text:
    LOVETT v. BERMINGHAM-SEAMAN-PATRICK CO.
    1. Landlord and Tenant — Fixtures—Right to Remove — Gas Attachments.
    Gas fixtures and attachments have been uniformly held to be personalty as between vendor and vendee, as they can be removed without injuring the premises and are merely substitutes for lamps and chandeliers, which were always considered personalty. Additions to the real estate to the pecuniary advantage of the tenant are in most instances trade fixtures.

      2. Same — Trade Fixtures — Leases.
    Trade fixtures such as gas lights, lighting appliances and electric motors used by one tenant and which, as between it and the landlord, the prior tenant had a right to remove, were not transferred to the succeeding lessee by a lease which purported by its habendum clause to transfer appurtenances, although the contract provided that the premises be let in their then condition, and the first tenant removed them afterwards.
    3. Same — Contracts—Habendum.
    The language of the habendum cannot enlarge the demise.
    4. Same — Recoupment—Lease.
    On a claim of recoupment by the lessee, because certain fixtures had been removed from the premises that were installed when the defendant executed the lease, plaintiff claiming defendant was informed they belonged to the preceding lessee, the court erred in not directing a verdict for the lessor upon the theory that the title was in the lessee as between it and the landlord and therefore no interest passed to the succeeding tenant by the contract of leasing.
    Error to Wayne; Law, J., presiding.
    Submitted June 7, 1916.
    (Docket No. 7.)
    Decided July 21, 1916.
    Rehearing denied September 27, 1916.
    Assumpsit by Sarah E. Lovett and another against the Bermingham-Seaman-Patrick Company, a corporation, for rent. Defendant presented a notice of set-off and recoupment. Judgment for defendant. Plaintiffs bring error.
    Reversed.

      James G. McHenry, for appellants.

      Lloyd T. Chockley, for appellee.
    Plaintiffs in this action brought suit to recover two months’ rent of a five-story building leased by defendant company from them. Defendant does not deny that it owes plaintiffs the amount of rent claimed, but it filed with its plea a notice of set-off and recoupment, based upon the claim that it had been damaged by reason of the failure of plaintiffs to fulfill the covenants of the lease. The lease itself was entered into on the 9th day of November, 1912, and provided - for a term of ten years, to begin on the 1st day of December, 1912. Important and controlling provisions of the lease follow. The granting clause:
    “Land known as lots eighty-four (84), eighty-five (85), and eighty-six (86), Military Reserve, with the building thereon; said premises being situated o.n the southeast corner of Cass and Larned streets, in the city of Detroit, to be used and occupied as a wholesale paper house. Together with all and singular the benefits, liberties and privileges to the premises belonging.”
    The habendum clause:
    “To have and to hold the said demised premises, with the appurtenances, unto the said party of the second part, its executors, administrators and assigns,” etc.
    The further agreement:
    “Party of the second part expressly agrees to take the premises in their present condition, and make, at its own cost, all repairs to the interior of said building, and keep each and every part thereof in good repair, during the term of this lease, repairing and replacing any part or parts thereof, broken or removed, including glass of all kinds, gas, water, and steam pipes, waterclosets, wash stands, sinks, sewers and water boilers, and connections.”
    It appears that the premises leased were, on the 9th day of November, 1912, when the lease in question was made, occupied by the Jacob F. Maier Company under a lease which had not, at that time, terminated, but which by agreement between the parties was to terminate on December 1, 1914, at which time defendant’s lease became operative. It further appears that the Jacob F. Maier Company had become financially embarrassed, and had executed a trust mortgage for the benefit of its creditors to one E. W. Hurd, as trustee, and that said Hurd as such trustee was in possession of the assets of the said J. F. Maier Company-in the premises on November 9,1912. The record discloses that after the lease was executed on the 9th of November, but before the 1st of December, through the courtesy of said Hurd, defendant was permitted to move a large portion of its stock in trade into the de.mised building, and that during the occupancy of the premises by the J. F. Maier Company that company had installed certain fixtures, including the following: Three gas arc lights for the shipping room, three gas arc lights for the office, two elevator motors and connections, and heating radiation upon the second, third, and fourth floors. On November 20, 1912, Hurd, as representative of the estate which he had in charge, notified the defendant company of his ownership of the gas arc lights, the elevator motors, and the steam pipes on the second, third, and fourth floors, suggesting that the defendant purchase such of them as it desired to retain. He said:
    “We realize that some of these will be of value to you, and we do not expect to ask you to buy any parts that you cannot use.”
    As suggested in this communication from Hurd, defendant, on December 3, 1912, purchased the six gas arc lights for the sum of $50, and on January 31, 1913, purchased and paid for the two elevator motors, with their connections, for the sum of $350. Defendant did not elect to purchase the steam-heating radiation on the second, third, and fourth floors, whereupon Hurd took it down and sold it for the sum of $200. It is the claim of defendant that on November 23, 1912, it caused the following letter to be written to the plaintiff Sarah Lovett:

      “Nov. 23, 1912.
    “Mrs. Sarah E. Lovett,
    “City.

      “Dear Madam:

    “We are in receipt of a letter from Mr. E. W. Hurd, representative for the Jacob F. Maier Co.
    “He claims that with the exception of the radiators in the office, shipping office, and one large radiator in the general shipping room, which were in the building when they took it, they own the balance of the heating apparatus and are now taking the pipes, etc., from the second and third floors. They also claim as their property all electric wires and fixtures, all gas lights and piping and also two electric elevator motors and connections.
    “We are rather surprised that this should be taken up with us at this time as our lease states that we are to accept the building in its present condition at the time this lease was signed. We, therefore, think the above matters should be settled between Mr. Hurd and yourself. We would appreciate very much if you will take these matters up with Mr. Hurd as we do not wish to be caused any delay.
    “Yours very truly,
    “Bermingham-Seaman-Patrick Co.,
    “Robt. A. Patrick, President.”
    Mrs. Lovett upon the stand denied the receipt of this communication. In support of its claim of set-off and recoupment, defendant through its president, who conducted negotiations for the lease, claims that it never had notice of the fact that the Jacob F. Maier Company had or claimed title to the lighting fixtures, elevator motors, or the radiation. Plaintiffs placed upon the stand Henry G. Wormer, who negotiated the lease on their behalf, and sought to show by him that the defendant was notified before the lease was executed that the personal property in question belonged to the Jacob F. Maier Company. Under objection this testimony was excluded, apparently upon the ground that its admission would tend to vary the terms of the lease which was thereafter executed. A motion to direct a verdict in behalf of the plaintiff was denied by the court, who charged the jury in part as follows:
    “It is the conclusion of the court that the heating plant, the electric motors and the arc light system were appurtenances, under the terms of the written lease. ‘Appurtenances’ as the term is used in the lease means such things as are actually and properly necessary for the enjoyment of the five-story building leased. Appurtenances are necessarily of a corporeal nature and corporeal things, like a heating plant, electric motor, and arc lights, may be appurtenances. This word is used in. this lease, and it must be considered in connection with it. A thing is appurtenant to something else when it is necessarily connected with the use and enjoyment of the whole, and it is the duty of the court to construe the written lease, and in construing it the court has a right and it is its duty to consider the situation of the party. The defendant leased from the plaintiffs the five-story building to be used and occupied as a wholesale paper house for the term of ten years. When leased, this building was equipped, as the defendant claims, with a heating plant, with electric elevator, motors, and with arc lights. The court holds that the defendant has a right to recoup or recover against the plaintiff in this case the loss of which it has suffered by reason of the removal of the plant or heating pipes, the electric motors and the arc lights, subject to the rules of law which the court will hereinafter give to you.”
    The jury returned a verdict in favor of the defendant upon its claim of set-off and recoupment as follows: For loss of heat for 31 months, $30 per mo____ $930 00
    For the motors and gas arcs.................. 446 70
    Total ................................... $1,376 70
    After deducting the amount of plaintiff’s claim for rent which it was conceded amounted to $1,145.96, defendant had judgment for the balance, $230.74.
   Brooke, J.

(after stating the facts). The primary question for determination is whether the court was in error in holding, as a matter of law, that the steam pipes for radiation on the second, third, and fourth floors, the arc lights, and the electric elevator motors, passed to the defendant under the terms of the lease. It is undisputed in this record that the plaintiffs never owned, or claimed to own, any of the property in question, unless a claim of ownership is to be inferred from the language of the conveyance (lease). In the early case, of Adams v. Lee, 31 Mich. 440, this court through Justice Cooley said:

“When the ownership of the land is in one person, and of the thing affixed to it is in another, and in its nature is capable of severance without injury to the former, the latter cannot, in contemplation of law, become a part of the former, but must necessarily remain distinct property, to be used and dealt with as personal estate only.”

In that case the machinery was annexed to the building in a substantial 'manner, and was such as was used in the manufacture of wool. In Scudder v. Anderson, 54 Mich. 122 (19 N. W. 775), the property in question included several hundred feet of gas pipe which was affixed to the freehold. The court said:

“But movable pipes, or anything else, which are in fact moved from time to time, and used for different purposes and in different places, could hardly be so considered [i. e., as fixtures annexed to the freehold] ”

—and further:

“It is impossible to regard personal property capable of removal from the land, which does not belong to the landowner, as part of the realty” (citing Adams v. Lee, supra, and Robertson v. Corsett, 39 Mich. 777).

In Felcher v. McMillan, 103 Mich. 494 (61 N. W. 791), after holding that iron pillars, plate glass fronts, partitions with refrigerators, mirrors, etc., were not trade fixtures, but passed with the realty, the court said:

“This might not apply to the chandeliers and such articles as are temporarily attached and can be removed by unscrewing, the removal of which would not mar or injure the walls or partitions.”

See, also, Bronson on Fixtures, § 53, where the rule is stated as follows:

“Gas chandeliers and gas burners screwed on the ends of gas pipes have be.en uniformly held to be personalty, even as between vendor and vendee, on the ground that they are removable without injury to the premises, and are merely substitutes for lamps and chandeliers, which were always considered personalty.”

The general rule is stated in 19 Cye. p. 1065:

“Where additions to the realty are to the pecuniary advantage of the tenant, they are probably ‘trade fixtures.’ ”

In Bowen v. Quigley, 165 Mich. 337 (130 N. W. 690, 34 L. R. A. [N. S.] 218), this court defined the word “fixtures” as:

“Such chattels as merchants usually possess and annex to the premises occupied by them, to enable them the better to store, handle, and display their goods and wares. * * * They are generally removed without material injury to the premises” (citing cases).

As between plaintiffs and the Jacob F. Maier Company, there can be no doubt that the Jacob F. Maier Company had the right to remove the property in question upon the expiration of its lease, it being the unquestioned owner thereof, it follows, therefore, that, there being no unity of title as to the fixtures in question and the realty demised, the title to the fixtures did not pass to the defendant by the lease in question.

Much argument is indulged in on behalf of defendant as to the meaning of the word “appurtenances.” It may be noted that the word appears only,in the habendum clause, and not in the granting clause. It is elementary that the language of the habendum cannot enlarge the demise. 2 Am. & Eng. Enc. Law (2d Ed.), p. 526, and eases there cited.

We conclude that the court was in error in holding as indicated in that part of the charge quoted, and that a verdict should have been directed for the plaintiffs for the amount claimed.

The judgment is reversed and new trial ordered.

Stone, C. J., and Ostrander, Bird, Moore, Steere, and Person, JJ., concurred with Brooke, J. Kuhn, J., concurred in the result.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    GRAND COURT OF MICHIGAN, FORESTERS OF AMERICA, v. COURT GERMANIA NO. 1, GERMAN-AMERICAN FORESTERS.
    Insurance — Mutual Benefit Associations — Secession — Diversion of Funds from Intended Purpose.
    Upon the secession for cause of a subordinate court chartered by the Grand Court of Foresters of America, the cause alleged being a substantial change in the government and policy of the main body, whose charter provided that money of the subordinate courts should be forfeited to the Grand Court, in case the lower body was found guilty, etc., the funds of the seceding body, that was found by the trial court to be justified in withdrawing, were rightly retained by the local court, where, by the charter, the fund was raised wholly through voluntary contributions of the lodge and the superior court contributed nothing to the fund and had no interest in it.

      Appeal from Wayne; Lamb, J., presiding.
    Submitted April 20, 1916.
    (Docket No. 70.)
    Decided July 21, 1916.
    Rehearing denied December 22, 1916.
    Bill by Grand Court of Michigan, Foresters of America, a mutual benefit insurance association, against Court Germania No. 1, German-American Foresters, and others for an accounting and other relief. From a decree for defendants, complainant appeals.
    Affirmed.

      Jonas B. Houck (Brakie J. Orr, of counsel), for complainant.

      Zimmer & Chedester, for defendants.
    Complainant, the Grand Court of Michigan of the Foresters of America, a Michigan corporation, having authority by charter from the Supreme Court of the Foresters of America, instituted and chartered Court Germania No. 19, Foresters of America. On or about November 1, 1913, Court No. 19, by unanimous vote, seceded and surrendered its charter to the Grand Court because of certain changes in the government of the order made by the Supreme Court. On the same day Court No. 19 unanimously voted to become members of Court Germania No. 1, German-American Foresters, and to transfer its funds to said Court No. 1.
    In the Order of Foresters there are three courts: (1) The Supreme Court; (2) the Grand Court, which receives its charter from the Supreme Court; (3) subordinate courts, receiving their charters from the Grand Courts. Each Grand Court has a “Grand Court Funeral Fund,” to which each subordinate court may belong and pay 25 cents for each member per quarter. Court No. 19 did not belong at the time of its dissolution, nor had not for some time previous belonged, to “the Grand Court Funeral Fund.”

      According to the constitution governing subordinate courts, all receipts for initiation fees and dues were to be placed in a “General Fund,” this money to be used by such subordinate court to pay sick and funeral benefits, salaries of officers, etc. At the time of its dissolution Court No. 19 had in its “General Fund” $3,?82, which was turned over to Court No. 1. According to a clause in the constitution governing all of the courts, any court may be dissolved for bad conduct, etc., and any money, regalia, etc., belonging to such court shall be forfeited to the Grand Court, and placed in the “Grand Court Sick and Funeral Fund.” When Court No. 19 voted to disband and return its charter the Grand Court placed Court No. 19 on trial for improper conduct, found it guilty, dissolved same, and declared all funds and effects of said court forfeited to the' Grand Court.
    The funds of Court No. 19 at its dissolution were placed in the Penobscot safety deposit vault, Detroit, Mich., and the uniforms, regalia, etc., turned over to Court No. 1. The officers of Court No. 19, when installed, took an obligation to abide by its rules, and to turn over to successors, or to some person duly authorized to receive same, all money, books, and property of the court in their possession. Every candidate for membership obligated himself to abide by the rules of the order.
    It was the contention of the plaintiff that the defendant was guilty of misappropriating said funds by not observing the rules in the constitution governing said Court No. 19, and that said court was therefore liable to plaintiff. Defendant claimed that, as the fund in question was. created wholly from the voluntary payments of members of Court No. 19, and for the express benefit of such members, they could not be deprived of its beneficial use upon secession.
    The circuit court decreed that Court No. 19 was justified in seceding and surrendering its charter because of the course taken by the Supreme Court in amending the constitution in 1913, such amendments being subversive of the best interests of said Court No. 19, and that the fund in question, raised voluntarily by its members, was by implication a trust fund, for the sole use and benefit of the members of said court, and that it was just that they should retain same, as members of Court No. 1. From this decree plaintiff appeals.

      As to right, upon dissolution of benefit association, or local branch thereof, to funds voluntarily accumulated by the branch, to be expended solely for the benefit of its members, see note in 15 L. R. A. (N. S.) 336; and as to right to property of local branch of benefit society in event of secession or attempted secession, see note in 47 L. R. A. (N. S.) 927.

   Brooke, J.

(after stating the facts). The authorities bearing upon the question at issue are not harmonious. It is the plaintiff’s contention that, even though the fund in question was raised wholly from voluntary payments made by the members of Court No. 19, it was so raised under the constitution- and by-laws of the order, and, upon the dissolution of Court No. 19, became the property of the Grand Court by operation of law under the constitution of the order. This view finds support in the following authorities: Grand Lodge A. O. U. W. v. Grand Lodge, 81 Conn. 189 (70 Atl. 617); Koerner Lodge K. of P. v. Grand Lodge, 146 Ind. 639 (45 N. E. 1103); Gross Loge D. O. H. v. Brausch, 256 Ill. 185 (99 N. E. 908); Grand Court F. of A. v. Hodel, 74 Wash. 314 (133 Pac. 438, 47 L. R. A. [N. S.] 927); State Council O. U. A. M. v. Sharp, 38 N. J. Eq. 24. There is, however, a line of authority holding exactly the opposite view. Outside the State of Michigan the leading case appears to be State Council O. U. A. M. v. Emery, 219 Pa. 461 (68 Atl. 1023, 15 L. R. A. [N. S.] 336, 12 Am. & Eng. Ann. Cas. 870).

The law of the case, if we follow our own decisions, seems to be settled adversely to the contention of the appellant. Upon principle the case of Detroit Savings Bank v. Haines, 128 Mich. 38 (87 N. W. 66), cannot be distinguished from the case at bar. There, as here, the members of a subordinate fraternal body seceded and attempted to take with them the sick benefit fund; there, as here, the fund was raised wholly by the voluntary contributions of the members of the subordinate lodge; there, as here, the superior body contributed nothing to the fund and obtained its revenue entirely outside of the fund in question.

The by-laws relating to the Grand Court provide:

“The revenue of the Grand Court shall be from a per capita tax as may be determined by each Grand Court, for every member of a subordinate court within its jurisdiction; from a profit on all the goods sold by each Grand Court and from fines collected for violation of law paid to the management fund.”

It is clear, therefore, that the Grand Court had no interest in this fund, unless a forfeiture was worked by the expulsion of Court No. 19 by the Grand Court. If forfeiture of the fund follows upon the secession and subsequent expulsion of Court No. 19 (and some courts unquestionably so hold), it results in a diversion of the fund from the purpose for which it was created; i. e., the payment of sick and death benefits to the members of Court No. 19 (now members of Court No. 1). We are satisfied that our holding in Detroit Savings Bank v. Haines, supra, should not be disturbed, and that the bill of complaint in the case at bar was properly dismissed.

The decree is affirmed, with costs.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.


author: Stone, C. J.

text:
    TUTTLE v. EMBURY-MARTIN LUMBER CO.
    1. Master and Servant — Independent Contractor — Control of Servant — Right to Interfere.
    The test as to whether the relation is that of master and servant or independent contractor is the right to control the servant; it is not the fact of actual interference with the control, but the right to interfere, that distinguishes an independent contractor from a servant or agent.
    2. Same — Liability of Employer.
    So, where claimant’s husband was accidentally killed while hauling logs for a lumber company under an oral contract to haul with his own team, using a pair of sleighs owned by the company, at $2 a thousand, but subject to the same general conditions and control as the other employees of the company who were paid by the month, he was an employee within the provisions of Act No. 10, Extra Session 1912, so as to render the company liable to claimant.
    3. Customs and Usages — Contracts — Notice — Evidence — Presumptions.
    The admissibility of evidence as to a custom or usage is based upon the fact that both parties to a contract were cognizant of it, and are presumed to have made their engagement with reference to it.
    4. Same — Master and Servant — Independent Contractor — Evidence.
    So, where there was no evidence that claimant’s husband had any knowledge of any custom or usage to treat those who hauled by the thousand differently from those who worked by the month in the manner or nature of the control exercised over them by the employer at the time he engaged with defendant, or that he contracted with reference thereto, evidence as to any such custom was inadmissible for the purpose of establishing the relation of independent contractor rather than that of employee.

      Certiorari to the Industrial Accident Board.
    Submitted June 7, 1916.
    (Docket No. 15.)
    Decided July 21, 1916.
    Sarah Tuttle presented her claim for compensation against the Embury-Martin Lumber Company and the Lumbermen’s Mutual Casualty Company for the death of her husband in defendant lumber company’s employ. From an order awarding compensation, respondents bring certiorari.
    Affirmed.

      Adams, Crews, Bobb & Wescott (Jewell & Smith, of counsel), for appellants.

      James F. Shepherd, for appellee.
   Stone, C. J.

The question involved in this case is whether Ephraim Tuttle, the deceased husband of Sarah Tuttle, the applicant, was an independent contractor or an employee within the provisions of the workmen’s compensation act. The Industrial Accident Board found that his relation was that of employee, and from that finding the respondents have brought the case here by certiorari.

Ephraim Tuttle, for whose death applicant claims compensation, was engaged in hauling logs for the Embury-Martin Lumber Company, near Cheboygan, on January 8,1915, and met his death by being thrown from a load of logs while he was driving the team drawing the load between the skidway, where the logs were loaded, and the mill, where they were to be delivered. Tuttle was working for the company under the following agreement, as testified to on direct examination by E. L. Slade, woods superintendent of the company:

“Mr. Tuttle came to the office in the afternoon — I can’t tell you the date, it was in the neighborhood of 10 days or two weeks before this accident occurred— and wanted to haul logs, and he wanted to know how we were hiring and I told him. I told him we had all the teams by the month that we could use, on account of our barn room; our barn was full and was hired ahead. He said he could stay at home and haul by the thousand, and I hired him to haul by the thousand, at $2 a thousand, and we were to furnish the sleighs, and there was a certain pair of sleighs that the company had that he had hauled on the winter before, that had a short tongue, that he wished to use, and he came to town and brought those sleighs back with him. He used those sleighs one day, on the Monday before. * * * Later in the week Mr. Tuttle called me up by phone. He fixed our telephone line — the wind blew it down, blew a tree across it or something. Anyway, he fixed the line up voluntarily; he done it on his own accord, but he received his pay for it from the office; I guess he got some tobacco and things that the clerk gave him for his services. I guess he was coming over to the office on purpose to see about hauling.
“Q. What was the conversation over the telephone?
“A. He wanted to know if he could start hauling again, and I told him yes, to start on in the morning.
“Q. When was that?
A. That was the evening of the 7th.
“Q. Was that all that was said over the phone?
“A. That is all I remember being said. It was a very short conversation.
“Q. Now, when hauling was done for you by the thousand feet, was it done on any particular days?
“A. No, it was any day they are a mind to come after a load.
“Q. Or with any regularity at all?
“A. No, they were loaded in turn as they came.
“Q. Were there any specifications made on a man’s haul on any particular day?
“A. No, sir.
“Q. Did you determine — did the Embury-Martin Lumber Company or anybody in its behalf determine the size of his loads?
“A. No, sir.
“Q. Who did?
“A. He did, himself.
“Q. Does the Embury-Martin Lumber Company determine the size of the loads hauled by your employees?
“A. It is simply up to the foreman and condition, of his roads.
“Q. Do you give — does the Embury-Martin Lumber-Company or any of its employees give persons who-are hauling by the thousand feet any directions as to how they shall haul — as to the manner of their hauling —as to how rapidly they shall haul, or anything at all?
“A. One trip a day. We haul from that job one trip a day.
“Q. You mean that is all you can haul?
“A. That is all you can haul — one trip a day.
“Q. But you don’t have any requirements by which they haul one trip a day?
“A. No, sir.
“Q. Or any particular number of trips?
“A. No, sir.
“Q. You simply tell them to haul from the skidway?
“A. To the mill.
“Q. To the mill?
“A. Yes, sir.
“Q. These people who haul by the thousand feet handle the logs at that end to where they are hauling, did they?
“A. Yes, sir.
“Q. They come and go where they please, and haul such loads as they please?
“A. Yes, sir. , '
“Q. When are they paid?
“A. They are paid -whenever they call for their money at the office.
“Q. At any time?
“A. The load is scaled there, and they are given a slip or scale sheet and they can get their money then or let it stand for a week. They can have it any night after it is scaled.
“Q. That is the practice, is it?
“A. That is the practice.”

Upon cross-examination, the following testimony was given by this witness:

“Q. Did you employ Mr. Tuttle to haul any particular number of thousand feet?
“A. No', sir.
“Q. Did you hire him to haul any designated lot of logs, I mean, outside of the general mass that you had out there?
“A. No, sir.
“Q. He didn’t agree that he would haul 100,000 or 50,000, or any particular quantity?
' “A. No, sir; we didn’t let any jobs of any kind in that way.
“Q. Whose employees load the sleighs?
“A. Embury-Martin Lumber Company’s.
“Q. What would he, Mr. Tuttle, be doing — I am taking him as one hauling by the thousand — what would he be doing as the logs were loading?
“A. We load the sleighs with a jammer, and they use the team on the cable at the jammer.
“Mr. Kennedy: Whose team do you use?
“A. The team we are loading; whosever team is on the sleigh. ^
“Q. Did you use Mr. Tuttle’s when he was there?
“A. Yes, sir.
“Mr. Shepherd: So that Mr. Tuttle would be busy while the sleigh was loading, then?
“A. Yes, his team would be busy, and he would be busy, yes. The team they place on the sleighs — their own, yes.
“Q. He would be handling the team?
“A. Yes, sir.
“Q. Who fastens the chains around the logs and sees that they are secure on the load?
“A. The laborers.
“Q. Embury-Martin Lumber Company’s employees?
“A. Yes, sir.
“Q. Mr. Liddy, for instance?
“A. Yes sir, there is three men in the gang.
“Q. How many men usually ride on a load down town — I mean in the course of business — I don’t mean anybody that might catch on?
“A. One man, the driver.
“Q. Is there any difference in that regard as between men who are paid by the thousand and the men who work by the day?
“A. In regard to how many ride?
“Q. Yes.
“A. Why, no. That is his own option.
“Q. You said the man handled the haul himself after the load was on the sleighs?
“A. Yes, sir, after he left the skidway — after he got on his load, why, that was his load to go with — he handled that to the mill.
' “Q. That was so of those who hauled by the thousand as well as those that worked by the day?
“A. Yes, sir.
“Q. So far as that was concerned, there wasn’t any difference between the two classes of men?
“A. Not in regard to handling the load. * * *
“Q. Let me ask this: Was this haul, on which he was found dead, on one of the Embury-Martin logging roads? Was that a road that was built by them?
“A. Yes.
“Q. For the purpose of hauling their logs from camp to the mill?
“A. Yes.
“Q. At Cheboygan?
“A. Yes, sir.
“Q. It was not a public highway?
“A. No, sir.
“Q. Was there any other place for men to haul logs from your camps, except the mill at Cheboygan?
“A. No, sir.
“Q. And you didn’t haul logs from any other spot to the mill, except from those camps?
(‘A. No, sir.”

The man who loaded the sleighs, and was called the “top loader,” testified, among other things, as follows:

“Q. Did you put any logs on the sleighs of Mr. Tuttle?
“A. I did.
“Q. When was that?
“A. The 8th of January — the morning of the 8th. * * *
“Q. Do you know how many logs — how many loads of logs he hauled that day?
“A. That was his first trip that he made to our gang.
“Q. Who directed him where to get the logs?
“A. I couldn’t tell you. I presume the foreman did, though; it would be his place to.
“Q. Was the team brought up to the logs, or did you roll the logs to the team?
“A. Well, the sleighs were set there, and what didn’t roll we dragged up.
“Q. The logs were in a certain place? .
‘A. They were on a skidway, yes, sir.
.‘<9. Whose logs were they?
“A. Embury-Martin Company’s.
“Q. Do you know who they were put on the skid-way by?
“A. I do not, they were skidded before I went there. * * *
“Q. Mr. Tuttle told you when to stop loading, didn’t he?
“A. Sure.
“Q. That is, he said when he had enough logs?
“A. Certainly.
“Q. There were some men working there by the month and others worked hauling by the thousand, were there not?
“A. Yes, sir.
“Q. There were about 21 or 22 teams there at that time hauling by the thousand, weren’t there?
“A. I couldn’t say for that.
“Q. There were quite a number?
“A. Quite a number of teams.
“Q. They wouldn’t come necessarily, with any regularity, would they, that is, some might come one day and then not come for a day or so, and then come another day?
“A. Some that way, and some wouldn’t.
“Q. That is, some would come off and on?
“A. Yes, some of them would.
“Q. And those that hauled by the thousand would determine for themselves how many logs they would haul, would they not?
“A. Yes, and also the whole of them tried—
“Q. Eh?
“A. The most of them.
“Mr. Kennedy: That is, you wouldn’t load more on one team if—
“A. If they didn’t want to take it, I wouldn’t try it.
“Q. Well, it is true, isn’t it, that if, some one who was hauling by the day came up with a sleigh, or some one who was employed by the month or by the day, he wouldn’t be allowed to go off with just a small load would he, with a few logs on?
“A. If I will be permitted, I would like to explain. I can explain it better than you can ask the questions.
“Q. All right, go on.
“A. The morning he came there, being the first trip —the foreman told me to put on a certain number of logs: — I asked him whether he was hauling by the thousand or by the day, and he told me he didn’t know until he saw Mr. Slade; so I put on logs until I got the sleigh loaded.
“Mr. Kennedy: They all got their loads at the same place?
“A. No, we had out other teams that morning, there was other teams to the other gangs.
“Q. The logs were all from the same land and from the same company?
“A. Yes, sir.”

It further appeared that Mr. Tuttle did not live in the camp as did the other men, but lived at home. He fed and cared for his own horses. The load tipped over a short distance from the skidway, and deceased was crushed between two logs and died from his injuries on the same day. The Embury-Martin Lumber Company had three classes of men hauling logs from their camp to the mill at Cheboygan. The first class used company teams and the men were paid by the ■ month; the second class used their own teams, were boarded at the camp and were also paid by the month; the third' class used their own teams and company sleighs, and were paid by the number of thousand feet of logs they hauled to Cheboygan.

As already appears, the work of hauling logs, at the time and place where Tuttle was employed, consisted of loading the logs upon the sleighs, which was done by a loading crew at the skidway under the direction of the foreman or top loader. The logs were placed on the sleighs by an apparatus called a “jammer,” which consisted principally of a wire cable running through a. block. A sleigh could only be loaded at a skidway where a jammer was set. The team on the sleigh to be loaded was hitched to one end of the cable and the other to the logs to be loaded. The team was then handled and driven by the driver, whether Working by the month or by the thousand, under the direction of the foreman or top loader in charge of the loading crew. The logs were then fastened on the sleighs by the loading crews. The driver then drove to Cheboygan with the load of logs. No one accompanied the driver on the road to the mill. Where the injury occurred Mr. Tuttle was using a road built and maintained by the Embury-Martin Lumber Company. At the mill the driver placed the load of logs wherever directed by the company’s foreman. The logs were unloaded by an unloading crew. The person hauling by the thousand did nothing with respect to unloading unless he so desired. Sometimes he assisted in unloading, but it was not required of him. The manner in which the work of transporting logs from the skid-ways at the camps to the mill was the same, whether the driver was paid by the month or by the thousand. Neither Mr. Tuttle, nor those who hauled by the thousand, agreed to haul any particular kind, quantity,'or designated load of logs; they took logs from the same general mass which the others hauled from. The vice president of the company testified, among other things, that the foreman could prevent a man working by the thousand from taking a load if he so desired. Nothing was specifically said to Mr. Tuttle when he was employed about any custom among those who hauled by the thousand, nor was there any evidence that he knew of any custom.

The appellants contend that the conditions surrounding Tuttle’s relation with the Embury-Martin Lumber Company contain eight elements which marked him as an independent contractor, and not an employee; and that in cases of this character the courts of this State, and of England, and the industrial boards and courts in the United States, have determined that a man in Tuttle’s relationship, as defined by these eight elements, is an independent contractor. The eight elements are as follows:

(1) Furnishing own equipment. Tuttle used his own equipment, horses, etc.

(2) Compensation by amount of work done. Tuttle received $2 per thousand for the logs he hauled.

(3) Control of working hours. Tuttle worked when he wished to and not otherwise. He could start work any time of the day.

(4) Control of the amount of work done. Tuttle could determine the size of the loads he hauled.

(5) Control of the manner of the work. Tuttle got his logs where he wished and was under no control while hauling.

(6) Freedom from supervision. Tuttle, did not live in camp under the supervision of the foreman or other persons. He did not have to unload his logs as did the employees of the company.

(7) Control and care of equipment. Tuttle controlled and cared for his own team and equipment.

(8) Right to hire substitute or assistant. Tuttle could have sent a substitute or another man with another team if he had one.

It is urged by appellants that the distinction of the common law, between an employee and an independent contractor, exists under the workmen’s compensation act, and it has been so held in other jurisdictions, citing Massachusetts, Cálifornia, Illinois, and rulings of State boards; also Curtis v. Plumtre (Court of Appeals of England), 6 B. W. C. C. 87, and the following Michigan cases are also cited: De Forrest v. Wright, 2 Mich. 368; Riedel v. Moran, Fitzsimons Co., 103 Mich. 262 (61 N. W. 509); Wright v. Manufacturing Co., 124 Mich. 91 (82 N. W. 829, 50 L. R. A. 495); Lenderink v. Village of Rockford, 135 Mich. 531 (98 N. W. 4); Burns v. Paint Co., 152 Mich. 613 (116 N. W. 182, 16 L. R. A. [N. S.] 816); McBride v. Shingle Co., 173 Mich. 248 (138 N. W. 1077), and numerous cases in foreign jurisdictions.

The appellee calls attention to section 5, part 1, of the workmen’s compensation law of this State (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5423 et seq.), which provides that the following shall constitute employers subject to thfe provisions of the act:

“Every person, firm, and private corporation, including any public service corporation, who has any person in service under any contract of hire, express or implied, oral or written. * * *”

The appellee further contends that there is not only sufficient evidence in the record upon which the accident board could properly find claimant’s husband was “in service under a contract of hire,” but also that under the rules of law he was a servant as distinguished from an independent contractor; that the testimony of Mr. Slade, the woods superintendent, is to the effect that there was a contract of general employment. The following Michigan cases are cited by appellee: Lewis v. Brick Co., 164 Mich. 489 (129 N. W. 726); Ripley v. Priest, 169 Mich. 383 (135 N. W. 258). And the following authorities are cited from other jurisdictions: Kniceley v. Railroad Co., 64 W. Va. 278 (61 S. E. 811, 17 L. R. A. [N. S.] 370, and note); State, ex rel. Virginia & Rainy Lake Co., v. District Court, 128 Minn. 43 (150 N. W. 211). The opinion in the last-cited case is quoted from at length.

Appellee’s counsel urges that the eight elements set up by the appellants are not supported by the record, or are not controlling. We quote from appellee’s brief:

“(1) Furnished own equipment. Tuttle used his own team and company sleighs. Under Lewis v. Brick Co., supra, and State, ex rel. Virginia & Rainy Lake Co., v. District Court, supra, this factor is immaterial Furnishing his own team was analogous to the laborer who used his own lights and explosives in the Lewis Case, and the woodsman using his own tools in the Minnesota Case.
“(2) He was compensated by the amount of work done. Piecework does not constitute the laborer who does it an independent contractor. Lewis v. Brick Co., and State, ex rel. Virginia & Rainy Lake Co., v. District Court, supra; Kniceley v. Railroad Co., supra; Ripley v. Priest, supra.
“(3) Control of own working hours. This is not true. He could only work when and where the jammers were set. He could only haul one load a day, and that is all any one could haul from the camps to the mill in Cheboygan. He could only get a load when the loading crew gave it to him, and they could refuse him a load if the company wished.
“(4) Control of the amount of work done. See Lewis v. Brick Co., and the other cases cited. Like any other laborer he could quit. The employer could also discharge him. In the Lewis Case the court held the plaintiff to be a servant notwithstanding ‘They (the laborers) furnished lights and explosives, or the cost of them, and were generally masters of their time 'and the efforts they should make.’
“(5) Control of the manner of work. The statement in appellants’ brief, ‘Tuttle got his logs where he wished and was under no control while hauling,’ is not borne out by the record as to getting the logs where he wished. He could only get logs at the skid-ways where the jammers were set. He did not control the manner of work done. Embury-Martin Lumber Company’s woods superintendent testified:
‘Q. And where they loaded was under your direction was it?
‘A. Yes, sir; they couldn’t load any other place only where we had our jammers set to load.’
• “As to control while hauling, no one controlled any of the drivers either by the month, day, or thousand, except when loading or unloading. There is no difference, in this respect between admitted employees of the lumber company, paid by the month, and Mr. Tuttle.
‘Q. You said the man handled the load himself after the load was on the sleighs?
‘A. Yes, sir; after he left the skidway — after he got on his load, why, that was his load to go with — he handled that to the mill.
“ ‘Q. That was so of those who hauled by the thousand as well as those that worked by the day?
‘“A. Yes, sir.
‘Q. So far as that was concerned, there wasn’t any difference between the two classes of men?
‘A. Not in regard to handling the load.’
“(6) Freedom from supervision. This is not true. At the only points where drivers came in contact with any necessity of supervision, they were controlled and directed. They could only get loads where the jammers were set; they loaded the sleighs with their own teams under the direction of the employer’s foreman or top loader; the employer’s servants fastened the load on the sleighs; he drove over roads built and maintained by the employer to its mills at Cheboygan, where he was directed where to place the load for unloading. None of the drivers, either by the thousand or day or month, unloaded or were required to assist in unloading. They could be controlled by the power of the employer to discharge. There is no testimony in the record to bear out the statement in appellants’ brief, 'he did not have to unload his logs as did the employees of the company,’ if by employees is meant drivers by the month. As far as living in the company’s camps are concerned, living in camps or out of them does not bear on the question. The control of the means which the employer has over a servant does not go to the extent of controlling anything but the doing of the work which he has been engaged to do. One may be and is a servant of another without the control of the employer over his meals, lodging, and personal conduct outside of working hours. I have failed to find any case anywhere, or any semblance of authority for the statement, that there is any rule of law that control of anything except the work itself, in which the laborer is engaged, has any bearing whatever on the question. As far as doing the work was concerned, that is, hauling logs to Cheboygan from these camps, there was no difference whatever between those who were paid by the day or month and Mr. Tuttle. Both were employed generally, although the rate of pay was different.-
“ (7) Tuttle owned the team he used and as owner had the right to manage it, subject to the directions of the employer while doing the employer’s work. He drove the team in loading and went ahead and backed up as directed by his employer’s foreman. Any pieceworker who uses his own tools naturally cares for them. Tuttle’s tools were a team of horses.
"(8) Right to hire substitute or assistant. This statement that Mr. Tuttle could have sent a substitute or another man with another team is not borne out by the record in any manner whatsoever. The contract between himself and the employer hereinbefore stated was for Tuttle to haul logs. No one else was mentioned. He, himself, personally, with his team was hired to haul logs. * * * He asked for work and it was given to him. He had no more right to send a substitute or employ assistants at his employer’s expense than a ditch digger has who sends a man in his place. If the employer accepts the substitute, of course he would have to pay him, but the contract gave Tuttle no such privilege. If it did, however, Tuttle was killed and not a substitute or assistant. The testimony in the record that some men had more than one team hauling, or brought a load in and were paid for it, is beside the point. In one instance they made arrangements before hauling, and in others they were volunteers whose labor was accepted and paid for.”

In the recent case of Gall v. Detroit Journal Co., 191 Mich. 405 (158 N. W. 36), we had occasion to examine this question, and many authorities in our own court and some from other jurisdictions are cited in the opinion of Mr. Justice Person. There is a vast amount of learning upon this subject. In the examination of this question, our attention has been called to more than 100 cases in other jurisdictions. The copious note to Richmond v. Sitterding, 65 L. R. A. 445 (101 Va. 354), and the notes to Messmer v. Bell & Coggeshall Co., 133 Ky. 19 (19 Am. & Eng. Ann. Cas. 1), and Cockran v. Rice, 26 S. D. 393 (128 N. W. 583), reported in Am. & Eng. Ann. Cas. 1913B, at page 570, will furnish an abundance of authority upon the subject.

In some cases much stress is laid upon the fact that the work to be performed is of an indefinite amount subject to discharge and control in that regard. Others, whether the employment is of a general, independent character, like that of draymen and common carriers, becomes the controlling question. We are of the opinion that the test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent. 26 Cyc. p. 1547.

In our opinion there was such control over the work of Tuttle, by the company, as makes it inconsistent to say that Tuttle was an independent contractor. His work was limited by the right of the company to terminate it at any time, and it was for no definite period or amount. The loading and unloading were under control of the company, both as to time and place. True, he was in charge of his team while going from the skidway to the mill, but that was true of all the drivers, whether working by the month or the thousand.

The most that can be said for the respondents is that, upon the evidence in the record, it might be for a jury to say, under proper instructions, whether the company participated and directed in the work of Tuttle to such a degree that the relation of master and servant existed, or whether he was an independent contractor. There was some evidence tending to show a custom. There was no evidence that Tuttle knew of any custom. Such evidence was admissible only on the ground that the parties were both cognizant of it, and must be presumed to have made their engagement with reference to it. There was no such evidence. Pennell v. Transportation Co., 94 Mich. 247 (53 N. W. 1049).

The real question in this case is: What was the relation which Mr. Tuttle sustained to the EmburyMartin Lumber Company? In our opinion he was a person in service under employment of that company, and comes within the provisions of the workmen’s compensation law. Whether or not the relation of master and servant exists in a given case, under oral contract, is often a question of fact, or of mixed law and fact, and is to be proved like any other question.

In our opinion there was evidence in the case that warranted the Industrial Accident Board in reaching the conclusion which it did, and the proceedings of that board must be affirmed.

Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


text:
    DYER v. JAMES BLACK MASONRY & CONTRACTING CO.
    1. Master and Servant — Workmen’s Compensation Law — Casual Employment.
    Where claimant and his partner had a contract with respondent to do the glazing on a building, and claimant was also engaged, at additional compensation, to look after the glass as it arrived from time to time, and see to its unloading,, such employment was not “casual” within the meaning of section 7, pt. 1, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5429), defining “employee.”

      2. Same — Individual Labor.
    Such employment of claimant was not within the terms of the firm’s contract for glazing, hut was individual labor being performed by claimant for respondent, and he was entitled to compensation under the act for injuries received while so employed.
    Certiorari to the Industrial Accident Board.
    Submitted June 13, 1916.
    (Docket No. 82.)
    Decided July 21, 1916.
    Sid Dyer presented his claim for compensation against the James Black Masonry & Contracting Company for personal injuries while in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Frederick T. Witmire, for appellant.

      William J. Lehmann, for appellee.

      The question as to who are casual employees within the meaning of the workmen’s compensation act, is discussed in L. R. A. 1916A, 365.

   Stone, C. J.

This case is before us upon certiorari to the Industrial Accident Board; the case in its progress having regularly reached the board, which granted compensation to the claimant, from which order the respondent appeals.

Claimant was injured December 10, 1914, at the David Stott Building, in Detroit. He and his partner, John Ross, were at the time of the accident engaged in doing the glazing on the building in question under the following written contract with the principal contractor:

“Detroit, Michigan, Nov. 19, 1914.
“Sidney Dyer & John Ross,
“City.
“Gentlemen:
“We hereby accept your proposition for furnishing all labor and materials necessary (with the exceptions) dated June 2, 1914, and the plans, for the sum of three hundred and twelve ($312.00), payable on the completion of the work and the acceptance of the architects, Marshall & Fox.
“It is understood between us that the glass is to be furnished you at the site of the said building and you are to take it from there and glaze it.
“It is also understood that you are not to glaze any glass which is called for to be done by any other contractor rather than the glazing contractors. The glazing contractors are Sidney Dyer and John Ross, working under the name of Dyer & Ross.
“It is mutually understood that the glazing contractors are to be responsible and will replace all glass broken by them in handling or setting the glass.
“James Black Masonry & Contracting Co.,
“By [Signed] A. E. Black, Vice President.
EAB : CVR
“Nov. 19, 1914.
“Accepted by Dyer & Ross, Glaz. Contractors.
“By [Signed] Sidney Dyer.”

The principal contractor, finding that it was necessary in the progress of the work to have some person assist in and look after the delivering of the glass at the building and see to the unloading of the glass, arranged with the claimant to do this work, from time to time, as the glass arrived, for which services claimant was to receive and did receive payment from the principal contractor. The glass was, in fact, delivered from time to time at the building, under a contract between the principal contractor and the Pittsburgh Plate Glass Company.

The Industrial Accident Board found that in doing the work of glazing under said written contract the claimant and his partner were independent contractors. The board further found as follows:

‘‘The arrangement made with the applicant under which he was to look after the delivery and unloading of the glass fairly includes giving such reasonable assistance in unloading as he might deem necessary. It cannot reasonably be restricted to merely overseeing and directing, but fairly included any reasonable assistance in unloading the glass which was reasonably necessary to accomplish the object for which he was employed. The injury therefore which he received in assisting in the unloading arose out of and in the course of his employment.
“The arrangement under which applicant was to look after and assist in the unloading of the glass was no part of his contract work. While it is doubtless true that the arrangement was made with him because he was doing the glazing on the building, it might have been made by the principal contractor with any other person who happened to be in the vicinity, and who could conveniently do the work at such times as the loads of glass arrived at the building. It seems clear that the applicant was the employee of the principal contractor for the work in question, and that he is entitled to compensation for the injury unless the employment was casual within the meaning of the workmen’s compensation law.
“It should be noted that this work was being done by Sid Dyer individually, and not by the firm of Dyer & Ross. It was billed as an individual account with Mr. Dyer and paid as such. The date of the contract for the glazing work was November 19, 1914; the injury occurred December 10, 1914; and it appears from the evidence that the work was not finished until the latter part of March. It also appears that the work to be done was periodic in its nature; that is, from time to time, as the loads of glass arrived at the building. The building was a large one, and the time during which this work would have continued had it not been for the accident would extend over a number of months. While it is true it was not steady work, or work that consumed a larger portion of his time, yet it recurred at intervals with the progress of the work, and would have continued until the job was finished. Under these facts we think that the employment was not casual.”

There was testimony of the claimant to the following effect:

“Q. Now, you were working there on this contract, were you?
“A. Yes, sir.
“Q. While you were working on this contract state whether or not you were engaged to do other work.
“A. I was engaged to do other work; that is, Mr. Brennan asked me to look after the delivering of the glass, which was not in the contract. I told him, I says, ‘Well,’ I says— He says, T am pretty busy, and I would like to have you look after that work.’ I said, ‘You will have to do the signing; you will have to sign for the glass when it is delivered.’
“Q. Did you help with the delivery of the glass?
“A. Yes, sir.
“Q. Do you know when the first load was delivered?
“A. Why, I cannot say when the first load was delivered. It was prior to December, it was probably somewhere around Thanksgiving, that the first glass was delivered there. .
“Q. Did you help with the delivery of that?
“A. Yes, sir.
“Q. Did you help unload it?
“A. Yes, sir.
“Q. Put it in the—
“A. (interrupting). Put it in the building.
“Q. Was that part of your duty under this contract?
“A. No, sir; it was not part of my duty at all.
“Q. Was Mr. Brennan around at that time when you were doing this?
“A. Yes, sir; Mr. Brennan passed through the building while I was doing that.
“Q. When did the second load come?
“A. Well, it might have been ten days after.
“Q. Did you help with the delivery of that?
“A. Yes, sir.
“Q. Help unload it?
“A. Yes, sir; I put my hands on the case steadying it.
“Q. Was there help needed there at that time?
. “A. Why, it is always in taking off glass, it requires somebody that is accustomed to .that kind of work for to do it, and they were kind of shorthanded, and I naturally helped out. I thought that was what Mr. Brennan wanted me to do; he asked me to look after the delivering of it.
“Q. State whether or not you were injured at the time that you were assisting in unloading the second load.
“A. I was.”

Witness then proceeded to describe the injury.

The substance of this testimony was repeated upon the cross-examination of the witness. No question was raised that Mr. Brennan, who was the superintendent of the respondent, made the arrangement with the claimant, as testified to by the latter, that he had authority to do so, and that claimant was personally paid for such extra services by check signed in the name of the respondent, by Mr. Brennan as superintendent.

The questions raised by the assignments of error relied upon by appellant are as follows:

'(1) Whether applicant was an employee within the meaning of the workmen’s compensation act, or one whose employment was but casual, and whether the finding of the Industrial Accident Board that applicant was an employee at the time-of the injury was justified by the evidence.

(2) Whether applicant was an employee or independent contractor at the time of the injury.

A part of section 7 of part 1 of Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5429), defines the term “employee” as follows:

“Every person in the service of another under any contract of hire, express or implied, oral or written, * * * but not including any person whose employment is but casual or is not in the usual course of the trade, business, profession or occupation of his employer.”

1. It is urged by appellant that the employment of claimant in doing the work in which he was engaged was but casual; and it is said that the word “casual,” as used in the section quoted, should be taken in its ordinary sense; that there is nothing in the context of the law to indicate that the legislature intended to give it an enlarged or unusual meaning. The following definition is quoted from 6 Cyc. p. 701:

“Casual. Not designedly brought about; happening by accident or brought about by an unknown cause.”

The following definition is quoted from the laws of Nebraska:

_ “The word ‘casual’ shall be construed to mean ‘occasional’; coming at certain times without regularity; in distinction from stated or regular.”

It is the claim of counsel for appellant that the instant case is controlled by Gaynor’s Case, 217 Mass. 86 (104 N. E. 339, L. R. A. 1916A, 363), and Cheever’s Case, 219 Mass. 244 (106 N. E. 861), which were decided under a statute exactly like ours. We are unable to agree with counsel that those cases are controlling of the instant case, and we think they are readily distinguished.

In Gaynor’s Case the deceased employee was a waiter employed at the time his injuries were received by T. D. Cook & Co., Inc., a caterer, having a regular place of business in Boston. It had a contract to serve a banquet at Mt. Holyoke College, South Hadley, and on the day before engaged deceased for service at that banquet. Its agent told the deceased that, if he would report at the South Station, Boston, the next morning, he could go to South Hadley at its expense with the other waiters. The wage for the service was to be $4, together with transportation from Boston to South Hadley and return. The deceased reported at 7 o’clock on the morning of the next day, reached South Hadley at 11:30 o’clock of the forenoon, and was injured while preparing to serve the banquet. This was the first time he had ever worked for this employer. The work was finished at 5 o’clock in the afternoon, and the decedent then would have been entitled to $4, and would have been at liberty either to return to Boston at the expense of his employer, or to go elsewhere on his own account. It was a part of the regular business of the employer to provide and serve banquets, but for such service no men were regularly employed. The custom of the catering business is that such banquets are served by waiters secured for the particular occasion. Such a waiter might work for different employers on the same day, or for many different employers on successive days. The court, after stating the above facts, said:

“The point to be decided is whether the deceased was a.n employee as defined in the workmen’s compensation act.”

Quoting language exactly like that contained* in our own statute, the court further said:

“The crucial words to be construed are those contained in the exception out of the class of employee of ‘one whose employment is but casual.’ The word ‘casual’ is in common use. Its ordinary signification, as shown by the lexicographers, is something which comes without regularity and is occasional 'and incidental. Its meaning may be more clearly understood by referring to its antonyms, which are, ‘regular,’ ‘systematic,’ ‘periodic,’ and ‘certain.’ * * *
“It would be difficult to conceive of employment more nearly casual in every respect than was that of the employee in the case at bar. The engagement was for a single day, and for one occasion only. It involved no obligation on the part of the employer or employee beyond the single incident of the work for four or five hours at the college. That would have had its beginning and ending, including the outward and returning journeys (but for the unfortunate accident), within a period of less than 24 hours. The relation between the waiter and the caterer had no connection of any sort with any events in the past. Each was entirely free to make other arrangements for the future, untrammeled by any express or implied expectations of further employment.”

We think the Gaynor Case is so clearly distinguished from the instant case that further comment is unnecessary.

In Cheever’s Case, supra, a teamster, having three or four separate horses and teams, who was sent for whenever he was needed by the proprietor of a coal-yard doing a retail coal business, and at such times was employed by such coal dealer for periods of a number of successive days, but “for no fixed duration of time and for no specified job,” and while so employed “worked the same as any other of [the coal dealer’s] regular men,” was injured in the course of such employment. It was held that he was not entitled to compensation, because his employment was but casual within the meaning of the Massachusetts statute then in force. It will be observed that in Cheever’s Case the employment was for no fixed duration of time, and for no specified job, thus distinguishing it from the instant case.

Our attention is also called by appellant’s counsel to numerous English cases. While they can all be distinguished, it should be borne in mind that the English act differs from ours. In the English act is the following language:

“Workman does not include a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer’s trade or business.”

Under the English act, to constitute a defense it must appear that the employment was of a casual nature, and that it was not in the usual course of the employer’s trade, occupation, or profession. Our statute uses the word “or,” where the English has the word “and,” so that, while under the English statute both defenses must exist together in order to defeat liability, it is sufficient under the Michigan act if either exists without reference to the other.

Can it be said that the employment of the claimant in the instant case was purely a chance employment? Was it not rather regular, stated or periodic? Judge Ruegg, in his work entitled “Employers’ Liability and Workmen’s Compensation,” in discussing the English Cases at page 276, says:

“A person who is employed one or more days in each week to do work which must be done, or which it is known it will be advisable to do at these times, is not casually employed. Indeed, whenever the same person under contract with an employer to- do work at recurring times, which must or which it is known beforehand it will be convenient to do at such recurring times, the employment of such person, it is believed is not of a casual nature. * * * To take one or two illustrations: If A. employs B. to work one day, or half a day a week in his (A.’s) private garden subject to his control, B. is not casually employed; he is regularly employed at recurring ascertained times. Further, if, in the same illustration, the times are not strictly defined, but the contract is that B. shall do the work required in the garden, as it is required from time to time, no fresh contract or engagement being contemplated between the parties, though a discretion may be left in the workman to select the time or times of work, it is believed the employment is not casual, for, though the work may be of a casual nature, B. is under contract to do it as and when it arises; consequently, his employment is not' casual. Much must depend upon the certainty of the work recurring at times which, though they cannot be fixed definitely, yet can be fixed generally, and the work when it arises having to be done by the same person.”

In the instant case it is fair to. suppose that the general contractor knew how much glass was to be delivered at the building. It became necessary in the interest of the business of the general contractor to have the delivery of the glass looked after and supervised, and claimant was employed for that purpose; that, as the glass was to be delivered as the work progressed on recurring occasions, it certainly cannot be said any of the necessary work to be done in furthering the job or enterprises was casual, for it was sure to occur and recur in the operation of the job. There was an element of certainty in the work recurring at times which, though they could not be fixed definitely, yet were fixed generally by the agreement to look after and assist in unloading the glass as it arrived, from time to time.

In our opinion, the employment of the claimant was not casual. It has been held that the employment is not casual within the meaning of that term as used in the employers’ liability acts where one is employed to do a particular part of the service recurring somewhat regularly with the fair expectation of the continuance for a reasonable period. Sabella v. Brazileiro, 86 N. J. Law, 505 (91 Atl. 1032); Howard’s Case, 218 Mass. 404 (105 N. E. 636).

In Thompson v. Twiss, decided by the supreme court of errors of Connecticut on April 19, 1916, 90 Conn. 444 (97 Atl. 328), under a statute like the English act, it was held that the term “casual employment” means occasional or incidental employment, the employment which comes without regularity, and, if the employment be upon an employer’s business for a definite time, as for a week, or a month, or longer, or if it be for a part of one’s time at regularly recurring periods of time, it is not a casual employment, whether the contract of service or the nature of the service be regarded; and hence a claimant employed by defendant in the development of several tracts of land, who, if he satisfied his employer, would remain to the end of the work, requiring at least a number of weeks, was not engaged in a casual employment.

2. We think that the Industrial Accident Board was correct in its finding that the work being done at the time of the accident was not under the terms of the written contract of November 19, 1914, but was individual labor being performed by the claimant in the employment of the respondent, and entirely outside the terms and scope of the written contract.

We find no error in the conclusion reached by the Industrial Accident Board, and its order is affirmed.

Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


text:
    GREENLEAF v. LAMBERT.
    1. Appeal and Error — New Trial — Exception—Saving Questions for Review — Weight of Evidence.
    An exception is necessary to review on error the denial of defendant’s motion for a new trial in a negligence action.
    2. Same — Contributory Negligence.

      Held, on reviewing the testimony in a case arising out of the collision of plaintiff’s motorcycle with defendant's truck, conflicting contentions of the plaintiff and defendant were properly submitted to the jury, that the question of contributory negligence was one of fact for their consideration.
    3. Same — Assignment of Error — Evidence.
    One assignment of error is insufficient for the review of a number of exceptions to the admission of evidence relating to distinct subjects.
    4. Same — Conduct of Counsel — Argument—Trial.
    Failure to challenge remarks of counsel so as to secure a ruling or correction of the objectionable language prevents a review of the point and the judgment cannot be reversed for such reason.

      Error to Bay; Collins, J.
    Submitted June 14, 1916.
    (Docket No. 119.)
    Decided July 21, 1916.
    Case by Lloyd K. Greenleaf against Julius J. Lambert for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      C. W. Hitchcock, for appellant.

      Gilbert W. Hand (F. W. De Foe, of counsel), for appellee.
   Stone, C. J.

This case was submitted to this court upon briefs. The appellant’s brief does not comply with Rule 40 of this court, and upon all disputed questions of fact it is a mere statement of appellant’s claims without reference to the testimony to the contrary. We glean the respective claims of the parties from the record, to be as follows:

. The plaintiff was the owner of a two-passenger motorcycle, on which he was riding. While so doing he was injured by a collision with defendant’s motor truck, which was being driven by the latter, about 6 o’clock in the afternoon of April 17, 1915, on Broadway, a paved street in the city of Bay City, upon which street there were two parallel street car track lines. It was the claim of the plaintiff upon, the trial that, on the occasion of the injury, he, with his wife, was riding south on his motorcycle on Broadway (which street runs north and south) ; that he had approached Broadway from the east on Twenty-Third street and turned south at the intersection; that when he turned south on Broadway he was traveling not to exceed 12 to 15 miles an hour; he overtook the defendant, who was driving his motor truck a short distance ahead of plaintiff, going south on the west, or right-hand side of Broadway; that plaintiff proceeded south on Broadway to the right of the center of the street and near the right-hand street car track, following a short distance behind the defendant’s motor truck; that when the defendant’s truck reached a point between Twenty-Fourth and Twenty-Fifth streets a little beyond the center of the block, and while defendant was traveling near to the right-hand curb, and too near the curb for the plaintiff to pass on that side, and while the plaintiff was a short distance in the rear of the same, the truck suddenly and unexpectedly, and while running at least 10 miles an hour, was negligently turned by the defendant to the left without any signal, and ran in a short half circle across Broadway directly in the path the plaintiff was traveling; that plaintiff turned his motorcycle to the left in an effort to avoid the truck but was unable to do so, but, when the truck had turned so it was facing in a northeasterly or northerly direction, plaintiff’s, motorcycle collided therewith, throwing him to the ground, and injuring him by breaking his leg and inflicting other injuries upon him.

An ordinance of the city of Bay City was counted upon and offered in evidence, and was referred to in the charge of the court as hereinafter indicated.

On the other hand, it was the claim of the defendant that, on the day and at the time in question, he was proceeding south on Broadway, driving his motor truck with three other men with him; that he was driving at a rate of speed not exceeding 4 or 5 miles an hour close to the west curb; that he looked back to the right and saw and heard nothing, and proceeded to turn his truck to cross Broadway, and that, when the front wheels of his truck were at the east rail of the west street car track, there was a collision with the plaintiff’s motorcycle, but that he heard or saw nothing of the plaintiff up to that time; that the plaintiff was riding his motorcycle at a high rate of speed and could have avoided the collision if he had been paying attention to his business, and running his motorcycle at a moderate rate of speed; that there was plenty of room for plaintiff to have gone by on either side of said truck; that the defendant was completely across the west car track before plaintiff’s motorcycle reached Twenty-Fourth street, and that plaintiff saw defendant, but sounded no alarm; that one of the men on the truck held up his hand to give a signal, but plaintiff ran into the left front wheel of defendant’s truck, causing the injury which plaintiff complains of; and that in making the turn defendant was not traveling to exceed three miles an hour.

■ There was evidence tending to sustain the claims of the respective parties, thus presenting questions of fact, and the case was submitted to the jury upon a charge which was very full and fair, as appears by the following excerpts therefrom:

“An ordinance of this city in force at the time of this accident provided that automobiles and motorcycles shall be driven at a rate of speed upon the streets of the city not exceeding 10 miles per hour in the business portion of the city, and outside of the business portion of said city at a rate of speed not exceeding 15 miles per hour, and I charge you that this accident did not occur within the business section of the city, and that the legal rate of speed for travel by automobiles or motorcycles thereon at that place was 15 miles per hour.
“Such ordinance further provides no vehicle shall cross a main thoroughfare or street upon which there is a street car track or make a turn thereon at a rate of speed exceeding one-half of the legal speed limit.
“If you find, therefore, that Broadway at the place of this accident was a main thoroughfare, or that there were street car tracks thereon, the defendant should not have operated his automobile across the same at a speed exceeding 7% miles per- hour, and if you find that he did drive across said street at a rate of speed exceeding 7% miles per hour, such act on his part would be evidence of negligence; and if you find that it was actual negligence, and that such negligence on his part was the proximate cause of this accident, and that the plaintiff himself was free from any negligence contributing thereto, then the plaintiff is entitled to recover.
“The ordinance in question further provides that drivers or operators of vehicles, before turning, shall make sure that such movement can be made in safety, and give a plain signal to others upon the street by extending the hand, or otherwise.
“I charge you that, if the defendant before turning his car across this street failed to make sure that such movement could be made in safety, such failure on his part would be evidence of negligence; and if you find that it was negligence to make such turn before making sure that the movement could be made in safety, and if such negligence was the proximate cause of this accident, and that the plaintiff himself was free from negligence contributing thereto, then the plaintiff can recover.
“I charge you further that, if you find that the defendant before making this turn failed to give a plain signal to others, including plaintiff, upon the street, by extending his hand or otherwise, such failure on his part would be evidence of negligence; and if you find that it was negligence to make such turn without giving such signal, and that such negligence was the proximate cause of this accident, and that plaintiff was free from negligence contributing thereto, then the plaintiff can recover.
“Upon that question I further explain. The ordinance in question reads as follows: ‘Drivers or operators of vehicles before turning shall make sure that such movement can be made in safety, and give a plain signal to others upon the street by extending the hand or otherwise.’ The ordinance says that the hand signal shall be made before the turn. Now it is the claim of the plaintiff in this respect that no signal of any kind was made before turning, and that no signal of any kind was made after turning. It is the claim of the defendant that one of the gentlemen riding in the car at some tirpe gave the hand signal. Now, while the ordinance says the hand signal must be given by the driver or operator, yet I instruct you that the hand signal if given by any other person will be as effective as though given by the driver, but to be effective it must be such a hand signal as the ordinance requires to be given, and it must be made in' the time the ordinance requires it to be given.
“I charge you that, independent of said ordinance and under the law of this State, it was the duty of the defendant, as the driver of said automobile, to exercise reasonable and prudent care, and to take due and reasonable precaution in the operation of the same, having regard to traffic then on said highway, and the safety thereof, and the proximity of plaintiff’s motorcycle to said automobile.
“If you'find that defendant suddenly and unexpectedly turned his automobile to the left before reaching the cross or intersecting street, and without any notice or warning to plaintiff, and in such a manner that plaintiff was unable in the exercise of ordinary care to avoid collision therewith, then I charge you that the defendant would be guilty of negligence in so doing.
“When a person is traveling upon a public highway they may have less reason to expect another vehicle to turn across the street or turn about in the opposite direction between the intersecting streets than at a regular street crossing, and if the driver of an automobile intends to so turn before coming to such intersecting street, the exercise of reasonable care on his part might require greater precautions to protect other travelers on the highway than as though the turn were made at a regular intersections * * *
“I further charge you that if the defendant made the turn on Broadway at the point in question, as he claims to have done, and that the plaintiff Greenleaf was going at a high rate of speed, and had nothing to obstruct his view, and could have avoided the collision by going either to the right or left of defendant’s motor truck, it was his duty so to do, and if he did not do so, and was going at such a rate of speed that he thought he could get by, and in consequence thereof collided with defendant’s motor truck, then he cannot recover, and the verdict should be no cause of action. * * *
“I charge you that no one has a right under the law as it now exists to drive his motorcycle at a rate, of speed in excess of 15 miles an hour at the point in question; neither has any one the right to blindly run or walk into a dangerous place and then seek to recover.
“If the plaintiff in this case by the rate of speed at which he was going or the careless and reckless manner of driving said motorcycle caused his own injury or contributed to it, then he cannot recover, and your verdict should be no cause of action.”

The trial resulted in a verdict and judgment for the plaintiff in the sum of $750. There was a motion for a new trial by defendant, which was denied by the trial judge, the reasons therefor being stated in writing; but no exceptions were taken to such denial.

The case is brought here upon writ of error by the defendant. The first assignment of error which is discussed by appellant is that the verdict was contrary to, and against the great preponderance of the testimony.

As the defendant took no exception to the court’s ruling in denying his motion for a new trial, which embraced this subject, under the repeated decisions of this court we cannot consider this question. This has so often been ruled by us that citation of authority is unnecessary. See Knop v. Insurance Co., 101 Mich. 359 (59 N. W. 653); Comstock v. Taggart, 156 Mich. 47 (120 N. W. 29), and many other cases.

The next assignment of error which is discussed is that the plaintiff was guilty of contributory negligence. There was no request to direct a verdict upon this ground, and an examination of the record and charge of the court satisfies us that the question of the alleged contributory negligence of the plaintiff was properly submitted to the jury. We cannot say, as matter of law, from this record that the plaintiff was guilty of such negligence.

There are certain exceptions to the ruling of the court in the reception of evidence. They are all embraced under one assignment of error, although, relating to different subjects. While the assignment of error is too general to warrant a review, we are satisfied that no reversible error was committed by the trial court in its rulings upon the admission of evidence. .

Certain exceptions were also taken to the remarks of plaintiff's counsel to the jury, and error is assigned thereon. The court’s attention does not appear to have been challenged to these matters, nor was any ruling of the court asked for or given. We cannot therefore, under our decisions, pass upon these matters. We have so recently referred to this question that a citation of authorities is unnecessary.

The case presents mainly questions of fact which seem to have been very fully and properly submitted to the jury. We find no error in the record, and the judgment of the court below is affirmed.

Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


text:
      In re BROUGHTON.
    1. Infants — Petition—Jurisdiction—Juvenile Court.
    Jurisdiction vested in tlie probate judge (1 Comp. Laws 1915, §§ 2011-2016, Act No. 363, Pub. Acts 1913) to commit a delinquent child to the industrial school who was shown by a petition of the truant officer to be 13 years old, and disobedient, apt to run nights, to carry tobacco and pipe, which, he used on the school grounds and streets, and who ran away from school, the petition giving the names and residence of the parents and praying that the court investigate the facts, which was done by the county agent, where the judge issued a summons to the father setting up the substance of the report and petition, requiring father and child to appear on a day certain.
    2. Same — Res Judicata.
    An officer having particular authority to exercise his judgment after an investigation of the facts, of which he is made judge, renders a judgment which, if entered in good faith, is final and conclusive.
    3. Same — Adjournment.
    The juvenile court has authority to adjourn the proceedings in its discretion (3 Comp. Laws 1915, § 12237).
    4. Same — Evidence—Sufficiency.
    The statute leaves much to the discretion of the judge of probate when he has jurisdiction, and where the child confessed larceny and the county agent had made a full report, the judge had sufficient evidence before him oh which to act.
    5. Same — Probation.
    It is discretionary with the probate judge whether the child be placed on probation or not.
    6. Same — Criminal Law.
    It is expressly provided by the statute that proceedings under the act shall not be deemed criminal and rules governing criminal trials have no application. If the child be found wilfully wayward and unmanageable, and in any ease upon the adjudication of delinquency, if in the judgment of the court the welfare of the child and interests of the public require, the court may cause him to be sent to the industrial school. Act No. 363, Pub. Acts 1913, § 5; 1 Comp. Laws 1915, § 2016.
    Certiorari to probate court of Branch county. Andrews, J.
    Submitted June 15, 1916.
    (Docket No. 123.)
    Decided July 21, 1916.
    Petition by Ernest E. Broughton against Mark S, Andrews, probate judge of Branch county, to review proceedings in the juvenile division of said court in which Ernest Broughton was found to be a delinquent child of the age of fourteen years and committed to the Industrial School for Boys.
    Affirmed.

      L. F. Humphrey, for petitioner.

      Mark S. Andrews, in pro. per.

   Stone, C. J.

Upon the petition of the father of Ernest Broughton, a writ of certiorari was issued to review the proceedings of the juvenile division of the probate court of Branch county, which resulted in the finding by said court that said Ernest Broughton was a delinquent child of the age of 14 years, and in committing him to the Industrial School for Boys at Lansing, where he is now detained. It is claimed in the petition that the proceedings were illegal and void, and that:

(1) The probate court had no jurisdiction to commit the boy.

(2) That the court did not proceed upon the return of the summons to hear said cause, and that no reason was given or existed for the several adjournments of the hearing which were had.

(3) That if said court ever had jurisdiction of said Ernest Broughton, it lost the same by its proceedings.

(4) That section 5 of Act No. 363 of the Public Acts of 1913 was not complied with in the case.

(5) That’ no testimony was taken before said court upon the allegations ■ against said boy.

(6) That said child was not placed on probation as provided by law.

(7) That said child was not permitted a trial as provided by the statute.

(8) That said child did not at any time enter a plea of guilty to any of the charges against him.

(9) That the complaint and warrant referred to by the probate judge in the commitment did not charge a crime or offense known to the laws of this State.

(10) That said Ernest Broughton was not guilty of any of the offenses charged against him.

(11) That all proceedings taken by said court were wholly void.

(12) That the restraint of said child is in contravention of the Constitution of the United States, in that he is deprived of his liberty without due pro.cess of law, and without the right of a jury trial.

(13) That said child was not represented by counsel, and the court failed to appoint counsel for him.

From the return of the judge of probate and from the record, it appears that on November 5, 1914, one Charles T. Bishop presented to the juvenile division of the probate court a verified petition, as truant officer, representing that Ernest Broughton was a resident of the village of Quincy, in said county, and was residing with his parents, that he was 13 years of age, and was a delinquent child; the facts and circumstances upon which said allegation was based being as follows:

“Disobeys his parents. Runs on the streets at night. Carries tobacco and pipe on school grounds, and uses same on streets. Wilfully runs away from school.”

The names and residence of the parents were given, and the petitioner prayed that the facts and circumstances be investigated, and such disposition be made of said child as the court might direct. Thereupon the judge of probate, on the same day, issued a notice to L. S. Daniells, the county agent, reciting the substance of said petition, and notifying and requiring said agent to inquire into and make full examination' of the parentage and surroundings of said child, and the facts and circumstances alleged in said petition, and report the same to said court.

.On November 7, 1914, said agent made a report to said court stating the age of said boy to be 14 years on the 16th day of July, 1914; the names and nationality of the parents. The report further stated:

“Home surroundings and conditions: Are very poor. Parents are absent and from home at work most of the time. Have six children who are left with' their grandmother, who is 77 years old.
“History, general conduct and reputation: Bad. Runs away from school and from home. Steals rides on freight cars. Smokes pipes, cigars and cigarettes. Untruthful. Has bad influence over other boys.
“Education: Eighth grade.
“Information as to allegation in petition: Are true.
“Recommendation: Be brought into court and dealt with as court thinks best.”

On the same day a summons was issued by the court directed to the father of said child reciting the substance of the petition and of the said report, and stating that it appeared to the court, upon consultation with the county agent and after full investigation thereof, that the interest of the public and of said child would be best subserved thereby, the father was commanded to appear with said child, before said court at the probate office on November 11, 1914, at 10 a. m. It further appears that the hearing of said matter was on November 11, Í914, adjourned to November 18, 1914, and from time to time to January 6, 1915.

It appears that in the meantime a complaint for larceny of goods of the value of $7 had been made against said Ernest Broughton before a justice of the peace of said county, and a warrant had been issued for his arrest, and he had been arrested thereon, and these facts came to the knowledge of the judge of probate.

On January 6, 1915, an order and adjudication were made by said judge of probate. After the usual caption, the order reads:

“In the Matter of Ernest Broughton, Delinquent Child: Charles T. Bishop having filed in said court his petition alleging that said Ernest Broughton is a delinquent child, and due notice thereof having been given as required by law, and said child having been brought before said court, and said hearing having been adjourned to this day and during said period of adjournment the said child having been further complained of and a warrant for larceny having been issued and said child apprehended thereunder, and said child coming and confessing to said theft as charged in said complaint and warrant, and it appearing to the court, after a full investigation of the facts and circumstances, that said Ernest Broughton is a delinquent child, and was of the age of 14 years on the 16th day of July, A. D.. 1914. And it further appearing that the public interests and the interests of said child be best sub-served thereby: It is ordered, that said Ernest Broughton be and he is hereby committed to the Industrial School for Boys at Lansing, Mich., there to be detained and held under the rules and regulations of said school and in accordance with the statutes of the State of Michigan in such case made and provided.
“It is further ordered that L. S. Daniells be and he is hereby directed to convey said Ernest Broughton to said school with full power and authority for that purpose.
“Mark S. Andrews, Judge of Probate.”

We have thus specifically stated the proceedings leading up to the commitment of this child. An examination of the statute, sections 11644 to 11649, 4 How. Stat. [2d Ed.], and Act No. 363, Pub. Acts 1913 (1 Comp. Laws 1915, §§ 2011-2016), will .show that the provisions of the statute were substantially complied with by the court.

Taking up the alleged errors in their order, we must say:

1. We are of opinion that under the terms of the statute the court had jurisdiction to commit the child. As we have said, the proceeding provided by the statute is not criminal in character. The only judicial officer clothed by the Constitution and statute with the power of exercising discretion in the care and disposition of a juvenile delinquent is the probate judge. He, and he alone, may determine whether the child shall be returned to its parents or guardians, placed upon probation, or committed to one of the several institutions named in the statute. Van Leuven v. Ingham Circuit Judge, 166 Mich. 115-117 (181 N. W. 531).

The judge of probate having jurisdiction of the subject-matter and of the party, the order made is conclusive and final. Burgess v. Stribling, 134 Mich. 38 (95 N. W. 1001).

When ah officer has particular authority to exercise his judgment, after investigating the facts of which he is made judge, his finding of such facts in good faith is conclusive. Belknap v. Township of Benton, 169 Mich. 58-63 (135 N. W. 101).

2, 3. Referring to the second and third objections, yre think that it should be held that the court had the right to adjourn the proceeding in his discretion. Section 684, 1 Comp. Laws (3 Comp. Laws 1915, § 12237).

The act of 1913 provides that on return of the summons or writ, or as soon thereafter as may be, the court shall proceed to hear and dispose of the case, upon such testimony as may be produced, etc.

•4. We think the statute referred to was complied with.

5. It is said that no testimony was taken before the court. The record shows that the report of the county agent was on file, and that “after a full investigation of the facts and circumstances” said child was adjudged a delinquent child. It further appears that the child confessed the larceny charged. The statute leaves much to the discretion and judgment of the judge of probate, where he has jurisdiction of the person and subject-matter as here.

6. We think it discretionary with the judge of probate whether he place the child on probation or not.

7. 8.' The statute expressly provides that proceedings under the act shall not be deemed to be criminal proceedings. The rules governing criminal trials do not apply. The statute provides that:

“If the child be found to be wilfully wayward and unmanageable and in any case upon the adjudication of delinquency, if, in the judgment of the court, the welfare of the child and the interests of the public require, the court may cause him to be sent to the Industrial School for Boys at Lansing.” Act No. 363, Pub. Acts 1913, § 5.

The finding appears to have fully complied with the terms of the statute, and there is no question as to good faith raised.

Counsel for petitioner seems to be of the opinion that the order of the court was based solely upon the charge contained in the complaint and warrant. We do not so understand the order. We think the order was based upon the petition of the truant officer and the investigation which followed; and, while the criminal charge is referred to, the order finds that said “Ernest Broughton is a delinquent child,” etc.

Counsel for petitioner makes no claim that the statute is not constitutional, and we see no reason to doubt its validity.

What we have said disposes of all the questions raised, and, finding no reversible error in the proceedings and judgment, the same'are affirmed.

Kuhn, Ostrander, Bird, Moore,* Steere, Brooke, and Person, JJ., concurred.