text:
    DRUCK v. ANTRIM LIME CO.
    Master and Servant — Safe Place — Negligence—Quarry.
    Evidence tending to show that an employé of defendant was injured by a fall of rock from the face of a bluff overhanging its quarry, that a blast ;had been set off the previous afternoon, that blasting had a tendency to loosen the rock on the face of the bluff and it was customary after exploding a charge for the foreman to inspect the condition of the bluff, that he made no examination immediately before plaintiff was injured and that plaintiff was set to work without being warned of any danger, presents a case for the jury upon the questions of negligence, contributory negligence, and assumption of risk.
    Error to Emmet; Shepherd, J.
    Submitted June 15, 1911.
    (Docket No. 72.)
    Decided October 2, 1911.
    Case by William F. Druck against the Antrim Lime Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Maxwell W. Benjamin, for appellant.

      Pailthorp & Hackney, for appellee.
   Stone, J.

This action was brought by the plaintiff, a man about 60 years of age, to recover damages which he alleges he sustained on December 19, 1908, while in the employ of the defendant in its lime kiln and quarry plant, which said kiln and quarry were used in the manufacture of lime, and for the getting out and loading of stone for shipment to other points. The declaration alleges that in the month of December, 1908, the defendant employed the plaintiff to work for it, in and about said quarry, as a common laborer, and that he continued in the employment down to the time of his injury, which occurred at the time above stated. We quote the following from the declaration:

“That the said quarry from which the stone were extracted, as aforesaid, and where men in the employ of the defendant were required to work, was an excavation in the side of the hill, and the 'blasting and removal of earth and stone therefrom had formed a bluff from 15 to 25 feet in height, and of considerable length; that it was well known to said defendant company that its laborers were obliged to work at or from the bottom or base of the said bluff, and it therefore became and was the duty of the said defendant to carefully and vigilantly look to the condition of said bluff and provide against any injury to the said laborers by the falling from above of earth or stone which might have become loosened by blasting or excavating as aforesaid; that it became and was the duty of the said defendant company to use reasonable and proper care to provide for its said laborers a reasonably safe place in which to work, and not to subject them to any extraordinary risk or hazard in the course of their duty and employment. Yet the said defendant, heretofore, to wit, on the 19th day of December, A. D. 1908, not regarding its duty in this behalf, did not use reasonable and proper care to provide for the plaintiff a reasonably safe place in which to discharge his duties and work as aforesaid, but wholly failed so to do, and, to the contrary, did subject him, the said plaintiff, to extraordinary risk and hazard in the course of his duty and employment in this, to wit, on or about the 18th day of December, A. D. 1908, some time during the late evening or night-time of said day, the said defendant, by the use of gunpowder, dynamite, or other explosive, loosened and broke up a large quantity of earth and stone at said quarry, and negligently and carelessly left a loose projection of earth and stone at a place in said bluff over the location where the men were required to work, to the great danger of its said laborers in and about the said quarry. And the plaintiff avers that the said defendant, by the exercise of reasonable care, might have known and did know of the unsafe condition of the said quarry, and that by failing to have the said dangerous projection removed before any laborers were ordered there to work, it carelessly and negligently subjected the plaintiff to extraordinary risks and hazards in his said employment; whereby and by reason whereof, on, to wit, the 19th day of December, A. D. 1908, the said plaintiff was directed by the said defendant to go to the said quarry and work at removing stone therefrom and load same into a car; that the said plaintiff, in accordance with said request, in the forenoon of said day, commenced work at said quarry; that before 20 minutes had elapsed after commencing said work, as aforesaid, a large quantity of the said projecting earth and stone fell down upon the plaintiff, injuring his right leg so severely that it had to be amputated,” etc.

As the circuit judge upon the trial of the case directed a verdict and judgment for the defendant, in our statement of the claimed facts, we give the claim of the plaintiff in its most favorable light.

The plaintiff testified that he was hired by one Sherman Castle, the foreman of the defendant, who had charge of the men about the premises, and that whatever work was done by the plaintiff was done under the direction or instructions of said Castle. The quarry where the plaintiff worked was an open quarry. The ledge was a kind of bluff or hillside, and in working the quarry it had been started from the bottom of the hill and extended back into it. At the time of the injury, the ledge had been opened up in length from 300 to 400 feet. At the deepest place the height of the ledge was about 27 feet. It varied somewhat in depth; some portions of it being about 16 to 20 feet in height. The ledge ran east and west, and faced the north, and the face of the bluff was practically perpendicular; the formation being of stone all the way from top to bottom. The loose sand and dirt were first stripped off above, and the condition of the rock for the first 10 or 15 feet below this stripping was loose, and was generally removed by bars and worked down into the bottom of the quarry. This work is, in this case, called "barring.” One end of the quarry, where it had been worked deeper, was harder, and the lower eight or ten feet had to be blasted out. In quarrying this ledge, the solid rock was blasted from the bottom, and the loose rock removed by barring, and all the work would be carried back together. Some blasting was also done in the quarry to break the rock that was too large to be handled, or that could not be broken with a hammer. The layer of rock in the upper and looser portion ran horizontally, but was usually connected by a layer of fossilized shells. The defendant company had two kilns at the quarry. The business of the company was getting out limestone for shipment to other points, and the manufacture óf lime at the plant.

The plaintiff testified that his principal employment at the plant was the handling of wood, loading and unloading wagons, and loading carts; but we think it appears by the undisputed testimony that he also worked in the quarry for about one-third of the time of his employment there, at which time his work consisted of some stripping and shoveling stone into carts, and some barring of stone. The plaintiff was hurt in the morning, between 8 and' 9 o’clock. The previous afternoon he had worked a short time in the quarry loading wagons with car stone, and some with gravel and dirt. About half past 3 in the afternoon of December 18th, the plaintiff testifies that he was ordered by the foreman, Mr. Castle, to leave the work of loading wagons with stone in the quarry and unload some wood. It is the claim of the plaintiff that, during the afternoon of December 18th, a charge of dynamite was exploded in the quarry, and that this blasting was supervised by Sherman Castle, who, it is claimed, always took charge of that work, and that the effect of the blasting set off in that quarry was to loosen or disturb the face of the bluff, more or less, all the way to the top, and loosen the stone. On the morning of the 19th of December, the plaintiff first helped to get in two loads of wood. After he had finished unloading the wood, the foreman directed him to go into' the quarry and load a cart with stone. The plaintiff testified that Mr. Oastle did not call his attention to any danger that might be there at that time, and gave the plaintiff no warning of any danger, and plaintiff did not know that, there was any danger there.

An important question in the case upon the trial was-whether there was any blasting done in the quarry on the afternoon of December 18th. The plaintiff testified that there was; and while, upon cross-examination, it appears that his recollection at the trial was somewhat defective because of his injury, yet he persists in stating that, to the best of his recollection, such blasting took place. We think there was enough in his testimony upon this point to carry the question to the jury. The defendant denied that there was any blasting on the 18th, or any occasion for examination. Soon after plaintiff commenced his work in loading the cart, a clump of stone broke off the side of the ledge, fell upon him, and injured him very severely, rendering it necessary to amputate his right leg, and he was also injured seriously in and about the head and other parts of the body.

At the close of the plaintiff’s case, no motion was made to direct a verdict, but the defendant proceeded to put in its testimony. The following testimony of the witness Castle is very significant. We quote from his cross-examination :

etQ. Are those loosened stones, that may be loosened up as a result of the blast, are they always apparent — their condition of danger ?
“A. Do you mean whether you would know whether they were dangerous by looking at them ?
“Q. Yes, sir.
“A. Yes.
“Q. Always?
“A. As a general thing. Well, I don’t say always, because a person might—
liQ. A stone might be loosened up, so that it would actually give way, and by looking at it apparently it would not reveal its dangerous condition; isn’t that true ?
“A. Yes. It might be that way. I was always in the habit, after starting off these blasts, of examining the bluff to see what condition it was left in; always did. My method of examination was looking it over and see if there was anything hanging that was liable to drop. I would go up above. I generally had one or two men with me, and any stone that appeared to be dangerous we knocked off. We had poles, and we would poke them off —all that looked dangerous. I always did that before I sent any men to the quarry down below to shovel stone, when we let off a blast.
“Q. Did you call the attention of the men, when you sent them into the quarry after a blast had been set off, and after an examination had taken place, did you always, or usually, call their attention to the danger ?
“A. Usually did.
C‘Q. Did you always ?
“A. I couldn’t tell as to that.”

Farther along in the cross-examination he testified, relative to setting the plaintiff at work on the morning of the injury, as follows:

“ When he spoke to me there, I didn’t call his attention to any danger that might be there, not at that time; I said nothing about it. I don’t think he was working there — in the quarry — more than ten minutes, before he got hurt. At that time I was up at the other end of the quarry — the kiln. No one was right there with Mr. Druck loading the car; he was alone.”

The circuit judge, at the close of all the testimony, directed a verdict and judgment to be entered for the defendant, upon the ground, as we understand the record, of assumption of risk; the court having in its charge directing the verdict used this language:

“In the opinion of the court, the danger was just as obvious to this man himself as it was to any one else, or, if not exactly to himself, it was to his fellow employés; that the company was no more to blame than he was. * * * And as the law is in Michigan, when a person voluntarily assumes the risk — knows what the risk is — and the company has done all that could be expected of it under the circumstances, he is not entitled to recover.”

The plaintiff has brought the case here upon writ of error, and the fourth assignment of error complains of the directed verdict by the court, and that question alone is all that it will be necessary for us to consider.

It is the claim of the defendant, among other things, that the case is controlled by the case of Petaja, v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505), and like cases. We cannot agree with counsel in this contention. Here was an open place, from three to four hundred feet in length, where the rock was barred or blasted down from time to time, then broken up and loaded into carts for the purpose of manufacture or shipment, as the case might be. The change, if any, that was taking place in the face of the quarry was a very gradual one. The undisputed evidence showed that a small force of men was there employed; that blasting would take place at considerable intervals of time; and that the place was not different from an ordinary open pit. We think that the usual rule of safe place, as it has been defined by this court, would apply here. By the undisputed testimony of the foreman, Castle, it appeared that it was his practice to examine the condition of the bluff after each blast. This, by the undisputed evidence, the defendant considered necessary for the safety of the men. Yet, in the light of this custom and duty, the foreman set the plaintiff at work in the quarry, where he would be exposed to falling rocks, without warning him of any danger, or in any way calling his attention to the fact that blasting had been done, and that no examination had taken place.

It may be said that the reason for this was that the witness Castle denied that any blasting had taken place upon the afternoon of December 18th, and that there was no occasion to either examine the bluff dr warn the plaintiff. But it must not be forgotten that we are here dealing with a case where the court directed a verdict for defendant. There was some evidence on the part of the plaintiff that blasting had taken place on the afternoon of December 18th. The duty and custom of examining the bluff after such blasting, and the fact that the plaintiff was set at work the next morning, without warning, appear undisputed, or, we might say here, appear by the testimony of defendant’s foreman. It is the duty of the master under such circumstances to exercise reasonable and proper watchfulness as to conditions, and guard against dangers liable to arise. If such conditions existed, and the master could have found and removed the loose rock by reasonable care and examination, it was its duty to do so, if there was such a custom. Johnson v. Spear, 76 Mich. 139 (42 N. W. 1092, 15 Am. St. Rep. 298); Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572); Kaukola v. Mining Co., 159 Mich. 689 (124 N. W. 591).

Defendant’s counsel urges that it must be assumed that Castle made such examination after the blast on December 18th. We do not think that this position is tenable, for Castle did not claim that he made such examination, either on the 18th or 19th of December. In fact, he positively denied that a charge of dynamite had been exploded on the 18th.

We are constrained to say, after a careful examination of the record, that we think the trial court erred in directing a verdict for the defendant. The most favorable statement for the defendant that can be made from this record is that whether the plaintiff was in the employ of the defendant, and whether the plaintiff assumed the risk, or was guilty of contributory negligence, were questions for the jury under proper instructions. Andrews v. Mining Co., 114 Mich. 375, 381 (72 N. W. 242); Clark v. Cement Co., 138 Mich. 673, 675 (101 N. W. 845).

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

Ostrander, O. J., and Bird, Brooke, and Blair, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    ALBERT v. PATTERSON.
    Limitation of Actions — Foreclosure of Mortgages — Deficiency Decree — Execution.
    Since under the statutes of limitation (8 Oomp. Laws, § 9751) a foreclosure decree is barred after ten years, execution may not issue on a decree of foreclosure entered December 11, 1899, on which a deficiency was reported March 3, 1900, by the commissioner after sale of the premises, complainant having made application on November 29, 1909, for leave to issue execution which was not issued until December 18, 1909.
    Appeal from Kent; Perkins, J.
    Submitted June 16, 1911.
    (Docket No. 79.)
    Decided October 2, 1911.
    Bill in aid of execution by Margaret Albert against Clara Patterson and Edward H. Patterson. From an order overruling a demurrer to complainant’s bill, defendants appeal.
    Reversed.

      William Wisner Taylor, for complainant.

      Walker & Fitzgerald, for defendants.
   Blair, J.

Defendants appeal from an order overruling their demurrer to complainant’s bill in aid of execution. On December 11, 1899, complainant obtained a final decree on foreclosure of a land contract against defendant Clara Patterson and others. On March 3, 1900, the commissioner made sale of the premises and reported a deficiency of 1563.16. On November 29, 1909, complainant made application to the court for leave to issue execution for such deficiency, which was granted December 13, 1909, and execution was issued on December 14, 1909. On February 25, 1910, complainant filed this bill of complaint, to which the defendants demurred, upon the ground that the execution was invalid for the reason that the statute of limitations had run against the original decree when the execution was allowed and issued.

We regard this question as settled in favor of the demurrants by our decision in Quinnin v. Quinnin, 144 Mich. 232 (107 N. W. 906).

A question is raised by complainant as to the estoppel of defendants against presenting the above ground of demurrer by reason of their alleged conduct in delaying the issuance of the execution and procuring a stay of proceedings, which we do not deem it proper to determine upon this record.

The order is reversed, and the demurrer sustained, with leave to complainant to amend her bill so as to set up the claimed estoppel, if she is so advised, within 20 days after notice of this decision.

Ostrander, O. J., and Bird, Brooke, and Stone, JJ., concurred.


text:
    AUSTIN v. AUSTIN.
    1. Divorce — Alimony—Infants—Emancipation.
    In a suit for divorce and proceedings for contempt, resulting in the imprisonment of defendant, the husband, for failure to pay complainant alimony and expense money, it is a defense to the payment of alimony under the order of the court, that defendant is a minor having no property and has never been emancipated.
    2. Same — Marriage.
    Marriage alone does not emancipate a male infant.
    Appeal from Kent; McDonald, J.
    Submitted June 16, 1911.
    (Docket No. 85.)
    Decided October 2,1911.
    Pearl E. Austin, by Michael Traxler, her next friend, filed her bill against Clarence R. Austin for divorce. Upon an order of the court Celia Austin was appointed as defendant’s guardian ad litem. Complainant presented a petition for alimony and expense money, which was allowed to her by the court, and on defendant’s failure to comply with the order he was committed for contempt of court.
    Reversed, and defendant discharged.

      Rodgers & Rodgers, for complainant.

      A. A. & H. A. Ellis, for defendant.
   Blair, J.

Both of the parties to this suit are minors, but were above the age of consent at the time of their marriage. The complainant lived with her husband in his father’s family, upon the father’s farm, until she left him. She filed her bill for a divorce upon the ground of extreme cruelty, and later filed a petition for temporary alimony. An order was made for alimony and expenses, and, defendant having failed to comply with the order, proceedings were instituted to commit him for contempt, resulting in an order to commit him. From this order, defendant appeals to this court.

Defendant resisted the application for temporary alimony and the proceedings to commit him for contempt, upon a showing that he had no property of any kind, and that he had never been emancipated, and his father was entitled to, and received, his wages and services. The view of the facts entertained by the court will appear from the following quotation:

“The motion of the defendant, asking for an order vacating the order of this court, made on the 3d day of January, A. D. 1911, requiring the defendant to pay sums amounting to'$44, on the 9th day of January, A. D. 1911, and f 3 per yeek during the pendency of this suit, came on to be heard on the 23d day of January, A. D. 1911, at which time the complainant filed affidavits made by Michael Traxler, Levi McDonald, and Pearl E. Austin, and thereupon defendant’s solicitor asked time to file affidavits denying the statements therein, relative to the defendant having any money, or there being any agreement to emancipate him; and the court then announced that the order was made on the assumption that what the defendant said about that was true, and that the court did not think that material, but that it was the duty of the defendant, notwithstanding his minority, to support his wife, and to pay the expense of litigation, and that the motion should be denied, but, in order to keep the record complete, defendant should have time to file and serve affidavits, and, said affidavits having been filed and served, this court finds no reason to change or to set aside its order, made January 3, A. D. 1911.”

No brief has been filed on behalf of complainant.

We consider this case upon the assumption that the court found the facts to be that the defendant had not been emancipated, unless the marriage of itself effected an emancipation, and that he had no property to enable him to comply with the order. If this were a case of first impression, I should agree with the circuit judge that the lawful marriage of minors emancipates both, but I have reluctantly come to the conclusion that such a view is foreclosed by the decision of this court in People v. Todd, 61 Mich. 234 (28 N. W. 79). That opinion can only be sustained upon the ground that marriage alone does not emancipate a male minor.

The order committing defendant for contempt is overruled, and defendant discharged, but without costs.

Ostrander, O. J., and Bird, Brooke, and Stone, JJ., concurred.


author: Brooke, J.

text:
    FINN v. BOARD OF SUPERVISORS OF BAY COUNTY.
    1. Municipal Corporations — Bonds—Contracts.
    An unconditional, unambiguous agreement in writing to take bonds of a municipal corporation for a price named is not subject to the approval by the purchaser’s attorney of the legality of such bond issue.
    2. Same — Customs and Usages — Evidence.
    Testimony that a custom prevails among bond buyers to require the certificate of their validity by an attorney of recognized standing is not admissible to contradict the terms of a contract to buy the issue.
    8. Same — Constitutional Law — Counties — Segregation of Townships.
    The bonds were not affected by a local act of the legislature segregating a township from Bay county which issued the bonds and making the same part of Arenac county.
    4. Constitutional Law — Bonds — Municipal Corporations — Counties — Change of Boundaries.
    After the authorization by proper municipal action of a bond issue, and after the execution of a contract to sell the bonds to plaintiffs, it was not within the power of the legislature to pass any act relieving any portion of the territory affected by such proposed issue from the burden of the securities: the fact that they had not been issued is immaterial.

      5. Municipal Corporations — Contracts—Breach.
    The fact that plaintiffs’ attorney refused to approve the bond issue was no defense to the claim of the county for breach of plaintiffs’ contract to accept the bond issue, and defendant was entitled to a directed verdict for its damages in recoupment.
    Error to Genesee; Wisner, J.
    Submitted June 19, 1911.
    (Docket No. 95.)
    Decided October 2, 1911.
    Assumpsit by Matthew Finn and Alfred J. Ducharme, copartners as Finn & Ducharme, against the board of supervisors of Bay county to recover the deposit of a certified check in the hands of defendant county. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed.

      Charles W. Hitchcock (Lee E. Joslyn, of counsel), for appellant.

      Geer, Williams & Halpin, for appellees.
   Brooke, J.

In this action plaintiffs seek to recover the proceeds of a certified check for $2,500, delivered by them to defendant with their bid for the purchase of $135,000 of bonds, which defendant offered for sale by advertisement. Defendant pleaded the general issue and claimed the right to retain the check as stipulated damages, and also to recover its actual damages because of the failure of plaintiffs to carry out their contract and accept and pay for the bonds awarded to them. It was conceded that, upon a resale of the bonds, Bay county lost the sum of $136.74 in addition to the amount of the check, for which sum it asked judgment.

The proposal for sale of the bonds in question was as follows:

“ Proposals for Bonds.
“Bat Citt, Mich., February 2, 1903.
“ Pursuant to the following resolutions, the clerk of the county of Bay will receive bids up till 10 o’clock a. m. Thursday, February 12, 1908, for one hundred and thirty-five thousand dollars ($135,000.00) refunding stone road and bridge bonds.
“ Supervisor Moore moved the adoption of the following resolution.
“ By Supervisor Moore:
“Whereas, the legislature of the State of Michigan has by a special act authorized and empowered the board of supervisors of the county of Bay to refund sixty thousand dollars of stone road bonds, which were due and payable July 1, 1902; fifteen thousand dollars of Twenty-Third St. bridge bonds, which are due and payable March 10, 1903, and sixty thousand dollars of Third St. bridge bonds, which are due and payable October 1, 1903, and to issue the bonds of the county therefor: Therefore be it:
“ Resolved, that the officers of this county, as hereafter provided, be and they are hereby authorized and directed to carry out and complete the work necessary to obtain the money on said bonds by selling them to the highest responsible bidders and pay over the money received therefor into the treasury of this county to be used for the purposes for which the loan is made. Said bonds to be issued as follows: Thirty thousand dollars stone road refunding bonds to be dated March 10, 1903, and to become due and payable March 10, 1923; thirty thousand dollars stone road refunding bonds to be dated March 10, 1903, and to become due and payable March 10, 1933; fifteen thousand dollars Twenty-Third street bridge bonds to be dated March 10, 1903, and to become due and payable March 10, 1928; thirty thousand dollars Third street bridge bonds to be dated October 1, 1903, and to become due and payable October 1, 1925, and thirty thousand dollars Third street bridge bonds to be dated October 1, 1903, to become due and payable October 1, 1930. Said bonds shall bear interest at the rate of four (4) per cent, per annum, payable semi-annually, principal and interest payable in New York City, bonds to be issued in denominations of one thousand dollars ($1,000.00) each. And be it further
“Resolved, that the clerk of this county advertise for proposals for the purchase of said bonds and report the bids unopened to the ways and means committee of this board on February 12, 1903, at which time said committee shall proceed to open and examine said bids and report the same to this board with their recommendations in the premises. Said bonds when issued shall be signed by the chairman of the board and the treasurer of the county of Bay, and countersigned by the clerk of this county. And be it further
“Resolved, that the county clerk proceed to prepare such copy of the proceedings of this board as shall be required by intending purchasers and shall submit to the party purchasing the same the proofs of the legality and regularity of said bonds.
“A yea and nay vote was demanded, the roll was called, which resulted as follows:
“Yeas: Supervisors Allen, Brissette, Coggins, Combs, Cunningham, Garrison, Grace, Hartingh, Heumann, Hewitt, Jonas, Knight, Larue, Logan, Lourim, Moeller, Moore, Orr, Pierce, Peoples, Reid, Ross, Roy, Sehussler, Sullivan, Truax, Wagner, Ward, Weber, Wyrybske — 30.
“Nays: None.
“ Resolution thereupon declared carried.
“The county of Bay guarantees that said bonds are legally issued under authority of a special act of the legislature of the State of Michigan. Proofs of legality to be furnished the successful bidders. Bonds to be issued for one thousand dollars ($1,000) each.
“ Interest will be payable semi-annually in New York City.
“The parties bidding for same must accompany bid with an unconditional certified check payable to the order of the treasurer of the county of Bay for the sum of twenty-five hundred dollars ($2,500) which the county of Bay may collect and retain the moneys thereon as liquidated damages for failure on the part of the bidder to complete the purchase should the bonds be awarded them.
“Bids to state total amount that will be paid.
“The board of supervisors reserves the right to reject any and all bids. Purchaser to furnish lithograph bonds.
“The purchaser must pay all accrued interest upon the bonds at the time of delivery.
“The population of Bay county, as established by United States census in 1900, was 62,378.
“The assessed valuation of Bay county in 1902 was:
Real estate....................................-$18,733,000
Personal property................ 5,636,973
For purposes of taxation, total..............$24,869,978
“ Bonded indebtedness of the county:
Twenty-Third street bridge bonds, including this issue...........................................§15,000
Third St. bridge bonds, including this issue_______ 60,000
Belinda St. bridge bonds_________________-........ 60,000
Stone road bonds, including this issue............. 160,000
State judgment bonds............................ 115,000
Total indebtedness............................$410,000
“ Corporate property owned by tbe county:
Courthouse and grounds.......... §50,000
Jail and grounds_________ 35,000
Poor farm and appurtenances.................... . 12,000
Agricultural grounds............................. 10,000
Total.......................................$107,000
“ In addition we have 100 miles of macadamized roads, which weré built at the expense of the county and are maintained by the county.
“Bay county has never defaulted in the payment of either principal or interest when due.
“ For reference we would refer you to any of our city banks.
“Birdsley Knight,
“ Chairman of Ways and Means Committee.
“John G. Buchanan,
“ Clerk of Bay County.”
“Detroit, Mich., Feb. 1908.

Plaintiffs’ bid was as follows:

“Birdsley Knight, Chairman of Ways and Means Committee, and
“John G. Buchanan, Clerk,
“Bay County, Michigan.
Gentlemen:
“For the issue of $135,000 Bay county bonds, advertised in the inclosed notice, we propose to pay you the sum of $141,789.
“ This bid is made with the intention of complying fully with the inclosed advertisement.
“We inclose herewith our certified check for $2,500 as a guaranty.
“ Yours very truly,
“Finn & Ducharme.
“We also agree to take any or all of said issue of bonds on the same income basis that $6,789 premium bears to the amount of bonds that may be allotted to us.
“Finn & Ducharme.”

This bid was received by defendant on February 12, 1903, and the next day the bid was accepted by the following resolution:

Gentlemen:
“We have received the following bids for one hundred and thirty-five thousand dollars ($135,000.00) refunding bonds: * * *
“We would recommend that the whole issue of one hundred and thirty-five thousand dollars ($135,000) be sold to Messrs. Finn & Ducharme, of Detroit, for the sum of one hundred and forty-one thousand seven hundred and eighty-nine dollars ($141,789) and accrued interest to date of delivery, and would further recommend that the certified check for twenty-five hundred dollars ($2,500) be turned over to the county treasurer, the funds for same collected when the validity of the bonds have been passed on, and held as a guaranty for the taking up of the sixty thousand dollars to be issued October 1,1903, and if said Finn & Ducharme fail to take up said sixty thousand dollars when issued or the seventy-five thousand dollars to be issued March 10, 1903, then the moneys collected on the said twenty-five hundred dollar check to be retained by the county of Bay as liquidated damages for their failure to carry out their agreement, and we would further recommend that the prosecuting attorney proceed at once to make a contract to carry out the above recommendations.
“ Signed by all the members of the ways and means committee. * * *
“ Report adopted.”

On the same day (February 13th) a second resolution was adopted, as follows:

“Whereas, the board having sold the $135,000.00 of the bonds of this county to Finn & Ducharme, and contract having been entered into by this county with said firm for their purchase: Therefore be it resolved, that when the details of the issue of said bonds have been accepted by said Finn & Ducharme, the chairman and clerk of this board and the treasurer and clerk of this county are directed to execute said bonds according to agreement.”

On February 16, 1903, plaintiffs wrote to the clerk of Bay county, asking for “abstract of proceedings preliminary to the awarding of the bonds, signatures of officers, etc.,” and on the same day the prosecuting attorney wrote plaintiffs that their bid had been accepted and asking them to fill out form of contract.

To this letter plaintiffs replied as follows:

“February 20, 1903.
“Edward E. Anneke, Esq.,
“ Bay City, Michigan.
“Dear Sir:
“Yours of the 16th to hand. We have no particular form of contract that we use in these matters. We suppose, however, that we can put the matter in the form of a communication from us and an acceptance from you which will make the matter binding. We have prepared a letter along these lines which you will find inclosed and which we think covers the agreement made with the committee. You can have them send us a communication as to our proposition. We would like to have furnished us at once a copy of the law you are bonding under, together with an abstract of proceedings had relative to issuing of the bonds, also the signatures of the county treasurer, chairman of the board of supervisors and county clerk, as we desire to have the bonds prepared at once.
“Finn & Ducharme.”

The inclosure mentioned in the foregoing letter follows:

“February 20, 1903.
“County Treasurer,
“ Bay County, Michigan.
Dear Sir:
“This is to confirm our purchase of $135,000 Bay county bonds, 4 per cent, refunding bonds to be dated as follows: $30,000 dated March 10, 1903, and payable March 10, 1923; $30,000 dated March 10, 1903, payable March 10, 1933; $15,000 dated March 10, 1903, and payable March 10, 1928; $30,000 dated April 1, 1903, and payable October 1, 1925; $30,000 dated Oct. 1, 1903, and payable October 1, 1930, for which we agree to pay the sum of $141,789 with premium of $6,789. Of this premium we are to pay a proportional amount for the $75,000 bonds dated March 10, 1903, and remainder of the premium to be paid October 1, 1903, when the $60,000 of bonds are to be issued and as a guaranty that we will take the $60,000 bonds dated October 1, 1903, at the prices herein stated, we are willing that you retain in your possession the $2,500 now in your hands, you to allow us 4 per cent, interest per annum on said sum from February 12, 1903.
“Yours very truly,
“Finn & Ducharme.”

To this letter defendant replied as follows:

“ Bay City, February 26, 1903. “Finn & Ducharme,
“Detroit, Michigan.
Gentlemen:
“Your favor of the 20th instant addressed to Edward E. Anneke, prosecuting attorney of the county of Bay, in reference to bond issue has been handed to me for reply. The contract that you inclose to him is correct with the exception that the clause in the bond proposal of yours that the purchaser must pay the accrued interest upon the bonds at the time of the delivery. I herewith return to you the contract sent to Mr. Anneke, asking that the accrued interest clause be added and the same returned to the county treasurer, upon receipt of which an acceptance will be immediately forwarded to you. Trusting that the letter written by the county clerk contained all the information necessary for the issue of the bonds on the part of the county, and that the bonds will be received in time, I beg to remain,
“Yours respectfully,
“Birdsley Knight,
“Chairman of Ways and Means Committee.”

Plaintiffs then wrote the following letter:

“ February 27, 1903.
“Birdsley Knight, Esq.,
“Bay City, Michigan.
Dear Sir:
“We return herewith inclosed our letter to the county treasurer with the agreement added as to the accrued interest suggested by you. We received the abstract of proceedings and so far as I can see they comply with the law. It is customary, however, that the board adopt a form of bond and most bond attorneys require it before approving the proceedings. We are just now taking this matter up with Mr. Mathews, of Chicago, and he agreed with us that it is not essential to the validity of the bonds that this be done. We are forwarding him today copy of bonds prepared by us and expect his approval Monday. We think everything will be in readiness by the 10th.
“Yours very truly,
“Finn & Ducharme.”

After submitting the proceedings to their attorney, plaintiffs received the following letter from him:

“Chicago, March 3, 1903.
“Finn & Ducharme,
“ 34 Buhl Block,
“Detroit, Michigan.
Gentlemen:
In re proposed issue of $135,000 refunding bonds of Bay county, Michigan, I have examined the inclosed record of proceedings and will approve of bonds on or after their respective dates of issue when the following additional papers are furnished and found satisfactory.
“I have examined the inclosed record of proceedings and will approve of bonds on and after their respective dates of issue when the following additional papers are furnished and found satisfactory: Certified statement as to whether or not the meeting of January 28th was an adjourned meeting or a regular meeting — I will read that again — First, certified statement as to whether or not the meeting of January 28th was an adjourned meeting or special meeting of the board. If an adjournment of a special meeting proofs should be furnished that original meeting was called in compliance with provisions of section 2483 of Compiled Laws of 1897. Second, certified statement as to total number of members-elect of the county board. This is to ascertain whether the bonding resolution received a sufficient number of votes. Section 2476, Compiled Laws of 1897. Third, proofs that the county clerk duly advertised for proposals for the purchase of said bonds in accordance with the provisions of the resolution adopted by the county board on January 29, 1903. Fourth, form of bond issue in making the issues in substantially the form herewithin inclosed.
“ You will note that I have made several changes in the bond form which you have submitted, the most important of which is to insert a recital as to the validity of the outstanding bonds to be refunded. Fifth, as a matter of wise business policy, not of strict legality, you will see to it that the outstanding bonds are canceled simultaneously with the delivery of the refunding bonds. Sixth, as a matter of abundant precaution, I prefer not to give my formal opinion on this issue until I am .furnished with a copy of the act under which they are being issued, duly certified by the original certificate of the secretary of State. The copy of the act now furnished is only authenticated by the certificate of the county clerk.
“Yours very truly,
“ John C. Mathews.”

This communication was evidently brought to the attention of defendant, which caused a reply to be sent as follows:

“ Bay City, March 7, 1903.
“Finn & Ducharme,
“ Detroit, Michigan.
Gentlemen:
“I have had the county clerk’s office prepare the necessary certificates as required by you and am forwarding them by this mail and hope you will receive them in good time. I called on Mr. Young, of the Bay City Bank, and he states he will be at the bank for Tuesday morning, 9 a. m. He also stated that the check on the Detroit Savings Bank would be satisfactory in the payment of the bonds. I looked up where the $15,000 were payable on the 15th of March and find they are payable at the American Exchange National Bank, New York. Will you please have them hold them until we can forward the necessary funds.
“Yours,
“T. W. Moore, Comptroller.”

The attorney then wrote plaintiffs the following:

“March 13, 1903.
“Finn & Ducharme, Bankers,
“34 Buhl Block,
“Detroit, Michigan.
“Gentlemen:
“ In re proposed issue of $135,000 refunding bonds of Bay county, Michigan, I have additional papers furnished pursuant to my letter of the 3d instant. I inclose herewith my formal opinion approving $60,000 stone road and $15,000 Twenty-Third street bridge refunding bonds, dated March 10,1903. In accordance with the fifth paragraph of my letter of March 3d, I still advise as a matter of wise business policy that you see to it that the outstanding bonds are canceled simultaneously with the delivery of the new bonds. The $30,000 Third street bridge bonds to be dated October 1, 1903, I will approve on or after that date. It is my custom, however, never to issue a formal opinion bearing a date prior to the date of the bonds covered thereby.
“ Yours very truly,
“John Mathews.”

Plaintiffs took and paid for the $75,000 of bonds dated March 10, 1903, but refused to accept the $60,000 of bonds dated October 1, 1903.

It appears that by the passage of Act No. 496 of the Local Acts of 1903, the legislature had attempted to segregate from Bay county the township of Gibson and add it to the county of Arenac. This act was approved May 27, 1903, and was declared unconstitutional in March, 1905. In the meantime plaintiffs claim that their attorney, Mr. Mathews, had refused to approve of the $60,000 of bonds to be issued October 1, 1903, as being legally issued; his alleged reason for his refusal being the passage of said local act.

It is the contention of plaintiffs that they were not obliged to take the bonds in question until they were approved by their bond attorney.

As to this proposition, we think it sufficient to call attention to the fact that the contract consisting of the proposal, the bid, and its acceptance was in writing. An examination of these papers discloses no ambiguity. They are sufficiently plain and definite, and nowhere in either of them is there a suggestion that plaintiffs’ bid is a conditional one to become binding only after their attorney had approved the issue.

Mr. Finn, one of the plaintiffs, was permitted to testify as to the custom among bond buyers of requiring a certificate of an attorney of recognized standing as to the validity of the bonds. We think the admission of this testimony erroneous. Plaintiffs made their contract in writing and chose to so make it as to eliminate their right to insist upon having the favorable certificate of counsel as a condition precedent to their acceptance of the bonds.

The learned circuit judge, in holding with the plaintiffs upon this point, seems to have relied upon the case of City of Great Falls v. Theis (C. C.), 79 Fed. 948. We have examined this case and are of opinion that it is not controlling of the issue here. The contract there under consideration is not set out in the opinion, but the court says:

“ In the contract it is provided that the city should furnish full information and copies of the record of all proceedings affecting the validity of the bonds, and that the buyers should give notice of their rejection of the bonds for illegality prior to a specified date, otherwise they should be deemed to have accepted them.”

This is not a definite contract of sale and purchase such as appears in the case at bar; moreover, the court appears to have been convinced that the bonds there in question were illegally issued, though their legality had been established by a decision of the State court. The opinion contains the following language:

“In view of these well-known facts, and in accordance with the usages of the county in such transactions, it is necessary, in order to give effect to the intentions of the parties, to read into the contract an implied condition that the buyers should not be bound to take the bonds, unless the proceedings of the city government had been conducted in substantial conformity with the laws, and proper records had been made, so that competent lawyers of good reputation would be able to certify to the validity of the bonds.”

Even if this be taken as a correct statement of the law, it falls far short of saying that there must be read into the contract a provision that the purchaser need not accept the bonds unless they are approved by an attorney of his own selection. Such a holding would result in allowing every bond purchaser to either accept or reject the bonds he had bought, at pleasure, for it would be easy to secure an adverse opinion upon any issue.

As we understand plaintiffs’ position, they do not now claim that the refused bonds were illegally issued, but that the local act already referred to impaired the security and prevented Bay county on October 1, 1903, from giving to plaintiffs exactly the bonds contracted for.

This contention we think untenable. The county of Bay, at a time when Gibson township was a part thereof, duly authorized the issue, and it was not within the power of the legislature thereafter to pass any act which would relieve any portion of the territory affected by the proposed issue without making due provision for the same.

Plaintiffs concede that, if the bonds had been actually legally issued, the legislature could not pass a law which would invalidate the issue or impair the security, but contend that a different rule should be applied where the bonds are authorized but not issued. This distinction, we think, should not be made. Changes in the physical boundaries of municipal corporations are frequently made, and endless confusion would result if such a change should be permitted to invalidate proceedings duly and legally taken to authorize an issue of bonds covering the territory as it existed during the taking of those proceedings and prior to the change. 1 Abbott on Municipal Corporations, § 204.

In the case at bar the attempted legislation was abortive and was so held by the Supreme Court in March, 1905, before the 160,000 of bonds were resold, so that plaintiffs could have carried out their contract with perfect safety had they so chosen. But, even if the legislation had been held constitutional, it would have afforded plaintiffs no reason for refusing to accept the bonds.

In that event, and in the absence of any clause in the act of segregation providing for the care of the proposed authorized issue, the township of Gibson would have remained liable, and plaintiffs’ security would have been unchanged.

"We are of opinion that defendant was entitled to a directed verdict in its favor for #136.74.

The judgment is reversed, and a new trial ordered.

Bird, Moore, McAlvay, and Blair, JJ., concurred.

        Bay County Supervisors v. Edmunds, 189 Mich. 466.


author: Stone, J.

text:
    KENDRICK v. HOCHRADEL.
    1. Sales — Statute of Frauds — Delivery and Acceptance — Principal and Agent.
    In an action for the purchase price of a horse, upon evidence, although contradicted, showing that defendant and his agent went to plaintiff to purchase two horses, that plaintiff’s , horses were unbroken, and plaintiff’s agent refused to halter-break the animals before selling, that defendant stated his agent would take charge of and break them, and he selected two which were examined by defendant who expressed himself as satisfied, that defendant’s agent under his direction bought a rope, made halters, and, catching one of the horses, attached the halter to its neck and led it into the highway where it fell and broke its neck, it was proper to refuse to direct a verdict for defendant because there was evidence of delivery and acceptance, although the price had not been paid.
    2. Same.
    It is well settled that a delivery of a part of the property satisfies the statute of frauds.
    3. Same — Principal and Agent — Instructions to Jury.
    Nor did the court, in leaving to the jury the question of agency, commit any error in charging that they might consider the instructions, if any, given by defendant to his alleged agent relative to the horse, or any claimed ratification of his acts done in defendant’s presence, or whether defendant brought him there to assist in taking charge of the horses, or in breaking them.
    Error to Wexford; Lamb, J.
    Submitted June 19, 1911.
    (Docket No. 92.)
    Decided October 2, 1911.
    Assumpsit by Eugene 0. Kendrick against Charles Hochradel for the purchase price of a horse. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John J. Tweddle, for appellant.

      Gaffney & Miltner, for appellee.
   Stone, J.

This is an action of assumpsit for the purchase price of a horse which the plaintiff claims to have sold and delivered to the defendant. The facts in the case are much in dispute. The plaintiff claims that on September 7, 1909, the defendant came to the village of Mesick to buy a team of western horses from the plaintiff, and that, not knowing a great deal about horses, or at least desiring the assistance of some one, the defendant brought with him one Newman, to pick out and take charge of such horses as he might purchase; that defendant and Newman, with others, went with the agent of the plaintiff, one Brown, to the yard of the plaintiff, where a number of plaintiff’s horses were; that defendant and Newman selected two horses; that something was said about halter-breaking the horses, which were wild; that plaintiff’s said agent stated that he would not halter-break them, and that they were to be sold right there in the yard, and all that he would do was to rope them; that defendant replied that it would be just as well, as he had brought Mr. Newman along to break the horses, and that he (Newman) would take charge of them from the start.

The horses selected were a bay and a black. The price of the former was fixed at $90, and that of the latter $80. Plaintiff claims that the two horses were separated from the others and put in a pen by themselves, and were examined by the defendant and Newman, who expressed themselves as satisfied with the horses; that Mr. Newman, under the direction of the defendant, bought a rope, from •which halters were made, with which to lead the horses; that the bay horse was caught by the plaintiff’s agent, assisted by others; one of the halters was put upon the bay horse, which was taken charge of by Newman, in the presence of the defendant; that the defendant opened the gate leading to the highway, and Newman drove the horse (while holding the halter attached to the horse) into the highway, where the horse reared and fell, breaking his neck, which caused his death. It was the claim of the plaintiff upon the trial that in taking charge of the horse Newman was acting for, and as the agent of, the defendant, and that the defendant understood that the horses were to be delivered to him there in the yard, and that in so taking charge of the horse by his said agent the horse became the property of the defendant; that there was a delivery and acceptance of the horse; and that the risk of loss and duty of payment fell upon the defendant.

The claim of the defendant was that the horse was not delivered to him, or to any person for him, and that neither he, nor any one for him, ever accepted the horse. He further claimed that he was not to take the horse, or to pay for it, until it had been halter-broken, and that the sole and only purpose of putting the rope on the horse was to break it to the halter. There was a sharp conflict in the testimony, and numerous witnesses were examined whose testimony tended to support the respective claims of the parties.

At the close of the plaintiff’s case, the defendant moved for a directed verdict in his favor, upon the ground that, because of the statute of frauds, the plaintiff had not made a case, in that he had not proven a delivery and acceptance of part of the property sold. The trial judge was of the opinion that there was testimony in the case to go to the jury upon both of the questions as to whether there was a delivery and an acceptance. The trial proceeded and resulted in a verdict and judgment for the plaintiff for the value of the bay horse. The defendant has brought the case here upon bill of exceptions, and there are 13 assignments of error.

The first, second, and twelfth assignments of error relate to the refusal of the court to direct a verdict for the defendant. We are of opinion that there was no error of the court in its ruling upon that branch of the case. The third, fourth, and fifth assignments of error complain of rulings in the admission of testimony. It is sufficient to say that we find no error here.

The sixth assignment of error relates to the charge of the court, in this: After stating the plaintiff’s claim, the court said:

If you find by a fair preponderance of the evidence that the facts as above outlined are these, then your verdict will be for the plaintiff in the sum of $90. There has been some testimony that this was to be the sale of two horses, but I charge you, as matter of law, that if the bay horse was selected and delivered to Mr. Hochradel, and that after coming into his possession, by himself or through his agent, a loss was sustained, that loss would be Mr. Hochradel’s loss, and the horse would be his horse, notwithstanding the fact that the two horses were not delivered. In other words, the delivery and acceptance of this part binds Mr. Hochradel to pay the price of so much as was delivered and accepted, if you find there was a delivery and an acceptance of the horse by Mr. Hochradel.”

It is well settled that a delivery of a part of the goods satisfies the statute. If the testimony of the plaintiff’s agent and that of his other witnesses was true, there was a delivery and acceptance of the horse, and thus the case would be taken out of the operation of the statute of frauds, and, whether true or not, was a question for the jury, and was properly submitted. The following cases are in point: Alderton v. Buchoz, 3 Mich. 322; Whaley v. Gale, 48 Mich. 193 (13 N. W. 33); Rasch v. Bissell, 52 Mich. 455 (18 N. W. 316); Richards v. Burroughs, 62 Mich. 117 (28 N. W. 755); Harris Photographic Supply Co. v. Fisher, 81 Mich. 136 (45 N. W. 661); Toohey v. Plummer, 65 Mich. 688 (32 N W. 897). We find no error in this part of the charge. Lobdell v. Horton, 71 Mich. 681 (40 N. W. 28).

The seventh and eighth assignments of error relate to the charge of the court upon the subject of agency, as follows:

“As to whether or not Mr. Newman was the agent of Mr. Hochradel, as the plaintiff claims, and acting for him, that is a question of fact which you are to determine from all the facts and circumstances in the case. The fact that Mr. Newman says that he was not the agent is not binding upon Mr. Kendrick. It is for you to say from the testimony whether Mr. Newman was in fact acting for Mr. Hochradel, either as agent or employé, and in passing upon this question it is your duty to take into consideration the instructions that Mr. Hochradel gave to Mr. Newman relative to the horse delivered at the time, if you find that he gave any instruction along that line. On the question of agency, you have a right to consider whether there is any testimony to show ratification — that is, the acceptance or acquiescence by Mr. Hochradel in what Mr. Newman did; that is, did Mr. Hochradel consent to the action in his behalf by Mr. Newman ? You have also a right in passing upon this question to consider whether there was an original authority; that is, whether Mr. Hochradel brought Mr. Newman there for the purpose of assisting him in taking charge of the horse in the yard, as has been testified to by the plaintiff. You have also the right to consider whether Mr. Hochradel held out to the world, and to Mr. Brown, that Mr. Newman was his agent, to do the things Mr. Newman did; that is, to take charge of and break the horse or take charge of the horse for Mr. Hochradel from the time the rope was given him in the yard there, as well as all other facts and circumstances in the case.”

In view of the testimony tending to support the plaintiff’s claim, we are of opinion that the question of agency was properly submitted to the jury. Wilkinson v. Spring Works, 73 Mich. 405 (41 N. W. 490); Hirschmann v. Railroad Co., 97 Mich. 384 (56 N. W. 842). The conduct and acts of Newman in the presence of the defendant, and apparently acquiesced in by the defendant, were certainly proper subjects for the jury to consider. There was testimony in the case tending to show that the minds of the parties met as to the terms of the sale. The acts of Newman, in the presence of the defendant, in taking charge of the bay horse and leading or driving it from the yard into the highway, if assented to by the defendant, were, in the law, the acts of the defendant, and it was proper for the jury to consider such acts and conduct as bearing upon the questions of delivery and acceptance.

Counsel for defendant contends that this was to be a cash sale when consummated, and that the deal with defendant could not be completed until plaintiff’s agent had delivered the goods and collected the money therefor. We do not think that this proposition is controlling here. In Harris Photographic Supply Co. v. Fisher, supra, there was a verbal agreement for the exchange of personal property exceeding $50 in value for real estate. The vendee received and accepted the goods, but refused to convey the real estate; the agreement not being in writing. It was held that the title of the personal property passed, and the vendor was allowed to recover its value. The court said:

But the claim of plaintiff is that there was part performance; that there was a delivery of goods to the defendant, which he accepted, — and the jury, under a fair submission, have found that to be so. This would take the case out of the statute of frauds.”

As we have already indicated, there was testimony to show that Newman was the agent of the defendant for the purpose of taking charge of the horse at the time of the claimed delivery and acceptance in the yard, and that defendant said that N ewman would take charge of the horse for him from the start. There was testimony to the effect that the sale was to be made when the horses were roped in the yard; that they were not to be halter-broken nor led out of the yard, but the purchaser was to take charge of them there. These claims of the plaintiff were all denied by the defendant, and the issue was fully and fairly submitted to the jury.

We have examined the assignments of error not here specifically referred to, and are of the opinion that there is no reversible error in the record, and that the judgment of the circuit court should be affirmed.

Moore, McAlvay, Brooke, and; Blair, JJ., concurred.


text:
    JOLLY v. MICHIGAN CENTRAL RAILROAD CO.
    Railroads — Negligence—Operation oe Trains — Signals—Side Tracks.
    Plaintiff’s declaration charged that he was injured by defendant’s employés who impelled a number of cars against certain standing freight cars behind which he was engaged in working on the side track of a mining company; that he was trying to move a loaded car between which and the standing cars he was working; that no signals or warning were given by the engine that was doing the switching and that defendant’s servants negligently handled the train. Prom the testimony it appeared that the train crew had no notice of plaintiff’s presence about the cars, that the conductor had switched in the standing cars a few minutes before, and saw no one working about the cars; that he set the brakes, blocked them, and the train temporarily left; that except for the use of unusual force, an element of negligence not counted on in the declaration, the train was operated in the usual manner. Plaintiff had actual notice of the presence of the train which he saw doing switching. Held, that no negligence averred by the declaration was proved.

      Error to Bay; Collins, J.
    Submitted June 19, 1911.
    (Docket No. 96.)
    Decided October 2, 1911.
    Case by Louis J oily against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Cooley & Hewitt (Humphrey, Grant & Baker, of counsel), for appellant.

      James Donnelly, for appellee.
   Blair, J.

This is an action on the case to recover damages for personal injuries suffered by the plaintiff, a general utility man in the employ of the Beaver Coal Mine Company, the owner of certain railroad tracks, which, at the time of the injuries, were being used by defendant.

The first count of the declaration alleges:

“ That in the handling and operation of its cars, trains, and locomotives, and in the conducting of its said railroad business upon and along said railroad line, and in the handling of its coal and freight cars and trains thereon, it became and was the legal duty of defendant to exercise due and reasonable care and caution at all times to avoid injury to plaintiff and others who might be lawfully upon said tracks or employed at said mine; and it was the legal duty of defendant not to back or run cars or trains down or in upon the track at said coal mine at and under the tipple of said mine without warning, notice, or signal to plaintiff and others who they knew, or had reason to believe, would or might have occasion to go over, or to be upon, said tracks at said point in doing their work, or in any other lawful manner. * * * That the locomotives of the defendant company, during all of the time plaintiff was employed at said coal mine, as just stated, backed the empty coal cars in over said railroad tracks, and would leave them blocked and standing on the track close to the tipple, at a distance usually of, to wit, eight to ten feet from the tipple, from which place they were taken by plaintiff and the other workmen and pushed or run under the tipple, when wanted to be loaded with coal. That this method of handling said cars, empty and loaded, by the locomotives and empíoyés of defendant and by the plaintiff and other workmen with him continued without change or variation during all of the time while plaintiff was employed at said coal mine, and up to the time of his injury, as hereafter stated. That defendant, its employés, and servants, in handling, running and backing its cars, trains, and locomotives on said track at and connecting with said coal mine, knew and were well aware that plaintiff with other workmen were engaged at work at and under the tipple of said mine. That defendant knew and ought to have known that plaintiff and other workmen with him were working upon the track close to the tipple upon which said empty cars were backed into said mine, and of the manner in which plaintiff had been doing his work, and that in this work it was necessary for plaintiff to go upon and across said railroad tracks at and near the tipple of the mine. * * *
“ Yet, notwithstanding the premises, plaintiff alleges that defendant totally and utterly failed and neglected its duty to plaintiff, in that, on, to wit, the 6th day of October, 1909, at or about the hour of 11 o’clock in the forenoon of said day, he was performing his work at the coal mine in the the usual way, as he previously had been doing. That defendant’s locomotive, operated and controlled by the employés and servants of defendant, had shortly, to wit, about a half hour previous to said time, backed in on the said railroad track which passed under the tipple of said mine a train of empty, flat coal cars, and had left said coal cars standing on said track just west of the tipple in the usual way, the east car of which was, to wit, eight feet from the car which plaintiff and other workmen were engaged in loading under the said tipple. That plaintiff and the other workmen were about to shift or run the loaded car east from under the tipple, said car having been loaded, and, because of the great weight of the said loaded car, plaintiff and the other workmen were obliged to use the hand or crow bar. That plaintiff stepped across the railroad track upon which the loaded car stood and close to the west end of said car to get the bar needed in moving the car, and, when plaintiff was in the act of returning from the south side of the track, whither he had gone to get the bar, to the north side of the track where he was going to use the bar in shifting the car, and, when he was in front of the bunker, or iron coupler of the loaded coal car, his attention being upon the work which he was doing, and while plaintiff was exercising all due and reasonable care and caution to avoid injury to himself, the locomotive steam engine of defendant, which was at the west or far end of the said flat cars, operated and controlled by its employés and servants, without any warning, signal, or notice of any kind whatever to plaintiff, wrongfully, negligently, and carelessly and unlawfully backed and forced said empty cars down against the • loaded car, which was on the same track under the tipple, when plaintiff did not see said cars and did not expect, and had no reason to expect, that said empty cars would be so backed down upon said track, and the bunker or coupling equipment of the east or nearest one of the said empty flat cars so backed down to and against the loaded car on said tracks caught plaintiff between the bunkers or coupling equipment of the said two cars.”

The second count is, for the most part, the same as the first; but, while the first count might be construed as alleging that the locomotive remained attached to the train until after the injury, the second count reasonably requires the construction that the locomotive, having left the six empty flat cars in the usual way and gone away, returned, after an interval of about thirty minutes, and backed them without warning. Considering the whole declaration, we agree with the construction placed upon it by defendant’s counsel, viz.:

“ The whole gist of the negligence charged in the declaration is that the defendant company brought in some cars and left them — went away — and then came back and shoved these cars down onto the plaintiff without notice or warning.”

There was testimony from one witness, though not very-satisfactory, that the six cars had been uncoupled from the train, and, from another witness, that the east car had been uncoupled before the plaintiff began his work. The case, however, appears to have been tried and submitted to the jury upon the theory that the locomotive continued attached to the entire train until after the injury to plaintiff, and we shall consider it upon that theory.

The real causes of the plaintiff’s injuries are stated in plaintiff’s brief, as follows:

“ There are two reasons for the injury to plaintiff, as appears from this record, and which clearly appears to have caused it; and under the testimony we submit that these two reasons combined to, and did, cause plaintiff’s injury. These causes were, first, the backing in of the -train too close to the tipple to permit the safe operation of cutting the highway; and, second, the act of the engineer who controlled the engine in driving back the train with too much force, in response to the conductor’s signal to cut the highway. Both of these causes were involved in and part of the work of operating and handling the trains and cars of defendant by its servants and employés; they constituted the negligent operation and management of the train and railroad business of the defendant upon the coal tracks leading into the coal mine.”

Plaintiff recovered judgment, and defendant brings the record to this court for review, insisting that the record discloses no negligence on the part of defendant, and conclusively convicts the plaintiff of contributory negligence.

At the time the train backed in, plaintiff was working south of the tipple, at work entirely different from that which he was doing when injured, and saw the train stop near the tipple. A slack coal car stood under the tipple, partly loaded, when the train backed in, but no one was then working on it, nor about the tracks. The conductor rode in on the first car from the tipple, set the brakes on two cars, and blocked the trucks of the third car, and, also, according to the brakeman, of the first car. After the train backed in, the manager, Mr. Walsh, directed plaintiff to get a couple of men and complete the loading of the slack coal car by shoveling the coal in that had spilled over the sides and ends of the car. Plaintiff testified that there was from four to five feet of space between the car they were working on and the east car of the train, which backed in from the west.

“Q• Did you see any of the men around the train of empty cars at any time during the time they were backed in there until the time you were injured ?
“A. No; no men.
“Q. That were working on the engine with the train of empty cars, the railroad men ? Did you see them ?
“ And then we wanted to shove the car ahead, and we have bars there to shove the car, so there was one alongside of us, and Mr. Hartley took the bar and tried to shift the car, and he could not do it. I says, ‘ Wait a minute. I will go on the other side and see if I can find a bar.’ * * * I went from the north side to the south side to look for the bar, and when I went across I could not find the bar. * * . * I crossed in a place four or five feet wide between the empty and loaded oars. When I went over to the south side of the track, I walked right through and looked for a bar, and there was no bar there, so 1 started back — back to the north side again. Coming back I got caught; that is where I got caught. * * * There was a block on the track against the wheel of the empty car. Before I was injured, I saw it. I did not notice when it was put there, but when I walked in there to do the work I seen it was put there. Every time they come down there they blocked the car and set the brakes. I noticed the brakes were on this day.
“A. No. * * * Before I started to work around there, I got under the car to see if the brake was set and if the car was blocked. I was taking particular pains to find out if the car was blocked, because I was going to work. I was hired to work. * * *
‘‘Q. Mr. Jolly, how long had you been working, doing this same kind of work, loading into those cars — the flats ?
“A. Well, I have been working there — I was working from the 10th of July, as I told you, until the 6th of October ; that is the day I was hurt.
“Q. How many times during the time you worked there did you load slack into the car ?
“A. Oh, a few times, three or four times, maybe; I don’t know exactly how many times. I did not count up the times I helped; we did not keep any book to tell how many times. * * * When these cars came in there first, I paid no attention to them. I was busy working, and I didn’t pay no attention at that time. I did not see whether there was any man around them, or whether there was not.
“ Q. You paid no attention to the engine ?
“A. I did not pay no attention to them at all. I was right in front of the tipple. I did not pay no attention at all. I did not know what they was going to do with them in the first place.
“Q. Didn’t know whether they had placed them where they intended to leave them, or whether they had not ?
(‘A. No; I did not know anything about it.
“Q. You did not know whether they were going to move them again, or whether they were not ?
“A. When they left them there; yes. But when they first came in I didn’t know what they wanted to do with them. I did not see the engine when I went between the cars. I did not know whether it was gone or not. It was supposed to be gone. I did not run up ahead to find out whether it was unhitched or not.
“Q. You did not do anything to find out, did you ?
(lA. I seen it was fast there; calculated to stay there. It was blocked up and everything like that like they used to do when they came in there.
liQ. Did you do anything to find out whether the engine had left or whether it had not ?
“A. No; I did not.”

The track descended from the west, and when the train was stopped the slack ran out, and it was necessary to back it again to uncouple the six cars which were to be left. Just as plaintiff was returning from the south side, the conductor gave the signal, and the engine backed the car with sufficient force to overcome the resistance of the brakes and blocks, and move the car the short distance necessary to catch plaintiff. There is no evidence in the record of any custom of giving signals by defendant’s employés when placing the empty cars; but the evidence negatives any such custom, and is clearly to the effect that the work was done in the same way on the day of the accident as it was usually done, except that the east car was placed closer to the tipple than usual, and, perhaps, that the train was moved with greater force, in which respects the declaration makes no averment of negligence, The plaintiff had actual notice of the presence of the train from seeing it come in, and, so far as this record discloses, no other notice was ever given or required. The trainmen had no actual notice that men were working about the car or on the tracks, but, on the contrary, the conductor saw that no one was working there when he backed in, and plaintiff testified that this was actually the fact. The train was handled in the usual way, and, if the trainmen were guilty of negligence, it was not because of failure to give notice by signals or otherwise, but because of other acts of negligence not counted upon in the declaration. We are of the opinion that no negligent acts on the part of defendant, within the declaration, were established, and its motion for a directed verdict should have been granted.

The judgment is reversed, and a new trial granted.

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


author: Moore, J.

text:
    MARAB v. WESTERN UNION TELEGRAPH CO.
    1. Telegraphs and Telephones — Transfer of Money — Negligence — Delivery—Identification.
    In an action against a telegraph company for money received to transmit to a third person, to whom defendant did not deliver the funds, the question of negligence was for the jury upon evidence showing that plaintiff received a telegram from one Saida Abda, a woman, asking for money; that plaintiff went to the telegraph office, and, being unable to write English, the clerk filled out a blank; that without asking plaintiff whether the addressee was a man or woman, the clerk wrote in the name as it appeared on the telegram, and signed with plaintiff’s name a blank clause in the order waiving identification; that the money was paid to the sender of the request for money who was a man and who fraudulently furnished evidence of his identity as Saida Abda.
    3. Same — Evidence—Cross-Examination.
    It was not error to permit plaintiff’s counsel to show, on cross-examination of defendant’s clerk, that the application blank filled out for plaintiff by the clerk contained on its face instructions, where practicable, to prefix Mrs. or Miss to the name of a female addressee, the evidence showing that the receiving office paid the money to the party claiming it, assuming that the payee was a man.
    Error to Wayne; Murfin, J.
    Submitted June 19, 1911.
    (Docket No. 102.)
    Decided October 2, 1911.
    Assumpsit by John Marab against the Western Union Telegraph Company for money had and received. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leeie & Joslyn {Benjamin 8. Pagel, of counsel), for appellant.

      Joseph T. Schiappacasse, for appellee.
   Moore, J.

This case was tried before a jury, which returned a verdict in favor of the plaintiff in the sum of $105.50. The case is brought here by writ of error.

There is not very much dispute about the facts. Mention will be made of the disputed facts later. The plaintiff is a Syrian, living in Detroit. He was acquainted with Mrs. Saida Abda, who was a native of the same town in Syria from which plaintiff came. Mrs. Abda was a resident of Detroit, and received a telegram, notifying her that her daughter was held on Ellis Island, N. Y. Mrs. Abda went to New York, and arrived at a hotel kept by a Syrian about midnight. She there made the acquaintance of another Syrian, who said he would go with her to Ellis Island. She showed him the telegram she had received, and let him take it. He kept the telegram, and went to a telegraph office and telegraphed plaintiff a request for $100, and signed the telegram “Saida Abda.” The plaintiff received the telegram, and, thinking it was from Mrs. Abda, went to the telegraph office to send her the money. He does not speak or read English. He took the telegram to the office, and showed it to the agent of the telegraph company.

The record shows as follows:

“ Clement A. Hardy, sworn on behalf of the defendant, testified as follows: I am in the employ of the Western Union Telegraph Company. Was a transfer clerk of that company in October, 1909. Mr. Marab presented himself at my window to transfer some money to New York.
“Q. Will you tell us what took place at that time ?
“A. He laid the telegram down on the counter, which read to wire $100 to New York. I asked him if he could write, and he said, ‘No,’ so I filled out the order for him. I asked him if the party was a stranger at New York City, and he said, ‘Yes.’ I then filled out the application for him, and gave him a receipt for the money.
“Q. Is that the application? [Showing paper to witness.]
“A. That is the application. That was copied from his telegram.”

The Western Union Telegraph Company Incorporated

Robert C. Clowry, Prest, and Geni. Mgr.

Domestic Transfer Order

If after the receipt of this domestic order at the paying office, payment cannot be made within 72 hours (exclusive of Sundays and holidays), the order will be canceled and refund made to the sender.

No. 143 Detroit Mich., Oct. 21, 1909.

The Western Union Telegraph Company

Pay to Saida Abda, A T 20 rom M. P. office, Care Western Union Tel. Co., New York, N. Y. One hundred and -jfyV Dollars.

(The address should be full and clear. If to a woman, give prefix Mrs. or Miss, if practicable.)

Signature: Mr. John Marab.

Address: 65 E. Atwater St.

(C) As the above-named payee may not be able to produce positive evidence of personal identity, I hereby authorize and direct the Western Union Telegraph Company to pay the sum named in this order, at my risk, to such person as the Telegraph Company’s Agent believes to be the above-named payee.

Signature: Mr. John Marab.

Note — Should the sender of the transfer prefer that the payee he required to produce the necessary evidence of his identity, he should sign the following:

(V) The undersigned directs that the above amount be paid only on the production by the payee of positive evidence of personal identity.

Signature.........................................

“Q. Did you receive the sum of $100 at that time ?
“A. I did. The receipt which has been read in evidence was the receipt I gave him for the $100.”

Cross-examination:

“ I have told you now everything that transpired between me and Mr. Marab, as far as I know. This is a copy of one of our order blanks [blank shown witness], and an exact copy of the order blank I used at that time. I filled it out right in front of him, but he never had possession of it that I know of; in fact, I signed his name. The signature on the order blank is not Marab’s signature.
“Q. Did you say anything to him about any rule of the company P
“A. No; I did not.
“Q. You knew that he could not write ?
“JL Yes.
Q. He told you that ?
“A. Yes. * * *
“Q. You did not ask Mr. Marab whether this consignee of the money was a man or a woman ?
“A. No; I did not. I took it from the telegram.
CtQ. You did not ask him ?
“A. No.
Q. You know that the company prints a caution on this very order that you had possession of, and which you did not show or read or give possession of to Mr. Marab, a caution, ‘ if the order is to a woman, prefix Mrs. or Miss should be given, if practicable.’
Mr. Pagel: I object to the answer being taken to that question. (Objection overruled. Defendant excepts.)
ilQ. You knew at that time that that was printed on there ?
“A. Yes; I did.”

The plaintiff in his testimony denies that he told the agent that Saida Abda was a stranger in New York, and testified on the cross-examination that the agent did not ask him. The receipt referred to is as follows:

“10/21/1909.
“Received of Mr. John Marab, one hundred and dollars to be paid to Saida Abda at New York, subject to the terms and conditions of transfer order of this date.
“C. H. Chadwallader,
“Manager.
“Charges paid $1.80.”

The agent telegraphed the money to New York, and it was paid to the man who sent the telegram; he being first required to bring a letter from the hotel keeper and from the operator who transmitted his message.

Part of the record is as follows:

‘A. Before I paid the money, I gave him a receipt to sign, and he signed ‘ Sada Abda,’ and he said there’s two ways of writing the name, and I had him sign ‘ Saida Abda ’ underneath the first signature. The payment was made October 21, 12:55; and the document I hold in my hand is the original receipt, signed in my presence, when the money was paid.”
“ Receipt offered in evidence, and marked ‘ Defendant’s Exhibit G,’ and reads as follows:
“ ‘Oct. 21, 1909.
“ ‘$100.00.
“ ‘Received of the Western Union Telegraph Co. (Incorporated) one hundred 00/100 dollars, in payment of money transfer made by said company, from John Marab, Detroit, Mich., to me.
“ ‘Sada Abda..
“ ‘Saida Abda.
‘“Oct. 21/09, 12:55.
“ ‘ Letter Introduction, eto.’ ”

When Mrs. Abda returned to Detroit, it was learned she had not sent for any money. Demand was made on defendant company. The demand was refused, and this litigation followed.

In his charge to the jury, the court said in part:

“ The primary inquiry before you is, under the facts and the law, as I shall give it to you, as to who is going to lose apparently $i00. In order that the defendant company that is sued in this action be held liable for the loss of this money, it is incumbent, gentlemen of the jury, upon the plaintiff to show that they have been guilty of negligence, through their officers, servants, and agents, in handling the transaction complained of here. They are not held, gentlemen of the jury, in the ordinary method of doing business, to any higher degree of care than ordinary care. Any other rule of law would undoubtedly handicap and embarrass business, which nowadays moves, as we all know, at a fairly rapid rate. A telegraph company — all telegraph service — serves a proper and useful purpose in modern industrial life; and I do not believe any rule of law that would handicap them in giving the service which they are intended and designed to give would be proper rule of law. But, gentlemen of the jury, in handling a transaction, such as the transaction that has been detailed before you, they are bound to use ordinary care, and if they neglect that then they are liable. So, it will be your problem, gentlemen of the jury, in the light of the facts as they have been detailed before you, to ascertain and determine whether or not they, through any of their servants or agents, neglected to exercise that degree of care which an ordinarily careful and prudent person would be expected to exercise, in the light of all the circumstances, for the purpose of avoiding any mistake such as occurred here. If they neglected that duty, then they are liable. If they did not neglect that duty, then they are not liable. Now that you have heard the testimony in this case, and, as I said before, it is not in serious conflict, and it is for you to say, in the light of all the facts and circumstances as detailed before you in this lawsuit, whether they neglected to exercise that degree of care which an ordinarily careful and prudent person would be expected to exercise, in the light of those circumstances, for the purpose of avoiding any mistake.
“In this case, gentlemen, as in all cases in this description, the burden of proving negligence on the part of the defendant company is upon the plaintiff. That means that he must make out his case before you by a fair preponderance of evidence. That does not necessarily mean that he must produce before you the greater number of witnesses; but he must produce before you such testimony as satisfies your minds that he has the right of the case. If he has done that, then he has sustained the burden of proof that the law expects. Your verdict in this case, gentlemen of the jury, will be one of the two things. It will either be, no cause of action, or it will be in the sum of $105.50; $5.50 representing the agreed interest computation, which counsel have agreed is a correct computation. So that your verdict will be either for the. plaintiff in the sum of $105.50, or it will be for the defendant, no cause of action.”

One of defendant’s requests to charge was for a directed verdict. Some of the others were as to the degree of care required on the part of the defendant.

Counsel in their brief say:

Telegraph companies are not guarantors of the correct receipt and transmission of messages. * * * Actions for misrepresentations of messages through negligence rest upon the duty to exercise care to tell the truth, upon the breach of that duty, upon reliance upon the misrepresentation, and upon resultant injury.” Western Union Telegraph Co. v. Schriver, 141 Fed. 547, 72 C. C. A. 605 (4 L. R. A. [N. S] 678).

They also cite Bank of Havelock v. Telegraph Co., 141 Fed. 530, 72 C. C. A. 580 (4 L. R. A. [N. S.] 181). In the last-named case, it was held that no such negligence had been shown as to establish liability. In the first-named case, in the opinion from which counsel quote, appears the following in the headnote:

The rule that, where one of two innocent parties must suffer from the fraud of a third, he who furnishes the means to commit it must bear the loss, is limited in its application to cases in which the party chargeable makes the third party his real or apparent agent, cases in which he provides the means intentionally, or for a dishonest purpose or negligently, and cases in which he derives a benefit from the fraud of the third party. It does not govern the great majority of cases, where one innocently, for an honest purpose and with reasonable care, furnishes to a third party the means by which he perpetrates a fraud, from which he who provides the means derives no benefit.”

In the case of Western Union Telegraph Co. v. Totten, et al., 141 Fed. 533, 72 C. C. A. 591, appears this language:

“ In this state of the case, the question whether or not the operator at Denison exercised reasonable care to receive and transmit genuine and authorized messages only was for the jury, and the motion to direct the return of a verdict for the defendant, upon the ground that there was no substantial evidence of its negligence, was properly denied. A consideration of the reasons and a review of the authorities pertinent to the question has led to the conclusion that the legal measure of reasonable care in cases of this kind is expressed in these rules: In the absence of notice of facts or circumstances which would awaken inquiry and arouse suspicion in the mind of a person of ordinary prudence and intelligence in a like situation, regarding the authority to send it of the party who presents a message for transmission, the exercise by a telegraph company and its operators of reasonable care to receive and transmit genuine and authorized messages only does not require them to investigate or ascertain the identity, or authority to send it, of the person who tenders a message for transmission, whether that message is in writing, or is spoken directly to the operator, or is communicated to him by telephone. But when such facts or circumstances come to the notice of the company, or of its acting operator, the exercise of reasonable care to transmit genuine and authorized messages only requires the party who receives the notice to investigate and ascertain the authority of the sender, before transmitting the message, or to communicate the facts and circumstances and the inquiry or suspicion to the addressee at or before its delivery. Bank of Havelock v. Western Union Telegraph Co., 141 Fed. 522 [72 C. C. A. 580, 4 L. R. A. (N. S.) 181].
“ The facts that the telegrams in this case were for the benefit of Barnes, and promised the payment of his checks for considerable amounts of money by the Bank of Denison, and that the operator knew thát they were communicated to him in the name of the bank, either by their beneficiary or by the cashier of the apparent obligor in them, and that he did not know which one spoke them to him, constitute substantial evidence for the consideration of a jury, upon the question whether or not these facts, and all other pertinent facts and circumstances of this case would have awakened inquiry and aroused suspicion in the mind of a person of ordinary prudence and intelligence in a like situation regarding the identity and the authority to send them of the party who presented these messages. Elwood v. Western Union Tel. Co., 45 N. Y. 549, 556 (6 Am. Rep. 140). It may be that the presentation for transmission of a message in the name of a bank, which may charge it with liability for a considerable sum of money by one for whose benefit it is evidently sent, would naturally raise a suspicion and awaken inquiry in the mind of a reasonably prudent man as to his authority. And if he knew that such a message was spoken to him over the telephone, by either the cashier of the bank or its beneficiary, it may be that it would cause him to inquire into the identity of the sender. There was sufficient evidence here to warrant the submission to the jury of the question whether or not the telegraph operator exercised reasonable care in the receipt and transmission of these messages.”

Counsel cite and rely upon the case of Western Union Telegraph Co. v. Mayer, 61 Ala. 158 (32 Am. Rep. 1). In that case the opinion concludes as follows:

“ My Brothers think that, where there is nothing to create suspicion in the minds of the company’s agents, it is for the party on whom the demand is made to ascertain for himself whether he who ma,kes it is the person he professes to be, and that the company has no right to refuse payment of the money to him, in reply to whose message the order to pay it is sent. I was strongly inclined to the other conclusion. But the case is a new one, and I defer to their opinion.”

The court consisted of three judges at that time. The case can be distinguished from the case at bar in this: It does not appear that the agent of the company filled out the order, or that knowledge was possessed by the agent of the company that was not also possessed by the agent of the person sending the money.

This brings us to another question. We again quote from the brief of counsel:

“It was error of the most prejudicial kind to permit plaintiff’s counsel to show by defendant’s witness that the application blank of defendant, used by plaintiff in this case, among other things, contained an instruction to the company’s employés to the effect that, ‘ if the order is to a woman, the prefix Mrs. or Miss should be given, if possible.’ The reasons are fully set forth in the well-considered opinion in Fonda v. Railway Co., 71 Minn. 438 [74 N. W. 166, 70 Am. St. Rep. 341].”

There are several answers to this contention:

First. The instruction to the employés of the company was contained on the face of the order defendant introduced in evidence.

Second. It was proper cross-examination.

Third. Defendant introduced in evidence the testimony of Mr. Carley, its general transfer agent at 195 Broadway, N. Y., who testified in part as follows:

“ There was nothing in the order to indicate that the payee was a woman; hence the assumption that it was a man. Where a transfer is sent to a woman, the transmitter makes it known that it is for a female, in which case Miss or Mrs. always goes in the order; and the fact that Miss or Mrs. was not used in the transfer was, of itself, an indication that the money was payable to a man. On that occasion caution was used, under the circumstances, to satisfy us that the person who came for the money was Saida Abda, for whom it was intended. The documents that have already been read into the record, and identified as defendant’s exhibits, are those that were presented on that occasion.”

We have a case, then, where it appears that one, not familiar with the English language, desired to transmit a sum of money to a woman. The agent, without asking questions and relying upon a telegram purporting to be signed by a woman, for it appears that Saida Abda is a woman, filled out an order without indicating it was to be paid to a woman, and without asking the person applying for the order whether it was to be sent to a woman. It also appears that he was familiar with the instruction to the employes, and had it before him, and that plaintiff had no knowledge of this instruction. We think the record discloses facts justifying the jury in finding negligence.

Error is assigned upon the failure to give defendant’s requests to charge. So far as these requests were proper to he given, they were covered by the general charge.

The judgment is affirmed.

Mo Alva y, Brooke, Blair, and Stone, JJ., concurred.