author: Ostrander, j.

text:
    DOYLE v. FAUST.
    1. Principal and Surety — Consideration—Discharge—Change in Contract.
    A surety on a contractor’s bond is not relieved from liability by the fact that some variation occurred in the performance of the contract of construction, but it may insist upon compliance with any requirements which are strictly a condition of liability.
    2. Same:
    The obligation of a surety under a contract which refers to a construction agreement and to specifications, etc., depends upon the contract and the accompanying specifications and should be read with them in interpreting its terms.

      3. Same — Alterations—Extent of Liability.
    Under a construction bond, given in consideration of a sum paid to the surety, providing that the building contractor should pay all demands for material and labor used in completing the building as specified in the contract, and under a clause stipulating that the owner should be permitted to change the specifications without avoiding his contract, any doubt that may exist as to the materiality of changes made and whether they were authorized under the agreement should be determined against the surety in the bond.
    4. Same — Discharge—Construction Contract — Changes.
    Any alteration made in the walls,, partitions, windows, etc., in a building to be occupied for store or shop purposes, not materially changing exterior appearance and dimensions, does not operate to discharge the contractor or surety under the clause permitting changes to be made.
    5. Same — Time—Penalty—Delay in Construction.
    Unless the changes which were required by the owner resulted in the construction work taking more time than the original agreement specified, the clause requiring the contractor to complete the building within a stated' period would not preclude them.
    6. Same — Architect—Release of Surety.
    The owner of such building was not authorized to make payments to the contractor in excess of the amounts stated in the certificate by reason of a letter which the architect wrote enclosing the certificate for the correct amount due and suggesting that the owner secure orders from the contractors for the amounts due for labor and materials.
    7. Same — Discharge—Bond—Injury to Surety.
    Where the surety in the bond undertook for a consideration to secure the owner against the failure of the contractor to pay claims for labor and materials, he was not released because payments were made to the contractor in excess of the amount due him, the contract providing that the owner should pay a certain proportion of the value of the structure so far as completed on the architect’s certificate, but where the payments made did not equal the proportion named in the contract, based upon the earnings of the contractor including extras.

      Error to Genesee; Wisner, J.
    Submitted June 12, 1914.
    (Docket No. 35.)
    Decided July 23, 1915.
    Rehearing denied December 22, 1915.
    Assumpsit by Thomas Doyle and another against Joseph Faust and others for work, labor, and materials. Judgment for plaintiffs. Defendants bring error.
    Affirmed.

      Warren, Cady & Ladd (Thomas Stockton and Emil Hoen, of counsel), for appellant Bankers’ Surety Co.

      Brennan, Cook & Gundry, for appellees.
   The Faust-Scheel Company, a copartnership, contracted with plaintiffs to construct for them, furnishing all material and labor, a certain building for $9.-945—

“subject to additions and deductions as provided in the general conditions of the specifications and that such sum shall be paid by the owner to the contractor, in current funds, and only upon certificates of the architect, as follows:
“Ninety per cent, of the value of the. completed work, upon estimates made by the architects, every two weeks as the work progresses until it is entirely completed.
“The final payment including the ten per cent., previously withheld, shall be payable within 30 days after the entire completion and acceptance, by the architect, of the work covered by this contract.”

The general specifications provided that:

“The architect shall have the power to require alterations in the work as shown or described in the said drawings or specifications, and the contractor shall proceed and make such changes without causing delay. In every such case the price agreed to be paid for the work under the contract shall be increased or decreased as the case may require, according to a fair and reasonable valuation of the work, added or omitted, and the value of such work shall be fixed by fair ad-measurement and valuation made by the architect or some competent person appointed by him. Such alterations or variations shall in no way render void the contract, and no claim for variations or alterations or the increased or decreased price thereof shall be valid unless done in pursuance of an order from the architect and notice of such claim made to him in writing before the commencement of such work.”

Another specification is:

“Should the contractor become insolvent or at any time refuse or neglect to-supply a sufficiency of properly skilled workmen or of materials of the proper quality or fail in any respect to prosecute the work with promptness and diligence or fail in the performance of any of the agreements herein contained, such refusal, neglect or failure being certified by the architect, the owner shall be at liberty after 48 hours’ written notice to the contractor to provide any such labor or materials and to deduct the cost thereof from any money then due, or thereafter to become due, to the contractor, under the contract, and if the architect shall certify that such refusal, negletít or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractor for the said work, and to enter upon the premises and take possession, for the purpose of completing the work included under the contract, of all materials, tools, and appliances thereon and to employ any other person or persons to finish the work and to provide the materials therefor; and in case of such discontinuance of the employment of the contractor the contractor shall not be entitled to receive any further payment under the contract until the said work shall be wholly finished, at which time if the unpaid balance of the amount to be paid under the contract shall exceed the expense incurred by the owner in finishing the work, such expense shall be paid by the owner to the contractor; but if such expense shall exceed such unpaid balance the contractor shall pay the difference to the owner. The expense incurred by the owner as herein provided either for furnishing material or for finishing the work, or any damage incurred through such default, shall be audited and certified by the architect whose certificate thereof shall be conclusive upon the parties.”

The contract was dated July 27, 1910, and contained the further provision that the whole of the work should be completed on or before the 1st day of November, 1910, that time was an important element, and that for every day the work remained unfinished beyond the date fixed for its completion the contractors should pay the owners as stipulated damages $6.50 a day, and if completed before November 1, 1910, the owners should pay the contractors a like sum for each day saved, as a bonus.

The contractors as principals and the defendant surety company made and delivered to the owners an undertaking, in writing, which recited the entering into of the said contract for construction by the said principals, by which the said principals and the surety were bound to the owners in the sum of $5,000, and in which the surety—

“guarantees that said principals * * * shall fully pay, discharge and liquidate all claims, accounts and indebtedness of the said principals, * * * for or on account of all labor performed and materials furnished in fulfilling said contract. * * *”

The general condition of the bond is that the contractors shall fully pay, discharge, and liquidate all claims, accounts, and indebtedness of the principals for or on account of all labor performed and materials furnished in fulfilling the said contract and performing the several conditions as the same may become due and payable. The premium paid the surety company for its undertaking was based upon the contract price. The bond was prepared by the architect, acting for the owners. The original plans and specifications were submitted to various bidders for construction, and upon them the bid of the contractors was based.

There were prospective tenants of the proposed new building, and there was a building on the site to be occupied by it. The purpose of the owners was to use the south wall thereof as the south wall of the new building and to use a party wall already erected on the north side of the new building. After the work was begun, there was a failure of the owners and the prospective tenants to agree, and the owners instructed the architect to make amended plans, and such plans were prepared. The building is 98 feet and 7 inches long and 37% feet wide. The original plans divided it by cross-partitions into three rooms; the new plans made of it two separate store buildings, divided lengthwise of the building by a 12-inch brick wall constructed from the bottom of the cellar to the ceiling of the first story. This wall is 106 feet long and 21 feet high. It was found, too, that the party wall on the north was not strong enough to carry the building and an additional wall, 4 inches thick, was built, from the floor of the basement to the roof. The south wall of the old structure was found to be defective, was removed, and a new 16-inch brick wall built the entire length of the building on the south side. An extra chimney 43 feet high was built on the north side of the building and an outside entrance stairway to the second floor in place of an inside stairway as originally planned. Twelve extra windows were placed on the south side of the building. The front windows as planned were changed in the second story. Other considerable changes from the original plans were made. Some of these changes were made after the work called for by the original plans had been installed. All were made without the knowledge and without notice to the surety company. Payments were made to the contractors by the owners without first having received certificates from the architect, the amount so paid exceeding the amount of the judgment. And, after having notice that unpaid demands against the contractors existed, the owners paid’ directly to the contractors considerable sums of money, although the contract provides that:

"If at any time there shall be evidence of any lien or claim for which, if established, the owner of the said premises might become liable, and which is chargeable to the contractor, the owner shall have .the right to retain out of any payment then due or thereafter to become due to the contractor an amount sufficient to completely indemnify the owner against such lien or claim.”

The owners notified the contractors to quit, and they did, and the owners finished the building. Architect’s certificates had then been given them to the amount of $7,025. In the estimates 'given from time to time, some of the extras were included. The architect testified that he did not always give written orders for extras and considered that condition of the contract abrogated. The architect and contractors did not agree as to the value of extras already installed. Arbitrators found that the contractors had earned $2,265 for extras and had been saved $1,140 by omissions in work called for by the original plans, leaving a balance in favor of the contractors, in this respect, of $1,125. They brought this action against the. contractors and surety, and in the bill of particulars specify their demand as follows:

Original contract price............ $9,945 00
Extras as per contract............ 1,125 00
Total .......................... $11,070 00
Money paid Faust-Scheel Company on contract .................... $7,136 00'
Moneys paid for materials and labor, freight, express and drayage, at request of Faust-Scheel Company, viz.:
Material ......................... 339 20
Labor ............................ 650 88
Freight, express, drayage.......... 64 61
Money to satisfy liens............. 3,009 95
Cost of completing contract........ $1,504 18
$12,704 82
Damages for delay as per contract, 200 days, $6.50 per day.......... 1,300 00
Total ..........................$14,004 82
Total contract price............... 11,070 00
Balance due Doyle & Whaley from defendants .....'................ $2,934 82

The contractors, who are or were irresponsible financially, were defaulted. The defendant surety company with its plea gave notice that it would insist that it had been released because the plaintiffs failed to hold 10 per cent, of the amount of the estimates issued by the architect, had paid the contractors large sums without having the architect’s certificate therefor, and because the contract was radically and materially changed by agreement between the plaintiffs and contractors, new plans and specifications adopted for the erection of a building of a character different from the one originally proposed at a materially increased cost, without the knowledge or consent of this defendant.

The computation which was presented by plaintiffs, and which was the basis for the verdict which was returned, was as follows:

Original contract price.............. $9,945 00
Unfinished work at the date of the cancellation of the contract, as per Exhibit 191/a ..................... 1,504 18
So that there was left of the original contract which was considered in the computation at the time of the arbitration ....................... 8,440 82
Difference between the omissions and extras as fixed by arbitration..... 1,125 00
$9,565 82
Which is the amount earned by the contractors at the time the contract was canceled.
There has been paid as follows: Pay rolls ........................ $626 08
Architect’s certificate dated August 5, 1910 ........................ 200 00
Paid by check dated August 6, 1910.
Certificate dated August 20, 1910.. 1,125 00 Paid by checks dated July 30,
August 6, August 12, and August 20. Certificate dated September 2, 1910, 250 00
Paid by check dated September 30, 1910. Certificate dated September 16, 1910, 900 00
Paid by check dated September 17th.
Certificate dated October 14, 1910.. 2,850 00 Paid by check dated August -14, 1910.
Certificate of October 29, 1910..... 500 00
Paid by check dated October 29, 1910.
Certificate dated November 26, 1910, 1,200 00 Paid by check to the
Brick Company dated October 10... .$113.00
By check dated November 12, 1910____ 235.37 •
By check dated November 26, 1910____ 851.63
Check to Fred Scheel dated October 1, 1910 ....................... 189 00
No certificate.
Paid to Charles Hart, roofer, as per order of Faust-Scheel Company, 210 00
As shown by check dated December 3, 1910. Paid to Smith, Bridgman.......... 5 20
January 9, 1911, paid to the Grand Trunk, for freight............. 57 30
As shown by check dated September 30, 1910.
Express .......................... $2 42 As shown, by check dated December 17, 1910.
To Fred Lane, for draying........ 4 68
As shown by check dated January 3, 1911.
Total amount paid at time of cancellation of the contract.........$8,120 68 Ten per cent, of $9,565.82 equals.. $956 58
Which, deducted from the amount earned by contractors, leaves, $8,609 24
Which could have been paid to the contractors and not exceeded 90 per cent, of the contract price. Amount actually paid............ 8,120 68
Leaving a balance of............. $488 56
Less than 90 per cent, of the contract price earned. Computation as to the amount due by contractors and surety: Contract price ................. $9,945 00
Extras over and above omissions at the date of the cancellation of the contract........ 1,125 00
Total ....................... $11,070 00
Credits. Unfinished at date of cancellation, $1,504 18 Paid ............................ 8,120 68
Paid to materialmen as follows:
Barney ...................... 1,122 45
Hubbard & Son.........'..... 802 66
Dain & Vermilya............. 727 75
Genesee Iron Work........... 151 91
Yeit & Davison.............. 595 94
Valley Cornice Company...... 392 70
Total .....................$12,408 27 $12,408 27
Leaving a balance to Doyle and Whaley from contractors and surety ........................ $1,333 27

Counsel for neither party appear to have regarded the case as presenting any question for a jury, and the court, upon plaintiffs’ motion, directed a verdict for plaintiffs for $1,333.27, upon which judgment was entered; the court having refused defendant’s motion to direct a verdict in its favor. Error is assigned upon the refusal to. direct a verdict for defendant surety company and upon the charge in which a verdict for plaintiffs was directed.

The propositions presented by appellant are:

First, that material and radical changes in the contract released the surety; second, that the surety company is released because payments were made by the owners direct to the contractors without a certificate of the architect, contrary to the provisions of the contract; third, that the surety company must be released pro tanto on account of any funds paid out by the owners to the contractors after they (the owners) had knowledge that the contractors owed large sums for material used in the building; fourth, the bond did not authorize the owners to pay parties furnishing material who had not obtained a lien upon the property.

Ostrander, j.

(after stating the facts). In this, and in all similar cases, it is to be said, generally, that the agreement sued upon measures the undertaking of the surety. The surety may not stand upon the strict letter of its undertaking and demand to be released therefrom for any and every variation in the terms or the performance, of its principal’s contract, with reference to which the surety’s agreement is made, but it may insist upon the compliance with requirements, clearly expressed, which are made the condition to liability.

“Conceding that” the contract of the surety company “should be construed as insurance contracts, and taken most strongly against the company issuing them, still, where they [the terms] are clear and unambiguous, the principle invoked cannot be availed of to refine away the terms of a contract deliberately entered into, and expressed with sufficient clearness to convey the plain meaning of the parties.” Granite Building Co. v. Saville’s Administrator, 101 Va. 217 (43 S. E. 351).
“The rule of construction applicable to a contract of insurance, in cases where, as in this one, the legislature has not prescribed a standard policy, is settled to the effect that if there is any ambiguity in the language of a condition, or it is fairly open to two constructions, one of which will uphold and the other defeat the claim of the insured, that should be adopted which is most favorable to the insured. The rule of strict construction against the insurer and the liberal one in favor of the insured must prevail under such circumstances. If, however, the terms of the contract be clear, and not fairly susceptible of two constructions, an ambiguity cannot be assumed, and the plain intention of the parties nullified by construction.” George A. Hormel & Co. v. Bonding Co., 112 Minn. 288, 293 (128 N. W. 12, 14, 33 L. R. A. [N. S.] 513, 520).

The contract of the surety company refers to and must be read with the contract of its principals and the owners of the building. Both must be read with the specifications.

It will be noticed that the surety did not undertake that the contractors should complete the building, but that they should pay, discharge, and liquidate all demands on account of labor and materials employed in its construction. The amount for which they might be held liable depended, necessarily, upon the character of the building to be erected, the quantity of material likely to enter into its construction, the labor necessary to erect it. It was contemplated, however, there might be alterations in the plans as shown and described in the drawings and specifications, and the surety will be presumed to have consented, in advance, to such alterations as might be made without avoiding the contract — such as the owners might call upon the contractors to make. 6 Cyc. p. 83; 32 Cyc. p. 188. The fact that the contractors proceeded, under the direction of the architect and owners, to make additions and alterations, would not be controlling unless they were such as the contract permitted. But, if it is doubtful whether the changes made were permitted, the doubt, in so far as it is based upon the terms of the contract and their construction, will be resolved against a corporation surety which for hire insured the payment of accounts for the labor and material. See George A. Hormel & Co. v. Bonding Co., supra, and the collection of cases, in the note to same in 33 L. R. A. (N. S.) 513.

The contract does not define or limit, as it might have done, the changes which the architect might make in the plans without avoiding the contract. Power to require alterations is expressly given with the provision that “such alterations or variations shall in no way render void the contract.” Undoubtedly, there is a reasonable limit within which, in such a case, alterations may be made without avoiding the contract; or, to state the proposition otherwise, there is a reasonable limit beyond which, if alterations are made, the surety would be released. The question presented, and it appears that counsel regard it as a question of law and not of fact, is whether, in view of the surety’s consent and the actual changes made, it ought to be said that the contract which the principals undertook to perform, the one they actually proceeded to carry out, was another and different contract from the one the surety made the basis of its undertaking, or so materially different that it was not fairly within the scope of its undertaking. Cases may be supposed in which this would be a question for a jury. Upon this record we think it must be answered in the negative. That material changes were made is evident, but the power of the architect is not limited to immaterial changes and alterations. It is matter of common knowledge that material changes are often made in plans and specifications for the erection of any considerable building. What, was contemplated, and what was erected, was a structure of certain dimensions, upon a particular site — a store building. The general character of the building contemplated and the one erected is the same, the materials employed were, generally, of the kind originally contracted for. Construing the provision for alterations liberally, we are of the opinion that the consent of the surety extended to such as the record shows were made.

We have not overlooked the argument that the provision for damages to be paid by the contractors if the work was not completed upon a day certain indicates that it was not contemplated by the parties to the contract that no considerable alterations or changes in the plans should be made. The changes involved the omitting to do much that the original plans required to be done. If it required more time to build the structure erected than to build one first planned, the difference is not made to appear, and, in any event, the clause providing for damages must be read with the one permitting alterations.

Directly sustaining this conclusion, or containing reasoning supporting it, are the opinions in the follow-lowing cases: Fullerton Lumber Co. v. Gates, 89 Mo. App. 201; George A. Hormel & Co. v. Bonding Co., 112 Minn. 288 (128 N. W. 12, 33 L. R. A. [N. S.] 513); Fidelity & Deposit Co. v. Robertson, 136 Ala. 379 (34 South. 933); Hedrick v. Robbins, 30 Ind. App. 595 (66 N. E. 704); Burnes v. Fidelity & Deposit Co., 96 Mo. App. 467 (70 S. W. 518); Wolf v. Indemnity Co., 163 Cal. 597 (126 Pac. 470); McLennan v. Wellington, 48 Kan. 756 (30 Pac. 183); Drumheller v. Surety Co., 30 Wash. 530, 536 (71 Pac. 25); Hayden v. Cook, 34 Neb. 670 (52 N. W. 165); People’s Lumber Co. v. Gillard, 136 Cal. 55 (68 Pac. 576). There are, of course, oprnions to the contrary which apply the rule that the surety may stand upon the letter of his contract.

Manifestly, it was to the interest of the surety that the money paid by the owners should go to the liquidation of the demands to pay which it might become liable. Ninety per cent, of the value of completed work was by the agreement to be paid upon estimates made by the architect every two weeks as the work progressed, and until it was entirely completed. The provision is unlike that found in many building contracts, which is that estimates shall be made of the value of the material and labor which has entered into the structure. In one case the value of completed work, if based upon the price to be paid for the structure, would include the profits of the contractors; in the other case it might not include profits. The making of estimates involved the exercise of the sound professional judgment of the architect. The estimates furnished the basis upon which 10 per cent, of the value was retained in the hands of the owners until the contract was completed. When the contractors quit, they had been paid $8,120.68, and certificates had been given for $7,025. It is said by plaintiffs that they paid $1,095.68 upon a general certificate in the form of an advisory letter written by the architect, and that in view of the sum allowed by the arbitrators the total sum paid by them was less than 90 per cent, of the contract price. The letter referred to is not an architect’s certificate, nor in the nature of such a certificate. Quite the contrary. Village of Chester v. Leonard, 68 Conn. 495 (37 Atl. 397). It was written November 26, 1910, a short, time before the contractors quit. It reads:

“Enclosed you will find a certificate for the amount due the Faust-Scheel Company for work on your building. From this amount should be taken all money that has been paid them by you since the last certificate was issued, October 29th, and also the amount for the enamel brick which you furnished as well as the freight on same. I tried to get the Glover Lumber Company this morning, but Mr. Glover is not there. However, the bookkeeper told me they had a note from the FaustScheel Company, but Mr. Glover went to Flint to try and get an indorsement on it, as I understood him. Under the circumstances, would it not be a good idea to have the Faust-Scheel Company give orders for the amounts due various parties so that you can pay them direct and know where the money goes.”

It is said by counsel for plaintiffs that, under the rule we have heretofore indicated for construing the contract of the surety, slight deviations from the terms of the contract do not discharge the surety in the absence of prejudice to its rights; that, in view of the fact that 10 per cent, of what the contractors had earned was reserved and was applied by the owners to the payment of valid claims, no prejudice to the surety’s interests is apparent. It is urged also, that, in any event, the provisions of the contract referred to are for the benefit of the owner. Concerning this last contention, we have heretofore made some observations not in harmony therewith. Conceding that the provision was material to the surety, and that it has not been observed, the question is whether the surety’s undertaking is thereby avoided; it not appearing that it was damaged. It has been held (City of New Haven v. Economizer Co., 79 Conn. 482 [65 Atl. 959]), that, where the contract stipulated that payments to the contractor should be made on the 15th of each month for 85 per cent, of labor and materials upon certificates delivered on or before the 5th of each month, mere deviations from these dates in making payments and giving certificates were technical and immaterial departures of which the surety could not take advantage. On the contrary, in Queal & Co. v. Stradley, 117 Iowa, 748 (90 N. W. 588), it was held that:

“The requirement of the contract that the money due thereon be paid only upon receipted bills or waivers, for labor and material was a very material one for the protection of the sureties, and a departure from that provision created a condition to which the sureties had not assented in the bond or elsewhere. The money thus paid to the contractor, although not in excess of the 85 per cent, provided for in the contract, may have been used for purposes not connected with the construction of the building in question. Many of the payments were also made without certificates from the architects, which was a violation of the terms of the bond.”

In the latter case the rule applied is the strict rule that the surety may stand upon the letter of his contract. See, also, Fidelity & Deposit Co. v. Agnew, 152 Fed. 955 (82 C. C. A. 108). Both cases are illustrations of numerous, decisions, in some of which the rule strictissimi juris is applied and in some refused. What the rule should be in a case, where it appeared that payments made to the contractors were in the nature of profits and retained by them, we need not decide. It does not appear that all money paid was not used to liquidate demands for which, if unliquidated, the appellant would be liable. We answer the question in the negative.

What has been said disposes of other contentions of the appellant and requires that the judgment should be affirmed.

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

This case was "originally assigned to the late Justice McAlvay.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    SPOONER v. DETROIT SATURDAY NIGHT CO.
    1. Appeal and Error — Certiorari—Industrial Accident Board — • Personal Injuries — Master and Servant.
    In reviewing a decision of the Industrial Accident Board, awarding compensation for the accidental death of an employee, a finding that decedent was an employee of the defendant will not he reviewed if there was evidence to support it.
    2. Master and Servant — Workmen’s Compensation Act — Course of Employment.
    Where decedent was employed to operate an engine and dynamo in the basement, and no' duty called him to the upper floors, injuries incurred which caused his death while running an elevator from the second to the third floor did not arise out of and in the course of his employment, under Act No. 10, Pub. Acts 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.)

    Certiorari to the Industrial Accident Board.
    Submitted June 16,1914.
    (Docket No. 10.)
    Decided July 23, 1915.
    Mary Spooner presented a claim against the Detroit Saturday Night Company for the death of her husband in defendant’s employ. From an order awarding compensation respondent brings certiorari.
    Reversed.

      McGregor & Bloomer (William L. Carpenter, of counsel), for appellant.

      Beaumont, Smith & Harris, for appellee.

       For cases discussing the general rule of a master’s liability to a volunteer, see notes in 22 L. R. A. 664; 13 L. R. A. (N. S.) 561, 43 L. R. A. (N. S.) 187.

   Stone, J.

This is a claim made by Mary Spooner, widow of James Spooner, against the Detroit Saturday Night Company, for compensation for the death of her husband, under Act. No. 10, Pub. Acts 1912 (2 How. Stat. [2d Ed.] §3939 et seq.), known as the workmen’s compensation act. The Detroit Saturday Night Company, having previously suffered a fire in its plant in the city of Detroit, on Monday, February 3, 1913, entered into a contract with the Winn & Hammond Company, through T. H. Collins, its receiver, as follows:

“Detroit, Mich., Monday, February '3, 1913.
“Agreement between T. H. Collins, receiver for Winn & Hammond Company and the Detroit Saturday Night Company, City of Detroit, State of Michigan and County of Wayne on the 3d day of February, 1913.
“I agree for such a period as the.said Winn & Hammond Company shall be under my control and until such time as twenty-four hours’ notice shall be given to the Detroit Saturday Night Company to furnish the following equipment and power for same at the prices and under the conditions named in.this instrument: Cylinder press at 75 cents per hour; Gordon press at 33 1-3 cents per hour;. Power cutting machine at 50 cents per hour; stitching machine at 50 cents per hour; folding machine at 50 cents per hour; perforator at 50 cents per hour; the use of type, tones and material necessary for composition work at $3.00 per day.
“I also agree to furnish elevator service, telephone service and office service which shall consist of providing cards and keeping time of such employés as the said Detroit Saturday Night Company may assign to this plant for operating machinery rented to them at the rate of $10.00 per week.
“It is further understood and agreed between both parties that no type or other material shall be removed from the plant of the Winn & Hammond Company by the said Detroit Saturday Night Company.
“It is further agreed that should the Detroit Saturday Night Company wish to operate the machinery in this plant at any time other than the stated working hours of the Winn & Hammond Company, which are 7 a. m. to 11: 30 a. m. and 12: 15 p. m. to 5 p. m., that the charge for power service shall be $1.00 per hour in addition to the prices above quoted and that the Detroit Saturday Night Company agree to furnish a competent engineer to tend boiler and perform such other duties as usually fall to a man in that capacity.
“It shall be optional with the Detroit Saturday Night Company how much of this machinery they shall operate and they agree to give ample notice when any additional machinery shall be wanted or discontinued.
“The said Detroit Saturday Night Company further agrees to abide by and perform any and all orders of the bankruptcy court concerning its occupancy and use of said property.
“[Signed] H. H. Nimmo,
“Vice Pres. Detroit Saturday Night Co.
“[Signed] Winn & Hammond Co.,
“Per T. H. Collins.
“Approved: Lee E. Joslyn, Referee.”

The Detroit Saturday Night Company, in accordance with the terms of the foregoing contract, employed an engineer by the name of Leonard J. McCabe to operate the engine in said plant, on the night of February 6, 1913, that being the first night that said company operated said plant. This engineer was employed on Wednesday, February 5th. He went to the . plant of the Winn & Hammond Company on Wednesday, February 5th, to look over the plant preparatory to taking charge of it on the night of February 6th. On this occasion he told James Spooner, then in charge of the plant, that he was going to take charge of the same on Thursday night, February 6th. On Thursday, February 6th, at about 5 o’clock, McCabe went to the plant for the purpose of taking charge that night. He saw Spooner, and the latter objected and desired himself to operate the engine. McCabe testified that Spooner told him that they were going to run about 9 o’clock, and that he (Spooner) would run himself that night, and it was not necessary for McCabe to stay. McCabe then went away and Spooner did actually operate the engine in said plant on the night of February 6, 1913. James Spooner, husband of claimant, was a stationary engineer in the employ of the Winn & Hammond Company, and had been in its employ as such stationary engineer for a-period of 20 years, or more, prior to said February 6th. His duties were to run the engine and dynamo in the plant. It was not a part of his duties to run the elevator, but he sometimes did so for his own convenience, as did other employees, in the absence of the regular elevator man, or when requested by the employer in furthering its work. On the night in question, or about two o’clock in the morning of February 7th, said James Spooner left his place of duty in the engine room in the basement of said plant and went to the upper floors of said building. In going to said upper floors he walked up the stairway. Upon thé second floor he met Otto Loeffelbein, John C. Hussey, and a Mr. Wheeler, employees of the Detroit Saturday Night Company, and stopped with them and had a casual conversation. Shortly after James Spooner came upon said second floor said Hussey and the others started to go up the stairway from the second to the third floor of said building for the purpose of getting some stools to sit upon at their work; and thereupon said James Spooner offered to take them up on the elevator, saying: “What’s the use of your walking; ride up.” And said Spooner did then and there open the door of the elevator which stood there, and the said employees got upon the same and Spooner operated it in such a manner as to cause it to ascend. The elevator passed one floor in safety, and just as it was passing the next floor James Spooner received the injuries which caused his death. There was no light whatever upon the elevator, and the men upon it were unable to tell the cause of the accident from which Spooner suffered the injuries which caused his death. The claimant made demand upon the appellant for payment to her of compensation because of the death of said James Spooner, under the terms of said act. The appellant denied all liability to said Mary Spooner under said act. An arbitration was had under the act, and the committee of arbitration awarded said Mary Spooner the sum of $2,520. The appellant filed a claim of review of the decision of said committee with the industrial accident board, and said decision of said committee was duly reviewed by said Industrial Accident Board, and on June 10, 1913, said board made a decision affirming the decision of said arbitration committee. The case is here for review upon certiorari.

The appellant insists that it did not make any contract, express or- implied, of employment with said James Spooner, and that in his operation of said engine, on the night of February 6, 1913, he was acting as the employee of Winn & Hammond Company, and not as the employee of the Detroit Saturday Night. The Industrial Accident Board, in its fourth finding of fact, found as follows:

“Mr. Spooner was engaged in operating the engine in the plant for Winn & Hammond Co. until 5 o’clock in the afternoon of February 6th, and from that hour until he met his death, at about 2 o’clock in the morning of February 7th, he was in the employ of the Detroit Saturday Night Cbmpany, being engaged that night jn operating the plant as engineer in getting out its paper, and that Spooner at the time of the accident was in fact an employee of the Detroit Saturday Night Company.”

It is the claim of appellant that there was no evidence whatever to support this finding of fact. The said Industrial Accident Board found, as matter of law, that the injury received by said James Spooner, and which caused his death, arose out of and in the course of his employment by the Detroit Saturday Night Company, and that said employment was not a casual employment within the meaning of said act, so as to debar Mary Spooner from recovering compensation for the death of James Spooner.

By appropriate assignments of error the following propositions are presented by the appellant:

(1) That Spooner was not an employee of the Detroit Saturday Night Company as matter of law.
(2) That the injuries did not arise out of and in the course of his employment.
(3) That if Spooner was an employee of the Detroit Saturday Night Company, his employment was a casual employment.

On the first proposition urged by appellant, a careful reading of the evidence contained in this record leads us to the conclusion that we cannot say there was no evidence to support the finding that Spooner was an employee of the Detroit Saturday Night Company. Under the statute, as construed by this court, if there was evidence to support the finding, we will not review or weigh tha,t evidence. Rayner v. Furniture Co., 180 Mich. 168 (146 N. W. 665). We think there was some evidence in support of this finding.

Did the injuries arise out of and in the course of his employment? The appellant needed and had employed an engineer to operate the engine and dynamo upon the night in question. It was not concerned with and did not need the use of the elevator. As matter of fact, the agreement had provided that the Winn & Hammond Company was to furnish the elevator service, but no such service was needed by appellant that night. If we are right in saying, under the first proposition, that there was evidence that Spooner was in the employ of the appellant, that employment was solely to operate the engine and dynamo. The evidence is silent as to any other duty imposed upon him by the appellant. The engine room was located in the basement of the building; and, so far as this record shows, Spooner had no occasion to leave it, and had no duty to perform upon the upper floors of the building during the night of the injury. Under the evidence he had gone upon these upper floors purely and solely to visit with the men working, there. The evidence is undisputed that he walked up the stairway. He owed no duty to those men, or to anybody, to take them to the upper floors upon the elevator; neither was he requested to do so. It was doubtless a friendly act upon his part, which did not tend to further the business of appellant. At the time of the injury we think that he was engaged in an act outside of, and not in the course of, his employment, and the injuries he received and which caused his death did not arise out of and in the course of his employment. The elevator shaft was in pitch darkness, by the undisputed evidence, and in using it he not only risked his own life, but that of the men he took upon the elevator with him. Had he remained in the place where his duties called him and attended to those duties, he would not have been injured, so far as this record shows. The material question is not what he had done at times, for his own convenience or otherwise, while in the employ of Winn & Hammond Company, but the pertinent question is: What was he employed to do upon this night? Manifestly, to run and care for the engine and dynamo. This injury occurred while he was away from his work, and while he was a voluntary visitor to the employees of the appellant, and the act was for his own pleasure or satisfaction.

Counsel for appellee in support of their claim have called our attention to the case of Miner v. Telephone Co., 83 Vt. 311 (75 Atl. 653, 26 L. R. A. [N. S.] 1195). In that case the plaintiff was an employee of the defendant telephone company. On the day of the accident defendant’s foreman said to the linemen, of which the plaintiff was one, that they would go down and splice the cable at a certain point, and all went together to the place. On arriving there the foreman told the plaintiff and another lineman to go to a' certain place- and get a ladder. They were unable to get it, and the plaintiff so .reported to the foreman on their return. The foreman was then on the cable seat, with his materials at hand, and was just commencing the work of splicing. After watching him awhile, the plaintiff said he guessed he would go up and help him, and received no reply. The plaintiff then ascended the pole and stood on an upper cross-arm and handed the sleeves to the foreman as he needed them, the foreman taking them from him and using them as he proceeded with the splicing. After working in this manner for about 20 minutes, the foreman placed the bag containing the sleeves on the other side of him, which put them beyond the plaintiff’s reach; and, after looking on awhile, the plaintiff said he would go down, and proceeded to do so, receiving therein the injury complained of. These were the circumstances tending to show that the plaintiff was in the performance of his duty when he received the injury. In deciding the case for the plaintiff the court said:

“The voluntary offer of a willing servant to make himself useful in a matter not covered by any express command, when the proffered service is accepted by his superior, although not by an approval expressed in words, cannot be said, as matter of law, to put the servant outside the limits of his employment.”

We think the case readily distinguishable from the instant case. In fact it might be said the plaintiff there was in the performance of and carrying on the very work for which he was employed, to wit: He was assisting his foreman, who undoubtedly represented the master. In the instant case Spooner was rendering no service which was either accepted by or known to his superior, but was engaged in a voluntary, friendly act entirely outside the scope of his employment upon the night in question.

Our attention is also called by appellee to the case of McQuibban v. Menzies, 37 Scottish Law R. 526. In that case a workman was engaged as a laborer in a steam joinery, his duty being to carry wood from the machine men to the joiners and to clean and sweep up the floor of the machine room. A belt in connection with one of the machines became loose, and he went, without being asked so to do, to assist the machine man in replacing the belt upon the shaft. At the request of the machine man the workman ascended a ladder to try and replace the belt, and, his arm being caught in the belt, he was drawn up into the shaft and received fatal injuries. It was admitted that had a foreman been present he might have ordered the workman to do this act, but no other person had authority to order him to do so. Held, that the accident was one arising out of and in the course of his employment in the sense of the workmen’s compensation act. The court said:

“The question of law which we have to decide is whether the deceased workman was injured by an accident arising out of and in the course of his employment, and although that would appear primarily to be a question of fact, there is no doubt that in cases of this kind questions oí fact and law sometimes run into one another. The words ‘arising out of and in the course of the employment’ appear to me to be sufficient to include something which occurs while the workman is in his master’s employment and on his master’s work, although he is doing something in the interest of his master beyond the scope of what he was employed to do. The act does not say, ‘when doing the work which he was employed to perform,’ but it is a fair inference that if it had been intended to limit the right to compensation to such accidents, different language would have been used from that which occurs in the act. It must be assumed, therefore, that the legislature used language of wider scope to include cases where a workman intervenes to do something useful and helpful to his master, although outside the special duties which he is employed to perform.”

After citing cases, the court concluded:

“The action of the workman in this, case appears to me to have been a natural and helpful intervention in the conduct of his master’s business, and accordingly I am of the opinion that the question should be answered in the affirmative.”

Here, also, it clearly appeared that the servant was doing something in the interest of his master, or, in the language of the opinion, “something useful and helpful to his master.” Such was not the fact in the instant case, as we have already stated.

Our attention is also called to language used by Ruegg in his work on Employers’ Liability and Workmen’s Compensation, at page 346, where that author says:

“The words ‘arising out of the employment’ may be satisfied if it is shown that the occupation in which the workman was engaged, though not strictly part of his duties, was being done in the mutual interest of the employer himself” (citing cases).

Here the same distinction is made which we have pointed out above. The case of McQuibban v. Menzies, supra, has been referred to as an “emergency case.” Such cases seem to be an exception to the general rule where a workman, for the protection of his master’s interests, acts in an emergency. Manifestly, there was no emergency in the instant case.

We are of opinion that the cases cited by appellant are applicable to the instant case, although the contrary is claimed by appellee. Smith v. Railway Co., 1 Q. B. Div. (Law R. 1899) 141. In that case a ticket taker in the employ of the railway, after he had collected his tickets from a train, got upon the footboard of the train after it had started, to speak to a woman passenger, and was injured. It was held that the accident was not one arising out of and in the course of his employment. This case was disposed of upon the principle that where the workman is doing an act entirely for his own purposes, and in no way, either directly or indirectly, in the interest of his employer, then, however harmless such act may be, he loses the protection of the act whilst he is so engaged.

The court said, in Reed v. Railway Co., 2 B. W. C. C. 109, 112:

“It is not that he thereby violated a rule, but that the accident did not arise out of or take place in the course of 'his employment at all. It took place while for the moment he quitted his employment.”

Of this case Mr. Ruegg says (p. 353):

“It is a decision of the House of Lords, and may be said to establish finally the principle propounded in the first decision given on the words, viz., Smith v. Lancashire & Yorkshire Railway Company, supra. This principle is that where the workman is doing an act entirely for his own purposes, and in no way, either directly or indirectly, in the interest of his employer, then, however harmless such an act may be, he loses the protection of the act whilst he is so engaged.”

See, also, Lowe v. Pearson, 1 Q. B. Div. (Law R. 1899) 261.

Many other cases might be cited to the same effect.

We are of opinion that there was no evidence to support the conclusion that the injury arose out of and in the course of Spooner’s employment, and for that reason appellant is under no liability to the claimant in this case. This conclusion renders it unnecessary for us to consider the third proposition. The decision of the Industrial Accident Board is therefore reversed.

Kuhn, Ostrander, Bird, Moore and Steere, JJ., concurred with Stone, J. Brooke, J., did not sit.

This case was originally assigned to the late Justice McAlvay.


author: Bird, J. Ostrander, J.

text:
    GREEN v. BURGHARDT.
    1. Creditors’ Suits — Burden of Proof — Evidence—Presumptions.
    In a suit by a judgment creditor to set aside a bill of sale of personal property and to restrain an action of replevin, it was held, that the provisions of 3 Comp. Laws, § 10203, have no application to levies upon personal property, and the presumption of fraud relied, upon by complainant does not exist.
    2. Same — Equity—Replevin—Adequate Remedy at Law.
    The real issue between the parties being raised in the replevin suit; and being one peculiarly for a jury, the decree dismissing the bill is affirmed.
    Bird, J., dissenting.
    Appeal from Wayne; Mandell, J.
    Submitted June 16, 1914.
    (Docket No. 86.)
    Decided July 23, 1915.
    Bill by Minerva Green, administratrix of the estate of James E. Green, deceased, against Frank B'urghardt and Anton Burghardt in aid of execution. From a decree for defendants, complainant appeals.
    Affirmed.

      Francis H. Warren (C. H. and G. M. Lehman, of counsel), for appellant.

      Barbour, Field & Martin and Dwight C. Rexford, for appellees.
   Bird, J.

(dissenting). From a decree dismissing a bill filed in aid of execution, the complainant appeals. On the 30th day of November, 1912, complainant recovered a judgment in tort against defendant Frank R. Burghardt in tha Wayne circuit court, for the sum of $2,000, with costs taxed therein at $65.55. On April 19, 1913, complainant caused an execution to be levied upon certain personal property in the possession of Frank R. Burghardt, consisting of horses, wagons, and other personal property used in his trucking business, also upon certain saloon supplies in his saloon in the city of Detroit. Two days later, on April 21st, Anton Burghardt, replevied the property levied upon, claiming the title thereto by bill of sale from Frank, which bill of sale was dated December 17, 1912, 17 days after the judgment was rendered. The appraisal in the replevin proceedings shows the value of the property to be $1,788.

Upon the hearing complainant made her formal proof and relied solely upon the prima facie case created by the statute. 3 Comp. Laws, § 10203 (5 How. Stat. [2d Ed.] § 12864). The defendant Anton Burghardt testified that he let his son Frank have $1,000 on June 6, 1909, that he took his promissory note therefor, and that he assumed and agreed to pay two other notes of Frank’s, one to Carmody of $1,000, and one to Frank’s brother Anton, Jr., of $250, and that these obligations furnished the consideration for the bill of sale of December 17, 1912. He admitted that Frank had been in possession of the property ever since the bill of sale was executed. Frank was a witness in his own behalf, and in the main corroborated his father’s testimony.

In reading this record, the question has been suggested to us whether equity should have entertained this proceeding. While the rule is quite general that bills in aid of executions levied upon personal property may be maintained (3 Freeman on Executions [3d Ed.], § 425, and cases), this court has indicated that it was improper where the party had a remedy at law (Stoddard v. McLane, 56 Mich. 11 [22 N. W. 95]). No reason appears why the questions raised by the pleadings in this case could not be settled in the replevin case; but inasmuch as no objection was made in the trial court, and none is raised in this court, we have concluded to dispose of the case upon the merits, but with no intention of making it a precedent for future practice.

The question before us is: Did defendant’s testimony meet the prima facie case made by the complainant? Complainant’s prima facie case is aided by another presumption created by the statute (3 Comp. Laws; § 9520 [4 How. Stat. (2d Ed.) § 11404]), which provides that a sale of personal property, unless accompanied by immediate delivery and a continued change of possession, is prima facie fraudulent as to creditors. Weighed off against these presumptions is the testimony of both the defendants. We are impressed from a history of the dealings between father and son that the several bills of sale made between the parties were intended to operate merely as security for the repayment of money loaned. We are also satisfied that the $1,000 indebtedness to the father was a bona fide indebtedness and was still unpaid at the time the last bill of sale was executed; but we are not so favorably impressed as to the Carmody and Anton, Jr.’s, notes. Neither Carmody nor Anton, Jr., wds sworn, and no reason is assigned why they were not witnesses. No explanation was given by Frank of the circumstances, or any of them, under which the money was borrowed, nor the purpose for which it was used. If Anton had any information on the subject of the good faith of the transactions, he did not disclose it. Our conclusion is that the prima facie case made by complainant was fully met as to the $1,000 indebtedness to defendant Anton Burghardt, but that the prima facie case was not met by the testimony as to the Carmody note nor Anton, Jr.’s, note.

The bill of sale dated December 17, 1912, and duly filed in the city clerk’s office, will be treated in this proceeding merely as a security, and the sheriff of Wayne county will be advised by the decree tó proceed with the execution of his writ subject to said mortgage lien of $1,000.

The decree of the lower court should be reversed, and a decree entered in this court in accordance with this opinion. The complainant should recover costs in both courts.

Ostrander, J.

I know of no case in which it has been held, or has been before contended, that the provisions of 3 Comp. Laws, § 10203 (5 How. Stat. [2d Ed.] § 12864), have any application to levies upon personal property. The presumption relied upon by complainant does not exist.

The real issue between the parties is raised in the replevin suit, pending when the bill in this cause was filed. The effect of the opinion of Mr. Justice Bird is to enjoin the proceeding at law, which ought not to be done unless the issue appears to be one which a court of law cannot properly try. It is obvious that, not only may a court of law determine it, but it is peculiarly an investigation to be made by a jury.

The decree dismissing the bill should therefore be affirmed.

Kuhn, Stone, Moore, and Steere, JJ., concurred with Ostrander, J. Brooke, C. J., did not sit.

The late Justice McAlvay took no part in this decision.


author: Ostrander, J. Bird, J.

text:
    SNOWDEN v. DETROIT & MACKINAC RAILWAY CO.
    Master and Servant — Dangerous Machinery — Personal Injuries — Statutes.
    Ad action for' the death of plaintiff’s decedent, alleged to have been caused by uncovered gearing in defendant’s pumping station plant, in charge of deceased, cannot be based upon the violation of Act No. 285, Pub. Acts 1909, the pumping station and machinery in question not being within the provisions of the act. Kuhn and Bird, JJ., dissenting.
    Error to Cheboygan; Sharpe, J., presiding.
    Submitted June 22, 1914.
    (Docket No. 71.)
    Decided July 23, 1915.
    Case by Ellen Snowden, administratrix of the estate of John Snowden, deceased, against the Detroit & Mackinac Railway Company for the unlawful killing of plaintiffs intestate. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Henry, Henry & Henry (James McNamara, of counsel), for appellant.

      Homer H. Quay and Victor D. Sprague, for appellee.
   Ostrander, J.

I am impressed, that the act, the violation of which is relied upon to establish the negligence of defendant, cannot be held to apply to the machinery in charge of plaintiffs decedent. Plainly, the water tank and its machinery was not a factory, storehouse, or warehouse. The act should be made effective, as a police regulation, having reference to its scope and purposes as evidenced by the language employed. To make it apply to windmills, or to pumps operated by gasoline engines, upon farms, would be, I think, a plain extension of the scope and purpose of the act. And yet, if held to apply in the case at bar, no sound reasoning can except from its operation such, farm machinery. I disagree, therefore, with Mr. Justice Bird upon the third point stated in his opinion, and hold that the judgment should be reversed and a new trial granted.

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

The late Justice McAlvay took no part in this decision.

Bird, J.

{dissenting). Plaintiff’s husband operated two pumping stations for the defendant railway, one at La Roque and the other at Tower. He lived at La Roque, and his habit was to operate the pump at his home town in the morning, and later take the train for Tower, returning home in the afternoon. On the 29th of October, 1912, he went to work as usual at 6:20 o’clock in the morning. A half hour later his wife followed him with his dinner, which he carried to Tower. When she arrived at the pump house, she found him on the floor with a large contusion on his head, and his clothing torn from his left arm. He was in a semi-conscious condition, from which he never rallied. He passed away in the evening of the same day of the injury. The negligence set up in the declaration was the failure of defendant to furnish the deceased with safe machinery with which to work, and also a failure to observe the provisions of section 15 of Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 4023), with reference to the covering of gearings, etc. The trial court submitted the case to the jury upon the statutory count only, and they found a'verdict for the plaintiff of $2,000.

The defendant requested a directed verdict at the close of the proofs, and assigned several grounds therefor, any one of which, if well taken, would dispose of the case in its favor.

1. It is first contended that the facts proven were not sufficient to support an inference of negligence on the part of defendant. The pumphouse was provided with a combination gasoline engine and pump, the gearings of which were not covered. The machinery was described as follows:

“The machinery consists of an engine and pump. * * * The engine is a gasoline engine. The gearing consists of a small cogwheel and a large cogwheel and a clutch. This clutch has knuckles which move out and in as the clutch is moved out and in to engage the other cogwheels. These knuckles have cotter pins. The clutch, knuckles, cotter pins, large cogwheels, and small cogwheel revolve; the clutch revolving with great rapidity when the machinery is in motion. * * * The method of starting the pump is to start the engine by turning on the spark and the gasoline and revolving the wheel. After the engine starts, the pump is engaged by means of the gearing. A part of this gearing — the clutch — has a knob on it, and the operator takes hold of this knob and holds it, keeping it from revolving, whereupon it automatically screws in, thus engaging all the gearing, and, when engaged, the knob cannot be held longer but flies out of the hand revolving at the rate named, to wit, 300 revolutions per minute; the small cogwheel and the big cogwheel being engaged with it.”

It was the theory of the plaintiff that:

“While [the deceased was] engaging the clutch in his usual method as shown, plantiff’s decedent’s clothing on his left arm was caught by the cotter pins and other gearing in the immediate vicinity of his hands, and becoming engaged in the revolving gearing, threw plaintiff’s decedent forward, tearing off the clothing from his arm, in which forward position plaintiff’s decedent would be in such a position that the piston there situated and which operated backwards and forwards, east and west, plaintiff’s decedent then facing the south with his head bowed from the force of nis clothing being wound in the gearing, struck plaintiff’s decedent on the head, making a hole extending across the top thereof, from ear to ear.”

The testimony included a detailed description of the machinery and the manner in which it was usually started and operated by the deceased, the location and nature of his injuries were shown, as were the blood spots on the machinery and floor. It was also shown how the clothing torn from his left arm was wedged into the machinery. These facts, together with the. other testimony, were sufficient to support plaintiff’s theory as to the manner in which the injury occurred. The question as to whether the machinery constituted gearing, within the meaning of the statute, was also submitted to the jury. The proof was such that we think the trial court should have determined that question himself; but inasmuch as it was submitted'to the jury, and their finding is in accord with the duty of the court, it does, not appear to be prejudicial to the defendant.

2. But it is argued that, if an inference of negligence may be drawn from the facts proven* it is of no avail because Act No. 285 is unconstitutional by reason of a defective title; that the requirements of section 15 are not covered by the title. "

The title of the act is:

“An act to provide for the creation of a department of labor; to prescribe its powers and duties; to regulate the employment of labor; to make an appropriation for the maintenance of such department, and to prescribe penalties for the violation of this act.”

Section 15 of the act provides that:

“It shall be the duty of the owner of any factory, storehouse or warehouse, or his agent, superintendent of other person in charge of the same, to furnish or supply, or cause to be furnished or supplied, in the discretion of the factory inspector, where machinery is in use, proper shifters or other mechanical contrivances for the purpose of throwing belts on or off pulleys. All gearing or belting shall be provided with proper safeguards, and whenever possible machinery shall be provided with loose pulleys. All vats, saws, pans, planers, cogs, set screws, gearing and machinery of every description shall be properly guarded when deemed necessary by the factory inspector.”

It is insisted that there is nothing in the title of the act which will sustain a specific requirement of an individual or corporation to safeguard his or its machinery. The title of the act provides that it is “to regulate the employment of labor.” The act defines under what conditions labor may be employed. It says in effect to the individual and corporation, if you employ labor around your machinery, you must cover the gearings. How else could the employment of labor be regulated? It would be idle to say that the employment of labor could be regulated and not have the provision of the law binding upon the employer of labor. There cannot well be employment of labor without an employer, and it is the employer that this part of the title is aimed at. The requirements of section 15 appear not only to be germane, but they appear to come squarely within the express terms of the title.

'3. It is next contended that section 15 applies only to owners of factories, storehouses, and warehouses, and that this machinery was not located in any one of those structures. The pumping station and water tank,- taken together, can reasonably be said to be a storehouse within the meaning of this act. If similar machinery were employed to elevate. wheat into an elevator, the application of the statute would not be questioned. One elevates wheat and stores it, and the other water and stores it. While the pumphouse and water tank may not come within the strict letter of the statute, they do come within the spirit and reason of it, and should be so declared.

4. It is. finally contended that the provision that all gearings or belting shall be provided with proper safeguards is limited by the words “when deemed necessary by the factory inspector,” which occurs in the following sentence. This contention appears to have been decided adversely to defendant’s construction in the case of Tabinski v. Manufacturing Co., 168 Mich. 392 (134 N. W. 653).

There are some other assignments of error based upon the charge of the court, and his refusal to give certain requests tendered by the defendant; but, inasmuch as they involve the same propositions that have been herein discussed, it will be unnecessary to consider them.

We find no reversible error in the record, and the judgment should be affirmed.

Kuhn, J., concurred with Bird, J.