintiff to establish, to the. satisfaction of the jury, that the insured died from the causes not enumerated in the ninth and tenth paragraphs in the rules and conditions of said policy and indorsed thereon; and if the plaintiff has not established, to the satisfaction of the jury, that the insured died from the causes not enumerated in said paragraphs, then the plaintiff is not entitled to- recover.
“ The policy in suit, with the conditions attached thereto, constitutes the contract of the insured with the defendant company, and constitutes the measure of the defendant’s liability, and no liability attached to the defendant company unless death ensued from the causes plainly enumerated by the terms and conditions of the policy.
“ The defendant had a right to frame and issue such a contract of insurance upon the life of the insured, Martin Maier, as it saw fit, and the acceptance of such a policy by the insured constituted the contract between the parties-, and constitutes- the sole measure of the defendant’s liability; and, unless- the jury find that death ensued from the causes plainly covered by said policy and insured against, then the plaintiff cannot recover.
“ The contract of insurance in this case was between the insured, Martin Maier, and the defendant company. Elizabeth Maier, the plaintiff in this suit, is a beneficiary only under the said policy, and her rights are gauged and measured by the rights of the insured, Martin Maier. She possesses no rights in this case which the insured, MartinMaier, could not possess under the terms and conditions of the policy. The contract was made with him, and said contract is between- him and the company, and the rights of the plaintiff are solely dependent upon the contract between the insured, Martin Maier, and said company.
“ If the insured, Martin Maier, has violated any of the terms and conditions of his policy, then neither himself, nor his legal representatives, nor his beneficiary, could recover upon such policy; and the plaintiff, therefore, possesses no rights superior to those which arise under the contract which Martin Maier, the insured, himself made with the defendant.
“ Paragraph 10 of the conditions and rules upon which the policy in this suit issued provides that the death of the insured in consequence of the use of intoxicating liquors- within three years from the date of -said policy was a risk not contemplated or covered by such contract, and against which the defendant association did not insure. Such condition was -one which the company had a right to make, and it is the- duty of the court and jury to give effect to such conditions as made.
“ It was the right and privilege of the defendant to except from such policy or contract any liability for a death in consequence of the use of intoxicating liquors as a risk not contemplated or covered by said contract, and, if the jury find that the death occurred in .consequence of the use of intoxicating liquors within the three years from the date of the policy, then the plaintiff cannot recover.
“ The evidence shows that said policy was issued on November 4, 1891, and that the insured, Martin Maier, died on November 22,1893, within a period of three years from the date of said policy; and if the jury find, therefore, that the death of the insured ensued in consequence of the use of intoxicating liquors, then the plaintiff cannot recover.
“ The exception in the policy under condition 10 was directed against the use of intoxicating liquors. It was a condition which the defendant had a right to make. It was not necessary, in order to entitle the defendant to a verdict herein, that death should have occurred solely in consequence of such excesses.
“ If the jury find that the insured, by the use of intoxicating liquors, had so weakened or changed his system that death resulted when it would not have otherwise resulted, then the death is not a risk assumed by the policy, and the plaintiff cannot recover.
The uncontradicted evidence shows that the insured, Martin Maier, attended the Keeley Cure Institute at Northville, and took treatment for inebriety. The evidence further shows that Martin Maier had been arrested for intoxication, and had been convicted therefor, for which he had been fined, or the sentence suspended. The evidence further tends to show that said Maier was addicted to the. use of intoxicating liquors; whether they were liquors or beer, the testimony is a little vague on that point, — liquors of some kind. The evidence of Dr. McLean further tended to show that the use of intoxicating liquors put the system in such a condition that when one is addicted to such use they rarely recover from an attack of pneumonia. If the jury find that the insured', had really an attack of pneumonia, and that death resulted from the use of intoxicating liquors when it would not have otherwise resulted, then the plaintiff cannot recover.. Dr. McLean gave other instances how they might die of it. You heard his explanation, and I need not comment upon it.
“ The plaintiff is bound to show by a preponderance— well, I will say, to the satisfaction of the jury — that the death of said Maier did not occur in consequence of the use of intoxicating liquors. I think the fair preponderance is the other way. They assume to say that it was caused by intoxicating liquors, and on the face of the return made to the company, prima facie, Dr. Stewart showed that it was not. So' that I will leave that to the jury. And if the jury are in doubt as to whether death did so occur, then the plaintiff has not established her case by a preponderance of evidence, and the plaintiff cannot recover.
The eleventh paragraph of the conditions provides that if the insured shall fall into the habit of becoming intoxicated, or shall have delirium tremens, within three years from the date hereof, then such contract should be void. I do not remember any testimony on this question of delirium tremens. I do not remember — it will be for you — whether he changed his habits materially from the time he made the original application to the time of his death. I will leave that to the jury. Such condition was a valid condition, which the company had a right to' make, and if the jury find that the said insured, Martin Maier, had fallen into such habit of becoming intoxicated, or did have delirium tremens, after the issuing of said policy, to wit, after the 4th day of November, 1891, then the said contract became void, and the plaintiff cannot maintain an action thereon.
The act of the defendant in defending suit upon the policy acts as a repudiation upon the policy, and a cancellation thereof.
“ It is claimed — I will leave to' the jury whether it is •shown — that the defendant had knowledge that the insured, Martin Maier, was in the habit of becoming intoxicated at the time of the issuance of the policy. Paragraph 11 of the policy is directed against the habit of becoming intoxicated, and, if the jury find that that habit •existed after the issuance of the policy, then the conditions of said paragraph 11 are éffective, and the plain■fiff cannot recover.”

These instructions fully presented the defendant’s theory, and were certainly as favorable as it had any right to ask. There were some inconsistencies in the ■charge of the court between these and the other portions of the instructions. We think, however, that the jury •could not have been misled by them. They were distinctly instructed that, if death resulted from the use of alcoholic liquors, there could be no recovery.

We find no error in the record, and the judgment is ■affirmed.

Long, Montgomery, and Hooker, JJ., concurred. Mo•Grath, C. J., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    BULLARD v. AMERICAN EXPRESS CO.
    Express Companies — Receipt and Delivery of Goods — Discrimination.
    Where an express company, in apparent good faith, and with due regard to the public requirements, has assumed to fix limits in a city beyond which it will not call for or deliver packages, it is under no obligation, as to one having knowledge of the limits so fixed, to extend its service beyond them; and this is so, although such limits extend farther from its office in one direction than dn another.
    Error to Kalamazoo; Buck, J.
    Submitted December 4, 1895.
    Decided December 24, 1895.
    Case by Chandler G-. Bullard, survivor of himself and Zenas H. Bullard, late copartners, against the American Express Company, to recover damages for defendant’s refusal to call for and deliver packages at plaintiff’s place of business. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Samuel W. Oxenford, for appellant:
    To the point that there was an unlawful discrimination as against the plaintiff, counsel cited: Kalamazoo Bade & Bus Go. v. Sootsma, 84 Mich. 194; New Bngland Bxpress Go. v. Railroad Go., 57 Me. 188; McDuffee v. Railroad Go., 52 N. II. 430; Witbede v. Eolland, 45 N. T. 13; Railroad Go. v. Morrison, 19 111. 136; Railroad Go. v. Thompson, Id. 584; Baldwin v. Bxpress Go., 23 111.197; Transportation Go. v. Newhall, 24 111. 466; Vincent y. Railroad Go., 49 111. 33; Beople v. Railroad Go., 55 111. 95; Railway Go. v. Beople, 56 111. 365; Goe v. Railroad Go., 3 Fed. 775; McGoy v. Railroad Go., 13 Fed. 3; Railroad Go. v. Bxpress Go., 22 Fed. 404.

      Boward & Roos, for appellee:
    An express company is not absolutely bound, in all cases, to make delivery to the consignee in person. Baldwin v. Bxpress Go., 23 111. 197; Gulliver y. Bxpress Go., 38 111. 503.
    Plaintiff should be held to have contracted with defendant with reference to its established custom as to delivery, and to be bound thereby. Schouler, Bailm. & Carr. § 519; Hutch. Carr. § 379.
   Montgomery, J.

This is an action in case, commenced in justice’s court. The declaration, in substance, alleges that plaintiff is a large shipper of celery by express from Kalamazoo to places throughout the United States, upon lines of the defendant, a common carrier; that the defendant, to collect celery and other articles for shipment in the city of Kalamazoo, and to deliver packages received by it, maintains and employs a large number of men, horses, and wagons; that since December 1, 1893, plaintiff’s place of business has been at No. 506 Douglas avenue, in said city; that during the celery season plaintiff makes large daily shipments over defendant’s lines, and has consigned to him packages of money in payment of celery shipped C. O. D., and other articles, of all of which defendant had notice; that plaintiff repeatedly requested defendant to call at his place of business for his shipments, and to deliver packages to him, which defendant refused to do; that defendant collects for shipment from and delivers to a large number of shippers of celery and other articles, under substantially the same circumstances, conditions, and situation as the plaintiff, and for shippers at a greater distance from its place of business than plaintiff’s place, and for shippers in the same locality as the plaintiff, and has unlawfully discriminated against the plaintiff by such refusal; that plaintiff has been damaged by being compelled to convey his celery to defendant’s office for shipment, and procure his packages from its office. The plaintiff had judgment in the justice’s court. In the circuit court the court directed a verdict for the defendant.

The evidence on the trial showed that the defendant’s agents, acting in unison with the agents of other express companies, had established limits in the city, beyond which they did not go to receive goods for shipment or to deliver packages. In some instances these limits extended a greater distance from the defendant’s office than plaintiff’s place of business. It was also in evidence that plaintiff knew ,of these limits before moving into his present place of business, and before transacting the business with defendant in which the inconvenience arose which, it is alleged, caused damage to plaintiff.

At the common law, a carrier of goods was not bound to accept delivery at any place other than his place of business, or the line of travel, in the absence of a custom of receiving goods at other places. Hutch. Carr. §§ 82, 87; Blanchard v. Isaacs, 3 Barb. 388. But it is insisted that' the defendant in this case, having practiced the custom of receiving goods for shipment at other points in the city than its office, was bound to furnish equal facilities to all shippers who occupy a similar position. We are not impressed with the force of this reasoning, as applied to the facts in this case. We are cited to no case in which' it has-been held that a carrier is bound to go beyond its line to receive goods, and, while it would not be competent for a common carrier to discriminate against shippers within its fixed limits, it is not perceived why, if the company is entitled to limit its receipt of goods to its own office or place of business, it may not enlarge these limits at its discretion, without being bound to go beyond them.

The. duty to deliver to the consignee is somewhat broader. Carriers on land, receiving packages, were, at the common law, generally bound to deliver to the consignee, at his residence or place of business. This rule has not been applied to carriers by water, or railroad companies, which must, of necessity, be confined to a fixed route. It has been said, however, that express companies owe their origin to this very fact, and that the nature of their business is to furnish a means of transportation and delivery to the consignee. Wood’s Browne, Carr. § 280; Hutch. Carr. § 379. The question of how far this duty may be escaped by usage is not well settled. It has been held, however, that, when the business of an office is so small that the company cannot or does not keep a messenger to make personal delivery, it is not unreasonable to require the consignee to call at the office. Hutch. Carr. § 380. If this may be done, it would seem to follow that the company may, so long as the public have notice of the custom, fix limits beyond which its agents are not required to go for delivery. If it cannot do this, it is difficult to say where would be the limit. It is clear that a reasonable limit is not in all cases the city limit. Conditions are often varied. If not the city limit, can it be said that a certain number of miles from the office, in either direction, would be a reasonable limit? We think, where the company, in apparent good faith, has assumed to fix limits, having regard to the public requirements, that, with regard to persons who have dealt with it, having knowl-' edge of this fact, it is not bound to deliver beyond these limits. We do not determine what the rights of one not having knowledge of these limits would be. This is not such a case. But in this case we think the court committed no error in directing a verdict for the defendant.

Judgment will be affirmed.

Loítg-, Grant, and Hooker, JJ., concurred. McGrath, O. J., did not sit.


author: Hooker, J.

text:
    SCHNEEKLOTH v. CHICAGO & WEST MICHIGAN RAILWAY CO.
    1. Railroad Companies — Killing Stock — Contributory Negligence.
    One who permits his horse to run at large near the place where a railroad track is unfenced is guilty of contributory negligence, precluding a recovery for the killing of the horse by a passing train, unless it was the duty of the company to maintain a fence at that point.
    2. Same — Station Grounds — Duty as to Fences.
    A place at which trains stop whenever there are passengers or freight to be received or delivered is exempt, as station grounds of the company, from the statute requiring it to fence its right of way, although no agent or depot building is maintained there.
    Error to Muskegon; Dickerman, J.
    Submitted December 5, 1895.
    Decided December 24, 1895.
    Case by Otto Schneekloth against the Chicago & West Michigan Railway Company to recover for the loss of a horse killed upon defendant’s track. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Smith, Nims, Hoyt & Erwin, for appellant.

      Stephen H. Clink, for appellee.
   Hooker, J.

The accompanying diagram will show the situation'of the defendant’s premises where plaintiff’s horse was killed. The triangular piece of land at the intersection of the highways, inclosed by a line marked ‘ ‘ Fence ” upon the southwest side, and by dotted lines upon the east and north sides, is claimed to be station grounds.

The plaintiff turned his horse loose, allowing him to wander upon the highway (which there was nothing to prevent), shortly before the accident, and he went upon the track and was injured. This was contributory negligence, and should defeat the plaintiff, unless defendant’s failure to perform the statutory duty of maintaining a fence should permit a recovery.

Station grounds are exempt from the operation of the statute requiring fences, and the proofs show that the place where the horse was killed was the usual place of stopping trains, and was known as “Sweet’s Station.” If not outside of the provisions of the statute, it is because no depot building had been built there; the station being a flag station, and no agent kept there. Tbe proof shows that this was a regular stopping place for trains when there were passengers or freight to be delivered, or express or freight to be taken, and that trains stopped daily. A flag pole and flag were provided. The distance between cattle guards was about 170 feet. This included the alleged station grounds and the width of two highways, about one-fourth of which was not within the limits of the highways. As this would be but little if any more than the length of a single car, it is apparent that fences and cattle guards would be elements of inconvenience and danger, if placed on the south and west sides of the respective highways. We think these were station grounds, within the meaning of this statute, and that there was no obligation upon the company to maintain fences. McGrath v. Railroad Co., 57 Mich. 555.

The judgment of the circuit court is reversed.

The other Justices concurred.


author: McGrath, C. J.

text:
    SCHNEIDER v. BLADES.

    Municipal Corporations — Board op Health — Compensation op Employes — Powers op Council.
    Act No. 10, Pub. Acts 1895, created a new board of health for the city of Detroit, and provided that the existing board should turn all of its assets over to the new one, which should assume and pay all lawful claims outstanding against the old board. Each board was empowered to appoint all of its employés, and to fix their compensation, which was to be paid them upon vouchers drawn by the board. Held, that the power so conferred included the authority to pass upon all claims for compensation; and that, where the claim of an employé of the old hoard had been allowed at a certain, amount by the new, the common council had no power to review such action, and increase the amount of the award.

      Certiorari to Wayne; Lillibridge, J.
    Submitted December 17, 1895.
    Decided December 24, 1895.
    Louis Schneider applied to the circuit court for a writ of mandamus to compel Francis A. Blades, controller of the city of Detroit, to draw his warrant upon the city treasurer in .payment of relator’s claim. From an order granting the writ, respondent brings certiorari.

    Reversed.

      Charles Flowers and John E. Moloney, for relator.

      John J. Speed, for respondent.

       Rehearing denied March 8, 1896.

   McGrath, C. J.

This is certiorari to review an order granting a mandamus. Act No. 10 of the Public Acts of 1895 created a board of health for the city of Detroit, and provided that, immediately upon the appointment of the board provided for, the board which had existed should turn over to the new board all the property and assets formerly under the control of the old board. It further provided that the new board should assume and pay all lawful claims and liabilities existing, at the time of the passage of the act, against the existing board of health of said city. Petitioner was in the employ of the old board, and claimed a balance due him for extra work of $1,000. He presented his claim to the new board, which allowed it at $252. ' The new board was without funds, and reported its liability for this claim, which, with others, aggregated several thousand dollars, to the common council, and asked that an appropriation be made to pay said claims. The council made an appropriation of $7,121.09, and ordered the same to be placed to the credit of the public health fund, to be used in the payment of said claims, but providing that, if any of the claimants should refuse to accept the sums allowed, such sums should be covered back into the city treasury. Petitioner refused to accept the allowance to him, and afterwards presented his claim to the council, which allowed it at $1,000, and ordered the controller to draw his warrant upon the city treasurer therefor. The controller refused so to do, and the circuit court issued a mandamus directing him to comply with the mandate of the common council.

Act No. 403, Local Acts 1893, under which relator was employed, provided that the board of health should have the power to appoint a health commissioner, a health officer, a plumber, and such sanitary, food, meat, and milk inspectors, and such clerks and subordinates, as might from time to time be required, and to prescribe the powers and determine the annual salary and compensation of “ each and all herein referred to.” It also provided that, “in case of pestilence or epidemic disease, or of danger from anticipated or impending pestilence or epidemic disease, or in case the sanitary condition of the city should be of such a character as to warrant it, it shall be the duty of the board of health to take such measures and to make such appointments, and to do and order and cause to be done such acts for the preservation of the public health (though not herein or elsewhere or otherwise authorized) as they may in good faith deem the public safety and health to demand.” It further provided that the common council and board of estimates should annually include in their final estimate a sufficient sum of money for the maintenance of the board in performing the duties and obligations imposed by law upon such board, which sum should be raised by tax, and constitute the ‘ ‘ Detroit Board of Health Fund; ” that ‘ ‘ the city treasurer is hereby appointed treasurer of said board of health, and shall, on check or voucher, pay out from time to time from said fund as may be required by said board of health.” Detroit City Charter, pp. 190-194.

The act of 1895 empowered the board to appoint and dismiss all employés. It provided for the submission, annually, of estimates as to the amount required by said board, and that such sums, when so raised, should be appropriated by said board for the purposes contemplated by the act; and that—

“ In the presence of a great and imminent peril to the public health by reason of impending pestilence, the said board may report to the common council that, in its judgment, the security of the public health requires the expenditure of moneys in the then fiscal year in excess of the annual appropriation for the purposes of said board, as above provided, and the common council may thereupon cause to be placed to the credit of said board such sum of money as may be required, in the judgment of the council, such sum to be taken either from the contingent fund, or the same may be raised by temporary loan, payable within such time as the council may determine, not exceeding three years, and not exceeding in all the sum of one hundred thousand dollars. The money so raised or borrowed shall be paid into the city treasury, and shall constitute a fund to be known as the ‘ Public Health Fund,’ and the same shall be paid out on vouchers approved by the board of health, and checks signed by the president and secretary of the board, drawn upon the city controller, who shall draw his warrant upon the city treasurer in favor of the person named as drawee in said check.”

It further contained the provision, already referred to, that the new board should assume and pay all lawful claims and liabilities existing, at the time of the passage of the act, against the existing board of health of said city. It further provided that said board “ may prescribe the duties and powers of the health officer, and of all inspectors, superintendents, or other subordinates or employes under them,” may determine their number, and may fix the compensation, except that the aggregate amount shall not exceed the appropriation.

Clearly, under the provisions of both the old and the new act, it is the duty of the board to pass upon all claims made by its employes for compensation, and it was not contemplated that an employé might first submit his claim to the board of health, obtain its judgment, then refuse to accept the award, present the question in dispute to the common council, and obtain a different award. The power to employ, fix the compensation, and pay, includes the authority to pass upon such claims as are made for compensation. The question here is not whether, before suit brought against the city, the claim must be presented to the council, but it is whether, when so presented, the council may disregard the action of the board, review that action, set it aside, and increase the award from $252 to $1,000. If it may be done in this instance, it may be done in every other. The vested authority to fix the compensation of employés is taken away, and an important administrative function destroyed. There is nothing peculiar in the circumstances attending this claim that should entitle the claimant to extraordinary relief. The health fund may have been exhausted, but that does not affect the question of the proper method for determining the amount of the claim. After the allowance of the claim by the board, it asked for an appropriation to pay the same, and the council promptly granted it.

The order directing the issue of the mandamus must be vacated.

The other Justices concurred.


author: Hooker, J. Grant, J. Montgomery, J.

text:
    McDONALD v. MICHIGAN CENTRAL RAILROAD CO.
    1. Master and Servant — Defective Appliances — Duty as to Inspection.
    The duty which the master owes to his servants to provide a reasonably safe place in which to work, and machinery in a reasonably safe condition, is not discharged for all time by providing machinery or premises safe in the first instance, nor can it be discharged by providing for an inspection by a fellow-servant.
    2. Same.
    The duty of diligence in maintaining machinery in a reasonably safe condition necessarily involves the duty of the master to take such reasonable measures to inform himself from time to time of its condition as common prudence dictates.
    3. Same — Railroad Companies — Inspection op Engines.
    Where a railroad company makes no provision for inspection of its engines except by the engineers in charge, who are expected at all practicable times to perform that duty and report defects, they must be held to be the representatives of the company. Grant, J., dissenting.
    4. Same — Fellow-Servants—Engineer and Brakeman.
    Where, in such a case, an engineer, before starting upon a trip, discovers that the pushbar upon the front of his engine is cracked, but, thinking that it will answer for the trip, which would otherwise be delayed, he does not report the defect, and, in attempting to make a coupling, the pushbar is broken and the brakeman injured, the question whether it was negligence to use the engine in its defective condition is for the jury. Grant, J., dissenting.
    5. Injury to Employé — Concurring Negligence.
    An action will lie by an employe against his master for injm-ies sustained by reason of the concurring negligence of the master and of a fellow-servant.
    6. Injury to Brakeman — Contributory Negligence.
    The negligence of a brakeman, if any, in riding upon the pilot of an engine to the place where a coupling was to be made, cannot be said to have contributed to injuries sustained by him in consequence of the breaking of the pushbar while he was standing upon the crossbar of the pilot attempting to make the coupling, it appearing that it would have been necessary for him, in any event, to get upon the crossbar in order to perform such service.
    7. Opinion Evidence — Strength oe Appliances.
    A locomotive engineer may properly testify whether, in his opinion, apparatus which broke in making a coupling would have been able to withstand the shock if free from defects.
    Error to Bay; Maxwell, J.
    Submitted February 13, 1895.
    Decided December 30, 1895.
    Case by William McDonald against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Hatch & Cooley, for appellant.

      McDonell & Hall, for appellee.
   Hooker, J.

The defendant appealed from a judgment rendered in an action brought to recover damages sustained in an attempt to couple an engine to a train of cars. The accident happened on a branch road running from Gladwin to Pinconning, where it joins the defendant’s main line. On this day the engineer, whose duty it was to inspect the engine, discovered that the pushbar upon the front of the engine was cracked. This discovery was made just before leaving for Gladwin, and he did not report it, thinking it would answer for the trip, which would otherwise be delayed. The train consisted of several freight cars, a baggage car, and some coaches. When within two miles of Gladwin, the water became low in the tank, and the engine was uncoupled, and taken to Glad-win for water. The plaintiff rode in the cab. At Gladwin the engine was turned around for convenience in taking water; and, to avoid turning twice more, the engineer determined to couple to the train with the pushbar, and back his engine for the two miles. On the return from Gladwin to the train, the plaintiff sat upon the pilot, and, when within about two car lengths of the train, he stepped down upon the crossbar of the pilot, and raised the push-bar, which entered the drawhead of the car properly, but was broken by the violence of the shock, as was the brake-beam of the car and a drawbar of the third car beyond. At the time of attempting to make the coupling, the plaintiff stood upon the crossbar of the pilot. Several witnesses stated that the only prudent or usual way to make a coupling with the locomotive pushbar is to stand upon the pilot, and raise and guide the bar, as the car is approached. The engine is shown to have struck the train while the former was going at a rate of five or six miles an hour, in consequence of a failure of the brake and reverse lever to work, both of which the engineer said that he used, but without diminishing speed, although the brake had worked well a moment or two before, when he had slowed down to a degree that required a further use of steam to reach the car. The plaintiff and engineer both testified that this engine had on former occasions failed to respond to the application of the brake quickly. The plaintiff lost his hand.

It was the duty of the defendant to furnish machinery in a reasonably sound and safe condition, and to use ordinary care in keeping the same in repair. This is an absolute duty, which the master cannot relieve himself from by imposing it upon another. There is no claim that defendant did not furnish a reasonably safe pushbar. If there is liability, it must be based upon a failure to use proper care in discovering and remedying the defect. If there was negligence in this, it was either a failure to prudently inspect, or by reason of the use of the defective pushbar after inspection. The record shows that there was no provision for inspection other than inspection by the engineer operating the train. He was expected to inspect his engine at all practicable times, and to report defects. This was no more than common prudence dictates should be required of all operatives of railway trains, and it is to be considered as a part of their duties in and about the operation of their trains; and this is as true when the railroad company makes no other provision for inspection as when it has another regular inspector. Such inspection, in the ordinary operation of the road, is the act of a fellow-servant, as between the engineer and brakeman, and, as between them, does not constitute the engineer a representative of the master. To say that an engineer who should err in attempting to make the next station, after his engine became broken, acted as the representative of his master, thus holding the latter liable to the fireman, who was injured, would be carrying the rule too far. An unreported injury of the brakes known to the brakeman would be another illustration. The duty that the master owes tó his patrons requires vigilance and care upon the part of the crew, and the master should be permitted to require it without subjecting himself to all the consequences following negligence by an inspector proper. The duty of such inspection should not be imposed upon operators of trains or machinery, at the master’s peril. If he provides for the discovery of defects and repair of his machines with reasonable diligence, it should be enough; and he should be allowed to provide additional precautions and safeguards, through the vigilance of operatives. To hold otherwise would put a premium upon carelessness. Several . Michigan cases appear to recognize the distinction made. In Smith v. Potter, 46 Mich. 258, the failure of the yard inspector to detect a defect in a car received from another road was held to be the negligence of a fellow-servant. A similar holding will be found in Dewey v. Railway Co., 97 Mich. 333. These two cases carry the rule further than as stated above, holding, in effect, that a yard inspector of foreign cars is engaged in the common enterprise of operating the train. The case of Miller v. Railway Co., 90 Mich. 230, and Jarman v. Railway Co., 98 Mich. 135, are also in line with these cases.

But if the company makes no other provision for inspection, and chooses to rely upon the reports of its men, deferring repairs until breaks occur, or until the operators, in due course of business, report defects, we must either say that it has neglected the duty of inspection altogether, or that it has imposed one of its duties upon its operatives, and that it does not fall within the limits of fellow service, or that it may avoid the duty which the law imposes, by invoking the rule of fellow-servant. So long as operatives do report, and the master repairs promptly, the jury may properly say that there is no negligence on the part of the master; but, if defects are not seasonably repaired, the master neglects a duty, and we should not split hairs to determine whether it was his personal carelessness, or that of the agent whom he appoints to apprise him of his impending duty to repair, although such agent be a fellow operative of one who is injured by reason of a want of seasonable repair. Brown v. Gilchrist, 80 Mich. 56; Johnson v. Spear, 76 Mich. 139; Van Dusen v. Letellier, 78 Mich. 492; Morton v. Railroad Co., 81 Mich. 431; Dewey v. Railway Co., 97 Mich. 333; McKinney, Fel. Serv. §§ 32, 127; Fuller v. Jewett, 80 N. Y. 46 (36 Am. Rep. 575); Flike v. Railroad Co., 53 N. Y. 549 (13 Am. Rep. 545); Beesley v. F. W. Wheeler & Co., 103 Mich. 196, and cases cited.

Can we say, as matter of law, that the master was neg-. ligent, or that he was not negligent, under the testimony contained in this record? The engineer discovered the defect in the pushbar before he left Pinconning, and while there was time and opportunity to give up the trip. It may be said that the defect was not such as to require the defendant to withdraw or delay its train to the inconvenience of its patrons and derangement of its business; that the pushbar need not have been used, or could have been used with care, for one trip, if, indeed, it was not reasonably safe for ordinary use, although slightly checked, —all of which may be true, and such suggestions might be proper for the consideration of the jury upon the question of the negligence in using the engine after this discovery. The exigencies of business may require the temporary use of defective cars and engines, and in this case it is plain that it could have been safely used if no attempt had been made to couple the head of the engine to the cars. Such emergencies call for increased care upon the part of those operating the machinery. Where the person injured is aware of the defect, he takes his chances if he uses the machine. Ft. Wayne, etc., R. Co. v. Gildersleeve, 33 Mich. 133; Smith v. Car Works, 60 Mich. 501; Ragon v. Railway Co., 97 Mich. 265.

It may be that this pushbar, though checked, was sufficiently strong for any proper or any ordinary use, or, if not, that careful use, such as one aware of the defect might be expected to make of it, would not be hazardous, and, therefore, that the master would have been justified in allowing it to be used for the trip had it been reported. There may be room for the claim that this accident was chiefly due to the negligence of the engineer, who, knowing of the defect, and the tendency of the engine to respond to the brake slowly, waited until he was near the car before bringing his engine under control; and it might be contended that a sound pushhar would have met the same fate if subjected to the same strain, in which case the injury could not be said to have resulted from or to have been caused by the defect. But, manifestly, all of these are questions for the jury, unless we can say that the undisputed evidence conclusively establishes one or another of the propositions. We cannot say that it was or was not negligence to make the trip with the defective pushbar, nor would we be justified in saying that a sound bar would certainly have been crushed. And if we might say that five or six miles an hour is not a prudent rate of speed at which to make a coupling, and that, in running the engine, the engineer was a fellow-servant with the brakeman, still the degree of caution required by his kowledge of the cracked pushbar, and whether the failure of the engine to answer the brake in time was due to his negligence, were for the jury to settle. If we could say that the fickleness of this engine was such as to make the engineer’s delay in applying the brake negligence, we should still have to decide whether the inertia of the train was not sufficient to break the pushbar if a coupling had been made with ordinary prudence. There would also arise the further questions whether an engine so given to disregarding the brake as to make an approach negligent was not an unsafe machine, and whether the brakeman was aware of the extent of the uncertainty of its proper action, and therefore took the risks arising therefrom.

The court instructed the jury that if they should find that the injury did not result from the defective pushbar, but was due to the speed and force of the engine, the plaintiff could not recover. This was as favorable instruction as the defendant was entitled to upon this subject, the rule being that, while an intervening cause precludes recovery, concurring negligence does not. If the negligent use of the engine alone caused the injury, that was the intervening cause, and plaintiff could not recover against the defendant; his only right of action would be against the engineer. • If, however, it appeared that both the negligent use of the engine and the defective pushbar were concurrent causes, he might have a right of action against either or both. This was substantially said to the jury. Bailey, Mast. Liab. 439, and cases cited; Id. 443. See, also, for a discussion of an analogous question, Selleck v. Railway Co., 93 Mich. 375.

It remains to discuss the question of contributory negligence. It is said by counsel for the defendant that, by riding two miles upon the pilot, the plaintiff was guilty of contributory negligence, and the case of Clover v. Scotten, 82 Mich. 369, is cited in support of the proposition. It is not clear that the ride upon the pilot did in itself contribute to the injury, but that it was his getting down upon the crossbar, and attempting to make the coupling. The witnesses agree that, had he been on the ground, it would not have been prudent for him to attempt to make the coupling without taking the position upon the crossbar that he did take. The only way that the ride upon the pilot can be connected with the accident is to say that, had he been upon the ground, he would not have attempted to make the coupling, while he could not safely do anything else, inasmuch as he was upon the pilot. The difficulty with this theory is twofold: First, we cannot determine that his safety required him to attempt a dangerous coupling as an only alternative to being injured, or that he could not have jumped off or otherwise avoided injury if he was in danger; and, second, we cannot say that he might not prudently have attempted this coupling by getting onto the crossbar from the ground. If so, his ride for two miles on the pilot was unimportant, for it would have made no difference whether he got into the place of danger (which was the crossbar of the pilot) from the ground, or a place of safety upon the engine. Until it appears that he was in danger, and could not reasonably expect to escape from the pilot, there is no room for the claim that riding on the pilot was the proximate cause of the injury. These matters depend upon the questions of fact, prominent among which are the strength of the pushbar if sound, and the reasonable expectation of a decrease in speed in the last 80 feet covered by the engine. It was therefore proper to leave the question of contributory negligence to the jury. Baltzer v. Railroad Co., 89 Wis. 257. The condition of the air brakes, the nature of the difficulty, the plaintiff’s knowledge concerning them, and whether it was negligence to expect them to work, we conceive to be questions for the jury, in connection with his situation upon the pilot, his ability to get out of harm’s way if necessary, and his right to expect the bar to stand the shock.

The circuit court excluded testimony that the plaintiff might have gone back from Gladwin to the train in the cab, instead of upon the pilot. It already appeared that he did ride to Gladwin in the cab, making it an established proposition that he could have thus returned. The court, in ruling upon this, said that it was unimportant whether he could have been accommodated in the cab, for he thought he was rightfully where he was, i. e., upon the crossbar. An exception being asked, the court replied: “Certainly, or if they wish to contest the practice of standing on the pilot to make this connection, why, I do not wish to preclude you or them from showing it; but, as to riding in the engine in that place, I don’t think it is important. He had to get on there anyway.” We think no harm was done by this ruling or remark as qualified. It gave the jury to understand that the question of negligence in getting upon the crossbar was open, but that riding upon the pilot for two miles was not the proximate cause. If it were, it could not be held that a want of room in the cab justified plaintiff in taking a known place of danger.

We cannot say that the opinion of the engineer upon the ability of that pushbar, if sound, to withstand the shock, was not admissible. It would be difficult to suggest a method of proving sue i fact if those familiar with the machine, and who had used it, could not give the jury the benefit of their experience and knowledge, which, of necessity, would take the shape of an opinion.

We discover no error in the record, and the judgment will therefore be affirmed.

Grant, J.

(dissenting). I have expressed my views of the question of fellow-servant, involved in this case, in Anderson v. Railroad Co., 107 Mich. 591. Upon the other questions I express no opinion.

Montgomery, J.

I concur in affirming the judgment. The duty which the master owes to provide a reasonably safe place to work and machinery in a reasonably safe condition is not discharged for all time by providing machinery or premises safe in the first instance. Van Dusen v. Letellier, 78 Mich. 492. This duty cannot be discharged by providing for an inspection by a fellow-servant, for wherever the duty of inspection, for the purpose of ascertaining whether there be a necessity to repair, or whether the machinery is in safe condition, exists, it is the master’s duty. The duty of diligence in maintaining the machinery in a reasonably safe condition necessarily involves the duty of the master to take such reasonable measures to inform himself from time to time of the condition of the machinery as common prudence dictates. In the present case no such provision was made, except through such inspection as was given by the engineer of the train; and I think it may be said that, while every accident to machinery when in use will not render the master liable for its continued employment by a fellow-servant while in such crippled condition, yet where, as in this case, the defect is discovered by the person intrusted by the master with the duty of supervision, and the discovery of the defect is made at such a time as would have enabled the master’s representative to repair the defect before entering upon the journey, or to have abandoned the trip, it is a fair question for the jury whether such representative is in such relation to the master that notice to him is notice to the master. The fact that the engineer and brakeman were employed on the same train is not necessarily decisive. If the engineer was in fact intrusted with the duty of supervision for the purpose of seeing that the engine was kept in reasonably safe condition, he was intrusted with a duty which the master owed, and which, in this case, it could perform only through agents, and which, it would appear, it had imposed upon no other agent; and, under these circumstances, it is no hardship to say that the agent of its own selection must be held to be its representative.

McGrath, C. J., and Long, J., concurred with Montgomery. J.


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    A. P. COOK CO. v. BEARD.
    Water. Courses — Prescriptive Right op Flowage — Injunction.
    One who has acquired by prescription a right of flowage in the lands of another will be restrained in equity from maintaining his dam at such a height as to overflow the lands to a greater extent than that to which they were subjected during the prescriptive period.
    Appeal from Jackson; Peck, J.
    Submitted June 11, 1895.
    Decided December 30, 1895.
    Bill by the A. P. Cook Company, Limited, to enjoin Francis H. Beard and others from overflowing complainant’s lands. From a decree for part of the relief prayed, ■complainant appeals.
    Decree modified and affirmed.

      Taggart, Knappen & Denison, for complainant.

      Osborn, Mills & Master (Charles A. Blair, of counsel), for defendants.
   Montgomery, J.

Complainant is the owner and in possession of nearly the entire of sections 29 and 32 of the township of Columbia, Jackson county, and files this bill to restrain defendants from overflowing these lands. Vineyard lake consists of two arms called the “Upper Vineyard Lake” and “Lower Vineyard Lake,” and covers a portion of sections 33,- 28, 29, and 32. The south branch of the river Raisin enters Upper Vineyard lake, and furnishes the outlet of Lower Vineyard lake to the north, and runs thence substantially northwest to and beyond the mill and mill-dam of defendants. The lowlands of complainant. consist of about 150 acres on section 29, and about 72 acres on section 32. , These lands are very slightly above the natural level of the river and lake at high-water mark, according to the claim of complainant. The defendants and their grantors have maintained a mill-dam at the point on the outlet of Vineyard lake where the one in question is now situated for upwards of 50 years. They have not acquired the right by purchase to flow the lands of complainant, but have acquired the right by prescription to maintain a dam at this place. The question involved is whether they have, by increasing the ponding capacity of their mill pond, caused a greater flow of water upon these lands of complainant than has existed for the prescriptive period. The contention of complainant is that they have increased the ponding capacity of their mill-dam by causing a rise of the dam 18 inches to 2 feet, while defendants contend that there has been substantially no change in that respect. The circuit judge found as a fact that the ponding capacity had been increased 8 inches, and decreed that the defendants be required to immediately reduce the ponding capacity so that the height of the water in the pond should be 8 inches less than the same was maintained at the time of the filing of the bill and at the time of the hearing. The complainant, not deeming this relief adequate, and conceiving that a greater reduction of the ponding capacity was justified under the proofs, . has appealed. The defendants have not appealed.

The question involved is purely one of fact, and the testimony taken and returned to this court is too voluminous to admit of quoting from it at length. A careful reading of the testimony has satisfied us that the defendants have exceeded their prescriptive right of flowage substantially to the extent claimed by the complainant, and the decree of the circuit court should be so modified as to require the defendants to reduce the ponding capacity of their dam so that it will not and cannot maintain the water in the pond as high as it now can and does, by 18 inches, instead of 8 inches, as provided in said decree. In other respects the decree should be affirmed. Complainant will recover costs.

The other Justices concurred.


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    THOMPSON v. NOBLE.

    1. Partnership — Accounting—Estoppel.
    A defendant in a suit for a partnership accounting who denies the existence of the partnership is nevertheless entitled to a just statement of the account in case the partnership relation is established.
    2. Same — Separate Business of One Partner — Profit on Dealings with Firm.
    A member of a manufacturing firm who has consented to his copartner’s carrying on a mercantile business upon his own account is not entitled to participate in the profits realized by the latter upon goods turned out by him in payment for materials furnished and labor performed for the firm.

      8. Same — Dissolution —General Assignment — Power op Solvent Partner.
    Upon the dissolution of a partnership by one member’s executing an assignment for the benefit of his creditors, the solvent partner, under the general authority vested in him to wind up the affairs of the concern, may mortgage its entire assets to secure certain of its creditors, being accountable only for the observance of good faith.
    4. Same — Interest on Advances — Compensation por Services.
    In the absence of an express agreement or a settled practice to the contrary, a partner is not entitled to interest on advances made to the firm, or to compensation for his services.
    Appeal from Huron; Beach, J.
    Submitted June 7, 1895.
    Decided December 30, 1895.
    Bill by Charles E. Thompson, assignee of William H. Cooper and William Creevy, against Orange Noble, for an accounting. Both parties appeal.
    Decree modified and affirmed.

      Dickinson, Thurber & Stevenson (H. W. Stevens, of •counsel), for complainant:
    Defendant, having denied the existence of the copartnership with reference to the salt business, is estopped to assert any claim dependent upon his connection therewith. Bigelow, Estop. (4th Ed.) 642, and cases cited; Id. 687-689; Thompson v. Howard, 31 Mich. 309; Thayer v. Arnold, 32 Mich. 336; McQueen v. Gamble, 33 Mich. ■344; Beam sr. Macomber, 35 Mich. 455; Walsh v. Varney, 38 Mich. 73; Rowley v. Towsley, 53 (Mich. 329; Steere v. Vanderberg, 90 Mich. 188; Rodermund v. Clark, 46 N. Y. 354; Dreyfous v. Adams, 48 Cal. 131; Dunning v. West, 66 111. 366; Bradley v. Coolbaugh, 91111. 148; Thurloughv. Kendall, 62 Me. 166; Calla-way v. Johnson, 51 Mo. 33; Railway Co. v. McCarthy, 96 U. S. 267.
    There is nothing unlawful in concerns composed of the •same members, in whole or in part, having business relations with, each other. 2 Lind. Part. 725; Pars. Part. (2d Ed.) 501; Carpenter v. Greenop, 74 Mich. 664; Ex parte St. Barbe, 11 Yes. 413; Waters v. Towers, 8 Exch. 401; Schnaier v. Schmidt, 13 N. Y. Snpp. 725; Cole v. Reynolds, 18 N. Y. 74; Schnebly v. Gutter, 22 Til. App. 87; Parnell v. Robinson, 58 Ga. 26; Freck v. Blakiston, 83 Pa. St. 474; Whitman v. Bowden, 27 S. C. 53.
    Under the circumstances of this case, complainant should be allowed interest upon the balance found to be due to his assignors from the date of the dissolution of the partnership. Sweeney v. Neely, 53 Mich. 421; Robbins v. Laswell, 58 111. 203; Beacham y. Eckford, 2 Sandf. Ch. 116.

      Horace G. Snover (Elbridge F. Bacon, of counsel), for defendant:
    By denying that he was a partner with complainant’s assignors in the salt business, defendant did not waive his right to have the partnership effects applied to the payment of the partnership debts. Robinson v. Allen, 85 Ya. 721.
    Defendant is entitled to an accounting as to the profits made upon goods sold in payment for work and materials furnished for the firm. Lockwood v. Beckwith, 6 Mich. 168; Burton v. Wookey, Madd. & Gel. 367; Gardner v. M’Cutcheon, 4 Beav. 534; Bentley v. Craven, 18 Beav. 75; Railway Co. v. Blakie, 1 McQ. 461; Patterson v. Holland, 7 Grant, Ch. 8; Russell v. Austwick, 1 Sim. 52; Dunne v. English, L. R. 18 Eq. 524; Whitman v. Bowden, 27 S. C. 53; Bank v. Cox, 2 Hun, 572, 59 N. Y. 659; Todd v. Rafferty, 30 N. J. Eq. 254; Bast’s Appeal, 70 Pa. St. 301; Pomeroy v. Benton, 57 Mo. 531; Dunlop v. Richards, 2 E. D. Smith, 181; McMahon v. McClernan, 10 W. Ya. 419.
    The assignment to complainant operated, ipso facto, to dissolve the firm (Bank v. Carrollton Railroad, 11 Wall. 624; Reece v. Hoyt, 4 Ind. 169; Smith v. Evans, 37 Ind. 526; Arnold v. Brown, 24 Pick. 89; Ogden v. Arnot, 29 Hun, 146; Morss v. Gleason, 64 N. Y. 204; Conrad v. Buck, 21 W. Ya. 396); and thereupon defendant, as the solvent member, became authorized to go on and close up the business, and apply the partnership property, so far as it was necessary, to the payment of the partnership debts; and to that end he could either sell the property himself, or turn it out or mortgage it to the creditors (1 Bates, Partn. § 183; Amsinck v. Bean, 22 Wall. 395; Ogden v. Arnot, 29 Hun, 146; Miller v. Brigham, 50 Cal. 615; Chase v. Scott, 33 Iowa, 309; Beece v. Hoyt, 4 Ind. 169; Morgan v. Marquis, 9 Exch. 145; Free-land v. Stansfeld, 2 Sm. & G. 479; Harvey v. Crickett, 5 Maulé & S. 336; Menagh v. Whitwell, 52 N. Y. 146); and the fact that the property sold for less than the insolvent partners thought it should have brought would not render the defendant liable to account for more than he received, unless he acted fraudulently, or with a willful disregard of his duty (Cragg v. Ford, 1 Younge & Coll. Ch. 280; Snell v. DeLand, 136 111. 533; Charlton v. Sloan, 76 Iowa, 288; Miller v. Jones, 39 111. 54; Blair v. Johnston, 1 Head, 13; Morris v. Allen, 14 N. J. Eq. 44; Peters v. McWilliams, 78 Ya. 567; M’Craev. Bobeson, 2 Murphey, 127). Furthermore, a partner has the power to sell and mortgage the entire stock of the partnership for the purpose of paying the partnership debts, even without the consent of his copartners. Sweetzer v. Mead, 5 Mich. 107; Barry v. Briggs, 22 Mich. 201; Godfrey v. White, 43 Mich. 171; Shanks v. Klein, 104 U. S. 18; Mabbettv. White, 12 N. Y. 442; Grasery. Stellwagen, 25 N. Y. 315; Hagev. Campbell, 78 Wis. 572; Tapley v. Butterfield, 1 Mete. 515; Phillips v. Furniture Co., 86 Ga. 699; Schneider v. Sansom, 62 Tex. 201.
    Complainant was not entitled to interest on advances, either before or after dissolution. 2 Bates, Partn. § 786; Johnson v. Hartshorne, 52 N. Y. 173; Barfield v. Loughborough, L. R. 8 Ch. 1; Juilliard v. Orem’s Exr’s, 70 Md. 465; Prentice v. Elliott, 72 Ga. 154; Dexter v. Arnold, 3 Mason, 284.

      . Rehearing denied March 12, 1896.

   Hooker, J.

Cooper and Creevy were partners in the mercantile business at Port Austin. Noble was a resident of Erie, Pa., and the owner of several tracts of land near New River, Mich., eight miles distant from Port Austin. On some of this land in the village of New River was a sawmill, dock, and some buildings. On September 1, 1873, an arrangement was made between these persons for the erection of a salt block by Cooper and Creevy on some of the New River property. A contract was made, ■wherein Noble agreed to sell and convey an undivided two-thirds interest in land designated to Cooper and Creevy upon payment and performance of the consideration therein mentioned. Cooper and Creevy, in consideration of this promise, agreed to expend $10,000 within one year in the erection of salt works and other improvements upon said premises, known as the “New River Mill Property.” This was the only written evidence of the agreement relating to the salt block. The salt block was completed and put in operation about July 1, 1874, and continued in operation until the fall of 1886. It seems to be undisputed that at a later date the three persons named— i. e., Cooper, Creevy, and Noble — engaged in the manufacture of lumber from timber taken from these lands, under a partnership agreement. Cooper and Creevy became pecuniarily embarrassed, and made an assignment for the benefit of their creditors, upon hearing which Noble made a chattel mortgage of personal property belonging to Noble, Cooper & Creevy to one of the creditors, and this property was sold to satisfy the mortgage. The assignee filed the bill in this cause for an accounting between Noble and himself as representative of Cooper and Creevy. Both parties appeal.

Among disputed questions were:

First. Whether Noble was a partner with Cooper and Creevy in the salt business.
Second. Whether, if so, he should be allowed to participate in certain profits realized by Cooper and Creevy upon goods furnished from their store at Port Austin to employes of Noble, Cooper & Creevy for labor, and to others in payment for articles furnished Noble, Cooper & Creevy.
Third. Whether Noble was justified in giving a chattel mortgage on firm property to secure its debts, and can avoid accounting for the value of such property beyond the amount realized from the mortgage sale.

From an inspection of the record, we are of the opinion that the complainant has sustained his claim that Noble was a partner with Cooper and Creevy in the salt business. We think, however, that the defendant should not be allowed to participate in the profits made upon goods. While Noble declined to engage in storekeeping with Cooper and Creevy, it is clear that it was expected that Cooper and Creevy would continue the mercantile business, and there is evidence that Noble expressed a willingness that they should have the profits made. To the contention that his denial of the partnership is inconsistent with a claim of this character, it may be replied that he should not be deprived of a just statement of the account because he has denied his connection with the salt business.

It is claimed by complainant that the defendant was not justified in mortgaging the firm property, and instigating its early sale, at prices much less than the intrinsic value; and that he should be required to account for' this property at its actual value. The circuit judge seems to have thought otherwise. Apparently this was a very bad wreck, and Noble, who was solvent, was liable for a large sum on partnership account. He took prompt measures to apply the odds and ends of the wrecked business to its debts. If property was sacrificed, he was a proportionate loser, with other partners; and we see no evidence of a motive to injure them, or profit out of their misfortune, through the sale of this property. Whether he mortgaged to a trustee, who sold and applied the money, or made sale himself, and devoted the proceeds to firm debts, could make little difference, as long as there was an absence of fraud. The solvent partner had the right to wind up the concern, which was dissolved by the assignment, and had the power to sell property and pay firm debts, through such agency as he chose, being accountable only for good faith, unless the courts, at the instigation of the assignee, should intervene. 2 Bates, Partn. §§ 752, 755. We concur with the circuit judge in his view of this subject.

Complainant’s brief (page 5) states that—

“It is because of the conclusion of the circuit judge that it was right for the defendant, as a member of the firm of Noble, Cooper & Creevy, to participate in the profits made by W. H. Cooper & Company [i. e., Cooper and Creevy] in their independent business by dealing with the firm in question, and also on account of the determination of said judge that a copartnership may be wound up by one of the members of the firm giving a chattel mortgage upon all of the assets for the purpose of having such property disposed of, and only be accountable for the ruinous prices that the mortgagee may see fit to take, that the complainant appeals. ”

On the other hand, the defendant complains only of the determination that Noble was a partner in the salt business.

What has been said, therefore, would practically dispose of the questions in the case, but for the fact that in a supplemental brief complainant appears to ask that we award him interest on a balance due Creevy and Cooper on book account from September 14, 1888, to date, because “Cooper and Creevy will have to pay interest on what they owe, all of which [it is said] went into the business.” In short, interest is asked on the excess contributed by Cooper and Creevy “for the reason that it is inequitable for Cooper and Creevy to devote their time and their money to the carrying on of the business, whereas Noble contributed nothing in the way of time or labor, but only made such advances as the proofs show.” We are not referred to authority to sustain the proposition that the devotion of time to a business by a partner can be made the basis of compensation. As we understand the rule, an express contract is necessary to entitle a part-' ner to pay for services. 2 Bates, Partn. § 770, and cases cited. And interest on advances is not allowable in the absence of an express agreement or a settled practice. Godfrey v. White, 43 Mich. 171.

The decree of the circuit court is therefore reversed to the extent of disallowing the claim of the defendant to participate in the profits arising from the goods sold from the store of Cooper and Creevy. In all other respects it will be affirmed. The complainant will recover costs of this court, and the record will be remanded for further proceedings.

McGrath, C. J., Long and Montgomery, JJ., concui’red. Grant, J., did not sit.


text:
    THOMPSON v. NOBLE.
    1. Vendor and Vendee — Liability for Taxes.
    Under a contract for the sale of an undivided half interest in wild lands, containing no provision as to jwssession or the payment of taxes, it is the duty of the vendee, as between himself and the vendor, to pay one-half of the taxes thereafter assessed, especially where the lands are lumbered for their joint benefit.
    3. Same — Failure of Title — Deduction from Purchase Price.
    Under a contract to sell “all the lands held and owned” by the vendor in a certain county, and to give a warranty deed therefor, the vendee is not entitled to a deduction from the purchase price for land the title to which is imperfect, but which is not incumbered by a valid lien.
    Appeal from Huron; Beach, J.
    Submitted June 7, 1895.
    Decided December 30, 1895.
    Bill by Charles E. Thompson, assignee of William H. Cooper and William Creevy, and others, against Orange Noble and the Keystone National Bank, for an accounting and the specific performance of a land contract. Complainant Thompson appeals.
    Decree affirmed.

      Dickinson, Thurber & Stevenson (H. W. Stevens, of counsel), for appellant.

      Horace G. Snover (Elbriclge F. Bacon, of counsel), for defendants.
   Hooker, J.

This case is a companion to that of Thompson v. Noble, ante, 19, to which we refer for a partial statement of the facts. Allusion was made in that case to a contract whereby Noble agreed to sell to Cooper and Creevy an undivided half interest in certain lands. It is this agreement, and the lands covered thereby, that are involved in this case. This contract was in writing, and by its terms Noble promised ‘ ‘ to sell, on payment of the purchase price, money, and interest, and performance of the articles in all things, and to convey an undivided one-half part of all the lands held and owned by him in the •county of Huron, and State of Michigan, except,” etc., to Cooper and Creevy. On their part, Cooper and Creevy promised to pay to Noble $11,000 in five years from September 1, 1873, with interest from September 1, 1874, at 7 per cent., payable annually, after the last-mentioned date. It was agreed that Cooper and Creevy should have the right to use all of the wood and timber necessary for the erection, and carrying on of the salt works and the improvement of the same. The parties sold some of the land, and subsequently engaged in the business of lumbering upon the lands remaining. Cooper and Creevy finally made an assignment for the benefit of creditors, and the assignee filed the bill in this cause. Subsequently the bill was amended, and Cooper and Creevy came in as co-complainants with Thompson, the assignee.

The bill alleges the contract, and describes a large quantity of land alleged to have been held and owned by Noble at the date of the contract, and states that, after the contract was made, it was arranged that Cooperand Creevy should assume the care, labor, and responsibility of looking after the lands, the payment of taxes thereon, and the finding of purchasers for the same, and that, upon the sale of any land, Noble should apply one-half of the proceeds received by him upon the purchase price of the interest of Cooper and Creevy. It alleges, further, that Cooper and Creevy sold considerable land upon contracts, and Noble received upwards of $6,000, to be applied upon their indebtedness; and that about April 1, 1888, Noble refused to recognize the right of Cooper and Creevy in the lands and outstanding contracts, or to come to an accounting in relation thereto, and executed a mortgage upon the lands for $30,000 for the purpose of embarrassing complainants. The bill nowhere contains a tender of payment, but prays a decree determining the amount due Noble, and that he convey upon payment or tender of such amount.

The circuit court made a decree in conformity to the theory that Cooper and Creevy had an interest in the land. A balance was struck, leaving them in debt to Noble $26,191.68 over and above all set-offs, and it was further determined that in the lands remaining, and the amounts unpaid upon existing land contracts, Cooper and Creevy had a half interest, subject to said balance of $26,191.68, and shbject to expenditures incurred by Noble for taxes, etc., during the pendency of the suit. It was therefore adjudged that there was due on July 31, 1891, to Noble, from Cooper and Creevy, $26,191.68, and the assignee, Thompson, was authorized to sell the interest of Cooper and Creevy at public auction, subject to the payment of the amount due to said Noble, at the time and place named, etc.; and it was further decreed that, within six months after confirmation of the sale, the purchaser or purchasers pay said sum of $26,191.68, with interest at 7 per cent., to Noble and the Keystone Bank, and that upon such payment the bank should execute and deliver to said purchaser or purchasers a release of the undivided one-half of the lands, and Noble should execute and deliver a warranty deed of the undivided half of the lands unsold, and a quitclaim deed of the undivided one-half of certain other lands, the title to which was in dispute. In case of a failure of the purchaser to pay the amount due to Noble within six months, he was to be forever barred from any claim to said premises. From this decree the complainant Thompson appeals. The defendants have not appealed, so far as we can discover from the record, and we must therefore assume that they are satisfied with the ■decree. The objections made to the decree appear to be (1) that one-half of the taxes upon the premises were erroneously charged to the complainants in the accounting; (2) that a deduction should have been made from the contract price for a failure of title to some of the' lands.

It is contended that Noble should pay all taxes upon these lands, inasmuch as no mention of the subject was made in the contract. Counsel cite no authorities in support of the proposition that, when the contract is silent as to the possession and the payment of taxes, the vendor must pay them, because he owns the legal title. Counsel for the defendants call attention to several cases holding that, where the vendee takes possession under a contract ■of purchase, he is liable for taxes subsequently levied. Cooley, Tax’n, 467; Farber v. Purdy, 69 Mo. 601; Miller v. Corey, 15 Iowa, 166; Watson v. Sawyers, 54 Miss. 64; Bradford v. Bank, 13 How. 57. If the law justifies the claim that taxes should be paid by the party in possession where the contract is silent, such claim ought not to prevail here, for the lands were wild; and, moreover, as stated, Cooper and Creevy lumbered them, and therefore received equal benefit from them with the defendant Noble. We agree with the circuit judge that ■one-half of the taxes was a legitimate charge in favor of the defendants.

It will be remembered that Noble agreed to sell “all lands held and owned by him.” It is asserted that this included some parcels the title to which was in dispute, .and therefore defective. The contract was agreed upon at Erie, Pa., by Noble and Creevy. Both testified upon this subject. Creevy said that Noble represented that he had 7,800 acres; that some were defective, and he would have Holbrook fix up the title; that of this 7,800 acres a large quantity proved defective. Noble claimed that he told Creevy that there were some lands that belonged to .other parties, and some the titles to which were disputed. He testified that he “never laid any great stress upon them,” and that he thinks Holbrook perfected titles to some of the land. In addition to this, Creevy says he found the title defective to these lands, and produced a list, which was offered in evidence, but to which our attention is not directed. It seems to be conceded, however, that there were some lands to which Noble did not have a perfect' title, if, indeed, he had even color of title; but we see no way of determining the question, for want of evidence upon the subject. The circuit judge found that Noble’s title to these lands (and they are described in the decree') “was in dispute, and imperfect, and that said lands were not included in the contract, to the extent that said Noble would be required by said contract to convey a perfect title to said lands.” As already seen, the decree required that they be quitclaimed upon payment of the contract price. We are of the opinion that these lands were subject to the agreement to convey by warranty deed, if they were properly included in the contract sued upon. Whether they were or not would depend upon whether Noble owned them. If they did not belong to him, they could hardly be said to have been “held and owned” by him. Devl. Deeds, 1015; Jamaica Pond Aqueduct Corp. v. Chandler, 9 Allen, 159. If they were owned by him, the complainants would have no cause to complain, unless they were in some way incumbered by mortgage or other valid lien, which does not appear. Counsel’s brief states that, as to some of the lands, “the Donohue title had been cut off [by legal proceedings] about the time that Noble purchased” (presumably from Donohue or his grantees), and that (apparently before the time that the contract was made) “Noble had allowed 500 acres of what are termed ‘ school lands ’ to revert to the State.” As all were wild lands, there is little room to contend from this statement that Noble “held” or “owned” either. There is evidence that indicates an understanding about some such lands, and negotiations regarding them later; Cooper and Creevy having perfected some titles, and deeded one-third to Noble, whereupon Noble expressed satisfaction, and wanted them to see what could be done with the remainder. It is probable that this may be the basis of the decree requiring a quitclaim of such lands.

Having reached the conclusion that the taxes were a proper chaige, and that we find no evidence upon which to predicate a deduction for failure of title, we have no alternative but to affirm the decree of the circuit court.

McGrath, 0. J., Long and Montgomery, JJ., concurred. Grant, J., did not sit.


author: McGrath, C. J. Long, J.

text:
    SANER v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    Master, and Servant — Injury to Railroad Employe — Contributory Negligence.
    Plaintiff’s intestate,, a young man 18 years of age, was a member of defendant’s extra section gang, and as such went from place to place with the construction train, and assisted in unloading material. A train of 20 flat cars had been unloaded, and was returning at the rate of from 15 to 25 miles an hour. The men were riding upon the pilot of the engine, which was running backward, pulling the train. When about a mile distant from the place where the men were to alight, the conductor ordered them to go to the rear of the train, so as to be ready to drop off when the train should slack up for that purpose. The deceased started upon a run to obey the order, fell between the cars, and was killed. He had been in defendant’s employ for about three months, and had been repeatedly cautioned by the foreman of the gang against running backward and forward over the cars while they were in motion. Held, that he was guilty of such negligence as to preclude a recovery for his death. McGrath, C. J., dissenting.

      Upon the foregoing facts, it was held, by McGrath, C. J. (the remaining Justices expressing no opinion):
    (1) That the doctrine of fellow-servant had no application.
    (2) That, it appearing that the conductor was in control with respect to the transportation of the men, he, and not the gang foreman, was for the time being the superior in authority.
    (8) That, in view of iwevious instructions to the deceased, it could not be said that the risk of injury in the manner stated was among the risks assumed by him at the time he entered defendant’s service.
    (4) That the question of his inexperience was for the jury.
    (5) That the position taken by him upon the engine could not be said to have contributed to the injury.
    (6) That, the principal question in controversy being as to whether the order was in fact given by the conductor, it was not error to refuse an instruction that the fact that the deceased fell between the cars and was killed raised no j>resumption that the defendant was negligent.
    Error to Hillsdale; Lane, J.
    Submitted June 14, 1895.
    Decided December 30, 1895.
    Case by Jolm Saner, administrator of the estate of Frank Saner, deceased, against the Lake Shore & Michigan Southern Railway Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      C. E. Weaver (George C. Greene and O. G. Getzen-Danner, of counsel), for appellant.

      Fellotus & Chandler (John E. Bird, of counsel), for appellee.
   McGrath, C. J.

Frank Saner, a young man 18 years of age, was employed by defendant as a common laborer, in what is termed the “ extra section gang.” Their duties were similar to those of the ordinary section gang, except that they went with the construction train from place to place, and assisted in unloading materials that were used. Decedent commenced to work for the company May 11, 1892. He had had no previous experience in railroad work. On the 31st day of August, 1892, Saner and his companions had been ordered to go with the construction train and unload a load of gravel. The train consisted of an engine, caboose, and from 20 to 25 flat cars. On the return trip, after the gravel had been unloaded, Saner and his companions, in order to avoid the dust, were riding on the pilot. As they approached the place where they were to alight, and while the train was running from 15 to 25 miles an hour, the conductor of the train ordered them to go back to the rear of the train, and get ready to get off, as the train would not stop, but simply slack up. While attempting to comply with the conductor’s order, Saner, after he had passed over four or five cars, fell between two cars, and was killed. Plaintiff recovered a judgment of $803.24. Defendant appeals.

It is insisted that the conductor, Rockwood, was a fellow-servant of the decedent, and, therefore, that a recovery should not have been permitted. The case is clearly governed by the rule laid down in Chicago & Northwestern R. Co. v. Bayfield, 37 Mich. 205. See, also, Walker v. Railway Co., 104 Mich. 606; Harrison v. Railroad Co., 79 Mich. 409; Roux v. Lumber Co., 85 Mich. 519; King v. Lumber Co., 93 Mich. 172.

It was insisted upon the trial that the conductor had no authority over decedent or his companions. The court submitted that question to the jury. It is clear from defendant’s testimony that the conductor was in no sense subject to the orders of the foreman, relative to the movements of the train or the transportation of these men. He was moving this train, and transporting these employes and the materials, under orders from the transportation department.. He was in charge of the train, and, respecting the matter of the transportation of the employes, he was the superior in authority. Respecting a matter connected with his transportation upon that train, ■decedent did what he was ordered to do by his superior in charge of that transportation. An instruction, therefore, that Rockwood was master of the train and of the matter of transportation would have been justifiable.

It is insisted, however, that deceased was hired to work upon that train; that he was familiar with the way and manner in which the work was done; that he had gone back and forth over the cars while in motion, many times, voluntarily; that he had been repeatedly instructed by his foreman not to go back and forth over the train while it was in motion; that he was careless-in the execution of the order; that whatever risk there was attending the way and manner in which decedent actually performed his service was assumed by him when he entered the service of defendant; that no order was given by Rockwood to go to the rear of the train; that he was not inexperienced, as alleged, and that his fall was clearly the result of his own carelessness. It cannot be contended that deceased was employed to do what he was instructed not to do, or that the doing of what he was told not to do was one of the assumed risks of his employment. Had he voluntarily done what he was ordered to do, in the face of an express order not to do that very thing, we would have been compelled to say that defendant was not at fault, and that the injury was the result of decedent’s own carelessness and disobedience of orders. As to whether he was careless in the execution of the order, or whether an order was given, or whether he was inexperienced, these were questions for the jury, and they were properly submitted to them.

Error is assigned upon the refusal of the court to instruct the jury that “ Saner’s duty was to ride on some one of the flat cars, or in the caboose, and not to pass back and forth over the moving cars, and the position he had taken upon the engine was a position he had no right to take, and the defendant cannot be held liable for what befell him in his attempt to reach the rear of the train, whether undertaken voluntarily, or on direction of the conductor.” The injury resulted in the course of the execution of an order given by the conductor. It was not an order to ride elsewhere because of a violation of duty, or because decedent and his companions had stationed themselves in a place where they had no right to be, and,-had it been, it is at least doubtful whether the conductor would have been justified in ordering them into greater peril. The train was 25 cars in length, and the same peril would have been encountered had deceased been ordered from any one car to another.

The court was requested to instruct the jury that the fact that decedent fell between the cars and was killed raises no presumption that defendant was negligent. There was no room for presumptions in the case. Plaintiff produced ample testimony tending to show that the train was running from 20 to 25 miles an hour, that the conductor gave the order complained of, and that decedent, in endeavoring to comply with the order, fell between the cars and was run over. It all occurred in broad daylight. • Defendant’s testimony tended to show that the train was running from 15 to 18 miles an hour, and that the conductor did not give an order, but simply made a suggestion. There was no question but that decedent was killed while attempting to go from the front to the rear of the train, preparatory to leaving the train. It is not contended that such an order was a proper one to give. On the contrary, defendant offered testimony tending to show that the men had been generally instructed not to do the very thing which decedent attempted to do. The principal question in the case was as to whether an order had been given. The court sub-' mitted that question to the jury, instructing them that if this was a mere suggestion on the part of Rockwood that they had better go, and it was not understood as an order that they should go, or which it was their duty to obey, then plaintiff could not recover. The question was not whether defendant had been negligent, but whether deceased had been ordered to do what it is conceded was hazardous.

The allowance of the amendment to the declaration was a matter within the discretion of the court, and there was no abuse of that discretion.

It is urged that the court instructed the jury that the father of decedent might be allowed the cost of a tombstone placed at the grave. The cost of the burial lot and other funeral expenses, including the tombstone, ($25), was given in the testimony at $83. The court, although mentioning the tombstone, limited the recovery for these items to $53; clearly intending to eliminate the cost of the tombstone, and one other item, of $5.

It is contended that the testimony shows that decedent and his companions were running when decedent fell, and that the court should have instructed the jury that he was therefore guilty of contributory negligence. The train was moving westerly. They were returning to a point east of Blissfield. When given the order, they were then within one mile, or, as another witness says, within one mile and a half, of Blissfield. Whether decedent was negligent or not would depend somewhat upon the necessity for haste in complying with the order. All of the parties to whom the order was given were running towards the rear end of the train. The question was properly left to the jury.

I find no error in the record, and think that the judgment should be affirmed.

Long, J.

I am unable to agree with the Chief Justice in this case, and think there is one question only which need be discussed. Even though the conductor gave the order for these men to go back to the rear end of the train, and prepare to get off at Blissfield, I think the plaintiff’s intestate was negligent in going over the cars, and for that reason the plaintiff cannot recover.

Mr. Van Wye, the foreman of the gang in which the deceased worked, testified that during the time he worked there the deceased went backward and forward over the cars (the empty flat cars) when they were in motion; that he was full of fun at all times, and he could not keep him still; that he (the witness) cautioned him about going over the cars while in motion. And the witness added, “I was scared, myself, about it.”

Mr. Elliott, the former foreman of the gang, also testified as follows:

“The first day I was on, I gave instructions to Saner and the other men about being careful. I said to be careful in going over the train, and not run back and forth when the train was in motion. I have seen him go backward and forward from one car to another when the train was in motion, always on the run. That was not a prudent thing to do. ' I have given him caution about that.”

A witness by the name of Ellsworth was one of the parties who started back to the rear end of the train. He says that, after they started to go back, Belcher, who was also going back, ‘ ‘ went by me [witness] on a dead run, and this Saner boy next; and, when he got on the second car from me, he fell between the cars. I was standing, and looking right at him. Saner was running as fast as he could toward the rear end of the train. He was carrying his dinner pail in one hand and his shovel in the other.”

This testimony was in no sense contradicted, and it appears conclusively that the deceased went back over those cars on a run after having been cautioned from time to time that it was dangerous. The defendant asked the court, under the circumstances, to direct a verdict for the defendant. This was refused. We think the instruction should have been given. The deceased was clearly so negligent that the case should have been taken from the jury on that ground.

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

G-rant, Montgomery, and Hooker, JJ., concurred with Long, J.