author: McAlvay, C. J.

text:
    COX v. KLEIN.

    1. Assault and Battery — Civil Liability — Action—Evidence.
    In an action for an assault and battery, committed while defendants were attempting to retake cattle which had been impounded by plaintiff’s husband, defendants were not entitled to show facts from which it could be inferred that the cattle were let into the husband’s enclosure, and were therefore not trespassing when impounded, unless such facts were connected with the husband.
    2. Same — Instructions—Sufficiency.
    An instruction that plaintiff could not recover unless the cattle were trespassing in the husband’s field at the time they were impounded, and were not put there by the husband, was sufficiently favorable to defendant.
    3. Same — Appeal—Assignments of Error — Necessity.
    Whether the court erred in calling the attention of the jury to the statute that allows the plaintiff in assault and battery no more costs than damages will not be considered where no error is assigned upon the instruction.
    4. Appeal and Error — Questions Considered — Costs—Retaxation.
    Questions arising on the retaxation of the costs before the circuit judge are no part of the record brought to this court on writ of error to review the judgment, and cannot be considered on such review.
    Error to Oakland; Smith, J.
    Submitted April 20, 1906.
    (Docket No. 118.)
    Decided July 13, 1907.
    Trespass vi et armis by Gertrude Cox against Frederick J. Klein and Thomas Foley. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Patterson & Patterson (Samuel T. Douglas, of counsel), for appellants.

      Fred M. Bond and John M. Feier, for appellee.

       Rehearing denied October 4, 1907.

   McAlvay, C. J.

Plaintiff recovered against defendants for damages for injuries claimed to have been received by her on account of an alleged assault and battery by the defendants. The parties to this controversy own farms in Oakland county. The Cox place adjoins that of defendant Klein on the west, with a highway running north and south between them. Defendant Foley is the foreman on Klein’s farm. Some of Klein’s cattle had been shut up by Cox in a yard back of his barnyard, under the claim that they had broken into his oat field. Defendant Klein claimed that the cattle had been let out of his pasture and impounded by Cox, in pursuance of a threat to do so to get even with him, and to force the collection of a disputed claim of $2. Defendants and three hired men of Klein came to get the cattle, and a dispute ensued in regard to the matter, in which Cox, who had a gun, threatened to shoot; and during the dispute, and while defendants were attempting to open a gate to the yard, plaintiff claims she was injured by defendants. She claims that she was holding the gate to prevent its being opened, having one arm around the gate post and the other through the gate, in which position her arm was injured by defendants in swaying the gate, and that she had then let go the post and grasped the gate about the middle to hold it, and defendant Foley scratched her fingers in attempting to break her hold, and that the gate was pushed or fell over on her. The dispute about the cattle was settled and paid by Klein, but for some reason broke out again when they were taking the cattle into the highway. Cox threw a stone, hitting one of the men in the back, and blows were exchanged before the men separated. These are the circumstances, briefly stated, which occurred on the occasion of the claimed injury. Plaintiff was present, and an active participant with her husband in attempting to restrain the cattle. The case was tried twice in the circuit court. Upon the second trial plaintiff recovered a judgment. It will not be necessary to consider all of the numerous assignments of error upon which defendants claim the case should be reversed.

Defendants contend that the trial court erred in excluding testimony offered in support of their defense that plaintiff’s husband opened or procured the opening of Klein’s fences, and wrongfully took his cattle. The ruling of which complaint is made came about in this way. A hired man, a witness for defendants, was on the stand. He was asked by counsel for defendants:

“Q• Did you look to see if any of Klein’s fences were down ?

“A. He told' me to see if he had something broken or not. I go see, and find nothing broken, and all the gates closed.

“Mr. Bond: I object to all this class of testimony as incompetent and immaterial.

“Mr. Patterson: I think it is material for this reason: We have the threats of this man.

“The Court: On your theory of the case or your claim based on the testimony that you expect to introduce, that Mr. Cox actually took the cattle out of Klein’s field and put them into his oats for the purpose of this suit ?

“Mr. Patterson: That is our theory.

“The Court: Does Klein expect to testify to anything of that sort ?

“Mr. Patterson: He expects to testify to enough facts to warrant this jury in concluding that this is true.

“The Court: That he actually let Klein’s fences down ?

“Mr. Patterson: Let the fences down or somebody opened the gate, but we have no direct proof that Cox opened the gate and took the cattle out, but we have some evidence upon which the jury could conclude somebody did.

“The Court: Unless you can connect Mr. Cox with it, I think I ought to exclude the testimony. Exception for defendant.

‘ ‘ Q. Did you look at these fences and gates in that pas-: ture while the cattle were still up to Mr. Cox’s ?

“A. Yes, sir.

Q. Did Cox tell you where Klein’s cattle got into the field ?

“A. He told me so.

“ Q. Where did he tell you they got into his field ?

“A. Eight on the corner of Mr. Cox’s field. He said the cattle had got in there.

Q. Did you look at the corner where Mr. Cox said the cattle got into his field to see if you could find any tracks ?

“A. Yes, sir. I could not.find any tracks.

“ Q. How soon after you got the cattle back from Cox’s did you look to see if you could see the tracks ?

“A. On the same day, same time.

“ Q. What is the fact as to whether there would have been tracks if the cattle had got in there where Cox said they did ?

“A. This place there is. a little wet because there is a hole there. It is always wet, and, if the cattle had gone in there, they would have left tracks.”

It will be perceived that the question asked the witness had been answered. It does not appear that any testimony offered was excluded. The suggestion concerning what it was expected to prove was met by a proper reply.

Counsel for defendants asked the court to charge the jury as follows:

“ If you find from all the evidence and circumstances of the case that Cox impounded Klein’s cattle because and in pursuance of a threat to do so made to Klein the same day, for the purpose of collecting an account he claimed to have against Klein, and not because of any trespass by the cattle or damage done by them, then Mr. Cox had no right to hold the cattle when Mr. Klein demanded them.”

It was given with the following addition and explanation :

“ I give that upon the understanding or theory that Cox shut the cattle up himself — i. e., if they never went ■ into the oat field themselves, but thát Cox because of his threat for the purpose of collecting a debt shut the cattle up himself — then, of course, he would not have any right to hold them, and Mr. Klein could take them. But if Mr. Patterson, defendants’ counsel, means by that, that even if the cattle went into the oats themselves so that they were trespassers, cattle running at large and went there themselves, then Mrs. Cox cannot recover because Mr. Klein [Cox ?] had a hatred or ill feeling growing out of the controversy that arose in the morning, I do not agree with him. The request means this: If Cox through hatred or ill feeling growing out of the trouble in the morning shut the cattle up himself, took them from the road himself, then he could not hold them in that way. If the cattle were in the road, he could not shut them up merely on that account, but he did have a right to impound them, provided they went into the oat field themselves, or if he got the cattle out of Klein’s field, although there is no evidence to warrant that, or if they were running in the road and came along in front of the premises, and he shut them up on account of that threat to make Klein trouble, he must take his chances of Klein rescuing them by force as far as this case is concerned, although it might have been better to have replevined them. For the purposes of this case, I charge you that Mr. Cox could not prevent Klein going there and taking them by force.”

It is claimed that the court erred in giving this request with the above additions and explanations. In other portions of his charge the court said to the jury that plaintiff could not recover unless the cattle were trespassing in the oat field, and were not put there by Cox. This was sufficiently favorable to defendants.

As to other errors assigned upon the rulings of the court upon admission of evidence, we do not consider them of sufficient importance for extended notice.' Testimony was allowed which was immaterial to the issue, but was of minor importance, and, standing alone, not sufficiently prejudicial to warrant reversal.

In the brief for defendant Klein it is urged that the court erred in calling the attention of the jury to the statute which provides that, in actions for damages for assault and battery, the plaintiff can recover no more costs than damages. This portion of the charge occupies more than a page of the printed record. As there is no error assigned upon this, the question is not before us for decision.

Defendants assign error upon the questions of retaxation of costs by the circuit judge. Such questions cannot be considered or raised in this manner. They are no proper part of the record brought to this court on writ of error to review a judgment. Moore v. Daiber, 92 Mich. 402.

It is unnecessary to consider other errors assigned.

The judgment is affirmed.

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


source: Caselaw Access Project

author: McAlvay, C. J. Hooker, J. Ostrander, J.

license: Public Domain

text:
    PIERSON v. ILLINOIS CENTRAL RAILROAD CO.
    1. Evidence — Admissibility—Conclusion op Witness.
    In an action against a carrier for wrongful ejection of plaintiff from defendant’s passenger train, a statement by plaintiff, after testifying that as he was sitting in his seat he was seized by the conductor, who proceeded to drag him out, “I was in no position to meet any such assault, for that reason I resisted as long as I could,” is not objeotionable as a conclusion.
    2. Trial — Reception op Evidence — Striking Out — Prejudice-Necessity op Requests por Instructions.
    The receipt, over objection and exception, of immaterial evidence, which is stricken out as soon as its immateriality develops, is not erroneous where no request is made for an instruction upon the matter.
    3. Evidence — Experts—Exclusion—Harmless Error.
    The exclusion of proper questions propounded to an expert witness is not prejudicial where the inquiry is pursued in another form of questions and the information secured.
    4. Saving Questions por Review — Arguments op Counsel — Necessity op Objection and Ruling.
    Assignments of error based upon the argument of counsel will not be reviewed where the record does not show that objection was made at the time and ruled upon by the court.

      5. Carriers — Passengers—Ejection—Damages.
    Where a passenger, presenting a ticket requiring him to identify himself as the purchaser upon request, and providing that any claim for damages in consequence of a hona fide mistake of a conductor in rejecting proofs of identity shall be limited to the price paid for the ticket, is wrongfully ejected by a conductor not acting in good faith, he is entitled to substantial damages, and is not limited in his recovery to the price paid for the ticket.
    6. Same — Instructions—Issues.
    In an action against a carrier for wrongful ejection of a passenger presenting a ticket requiring him to identify himself as its purchaser on request, it appeared that plaintiff’s physical description in the ticket was incorrect, but the declaration did not count on the misdescription, the action being based upon an unreasonable enforcement of the reasonable regulation requiring identification. Held, that instructions that, “ If there was any mistake in the description of plaintiff on the ticket, it was a mistake for which defendant was liable,” and “ Defendant cannot limit its liability for the negligence of itself or its agents by any contract contained in the ticket purchased by plaintiff, upon which he was seeking transportation,” condemned defendant for negligence not declared upon and furnished ground for a verdict against it whether the regulation was reasonably enforced or not, and were prejudicial. McAlvay, C. J., and Moore, J., dissenting.
    Error to Calhoun; Hopkins, J.
    Submitted June 6, 1906.
    (Docket No. 20.)
    Decided July 13, 1907.
    Case by John A. Pierson against the Illinois Central Railroad Company for a wrongful ejection from defendant’s train. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Williams & Beck, for appellant.

      Hatch & Anderson, for appellee.
   McAlvay, C. J.

Plaintiff recovered a judgment in an action of trespass on the case against defendant, for damT ages resulting from being forcibly ejected, by the conductor, from a train of defendant upon which plaintiff was riding as a passenger, between Omaha and Chicago, near Council Bluffs, Iowa. Suit was begun by attachment in the circuit court for Calhoun county, and jurisdiction obtained by the seizure of certain cars of defendant, a foreign corporation.

Plaintiff, on December 12, 1903, purchased and paid for a ticket at Seattle, Wash., at the office of the Oregon Railroad & Navigation Company, from Seattle to Chicago and return, and at the time of purchase signed his name upon the ticket. On the same day he began his journey and traveled on said ticket until he reached Omaha, on December 22d. At the last-named place he took the train of defendant company for Chicago. Before reaching ^Council Bluffs the conductor on defendant’s train took plaintiff’s ticket, punched two holes in it, and returned it to him. Either then, or- soon after, when the conductor returned, plaintiff’s identity with the description on the ticket was questioned by him and fare was demanded. There was a sharp dispute between these two persons as to this fact and as to what actually occurred; plaintiff claiming that he was the person who bought the ticket, and that he offered to identify himself, and the conductor claiming that he refused to identify himself, or to pay his fare. Plaintiff was ejected, from the train, and during the altercation he struck the conductor a blow with his fist on the forehead. When on the depot platform after he was put off, some conversation occurred between plaintiff, the conductor, and the trainmaster, who was present. Plaintiff then re-entered the car and paid the fare, taking the conductor’s receipt therefor. Plaintiff was about 60 years old, and engaged in the business of establishing agencies for burglar alarm clocks. He traveled on the average 18,000 to 20,000 miles a year, and had crossed the continent 12 times on round-trip tickets. The ticket in question was retained by him and produced in evidence. It was a tourist’s excursion ticket good for one first-class passage, having printed on it a contract in 13 paragraphs, and numerous coupons, and also dates of years and months and description of passenger. It is printed in the record, covering seven pages. It is not questioned but that plaintiff was the actual purchaser of this ticket and its lawful owner. The question raised by the conductor was relative to the description of the passenger' as punched on the ticket. The punch marks, except those made by different conductors during the journey, were made as usual by the agent who sold the ticket, at the time of the sale. Among other stipulations printed on the ticket was the following:

“ 10. The holder hereby agrees to establish identity as the original purchaser by signature or otherwise, whenever requested to do so by any conductor or agent of the line or lines over which this ticket reads, and on failure to do so this ticket shall become thereafter void' and may be taken up and full fare collected.”

The jury returned a general verdict for plaintiff, and also found specially on questions submitted by defendant as follows:

1. Did the plaintiff refuse to offer proofs of identity to the conductor, N. A. Ross, previous to the ejection of said plaintiff from the car in question ? No.

2. Did N. A. Ross, the conductor, give the plaintiff an opportunity to identify himself, pay his fare, or leave the car before he removed him ? Yes.

3. Did the conductor, N. A. Ross, act in good faith in his dealing with the plaintiff ? No.

Defendant made a motion for a new trial. On June 26, 1905, said motion was denied and an opinion filed by the court, giving his reasons therefor. On October 14, 1905, defendant filed exceptions to the ruling and decision of the court in denying such motion. Defendant asks this court to reverse the judgment entered upon the verdict of the jury on account of errors claime'd to have been committed upon-said trial.

As already appears, the principal question in dispute between these parties upon the trial was whether the conductor of the defendant company was justified in ejecting plaintiff from the car. Incidental to this was the question of the amount of force used by him upon the plaintiff, and, if defendant’s agent, the conductor, wrongfully ejected plaintiff, the extent of plaintiff’s injuries, if any, and the amount of damages he was entitled to recover. Upon all of these propositions under the charge of the court, the jury found in favor of the plaintiff, and there was evidence in the case, which, if believed by the jury, warranted the verdict rendered.

The errors assigned will be considered in groups:

(1) Errors upon the admission and exclusion of evidence.

(3) Errors based upon improper arguments of counsel.

(8 ) Errors upon refusal to give requests to charge.

(4) Errors committed in the charge of the court.

(5) Errors upon the decision of the court in denying a motion for a new trial.

1. In relating what occurred at the time he was ejected from the car, plaintiff, among other things, testified that he was sitting in his seat, and was seized by the conductor, who proceeded to drag him out. He then said:

“I was in no position to meet any such assault, for that reason I resisted as long as I could.”

Error is assigned because the court refused to strike this out as a conclusion of the witness. We do not so understand it. The witness gave his position as his reason for resisting in the manner he did.

Some testimony was offered under objection and exception as to what occurred when the train afterwards arrived at Ft. Dodge and conductors were changed. It was received, but stricken out as soon as its immateriality developed. Such action is held not to be erroneous; no request having'been offered asking the court to instruct the jury upon the matter. - Barnett v. Insurance Co., 115 Mich. 347.

Defendant excepted to the exclusion of certain questions propounded to an expert witness. This was not prejudicial, for the reason that the inquiry was pursued in another form of question, and the information secured. Lamb v. Lippincott, 115 Mich. 611.

Errors are assigned upon the admission of testimony of an expert witness relative to a general custom of railroads in punching tickets, for the reason that he did not include defendant company; also, for excluding testimony offered in surrebuttal to show the absence of such custom on defendant’s road. Defendant’s witness, Conductor Ross, admitted that this was the manner of punching tickets on its road. The whole matter was entirely immaterial to the issue. There was no dispute as to how the conductor punched this ticket, nor the effect of such punching, if the question of identification had not been raised.

2. The arguments of counsel claimed to have been improper and prejudicial do not appear in the record. Exceptions do appear taken after the arguments were closed, stating wherein they were improper. Plaintiff denies that the statements claimed were made. The record does not show that objection was made at the time and ruled upon by the court. Therefore this court cannot review it. Miller v. Lachman, 117 Mich. 68, and cases cited.

3. Twenty-four of defendant’s requests to charge were refused, and error is assigned upon each refusal. To give these requests at length and discuss them would be of no benefit to the profession, and is not necessary. An examination of the entire charge of the court shows that the substance of these requests, proper to give the jury, was given.

4. The charge of the court to the jury was given with great care, and for the most part appears to have been entirely satisfactory to the defendant. The court correctly stated what was involved in the case, giving clearly and fully the claims of the respective parties. The rights and duties of the plaintiff and the defendant’s conductor were fully and repeatedly set forth and defined. Among other things, he said:

“It was the duty of the plaintiff, upon demand so to do, by the conductor in charge of the train, to either identify himself to the reasonable satisfaction of the conductor, or pay his fare, or leave the train. * * *

“The act of the conductor of the defendant company in removing the plaintiff from the car was the act of the defendant company, and rendered it liable to the plaintiff for all his damages, providing such ejectment was unlawful, or, if lawful, made with unnecessary force and violence.

“ I instruct you that it was not within the province or authority of the conductor, Mr. Ross, to in any manner change or vary the terms of the ticket presented by plaintiff. Under the terms of that ticket, all that the conductor could do was to pass upon the question of the proper identification of the plaintiff, and if the conductor was reasonably satisfied of the identification of the plaintiff — that is, that he was the same person described in the ticket— < then the conductor should have accepted the ticket and allowed plaintiff transportation on that train; but, if you find that, not being reasonably satisfied as to the identification, the conductor asked for the identification, and plaintiff refused to identify himself, then the conductor had no right to accept such ticket or allow transportation on the ticket. * * *

‘ ‘ I instruct you that, as between the conductor and plaintiff, the right of the latter to travel or be transported by this train was governed entirely by the terms of the ticket, and if you find that the conductor reasonably believed, and had good reason to believe, that such a discrepancy existed, then it was proper for him to ask plaintiff to identify himself, and if you find that he did ask plaintiff to identify himself, and plaintiff refused so to do, then it was proper for the conductor to demand that plaintiff pay his fare in cash or leave the train; and, if you find that the plaintiff in turn refused to do either of these things, then it was proper and lawful for the conductor to use such reasonable force as was necessary to put plaintiff off the train; and, if you find that the conductor used only such reasonable force as was necessary, then your verdict must be for the defendant, no cause of action. If you find under the circumstances stated that the conductor used more force than was reasonably necessary, then the plaintiff can only recover for the damages resulting to him, if any, from such excess of force. * * *

“In determining the question as to whether or not the conductor was justified in ejecting the plaintiff from his train, you should take into account all the evidence in the case bearing upon what occurred at the time the plaintiff first presented his ticket, and what afterward occurred when the conductor returned to the plaintiff while he was still in the train. * * *

“ The provision printed upon the face of the ticket that the passenger shall, whenever requested by the conductor to do so, identify himself by writing his name or otherwise, is a reasonable regulation, and it would be the duty of. Mr. Pierson to comply with a request of the conductor to identify himself, by writing his name, or otherwise, at any time, even though the conductor had accepted and punched his ticket and returned the ticket to the plaintiff, thereby intending to signify his acceptance of the ticket, and thereby canceling the ticket to the end of his run at Ft. Dodge, Iowa. Did the conductor request Mr. Pierson to. identify himself by writing or otherwise ? And did Mr. Pierson refuse to write his name, or to otherwise identify himself ? If you find that he did refuse, after being requested so to do, to identify himself, then the conductor would be justified in ejecting him from the train, using, however, no more force than was necessary to accomplish that object. This, gentlemen, is a question of fact to be determined by you under all the evidence in this case, and is really the question upon which the decision of this controversy turns.”

From these portions of the charge it clearly appears that the court, upon the crucial question in the case, correctly stated the law to the jury.

Defendants assign error upon part of the charge which is as follows:

“If you shall find as a fact, from the evidence in the case, that plaintiff purchased the ticket on which he was riding when ejected from the cars of defendant company, * * * or of one who had their tickets, and with apparent authority to sell the same, and paid the fare demanded, and in purchasing the ticket used no fraud, but acted in good faith, then I charge you that, if there was any mistake made in the description of plaintiff on the ticket, it was a mistake for which defendant was liable, and your verdict must be for plaintiff.”

It is a well-settled rule that a small part of a charge cannot be isolated, and, standing alone, made the ground for reversible error, if upon the entire charge it can fairly be said that the jury were not misled. The sentence objected to might well have been omitted. It was not a necessary part of the charge, and was probably induced by a request of defendant based upon a claimed theory of plaintiff relative to a mistaken description in the .ticket. Plaintiff did not claim that any mistake had been made in the description contained in the ticket. The case was submitted to the jury upon the theory that plaintiff’s rights depended upon the ticket he presented, and that the conductor was within his fights if he demanded identification ; the dispute being as to what occurred as to identification. Defendant could not have been prejudiced or the jury misled, because the court later clearly and correctly stated the law.

Defendant also claims that the court erred in charging:

“Defendant company, being a common carrier of passengers for hire, cannot limit its liability for the negligence of itself or its agents by any contract contained in the ticket purchased by plaintiff on which ticket he was seeking transportation.”

This is not claimed to be incorrect as an abstract proposition of law, but that it had no application to the case. What has just been said relative to construing the charge as a whole applies here. The paragraph first quoted in this opinion immediately follows the sentence objected to:

“It was the duty of the plaintiff, upon demand so to do by the conductor in charge of the train, to either identify himself to the reasonable satisfaction of the conductor, or pay his fare, or leave the train.”

Neither party questioned what the contract between them was. The court in his charge distinctly and correctly told the jury what they must find in order to hold defendant liable. The error was not prejudicial.

It is also objected that the court did not properly instruct the jury as to the rule of damages governing the case under the ticket contract. This question is raised by exceptions to certain portions of the charge and the refusal to give certain requests. This objection is based upon the eleventh paragraph of the said contract:

“It is hereby agreed and understood that any claim for damages by the purchaser hereof arising out or in consequence of any bona fide mistake of any conductor or agent in rejecting such proofs of identity or in forfeiting this ticket or refusing further' passage thereon shall be limited to the amount which such purchaser shall have originally paid for this ticket.”

It is contended that this case is within the decision of this court in the case of Brown v. Railway Co., 130 Mich. 483, and controlled by it. This case can be distinguished from the Brown Case in this: In the case at bar, plaintiff presented a ticket entitling him to transportation, if he was the person who purchased it. It was a ticket good on its face for the distance to be traveled. The only question open was that of identification. The' jury found specially that plaintiff did not refuse to identify himself, and that the conductor did not act in good faith in his dealing with him. This court has held that a passenger presenting a ticket good on its face for the distance to be traveled is entitled to ride, and if wrongfully ejected may recover substantial damages. Zagelmeyer v. Railroad Co., 102 Mich. 214; Vining v. Railway, 122 Mich. 248; Carvey v. Railway Co., 133 Mich. 659. See, also, Hufford v. Railroad Co., 64 Mich. 631. The court was not in error in refusing to limit the amount of the recovery to the amount paid for the ticket. Other errors assigned upon the charge are either similar to those just discussed, or, from a reading of those portions of the charge objected to, appear,to be without merit.

5. The specific errors assigned upon exceptions to the decision of the court in denying the motion for a new trial are expressly waived in appellant’s brief. These include all the exceptions relative to the special findings of the jury, and are not discussed-. The only exception to said decision not expressly waived, and upon which error is assigned, is in the following words:

’ “Said defendant also excepts to the judgment and decision of the court in overruling said motion for a new trial.”

Of this assignment of error appellant says:

‘ ‘Any discussion of the same would be a reiteration of our argument in support of the previous assignments herein considered.”

In the absence of discussion, and neglect to call the attention of this court to any specific error committed by the trial court in said decision, and by indicating a reliance upon the discussion of errors committed on the trial, appellant must be held to have waived all errors assigned upon said decision denying the motion for a new trial.

We find no reversible error in the case.

The judgment of the circuit court should be affirmed.

Moore, J., concurred with McAlvay, C. J.

Hooker, J.

This controversy involves disputed questions of fact as to the circumstances under which plaintiff was ejected from defendant’s car and the amount of damage. A claim was made that the conductor acted in bad faith, and the jury so found. Hence it was proper for' them to award damages for injured feelings.

The matter of bad faith was a.question of fact, and any testimony bearing upon it should not have been excluded. The plaintiff offered testimony to the effqct that when the ticket was taken the conductor punched it, and that, according to the custom of railroads in general, this was an acceptance of the ticket, and claimed that he could not lawfully raise the question of plaintiff’s identity after-wards. If this was the custom of defendant, whether it was of others or not, it is presumable that the conductor knew it,, and the jury would lie likely to think so, and the same is perhaps true prima facie under the proof of a general custom. But, as far as it applies to the question of good faith, it was competent for the defendant to show that there was no such rule or custom on the defendant’s road, which would be consistent with the conductor’s statement that he did not notice the description of plaintiff until after the ticket was punched, and did not act in bad faith in raising the question after punching the ticket, which was in a sense a usual and involuntary act, on receipt of any ticket. Such testimony was excluded, and was injurious, especially in the light of the following instructions given the jury:

“ If you find that the conductor punched the ticket when presented to him in the first instance by Mr. Pier-son, that fact alone would not constitute an acceptance of the ticket by the railway company, unless you shall find that the conductor so punched the- ticket as an act of acceptance, and intending thereby to so accept the ticket, and the question of the length of time the conductor had in which to decide the question of whether or not he would accept the ticket is immaterial. The defendant is bound by his act, whether he had much or little time in which to make his decision.”

And his refusal to give the following requests:

“If you should find that the conductor, in taking up the ticket from plaintiff in the first instance, either through mistake, or by reason of being hurried in his duties, did not notice any discrepancy between the personal description contained in the ticket and the personal appearance of the plaintiff, neither he nor the defendant were bound to retain that ticket as transportation for the plaintiff without demanding personal identification, the same as the conductor might have done in the first instance if he had noticed the discrepancy, and, after noticing it, it was his duty, and he had the right and privilege as representing the defendant, to bring the matter to the attention of the plaintiff and demand that the plaintiff either pay his fare in cash or reasonably identify himself so that the conductor might be reasonably assured that the plaintiff was a bona fide holder of the ticket or leave the train. Of course, in making any such demand upon plaintiff, it was the duty of the conductor to tender the ticket to the plaintiff.”

Which request was refused and defendant excepted, and which should have been given.

The following request should also have been given:

“ It appears in evidence that the plaintiff had with him sufficient money with which to pay his fare in cash, and T instruct you that you may take that fact into consideration in arriving upon your verdict in this case, under the instruction given you by the court.”

Which request was refused, and defendant excepted. It was proper in mitigation of damages, as was the testimony excluded, hereinbefore referred to.

The judgment should be reversed, and a new N trial ordered.

Ostrander, J.

If it is agreed, as it appears to be, that the regulation calling for identification of the ticket holder is a reasonable one, the vital point' in the case is whether the regulation was reasonably enforced. Reasonable enforcement of it was provided for in the contract. Unreasonable enforcement might be a trespass. The declaration does not count upon a misdescription of defendant in the ticket. The court instructed the jury:

“If you shall find as a fact, from the evidence in the case, that plaintiff purchased the ticket on which he was riding * * * and paid the fare demanded, and in purchasing the ticket used no fraud, but acted in good faith, then I charge you that, if there was any mistake made in the description of plaintiff on the ticket, it was a mistake for which defendant was liable, and your verdict must be for the plaintiff.”

Immediately following this, and the two quotations from the charge here given are not qualified and appear to cover the subject, the court said:

“Defendant company, being a common carrier of pas-' sengers for hire, cannot limit its liability for the negligence of itself or its agents by any contract contained in the ticket purchased by plaintiff, on which ticket he was seeking transportation.”

The testimony of the conductor who put plaintiff off the train' is that the ticket did not describe the plaintiff. He further testified that he told plaintiff the ticket did not describe him. It appears that the supposed lack of correspondence between the description and the man is what caused the demand for identification. Upon this testimony and charge, it seems to me that a verdict for plaintiff was inevitable. The instruction was both erroneous and prejudicial, because it condemns defendant for negli- ' gence not alleged as ground for recovery, and because it furnishes ground for the verdict, whether the regulation in question was or was not reasonably enforced.

Except as herein stated, I concur in the opinion of Mr. Justice McAlvay. For the-error pointed out, I think the judgment should be reversed, and a new trial granted.

Carpenter, Grant, Blair, Montgomery, and Hooker, JJ., concurred with Ostrander, J.


author: McAlvay, G. J. Ostrandee, J.

text:
    PEPIN v. NAULT.
    1. Logs and Logging — Liens—Attachment—Process—Return— Sufficiency.
    In attachment proceedings under the log lien law, a return by the officer serving the writ that the owners are nonresidents, and that within the life of the writ he has served a resident agent of the owners, is good, since it follows the statute (section 10761, 3 Comp. Laws).
    2. Process — Service—Return—Amendment—Effect.
    The filing of an amended return of service of a writ of attachment does not have the effect of entirely superseding the original return unless so intended, and jurisdictional averments in the original will be given effect though not repeated in the amended return.
    McAlvay, C. J., dissenting.

      Error to Marquette; Stone, J.
    Submitted January 9, 1907.
    (Docket No. 154.)
    Decided July 13, 1907.
    Attachment proceedings under the log lien law by Napoleon Pepin against Louis Nault, Fred Nault, and Edward Nault, copartners as Nault & Sons, and W. B. Kibbee and R. P. White, copartners as Kibbee & White. There was judgment for plaintiff, and defendants Kibbee & White bring error.
    Affirmed.

      M. J. Kennedy, for appellants.

      T. J. Dundon, for appellee.
   McAlvay, G. J.

Plaintiff, claiming a lien on certain logs for personal work and labor thereon, began a suit in attachment May 3d, 1904, in justice’s court in Marquette county, under the log lien statute, to enforce his lien therefor. The writ of attachment was issued, and made returnable May 14, 1904. It was personally served on the principal defendants May 7th. The return further, shows:

“And on the 11th day of May, A. D. 1904, at the city of Marquette, in said county, I served upon F: M. White, personally, a true copy of the annexed writ and inventory duly certified by me; the said F. M. White being agent of the owners of the goods and chattels mentioned in said inventory, and the owners of said goods and chattels, and Kibbee & White being nonresidents of this State, and they, or either of the said owners, could not be found by me within this State.”

The writ of attachment with this return attached was returned and filed with the justice on May 13th, the day before the return day thereof. On the return day, May 14th, the log owners appeared specially by their attorney and moved to quash the writ and proceedings for the reasons:

1. Because the officer had not served the writ by leaving a copy thereof and of the inventory with any person in whose possession the property was found.

2. Because substituted service was made upon the agent and the writ returned before the return day.

Although requested so to do, the justice declined to rule upon this motion, and the attorney for the log owners then withdrew and took no further part in the proceedings before the justice. On the motion of the plaintiff, after issue joined with the principal defendants, the case was adjourned until June 15, 1904, on which day plaintiff was permitted to file an amended return. This, so far as it affected the log owners, is as follows:

“ And on the 11th day of May, A. D. 1904, at the city of Marquette, I served on F. M. White personally a true copy of the annexed writ and inventory duly certified by me, the said F. M. White being the agent of the owners of the goods and chattels mentioned in said inventory, the said owners Kibbee & White not being found by me within this State, * * * and I do further return that the said owners, or either of them, have no last place of residence within this State.”

The amended return also showed.that the property was not in the possession of any person, but was solidly frozen in the ice. It also recites the giving of a statutory bond and the release of the logs on May 5, 1904. The justice then passed upon and overruled the motion to quash above referred to. On this day a trial was had and a judgment rendered in favor of the plaintiff and against the principal defendants, declaring that plaintiff had a lien upon the property (logs) for the amount thereof. The log owners removed the case to the circuit court for Marquette county by certiorari, and from a judgment of the circuit court affirming-the judgment of the justice they have brought the case to this court by writ of error.

The question in the case is whether there was any proper service of process to give the court jurisdiction to render a judgment for a lien upon the property. In this case, an amended return was made by the officer, and, if jurisdiction was obtained by the court, it must appear from this return, the material portions of which have been quoted. The facts in regard to the service in this case and in the case of Reynolds v. Marquette Circuit Judge, 125 Mich. 445, are identical, with the exception that the return in this case had the additional statement:

That I have made diligent search and inquiry and am unable to find Kibbee & White [the owners of the property], or either of them, within this State, and I do further certify and return that said owners, or either of them, have no last place of residence within this State.”

We do not think that this return distinguishes the case from the Reynolds Case, supra. In the case at bar, service on the agent was made three days before the return day, and the writ was returned one day before the return day. Both these acts were premature, and the return does not negative the fact that either or both parties might have been within the State and been found had diligence been used during the entire time allowed by the writ. There was no proper service of this writ, Reynolds v. Marquette Circuit Judge, supra, and cases cited. The court erred in affirming the j udgment of the justice.

The judgment of the circuit court should be reversed, with costs, and a judgment entered vacating and setting aside said justice’s judgment as a lien upon appellants’ property.

Ostrandee, J.

The sheriff, in the first return to the writ of attachment, certified that the owners of the logs were nonresidents of the State and could not be found within the State. It is evident from the record that the justice of the peace and the circuit judge supposed they had the right to, and that they did, rely upon this certificate, although the officer made another or further return, called an amended return, which omits any reference to the subject of the residence of the log owners. The owners of the logs were not the defendants in the attachment suit. In such a case, the statute method of service and the command of the writ is:

“The officer executing said writ shall serve or cause to be served a copy of said attachment on or before the return day mentioned in said writ upon the owner of said products, or any of them, their proper agent or attorney,. if such owner, agent or attorney be known to him, as residing in this State.” 3 Comp. Laws, § 10761.

If the owners of logs who are not defendants in the attachment suit are nonresidents of the State, it is insensible to require the officer to carry the writ until the return day for the purpose of making service on them. If the officer certifies in his return that the owners are nonresidents, and that within the life of the writ he has served a resident agent of the owners, it is a good service, because in such case the officer has followed precisely the command of the statute. The question is, therefore, whether we must treat the later and amended return of the officer as superseding entirely the first return. The amended return appears to have been made to meet objections made by counsel for the log owners in the motion to dismiss the proceeding. I find nothing which requires the inference that in making the amended return it was intended to dispute or to recall the statement in the first return respecting the nonresidence of the log owners. The circuit judge in his opinion carefully, and in my judgment correctly, distinguished this case and Reynolds v. Marquette Circuit Judge, 125 Mich. 445.

The judgment should be affirmed.

Carpenter, Grant, Blair, Montgomery, Hooker, and Moore, JJ., concurred with Ostrander, J.


author: MoAlvay, C. J.

text:
    TUBBS v. HAESSIG.
    1. False Imprisonment — Pleading —Justification — Arrest Without Warrant.
    In an action for false imprisonment, the facts amounting to a justification of the arrest must be pleaded, and this is especially true when the arrest was without a warrant.
    2. Same — Burden of Proof.
    The burden is upon the defendant in false imprisonment to justify the arrest in accordance with his notice of defense.

    3. Same — Question for Jury.
    Where there is evidence upon both sides of the question whether plaintiff in false imprisonment committed an assault in the presence of the defendant, an officer, justifying his arrest without a warrant, it is error to direct a verdict for defendant.
    Error to Kent; Perkins, J.
    Submitted January 11, 1907.
    (Docket No. 34.)
    Decided July 13, 1907.
    Case by George W. Tubbs against George H. Haessig for false imprisonment. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Dunham & Malcolm, for appellant.

      Moses Taggart and S. W. Barker, for appellee.

      As to burden of proof as to authority for arrest in action for false imprisonment, see note to McAleer v. Good (Pa.), 10 L. R. A. (N. S.)

   MoAlvay, C. J.

This is an action of trespass for false imprisonment. The case arose out of an arrest of the plaintiff made by defendant, who was a police officer. The arrest was made at the Morton House, in the city of Grand Rapids, on December 22, 1904, and plaintiff was taken to police headquarters and locked up, and was later released on bail. The officer placed a disorderly charge against him in police court, but it was not prosecuted. The next day one of the women prosecuted him for assault and battery. On an appeal to the circuit court he was acquitted.

Defendant under his plea gave notice of justification of the arrest, because of the conduct of plaintiff in the presence of defendant in causing a noise, disturbance, and gathering of the people, in violation of the disorderly ordinance of the city of Grand Rapids. The claimed disturbance arose between plaintiff and the women, sisters of his deceased wife, and aunts of his young daughter, who was with him, relative to the interference of the women in regard to the possession of the child. At the close of the testimony a motion was made by defendant’s attorney that a verdict be instructed by the court for defendant on the-ground that under the circumstances defendant was justified in making the arrest. The motion was granted and a verdict of no cause of action was directed, and a judgment duly entered thereon. Defendant excepted to this action of the court, and the errors assigned are upon the reasons given by the court and his conclusions of law in determining that such verdict should be entered. The reasons and conclusions of the court upon granting clefendant’s motion are as follows:

“Gentlemen of the jury, pursuant to the practice in this court, it is necessary for the court to state upon the record its reasons for taking a case from the consideration of the jury and directing a verdict. In this case, after careful consideration, I have come to the conclusion that, under the undisputed facts in this case, it is the duty of the court to so direct you.

“ The questions involved in this case are two:

“ (1) Was there a disturbance of the peace on the date in question, at the" place in question ? And,

“(3) Was that disturbance of the peace committed in the presence of the officer ?

“ It does not matter to you or to the court in this case as to what the respective rights of these parties were as to the custody of this child that seemed to have been in controversy, nor does it matter to us at this particular time as to whether or not the ladies in question, or the plaintiff in this case, happened to be to blame for the creation of the disturbance. As I have had occasion to say to counsel, if a police officer or a peace officer must see to it that he only arrests persons not to blame for a disturbance of this kind, notwithstanding they may be participants therein, there would be no one willing to make arrests without a warrant, and the public tranquility would be disturbed by the promulgation of any such rule of law as that, as it seems to the court.

“ The peace officer has a duty resting upon him to immediately arrest those who may be engaged in a public disturbance, regardless of the question as to whether the person he happens to arrest is to blame for the disturbance, providing that person is engaged in such disturbance and is a cause thereof, or contributes thereto.

“The plaintiff himself testified upon the witness stand that, from the time that he encountered these two women at his carriage until he was arrested in the Morton House entrance, there was more or less disturbance on account of the controversy between himself and his sister-in-law as to the custody of this child. He also testifies that a crowd almost immediately began to gather and followed them to the Morton House entrance, and through the entrance; that the crowd was attracted by reason of the efforts of each of the parties to gain possession of this child; that there were various expressions from the crowd of a violent nature; and that there was more or less excitement at the time of his arrest. It also appears that more or less violence was being exercised, not only by plaintiff, but' by these women, to gain possession of this child. These facts are practically undisputed, and under this undisputed evidence in the case I instruct you that there was a disturbance of the peace, as that term is used in the law.

“If the plaintiff had denied any such disturbance and the witnesses on the other side had testified to a disturbance, then it would have become a question of fact for you to determine as to whether under all the facts and circumstances there was such a public disturbance as would authorize an arrest without a warrant; but, where it appears to be undisputed upon both sides that there was a disturbance, the next question that arises is as to whether that disturbance was in the presence of the officer. This is also an undisputed point in the case. He was standing at or near the corner of Monroe and Ionia streets at the time in the performance of his duty as a • police officer of the city, and in full view of the parties as they came up the street and entered the Morton House door. Further than that, as he came into the crowd as it gathered in the corridor of the Morton House, whether he had passed through the first entrance or not is immaterial, there the crowd was, there the shouts were being made, and there the plaintiff was, the child, and these women, the disturbance was there in his view, in his presence, and it was his duty as a police officer and a peace officer to make the arrest of one or the other or all of the participants. They were all equally guilty of causing a public disturbance, whether it was the women or whether it was the man. If he had arrested the women, he would have been equally justified. He happened to arrest the man, and the same rule will follow as to that.

“ The rule is stated here with reference to that, ‘in general, all persons engaged in a breach of the peace are principals,’ and these two women and the plaintiff in this case, Mr. Tubbs, must be considered as principals in this disturbance of the peace.

“Therefore, gentlemen, a breach of the peace having been committed, and it having been committed in the presence of the officer, the arrest without a warrant was justified under the law, and I so instruct you. The clerk will take your verdict of no cause of action.”

Plaintiff’s claim in this case was that he had driven into the city with his young daughter; that he had hitched his team near the Morton House, and visited his attorney, taking with him his daughter; that coming from his attorney’s office he met Miss Reen, an aunt of the child, who attempted to caress her, and was told by him to leave the child alone; that he walked to the buggy, and lifted the child into it, and went towards the heads of his horses, intending to unhitch them and saw Mrs. Brower, a sister of Miss Reen, approach the buggy, reaching up as if to remove the child; that to get the child away from these women he stepped to the buggy, lifted her out, and started to carry her into the Morton House; that Mrs. Brower followed rapidly, catching hold of the child when going up the hotel steps, and held onto her; that plaintiff walked in through the vestibule nearly to the elevator where he was arrested by defendant; that after he told Miss Reen to keep away he spoke to no one until he was arrested; that he struck no one, and did nothing except to attempt to get his child into the hotel and away from these women. This claim is supported by his own testimony and that of several witnesses. That he took the child to get away from them and that they followed him, when they knew that he was trying to get away, is admitted by both women. On the part of the defendant, whose defense ‘ appears in the notice given below, the testimony of the two women, the defendant, and others was offered tending to show that plaintiff struck the women. That there was a disturbance was admitted, but that plaintiff was a party actively engaged in creating such disturbance was denied, and upon this question there was a sharp disagreement between the witnesses. The record shows that therq was some feeling between plaintiff and his deceased wife’s sisters relative to this child.

The following is defendant’s notice of justification given with his plea:

“ Upon the occasion alleged in said declaration defendant’s attention was called to a disturbance, commotion, and gathering of people near the Monroe street entrance of said hotel at which time defendant saw plaintiff ascend the steps of said hotel, accompanied by a lady and a small girl, at the same time and place and in the presence of defendant said plaintiff struck said lady with his hand, causing her to stagger and fall back. That defendant hastened to the scene, but did not arrive until plaintiff with said lady and girl had entered the inner door of said hotel, and that then and there plaintiff caused another disturbance, commotion, and large gathering of people by taking a firm hold of said lady, holding her and refusing to let go his hold of her. That Mr. Rathbone, a man having in charge said hotel, upon seeing the disturbance, rushed to the aid of said lady, and had about broken plaintiff’s hold on said woman at the time that defendant arrived and said Mr. Rathbone then and there requested defendant to place plaintiff under arrest, which defendant did, .after finally separating them. That the same was done in accordance with defendant’s instructions and general duties as a police officer of said city.

“This defendant then and there knew that plaintiff had violated the disorderly ordinance of said city of Grand Rapids by assaulting and striking said lady, which caused a noise, disturbance, and large gathering of people, the violation of which was a misdemeanor under the city ordinance or laws of the city of Grand Rapids, Mich., which misdemeanor, as before alleged, was committed in the presence and sight of defendant; whereupofi defendant placed plaintiff under arrest and caused him to be taken to the police station of said city in the regular course of defendant’s duties.

“ That the following morning after said arrest defendant went to the police station of said city and conferred with the police judge of the city of Grand Rapids, assistant city attorney of the city of Grand Rapids, and the assistant prosecuting attorney for the county of Kent, and offered then and there to swear to a complaint charging plaintiff with violating the disorderly ordinance of the city of Grand Rapids, but they decided that the offense was of such a nature that a charge of assault and battery should be placed against plaintiff instead of disorderly conduct; whereupon complaint was sworn to against plaintiff for assault and battery, upon which complaint plaintiff was duly tried before the judge of police court of said city and convicted, which cause was appealed to the circuit court for the county of Kent, retried before a jury, said jury deliberating for a great many hours and finally returning a verdict of not guilty.”

It was necessary to give this notice, and—

“It is manifestly of more importance to the plaintiff that he should be informed by the plea of the facts relied upon for his arrest without a warrant than when he is arrested upon a warrant, which he has the right to see and read when he is arrested.” White v. McQueen, 96 Mich. 249.

The gist of this notice is “that plaintiff had violated the disorderly ordinance of said city of Grand Rapids by assaulting and striking said lady, which caused a noise, disturbance, and large gathering of people.” The complaint made by the officer the next day after the arrest charged that plaintiff “ did engage in a fight, quarrel, and disturbance in the presence and hearing,” etc., contrary to the provisions of “an ordinance relative to disorderly persons.” No warrant was issued based upon this complaint and no prosecution was had upon it. The officer who made the arrest and swore to the complaint testified:

“Q. Did you arrest Mr. Tubbs because Mr. Rathbone told you to take the man out of here ?

“2. Because he struck that lady and had a firm hold on her when I got inside; breach of the peace; disorderly.

liQ. What was it he did, or to your mind was a breach of the peace ?

“A. Striking the lady.

Q. At the door ?

“A. Yes, sir; having hold of her was enough.

“Q. You base your cause of arrest, because you saw him strike the blow, is that it ?

“A. Strike the blow and having hold of her.”

The issue tendered by this plea and notice was tried. The burden of proof was upon defendant to justify the arrest in accordance with his notice. Evidence was offered upon both sides. The disputed question was one of fact for the jury.

The court was in error in directing a verdict for defendant.

The judgment is reversed, and a new trial granted.

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


author: Grant, J.

text:
    WHITMORE v. IONIA PROBATE JUDGE.
    1. Drains — Statutes—Repeal.
    Act No. 612, Local Acts 1905, repealing the general drain law with respect to Ionia county, does not repeal, as to Ionia county, the law governing the construction of drains through several counties.
    2. Statutes — Repeal—Implication.
    Repeals by implication are not favored.
    Certiorari to Ionia; Davis, J.
    Submitted February 12, 1907.
    (Calendar No. 21,713.)
    Decided July 13, 1907.
    Mandamus by Monroe W. Whitmore, Elon P. Potter, and John F. Kohn, drain commissioners of Clinton, Gratiot, and Ionia counties, to compel Montgomery Webster, probate judge of Ionia county, to appoint special commissioners in certain drain proceedings. There was an order denying the writ, and relators bring certiorari.
    Reversed and writ granted.

      William M. Smith, and JR. A. & W. JE. Hawley, for relators.

      Morse & Locke, for respondent.
   Grant, J.

The relators, commissioners, respectively, of Clinton, Gratiot, and Ionia counties, took the steps provided by chapter 106, 2 Comp. Laws, to construct a continuous drain traversing the three counties. The provisions applicable to such a proceeding are found in sections 4371 to 4378, inclusive. The proceedings were regular under that statute, and it is immaterial to set them out in detail. The probate judge of Ionia county, where the proceedings were commenced, refused to appoint special commissioners, holding that Act No. 612, Local Acts 1905, applied to drains running through several counties, as well as to drains located entirely within the county of Ionia. The commissioners then applied to the circuit court for the county of Ionia for the writ of mandamus to compel the probate judge to entertain the application and appoint commissioners. The circuit court refused to grant the writ, holding to the same effect as did the probate judge. The case is now before us for review on the writ of certiorari.

Act No. 612 was before us in Rice v. Ionia Probate Judge, 141 Mich. 692, and is there given in full. We need not here repeat any of its provisions. This proceeding was taken by the commissioners before the enactment of Local Act No. 612.

The sole question is: Does that local act repeal or supersede the general law in regard to drains traversing several counties ? Repeals by implication are not favored. There is no language, either in the title or the body of that act, referring to or showing any intention to repeal or supersede the general law covering the construction of drains through several counties. All its provisions relate, and are applicable, to drains located entirely within the county of Ionia, and to the action of the one commissioner of that county acting independently in the construction of local drains. We think the act cannot be extended to include the law governing the construction of drains through several counties.

Some other questions are raised as to the location and construction of this drain and its effect upon Maple river. It is to be presumed that the commissioners will proceed according to law. If they shall undertake to unlawfully interfere with the riparian rights of landowners along that stream, and to unlawfully divert or otherwise affect the flow of water therein, such owners can obtain relief in the proper proceeding.

The judgment is reversed^ and the probate court directed to proceed under the statute.

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


author: Montgomery, J.

text:
    FITZPATRICK v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Personal Injuries — Person Working on Car— Contributory Negligence.
    In an action against a railroad company for injury to a servant of a lumber company by moving without warning a car into which he was loading lumber, evidence examined, and held, to be a question for the jury whether plaintiff was negligent in pursuing his labor in reliance on receiving a customary warning from defendant’s servants.
    3. Same — Warning—Failure to Give — Negligence.
    Where a railroad company’s servants were required by its rules to give warning to persons working about cars before moving them, and it was customary to do so, a failure to give the customary warning before moving the cars was negligence.
    3. Master and Servant — Negligence oe Servant — Injuries to Third Persons — Liability of Master.
    A railroad company is liable for an injury to the servant of a lumber company caused by the negligence of train operatives while switching cars in the lumber company’s yard, the lumber company having no control over the train operatives further than to inform them what switching was to be done.
    Error to Bay; Collins, J.
    Submitted April 3, 1907.
    (Docket No. 4.)
    Decided July 13, 1907.
    Case by Dennis Fitzpatrick against the Michigan Central Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Cooley & Hewitt (Henry Bussell' and O. E. Butter-field, of counsel), for appellant.

      Be Vere Hall, for appellee.
   Montgomery, J.

This is an action to recover for personal injuries. The plaintiff was, on the 30th of Novemher, 1903, engaged in inspecting and loading lumber from the mill of Mershon-Schuette-Parker Company into a car of defendant company. The cars of defendant were placed upon a spur track on the northerly side of the mill of plaintiff’s employers, to whom the track belonged. The mill had eight doors on its northerly side, numbered consecutively, beginning at the westerly end. The mill floor was practically on a- level with the floor of cars, so that when cars were placed with their doors opposite the doors of the mill lumber could be conveniently loaded from the mill to the cars. On the afternoon of the day in question plaintiff with a helper was engaged in loading lumber into a car opposite, which was the most easterly car, and the one farthest from the. engine. The car was so placed that but 12 to 13 inches of space was left through which to shove the lumber, and this space was at the westerly side of the mill door. The plaintiff had finished placing in the car such lumber as it was intended to load into the car at the mill, with the exception of one board which he had occasion to have replaned. The conductor of defendant’s train went into the mill to get his orders for switching from Mr. Shea, the foreman of plaintiff’s employers. At this time plaintiff was awaiting the return of his helper with the replaned board. The conductor and Shea passed out through door No. 3, and through the car standing opposite. The conductor was directed to relocate the cars in order that the loading might be completed. No notice of the intended movement of the cars was given to plaintiff. The northerly door of the car into which plaintiff was loading was closed. When the conductor had passed through car No. 3, he notified the men working in the cars, and as he walked down the side of the cars on this spur track he shouted and waived his hand to those employés who were seen in the vicinity of the cars. Then on a signal from him the engine coupled onto the cars which stood on the spur from the westerly end thereof, and within a minute thereafter started to pull them out. Neither the conductor nor any of the crew saw Fitzpatrick, and they afterwards learned that he was injured by this second movement of the cars. As the cars moved west, plaintiff was engaged in putting the last board in the car, and was caught between the car and the mill and severely injured.

There was some conflict in the testimony as to whether it was customary for the northerly car doors to bo closed before the car was completely loaded. There was also some conflict upon the question of whether, when the trainmen found the northerly car door closed, it was customary for'the trainmen to give any signal at that car. There was testimony pn the part of plaintiff that the northerly door of cars was at times left closed while the loading was being done, and that when the door was so closed it was customary for the trainmen to give notice of the intended movement of the car by tapping on the door. There was also testimony tending to show that the trainmen had on previous occasions gone through the mill and given warning to the men that the cars were to be moved. The testimony was abundant that the trainmen were accustomed to notify the men engaged in loading, and were required to do so by the rules of the company. The conductor testified that the tapping of the engine bell couldn’t be heard inside the mill on account of the noise of the machinery, and further testified as follows:

Q. The only signal that you gave, that is, the Michigan Central employés give, would be the bell, wouldn’t it?

A. No, sir.

Q. What other?

“A. I notified them when they were working.

“ Q. Was your instructions to notify the men ?

A. Yes, sir.

“ Q. You have'instructions from the Michigan Central that before you pull a car out to notify the men ?

“A. That is true.

Q. That is, from your employer ?

A. Before we move cars where men are working we notify them.

Q. Did you ?

A. Yes, sir.

“ Q. Did you notify them that day ?

A. Yes, sir.

Q. Did you notify Mr. Fitzpatrick ?

“A. I didn’t see him.

Q. Well, you didn’t notify him?

A. No, sir.”

On recross-examination, he said further:

“The instructions [were] before we move any cars, when men is working around. We don’t handle the cars until we notify the men.”

Under instructions, which in effect held defendant responsible for the acts and omissions of the trainmen on the occasion in question, and that it was a duty owed by defendant to the employés of Mershon-Schuette-Parker Company to give reasonable warning of the intended movement of the train, the plaintiff recovered, and defendant brings error, contending that plaintiff was guilty of contributory negligence, that there was no negligence in the'management of the train, and that if there were negligence on the part of the train crew it was not negligence for which defendant was responsible.

We are not able to say that the plaintiff was guilty of contributory negligence, as matter of law. True, he knew that the cars were liable to be moved at any time, and that he was engaged in putting the last board into the car; but, if the testimony of plaintiff’s witnesses be given credence, he also knew that it was the custom of the train crew to give notice to the employés, either by informing them directly by words, or by tapping on the door of the car at which they might be engaged, when the northern or outer door was closed. With a knowledge of this custom the plaintiff might reasonably be found by the jury to have been free of negligence while pursuing his labor, expecting to receive warning when warning became necessary. This caséis clearly distinguishable from Johnson v. Railway Co., 140 Mich. 292, cited by defendant’s counsel. In that case plaintiff was violating a rule of his employer, and knew that switching was going on at the time, and yet placed himself in a position of danger. In this case the custom had been to rely upon a warning. 2 Thompson on Negligence, § 1761.

Closely related to the question of contributory negligence and depending upon almostidentical considerations is that of the negligence of defendant. The evidence shows that the defendant’s train crew were accustomed to give warning to the men employed in and about the cars; that the instructions given them by their superiors required it. Clearly a failure to give the customary warning, which the mill employés might reasonably have expected, was a failure to discharge their duty and negligence. Breeze v. Manufacturing Co., 140 Mich. 372; 2 Thompson on Negligence, supra.

Was the defendant responsible for the acts of its trainmen, or was their negligence, if any, to be imputed to Mershon-Schuette.-Parker Company ? The- conductor of the train testified as follows:

Q. The only instructions the foreman of the lumber company gives you is the instructions as to which cars to take out, is it not ?

“A. Yes, sir.

Q. And where to place them if they are not fully loaded ?

“A. Yes, sir.

Q. He gives you no further instructions at all, does he? •

“A. No, sir.

Q. You have the whole movement of the cars under your control, do you not ?

“A. Yes, sir.

Q. And you give the signals ?

“A. Ido.

Q. That is, you and some other trainmen give the signals to the engineer ?

“A. Yes, sir.

Q. The engineer wouldn’t have any authority to respect any signal that Mr. Shea gave, would he ?

“A. Oh, no.

Q. And he wouldn’t respect it ?

“A. No, sir.

Q. And no person about the lumber company has any authority to direct the movement of the engine ?

“A. No, sir.

“ Q. Or of your cars ?

‘‘A. No, sir.

Q. You move your cars there just the same in all particulars as you would on any switch track, do you not ?

“A. Yes, sir.

Q. And as you would on any main track ?

“A. Yes, sir.

Q. The question as to who owns the tracks you don’t know anything about ?

“A. I couldn’t say.”

Upon the question of respondeat superior the case is certainly as strong for the plaintiff as was Joslin v. Ice Co., 50 Mich. 516, which the defendant seeks to distinguish. The case of McInerney v. Canal Co., 151 N. Y. 411, cited by defendant’s counsel, is not consistent with Joslin v. Ice Co., supra. The latter case lays down no new rule, nor does it stand alone. The case of Breeze v. Manufacturing Co., supra, fully supports plaintiff’s contention in this case. In that, case, answering the contention that MacKinnon Brothers were responsible for the negligence of the railroad company’s employes on the ground that they were agents of MacKinnon Brothers, because switching cars in their yard, Mr. Justice Hooker said:

“This claim cannot be sustained. The MacKinnon Company had no supervision or control over the railroad company, or its men. The company was an independent contractor, responsible for its own negligence.”

See, also, 1 Thompson on Negligence, §§ 621, 646.

No error appearing, the judgment is affirmed.

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


text:
    KLEIN v. POLLARD.
    1. Arrest — Without Warrant — Propriety.
    A police officer is not justified in arresting without a warrant a woman quietly walking on the street at a late hour of the night, though she has just emerged from a disreputable saloon, there being nothing to indicate that she is plying a prostitute’s vocation, or intends to do so, by solicitation.

      2. False Imprisonment — Damages — Mitigation — Evidence — Police Orders.
    In an action against a policeman for false imprisonment in arresting plaintiff without a warrant on suspicion that she was a prostitute, defendant is entitled to show in mitigation of damages that his superior officers ordered the arrest of all women found on the street at an unusual hour who failed to give a satisfactory account of themselves, though such arrest was unlawful.
    Error to Wayne; Donovan, J.
    Submitted April 2, 1907.
    (Docket No. 2.)
    Decided July 13, 1907.
    Case by Anna C. Klein against Edward J. Pollard for an assault 'and battery and false imprisonment. There was judgment fór defendant, and plaintiff brings error.
    Reversed.
    Plaintiff is the wife of one William C. Klein, who kept a saloon at 227 Jefferson avenue, in the city of Detroit. In the back part of his saloon was a room with tables for drinking and a bed. The saloon was one of ill repute and the resort of prostitutes. On one occasion a policeman found in this bed the bartender and a prostitute undressed, ánd arrested them. Mr. Klein kept his saloon open during the night, in open violation of the law, and apparently without any effort on the part of the city authorities to compel him to obey the law. The saloon is located in what is known as the “central precinct,” in which are located many, if not most, of the disreputable houses of the city, and where common prostitutes and other criminal classes resort. Counsel for defendant in his brief says:
    ‘ ‘ Practically all disorderly places, houses of prostitution, etc., in the city of Detroit are in the central precinct, which embraces the territory between Hastings street and Fourth street, and running north to Charlotte avenue and Brewster street. Previous to the year 1905 (the time not being disclosed by the record) the number of lewd women plying their vocation on the streets and sitting in saloons waiting for company became so great that, to discourage the trade, a general order was issued to the officers and men of the central precinct to frequently visit all saloons catering to women trade and to bring in all women of known bad repute, or such as might be found on the street at an unusual hour and who failed to give a satisfactory account of themselves. As a result of this order over 400 women were brought in during the year 1905.”
    The proofs establish the above statement. The defendant is a policeman, and his beat in February, 1905, in- . eluded Mr. Klein’s saloon. Plaintiff and her-sister, a girl 16 years of age, after spending the evening upon the streets, went to this saloon about 10:30 o’clock. The sister had made an appointment to meet one Nuss at Klein’s saloon, where he played the piano. The women remained in the saloon until about midnight, when plaintiff’s sister and Nuss went out. A few minutes afterwards plaintiff came out of the saloon, stood for a moment at the door, looking up and down the street, and then with her head” hanging down walked out along the street. The defendant saw her, went to her, and asked her who she was. She testified that she told him who she was. Defendant testified that she told him it was none of his business. She testified:
    “ Is it not a fact, Mrs. Klein, that when you came out ' of that saloon you looked first right and left when you came to the door to see if the coast was clear, and then came down the avenue, with your head hanging down, that you went down Randolph, turned north on Randolph on the east side, and that the officer came along behind you, intercepted you by coming diagonally across Randolph, and intercepted you about half way between the alley and the corner — is that true ?

      “A. Yes, sir.”
    He then, in accordance with his instructions, took her to the police department before the lieutenant in charge. She told the lieutenant who she was, satisfied that officer that her statement was true, and was promptly dismissed. She brought this suit to recover damages for assault and battery and false imprisonment. The case was submitted to the jury who found a verdict for the defendant.
    The charter of the city of Detroit confers upon the common council power to—
    “ Provide for the general peace, order and good government of said city. To ‘ prohibit and suppress the keeping and leasing of houses of ill-fame, or assignation, or for the resort of common prostitutes, disorderly houses, and disorderly groceries. It may restrain, suppress and punish the keepers thereof, and the owners and lessors of such premises; it may punish, restrain and prevent common prostitutes, vagrants, mendicants, street beggars, drunken or disorderly persons.’ To enact all ordinances necessary to carry into effect the powers conferred by law upon said council, and to provide for the punishment of all persons offending against this act, or any law relating to said city, or any ordinance of the common council enacted under this or any other act of the legislature, by imposing fines, penalties, forfeitures and costs, and by imprisonment in the house of correction of said city.” Charter of Detroit (1904), §§ 171, 183,190.
    The charter (§ 665) also provides:
    “It shall be the duty of the commissioner of police and of the force hereby constituted, at all times of the day and night, within the boundaries of said city, to preserve the public peace and prevent crime, arrest offenders and protect the rights of persons and property, guard the' public health, preserve order and enforce all the laws of the State and the ordinances of said city.”

      Acting under this power the common council enacted the following ordinances:
    “All able-bodied persons who, not having visible means of support, are found loitering or rambling about or lodging or loitering in drinking saloons, tippling houses, beer houses, houses of ill-fame, houses of bad repute, vessels, sheds or barns, or in the open air, and not giving a good account of themselves, * * * shall be deemed disorderly persons, and upon conviction thereof shall be punished as hereinafter provided.
    “No person shall keep, within the limits of the city of Detroit, any house of ill-fame, house of assignation, or house for the resort of common prostitutes, or a disorderly saloon, bar-room, tavern, beer hall, grocery, theater; room, ordinary, house or building of any kind, or any house, room or building for gaming with cards, dice, billiards, nine or ten-pin alleys, wheels of fortune, boxes, machines or other instruments or devices whatever, or shall in any manner contribute to the support, carrying on or keeping of any such house or place.”
    The case was submitted to the jury who, after deliberation, returned a verdict for no cause of action.

      Richard I. Lawson and William G. Fitzpatrick, for appellant.

      Fred H. Warren, for appellee.

       As to ’liability of an officer for making an arrest, see note to Leger v. Warren (Ohio), 51 L. R. A. 193.

   Grant, J.

(after stating the facts). 1, The court in his charge said to the jury that it was clearly proven that the saloon from which the plaintiff came at midnight was a disorderly one. The fact so stated is not denied. The court instructed the jury that, if the defendant’s statement as to what happened between him and plaintiff was correct, he was justified under the law in taking the plaintiff to police headquarters for examination by the lieutenant in charge. This presents the principal question in the case. It is the contention of counsel for the plaintiff that her arrest was unlawful because it was without a complaint or warrant, and she was not suspected of having committed a felony, neither was she engaged in commit-

ting a breach of the peace. Tillman v. Beard, 121 Mich. 475 (46 L. R. A. 215), and Robison v. Miner, 68 Mich. 549, do not control this case. In neither of those cases was there any excuse for arresting the party without obtaining a warrant. One was the case of a peddler in a street, the other the case of a saloonkeeper keeping his saloon open at a time prohibited by law. The duty imposed upon the police department to protect the city from vagrants, night-walkers, gamblers, and other sorts of criminals who ply their vocation largely in the night is an important and difficult one. No rule can be laid down governing all the circumstances under which a party under suspicion may be arrested. It is, however, established by a decision of this court (which seems to have escaped the attention of counsel of both parties and of the trial court, as it is not cited in their briefs) that the arrest of plaintiff was unlawful. Pinkerton v. Verberg, 78 Mich. 573 (7 L. R. A. 507). Police officers are not justified in arresting a person quietly walking the streets of the city at any, hour of the night simply because he has emerged from a disreputable place. There is no evidence in this case to show that plaintiff was a prostitute', except the fact that she had been seen in her husband’s disreputable saloon, and came therefrom late in the fiight. She was quiet, peaceable, making no disturbance, and there was nothing to indicate that she was plying a prostitute’s vocation, or intended to do so, by solicitation. The chief difference between the facts of Pinkerton v. Verberg and those of this case are that in the former case plaintiff was arrested while peaceably walking the streets about an hour and a half earlier in the night than was the plaintiff in this case. In the former case the evidence on the part of defendant showed that the plaintiff was a prostitute, while in this case there is no such evidence. The defendant testified that he was in the saloon on the night in question, about a quarter of 11 o’clock, and that—

“It was my duty to go to this saloon every evening when I was on the beat nights, because it was disorderly, prostitutes frequent there and disorderly men and women. We went to look after it, and put. it in good running order, and find who was there.”

If the police department would, by complaints and arrests, enforce the law closing this saloon and others, as the law requires, it would much more effectually prevent disorder than the arrest of parties quietly walking the streets and apparently engaged in no criminal conduct. The better way “to put such places in good running order ” is to compel obedience to the law which governs them. It follows that the arrest was unlawful, and the court should have so instructed the jury.

2. All circumstances which tended to show the good faith of the defendant were admissible in mitigation of damages. It was therefore competent to. show the instruction of the defendant’s superior officers in dealing with persons found upon the streets under circumstances in which the plaintiff was found.

Judgment reversed, and new trial ordered.

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