text:
    OSBORNE v. OSBORNE.
    1. Justices of the Peace — Special Appeals — Grounds—Sufficiency.
    In a special appeal from the judgment of a justice of the peace, allegations that the justice was without jurisdiction, and that said justice erred in rendering a judgment in said cause, are too general to be considered.
    .2. Same — Process-Amendments.
    . Where an action in justice’s court was brought by the guardian of an incompetent in his own name, the justice might allow an amendment to the summons so as to show that the action was brought by the incompetent by his guardian.
    -S, Same — Appeal—Record—Conclusiveness.
    Where the affidavit for special appeal from a justice’s judgment asserted that judgment was rendered against appellants “William Osborne and Fred Williams,” and that they were the parties making the appeal, and they made no complaint of the form of the judgment entry in the justice’s court, and the attention of the circuit court was not called to any discrepancy between the names of the parties as they appeared in the justice’s court and as they appeared in the circuit court, appellants were estopped from asserting that the judgment appealed from was in fact obtained against “John W. Osgood and Fred Williams.”

      Error to Lenawee; Chester, J.
    Submitted February 24, 1909.
    (Docket No. 31.)
    Decided April 24, 1909. (
    Trespass quare clausum fregit, in justice’s court, by Margaret Gr. Osborne and another against William Osborne and another. There was judgment for plaintiffs, and defendants took a special appeal to the circuit court. There was judgment for plaintiffs, and defendants bring error.
    Affirmed.

      Bird & Sampson, for appellants.

      Smith, Baldwin & Alexander, for appellees.
   Montgomery, J.

This action was commenced in justice’s court to recover damages for trespass to real estate. On appeal to the circuit, judgment passed in. favor of the plaintiffs, and the defendants bring error.

In the defendants’ brief, two reasons are urged for setting aside the judgment of the circuit court: First, because the justice allowed an amendment of process and pleadings which he had no power to allow, and thereby lost jurisdiction of the case; second, because judgment, was rendered in justice’s court against John W. Osgood and Fred Williams, and in the circuit court against John W. Osborne and Fred Williams. The defendants took no part in the trial, but chose to rest their case upon the alleged error of the circuit judge in overruling the objections taken by defendants in their special appeal. The affidavit for special appeal stated the specific grounds of error as follows:

(1) That the said justice never obtained any jurisdiction over the persons of the defendants in said cause.
“ (2) That the said justice erred in deciding that he had jurisdiction in said cause.
“ (3) Because said John W. Osborne was not named as plaintiff in said summons.
“ (4) Because John McOlennahan could not begin suit as guardian or administrator of John Osborne in his own. name. ■
“(5) Because said justice erred in permitting said summons to be amended, if the same was amended.
“ (6) That said justice had no jurisdiction to render a judgment in said cause.
“C?) Because said justice had no power to make the amendment in the names of the parties which was asked for and allowed.”

The return of the justice showed that after the service of the summons he permitted the summons in the case to be amended so that the names of the plaintiffs should read:

“Margaret Q. Osborne and John W. Osborne, an incompetent person, by his guardian, John McClennahan.”

In the brief of appellants’ counsel, the effect of the amendments allowed by the justice is said to be: (a,) It permitted the name of the ward to be substituted as plaintiff and the guardian as the representative; (6) it changed the word “ administrator” to the word “guardian; ” (c) it changed the name of “John W. Osgood” to “ John W. Osborne.” The brief proceeds:

“The changes which were brought about in ‘a’ and ‘ b ’ were probably within the power of the justice to permit, but the change brought about in ‘ c ’ was not within his power, because that was a substitution of parties.”

It is clear that the allegations of error contained in the special appeal are, with the exception of the third, fourth, fifth, and seventh, too general. See Courtis v. Garrison, 148 Mich. 226.

The affidavit for special appeal does not state the contents of the summons, but the inference tobe drawn from the fourth allegation of error is that what was meant by the third allegation to be averred was that the name of John W. Osborne did not appear as plaintiff, but that the name of John McClennahan, as guardian of John W-. Osborne, did. The averment that the justice had no power to allow the amendment in the names of the parties is in the most general terms and does not enlarge the allegations Nos. 4 and 5 substantially. The only question that it raises is the question of power to make the amendment. No reference is made to the time or the circumstances under which the amendment is made. Therefore, if there was power to make the amendment, the objection is without force. This power is apparently conceded in the brief of appellants’ counsel, unless he is in a position to assert that the name of John W. Osgood was the name in which the suit was brought. There is nothing in the affidavit for special appeal to indicate this. On the contrary, the assignments of error in the affidavit clearly indicate that the suit was brought by John McOlennahan as the guardian or administrator of John Osborne in his own name. It is true that a copy of the docket appears in the record, which shows the name entered upon the docket as “John W. Osgood,” and also shows the names of the defendants as “William Osgood” and “Fred Williams; ” but no such discrepancy appears to have been called to the attention of the trial court. It was not raised by the special appeal, and, what is more, the motion to dismiss — which it may be said was not referred to in the affidavit for special appeal — which was filed in justice’s court, states that the suit purports to be brought by the guardian of John W. Osborne, and there is no authority in law for them to institute suits in their own names as guardians. The return to the special appeal is also entitled, as is the affidavit for appeal, in the name of “Osborne” and against “ William Osborne” and “Fred Williams.” The circuit court was not therefore called upon to rule upon the question of whether there was error in the justice’s docket or whether there had been a change in the names of the parties, for no such question is presented by the special appeal.

The same thing may be said in answer to defendants’ contention that there was error in entering judgment against different parties from those appearing on the docket of the justice. The affidavit for special appeal asserts that judgment was rendered against William Osborne and Fred Williams, and they are the parties who make the appeal to the circuit court and against whom the proceedings there are had. They made no complaint of the form of the judgment entry in justice’s court. It was a judgment entry against them for the purposes of appeal at least. The attention of the circuit court appears not to have been called to any discrepancy between the names of the parties as they appeared in the justice’s court and as they appeared in the circuit. The defendants are estopped from asserting that the appeal which they brought to relieve themselves from a judgment obtained against JohnW. Osborne and Fred Williams was in fact obtained against John W. Osgood and Fred Williams. The appeal refers to no such case, the return of the justice refers to no such case, and, so far as this record shows, no such case was ever heard or heard of by the circuit judge.

The judgment is affirmed.

Blair, O. J., and Grant, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    JENNINGS v. STATE VETERINARY BOARD.
    1. State Boards — Attorney General Only Authorized Representative.
    The attorney general is the only authorized representative of the State veterinary board in mandamus proceedings to compel the issuance of a certificate of registration.
    2. Physicians and Surgeons — Registered Veterinarians — Application for Registration — Time.
    Application for a certificate of registration as a veterinary surgeon having been made seasonably under Act No. 244; Pub. Acts 1907, it was competent for the State veterinary board to issue such certificate upon a showing of additional facts which had been omitted from, the original application, and were, by permission of said board, made after the time fixed in the statute for such application had expired.
    Mandamus by William G. Jennings to compel the State veterinary board to issue a certificate of registration.
    Submitted April 6, 1909.
    (Calendar No. 28,299.)
    Writ granted April 24, 1909.

      Philip T. Van Zile, for relator.

      John E. Bird, Attorney General (Henry E. Chase and Arthur P. Hicks, of counsel), for respondent.
   Hooker, J.

In this cause we are of the opinion (1) that the attorney general only is authorized to represent respondent; (2) that the only other question in the cause is whether the letters required by the statute (Act No. 244, Pub. Acts 1907) were seasonably filed.

The application was made in time, and was accompanied by letters, which omitted to state that the signers were stock raisers or that he had practiced for five years. The defect was corrected by letters filed early in January, 1908, at the suggestion of the board. The proceedings being seasonably commenced by filing the application and letters, we think it competent for the board to issue a certificate upon an additional showing as to these facts after January 1st.

Writ granted.

Blair, C. J., and Grant, McAlvat, and Brooke, JJ., concurred.


author: Blair, C. J.

text:
    GRAND RAPIDS ELECTRIC RAILWAY CO. v. CALHOUN CIRCUIT JUDGE.
    Mandamus— Temporary Injunction— Dissolution— Discretion of Trial Court.
    Where, on the answer to a bill of complaint asking for a temporary injunction, all of the material facts alleged in the bill of complaint are not denied, but the denials of the alleged facts and the affirmative assertion of Other facts are incompatible with complainant’s right to a decree, it is not such an abuse of judicial discretion to dissolve a temporary injunction as to warrant an interference by a writ of mandamus; especially when it appears that complainant’s rights can be protected upon the final decree.
    Mandamus by the Grand Rapids Electric Railway Company to compel Walter H. North, circuit judge of Calhoun county, to vacate an order dissolving a temporary injunction.
    Submitted April 13, 1909.
    (Calendar No. 23,311.)
    Writ denied April 24, 1909.

      William E. Grove ( George W. Mechem, of counsel), for relator.

      Williams & Lewis, for respondent.
   Blair, C. J.

This is an application for the writ of mandamus to require respondent to vacate an order dissolving a preliminary injunction.

Relator filed its bill of complaint, alleging that it had acquired all of the property rights and franchises of the Central Michigan Railroad Company, organized and incorporated on the 27th day of August, 1888; that after its organization said Central Michigan Railroad Company entered upon the construction of its road in good faith, surveyed its route, etc., made a map thereof, which was approved by the board and filed in the offices of the registers of deeds of the counties of Calhoun, Branch, and Hillsdale; that it secured much the greater portion of the rights of way necessary for the construction of its line, “and that the right of way thus acquired included many miles of roadbed already graded and ready for the ties and rails;” that on the 10th of January, 1906, the Central Michigan Railroad Company, having become unable to complete its said road, and the same having remained for more than five years in an unfinished condition, and without having the ties and iron placed and continued thereon up to that time, and complainant being about to institute measures to appropriate the same, pursuant to the provisions of section 6242, 2 Comp. Laws, sold the same to complainant; that later complainant foreclosed a mortgage on said road, and bid the same in on the 27th day of July, 1907; that since its purchase complainant has entered upon the construction of its said road, and “has made arrangements for the construction and completion during the present year of that part of its said road which extends from Battle Creek to its southern terminus at the south line of the State,” etc.; that the defendant, the Battle Creek, Coldwater & Southern Railway Company, was organized, and filed its articles of association on December 18, 1908, for the purposes and objects as stated in said articles, “to construct, maintain and operate a railway or railways, or buy or lease and operate other railway or railways in connection therewith, in the State of Michigan, commencing at a point at or near the city of Battle Creek in the county of Calhoun, and extending southerly through the county of Calhoun and through the county of Branch to a point in or near the city of Coldwater in said Branch county, and to acquire by purchase or otherwise the roadbed and rights of way of the Grand Rapids Electric Company, a corporation formerly existing but now inactive;” that defendant has made a map including about 24 miles of complainant’s roadbed and rights of way, and has applied to the railroad commission to have its said map approved, and a day for hearing said application has been fixed, and def endant gives out that it intends to appropriate said roadbed and rights of way; that the acts and purposes of defendant are against the just rights of complainant, will cause it irreparable loss and damage, and are in violation of the laws of this State, and especially of section 6242, 2 Comp. Laws; that, unless restrained by injunction, the defendant will proceed to have its map approved and recorded in said counties of Calhoun and Branch, and thereby create a cloud upon the title of complainant. The prayer for rélief is that defendants he perpetually enjoined from proceeding further to have their map approved and recorded, and from interfering with complainant’s possession or construction of its said road, and that a preliminary injunctionJbe issued; and that defendants be required “to change the route of their said railway, so that no part of the same will be located upon any part of your orator’s said line of road or rights of way.” There was also the usual prayer for general relief. A preliminary injunction was issued as prayed for, which, upon the coming in of defendant’s sworn answer, was upon motion of defendant dissolved, and complainant applies to this court for the writ of mandamus to require the circuit judge to vacate said order of dissolution. The injunction was dissolved by the court—

“For the reason that the action on the part of the defendant, which is sought to be restrained pending the determination of the cause, is not such as will work an irreparable or even a serious injury to the complainant. At least it is not more serious than the injury-would be which the perpetuation of it would work to the defendant.”
“ Ordinarily this court does not review the action of the circuit judge in injunction cases.” Ionia, etc., Ins. Co. v. Ionia Circuit oudge, 100 Mich. 606 (32 L. R. A. 481).
“ This court does not sit for the purpose of granting injunctions, except it be on final hearing, when we are vested with jurisdiction on appeal. Aside from the power which we exercise in such cases, we can only interpose, if at all, in a case of a plain and gross abuse of discretion. Nor is it an abuse of discretion if the circuit judge should reach a different conclusion than we might, if authorized to sit in his place. The granting of a preliminary writ of injunction is a discretionary power vested in the courts of original jurisdiction. 1 High on Injunctions (4th Ed.), §§ 11, 15. Such a writ is not a matter of right, particularly in cases in which the parties may be fully protected by a final decree, or by a suit at law.” Detroit, etc., Plank-Road Co. v. Wayne Circuit Judge, 98 Mich. 141.

While the defendant’s answer does not deny all of the material facts alleged in the bill of complaint, the denials of alleged facts and the affirmative assertion of other facts are incompatible with complainant’s right to a decree. We do not find such an abuse of discretion as to warrant our interference by the discretionary writ of mandamus, and we are satisfied that complainant’s rights can be fully protected by the final decree.

The application is denied.

Grant, Ostrander, McAlvay, and Brooke, JJ., concurred.


author: Grant, J.

text:
    BRADY v. SLOMAN.

    Execution — Setting Aside Sale — Deeds—Recording Laws — Constructive Notice.
    On a bill to set aside a levy and sale upon execution, it appeared that complainant’s father executed a deed, which was in fact a mortgage, to secure the payment of a loan. Upon the payment of said loan, the grantee deeded the land to complainant who went into immediate possession although said deed was not then recorded. Subsequently the land was sold to defendant on a levy and sale on execution. Held, that the judgment creditors and the purchaser were put upon notice by the actual occupancy of complainant, and that they could acquire at such sale no greater rights than the judgment creditor had; since a grantee in possession of land has title against all the world, whether his deed is recorded or not. Corey v. Smalley, 106 Mich. 257, followed.
    Appeal from Wayne; Murphy, J.
    Submitted April 13, 1909.
    (Docket No. 38.)
    Decided April 24, 1909.
    Bill by Francis J. Brady, Jr., against Samuel A. Sloman to set aside a levy and sale upon execution. From a decree for complainant, defendant appeals.
    Affirmed.

      Edward McNamara (David E. Heineman, of counsel), for complainant.

      Sloman & Sloman, for defendant.
    Complainant in this suit seeks to set aside a sheriff’s levy and sale upon execution; the defendant being the purchaser at the sale. In 1889 complainant’s father, Francis J. Brady, Sr., was the owner in fee of the land. His sole creditor was one Prosper J. Raymond, to whom he owed $525. Brady, Sr., and Raymond were intimate friends and had accommodated each other with loans. To secure this loan Brady, Sr., gave Raymond a warranty deed, which was in fact a mortgage. Raymond was to reconvey upon payment of the amount secured. Raymond recorded the deed in the book of deeds, and not in the book of mortgages, on the day it was executed, December 27, 1889. On July 22, 1896, complainant paid his father’s debt to Raymond. The money so paid was contributed by the complainant, his father and brother. At the request of the father, Raymond, on the date last mentioned, conveyed the land by proper deed to his son, the com-, plainant. Complainant gave the deed to his father, for safe-keeping, supposing that he would attend to recording it. It was not recorded until December 19, 1902. Raymond exercised no control over the property either after the deed by Brady, Sr., to him, or after the deed from Raymond to complainant. The property was leased by the Bradys and receipts given to the tenants in the complainant’s name after January 16, 1901, and many of the receipts before that date were so given. In 1895 the Bradys spent $1,350 in enlarging the dwelling house on the land, converting it into a double house. Raymond became indebted on promissory notes to S. A. Sloman & Co., a copartnership, and on June 2, 1896, they obtained a judgment against Raymond in justice’s court for the sum of $121.31. On August 12, 1902, a transcript of said judgment was filed in the circuit court, and execution was issued, and the homestead of Raymond and the land here involved levied upon. . The premises were duly sold to the defendant on May 4, 1906, for $234.43, the amount of the judgment, with interest and costs. Prior to the sale the sheriff was notified that complainant claimed to own the premises in fee. When the sale was made, Raymond’s execution creditors did not have actual notice of complainant’s claim of ownership. The case was heard upon pleadings and proofs taken in open court, and the decree entered setting aside the levy and sale.

       Rehearing denied July 15, 1909.

   Grant, J.

{after stating the facts). Actual possession and occupancy of land constitute a notice to every subsequent purchaser and incumbrancer of the rights and title of such occupants. The record title stood in Baymond. Baymond parted with that title by deed to Brady, Jr. Brady, Jr., had for years exercised complete ownership over the property. The occupancy by tenants was as valid as occupancy by himself. Had the execution creditors made an inquiry of the parties in possession, they would have learned at once that Baymond had no interest whatever in the land, and that Brady, Jr., was their landlord. A grantee in possession of land has a title against all the world, whether his deed is recorded or not. Neither the execution .creditors nor the purchaser, Sloman, could obtain any better title by levy and sale than they could have obtained by purchase from Baymond. Had Baymond deeded to defendant this land, the occupancy of Brady, Jr., through his tenants, would have defeated his title. Sloman & Co. were put upon inquiry by this actual occupancy, and had they made such inquiry they could have proceeded with their levy upon the homestead, which was worth much more than the homestead exemption. This case is ruled by Corey v. Smalley, 106 Mich. 257, and authorities there cited.

The decree is affirmed, with costs.

Blair, C. J., and Montgomery, MoAlvay, and Brooke, JJ., concurred.


text:
    McFARLAND v. SAYEN
    Negligence — Setting Fires by Engines — Use of Spark Arrester — Question for Jury.
    Where, in an action for negligently setting fire to plaintiff's farm buildings by sparks from a traction engine, the question of whether defendant used an efficient spark arrester, held, under conflicting testimony, to have been properly submitted to the jury.
    Error to Delta; Stone, J.
    Submitted April 16, 1909.
    (Docket No. 74.)
    Decided April 24, 1909.
    Case by Matthew McFarland against Joseph E. Sayen for negligently setting fire to plaintiff’s buildings. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Arthur H. Byall, for appellant.

      Cummiskey & Spencer, for appellee.
    Plaintiff recovered verdict and judgment for $600 for the destruction of his farm buildings by fire, alleged to have been caused by sparks from a traction engine of the defendant. The negligence alleged is that the defendant was running said engine along the highway past plaintiff’s buildings, “ without having a hood or spark arrester on said engine sufficient to prevent the escape of sparks of fire, or did not in any way prevent sparks of fire from escaping from the smokestack of said engine.” The duty to have such a spark arrester is alleged. Three errors are assigned:
    (1) The court erred in charging the jury that, as a matter of law, it was the duty of the defendant to have an efficient spark arrester or hood on the engine at the time the fire occurred, and to entirely prevent the escape of sparks.

      (2) The refusal of the court to direct a verdict for defendant.
    (3) The refusal to grant a new trial for the reason that the verdict was against the weight of evidence.
   Grant, J.

{after stating the facts). 1. Assignments 1 and 2 may be disposed of by saying that there was a sharp conflict in the evidence upon the question whether the defendant had a hood or spark arrester on the smokestack when it passed the plaintiff’s house and stood within about 20 feet while taking on water. A boy seven years old at the time of the fire, and nine at the time of the trial, was riding upon the engine, and testified positively that the screen or spark arrester was lying on the wood upon the engine at the time. Plaintiff also produced other evidence upon this point. The defendant produced evidence to the contrary. This question of fact was properly submitted to the jury, and we are unable to find that there was even a preponderance of evidence in favor of the defendant.

2. The court did not instruct the jury that it was the duty of the defendant to have a spark arrester sufficient “to entirely prevent the escape of sparks.” The court instructed them that it was the duty of the defendant to have an efficient spark arrester, such as “wereordinarily used.” He called the attention of the jury to the contention on the part of the plaintiff that there was no spark arrester upon the smokestack, and to the contention of the defendant that there was. No evidence was given, and the record does not bear evidence that any claim was made, that the spark arrester which the defendant had was not such as the law requires. Was it in use at the time ? was the question to which the evidence was directed, and was the sole issue on this branch of the case. No such issue is presented here as was presented in Cheboygan Lumber Co. v. Transportation Co., 100 Mich. 16, where the claim of the defendant was ( and it gave evidence to sustain it) that it used other appliances which rendered the use of a screen or spark arrester unnecessary. The negligence here charged is the failure to use a spark arrester. The defendant by its plea asserted that it did use one. Under this record the failure to use it was negligence, and the jury properly so decided.

The judgment is affirmed.

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


author: Brooke, J.

text:
    CUNNINGHAM v. KINYON.
    Landlord and Tenant — Summary Proceedings — Defenses.
    Where, after a decree in this court complainant deeded to defendant certain premises and also all right, title and interest to an adjoining alley “together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining” he is not authorized under section 11161, 3 Comp. Laws, to maintain summary proceedings for the possession of coal sheds ’ocated partly upon said alley and a railroad right of way.
    Error to Hillsdale; Chester, J.
    Submitted April 6, 1909.
    (Docket No. 7.)

    Decided April 24, 1909.
    Summary proceedings by Isaiah Cunningham against Daniel B. Kinyon for the possession of land. There was judgment for complainant, and defendant brings error.
    Reversed, and no new trial ordered.

      F. A. Lyon and Merton Fitzpatrick, for appellant.

      Charles M. Weaver, for appellee.
   Brooke, J.

The subject-matter of this litigation has been before this court on a former occasion (see Kinyon v. Cunningham, 146 Mich. 430), where an extended statement of facts appears touching the relations of the parties in this case up to the time of that determination. The majority of the court in determining the case of Kinyon v. Cunningham, supra, reached the conclusion that—

“The defendant intended to convey all of the land that be owned, or supposed that he owned, at the particular locality, including his interest in the so-called Warehouse alley, * * * and that all of the persons connected with the transaction understood that the contract covered all of the defendant’s real estate at the particular place.”

The decree of this court following the opinion above quoted bears date January 21, 1907. On the 6th day of February, 1907, Cunningham in carrying out the terms of said decree gave to Kinyon a warranty deed of the west 101 feet of said lot No. 194; and

“Also all the right, title and interest of the said Tsai ah Cunningham and Esther Cunningham, his wife, in and to the piece of land known as Warehouse alley, the same being a strip of land two rods wide north and south, and 101 feet long east and west, bounded on the north by the Lake Shore & Michigan Southern Railway Company’s land; on the east by the land of Robert J. Corlette; on the south by said lot No. 194 of McCollum’s north addition to the village (city) of Hillsdale and on the west by the east line of Union street, together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining.”

On April 27,1907, Isaiah Cunningham made complaint before the circuit court commissioner of Hillsdale county under section 11164, 3 Comp. Laws. This occurs in chapter 308, entitled “Proceedings to recover the possession of land in certain cases,” and is commonly called the statute providing for summary proceedings to recover “the possession of land. The complaint was as follows:

“The complaint of Isaiah Cunningham, of the city of Hillsdale in said county, respectfully shows: That Daniel B. Kinyon is in possession of the following lands and tenements, situated in the city of Hillsdale and said county of Hillsdale and State of Michigan, to wit: The coal sheds on the lease of land held by the said complainant from the Lake Shore & Michigan Southern Railway Company. Said sheds are located south of said railway company’s tracks and on or very near Union street, and are the same that were involved in the recent case of Kinyon v. Cunningham in the Supreme Court of said State. That Isaiah Cunningham, the complainant, is the-owner of the said premises, and that the defendant, being the said Daniel B. Kinyon, is in possession and refuses to yield possession to said complainant. That said Daniel B. Kinyon therefore holds said premises unlawfully and against the right of the complainant, and that the complainant is entitled to possession of the same. Wherefore the complainant prays that proceedings according to the statute in such case made arid provided may be taken against said Daniel B. Kinyon and the possession of said premises may be restored to the complainant.
“Isaiah Cunningham.”

Upon this complaint judgment was rendered before the circuit court commissioner in favor of complainant, and on appeal to the circuit court said judgment was affirmed. The cause is brought here for review of that judgment.

The record discloses that it is the complainant’s claim that, immediately after the decision in the circuit court of the case of Kinyon v. Cunningham, he (Cunningham) turned over to Kinyon the possession of the property in question upon the condition that if, on appeal, his contention as to the ownership should be sustained by the Supreme Court, Kinyon should pay him for the use and occupation of the premises. This, he claims, created between himself and Kinyon the conventional relation of landlord and tenant and entitled him to maintain his action under section 11164, 3 Comp. Laws. The contention of the complainant might have some force were it not for the necessary effect of the deed made by him and his wife on the 6th day of February, 1907, soon after the determination of the case in this court. By that deed he conveyed to Kinyon:

“Also all the right, title and interest of the said Isaiah Cunningham and Esther Cunningham, his wife, in and to the piece of land known as Warehouse alley, the same being a strip of land two rods wide north and south, and 101 feet long east and west, * * * together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertaining.”

It is entirely obvious to the court that by this conveyance Cunningham parted with his rights to the whole of Warehouse alley as described, two rods wide and 101 feet long. Whether those rights were such as accrued to him by prescription, or whether they arose from his lease from the railroad company, or whether they were such as arose from his alleged contract with Kinyon touching the occupation of the sheds, made immediately after the determination of the suit in the circuit court, it is unnecessary to determine. As to the real estate, therefore, upon which the sheds in question are located, so far as it is comprised within the boundaries of Warehouse alley, it is plain that the complainant is entirely without title. By the decree of the court below he is put in possession of the premises, and it is conceded that the sheds occupied the entire northerly half of Warehouse alley.

It will be noticed from an examination of the opinion in the case of Kinyon v. Cunningham, supra, that while this court reached the conclusion that Cunningham had agreed to convey all the real estate in the vicinity to Kin-yon, the court did not determine that the sheds located in part on Warehouse alley and in part on the railroad right of way were necessarily included in the contract. This court left Cunningham free to establish his title to the sheds as personal property distinct from the real estate. Whether by his deed to Kinyon of February 6, 19.07, he has conveyed them to Kinyon, at any rate, so far as they are located upon Warehouse alley, we do not determine. We are, however, clearly of the opinion that the complainant cannot maintain this action brought under the statute providing for summary proceedings to recover the possession of land.

Judgment reversed, and no new trial granted.

Blair, 0. J., and Ostrander, Moore, and McAl-YAY, JJ., concurred.


author: Ostrander, J.

text:
    WARREN v. SHEEHAN.
    1. Estates op Decedents — Claims—Allowance.
    Proof of the allowance by the commissioners of a claim against the estate of a decedent prima facie establishes its validity; and where, under a decree of this court allowing defendants to show the invalidity of a claim which had been so allowed and no appeal taken, the evidence on behalf of a contestant is insufficient to prove its invalidity, the award will be sustained.
    2. Same.
    An attorney’s fee of §50 per day for attendance in court and a charge of §25 for settling a decree are not, under the evidence, so clearly excessive as to warrant the setting aside of an award of the commissioners.
    3. Judgments —Liquidated Accounts — Interest — How Computed.
    The establishment of an amount due to an attorney for services rendered a client, by a decree giving him a prior lien upon land for its payment, liquidates the account and precludes an enlargement of the decree by adding interest.
    Cross-appeals from Wayne; Mandell, J.
    Submitted February 15, 1909.
    (Docket No. 114.)
    Decided April 24, 1909.
    Petition by Fred H. Warren against Robert C. Sheehan and John L. Murphy for the payment of an award by the commissioner of a claim against the estate of Calvin A. Cook, deceased. From the decree entered, both parties appeal. Modified.

      Fred H. Warren (Howard B. Bloomer, of counsel), in pro. per.

      Thomas G. Long and Walter & Spalding, for contestants.
   Ostrander, J.

In addition to a history of transac-tions and of litigation, to be found in the opinions of this court in Farwell v. Bigelow, 112 Mich. 285, Sheehan v. Farwell, 135 Mich. 196, and Bigelow v. Sheehan, 150 Mich. 507, it should be stated that the demand of claimant, Fred H. Warren, against the estate of Calvin A. Cook, deceased, was duly allowed by commissioners May 19, 1903, at the sum of $743.12, and no appeal from such determination was taken. The decree of this court in Bigelow v. Sheehan, supra, following Seymour v. Wallace, 121 Mich. 402, and Chapoton v. Prentice, 144 Mich. 283, permitted defendants Robert C. Sheehan et al. to show, if they could, the invalidity of claimant’s demand. Accordingly, in the circuit court for the county of Wayne, in chancery, said defendants undertook to diminish the amount of said demand so proved and allowed before said commissioners on claims. From a finding and decree of the said court, both parties have appealed.

Under the authorities above referred to, claimant’s demand, for the purposes of this proceeding, was established, prima facie, by proof that it had been duly allowed by the commissioners on claims. As presented, it was an itemized statement from books of account of charges for professional services rendered to, and for money paid for, Cook. The court disallowed none of the items of the account, but by a method of computing interest, approved by neither of the parties, found the sum due to be $892.82. The account is questioned in three particulars.

1. It appears that at one time Mr. Cook secured the claimant payment for services rendered and to be rendered by deeds of land in Canada; Mr. Warren executing a proper defeasance. Afterwards a bill was filed by a secured creditor ( Farwell) to reform his mortgage, previously given by Cook, so as to embrace said land. Cook and Warren were made parties defendant and were represented by the same counsel. The result was a decree reforming the mortgage but saving the lien of Warren, the amount of which lien was made certain. Some years later the amount of the lien was paid. Out of the money Canadian counsel reimbursed themselves, paid certain costs, and turned over the remainder to Warren, who credited the balance so received to the account of Cook. He charged Cook with the moneys so retained by Canadian counsel, amounting to $189.78. It is contended that Cook was under no obligation to bear the expense of sustaining the lien of claimant, in the absence of an express agreement, and that no express agreement is shown except by the testimony of claimant, which may not be received for that purpose. The contention may be answered by saying that the facts do not support the conclusion that Cook was not interested in the suit brought to reform the mortgage. The consideration recited in the deeds from Cook to Warren is $4,500. Warren’s lien, established by the decree, is for the sum of $635.74. Warren’s agreement with Cook was to reconvey the land to him on payment of his (Warren’s) charges. Evidently the principal relief sought by Farwell was the subjecting of the land to the lien and operation of his mortgage. As we understand the record, there was no contest over the matter of the priority of Warren’s lien. Independent of the testimony of Mr. Warren, who was called as a witness for contestants, the invalidity of these items as proper demands of Warren against Cook is not made out. With his testimony it appears that the money was paid for Mr. Cook at his direction.

2. The account contains a charge for four days’ services of Mr. Warren at $50 per day and a charge of $25 for settling a decree. It appears from his testimony that the services consisted in attendance at court at the hearing of Farwell v. Bigelow, and in examining the decree proposed and entered in that cause. He took no part in the hearing. His client made no substantial defense. It is said the charges are excessive and should be reduced. Mr. Warren, interrogated in behalf of contestants, testified, without objection, that he spent the time in court at the direction of Cook. Examined upon the subject of his manner of fixing charges for his services, and having replied to various questions in that behalf, he was asked:

“Q. Do you base your professional charges for attendance in a noncontested case solely upon the time that you spend ?
“A. Not always.
“Q. Did you in this case ?
“A. I based my charge upon the understanding with Mr. Cook, not only in this case, but all the other work that I did for him. He was entirely satisfied and agreed to and many times promised to pay it.”

We are asked to find that a charge of $50 a day for attendance in court and watching the progress of litigation of considerable magnitude, in the result of which a client is greatly interested, is an excessive charge for the attorney to make. Like the other items which have been referred to, the demand has once been established, in accordance with the law, against the estate of Cook. We cannot say that these charges, including the one for examining the decree, are so clearly excessive as to warrant disturbing the award of the commissioners.

3. In the statement of account presented to the commissioners is a debit item of $63.84 for interest which appears between charges of date October 4 and October 9, 1894. At the end of the statement are two interest items of $115.80 and $118.68, respectively. The total of these items, or $298.32, goes to make up the sum of $743.12 allowed by the commissioners. There is no proof of an express general agreement to pay interest. All items of the account to and including October 10, 1895, were merged in the decree of the Canadian court. That decree, with a few dollars added, was paid September 20, 1898. Why a larger sum was not collected we are not informed. We assume it was because the demand was established as a prior, fixed lien upon the land; but it is clear that after the date of the decree there was no longer an open account with respect to the items included in the decree. The amount then due and payable could not be afterwards enlarged by adding interest. The account was liquidated. Afterwards and beginning October 22, 1895, and ending December 22, 1898, the charges made against Cook, including the sums retained by Canadian counsel, amount to $517.28. Mr. Cook died in June, 1902.' The question presented is the one of the proper rule for computing interest. It is clear that we must begin with the amount of the Canadian decree. It may be and should be treated as a liquidated demand, due and payable presently. No authority is presented for allowing interest upon the open account prior to the death of Mr. Cook, except upon the item of $189.78 representing moneys paid by claimant for Cook. We find therefore that the amount allowed by the commissioners is too great. The sum claimant is entitled to receive out of the fund, subject to a pro rata payment of expenses of administration, is shown by the following computation:

The lien established on Canadian lands-.........--.$635 74
Interest, 2 years, 10 months, 26 days, at 6 per cent. _ 110 83
$746 57
Received on account of lien________________________ 644 88
Balance.....................................$102 19
Open account -....................................517 28
Interest upon $189.78 from September 20, 1898, to May 19, 1903, 4 years, 7 months, 29 days, at 6 per cent............................................. 53 11
Total of claim which should have been allowed by commissioners_______________________-...........$672 58 Interest upon this amount at 5 per cent, from May 19, 1903, to date of decree below, August 6, 1908,
5 years, 2 months, 17 days-----------------------8175 84
Total______________-..............-.......-8847 92

The decree will be modified accordingly. No costs are awarded. The cost of printing the record will be divided equally between the appealing parties.

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


author: Moore, J. Moore, J.

text:
    CAPELING v. SAGINAW COAL CO.
    1. Master and Servant — Personal Injuries — Negligence of Master — Violation of Statutory Duty — Assumed Risk — Fellow-Servants.
    The doctrines of fellow-servant and assumed risk do not apply to a case in which the injury to plaintiff was caused by the negligence of an incompetent servant employed as an engineer in violation of Act No. 100, Pub. Acts 1905. Layzell v. J. H. Somers Coal Co., ante, 268, followed.
    2. Same — Application of Statute — Operation of Mine.
    That the removal of coal from the sump at the bottom of the shaft of defendant’s coal mine, during which operation plaintiff was injured, was done on Sunday, when the mine was not in operation, does not relieve defendant from liability for injuries caused by an incompetent servant, employed as an engineer in violation of Act No. 100, Pub. Acts 1905, the removal of the coal so that the cage might go low enough in the shaft to perform its office being as much a part of the operation of the mine as any other work.
    3. Same — Negligence—Evidence—Sufficiency.
    In an action by a servant, employed in a coal mine, against the owner of the mine, for personal injuries caused by the negligence of an incompetent servant, employed as an engineer in charge of hoisting machinery, in violation of Act No. 100, Pub. Acts 1905, evidence examined, and held, to make a case for the jury.

      Error to Saginaw; Gage (William G.), J.
    Submitted February 21, 1908.
    (Docket No. 127.)
    Decided June 27, 1908.
    Motion for rehearing granted September 8, 1908.
    Reargued February 9, 1909.
    Former opinion affirmed June 7, 1909.
    Case by Louis E. Capeling against the Saginaw Coal Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      He Vere Hall, for appellant.

      Humphrey & Grant, for appellee.
   Moore, J.

Defendant company in March, 1906, was operating a coal mine through a double compartment shaft about 125 feet deep. The men found their way in and out of the mine by riding in cages up and down the shaft. As one cage ascended the other descended. The coal found its way to the surface through the same shaft. The cages are under the control of an engineer who cannot see the cages for most of the time. A system or code of signals is provided by a bell triangle, by a bell, by a steam whistle, and by a speaking tube; the triangle being located in the engine room near the engineer, the bell at the bottom of the shaft, the steam whistle about 10 feet above the mouth of the shaft in the tipple, and the speaking tube extending from the bottom of the shaft to the engine room on the surface. The position of the cages in the shaft is known to the engineer through an indicator located in front of him, with two dials pointing in opposite directions, one for each cage. When one of the dials points to a certain place on the indicator it shows that the cage is in the uppermost part of the tipple where the coal is tipped upon inclined screens of different sizes over which it passes to the railroad cars. Another point of the indicator shows that the cage is at the surface, and another that it rests at the botton of the shaft.

The sump is the lower part of the shaft underneath the cage when its floor is on a level with the floor of the mine. As the coal is lifted to the surface lumps sometimes fall off the cars, beneath the cages, dropping into the sumps, and after a certain accumulation it interferes with the lowering of the cages to the desired level, and it then becomes necessary to “clean out the sump.” Plaintiff was a common laborer in the mine. He was sent into the sump to clear out the coal. He had been at work but a few minutes before the cage descended upon him injuring him severely. He sued to recover damages. After his testimony was all in, and before any was offered on the part of defendant, the defendant’s attorney moved the court to direct a verdict in favor of defendant for the following among other reasons:

“1. The statute of the State of Michigan, under which plaintiff claims his right of action in this suit, was approved May 10, 1905, and given immediate effect. The undisputed evidence in this case shows that the servant Patton had been in defendant’s employ and performed the same duties as performed by him upon the day when the accident happened, and of which plaintiff complains, for at least four years prior to the passage of the act in question, and there is no evidence in the case tending to show that at the time of the employment of said Patton he was not competent to perform all duties and acts required of him under said employment. * * *
“4. The servant Patton and the plaintiff in this case were fellow-servants, and had worked together at the place in question, each performing the same duties for the defendant as on the day of the accident, for a period of at least five years prior to the happening of the accident, and being fellow-servants, the negligent act of the servant Patton will not make the defendant liable to the plaintiff in this action. * * *
“ 6. The undisputed evidence in the case shows that the plaintiff’s injuries were caused on account of the servant Patton for some reason forgetting that the plaintiff was in the sump, and, in answer to a signal, lowered the cage on top of the plaintiff causing the injury of which he complains. The undisputed evidence shows that the signal was to lower the cage, that the servant Patton intended to lower the cage, and that he did lower the cage exactly as he intended to do, and this act of lowering the cage was not the act of an incompetent.servant but constituted a single negligent act of a competent fellow employé and for which the defendant is not liable in this case.
“7. Under the undisputed evidence in this case, the plaintiff and the servant Patton were fellow-servants and the sole cause of the accident was the negligent act of the servant Patton, and was not due to any fault or negligence upon the part of the defendant, and the plaintiff is not entitled to recover and your verdict must be for the defendant of no cause of action.”

The plaintiff asked the judge to charge the jury in part as follows:

“1. On March 25, 1906, there then was, and now is, in force a law of this State which, in effect, provides for the protection of the health, lives and interests of the coal miners of the State, and by the third section of the act comprising such law it is provided that only competent and trustworthy engineers shall be permitted to operate the cages and hoisting devices in all coal mines of this State. * ■* * '
£ ‘ 3. By said law the duty was imposed upon defendant of permitting no one but a competent and trustworthy engineer to operate its cages and hoisting devices. This law means that the employé operating such cages and devices must be an engineer, and I charge you, as a matter of law, that unless said Patton was, in fact, an engineer, he was unauthorized under said law to operate such cages and devices.”

If No. 3 is refused then:

££4. By said law the duty was imposed upon defendant of permitting no one but a competent and trustworthy employé, acting as engineer, to operate its said cages and hoisting devices. This law means that the employé operating such cages and devices must possess the qualifications of a reasonably competent and trustworthy engineer, and I charge you as a matter of law that unless said Patton was a reasonably competent and trustworthy engineer he was unauthorized under said law to operate such cages and devices. * * *
“7. If you determine that Patton is not a reasonably competent and trustworthy engineer you will then determine whether his want of competency and trustworthiness was so open and apparent before March 25, 1906, that his want thereof was known, or should have been known, to defendant’s superintendent in charge of said mine. Unless his want of competency and trustworthiness was such that said superintendent, in the exercise of reasonable supervision, did or should have learned of it, defendant would not be charged with knowledge or notice of his incompetency or untrustworthiness.
“8. Should you find that Patton was not reasonably competent and trustworthy as engineer, this, of itself, would not charge the defendant with responsibility for his act of lowering the cage onto plaintiff, unless you also find that such act was one performed by him because of permission from defendant before that time granted to him, or suffered by defendant to be performed by him, and that the particular act was a careless and negligent one.
“9. Should you find for plaintiff on the several questions relating to the want of competency and trustworthiness of Patton and his negligence and the negligence of defendant in permitting him to operate such cage, still you cannot return a verdict for plaintiff unless you further find that he, plaintiff, was himself free from fault or negligence contributing to his injury. You have heard the testimony as to the manner of cleaning the sump and the measures taken, if any, to guard against liability to injury. Take this and all other evidence bearing thereon into consideration, and then determine whether plaintiff was free from fault or negligence. If you think not, he cannot recover. If he was, then he may recover.”

The judge refused to give the requests to charge and directed a verdict in favor of defendant. The case is brought here by writ of error.

It was the claim of plaintiff that defendant did not comply with the law in employing a man to operate the cages.

The title of Act No. 100 of the Public Acts of 1905, so far as material to this controversy, is:

“An act to provide for the protection of the health, lives and interests of the coal miners of Michigan and to provide for the inspection of all coal mines in this State.”

Section 8 of the act provides:

“That only a competent and trustworthy engineer shall be permitted to operate the cages and hoisting devices in all coal mines in this State.”

It will be sufficient for the purposes of this case to quote part of the testimony of plaintiff and of the man in charge of the cages when the accident happened. Mr. Capeling’s testimony was in part as follows:

“I was at the mine on the morning in question about a quarter after sis and Mr. Pugh went down in the mine with me; I did not see the engineer that morning before I was injured, but didsee Mr. Patton, the fireman; either I or Pugh gave the signal to lower the cage. When we stepped on the cage our backs were toward the engine room and we could not see the engineer or fireman as a flat car was in the way. I personally do not know who lowered the cage that morning in answer to our signal. When I saw the fireman that morning he was putting in fire under the boiler and was at a distance of twenty or twenty-five feet from where anyone would be who was to be lowered in the cage. * * *
“ There were three of us, Mr. Pugh, Mr. Clements, the assistant superintendent, and myself. Mr. Clements did not give me any directions or instructions at that time. I had cleaned out the sump before. At the time we started our work the east cage was at or near the bottom and I rang one bell and when I got it where I wanted it I gave one signal to stop the edge. That was the proper signal and the cage stopped. I could not hear the bell above when I stopped it and I went and phoned and told him not to move until I told him to, that I was going in the sump and not to move the cage until I told him to. I did not know who answered me and I could not recognize the voice. The tube led to theengine room and the end of the tubewas right where the engineer stood when he moved the lever. The person to whom I telephoned said, ‘ all right.’ I did not mention my own name and I could hear his"voice distinctly. I then went into the sump to work. "When the sump is cleaned out the cage will go down within about a foot and a half of the bottom. On this day there was coal in the sump up to the cage’s sides, which was about a foot and a half from the bottom, and the east sump would not stand any more coal without interfering with the cage going down. Mr. Pugh and Mr. Clements were on the south side of the shaft on the sheet facing me when I started to work. When I had thrown up a half dozen shovels of coal the cage came down upon me without any warning or signal of any kind. I could not have heard the bell where I was if it had been rung as it was too far away, but could have heard the whistle if it had been blown. No whistle was blown and there was no noise to drown it. I did not know that the cage was coming down until I was fast underneath it.”

He also testified that Mr. Patton was a fireman and he had been in the habit of raising and lowering the cages.

Mr. Patton testified in part:

“My age is fifty-six. In March, 1906, 1 was in the employ of defendant at this mine in Buena Vista. I have been employed there in the neighborhood of nine years, all told, and during all that time I was firing this particular mine. I went there shortly after the mine started. I worked with the first engineer for six months, then went to work for the gas company and then went back to the mine when Charles O’Brien was engineer and have remained there as fireman until the present time. * * *
“In March, 1906, the firemen were there eight hours each and we changed around every two weeks; that is, I would be with the engineer as fireman for two weeks and then four weeks wouldn’t be, and then for two weeks I would be back again with him.
“Q. Were you ever engineer in that mine ?
“A. No, sir.
“Q. Were you ever anything other than the fireman at the mine ?
“A. That’s all:
“Q. Was there ever a time from the day you first went there when there wasn’t an engineer over you at that mine ? * * *
“A. Oh, always been an engineer in their employ, yes. The duties of each fireman are the same. * * *
“ I got to this mine on the 25th day of March, 1906, about half past six. The engineer was not there when I got there. He came about half past seven. I was well acquainted with plaintiff and knew Mr. Pugh. It was not known to me and the engineer that they were to clean out the sump until plaintiff informed me. He telephoned up to me and told me to raise my steam, that he was going to clean the sump. He said to raise the steam so as to. start the pumps up faster. That was probably three-quarters of an hour or an hour before I got the signal to raise the cage. I recognized the voice of the man speaking and knew it was plaintiff. He spoke through the speaking tube. * * * I couldn’t say that he said who he was when he telephoned me, but I knew the voice and knew he was to do the work. I raised the steam. The engineer wasn’t there when he gave me the orders and I did not know before that the sump was to be cleaned out that day. After he got the water pumped out he ’phoned up to me or whistled up to me and notified me he was going in the sump and he gave me the signals for me to raise the cage. He ’phoned me first and said: ‘I am to go in.’ I knew what that meant. It meant he was going down in the sump to clean it out. He rang the bell for me to hoist the cage. I hoisted it, I should judge, about nine or ten feet; I couldn’t say because I wasn’t down there; I could tell on the indicator pretty near. I raised the east cage and lowered the west about ten feet. When I got the request to raise the cage the indicator showed that the east cage was at the bottom. After he got the cage up about ten feet he says, c Now I am going in the sump.’ He rang one bell when the cage was about ten feet up to stop it. This signal was the usual signal to stop the cage. * * *
“When I raised the cage, when he wanted it up so high he rung the bell for me to stop, and when he done that he went to the ’phone and ’phoned me that he was going in the sump. * * * I knew that he would be in the east sump because I raised the east cage. I went directly over to the engineer and notified him not to move the cage; that is after I got it up ten feet and plaintiff telephoned me and I then went to the engineer and said, Mas, Louie has gone in the sump; don’t move the cage.’ He heard me and answered me. He was in the boiler giving Joseph Schultz, the other man, instructions. I couldn’t say whether he was doing anything else there. He was not then doing any of the manual work himself. After I told the engineer, I thought it would be a good -chance for me to get in the coal and I went up on the tramway in the fire room and there was a strap bent on the door and I was trying to straighten that; a strap for a hinge.
liQ. How long were you up there trying to fix the door ?
“A. Well, it was about four — three to four minutes— from the time I left the engine room until I got back again.
“Q. How far away was this door where you were doing that work from the engine room ?
“A. About 45 feet I should think, directly up about 5 or 6 feet up above the fire room — so as to dump coal into the bins.
“Q. Is it about 40 feet away ?
“A. Yes.
“Q. And did you go directly from the engineer to getting the coal in and to fixing the door — which ?
“A. I went directly to get in the coal.
“Q. How much coal did you get in ?
“A. I didn’t get any in yet; I was getting ready to get it in.
“Q. Then you didn’t do anything except to try and fix the door ?
“A. That’s all. * * *
“Q. How long did you work at it ?
“A. I worked at it about two minutes and they rung, the bell.
“Q. Then you heard the bell ?
“A. Yes.
“Q. This bell you heard, what was it?
“A. A signal from the landing in the shaft.
“Q. From the top of the shaft ?
“A. Yes.
iCQ. What did it signify ?
f ‘A. Well I only heard two bells at the time.
“Q. You heard just two rings ?
“A. That’s all.
“Q. You were pounding with the hammer ?
“A. Yes.
“Q. Would the pounding of the hammer tend to drown the sound of the rings somewhat ?
“A. It would from that part.
“Q. You don’t know how many rings were given ?
“A. No, sir.
“Q. When you heard the two rings what did you do ?
UA. Why, I went directly to the engine and lowered the cage.
“Q. You heard Mr. Behm’s testimony as to the signals he gave did you ?
“A. Yes.
“Q. What did those signals he says he gave indicate ?
“A. Well, it might indicate to draw my attention and I wouldn’t know what to make of it.
“Q. Would it be a signal upon which you would move, the cage ?
“A. No, sir, not according to that.
“Q. Were you striking the strap at about the time you heard the bells ?
“A. Yes.
“Q. Did you hear the two bells after you struck the last blow ?
“A. Just about — while I was,striking there I heard two bells.
“Q. Did you make any investigation to determine whether there were more than two bells sounded ?
“A. It came all so sudden I couldn’t — just like a. dream — it was a little part of forgetfulness on my part.
11Q. You are getting too far along — I wasn’t — after you realized you were striking with a hammer on this strap and that the bell was ringing and that the sound of' the striking on the strap might drown out the bell, did you make any investigation to determine how many more, bells had been sounded than the two you heard ?
“A. No, sir. * * *
lsQ. What were you striking it with ?
”A. A hammer.
“Q. So it was metal striking metal was it ?
“A. Yes.
“Q. As soon as you heard the bells what did you do?
“A. I went directly to the engine. * * *
“Q. Did you see the engineer ?
“A. No, sir,
“Q. Did you say anything to him ?
“A. Not at that time.
“Q. Did you say anything to anyone ?
“A. No, sir.
“Q. Did you see anyone about ?
“A. No, sir.
“Q. But you did know signals had been given by someone at the mouth of the shaft ?
“A. I didn’t know they were at the mouth of the shaft; I supposed it was below. * * *
“Q. And what did you do ?
“A. I lowered the cage.
“Q. Now did you do anything other than you have already stated here except to pass directly from pounding the strap, go to the levers that work the cage, and drop the cage ?
“A. No, I didn’t have time.
“Q. What was there that interfered with you taking the time ?
“A. The bell ringing.
“Q. You were assuming to control the cage yourself, were you not ?
“A. Yes.
“Q. And you could lower it or raise it or not just as you desired ?
“A. Yes.
“Q. Now I ask you whether you did anything between these two acts other than to go directly from pounding on the strap and using the levers to lower the cage ?
“A. No. * * *
“Q. Did you hesitate at the levers at all before you moved the cage ?
“A. No, sir.
“Q. You didn’t wait for any further signals ?
“A. No, sir.
Q. How long had it been from the time that Louie had telephoned you that he was going into the sump to the time that you lowered the cage ?
“A. About three or four minutes I should judge.
Q. Did you recollect the telephone which he sent you ?
“A. Yes, I had it in mind; I told Max about it.
“Q. At the time you lowered the cage did you have it in your mind ?
“A. No, sir; I forgot it.
“Q. And when did it occur to you next that Louie had telephoned you that he was going in the sump ?
“A. Just about as I got the cage at the bottom I thought of it.
“Q. You thought of it?
“A. Yes.
“ Q. What did you do ?
“A. I tried to stop the engine.
“Q. Was any signal given to you to warn you that you should stop the cage ?
“A. No, sir.
“Q. It came to you, did it?
“A. It came to me.
C‘Q. Then what you mean is that at that particular time it had passed from your mind that Louie had told you he was going into the sump ?
“A. Yes. * * *
“ Cross-Examination.
“By Mr. Humphrey:
“Before that morning I had operated the engine in letting men down and bringing them up. There might have been three or four or five calls that morning for the cage. Mr. O’Brien left as engineer a little over a year ago. I worked there about seven years with him. During all of the time I worked there the engineer would be at the mine when the mine was in operation eight hours a day or a little longer, probably nine hours a day, and the other fifteen hours of the day during all of that time, the firemen had charge of the engine and operated it.
“Q. And was that a part of their duties ?
“A. I guess that was a part of our duties. * * *
“ For instance, I would be with the engineer for two weeks in the day run and the nest four weeks I would be on when the engineer was off. On two of the shifts the engineer wouldn’t be with me and during all that time the fireman would operate the engines. At such times as that the men would go up and down in the shaft at different times and materials would be hoisted up and let down; timbers for timbering and things of that kind. * * *
Q. Whatever timbering would be done of that kind the timbers taken down would be taken down by the firemen ?
“A. Yes.
Q. And what men would go down would be in charge of the fireman ?
“A. Yes. There were men working in the mine overtime frequently and they would be handled by the firemen. That had been so for the full nine years that I had been working there and that situation was well known to evexybody about the mine, to all the men. That was the only way the mine was operated. Before working at this mine I worked at gas fitting; fitting pipes. I had a small engine there I kept up, too. It was merely for crushing coke and such things as that.
l‘Q. Have you ever acted as engineer and run an engine?
“A. Yes.
liQ. For how many years ?
“A. Let’s see. About twelve years, all told.”

He then told in detail for whom he had worked as engineer. On the re-direct examination he testified:

“At these several places where I was employed I did not operate an elevator or cage; they were stationary engines. Until I had done such work as I did for the defendant I was never employed in and about machinery where I raised and lowered men.”

It has been observed that in the reasons of the counsel for defense why a verdict should be directed, it is claimed that the fellow-servant doctrine, so-called, should apply, and also the doctrine of assumption of risk, inasmuch as the plaintiff knew Mr. Patton was in the habit of raising and lowering the cages. A long and able argument is made in the brief of counsel* in support of these contentions. This very statute has been recently construed by this court in a case where both of these contentions were made and fully discussed by the court in the opinion. The case is Layzell v. Coal Co., ante, 268. The conclusion reached was averse to the contention of counsel for defendant. The case is so recent that, as to this feature of the case, we shall content ourselves with referring to that case.

It is claimed that, as this work was done on Sunday ' when the mine was not in operation, there is no liability. While there was no coal mined on Sunday, the removing of the coal in the sump so that the cage might go low enough in the shaft to perform its office was as much a part of the operation of the mine as any other work.

The remaining question is, Was there a case to go to the jury? The language used in the statute is simple. Its purpose is plain. A reading of Mr. Patton’s testimony discloses that, while at one time he was an engineer, he had not been employed in that capacity for nine years, and that during the last nine years his employment was that of fireman. It is true that for at least a portion of the time he had raised and lowered the cages, but that was an incident of his. employment. Upon the morning in question his duties as fireman called him a comparatively long distance from the levers which control the cages, and made it necessary for him with a hammer to try and put in order a metal strap hinge, and while engaged in this work he heard the signal bell, and, mistaking the signal, and forgetting that Mr. Capeling had told him not more than five minutes before that he was going in the sump, and not to lower the cage, he proceeded to lower it, and Mr. Capeling was severely injured. A more striking illustration of the wisdom of the statute, and a more glaring failure to observe its provisions, could not well be imagined. The circuit judge could very properly have instructed the jury that defendant was liable, but plaintiff did not ask him ¿o do this but preferred certain requests to charge which we have quoted. These requests should have been given.

Judgment is reversed, and new trial ordered.

Blair and Ostrander, JJ., concurred. Grant, C. J., and Montgomery, J., concurred in the result, on the ground that the case is ruled by Layzell v. Coal Co., ante, 268.

ON REHEARING.

Moore, J.

An opinion was filed in this case June 27, 1908 (ante, 437), which opinion was withheld from official publication because a reargument was ordered before the full bench. The opinion, however, was published in 117 N. W. 182. At about the time the case was reargued the case of Layzell v. J. H. Somers Coal Co. was reargued. An opinion in the last-named case was filed April 24, 1909, and appears ante, 277, which case is controlling o£ this one. A further consideration of the case leads us to the same conclusion we reached in the opinion heretofore filed.

Judgment is reversed, and new trial ordered.

Blair, C. J., and Grant, Montgomery, Ostrander, Hooker, McAlvay, and Brooke, JJ., concurred.


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    PEOPLE v. REYCRAFT.
    1. Evidence — Exclusion of Testimony — Credibility of Witnesses — Harmless Error.
    In a criminal action against a surgeon for assault and battery upon another surgeon, growing out of an altercation as to which should perform an operation, testimony as to whether or not certain witnesses were unfriendly to accused was admissible only as bearing on their credibility; and, where such witnesses had been previously examined as to their attitude towards accused, it was not error to exclude testimony of another witness upon such subject.
    2. Criminal Law — Assault and Battery — Instructions.
    In such action, an instruction that respondent had no right to begin by assaulting the other, but should first have requested him to leave, and then have used no greater force to remove him than was necessary to overcome the resistance, was not erroneous as assuming that respondent began the assault; since what was said was in explanation of respondent’s claim that the assault was justifiable and necessary for the protection of the patient.
    3. Evidence — Admissibility.
    The admission in evidence of a letter written by respondent to the complaining witness two years before the assault, held, in view of other testimony, to be admissible as showing the nature and extent of a previous ill-feeling which existed between them, and which respondent did not deny.

      4. Appeal and Error — Requests to Charge after Argument.
    Appellant cannot complain of the offering of certain requests to charge after the argument had begun, where the record neither shows the taking of an exception nor that said requests were given.
    Error to Emmet; Shepherd, J.
    Submitted February 11, 1909.
    (Docket No. 146.)
    Decided April 28, 1909.
    John J. Reycraft was convicted of assault and battery, and sentenced to pay a fine of $5 and cost.
    Affirmed.

      E. G. Hackney and M. E. Guinon, for appellant.

      Wade B. Smith, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant, a surgeon, was convicted of assault and battery upon another surgeon. They met in the operating room of a hospital in Petoskey, where the defendant arrived first with a patient who had been injured by the cars, necessitating the amputation of a leg. The complaining witness arrived a few minutes later, having been asked by the railroad company — whose regular surgeon he was — to go up to the hospital and take charge of the case. Defendant considered his action intrusive, and the complainant was pushed or thrown down. The parties differ in their versions of the affair, and the verdict indicates that the jury were convinced that defendant made an unjustifiable attack, or an excessive defense.

A witness for defendant was asked whether Miss German and Miss Schermerhorn (two nurses) were acting freely in the preparation and getting ready for the operation, or were they antagonistic. Apparently this was an attempt to show that these nurses were favoring Dr. Oven. It was freely admitted that the railroad company had telephoned the nurses that Dr. Oven was to take charge of the case, and asked that the operation be deferred until he came. It is not important to this case whether these nurses were unfriendly to the defendant or not, as, if so, it was a circumstance that had no bearing upon this controversy. At most, it went to their credibility as witnesses. They were examined with relation to it, which was as far as defendant had a right to go.

The court instructed the jury that:

“ If you find that Dr. Oven first made an unjustifiable assault upon the defendant, or that the defendant had grounds to believe, and did honestly believe, that Dr. Oven was about to do him personal injury, then the defendant had a right to use such violence as was necessary to protect himself from personal injury, but if he did what was unnecessary, or did more than was necessary in order to defend himself, he became and was guilty of assault and battery; and in this connection I instruct you that no mere words, no matter how irritating or insulting, will justify an assault and battery.
“In regard to defendant’s claim that what he did was lawful as a necessary protection of the injured man, I instruct you that if you find it to be a fact that Dr. Oven’s presence in the operating room and his conduct therein before the assault was dangerous to the injured man, or if the defendant had good reason to believe, and did in good faith believe, such to be the case, he had no right to begin by assaulting Dr. Oven; but he had the right to request, and he should have requested him, under such circumstances, to leave the room. Then, if Dr. Oven refused, he should have gently laid his hand upon him, and not proceeded with greater force than might have been made necessary by resistance. And, in deciding as to what degree of force he was justified or would be justified in using in overcoming such resistance, you must take into consideration all the circumstances of the case, including the physical appearance of the two men, and anything else that will throw light upon that, or bring your minds to a just realization of the facts as they existed. If the defendant did not request Dr. Oven to leave the room, but assaulted him in the first instance, he did what was not necessary for the protection of the injured man, and was guilty of assault and battery.”

Respondent’s counsel assign error upon the foregoing, asserting that it assumed that defendant “ began by assaulting Dr. Oven.” We think that there was no such assumption. It was said in explanation of a claim that the assault was justifiable and necessary in defense of the patient, and defendant has no occasion to find fault with the instruction given. It could not well have been misunderstood. The charge throughout was exceptionally clear and concise and fair.

A letter written by the defendant to Dr. Oven some two years before the alleged assault was admitted to show ill feeling. We think, in view of other testimony given, that it was admissible as showing the riature and extent of a previous ill feeling which defendant did not deny.

Error is assigned upon some requests to charge, which counsel for the people handed to the court, after the argument had begun, but which were not brought to the attention of counsel, nor was any argument had upon them. Counsel claim this was error under section 10244, 3 Comp. Laws. We find no exception taken to this, and nothing indicates that these requests were given. It would be anomalous to reverse a cause for such a reason, where not only were the requests not given, but the charge contained no error.

The judgment is affirmed.

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


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    HARRIS v. BOUTWELL.
    1. Drains —Establishment —Straightening Bed of Stream—
    Rights of Abutting Owners.
    The fact that proceedings were taken under the statute to make a natural watercourse into a drain, does not affect the right of the public or of abutting owners. And such owners have a right to drain their land into it; but they may not deepen the channel of such stream to the damage of lower proprietors.
    2. Same — Establishment.
    Where, on a bill to enjoin the construction of a drain, it appears that in times of high water complainant’s land is usually flooded, and that the additional flow from the proposed drain will not impose an additional burden, the drain will not be enjoined for that reason.
    3. Same — Maintenance.
    Where a drain has once been legally made, there is at least a presumption that, if necessary at all, it should be kept in reasonable order; and, where it is apparent that the drain into which the proposed drain is to empty has become obstructed so as to impede its flow, the construction of a drain emptying into it will be enjoined until the first drain has been cleaned out to its original depth and width.
    Appeal from Shiawassee; Miner, J.
    Submitted January 12, 1909.
    (Docket No. 59.)
    Decided April 28, 1909.
    Bill by Mary E. Harris against John Boutwell, county drain commissioner, to enjoin the construction of a drain. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Chandler & Friegel and A. F. Cole, for complainant.

      Odell Chapman, for defendant.
    Complainant seeks in this suit to restrain the construetion of a drain known as the “ Hemingway lake drain." The defendant is the county drain commissioner. It is conceded in the bill of complaint that the proceedings to lay out this drain are regular. The sole ground upon which complainant seeks to restrain its construction is that it will precipitate additional water upon a portion of her farm, thereby causing her injury. The outlet of the proposed drain is into the Looking-Glass river, or .the Looking-Glass river drain, above complainant’s land. Looking-Glass river is a well-defined and meandered stream, narrow in some places and wide in others. The Looking-Glass river drain was constructed some years, ago along the bed of the stream, except in places where it was constructed to straighten the river. The claim of the complaint is that the Looking-Glass river drain has become filled with, and the flow of water obstructed by, sand, grass, and weeds in its bed, and bushes along its sides, and will not carry off the additional water which will flow into it through the Hemingway lake drain. The Hemingway lake drain is constructed along a well-defined watershed, leading from Hemingway lake to the Looking-Glass river, or' the Looking-Glass river drain, which are substantially the same thing, and will be herein referred to as the “Looking-Glass river drain.” The court in its decree required that for 20 rods the drain shall be a covered one with 20-inch tile. Proofs were taken in open court, and the bill dismissed.
   Grant, J.

(after stating the facts). The land through which the Looking-Glass river runs is low with occasional elevations, on one of which the complainant’s farm buildings are situated. The Looking-Glass river drain is virtually a widening and deepening of the bed of the river, with an occasional cut for the purpose of straightening and increasing the rapidity of the flow. It is a natural stream. The fact that proceedings were taken under the statute to make it a drain does not affect the right of the public or of parties owning lands along it. Abutting owners have a right to drain land into Looking-Glass river drain (Treat v. Bates, 27 Mich. 390; Waffle v. Railroad Co., 53 N. Y. 11), but they cannot deepen the channel of a stream, serving as an outlet for a lake, to the damage of the lower owners (Kauffman v. Griesemer, 26 Pa. 407; Hyatt v. Albro, 121 Mich. 638).

Some of the complainant’s land in times of high water is usually flooded. To what extent this drain will add to that flood so as to injuriously affect complainant’s land is not clear. Except in times of high water, the Looking-Glass river drain would afford a sufficient outlet. The circuit judge evidently found that the additional flow of water caused by the Hemingway lake drain was not sufficient to injuriously affect her land, and must also have found that the drain was necessary for the public health. The circuit judge filed no opinion. Upon a careful review of the evidence, we conclude that in times of high water the proposed drain does cast an additional quantity of water upon complainant’s land. This court has said:

“ Where a drain has once been legally made, there is at least a presumption that, if necessary at all, it should be kept in reasonable order.” Barker v. Township of Vernon, 63 Mich. 516.

See, also, Sturm v. Kelly, 120 Mich. 685. No steps apparently have been taken to clean out the Looking-Glass river drain, which, as constructed, carried off the water more rapidly than did the original river.

After the parties had rested, the complainant, with her solicitor, and the defendant, without the presence of, his solicitor, entered into a written stipulation of settlement by which it was agreed that the defendant should be restrained from proceeding with the construction of the Hemingway lake drain until the Looking-Glass river drain was widened and deepened and made a sufficient outlet; that the complainant was to pay $35, the commissioner’s expense in laying out the Hemingway lake drain, and that each party should pay their own costs. The others owning lands along the Looking-Glass river drain, and claiming that they would be injuriously affected by the construction of the Hemingway lake drain, had combined to assist the complainant and bear the proportionate share of the expense of the suit. The defendant represented those who were interested in the construction of the Hemingway lake drain. This stipulation was subsequently brought to the attention of the court, and testimony taken in regard to it. The defendant and those he represented appear to have been satisfied with the settlement, provided it was legal. Evidence was introduced showing the circumstances under which it was made. The court refused to ratify the stipulation until it was signed by all the parties interested in the drain, holding that it was not binding until it was so signed. Both parties in this court ignore this stipulation, and have treated it as of no effect. We therefore have not the benefit of an argument upon it, and should not decide its validity without calling for additional briefs. We will therefore dispose of the case without determining the validity of the stipulation.

The' necessity of cleaning out the Looking-Glass river drain is apparent. The burden of taking steps to clean out that drain should not be cast upon the complainant. We think she is entitled to a decree restraining the construction of the Hemingway lake drain until the Looking-Glass river drain is cleaned out to its original depth and width, and that when this is done the defendant may proceed with the construction of the Hemingway lake drain.

A decree will be so entered. Under the circumstances, no costs will be allowed to either party in this court or in the court below.

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