author: BROOKE, J.

text:
    KYSELKA v. NORTHERN ASSURANCE CO. OF MICHIGAN.
    1. Insurance — Contracts — Criticism bt Agent — Dismissal — ■ Estoppel,
    Criticism of the president of defendant insurance company by plaintiff, one of its agents, -which was cordially received and the agent thanked for his frankness by the president, was not reasonable cause for plaintiff’s dismissal three months later, where the effect would be to deprive him of his interest in renewal premiums guaranteed to him for a number of years by his written contract with defendant.
    2. Same — Resignation—Dismissal.
    Where plaintiff would have been entitled to such renewal premiums in case he resigned his agency, defendant could not, through a formal discharge for an insufficient reason, anticipate plaintiff’s resignation and deprive him of the just fruits of his labors.
    3. Appeal and Error — Directed Verdict — Question op Fact— Estoppel.
    Where appellant’s counsel, in response to a question by the trial court, said he did not think there was any question for the jury; that it was a matter that must be entirely decided by the court, appellant cannot now complain even if in the determination by the court a question of fact was involved.
    4. Damages — Insurance Contract.
    In an action for renewal premiums under an insurance agency contract, plaintiff could recover only such payments as were due at the time he started his suit.
    Error to Grand Traverse; Mayne, J.
    Submitted October 5, 1916.
    (Docket No. 36.)
    Decided December 22, 1916.
    Assumpsit by Albert G. Kyselka against the Northern Assurance Company of Michigan for breach of an agency contract. Judgment for plaintiff on a direeted verdict. Defendant brings error.
    Reversed, with instructions to enter a verdict in accordance with opinion.

      Fred, H. Aldrich and Parm C. Gilbert, for appellant.

      Covell & Cross, for appellee.
   BROOKE, J.

On the 6th day of April, 1910, plaintiff entered into a contract with the defendant company by the terms of which he became its general agent in the State of Michigan, without exclusive territory, with power to appoint agents to work for himself in behalf of said company and to procure applications for insurance in accordance with the rules of said company. Attached to said contract there was a schedule of commissions on first year premiums. It was also provided in said contract that said first party should receive 7% per cent, upon all renewal premiums except business reinstated by company officers or home office employees. This contract further provided that after five consecutive years of service, in case said first party had written a certain amount of insurance and should resign, he should receive the specified renewals upon the business produced by his agency, and in case of the death of the first party after two years the renewal commissions were to be paid to bis wife for the number of years which he had been in the employ of the company, provided paid-in insurance of at least $100,000 had been secured by plaintiff each year. Under this contract plaintiff went to work, and through his agency produced paid-in insurance as follows: 1910, $54,385; 1911, $72,000; 1912, $411,-308.45; 1913, $209,000 — a total of $746,693.45. On February 3, 1914, the contract between plaintiff and defendant was modified in several important particulars. Plaintiff’s territory was restricted to the three counties of Calhoun, Branch, and St. Joseph, and the company reserved the right to control, remove and promote his agents. The most important modification was with reference to plaintiff’s right to renewal premiums. It was provided:

“After three consecutive years’ service in the employ of the company, under this contract, should the said second party resign his connection with the company, under this contract, he shall receive renewal commissions as above for as many years thereafter as he has been in the employ of the company hereunder, provided that paid for assurance of at least three hundred thousand dollars has been written by the agency during the first three years of this contract, beginning April 6, 1910.
“Should the party of the second part die after two consecutive years’ service under this contract, his wife, if any, and, if not married, then his estate shall receive the renewal commissions herein provided for, continuous. during the life of the policies theretofore written by said second party under the terms of this contract during the continuance of such policies by the payment of renewal premiums thereon each year, provided, paid for assurance of at least three hundred thousand dollars has been written by the agency during the first three years, beginning April 6, 1910.”

At the time this modified contract was entered into, plaintiff had written the requisite amount of insurance, so that if he had resigned at once he would have been entitled, to the renewals provided for, as a matter of right, for as many years as he had been in the service of the company. Prior to the making of the modified contract, and on December 2, 1913, the defendant company through its president and general manager, C. L. Ayers, had issued a letter of instructions to the plaintiff. Important parts of said letter were as follows :

“In accordance with the further spirit and purpose of the contract above referred to, you are directed in the future not to carry on correspondence with any part of the company’s organization in a manner that will be calculated to cast reflections either upon the integrity or good judgment of the management of the company, thereby making yourself a detriment instead of a help to the interests of the company, thus violating the spirit and very purpose for which your contract was made. * * * Any violation of these instructions, or any other part of the above referred to contract, at any time by you, will result in your summary dismissal from the company’s service, and the termination of your contract and all of your interest therein.”

Upon receipt of said letter plaintiff wrote as follows:

“Dear Mr. Ayres: In answer to yours of the 2d I admit the letter to McConnell was damned (or darned) foolishness. The instructions given are fair, and am willing to abide by them.”

Between the date of the letter of instructions, December 2, 1913, and the date of the supplemental contract, February 3, 1914, the relations between the plaintiff and the defendant company appear to have been amicable. In April, 1914, an article was published in an insurance journal called Matson’s Monthly, which very strongly reflected upon the business methods of the defendant company and its management. In the course of said article the following appeared:

. “During the year 1913, $2,700,000 of insurance was written. The mortuary savings in business in force was $60,000. The interest earned, $13,000. Surplus $2,000 less than the previous year. So to write $2,-700,000 the company spent $75,000 over and above expense of loading on the new business.”

This article seems to have found its way into the hands of many of the agents of the defendant company, and among them it reached the plaintiff. On September 1, 1914, plaintiff was discharged by the defendant company because of alleged disobedience of the letter of instructions above referred to. This disobedience consisted in alleged statements (denied by plaintiff) made by plaintiff to one or more members of the agency force of the defendant company and in the writing of certain letters by plaintiff to various members of the board of directors of the defendant company and to the president and general manager of the company. It is strongly urged on behalf of the defendant that these letters show a spirit of insubordination on the part of the plaintiff, and that they were intended by him to cause distrust among members of the organization and bring about injury to the company. The letters are somewhat voluminous and will not be here set forth in full, but an effort will be made to indicate their general tenor. The first one is dated June 6, 1914, and is addressed by the plaintiff to C. L. Ayres, the president of the company. It is in answer to a letter written by the president to the plaintiff. Plaintiff replies to a criticism made by the president and Mr. Hull, the vice president, to the effect that plaintiff “knew it all.” The letter is very frankly critical of the president and is somewhat patronizing in tone. It is not such a letter as should ordinarily be written by a subordinate to a superior officer and in our opinion might very properly have called for a rebuke from the president; but, so far from having offended the president, we find that on June 10, 1914, the president replied thereto, opening his letter as follows:

“Dear Mr. Kyselka: I have read with a great deal of interest and care your esteemed letter of the 6th inst., and I am truly glad to hear from you in this frank, open and confidential manner.”

Then follows two or three pages of general comment upon the principles of business, and it ends as follows:

“Again thanking you for your letter, and with kind personal regards, I am,
“Very truly yours,
“C. L. Ayres, Pres. & Gen. Mgr.”

In view of the very cordial manner in which the responsible head of the defendant company received plaintiff’s criticism, we are of opinion that the company cannot now say that the wilting of this letter was reasonable cause for his dismissal three months later. On the 9th day of June, 1914, plaintiff wrote a letter to Mr. Joseph Seldon, one of the directors, in which he advises Mr. Seldon of the resignation of several of the agents. He further says:

“The article in Matson’s Monthly for April makes for more discontent. Our showing for the past year is another factor. I have it on good authority that C. L. Ayers said we would not write over one and one-half millions of business this year. I would like to talk to you, and would thank you to hold this letter in strict confidence. If you have any stock my advice is to sell. Mr. Hull has been buying all he can get, and you may be able to dispose of it to him. A business built on a foundation of distrust cannot stand.”

On the same day he wrote a letter to Mr. A. A. Anderson, another director, in reply to a letter from Mr. Anderson to him, dated on the 7th. He again recites the resignations that have occurred and closes the letter as follows:

“The article in Matson’s Monthly for April has added fuel to the flame of discontent. Our showing this year is another factor. I would like to have a talk with you if you care to give me the time.”

On June 26, 1914, plaintiff wrote a letter to Mr. Hull, a director and vice president of the defendant company, complaining of having overheard a remark made by Mr. Hull to the effect that he (plaintiff) “knew it all.” In the course of it he said:

“What I have learned since I talked with you makes the Matson article appear mild.”

■ In July, 1916, a second letter was written Mr. Hull. This is a long letter, in the course of which plaintiff says:

“The article in Matson’s is not a joke when in the hands of competitors. I know the other side of part of the article, and I know that the entire article is not false in every particular, for I took the matter up with the insurance department at one time. If it is false, why don’t you sue them? The Postal Life is now suing the Life Insurance Independent for false statements made. Why doesn’t the Northern do the same with Matson’s? * * * I hope I shall be able to talk with you within thirty days, possibly on the cruise to Mackinac.”

On July 7, 1914, plaintiff wrote another letter to Mr. Seldon as follows.:

“Can you give me any hope for the future success of the Northern? I may be duly (unduly) despondent as to the outlook. Do you travel by way of Chicago when going to Detroit? If you do, I would like to ride with you and talk over the situation when you come through Battle Creek.”

And on the same day he wrote to Mr. Anderson as follows:

“I feel some anxiety in regard to the future of our company because of the feeling of discontent and distrust in our agency force, and Dr. Gallagher, with whom I have an office, told me that you would give me a fair opinion as to its outlook if I wrote you.”

And on the same date plaintiff wrote another letter to Mr. Grawn, in which he stated that one King, a former employee of the defendant company, was in possession of facts “which may be of value to you.” In another letter upon the same day to Mr. Grawn, in answer to a letter from Mr. Grawn, plaintiff goes over the late resignations, and then adds:

“Inasmuch as I am telling you this in confidence, I may as well tell you the spirit of distrust is strong on account of the way the president has treated several of the boys in the field. * * * Matson’s Monthly published in Indianapolis came out in April scoring C. L. A. (Ayres) and the work of the so-called Inner Circle of Directors. I presume you have read it. I would not call a meeting of directors until we get our facts together. If I do not see you I shall write you again within ten days.”

It is the claim of plaintiff that these letters should be construed by the court, and that a fair construction of them will compel the court to the conclusion that they indicate on the part of the writer such a spirit of insubordination and such a desire to injure his employer, the defendant, as would and did warrant the defendant in canceling plaintiff’s contract and discharging him from its employ.

Mr. Grawn, a witness on behalf of the defendant and one of its directors, referring to letters written by plaintiff to him, said:

“I turned them over to Mr. Ayres upon his request, and I did not see anything in the letters that were detrimental to the company. There was some statements as to agents leaving the company, but I did not consider that ■ was detrimental to the company. That occurs right along. I have seen'a few articles at Matson’s, but I don’t know whether I saw the one he referred to or not.”

At the conclusion of all the testimony, the court asked counsel for both parties whether there was any question of fact to be submitted to the jury, or whether the matter should be disposed of by the court.

“Mr. Cross (counsel for plaintiff): That is for the court to interpret the written evidence.
“The Court: The question is: Do you want the court to instruct the jury and direct a verdict, or would it be safer to leave it to the jury upon legal propositions?
“Mr. Coveil (counsel for plaintiff): We would be willing to leave it to the court.
“Mr. Aldrich (counsel for defendant) : Yes, I think so. I do not think there is any question for the jury; it is a matter that must be entirely decided by the court.
“The Court: And do I understand the plaintiff the same way?
“Mr. Cross: Yes, sir; we are willing to leave it the same way.”

Whereupon the court held that the letters written by plaintiff to the various members , of the board of directors and the president of the defendant company were written by him in good faith, that the writing of said letters, did not constitute just ground for dismissal, and directed a verdict in the sum of $907.94, that being the conceded amount of the plaintiff’s renewals from September 1, 1914, to September 1, 1915. This action of the court occurred on October 27, 1915. We note that the declaration in the case was filed on August 3, 1915, nearly 30 days before the last quarter’s premiums were due. Having instructed the jury to render a verdict in the sum mentioned, one of the attorneys, for the defendant said to the court:

“I wish to suggest that that amount could not be recovered under the holding of your Honor; even under this declaration it could only be for such amount as was due prior to the commencement of suit, two quarters, if the holding of the Court wás correct.
“The Court: The court holds that it shall be for the amount up to the full year, the time being past.”

Many authorities are cited by defendant to the effect that it is the duty of a servant and agent to be loyal and obedient to his master or principal, and there is no doubt that such is the law. The difficulty in the case at bar comes when an attempt is made to apply the conceded principle to the facts. In examining and weighing the plaintiff’s conduct we must consider his situation'and surroundings. At the time the letters were written he had been in the employ of the defendant company for upwards of four years. He seems to have been unusually successful, and certainly wrote insurance far in excess of the minimum stated in his contract, which minimum entitled him to receive the renewal commissions. He had acquired a very substantial interest in the business of the company, and it is very plain that anything which tended to imperil that interest was a matter of deep import to him. The publication of the article in Matson’s magazine in April was such an incident. An examination of the plaintiff’s letters shows that he is somewhat immature in a business way and inclined to talk or write more than is necessary or perhaps wise; but, upon a review of the entire case, we have no hesitation in agreeing with the conclusion of the learned trial judge that the letters were written, not in a spirit of insubordination, but rather with a sincere desire to ascertain the truth as to conditions and to protect, if possible, the plaintiff’s legitimate interests. From other correspondence which we have not quoted it is apparent that plaintiff was about to resign, in which event, according to the terms of his contract, he would have been entitled to the benefit of the renewals for a period equal to the length of his service with the company, and the correspondence indicates that defendant knew or had good reason to believe that plaintiff contemplated this course. Defendant cannot through a formal dischargfe for an insufficient reason deprive plaintiff of the just fruits of his labors for upwards of four years.

Error is assigned upon the action of the court in directing verdict for plaintiff. Counsel for appellant says:

“Counsel did not consent at that time to the judge deciding, upon any question of fact, and at this time it seems to them preposterous for the court to undertake under all of the circumstances in this case to say as a matter of fact that the plaintiff was excusable for his conduct in disobedience to the orders of his superiors in the company for which he was working, or for the violation of his duty in any way towards the said company.”

In the light of the dialogue which occurred between the court and counsel for both parties at the conclusion of the case, we are of opinion that counsel cannot now complain even if in the determination by the court a question of fact was involved. Culligan v. Alpern, 160 Mich. 241 (125 N. W. 20); Germain v. Loud, 189 Mich. 38 (155 N. W. 373).

We think the court was in error in entering a judgment in favor of the plaintiff for a full year’s renewals. As before pointed out, the declaration was filed on August 3, 1915, and the last quarter was not payable under the terms of the contract until September 1, 1915. Under the declaration plaintiff could recover only such payments on account of renewals as were due at the time he started his suit. Conrad Seipp Brewing Co. v. McKittrick, 86 Mich. 191 (48 N. W. 1086), relied upon by plaintiff, is not controlling. We are unable to gather from the record the exact amount for which judgment should have been entered.

The case is therefore reversed and remanded, with instructions to enter a verdict in favor of the plaintiff for the amount of his renewal premiums due under the terms of the contract at the time he filed his declaration. No costs of this appeal will be allowed to either party.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    STONE v. BENNETT.
    1. Master and Servant — Safe Place — Personal Injuries — Felling Trees.
    Where plaintiff, while engaged with others, all practical woodsmen, in felling trees, was injured by a falling tree, cut by fellow servants, the doctrine of safe place does not apply, in an action against the master; said place having been made unsafe only through the act of plaintiff or his fellow employees.

    2. Same — Obvious Danger — Assumption of Risk.
    The master is not negligent in failing to furnish a place safe as against obvious dangers.

    3. Same — Assumption of Risk.
    Where plaintiff was as well aware of the peculiar dangers of his work as was his master, he must be held to haye assumed the risk.
    4. Same — Negligence—Fellow Servant.
    Neither could plaintiff recover where the negligence counted on was that of fellow servants.
    5. Same — Warning Servant — Negligence.
    Until a master knows and appreciates, or in the exercise of due care should know and appreciate, a danger to his employee, there is no obligation upon him to warn the employee of such danger; so where defendant attempted to warn plaintiff of his danger from a falling tree as soon as he realized his danger, defendant was not guilty of negligence.

      Error to Chippewa; Fead, J.
    Submitted October 18, 1916.
    (Docket No. 76.)
    Decided December 22, 1916.
    Case by Frank Stone against C. Y. Bennett for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      F. T. McDonald, for appellant.

      R. W. Nebel and Le Gendre & Driscoll, for appellee.
    .The plaintiff, a practical woodsman of six years’ experience, was employed by the defendant with others to cut down and get out tamarack piling. On the 29th day of March, 1912, the plaintiff and one Lefevre were told by the defendant to work together in the cutting operation. There were either two or three other gangs, containing two men each employed at the same time in the same work. The plaintiff and his partner, as well as the other men engaged in this particular work, were supposed to be under the direction of the defendant’s ‘foreman, Schmidt. It appears to have been Schmidt’s duty to pass through the timber and to blaze such trees as were suitable to fill the contract for piling which the defendant at that time was taking out timber to fill. It was the duty of the plaintiff and his partner, as well as the other gangs, to cut the trees so blazed by the foreman and to cut off the tops at the requisite distance so as to make piling of the size and length required by defendant’s contract. It is the claim of plaintiff that shortly after noon of that day the defendant himself pointed out to the plaintiff and his partner certain trees which they were to cut, and among them the particular tree upon which the plaintiff was working at the time he sustained the injury complained of. Following the instructions claimed to have been given the plaintiff by the defendant himself, plaintiff and his partner cut down three trees, and then proceeded to the fourth, upon which they were at work at the time of the accident. Having felled that particular tree, plaintiff and Lefevre went to the top, and were in the act of sawing off the top when another tree was felled by what was known as the third gang, consisting of Heaney and his son. In falling, the top of this tree reached the point where the plaintiff and Lefevre were sawing off the top of the tree which they had felled. It struck the plaintiff, and caused the injury for which this suit is brought. A diagram of the situation, not claimed to be exactly accurate, but illustrative of the situation, was introduced in evidence and appears on page 444.
    It will be noticed that there are no measurements on the diagram. The point A thereon indicates the stump of the tree cut down by the plaintiff and Lefevre; the point B the stump of the tree cut down by Heaney and his son, and the point P the place where the plaintiff was injured. The exact distance between the stumps of the two trees does not appear, but is estimated in the record by the plaintiff and his partner, Lefevre, to have been about 50 feet. It is undisputed upon this record that after plaintiff and Lefevre had felled their tree and were in the act of cutting off the top, the defendant himself came along the loging road and stopped within 10 or 15 feet of where they were at work. He testified that he saw Heaney and son working on their tree, and stood there to await its fall. As soon as the Heaney tree started to fall, Heaney and his son called loudly, “Timber.” This call is understood among woodsmen to mean that a tree is about to fall, and that those in the immediate vicinity must take precaution for their safety. Defendant, who was watching the tree fall, saw that it was falling toward himself, the plaintiff, and Lefevre, and he joined in the warning cries. Defendant and Lefevre jumped aside and escaped injury, but plaintiff was-caught by the top of the falling tree, and sustained a broken leg as a result. Both plaintiff and Lefevre testified that they did not know of the proximity of Heaney and his son, or of the fact that they were engaged in cutting down a tree so near to the one upon which plaintiff was engaged. Both gave evidence to the effect that they heard chopping in several directions, and in one place Lefevre testified that he heard chopping west of him, which would be the direction in which Heaney and his son were working. Both testified that there, was underbrush which prevented them from seeing Heaney and his son at work. The contention as to the condition of the ground at the point of the accident is flatly denied by the defendant and his witnesses. He testified that while he was within 10 or 15 feet of the plaintiff and Lefevre, Heaney and his son were in full view.

      At the conclusion of the plaintiffs case the defendant moved for a directed verdict on the following grounds:
    “That there is no evidence in the case establishing any of the acts of alleged negligence in the declaration, and no evidence in the case of any negligence on the part of the defendant. That the dangers to the plaintiff at the place he was. working are risks incident to his employment. That as shown by the testimony now, the place where he was working was made unsafe, if unsafe at all, by the changing conditions of the work, and made so by the acts of his co-employees. That the proximate cause of the injury to the plaintiff was the direct result of the felling of a tree by fellow servants of the plaintiff, for which the defendant is not responsible. That, under the testimony, the plaintiff has shown himself to be guilty of contributory negligence, which negligence contributed to the injury received.”
    This motion was denied by the court, and the case was submitted to the jury under instructions which permitted the jury to find defendant guilty of negligence in either one or both of two respects: First, in placing the plaintiff at work upon a tree which, by reason of the proximity of his fellow servants, Heaney and his son, upon another tree, made the place where plaintiff was directed to work unsafe; and, secondly, in that the defendant, when he came up to the place where plaintiff and Lefevre were cutting the top of their tree, failed to warn plaintiff of the danger he incurred from the proximity of. Heaney and son, then known by defendant to be at work in felling the tree which caused plaintiffs injury. Plaintiff had verdict.

       On servant’s assumption of risk from changing condition of work during progress of work, see note in 19 L. R. A. (N. S.) 340.

       On applicability of rule as to safe place where the conditions of work are changing, see note in 28 L. R. A. (N. S.) 1267.

       On assumption of obvious risk of hazardous employment by servant, see note in 1 L. R. A. (N. S.) 272.

       On duty to give warning where trees are being felled, see note in 46 L. R. A. (N. S.) 86.

   Brooke, J.

(after stating the facts). The testimony shows that the woodsmen were directed to fell the trees toward the logging road shown along the north side of the diagram. It also tends to show that the tree cut by Heaney and son was “notched” so as to fall to the. north. It also appears that there was a wind blowing on the day of the injury from the northwest, and that such wind probably caused the tree to fall nearly due east, instead of north, as intended. Plaintiff and Lefevre were not only experienced woodsmen, but were in the full possession of all their faculties. Both swear positively, although Heaney and son were at work chopping and sawing upon their tree within a distance of about 50 feet from where they themselves were, that they did not hear or see them. This statement would seem almost incredible, but, whether true or false, it is certainly true that Heaney and his son knew of the proximity of the plaintiff and Lefevre, because plaintiff’s tree had fallen but a few minutes before Heaney’s tree fell, and while Heaney and his son were at work upon it. It is undisputed upon this record that Heaney and son were expert woodsmen of large experience. Defendant saw the Heaney tree and how it was notched, and his experience as a woodsman led him to believe that it would fall to the north, a belief doubtless shared by Heaney and his son.

The first question presented for consideration is whether the learned circuit judge erred in submitting to the jury the proposition as to whether defendant was guilty of negligence in placing plaintiff at work in an unsafe place. Upon this point much reliance is placed by the plaintiff upon the case of Asplund v. Mining Co., 177 Mich. 529 (143 N. W. 633). This case we think is not controlling. The place at which plaintiff was set to labor was in itself safe. It was made unsafe only through the act of himself or his fellow employees, and was constantly changing. Under such circumstances the doctrine of “safe place” does not apply. We have held that where the workman must make his own place to carry on his work, the principle is inapplicable. Andrews v. Mining Co., 180 Mich. 72 (146 N. W. 394); Kochin v. Copper Co., 181 Mich. 543 (148 N. W. 252); Koskell v. Mining Co., 182 Mich. 586 (148 N. W. 699).

The master is not negligent in failing to furnish a place safe as against apparent and obvious dangers. Soderstrom v. Lumber Co., 114 Mich. 83 (72 N. W. 13); Nephew v. Whitehead, 123 Mich. 255 (81 N. W. 1083).

As to the plaintiff’s knowledge of the dangers surrounding him in the work upon which he was engaged, he testified upon cross-examination in part as follows:

“Q. While you were working there with Lefevre, you heard men working in the woods, on all sides of you, didn’t you?
“A. Yes, sir. * *. *
“Q. Didn’t hear any saws — heard men chopping? “A. Yes, sir. * * *
“Q. You realized the position you were in, and hearing the men chopping around you, that you might be hurt by a tree falling, didn’t you?
“A. Yes, sir.
“Q. And you knew that as you would move about in the bush, you would have to look out for such things, didn’t you?
“A. Yes, sir. * * *
“Q. You had cut cedar before, hadn’t you?
“A. Yes, sir.
“Q. And had been in the woods for six or seven years, both in Michigan and Minnesota?
“A. Yes, sir.
“Q. And had all kinds of forest products, such as we have in Chippewa county, hadn’t you, before this time?
“A. Yes; all kinds of wood.
“Q. You had cut down trees a great many times ?
“A. Yes, sir.
“Q. You knew before taking employment with Mr. Bennett that a tree sawed at the base clear through would fall to the ground, didn’t you?
“A. Yes, sir. * * *
“Q. You knew that it was dangerous to be around where trees were liable to fall, didn’t you?
“A. Yes, sir.
“Q. You knew that a person working in the woods would have to keep his eyes and ears open, and look out for danger from falling trees, didn’t you?
“A. Yes, sir.”

It is, we think, clear that the plaintiff was just as well aware of the peculiar dangers attendant upon his work as was his master. His place of employment was safe unless by his own acts or the acts of his fellow servants it was made unsafe. He, therefore, must be held to have assumed the risk.

If the accident occurred by reason of the negligence of Heaney and his son in felling the tree at a point too close to that where plaintiff and Lef evre were working, plaintiff is not aided, as under all the authorities Heaney and his son were fellow servants of the plaintiff.

The second point upon which the judge submitted the case to the jury was the alleged failure of the defendant to warn the plaintiff of his danger. The negligence of the defendant is here predicated upon the alleged fact that he knew of the proximity of Heaney and his son while plaintiff did not. While, as before pointed out, it is difficult to understand how Heaney and his son were visible and audible to the defendant and yet remained unseen and unheard by the plaintiff, still, assuming this to be true, we are unable to perceive how any negligence can be predicated upon the fact that defendant failed to warn plaintiff of his danger. The reason for this conclusion is based upon the fact that defendant himself stood at a point where, if he had not jumped aside, he would have been injured. He saw the tree Heaney and son were working upon, saw how it was notched, believed it would fall in a certain direction, and did not apprehend any danger therefrom. As soon as it started to fall and he appreciated the fact that it was falling toward plaintiff and himself, he, as well as Heaney and son, attempted to apprise plaintiff of his danger. Until a master knows and appreciates, or in the exercise of ordinary care should know and appreciate, a danger to his employee, there certainly is no obligation upon him to warn that employee of such danger. Dunn v. Dredge & Dock Co., 161 Mich. 551 (126 N. W. 833); Poirier v. Lumber Co., 182 Mich. 678 (148 N. W. 750).

We are clearly of opinion that the learned circuit judge was in error in submitting the case to the jury upon either of the propositions considered, and that he should have directed a verdict in favor of the defendant at the close of the plaintiff’s case.

.The judgment is reversed, and there will be no new trial.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.


text:
    NELSON v. SACKETT’S ESTATE.
    Guardian and Ward — Contract with Guardian — Ward’s Estate —Insane Persons.
    The guardian of an insane person has no power or authority to hind the estate of his ward for attorney’s services in procuring the ward’s release from an insane asylum.
      Lothrop v. Duffield, 134 Mich. 485 (96 N. W. -577).
    Error to Barry; Clement Smith, J.
    Submitted October 24, 1916.
    (Docket No. 51.)
    Decided December 22, 1916.
    Walter M. Nelson presented his claim for professional services against the estate of Walter Sackett to the commissioners on claims. Upon the disallowance of his claim he appealed to the circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Walter M. Nelson, in pro. per.

      Colgrove & Potter, for appellee.

       Autfciorities passing on the question of right to recover against incompetent person or his estate for legal services in attempting to secure his freedom or in resisting lunacy proceedings are collected in a note in 45 L. R. A. (N. S.) 67.

   Brooke, J.

The plaintiff in this case is a practicing attorney in the city of Detroit. He filed a claim for services in the sum of $150 in the probate court against the defendant estate. The record discloses the following facts: Some years before the time of the rendition of the services for which compensation was sought, Walter Sackett killed his wife. Being placed upon trial for the commission of the crime, it was legally determined that at the time said crime was committed said Sackett was insane. He .was thereupon confined in the asylum for the criminally insane at Ionia, Mich. After his confinement his daughter, Lottie Cain, was duly appointed guardian of his person and estate. In the fall. of 1914, Alta Cain, the daughter of Lottie Cain, interested the plaintiff in the predicament of her grandfather Sackett, and a correspondence ensued between plaintiff and Lottie Cain, in which Lottie Cain expressed the desire that steps should be taken to secure, if possible, the release of her father from the asylum. No bargain was made between Lottie Cain and the plaintiff as to the compensation he should receive for his services, but plaintiff nevertheless undertook to effect said release. His efforts were without result until the spring of 1915, when, it appearing to the asylum authorities that Sackett was in a moribund condition, and acting upon the suggestion of Circuit Judge Clement Smith, plaintiff was permitted to take Sackett from the asylum and deliver him into the custody of his daughter ahd guardian, Lottie Cain. He was released from custody on the 28d day of April, 1915, and died less than two weeks later on the 5th day of May. The record contains no evidence that from the time of his incarceration to the day of his death he had regained his normal! mentality. Plaintiff does not claim ever to have seen Walter Sackett until the day of his release, and does not rely upon any contract made with him, and in one place in the record he disclaims employment by the guardian, Lottie Cain. In answer to a question by the court as to who he was working for he said:

“For Walter Sackett, as nearly as he was able to employ anybody. I was not Mrs. Cain’s attorney, and never had been, neither officially nor personally. Mrs. Cain only got an indirect benefit out of this. She might have employed an attorney to act for her, but my idea is this, I am perfectly willing to submit the thing as it is. I simply rendered the services, for this man. If he had been able to employ me, he would have employed me. My files show we never agreed on any price or terms for this thing, and we never did come to any terms.”

That the plaintiff was active in the matter, and that his activities resulted in the final release of Sackett from the asylum a few days before his death, there can be no doubt. For his expenses and disbursements in connection with the work, Lottie Cain paid him about $50. In her final account as guardian she likewise placed an item of $30, which she tendered the plaintiff for his services, and which he refused. The learned circuit judge who heard the case at the conclusion of plaintiff’s testimony directed a verdict in favor of the defendant estate.

' Assuming that the plaintiff had a contract with the guardian, Lottie Cain, for the performance of the services in question (although in the testimony above quoted he seems to deny that he had such a contract), can he recover the value of his services from the estate of the ward? He asserts that the recent case, In re Freshour’s Estate, 174 Mich. 114 (140 N. W. 517, Am. & Eng. Ann. Cas. 1915A, 726), is authority for the allowance of his claim. The distinction between that case and the case at bar seems very plain. There, the services of the attorney were rendered under contract with Mrs. Freshour, who was at the time under no disability, whereas in the case at bar Sackett, so far as this record discloses, was insane to the moment of his death, and never attempted to make a contract with the plaintiff. The learned circuit judge held, and we believe properly, that this case is controlled by the decision in Lothrop v. Duffield, 134 Mich. 485 (96 N. W. 577). The relations between guardian and ward and the power of the guardian to bind the ward’s estate were carefully considered in that case, where it was held:

“There was no privity of contract between these infants and the defendant. Whatever contract relations he had were with their guardian, who- could not bind the infants personally or their estate by contract (except by authority of the probate court in accordance with law), so as to subject their estates to claims filed by third parties for - expenses incurred by the guardian. The practice has generally been for the guardian or executor to pay or incur such obligations, and include the amounts in his account against the estate” (citing cases).

An injunction was allowed enjoining enforcement of the claim against the estate of the ward, but without prejudice to any proceedings against the guardian of the said wards or the presentation by her to the probate court for an allowance of an account including said claims.

The judgment is affirmed, though without prejudice to a proceeding against Lottie Cain, if plaintiff is so advised. .

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.


author: BROOkE, J.

text:
    WENDT v. McGUIRE.
    Replevin — Fraud—Rescission—Tender.
    Where plaintiff purchased property from defendant, which he returned to defendant’s father, who claimed the property, and received his money back, plaintiff’s sole right to repossess himself of the property must rest upon a repudiation of the contract with the father upon the ground of fraud, hence plaintiff could not maintain replevin against defendant without first tendering to the father the money received from him.

    Error to Marquette; Flannigan, J.
    Submitted October 5, 1916.
    (Docket No. 57.)
    Decided December 22, 1916.
    Replevin in justice’s court by William Wendt against Leo McGuire for the possession of certain blacksmith supplies. From a judgment for plaintiff defendant appealed to the circuit court where the case was heard before the court without a jury. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      C. F. Button, for appellant

      W. S. Hill, for appellee.
    On September 19, 1914, plaintiff, a blacksmith, purchased from defendant, also a blacksmith, certain blacksmith supplies of the value of between $80 and $90. The price agreed upon was $42.50. This consideration was paid, and the property was delivered to the plaintiff on said day. Immediately after the consummation of the sale, plaintiff learned that Thomas C. McGuire, father of defendant, claimed to be the owner of the property in question, whereupon plaintiff caused to be issued a warrant for the arrest of the defendant Leo McGuire for obtaining money under false pretenses, a,nd said defendant was arrested the same night. Becoming convinced that at the time the defendant sold the property to the plaintiff the same was actually owned by Thomas C. McGuire, father of defendant, plaintiff on the 22d day of September delivered the property in.question to Thomas C. McGuire, receiving from said Thomas C. McGuire the $42.50 which he had theretofore paid to the defendant. At the same time plaintiff signed a receipt for $42.50 and delivered the same to Thomas C. On the 29th day" of September, 1914, upon the examination of the defendant before the justice of the peace» who had issued the warrant charging the defendant with obtaining money under false pretenses, Thomas C., defendant’s father, swore that, at the time of the sale by defendant to the plaintiff, the defendant was the sole owner of the property sold, and that said sale was in all respects valid and regular, whereupon the examining magistrate upon the advice of the prosecuting attorney discharged the defendant. After the criminal proceedings were disposed of, plaintiff discovered the property in question again in the possession of defendant. He made demand for same from defendant, which was refused, whereupon he instituted replevin proceedings in the justice’s court for the recovery of the possession thereof. At the time of the commencement of the said replevin proceedings the plaintiff had paid nothing for the property in question, he having received from Thomas C. McGuire $42.50, which he had theretofore paid to the defendant. A day or two before the trial of the case in the justice’s court, plaintiff deposited with the justice the sum of $42.50 (quoting from' plaintiff’s counsel’s opening statement), “to be paid to whoever should be entitled to receive the same.” Quoting further from said statement:
    “Upon the said trial the said defendant and his said father were among the witnesses sworn, and during the trial it was stated to the said Thomas C. McGuire that the said $42.50 was in the hands of the said justice and that he could have same if he would take it. .The said Thomas C. McGuire, however, refused to take the money, and the trial proceeded, resulting in a verdict of the jury in favor of the plaintiff.”
    Defendant thereupon appealed the case to the circuit court, where it was heard before the circuit judge without a jury, who, after listening to the opening statement made by plaintiffs counsel and a motion for judgment made by counsel for defendant, filed the following findings:
    “After hearing the arguments of counsel for both parties, the court granted the defendant’s motion, and decided that as a matter of law, although the equities are with him, the plaintiff should have tendered to the said defendant, or to the said Thomas C. McGuire, the father, the said sum of $42.50, so received by him from the said Thomas C. McGuire, as a condition precedent to the bringing of the writ of replevin in this cause, and that, having failed so to do prior to the issuance of the writ of replevin in this cause, the plaintiff could not recover, and the defendant was entitled to a judgment for return of the property, and found that, under the power vested in the court by the statute to render judgment according to the rights of the parties the defendant having waived return, defendant was not entitled to judgment for the full value of the property, but merely for the amount of money which the plaintiff ought to have tendered before bringing suit, together with costs of suit, and thereupon judgment was ordered and entered in favor of the defendant for the sum of $42.50, damages and costs to be taxed.”
    Reviewing the case in this court, plaintiff assigns the following errors:
    (1) Because the said court erred in rendering judgment against the said plaintiff and in favor of the said defendant for the. sum of $42.50.
    (2) Because the said court erred in rendering judgment against the plaintiff and in favor of defendant for the costs of said suit to be taxed.
    (8) Because the said court erred in its order and conclusion that the plaintiff could not maintain his said suit because of the fact that the $42.50 received by him from Thomas C. McGuire had not been tendered to the defendant, before the issuance of the writ of replevin in said cause.
    (4) Because the said court erred in its order and conclusion that the plaintiff could not maintain his said suit because of the fact that the $42.50 received by him from Thomas C. McGuire had not been tendered to the said Thomas C. McGuire before the issuance of the writ of replevin in said cause.

       On necessity of returning consideration before bringing replevin for property obtained by fraudulent purchase, see notes in 21 L. R. A. 206; 1 L. R. A. (N. S.) 474.

   BROOkE, J.

(after stating the facts). All the errors assigned may be considered together. The underlying question for determination is whether, when the plaintiff started his replevin suit, he was entitled to the possession of the property in question. At that time he had bought the property from defendant, he had sold it to defendant’s father, had received from the defendant’s father the purchase price agreed upon between them, and had delivered possession of the property to defendant’s father, Thomas C. McGuire. His sole right to repossess himself of the property in question after the consummation of that transaction must rest upon a repudiation of the contract made between himself and Thomas C. McGuire upon the ground of fraud. If plaintiff sought to disaffirm that contract upon that ground, it was his manifest duty first to pay or tender to Thomas C. McGuire the money received from him as consideration for delivery of the property to him. Morrison v. Berry, 42 Mich. 389 (4 N. W. 731, 36 Am. Rep. 446); Pangborn v. Insurance Co., 67 Mich. 683 (35 N. W. 814); Hubbard v. Oliver, 173 Mich. 337 (139 N. W. 77); Kimble v. Gillard, 177 Mich. 250 (143 N. W. 79).

Judgment affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.


text:
    SALABRIN v. ANN ARBOR RAILROAD CO.
    1. Appeal and Error — New Trial — Weight of Evidence — Saving Question for Review.
    In an action for personal injuries by an employee against a railroad company, where no motion was made for a new trial upon the ground that the verdict for plaintiff was against the weight of the testimony, that question is now foreclosed, and it is assumed on error that the plaintiff’s contention that he was under the express command of the foreman when injured is true.
    2. Master and Servant — Existence of Relation — Personal Injuries After Working Hours — Federal Employers’ Liability Act.
    Where plaintiff, an employee of defendant railroad company, under the orders of the foreman, went with the latter and others on a hand car to a toolhouse to obtain a “jack,” which was to be used in the work, and was injured by a collision with a locomotive running without a headlight while returning to his bunkhouse after the usual quitting time, the relation of master and servant existed between plaintiff and defendant, rendering the latter liable under the Federal employers’ liability act (4 U. S. Stat. 1913, § 8657, 35 U. S. Stat. 65).

    3. Same — Railroads—Failure to Have Headlight on Locomotive —Statute—Penalty—Negligence.
    In the absence of evidence rendering applicable the provisions of the proviso in Act No. 77, Pub. Acts 1913, 2 Comp. Laws 1915, § 8378 et ,seg., allowing the operation of a locomotive to its destination when the headlight became defective while in transportation, it was negligence, as matter of law, to operate a locomotive after dark without a headlight a distance of 47 miles; although said proviso might relieve defendant of the penalty provided in the act, if applicable, such operation might still be negligent.
    4. Same — Duty to Employee — Negligence—Headlight.
    The use of a headlight on a locomotive, whether prescribed by statute or demanded by good railroading, is as much for tbe benefit and protection of employees- of tbe railroad company as for tbe public.
    5. Same — Interstate Commerce — Federal Employers’ Liability Act.
    Track repairs and maintenance are essential to interstate commerce, and an employee of a railroad company engaged therein is entitled to recover under tbe provisions of tbe Federal employers’ liability act for injuries received while so employed. Solmderg v. TZailway Co., 188 Mich. 605 (155 N. W. 504).
    Error to Monroe; Gilday, J.
    Submitted October 10, 1916.
    (Docket No. 100.)
    Decided December 22, 1916.
    Case by Joseph Salabrin against the Ann Arbor Railroad Company for personal injuries. Judgment •for plaintiff. Defendant brings error.
    Affirmed.

      Gustwvus Ohlinger and Alex L. Smith, for appellant.

      Sol. Blumrosen, for appellee.
    On October 7, 1914, the plaintiff was a member of a repair gang in the employ of the defendant railroad company. This gang was on that day engaged in resurfacing track between Dundee and Lulu, two stations on the defendant’s railroad, lying south of Ann Arbor. The gang lived and slept in a car provided for that purpose, which on the day in question occupied a side track at Lulu, some three or four miles south of the point where they were at work. The gang consisted of about 20 men.
    It is the claim of plaintiff that about the hour of 3 or 3:30 o’clock in the afternoon of the day in question, he was ordered by his foreman to accompany the foreman, the assistant foreman, and five others from the point where they were working north to the village of Dundee, there to procure a “jack” from a toolhouse on defendant’s right of way, which “jack” was to be used in the work. He testified that he and his seven companions boarded the hand car and proceeded north to the toolhouse, which was located about 750 feet south of the bridge over the Raisin river, which seems to run south of Dundee; that they unlocked the tool-house and placed the “jack” upon the hand car, when he and two of his companions were ordered by the foreman to remain with the hand car, and that the foreman and the other men went to the village of Dundee, which was distant about a mile from where they had taken the hand car from the track; that the foreman and the other men were gone about an hour and a quarter, and upon their return the car was replaced upon the track, and they started on the return trip. By this time it was approximately 6:30 p. m., standard time, and was dark. Nb light was exhibited by the plaintiff and his companions upon the hand car. While proceeding south toward Lulu and after they had progressed about a mile or a mile and a half, they were overtaken by a train, likewise running south, and in the collision which followed plaintiff received injuries for which he brought suit.
    The action is planted under section 8657, 4 U. S. Comp. Stat. 1913 (35 U. S. Stat. 65), the so-called Federal employers’ liability law. The sole negligence of the defendant upon which the case was permitted to go to the jury was that at the time of the accident the defendant was operating its engine without a headlight. On behalf of the defendant, the foreman and assistant foreman swore positively that the trip to Dundee was undertaken after 5 o’clock, which was the usual quitting time, and that on the day in question work for the defendant had been suspended. Their testimony was to the effect that as they desired to go to Dundee for supplies of some kind, they offered to permit the plaintiff and such of his companions as desired to go with them; that no order was given to either the plaintiff or any of his companions with reference to a “jack,” and no stop was made at the tool-house; that they went immediately to the south side of Monroe street, where they took the hand car from the track, and the entire party went up town a distance of a mile or more; that they stayed in the village for about an hour, during which time more or less drinking was indulged in by various members of the party. At the expiration of this time they all returned to the car, replaced it upon the track, and started south, and were overtaken by the train when they had proceeded about a mile and a half in that direction. Defendant admitted that the track upon which plaintiff was employed to work was used solely for interstate, commerce, and further admitted that at the time of the collision betwen the train and the hand car the: engine was being operated without a headlight. Further testimony on behalf of defendant showed without contradiction that at the city of Ann Arbor the chimney of the headlight had become broken, and that an ordinary white lantern was thereupon suspended from the front end of the locomotive, and the train proceeded upon its way to Toledo, a distance of 47 miles. At the time of the collision neither the engineer nor the fireman knew that the engine had come into collision with the hand car. The train proceeded south from Dundee to Samaria, a distance of 11 miles, where it stopped at the depot; there the engineer, hearing a noise, examined the front end of his engine, and found the plaintiff lying upon the pilot.
    The trial judge in submitting the case to the jury instructed them that if they found that the plaintiff went to Dundee for his own purposes, he could not recover, but that if he took up his position upon the hand car as a result of an order from the foreman, in order to get the “jack,” the relation of master and servant would be created, and he might recover.
    The jury was further instructed that the defendant was guilty of negligence as a matter of law in operating its engine on the night in question without a headlight, and that the plaintiff was likewise guilty of negligence as a matter of law in operating the hand car after dark upon defendant’s track without a light. Upon this question the court further charged:
    “Then in estimating the damages to which you consider the plaintiff entitled to, you are to consider the negligence of the plaintiff in riding on this road, on this car, without any light, with the total negligence which caused the accident, the negligence of the railroad company in operating this train without a light, and you must exclude from your verdict such portion or proportion of the total damages as the contributory negligence of the plaintiff bears to the total negligence which caused the accident.”
    Plaintiff recovered a verdict of $750. No motion for a new trial was made by defendant.
    In this court defendant and appellant argues the case under the following heads:
    (1) The plaintiff was not, at the time of the accident, an employee of defendant, and therefore is not entitled to recover in this case.
    (2) There was no breach of any statutory duty to plaintiff in not having a headlight on the engine.
    (3) Even if plaintiff were considered as being in the employ of defendant at the time of the accident, there was no duty owed him in respect to the headlight.
    (4) The plaintiff was not employed in interstate commerce at the time of his injury, and therefore (his whole case being bottomed on the Federal statute) he cannot recover.

       On constitutionality, application and effect of Federal employers’ liability act, see notes in 47 L. R. A. (N. S.) 38; L. R. A. 1915C, 47.

   Brooke, J.

(after stating the facts). Under the charge of the court which presented that question fairly to the jury, we must assume that the jury determined that the plaintiff undertook the journey from the point on the track where he was at work to the village of Dundee at the express command of the foreman, and for the purpose of obtaining a “jack.” As no motion was made for a new trial upon the ground that the verdict was against the weight of testimony, that question is now foreclosed, and we must now assume that the plaintiff’s version of the transaction is the truth. On behalf of defendant, however, it is contended that, even assuming the plaintiff to have told the truth with regard to the inception of the journey, it is uncontradicted upon this record that the quitting time was 5 o’clock. It is therefore urged that when 5 o’clock came plaintiff and his companions were at liberty to go in any direction their several fancies might dictate, and that if plaintiff and his companions chose rather to wait for the departure of the hand car from Dundee in order to secure a ride from that point to Lulu, where their sleeping and living car was located, it should be held that in so doing they were acting for their own pleasure and convenience, and not as employees of the defendant company. We are unable to agree with this contention. It seems to us that it would make no difference whether the journey was undertaken before or after the hour when plaintiff usually quit his daily labor, provided it was so undertaken at the command of the master through the foreman and for the benefit of the master. If, as plaintiff testifies, the foreman instructed him to accompany the party for the purpose of obtaining the “jack,” and he remained with the hand car after obtaining the “jack” at the command of his foreman until the return of the party from Dundee, and then entered upon the return trip with the rest of the party, we think it should be held that at the moment of collision he sustained the relation of servant to the defendant company as master. The case of Winnie v. Railway Co., 160 Mich. 334 (125 N. W. 351), relied upon by defendant is not controlling.

On this branch of the case defendant relies upon the statute (Act No. 77 of the Public Acts of 1913, 2 Comp. Laws 1915, §§ 8378-8380), which provides that all locomotives shall be equipped with lights of a certain character. Section 2 of the act contains the following proviso:

_ “Provided, That should a headlight on any locomotive become defective when being used in transportation, it shall not be considered a violation of the provisions of this act to continue the operation of said locomotive to its destination.”

In this connection it is said on behalf of defendant that the record shows that the chimney of the headlight was broken at Ann Arbor, and that therefore the engine was being operated to its destination in strict conformity with the proviso of the statute. There are, it seems to us, two answers to this contention. In the first place, defendant failed to show that the train, a way freight was not made up at Ann Arbor. If the train started at Ann Arbor, and so far as this record discloses it may have done so, the operation of the locomotive between Ann Arbor and Toledo without a headlight could certainly not be held to fall within the proviso of section 2 of the statute. Secondly, the statute is penal in character; and, while the operation of a locomotive without a headlight, under circumstances falling within the proviso of section 2, would relieve the defendant company of the penalty provided in the act, such operation might still be highly negligent on the part of the defendant. It appeared from the testimony of the fireman that there was a switch engine at Ann Arbor, and that said switch engine had a headlight with a chimney. He said:

“We did not have time to take that chimney because we had orders to go on.”

Under the circumstances as disclosed by the record in this case, we are of opinion that the operation of the locomotive after dark without a headlight from Ann Arbor to Toledo, a distance of 47 miles, was, as the learned circuit judge charged the jury, negligent as a matter of law.

Under this head defendant claims that, even though the plaintiff was at the time of the accident in the employ of the defendant company, the company owed him no duty in respect to the headlight. This contention is based upon our holding in the case of Lepara v. Railroad Co., 166 Mich. 373 (130 N. W. 668, 40 L. R. A. [N. S.] 1105), where we held that the company owed no duty to a section hand to sound the customary crossing whistle. We do not think that the use of a headlight, whether prescribed by statute or demanded by practice in good railroading, should be held to be for the benefit of the public only, and not for the benefit of the employees of the railroads. Such employees are obliged constantly to be upon the right of way and in the yards of the railroad companies, and after dark the use of a headlight is to them one of the highest guaranties of safety to life and limb.

We have so recently examined this question that we content ourselves with reference to the late case of Holmberg v. Railway Co., 188 Mich. 605 (155 N. W. 504).

Judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.


text:
    ENTERPRISE BED CO. v. THE SOUTH AMERICAN.
    1. Maritime Liens — Notice—Principal Contractor.
    Under the statute creating a lien upon water craft for all debts contracted in the building or equipping of such craft, where the principal contractor is concerned, no notice whatever is required to be given to the owner. 5 How. Stat. (2d Ed.) § 13625, 3 Comp. Laws 1915, § 14892.
    2. Same — Notice—“Timely Notice” — Subcontractor.
    A notice under this statute, creating a lien in favor of a subcontractor, whether verbal or written, is “timely” if it is received by the owner of the vessel at a time prior to payment by the owner to the principal contractor.
    3. Same — Notice—Payment by Owner.
    Where the owner received a letter from plaintiff, a subcontractor, containing a notice of plaintiff’s claim and that it was unpaid, a lien attached to the vessel in favor of the plaintiff by operation of the statute, and thereafter the owner could not relieve itself of liability to plaintiff by payment to the principal contractor.

    Appeal from Wayne; Hally, J.
    Submitted October 12, 1916.
    (Docket No. 144.)
    Decided December 22, 1916.
    Proceedings by the Enterprise Bed Company to enforce a lien under the water-craft law against the steamer South American, the Chicago, Duluth & Georgian Bay Transit Company and the Great Lakes Engineering Works. From a decree for complainant, defendants appeal.
    Affirmed.

      William, J. Whinery and Selling & Brand, for complainant.

      Campbell, Bulkley & Ledyard, for defendants.

      This action was brought under chapter 298, 3 Comp. Laws (3 Comp. Laws 1915, chap. 247), providing for the “collection of demands against water craft.” In the spring of 1914 the defendant Great Lakes Engineering Works was engaged in the construction of a ship called the “South American” for the defendant the Chicago, Duluth & Georgian Bay Transit Company. Under the contract between the engineering works and the transit company the engineering works was to furnish all labor and material that went into the construction of the vessel with the exception of its furniture. The contract for the furniture for the vessel was let to a concern known as the Associated Furniture Manufacturing Company. That company, acting through its representative, Mr. Rice, contracted with the plaintiff for the bed springs and beds to be used in said boat, and about April 20,1914, Mr. George C. Lochlin, president of the plaintiff company, visited the plant of the Great Lakes Engineering Works where the boat was under construction, and was there shown over the vessel by Mr. Zeitsch, superintendent of the vessel line, and was instructed to take measurements and ascertain the number of beds required. This was done, and later the plaintiff manufactured all of the beds and springs required for the complete fitting out of the said steamship. It appears from the record that the defendant transit company had constructed the steamship North American the year previous, and that the beds for that ship had been supplied by the plaintiff under a contract made by the transit company with the Associated Furniture Manufacturing Company by Rice — the same kind of a contract as the one involved in the case at bar. It fúrther appears that at the time the goods for the South American were ready for shipment the Furniture Manufacturing Company had not fully paid the plaintiff for the shipment made the year before for the furnishing of the North American. This being the situation, and before shipment of the goods was made, plaintiff’s president had a conversation with Mr. Davis, the president of the defendant transit company. It is undisputed upon the record that at this conversation the question of payment of the plaintiff’s bill for the beds was under discussion, but Mr. Lochlin and Mr. Davis in their testimony give accounts thereof diametrically opposed to each other. It is the claim of plaintiff that Mr. Davis agreed and instructed his bookkeeper, in the presence of Mr. Lochlin, to withhold sufficient money from the Associated Furniture Manufacturing Company to cover the bill of the plaintiff, while Mr. Davis claims that he instructed Mr. Lochlin to go to Mr. Rice and secure an assignment from Mr. Rice of the amount due, and that thereafter Lochlin returned and advised him, Davis, that he had made satisfactory arrangements with Rice, and that an assignment would not be necessary. Following this interview plaintiff wrote to the defendant transit company the following letter:
    “May 29th, 1914.
    “Mr. R. C. Davis,
    “c/o Chgo., Duluth & Georgian Bay Trans. Co.,
    “109 W. Adams St., Chicago, 111.

      “Dear Sir: Along the line of the conversation between the writer and yourself a few days ago we would very much appreciate your advising us in advance when you will make the payment to the Associated Furn. Mfrs. covering the present boat order.
    “We tried to carry out your suggestion by seeing Mr. Rice and having him allow us to bill you direct for these springs, but according to his usual custom he was absent from the office during the entire time that we waited for him and sooner than disappoint your people we took a chance and shipped the car out, billing same to the Associated Furn. Mfrs.
    “Had it not been that you need these springs at once and that our holding up the order would cause you more trouble than him, we would have been tempted to hold shipment until we could get some satisfaction, but we trust that you will co-operate with us as above so that we can have some chance of getting our money as otherwise it looks like a good long wait.
    “Yours very truly,
    “Enterprise Bed Co.,
    “Sec’y.”
    The amount of plaintiff’s claim, $1,271, and interest, is not in dispute. This sum was paid neither by the Associated Furniture Manufacturing Company nor by the defendant transit company, and it is claimed by the defendant transit company that payment in full was made by it to the Associated Furniture Manufacturing Company, and the voucher showing such payment was introduced in evidence by the defendant as follows:

      Indorsement on back:

    Being interrogated as to the details of this payment, the president of the defendant transit company, Mr. Davis, testified as follows:

      “Q. Mr. Davis, what do you claim that you paid or in what manner do you claim you paid this $2,500 that is represented by the receipt marked Exhibit 11?

      “A. Not being the bookkeeper of the company, I could not say just what manner it was paid in, whether it was paid in cash, or whether it was paid by check, or by what manner it was paid. * * *

      “Q. Didn’t you and Mr. Rice have an arrangement whereby you were security for Mr. Rice?

      “A. Where I was security for Mr. Rice?

      “Q. Yes; either you or your company had indorsed notes for Mr. Rice?

      “A. No; our company had never indorsed any notes for Mr. Rice.

      “Q. Didn’t you individually?

      “A. Mr. Rice had put up some collateral at a bank for which I had gone good. I had not indorsed it, mind you. I had not put my name upon the note, but I had simply said to the bank, ‘If you want to make this loan, all right.’ * * *

      “Q. Your arrangement was such with Mr. Rice on this indebtedness to the bank and the bank were attempting to hold you on that, weren’t they?

      “A. No; the bank never attempted to hold me on anything.
    “Q. Was not this money paid to the bank and not to the Associated Furniture?

      “A. No; it was not.
    “Q. Who paid the interest on Mr. Rice’s indebtedness to the bank?

      “A. Mr. Rice paid this interest up to a certain time.

      “Q. He got the money from you to do it with, didn’t he?

      “A. No; he did not.

      “Q. I show you a paper introduced in evidence, which we will ask to have marked Exhibit 12, I ask you to look at it. State if that is one of the papers you have produced here.

      “A. Yes; that is a voucher of our company.

      “Q. I show you also a check that was folded in that Exhibit 12.

      “A. No; that is not the book that I referred to at all, or the check.

      “Q. These were given to pay notes, weren’t they?

      “A. They were; yes.
    “Q. Of Mr. Rice?

      “A. Yes.

      ‘‘Q. He receipted that interest. That money was paid on his note?” (Argument of Counsel.)

      “Q. Concerning this voucher that was introduced in evidence as Exhibit 11?

      “A. For $2,500?

      “Q. Yes, I wish to call your attention to the indorsements upon this, and then ask again whether or not you did not have an arrangement whereby you were on certain notes and were held liable, for Mr. Riqe’s notes. The part I call your attention to that on this voucher it is marked, ‘Account of R. C. D.’ That means you, doesn’t it?

      “A. That means me. * * *

      “Q. Why was that carried to your account?
    • “A. If you want it I will give you a full explanation of it; * * * give you the names of the banks and everything. * * * Mr. Rice along in the fall of 1913 needed some funds, and he came to me to get it. T haven’t any money personally to give you,’ but, I said, T will call up the bank and ask them.’ He had collateral that was well worth what he wanted to borrow, and he wanted to borrow $3,000. So he went around to one of the banks that we do business with, told them what he wanted, $3,000. The president of the bank called,me up and says, ‘How about this?’ I says, ‘If you want to give it to him, all well and good, although he is not a customer of your bank.’ So he loaned him $3,000. I says, ‘Do you want my indorsement?’ He said, ‘Oh, no; if you say it is all right, it is all right.’ Mr. Rice in the course of the renewal of that note on several occasions — I could not tell just how many — paid $500 on the principal, and paid the interest up to a certain point, and then absolutely failed to make good on the remaining $2,500. Well it was a bank that I was doing business with and that I was more or less under obligations to, so when I saw that Rice could not make good, I had to, and I took up Mr. Rice’s note, and when. Mr. Rice was furnishing the goods for the South American I thought, ‘This is my opportunity to get my $2,500 back,’ and you have got it there in the note.

      “Q. He simply receipted for $2,500?

      “A. Yes.
    “Q. Had taken up his note?

      “A. Yes.”
    In another part of his testimony we find this:

      “Q. The fact that you made settlement of this $2,-500 in the manner you have stated, that accounts why you have no check?

      “A. Simply the transaction. Mr. Rice owed me that much and that was my chance to get it. I took advantage of the opportunity.”
    Just before the commencement of suit the following letter was written by the attorney for plaintiff to the defendant transit company:
    “May 8th, 1916.
    “Chicago, Duluth & Georgian Bay Transit Co.,
    “Chicago, Illinois.

      “Dear Sirs: I write you as attorney for the Enterprise Bed Company of Hammond, Indiana, concerning the amount due for bed springs furnished for the steamship South American, amounting to $1,271.00. As you know, this order was furnished you and shipped to River Rouge (Detroit, Michigan), the shipment being made to. you on May 28th, 1914. No part of this bill has been paid, and the company looks to you for payment under the statute of the State of Michigan, which gives the company a lien on the boat for all such furniture and materials furnished for its equipment. I also call your attention to the fact that Mr. Scott, of the Enterprise Bed Company, notified your president and general manager, Mr. R. C. Davis, of this claim, before the actual shipment of the goods was made to you, and also later confirmed this notice by letter. Your company is also liable for this under the Federal statute, which gives a lien on the boat in cases such as this. We hope that it will not be necessary to begin any action against the steamship, South American, but unless payment is made I am authorized to take such steps as are necessary. Before incurring any costs, however, I write you asking that you kindly make payment of the account without further delay and thus avoid any costs and expenses of yourself or to this company. Please advise me by early mail what you desire to do in this regard.
    “Yours very truly,
    “WJW — EC Wm. J. Whinery.”
    The relevant part of the governing statute (5 How. Stat. [2d Ed.] § 13625, 3 Comp. Laws 1915, § 14892) is as follows:
    “Every water craft * * * shall be subject to a lien thereon * * * for. all debts contracted by the owner or part owner, master, clerk, agent or steward of such craft * * * on account of work done or materials furnished by mechanics, tradesmen, or others, in or about the building, repairing, fitting, furnishing or equipping such craft; Provided, That when labor shall be performed or material furnished as aforesaid, by a subcontractor * * * and the same is not paid for, said person or persons may give the owner or his agent, or the master or clerk of said craft, timely notice of his or their said claim, and from thenceforth said person or persons shall have a lien upon such craft pro rata for his or their said claims, to_ the amount that may be due by said owner to said original contractor for work or labor then done on said watercraft.”
    The learned circuit judge who heard the case without a jury directed a verdict in favor of the plaintiff upon the ground that no payment had been made by the defendant transit company to the Associated Furniture Manufacturing Company, and that therefore the letter of May 8, 1916, was “timely notice” within the meaning of the statute.
    In this court defendant contends:
    (1) That the “timely notice” referred to in the statute means written notice.
    (2) No such notice was given by plaintiff to the transit company.
    (3) That the transaction between Rice and the Associated Furniture Manufacturing Company and Davis, president of the defendant transit company, operated as payment, and therefore that a verdict should have been directed in favor of the defendant.
    On behalf of appellee it is claimed:
    (1) That the notice required by the statute is not a written notice.
    (2) That if the statute does require a written notice such notice was given to defendant transit company.
    (3) That the transaction evidenced by the receipt from the Associated Furniture Manufacturing Company to the transit company does not amount to payment.

       As to what contracts will support maritime liens, see note in 70 L. R. A. 353.

   Brooke, J.

(after stating the facts). Much argument is indulged in by the attorneys for both parties and many cases are cited upon the question as to whether the “timely notice” mentioned in the statute must be a written notice. Under our view of the case it becomes unnecessary to construe the statute in this regard. The statute creating the lien is peculiar, and, so far as the principal contractor is concerned, no notice whatever is required. The lien is established by the statute as soon as the work is done or material is furnished. Delaney Forge & Iron Co. v. The Winnebago, 142 Mich. 84 (105 N. W. 527, 113 Am. St. Rep. 566); Perkins v. The Golden Girl, 185 Mich. 200 (151 N. W. 660). By the proviso the lien can only attach in favor of a subcontractor when he has given to the owner, agent, master, or clerk of the said craft, “ ‘timely notice’ of his or their said claim.” As soon as the owner has received such “timely notice” the subcontractor “shall have a lien upon such craft pro rata, for his or their said claims.” A notice under this statute, whether verbal or written, is clearly “timely” if it is received by the owner at a time prior to payment by the owner to the principal contractor. It is conceded upon this record that at the time of the conversation between Lochlin, president of the plaintiff company, and Davis, president of the transit company, and on May 29, 1914, when the first letter was written, the defendant transit company had not paid the Associated Furniture Manufacturing Company for the goods in question, indeed such payment, if made at all, was not made until July 28, 1914, two months later. That Lochlin interviewed the president of the defendant transit company with the purpose of securing payment of the goods about to be shipped is not open to dispute upon this record.

Assuming, then (although not determined), that a written notice is required under this statute, we come to a consideration of the letter of plaintiff dated May 29, 1914, to the defendant transit company. That letter refers to the conversation held between Lochlin and Davis a few days earlier, notifies the defendant company of the writer’s failure to secure Mr. Rice’s consent to the billing of the goods directly to the transit company, and requests defendant’s co-operation with reference to the debt. It is our view that this letter satisfies the requirement of the statute with' reference to notice, even though such notice must be in writing. It should be noted that the proviso of the statute does not refer to notice of a claim of lien, but simply requires “timely notice” to be given of a claim after which the lien attaches by virtue of the statute, in this respect differing from the mechanic’s lien law (chapter 296, 3 Comp. Laws, 3 Comp. Laws 1915, chap. 244). It is very clear that the letter of May 29, 1914, gave to the defendant transit company circumstantial notice of the plaintiff’s claim. As soon as the defendant transit company received notice of the plaintiff’s claim, and that the same was unpaid, which information was conveyed to it m that letter, a lien attached to the vessel in favor of the plaintiff by operation of the statute, and thereafter the defendant transit company could not relieve itself of liability to the plaintiff by payment to the principal contractor. In this view of the case it becomes unnecessary for us to examine into the transaction between Rice, representing the Associated Furniture Manufacturing Company, and Davis, the president of the transit company, of to determine whether such transaction should be held to amount to payment.

A verdict having been properly directed in favor of the plaintiff for the amount of the claim, the judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. Person, J., did not sit.


text:
    POOL v. TOWNSHIP OF MONTAGUE.
    1. Evidence — Opinion Evidence — Highways and Streets — Municipal Corporations.
    In an action against a township for personal injuries alleged to Lave been caused by a rut at tbe approach to a bridge, where a witness had described the depression, his opinion as to whether it was an ordinary or extraordinary one was of no consequence and was properly excluded by the court below.

    2. Municipal Corporations — Highways and Streets — Personal Injuries — Contributory Negligence.
    Where plaintiff was injured by being thrown from a wagon on which he was riding, seated upon a bunch of shingles loosely placed on top of a load of lumber, the alleged cause of the accident being a depression in the road at the approach to a bridge, of which defendant township’s officers had actual notice, the questions of defendant’s negligence and plaintiff’s contributory negligence were properly submitted to the jury.
    3. Trial — Damages—Instructions.
    The refusal to give requested instructions to the jury as to plaintiff’s damages for loss of time, where the court had sufficiently covered the requests In his general charge, was not erroneous.
    4. Same — Sympathy—Instructions.
    While language used by the court, in his charge to the jury, on the question of sympathy, was not exactly clear, where the court evidently intended the jury to understand that in reaching a verdict they were not to be governed by sympathy, such instruction was not erroneous.
    5. Damages — Excessive Verdict — Appeal and Error.
    Where plaintiff’s physician testified, in a suit for personal injuries, that plaintiff would be a cripple for life, a verdict for $1,500 cannot be said to be so excessive as to result in a miscarriage of justice, even if the charge of the court on the subject of sympathy was erroneous; no motion for a new. trial based upon that ground having been made.
    Error to Muskegon; Sullivan, J.
    Submitted October 11, 1916.
    (Docket No. 127.)
    Decided December 22, 1916.
    Case by David O. Pool against the township of Montague for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harris E. Galpin and Chwrles B. Cross, for appellant.

      Turner & Turner, for appellee.
    On May 14, 1914, plaintiff, who lived in the village of Fruitvale, went to Montague, a distance of about seven miles, for the purpose of securing a load of lumber. His road led him. over Carleton Creek bridge, distant about a mile and a half from his home at Fruitvale. For the purpose of transporting the lumber, he hired one Fred Nordhoff with his team. Plaintiff and Nordhoff left Fruitvale between 7 and 8 o’clock in the morning and passed over the bridge in question going west shortly thereafter. The wagon had no box, and plaintiff and Nordhoff on the trip west rode upon the hounds near the rear axle. Both testified ■that on this trip they noticed no particularly bad.hole at the easterly approach of said bridge. After loading the lumber at Montague, Nordhoff sold one of his horses and another was secured to take its place. Nordhoff also arranged for his cousin, likewise named Nordhoff, to drive plaintiff and the load of lumber back to Fruitvale. The load of lumber consisted of 400 or 500 feet of stuff which was piled between the upright standards of the bolsters. On top of this lumber there was placed several bunches of shingles. Two of such bunches were placed within about 3 feet of the front end of the load, and plaintiff sat on the bunch on the left-hand side and the driver, Nordhoff, on the bunch on the right-hand side. Approaching the Carleton Creek bridge from the west, the road runs down a considerable hill to the bridge. No difficulty was encountered in getting upon the bridge, but, as the team crossed over the bridge and .the front wheels left it, the plaintiff’s claim is that they dropped into a hole between 12 and 16 inches deep. This sudden' dropping of the front end of the wagon caused plain-' tiff and Nordhoff to be both thrown forward and off of the wagon. Plaintiff landed upon his. feet between the whiffletree and the heels of the near horse, and Nordhoff was thrown to the ground in front of the right front wheel. Some of the shingles followed the passengers. The team became frightened and started forward running and kicking. Plaintiff, having secured the lines, succeeded in drawing the team to the left side of the road upon the soft ground, where they were finally stopped about 50 feet from the bridge. Probably as a result of a kick the plaintiff suffered a compound fracture of his right kneecap. He was taken to his home in Fruitvale, where he received the attention of a physician and was confined to his bed upwards of 20 days, when he got out on crutches. The physician who attended him testified that the kneecap had not joined and that the plaintiff' would remain a cripple for the rest of his life.
    The plaintiff introduced considerable testimony besides that of himself and the dr-iver, Nordhoff, to the effect that the hole at the easterly approach of the bridge was at least a foot deep and was located immediately where the planks of the bridge stopped. There was testimony on behalf of the plaintiff to the effect that the defect in the highway at this point had existed for a long period of time and that the township officers had received actual notice of it.
    On behalf of defendant much evidence was introduced tending to show that the hole or depression at the easterly approach of the bridge was not to exceed 4 or 5 inches in depth, and that the point of greatest depression was about 18 inches from the eastern end of the bridge. At the close of the testimony, the defendant moved for a directed verdict on the ground that the plaintiff was guilty of contributory negligence as a matter of law: First, for riding over a road, such as the record discloses the one in question to be, upon a bunch, of shingles loosely placed on top of a load of lumber. Secondly, that inasmuch as the accident happened at 3 o’clock in the afternoon in broad daylight, the plaintiff or his employee, Nordhoff, if they had exercised reasonable care and prudence should have discovered the depression at the easterly approach of the bridge in time to have avoided it. This motion was denied, and the case was submitted to the jury upon the questions of defendant’s negligence in the care of the highway and plaintiff’s contributory negligence. Plaintiff secured a verdict for $1,500.

       On evidence in action against township for injury by defect in highway, see note in 13 L. R. A. (N. S.) 1244; L. R. A. 1916A, 1218.

   Brooke, J.

(after stating the facts). The first nine assignments of error are based upon alleged errors in the exclusion of testimony. The character of the testimony covered by these assignments may be illustrated by the following: The highway commissioner of the defendant township, having described the rut at the easterly approach, was asked:

“Q. I mean whether it was anything more than the ordinary rut that you find on the approach to a bridge of that kind?”

His answer was excluded, and it is strenuously urged on behalf of the defendant that the jury had a right to be informed by the witness as to whether or not the hole was of the character complained of, or whether it was just an ordinary rut to be found on a road of that kind. Another witness was prevented by the ruling of the court from stating in what respect the approach at the Carleton Creek bridge differed from the ordinary approaches to culverts and bridges on country roads in general. In urging the admissibility of the testimony offered, counsel for defendant says:

“Knowledge of the proper or best methods of building roads is not among the presumable accomplishments of average jurors. It cannot be said that the average juror is well acquainted with country roads in general or with, the building of approaches to bridges along country roads.”

The court was unquestionably correct in excluding the testimony in question. Having described the depression, the opinion of the witnesses for defendant as to whether it was an ordinary or extraordinary depression was of no consequence. It was for the jury to determine, having heard all the testimony, whether the road was reasonably fit and safe for public travel. The remaining exceptions based upon alleged errors in the exclusion of testimony are of the same character and are without merit.

It is likewise urged on behalf of defendant that the court erred in overruling the motion for a directed verdict on the ground that the plaintiff by himself or his driver was guilty of contributory negligence. We are of opinion that the motion was properly denied.

There was evidence on behalf of plaintiff that the load of lumber and shingles was carried in the usual and ordinary way for such a load, and there was no testimony on behalf of defendant to the effect that plaintiff’s actions under the circumstances were negligent. We think the question was one for the jury, and we find it was submitted to the jury under a very careful and painstaking charge. Upon this point the court said, in part:

‘‘No matter how negligent you may find the township to have been, and no matter how defective you may find the easterly approach to the bridge in question to have been, yet, if the plaintiff or the driver of the team was guilty of any negligence that contributed in any degree to the plaintiff’s injury, he cannot recover. In that connection it is proper for you to take into consideration everything disclosed by the evidence in relation to the accident, to how the plaintiff drove over the bridge in question in the morning, the condition of the bridge at that time, what knowledge he had of its condition, either from driving over it in the morning of that day or from any other time that he may have traveled upon it. You have also a right to take into consideration the time when the accident actually did occur, the time of the day at which it was, the nature of the load that he was bringing from Montague to his home, the lumber and the shingles, and all the other facts and circumstances in connection therewith, to say and to determine whether the plaintiff himself was guilty of contributory negligence.”

Errors were assigned upon the refusal to give defendant’s second and third requests to charge. The second request was clearly covered by that portion of the charge above quoted. The third request was as follows:

“I further charge you that there is no testimony in this case tending to show the earning capacity of the plaintiff either before or after the time of the injury complained of, and you have no right to take his earning capacity into consideration in arriving at a verdict.”

In the course of the charge relating to the measure of damages the court said:

“He is not entitled to recover anything because of any loss of time, for the reason that there is no proof in the case as to the value of his time from which you could compute any amount of damages because of that loss.”

This language we think sufficiently covers the defendant’s third request.

Error is also assigned on the following excerpt from the charge:

“Something has been said about sympathy, about the word 'sympathy/ That has been used, and both parties have said they don’t want the case decided upon sympathy. That is so; that is right; that is right. Nobody can see another man — no human being scarcely, no right made human being, can see another man that has suffered a great injury without feeling for him, without pitying his condition, and his pity and feeling is called sympathy; but in this kind of a case, gentlemen, in a case like this, why, we can’t get rid of that sympathy. I wouldn’t have you do it if you could. We can’t do it, but still that is not to decide the case, gentlemen. There are other things. There are other things that must be used by a jury, and that is a sense of justice, the evidence in the case, the equality of the law must be supported in every case, and then when you have done your duty and according to your sense of justice, according to the weight that you give to the evidence, why, then you have done all that the law requires of a man.”

While the language here used by the court is not exactly clear, we are disposed to the view that the court intended the jury to understand that in reaching a verdict they were not to be governed by sympathy. Other portions of the charge which is not necessary to quote support this view. While it is intimated in the brief of counsel for defendant that the verdict was. excessive, and that such excess was superinduced by this portion of the charge, no motion for a new trial was made based upon that ground. Considering the character of the injury received by plaintiff and the amount of the recovery, we are unable to say that the, charge, even if erroneous in the respect claimed, brought about any miscarriage of justice.

The judgment is affirmed.

Stone, C. J., and Kuhn, Osteandee, Bied, Moose, and Steeee, JJ., concurred. Pebson, J., did not sit.