text:
    GRAND RAPIDS & INDIANA RAILWAY CO. v. L. STARKS CO.
    1. Evidence — Opinions—Expert Testimony.
    In an action for the value of a freight car destroyed by fire, which plaintiff claimed resulted from negligence of defendant in firing and caring for a stove in the car, a witness was not improperly permitted to state that he did not see how the car could have caught fire from the stove which he had examined and filled with wood before he left on the night of the loss; the witness testifying that he had had experience in loading potatoes and in building fires in cars.
    2. Same — Charge—Burden of Proof — Negligence.
    Nor did the court err in charging the jury that the burden of proof rested primarily on plaintiff, that negligence cannot be presumed, but must be proven, and that the mere fact of the accident was not sufficient evidence of liability.

      3. Negligence — Fires—Railroads—Destruction op Car.
    Where the trial court placed the burden of proof on defendant to show that the persons in charge of the freight car furnished by plaintiff to be loaded by defendant and of the stove in the same, exercised due care, the instructions which fully covered the questions of due care submitting to the jury the issues of fact arising from the burning thereof, were as favorable to plaintiff as it was entitled to.
    Error to Kent; McDonald, J.
    Submitted June 19, 1912.
    (Docket No. 62.)
    Decided October 2, 1912.
    Case by the Grand Rapids & Indiana Railway Company against the L. Starks Company for the negligent burning of a freight car. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      James H. Campbell, for appellant.

      Hall & Gillard, for appellee.
   Steere, J.

Plaintiff brought this action in the circuit court of Kent county to recover of defendant damages resulting from destruction by fire of a car at a siding on the line of plaintiff’s railway in Osceola county, Mich.

Defendant is an Illinois corporation dealing in produce, with an office in Grand Rapids, Mich., from which city plaintiff’s railway extends north to the Straits of Mackinaw. When the car in question was burned, defendant was engaged in buying potatoes along the line of plaintiff’s road, shipping them in car load lots to various cities where an advantageous market could be found.

On or about January 31, 1908, in the regular course of its business, defendant ordered of plaintiff an empty car, to be put on a side track of plaintiff’s at a place called “ Dewing’s Siding,” there to be loaded by defendant with potatoes to be shipped out over plaintiff’s line. Having in its possession, and available, a refrigerator car, suitable for the purpose, belonging to the St. Louis Refrigerator Car Company, of St. Louis, Mo., plaintiff sent the same forward and placed it on the siding designated. It was there “spotted” on January 31,1908, and was destroyed by fire on the night of February 4, 1908, while being loaded. Plaintiff was required to pay the owner of the car for its loss, amounting, with certain small incidental expenses, to $709.27, and thereupon instituted this action to recover the amount so paid, alleging that the fire which destroyed the car was imputable to defendant’s negligence.

The case was tried in the circuit court before a jury, resulting in a verdict in favor of defendant. From a judgment entered on such verdict, plaintiff has removed the proceedings to this court for review on a writ of error.

Dewing’s Siding was not a regular station on plaintiff’s line. A country store was located there, near which a side track had been put in; the only other structure in the immediate vicinity being a small shanty in which to shelter freight. No representative of plaintiff was located at that point; the nearest station where there was an office and agent being Ashton, 2£ miles south. The records of any business done at Dewing’s Siding were kept at Ash-ton, and this car was handled by the agent at that office.

William Danielson, who lived near Dewing’s Siding and ran the store located there, was buying potatoes for defendant and loading them into this car. He had purchased them from surrounding farmers, and transferred them directly from the farmers’ sleighs into the car, as they were delivered. The weather was cold, and the car was heated to keep the potatoes from freezing. Defendant had furnished Danielson a stove for that purpose, which he had set up in the car, building a fire in it on the morning of February 4, 1908, to warm the car before he commenced to receive the potatoes. Loading was started that day,' and the work suspended at approximately 6 o’clock in^the evening; the car being then about one-half loaded — 500 bushels of potatoes having been delivered.

Danielson, whose home was some 20 or 30 rods from the siding, testified that he weht to the car about 9 o’clock in the evening to put some more wood into the stove and see that everything was all right. He did not fill the stove, but put in three sticks of dry wood and one of green wood, to hold the fire, shut the stove door, and fastened it, closing the draft. He léft the west door of the car closed, on the side from which it was being loaded. On the east side the permanent car door was fastened back by a hook regularly provided in such cars for that purpose, and a false door had been set in the doorway, thus closing the car on that side, and through this false door the stovepipe was projected. After putting wood into the stove and arranging matters on the inside of the car, the last thing he did was to go outside upon the roof and examine the wiring on the pipe, which projected up outside of the car. An east wind was Mowing, and for that reason he wished to see if it was all right. He testified that he so found it.

A Mr. Peterson, who lived near by, discovered the car was on fire some time after midnight and notified Daniel-son. When they reached the car, they found it all aflame. The fire was coming out of the door, and much of the roof was burned off. They could do nothing to save the car or its contents. The woodwork and body of the car were eventually entirely consumed.

Two trains are shown to have passed Dewing’s Siding that night.between 9 and 1 o’clock; the first being a freight train going north about 10 p. m., and the second a freight going south about 13:15 a. m. The car on the side track was on fire when the latter train arrived. As they were equipped, the train crew could do nothing to extinguish the fire. They remained long enough to run their detached engine in on the siding and pull out another car standing near the one on. fire, and then continued their run.

The records of plaintiff show that no snowplow passed that night; but three went over the line the next day, indicating a period of falling or drifting snow.

Various witnesses of experience, who had been engaged in shipping potatoes from 5 to 33 years, testified that it was necessary and customary to install stoves in refrigerator cars used for shipping potatoes in winter, in order to prevent freezing; that for many years potatoes had been loaded each winter and shipped on plaintiff’s line in cars heated by stoves, as in this case; that plaintiff’s agents regularly saw and knew this; that no objection or rule of plaintiff to the contrary was known to them; that stoves like the one in question were regularly furnished by shippers to the loaders, with instructions to set them up in the car before starting to load.

Danielson had loaded cars with potatoes on plaintiff’s line for five winters, putting into them such stoves provided by the shippers. The one he set up in this car was practically new, and of the kind usually furnished for the purpose. It was a round, sheet-iron stove, about 2-} feet long, 20 inches to 2 feet in diameter, standing horizontally in the center of the car on legs; the door being on the top of the stove. The legs raised it 20 or 22 inches above the floor. A pipe, 4 or 5 inches in diameter, extended above the stove about 2 feet, then turned with an elbow through the false door placed in the opening for the regular door, which was fastened back. A sheet of tin, about 10 inches square, covered an opening cut in the false door, and the pipe ran through a hole cut in the center of tfie tin, which kept the pipe 2£ or 3 inches from the surrounding wood. Beyond the false door, on the outside of the car, another elbow turned the pipe up, parallel with the side of the car, extending above the roof. A board reaching beyond the edge was nailed on the roof of the car, with .nails driven part way into its projecting end. Against these nails, the pipe was held firmly by wire wound around it and tightened to other nails driven into the roof further back. On the inside the stove was held securely by nails driven into the floor through holes provided for that purpose in the bottom of the stove legs. This stove was set up in the car and fastened in the customary way to guard against fire, and withstand the ordinary movements incident to transportation in a freight train, as described and testified to by experienced wit- . nesses.

Error is assigned on the allowance of the following question asked tbe witness Danielson:

“From your knowledge of putting stoves in cars and building fires in them and leaving them at night, and your knowledge as to the manner in which you left this stove, was it possible for this car to catch fire from the stove?”

This was objected to as calling for a conclusion and a speculation. The witness answered: “I do not see how it could, hardly.” The answer is in the nature of opinion evidence, which is admissible, as a rule, only in the examination of experts. The witness had experience and special knowledge in this work; but whether it is a subject for expert testimony might be open to debate. While the answer was rather a weak expression of opinion, the question, as asked, was for knowledge based on facts. The question related to the condition of the car and stove he had set up and the fire he had built. There is some room for contention that the door was opened for this line of inquiry by plaintiff’s counsel in the previous cross-examination of a witness named Rehkoff, in part, as follows :

“Q- Have you ever had a car take fire from one of these ?
“A. Not from the stove; no.
“ Q. If they are properly put together, and the fire properly taken care of, you think it safe ?
“A. It is safe. * * *
“Q. Do you say if the stove, such as that, with a fire in, if properly taken care of, would communicate fire to the car within two or three hours after ?
“A. I would not think it.
(iQ. And if it did, if it was left that way, and it communicated fire, then you would say it was not properly taken care of and left there ?
Mr. Hall: I object.
The Court: He has practically answered the question.
“A. Why, if it was not molested, it would be all right.

If the stove was properly put up and considered all right, it would not catch fire.

“Q. It would not take fire ?
“A. No.
“Q. But if it was left at 10 o’clock, and it did set fire to the car before IS o’clock, you would say it was not properly set up and taken care of?
Mr. Hall: There is a further objection ‘ that the fire caught in this stove.’
icQ. Isay, 5 if it did.’
“Hie Court: Let him answer.
“A. Why, I would not know what to think of it, whether it caught fire from the stove or not, if the stove was properly cared for.
“Q. You have said if the stove was properly put up and properly cared for would not set the car on fire ?
“A. I don’t think it would.”

In view of the foregoing, together with the rulings on somewhat similar questions in Potter v. Railway Co., 157 Mich. 216 (121 N. W. 808, 22 L. R. A. [N. S.] 1089), and Marcott v. Railroad Co., 49 Mich. 99 (13 N. W. 374), we do not think the answer given to the question objected to constitutes prejudicial and reversible error.

It is the position of plaintiff that, under the undisputed facts, defendant was liable for loss resulting from the fire, unless it proved by a preponderance of evidence:

(1) “That the fire which burned the car came from some source other than the fire in the stove in the car; ” or (2) “that defendant exercised proper care in placing, securing, and using the stove and maintaining fire and leaving it for the night, and was not guilty of negligence therein.” (3) “The burden of establishing one or the other of these facts by competent evidence is on defendant.”

It is claimed these rules were not correctly or clearly presented to the jury, and that the instructions given were unwarranted and misleading, error being-assigned to the charge of the court in instructing the jury that the burden of proof was on plaintiff to establish that it delivered the car to defendant, and it was burned while in its possession ; that defendant was not liable if the car was injured by accident, or some means for which defendant was without fault, or for any extraordinary circumstances, such as unusually high winds, acts of the elements, or other person or persons, providing defendant exercised due care in protecting the same from such causes; that the fact defendant built a fire in the stove in the car, and it was afterwards burned, did not, standing alone, prove negligence and want of ordinary care; and in the refusal of the court to instruct the jury, as requested, that the burden of proof was on the defendant to show freedom from negligence, if the jury should find that the car was burned from fire in the stove.

It was not error for the court to instruct the jury as to the general and well-settled rule that in this case, as in all negligence cases, the burden of proof primarily rested on plaintiff; that negligence cannot be presumed, but must be proven, and the mere fact of the accident is not sufficient to impose liability. Le Baron v. Joslin, 41 Mich. 313 (2 N. W. 36); Renders v. Railroad Co., 144 Mich. 387 (108 N. W. 368).

While excerpts of the charge, considered separately, seem to present certain matters which are undisputed as open issues, the instructions, taken as a whole, are sufficiently clear to avoid any uncertainty or confusion in that respect. The following language is particularly alleged as error:

“The burden of proof is upon the plaintiff to convince you, by a fair preponderance of evidence, that it delivered the car to defendant, and that it was damaged while in defendant’s possession.”

Following this, the court further said:

“When plaintiff has shown that, it has made a prima facie case, and is entitled to a verdict, unless it appears that the defendant used ordinary care in protecting the car, while in its possession, from injury or damage, and the burden of proof is on the defendant to show that it did use such care in protecting the car. As I said, if you find that the defendant did not use ordinary care, your verdict will be for the plaintiff. If you find it did use ordinary care, your verdict will be for defendant, no cause of action.”

The jury was also told that defendant was liable for the negligence of Danielson; also that—

“ It appears by the undisputed evidence that the car in question was placed on the side track at Dewing’s Siding on the 31st day of January, 1908, on order of L. Starks Company, the defendant, to be there loaded with potatoes for shipment out; that on the 4th day of February, the car was partly loaded with potatoes by William Daniel-son; that he left a stove, with a fire in it, in the car about 10 o’clock that evening, and left the car for the night; and the car was discovered to be on fire between 12 and 1 o’clock at night, and the body of the car, all the wooden parts, were burned that night, and the trucks and brakes slightly injured.”

The court also concisely stated the issue to the jury, as follows:

“The question for you to determine is, Did the defendant exercise such care in protecting this car from injury and damage? If it did — that is, if the defendant used ordinary care in protecting it from injury or damage — it would not be liable in this action, and the plaintiff cannot recover. If it did not use such care, it would be liable, and the plaintiff can recover.”

It was the contention of defendant that a verdict should have been directed in Its favor, for the reason that the proof of plaintiff did not establish a prima facie case; that no proof was produced as to how the car caught fire; that the cause was unshown and unknown, and it was not proven to be negligent to set up the stove in the car and leave a fire in it; that negligence could not be inferred from the bare occurrence of the fire, and no surrounding circumstances were shown from which negligence necessarily or naturally was to be inferred — citing Wood v. Railway Co., 51 Wis. 196 (8 N. W. 214), and Renders v. Railroad Co., supra.

The rights and responsibilities of parties connected with the destruction by fire of a potato car, in which a stove had been set up and a fire maintained, is discussed in three opinions growing out of the same transaction, rendered by the Supreme Court of New Hampshire: Rolfe v. Railroad, 69 N. H. 476 (45 Atl. 251); Boston & Maine Railroad v. Sargent, 70 N. H. 299 (47 Atl. 605), and Id., 72 N. H. 455 (57 Atl. 688).

In those cases it appeared Sargent had contracted with the railroad to carry a carload of potatoes over its line for him. He agreed that the company should not be liable for damages to his potatoes from heat or cold, and he was given control of the interior of the car. He set up a stove in the car and maintained a fire therein. This stove was shown to have been defective, being broken across the bottom. While the car was standing on the track near Rolfe’s storehouse, having been left with a fire in the stove, it, another car, and the storehouse were burned. The cars belonged to another railroad company, and the Boston & Maine Company was required to pay the owners for the same, and to pay Rolfe for the destruction of his storehouse. Having paid for the cars destroyed and the judgment obtained by Rolfe, the railroad company brought an action to recover the amounts so paid from Sargent, on the ground that the fire was caused by his negligence, or that of his agent. It was there held—

“ That the burden of proof upon all the issues raised by both counts [the losses occasioned by the destruction of Rolfe’s storehouse1 and of the two cars] was upon the plaintiffs. The fact that the defendant had the exclusive control of the interior of the potato car did not alter the situation in this respect.”

This is contrary to plaintiff’s contention that proof of the destruction of the car by fire, while defendant was in control of the said car and maintaining a fire in it while engaged in its loading, established liability, unless defendant proved itself free from negligence. But the court did, as we have shown, put the burden of such proof on defendant, in whose behalf testimony was introduced to the effect that it was necessary and customary to maintain fires in stoves in such cars while being loaded with potatoes in the winter; that this was known and permitted by plaintiff; that the stove was sound, of the kind commonly used, and was properly set up in the usual manner; that due care was exercised in firing and caring for the same, thus squarely raising an issue of fact for the jury as to defendant’s negligence. We think, under the authorities cited, that the charge of th¿ court upon that issue was fully as favorable to the plaintiff as it was entitled to.

The judgment is affirmed.

Mooee, O. J., and McAlvay, Bbooke, Stone, Ostbandeb, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Steers, J.

license: Public Domain

text:
    PEOPLE v. QUIDER.
    1. Criminal Law — Usury — Complaint — Ornense Charged — Statutes.
    A complaint charging respondent with being the agent and manager of a loan company that was engaged in business under an assumed name, that respondent did loan $25 to a person named at a rate of interest in excess of seven per cent, contrary to the provisions of Act No. 105, Pub. Acts 1911, without procuring a license under the ordinance of the city of Detroit relating thereto and without paying the required license fee or filing a bond, in behalf of himself, the company, or proprietors thereof, stated an offense: it was not necessary to aver that he was not acting in a representative capacity which would render the act lawful.
    2. Same.
    A single loan violated the act: it was not necessary to charge respondent with engaging in the business.
    3. Same — Criminal Law — Interest.
    In criminal proceedings the accused is entitled to demand and know the nature and cause of the accusation against him, and though a detailed recital of the evidence is not required, the elements of the offense must be so stated that he can know what he is to meet, and prepare for his defense.
    4. Same — Evidence—Judicial Notice — Ordinances.
    Courts take judicial notice of public acts, general or local, passed by the legislature, but not of private laws or municipal ordinances. Municipal courts may take notice of local ordinances without proof, but courts of general jurisdiction must have evidence of the proper enactment and publication of ordinances.
    5. Same — Recorder’s Court op City op Detroit — Jurisdiction
    —Evidence.
    The recorder’s court of the city of Detroit, while in certain particulars and for certain purposes a municipal court, is nevertheless in its most important functions a State court of original jurisdiction, authorized to administer the general laws of the State.
    6. Same — Judicial Notice.
    In trying respondent for usury under the.statute, the recorder’s court of the city of Detroit erred in taking judicial notice of the city ordinance requiring a license fee of loan companies and others.
    7. Same.
    Other points raised being decisive of the case in appellant’s favor, the court refuses to pass upon the constitutionality of the act.
    Exceptions before sentence from the recorder’s court of the city of Detroit; Connolly, J.
    Submitted June 20, 1912.

      (Docket No. 141.)
    Decided October 2, 1912.
    Gordon W. Quider was convicted of taking usury.
    Reversed.

      Hugh Shepherd, Prosecuting Attorney, and Arthur W. Kilpatrick, Assistant Prosecuting Attorney, for the people.

      Ormond F. Hunt, for respondent.
   Steers, J.

In this case respondent was prosecuted and convicted in the recorder’s court in the city of Detroit of loaning money in said city and charging interest thereon in excess of 7 per cent, per annum without having first obtained a license from the city authorities, in violation of Act No. 105 of the Public Acts of 1911; the same being entitled “An act relative to. the loaning of money and prescribing rates of interest, penalties and forfeitures for violation of the provisions of such act and repealing,” etc., certain previous acts. Complaint for such alleged offense was made, in the first instance, before, and warrant issued out of, the police court of said city. When respondent was arraigned in said court, his counsel appeared specially, and moved to quash the complaint and warrant for various reasons set forth in writing and duly filed in the court and cause. Said motion was overruled, ■and a trial ordered, resulting in defendant being found guilty by the police justice. An appeal was taken and the proceedings removed to the recorder’s court, where said motion to quash was renewed and argument had thereon; a written opinion'on such motion being subsequently filed and entered denying the same, and ordering that said cause proceed to trial. Counsel for respondent then orally objected to a jury being sworn to hear the ease on the ground that the complaint and warrant were insufficient for various reasons stated, and that the law under which the proceedings were instituted was invalid. This objection was overruled, and a jury was sworn by direction of the court. Respondent’s^counsel then moved the court to discharge said jury for the reasons previously given, which motion was denied. To these several rulings exceptions were timely taken. A trial followed resulting in conviction as stated.

The complaint, which the warrant followed in stating the offense, charges that respondent—

“ Being then and there agent and manager of American Loan Company, which said American Loan Company is an assumed name, the name or names of the owner or owners of which are unknown to this complainant, did then and there loan a certain sum of money, to wit, the sum of $25, in the city of Detroit, to the said Philip Hibbert, and did then and there unlawfully charge interest and other compensation therefor in excess of the rate of 7 per cent, per annum on the said loan of twenty-five dollars ($25.00), without they, the saic] Gordon W. Quider, the said American Loan Company, or the said owner or owners of the said American Loan Company, or either of them, first obtaining, nor without having in force and effect, a license for carrying on such business in the said city of Detroit, in which said business is to be transacted and without having made application to the proper authority of the city of Detroit for a license for carrying on the business of making loans under the terms of Act No. 105 of the Public Acts of the State of Michigan for the year 1911, and without having paid to the treasurer of the city of Detroit the license fee required by the terms of said act to be paid, and which said license fee has been fixed by the common council of the city of Detroit by Ordinance No. 341, approved August 7th, 1911, to be the sum of two hundred dollars, and without having given to the city of Detroit a bond approved by the common council of the said city of Detroit in the penal sum of one thousand dollars ($1,000.00), as provided by the terms of said Act No. 105, contrary to the form of the statute,” etc.

On the trial, testimony was introduced by the prosecution tending to show that, on the date alleged, one Philip Hibbert, an employe of the Packard Automobile Company, who testified that he could figure interest, read and write English, and was receiving wages of 30 cents an hour, borrowed of respondent $25, for which he was to pay $7.50 per month for five consecutive months; that he paid one installment of $7.50, and subsequently, learning he was paying too much, went to a Mr. Cone, of the Provident Loan, who took it off his hands, and settled the debt for $25 and 7 per cent, interest. The prosecution also proved by city officials that neither respondent nor the American Loan Company had obtained a license or filed a bond, as the statute requires of those loaning money in the city at a rate of interest in excess of 7 per cent. No proof was made or offered of City Ordinance No. 341, by which it is alleged in the complaint that a license fee had been fixed, and no copy of any ordinance appears in the printed record.

When the prosecution concluded its testimony and rested, respondent’s counsel moved the court to direct a verdict for the defense, for the reason that no case had been made out against him, saying, amongst other things:

“ There is nothing in the case to show that Gordon W. Quider charged, and, when I say ‘charged,’you understand I mean, not in this case, there was no assent on the part of the defendant (borrower) to pay. A man can make a request, but, if it is not assented to, it is not within the meaning of the statute. That is in addition to the other reasons stated in the motion to quash. There has no case been made out here to go to the jury, and I ask your honor to direct a verdict in favor of the defendant.”

Which motion was overruled and exception taken. The sufficiency of the people’s testimony to establish a prima facie case as charged, the sufficiency of the charge as set out in the complaint, and the validity of the law under which the prosecution is brought are the questions saved at the trial, and now urged against the judgment brought here for review.

It is urged against the complaint and warrant that they are fatally defective upon their face because “not sufficiently specific as to facts, and do not legally apprise the defendant of the charge which was attempted to be made against him.” Briefly stated, the alleged defects are: that there is no averment Quider or the American Loan Company was engaged in the business of loaning money; it is not clearly charged that in making said loan Quider was acting either for himself or as agent of the American Loan Company; that no negative averment shows he was not acting for some person who had a license, and the averment that he “did then and there unlawfully charge interest and other compensation therefor in excess of 7 per cent, per annum is a conclusion,” defendant being entitled to be informed of what the transaction was as claimed by the prosecutor. The statute does not require it to be alleged or proven that respondent was regularly engaged in the business of loaning money, or the capacity in which he acted in making the loan. While it is stated in the complaint, descriptively, that Quider was agent and manager of the American Loan Company, which was an assumed name, the owners being unknown, and that no such company had been licensed in Detroit to loan money at a rate of interest in excess of 7 per cent, per annum, he is nevertheless charged personally with the offense. We know of no rule of pleading requiring an allegation that a person directly charged with a statutory offense, distinctly stated in words equivalent to the language of the statute, was not acting in soma capacity which made his conduct lawful.

A single loan made by any person not authorized by the act is an offense in violation of it. Section 4 of said act provides that:

“No person, partnership, association or corporation shall loan any money in this State when a higher rate of interest than seven per cent, psr annum is charged therefor, nor engage in the business of making loans under the terms of this act, and charge or receive a higher rate of interest than seven per cent, per annum, without first obtaining, nor without having in force and effect a license for carrying on such business.”

The particular offense charged in this case is loaning money in the city of Detroit at a greater rate of interest than 7 per cent, per annum without a license.

In criminal proceedings the accused is entitled to demand and know the nature and cause of the accusation against him. Beyond that, technical elaboration of pleadings fails to subserve the ends of justice, and becomes but ingenious pitfalls for one side or the other. In charging the offense, a detailed recital of the evidence by which it will be established is not required. Such facts must be averred that, if admitted, would constitute the offense and establish the guilt of the accused. The elements of the offense must be so stated that he can know what he is to meet and prepare for his defense. The particular transaction must be so identified that his acquittal or conviction will be a bar to a subsequent prosecution for the same offense. The complaint plainly charges the respondent with loaning $25 to Philip Hibbert, in the city of Detroit, on September 28, 1911, at a rate of interest exceeding 7 per cent, per annum, without having obtained a license as required by statute. There is sufficient identification by date, place, amount, person, and circumstance to bar any subsequent prosecution for the same offense, and the charge is sufficiently plain and definite that respondent, without professional aid, would certainly understand the nature and cause of the accusation against him, know what he is to meet, and be able to prepare his defense. Although, perhaps, not ideal in form, we think the complaint, taken as a whole, clearly describes and charges a violation of the statute, and is sustained by former adjudications of this court. Morrissey v. People, 11 Mich. 327; People v. Kennedy, 105 Mich. 75 (62 N W. 1020); People v. Butler, 122 Mich. 35 (80 N. W. 883); People v. Glazier, 159 Mich. 528 (124 N. W. 582); People v. Stewart, 167 Mich. 417 (132 N. W. 1071).

The complaint alleges, as a necessary complement of Act No. 105, Pub. Acts 1911, Ordinance No. 341 of the city of Detroit, which fixes the license fee in such cases. No proof of this ordinance was introduced at the trial, no copy appears in the printed record, and, so far as shown, no copy was before the trial court. It is urged in behalf of the defense that this is a fatal omission, for, without proof of such essential allegation, the prosecution failed to make out a prima facie case. To meet this objection, counsel for the people contend that the recorder’s court is a municipal court, and, as such, will take judicial notice of a municipal ordinance.

It is a well-established rule of law that courts will take judicial notice of public acts, both general and local, passed by the State legislature, but not of private laws or ordinances passed by the common council of a city or board of trustees of a village. Section 10193, 3 Comp. Laws (4 How. Stat. [2d. Ed.] § 12837), especially prescribes the method of proving the latter in courts of justice throughout the State.

The charter of the city of Detroit also provides for printing and publishing its ordinances. When published under authority of the common council and certified by the city clerk under his hand and the seal of the city, they are admitted as evidence in all courts within the State, when offered; but no such offer is shown to have been made in this case. When not offered, they are only recognized in suits brought in municipal courts for their violation. Napman v. People, 19 Mich. 352. Without reviewing the numerous authorities cited by counsel on the respective sides, it can be accepted as well established that courts of general jurisdiction do not judicially notice municipal ordinances. In proceedings where they become important in such courts they must be proven before they can be considered; but a municipal court, when called upon to enforce city ordinances, or in passing upon matters relating to municipal affairs in which such ordinances are involved, will take judicial notice of their existence. 17 Am. & Eng. Enc. Law (2d Ed.), p. 937; 16 Cyc. p. 896; 4 Wigmoreon Evidence, § 2573; Motz v. City of Detroit, 18 Mich. 495. The recorder’s court of the city of Detroit, while in certain particulars and for certain purposes a municipal court, is, nevertheless, in its most important functions a State court of original jurisdiction authorized to administer the general laws of the State. The charter of the city of Detroit for 1904 (section 290), provides, among other things, that—

“ Said recorder’s court shall have original and exclusive jurisdiction of all prosecutions and proceedings .in behalf of the people of this State, for crimes, misdemeanors and offenses arising under the laws of this State, and committed within the corporate limits of the city of Detroit,” etc.

For their services in that connection, the judges of the recorder’s court are paid from the treasury of the State of Michigan the same salary payable to the circuit judges. While it is true that the recorder’s court also has special jurisdiction in certain municipal affairs, yet, when it is trying offenders for crimes prescribed by State laws, it has the same jurisdiction, is exercising the same authority, and is governed by the same rules as the circuit courts throughout the State. When acting in such capacity, said court can no more take judicial notice of municipal ordinances than can the circuit courts.

In the early case of People v. Jackson, 8 Mich. 78, in deciding that the recorder’s court of Detroit could not reserve for the Supreme Court questions arising on trials for violation of ordinances, it was clearly pointed out that in each capacity the laws applicable to that capacity govern. Referring to its authority to fay breaches of city ordinances, the court said:

" In the last instance he acts in the capacity of a municipal officer simply, and in the enforcement of laws of which we cannot take judicial cognizance; while in the first instance he acts under general laws, and exercises the power of a circuit judge.”

This is a prosecution under a general law of the State. The recorder’s court when trying it was not a municipal court, but a State court and its judge exercised the powers of a circuit judge. 'As such he could not take judicial notice of a municipal ordinance. In failing to prove the ordinance as alleged in the complaint, the prosecution failed to make out a prima facie case,‘and, as the case then stood, the motion of respondent’s counsel for a directed verdict should have been granted. As this objection is fatal to the verdict complained of and calls for a reversal of the case, it becomes unnecessary to pass upon the validity of the statute, which is attacked as a bungling and unconstitutional piece of legislation.

Constitutional questions will not be passed upon when other decisive questions are raised by the record which dispose of the case. Weimer v. Bunbury, 30 Mich. 201; Upton v. Kennedy, 36 Mich. 215; Powell v. Eldred, 39 Mich, 552; Allor v. Wayne County Auditors, 43 Mich. 76 (4 N. W. 492); Township of Gladwin v. Bourrett Township, 131 Mich. 353 (91 N. W. 618); Dubuque, etc., R. Co. v. Diehl, 64 Iowa, 635 (21 N. W. 117); 8 Cyc. p. 798.

For the reason stated, the conviction is reversed and a new trial granted.

Moore, O. J., and McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


author: Brooke, J.

text:
    TRIANGLE LAND CO. v. AUDITOR GENERAL.
    1. Prohibition — Other Adequate Remedy.
    The writ of prohibition is an extraordinary judicial writ, directed to an inferior judicial tribunal, or to an inferior ministerial tribunal possessing incidental judicial powers and known as a quasi judicial tribunal; or it may isssue against a purely ministerial body, commanding it to cease abusing or usurping judicial functions.
    2. Same.
    It will not issue to restrain acts of an administrative or ministerial character, or in a case where the petitioner has another adequate remedy.
    3. Same — Taxation—Certificate of Error.
    Accordingly the writ may not be obtained to prohibit the auditor general from issuing a certificate of error against a tax title held by petitioner who had commenced ejectment on the strength thereof: the remedy being to question the validity of such certificate of error in the action at law.

      Prohibition by the Triangle Land Company against Oramel B. Fuller, auditor general of the State of Michigan, to restrain the issuance of a certificate of error as to certain tax deeds.
    Submitted July 22, 1912.
    (Calendar No. 25,218.)
    Writ denied October 2, 1912.

      Albert De Camp and Frederick E. De Camp, for relator.

      Franz C. Kuhn, Attorney General (Charles W. McGill, of counsel), for respondent.
   Brooke, J.

Relator prays that a writ of prohibition issue against respondent prohibiting him from issuing a certificate of error, and canceling a certain tax deed. The facts set up in the petition are summarized by counsel for relator as follows:

“ At the regular county tax sale the property in question was bid in to the State in May, 1904. Mary F. Wright purchased from the State, and obtained tax deed dated June 1, 1905. Mary F. Wright on December 23, 1905, caused to be personally served the statutory tax notice for reconveyance on John C. Ryan, who was then the grantee in the last recorded deed in regular chain of title, and the notice with return of service thereon was filed with the county clerk December 27, 1905. Mary F. Wright quit-claimed to petitioner November 29,1909; the tax deed and quitclaim deed being recorded February 21, 1910. Petb tioner made demand for possession December 15, 1909, of John O. Ryan and Cora Ryan, who were in possession of the property, and the possession was refused by said parties.
“On March 31,1911, petitioner filed declaration as commencement of suit in ejectment, copies of which were on April 5, 1911, served on the defendants John C. Ryan and Cora Ryan. Said suit in ejectment is awaiting its turn for trial on the present Saginaw circuit court calendar. On March 31, 1911, petitioner had recorded and filed a lis pendens covering said lands. No amount was ever paid or deposited for a reconveyance, nor any action whatever taken to contest the tax sale until May 10,1912.
“ On May 10, 1912, application to the auditor general, Oramel B. Fuller, was made by R. L. Crane for certificate of error and cancellation of said tax sale and tax deed in name of John C. Ryan and Cora Ryan, and a statement of an ex county treasurer was submitted to the auditor general as proof that application to pay the tax had been made to the county treasurer more than 15 years before the date of the statement. On May 16, 1912, petitioner exhibited to auditor general said tax deed, certified copy of tax notice filed, abstract of title and affidavit of demand for possession and refusal, but the auditor general, against request of petitioner, stated his intention to issue the certificate of error and cancellation.”

The only reason urged by relator in its petition why said writ should issue is that:

“If the auditor general carries out his threatened action, your petitioner will be irreparably injured and without a remedy.”

We are of opinion that relator has mistaken its remedy. The writ of prohibition is an extraordinary judicial writ ordinarily directed to an inferior judicial tribunal, or to an inferior ministerial tribunal possessing incidental judicial powers, and known as a “quasi judicial tribunal.” In extreme cases.it is said it may issue against a purely ministerial body, commanding it to cease abusing or usurping judicial functions. The restraining of acts of an administrative or ministerial character is not within the province of the writ. 32 Cyc. p. 598 et seq.

It will not issue where the petitioner has a complete and adequate remedy by some other proceeding. Port Huron Sav. Bank v. St. Clair Circuit Judge, 147 Mich. 551 (111 N. W. 202). In a contest between the commissioner of the State land office and the auditor general (131 Mich. 147 [91 N. W. 153]) the writ was issued. The question of the propriety of the remedy, however, is not discussed in the opinion. That the validity of the certificate of error, which the respondent proposes to issue, may be questioned in the ejectment proceedings now pending in which relator is plaintiff, is, we think, clear. Vetterly v. McNeal, 129 Mich. 507 (89 N. W. 441). In our opinion this writ should not issue to control the acts of a purely ministerial officer.

The writ is denied.

Moore, O. J., and Steers, McAlvay, Stone, Ostrander, and Bird, JJ., concurred.


author: Bird, J.

text:
    IMUS v. ANN ARBOR RAILROAD CO.
    1. Railroads — Street Railways — Personal Injuries — Contributory Negligence — Coasting in Highway.
    Plaintiff was injured while coasting on a public street by colliding with a switch engine of defendant railroad company which, having elevated its main track over the street, had secured permission to maintain a side track at grade for engines, cars, etc., on condition that it keep a flagman at the crossing. Plaintiff knew of the crossing and the use to which defendant put it. No flagman had been installed. Other boys had been accustomed to coast on the hill beneath the viaduct and across the switch track, and defendant had protected them in the past by sending a train hand ahead to give warning of the approach of the locomotive. On the night in question it failed to do so. Plaintiff looked and listened before starting down the hill, but saw no engine or flagman. Held, that he was not guilty of contributory negligence, as matter of law.

      2. Same — Custom—Evidence.
    The court correctly admitted evidence of the general practice of the public to use the hill for coasting, as it was brought to defendant’s notice; and the proofs showed that it had taken precautions to protect those so using the hill.
    Error to Washtenaw; Kinne, J.
    Submitted June 7, 1911.
    (Docket No. 14.)
    Decided October 7, 1912.

      Case by Nelson Imus, Jr., by next friend, against the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      M. J. Cavanaugh and George J. Burke, for appellant.

      A. J. Sawyer & Son, for appellee.
   Bird, J.

Plaintiff, a boy of 17 years of age, with several other boys, was coasting one winter evening on Pelch street, in the city of Ann Arbor, and while so engaged ran into defendant’s switch engine and was injured. Pelch street extends east and west, and crosses the defendant’s railway at nearly right angles. The railway is constructed in a valley, and from the point where they intersect the ground on both sides rises, within a short distance, to a considerable height. In 1903 the defendant was permitted to elevate its tracks in the city, since which time the traffic on Pelch street has passed through a viaduct under the tracks. By consent of the city, the defendant retained one side track at grade on the east side of the elevation, and about 12 feet from it, where it stored cars and its. switch engine. The ordinance granting permission to maintain the side track at grade was on condition that whenever it was used a flagman should be stationed at the crossing. No regular flagman was kept at the crossing; but the ordinance seems to have been complied with, whenever the side track was used, by some of the train hands going ahead and acting as a flagman. On the night in question, the boys were coasting on the west hill, and therefore could not see the locomotive coming toward the viaduct on the east side of the elevation until it passed in front of it, and when it was discovered it was too late to avoid the collision.

The negligence complained of by plaintiff was the failure of defendant to have a flagman present at the crossing before sending its locomotive over it, in pursuance of the ordinance, and for defendant’s act in backing its locomotive over the crossing without giving any signal of its approach.

The defendant’s chief contention is that plaintiff was guilty of contributory negligence; that plaintiff lived within a quarter of a mile from the place where the accident occurred, and was familiar with the crossing and track and knew that defendant kept its switch engine on that track overnight; that he knew he was engaged in a hazardous pastime, and, had he taken the usual precaution to look and listen before going over the track, he could have avoided the collision.

The record shows that the boys had been in the habit of coasting on this hill and going down through and beyond the viaduct, for several winters, and that defendant knew of this sport indulged in by them, and that it had protected them, when approaching the crossing, by sending one of the train hands with a lantern to give warning of its approach, and that on the night in question it neglected to do this. It was also shown that before starting down the hill they looked and listened, but saw no locomotive nor flagman, and therefore concluded the way was clear.

If it were the custom of the defendant to maintain a flagman at the crossing when it was in use, and to warn the boys whenever it approached with a locomotive, and the boys knew of this and relied upon it on the night in question, and the defendant failed to furnish the protection it had theretofore furnished, we do not think it can be said, as a matter of law, that the plaintiff was guilty of such negligence as would defeat his action. Moran v. Railway, 124 Mich. 582 (83 N. W. 606); Theisen v. Bailway, 163 Mich. 68 (127 N. W. 708).

Exception was taken by defendant because the trial court permitted plaintiff to show what the custom of the boys had been on that and previous winters in coasting on the west hill. In view of the fact that this custom was brought to the knowledge of defendant, with further proof of what it did to protect them against injury, we think the testimony was admissible as bearing upon the contributory negligence of plaintiff.

The judgment of the trial court is affirmed.

Moore, C. J., and McAlvay, Stone, and Ostrander, JJ., concurred.


text:
    GILL & CO. v. NATIONAL GASLIGHT CO.
    1. Sales — Warranty of Fitness.
    The seller of manufactured products, upon order, to a buyer who advises the seller of the use to which they are to be put, impliedly warrants that they are suitable and fit for that use.
    2. Same — Exception—Specifications.
    In case the purchaser furnishes specifications to be followed in the manufacture of the articles, however, no such warranty is implied.
    3. Same.
    If specifications as to quality are omitted, the seller impliedly warrants that the quality is suitable for the use intended.
    4. Same — Construction of Order or Contract.
    Where defendant ordered certain glass lamp globes, to be manufactured according to specified sizes and shapes, and of the same glassware as that furnished by plaintiff to another firm, the order specified the quality, which must be the same as plaintiff furnished to the firm mentioned by defendant, and no warranty of quality could be implied.
    5. Same — Warranty—Defective Goods.
    Having accepted the globes furnished under the contract, defendant lost its remedy for defects arising from noncompliance with, its specifications.
    Error to Kalamazoo; Knappen, J.
    Submitted June 6, 1911.
    (Docket No. 3.)
    Decided October 7, 1912.
    Rehearing denied December 18, 1912.
    Assumpsit by Gill & Company, a foreign corporation, against the National Gaslight Company for the price of certain globes. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Harry G. Howard, for appellant.

      Robert L. Campbell, for appellee.
   Bird, J.

The plaintiff is a glass manufacturer of Philadelphia. The defendant is a manufacturer of gas fixtures at Kalamazoo. Early in the year 1908 the defendant was the owner of a new inverted arc lamp, which it was getting ready to place upon the market. It was in need of the glassware to complete the lamp, and it ordered from plaintiff some globes to be manufactured according to certain specifications outlined in the order as to size and shape, and advised that the glassware desired was the same as that formerly furnished by plaintiff to Martin & Co., of New York. A sketch or outline of the globes desired was subsequently forwarded to plaintiff to serve as a guide in the manufacture of them. A few samples were made and sent to defendant. Prom these samples a quantity of lamps was ordered by defendant and placed with their patrons. The lamps appeared to be a success and to meet the demands of the trade save in one particular; the breakage was too great. Attempts were made to overcome this difficulty by making changes in the lamp. Succeeding orders for the globes were accompanied with suggestions requesting slight changes in the construction of them, which were complied with by plaintiff. The attempts of defendant to obviate the difficulty continued for several months and until it began to purchase its glassware from another manufacturer, when it discovered what it now insists upon was the defect. Only a limited number of globes was ordered from plaintiff and all of them were accepted. Some were paid for, and none were returned.

This suit was begun by plaintiff to enforce the payment of a balance of $438.46 owing it for globes furnished. The defendant set up the defense that there was an abnormal breakage of globes furnished by plaintiff, and that it was due to a defect in the quality of the glass, and also to defective workmanship in grinding them. It claimed that out of the dealings of the parties the law raised an implied warranty on the part of the plaintiff that the lamps were reasonably fit and suitable for the intended use, and that as they were not, the defendant claimed the right to recoup its damages. The plaintiff’s position was that defendant ordered the lamps, furnishing specifications therefor, and that the lamps were manufactured in accordance therewith, that defendant got just what it ordered, and that, if they were not suitable for its trade, it was defendant’s fault and not plaintiff’s. It was denied by plaintiff that, when goods are purchased under such circumstances from a manufacturer, the law implies any warranty as to construction or quality. The trial resulted in a direct verdict for plaintiff for the full amount of its claim; the trial court expressing the view that, under the law and facts of the case, no implied warranty was established.

Ordinarily, when goods are purchased from a manufacturer and he is advised of the use that is to be made of them, the law raises an implied warranty upon his part that they are reasonably fit and suitable for such use. 2 Mechem on Sales, § 1343.

There is an exception to this rule, however, where the buyer furnishes the specifications to be followed in the manufacture of the articles. In such cases the law raises no implied warranty. Id. § 1350. Talbot Paving Co. v. Gorman, 103 Mich. 403 (61 N. W. 655, 27 L. R. A. 96). Measured by this rule and its exception, the facts disclosed by the record appear to bring the case within the exception to the rule.

There appears to be no serious conflict between counsel as to the foregoing propositions, but defendant’s counsel seeks to avoid the plaintiff’s conclusion by claiming that as to quality the defendant furnished no specifications, and that, if it did not, the law would raise an implied warranty that the quality was reasonably suitable for the use intended. Counsel is undoubtedly correct in his statement of the law (Mechem on Sales, § 1352; Little v. G. E. Van Syckle & Co., 115 Mich. 480 [73 N. W. 554]), but we think he is wrong in his statement of fact. Specifications were furnished for the size and shape of the globes and the glassware was to be such as was formerly used by Martin & Co. This language fairly construed would include the element of quality. If the glassware was to be the same as that furnished Martin &t Co., it must have been the same quality. We are of the opinion that the order of defendant undertook to and did make directions as to size, shape, and quality, and that the general rule as to the liability of a manufacturer does not apply.

There was, however, an implied contract that the globes ordered should comply with the specifications, but this was not a warranty which would survive their acceptance. Farrington v. Smith, 77 Mich. 550 (43 N. W. 927); Talbot Paving Co. v. Gorman, supra; Williams v. Robb, 104 Mich. 242 (62 N. W. 352); Buick Motor Co. v. Manufacturing Co., 150 Mich. 118 (113 N. W. 591); Remy, Schmidt & Pleissner v. Healy, 161 Mich. 266 (126 N. W. 202, 29 L. R. A. [N. S.] 139, 21 Am. & Eng. Ann. Cas. 74); Columbus, etc., Iron Co. v. See, 169 Mich. 661 (135 N. W. 920).

Nothing can be claimed under this warranty, as defendant accepted all the globes furnished by plaintiff. It sold a part of them, but never rejected and returned the remainder. After defendant discovered what the precise trouble was, it did not return them, but demanded a rebate on some of them, and it was allowed. When urged by plaintiff to remit the balance due it, defendant pleaded for further time, that it might have an opportunity to dispose of the globes yet on hand. It was the duty of defendant to reject the globes as soon as it discovered they were defective. Not having done so, there is no other alternative but to pay the contract price. Columbus, etc., Iron Co. v. See, supra.

The judgment of the trial court is affirmed.

Moore, C. J., and McAlvay, Stone, and Ostrander, JJ., concurred.


author: McAlvay, J.

text:
    BARR v. PACKARD MOTOR CAR CO.
    1. Infants — Compromise and Settlement —Equity —Repudiation of Contract.
    If an infant on arriving at years of discretion repudiates a contract of settlement made by him during minority, he is not required, as a condition precedent, to return the consideration which he has parted with and cannot restore.
    2. Judgment — Minors—Setting Aside Compromise.
    It is a general rule that chancery has jurisdiction to set aside judgments rendered in courts of law, and obtained by fraud, actual or constructive; and the rule may be applied in favor of the plaintiff in the judgment as well as defendant.
    8. Appeal and Error — Demurrer—Questions Reviewable.
    The court on appeal will consider only those points raised by demurrer to a bill in chancery in the circuit.
    4 Infants — Equity—Judgment for Personal Injuries — Fraud —Compromise and Settlement.
    Accordingly, it is within the power of the court to set aside a judgment obtained infavor of complainant by his next friend, in an action brought in effecting settlement of his claim for personal injuries against his master, the agent for an accident insurance company which had indemnified the employer against liability acting as plaintiff’s attorney and procuring as such a judgment in his favor for $400 in justice’s court; complainant’s bill further averring fraudulent representations leading up to the contract of settlement and showing that the compromise was effected with him during his-minority and that he had repudiated it after he became of age.
    Appeal from Wayne; Donovan, J.
    Submitted Aprils, 1912.
    (Docket No. 38.)
    Decided October 7, 1912.
    Bill by Harry E. Barr against the Packard Motor Car Company to set aside a compromise made with plaintiff of his claim for personal injuries. Prom an order overruling a demurrer to complainant’s bill, defendant appeals.
    Affirmed.

      Frank W. Atkinson, for complainant.

      Keena, Lightner & Oxtoby, for defendant.
   McAlvay, J.

This is an appeal from an order, made by one of the judges of the Wayne circuit court, in chancery, overruling the demurrer of defendant to the bill of complaint in the case. Prom this bill of complaint it appears that the complainant was a minor, employed by the defendant company at work upon a drill press, and had been so employed, under the direction of the officers of defendant, for three days; that this press was not properly fastened to the floor, and the officers of the defendant knew that fact, but complainant was not notified of such condition; that on July 31, 1909, while he was working at the press, it fell over upon him and injured him severely. He alleges that he was treated by three certain physicians, all employed by defendant, who each informed him that his injuries were not serious and would not be permanent, and that he would be entirely well in a few months; that, relying upon such statements and the same representations, and the further representation that $400 was an adequate sum for damages for his injuries, made to him by Prank R. Dentz, an employé of the Standard Accident Insurance Company, in which defendant was insured, he agreed, on September 20, 1909, to accept in settlement of his claim the sum of $400. He also alleges that while he was a minor, on the same date, the agent of the insurance company prepared certain papers, which are attached to the bill of complaint, in which the agent of the. insurance company, Prank R. Dentz, represented himself as his attorney, and a man named "Wilson, another employé of the said insurance company, represented himself as attorney for defendant. The said Dentz and Wilson then took him to the justice’s court for the city of Detroit, and on the same day, to wit, September 20, 1909, commenced a suit in his name, by one Arthur Elliott, as his next friend, against the defendant company; that issuance of summons was waived and service was accepted by defendant, and a judgment was forthwith entered by one of the justices of the peace of the city of Detroit for the sum of $400, which judgment is of record in said justice’s court; that he received the $400 and expended the whole thereof in the payment of board, doctor’s bills, and other expenses during his minority; that after he became of full age, instead of getting better and recovering his health, as represented by said doctors and said Dentz he would, he became worse and unable to do any work; that he then gave notice in writing to defendant that he repudiated the settlement made as aforesaid, giving, among other reasons, that it was obtained from him by misrepresentations, and was wholly inadequate, and was made while he was a minor; that afterward the insurance company undertook, but failed, to negotiate a further settlement with him. He further alleges that he desires to commence a suit against said defendant company to recover damages for injuries sustained by him through the negligence of said company; that the aforesaid judgment in the justice’s court is a compíete bar, unless set aside, and he prays the court that it may be set aside, and that the defendant may be estopped from pleading such judgment as a defense to any action brought by him for damages, and for general relief.

Defendant demurred to the bill of complaint, upon the grounds that complainant had not offered or made tender in the bill, or otherwise, of the sum of $400 paid him by defendant in settlement of his claim, and that the bill of complaint affirmatively shows that complainant is unwilling to do so, and also that a court in chancery had no jurisdiction to “set aside a judgment rendered on the law side of the court, or in the justices’ courts for the city of Detroit.”

In support of its contention that complainant is required to do equity by returning or making tender of the money received before seeking to set aside the settlement made by him, defendant cites decisions from this court. In the cases cited, which lay down the correct doctrine upon that proposition, the question as to whether it applies to cases of infants is not presented or determined. This doctrine, which requires restitution of consideration received, is not applicable to cases of minors who, on coming of age, repudiate a contract or settlement; and there seems to be no authority to the contrary. If, on coming to the age of discretion, the contract or settlement is repudiated, it will be set aside without requiring a return of consideration, if the minor has parted with it and cannot make restitution. Such cases are an exception to the general rule which defendant relies on, and in support of which he has cited authorities. Corey v. Burton, 32 Mich. 30; Shipley v. Smith, 162 Ind. 526 (70 N. E. 803); Gillis v. Goodwin, 180 Mass. 140 (61 N. E. 813, 91 Am. St. Rep. 265), and cases cited; Craig v. Van Bebber, 100 Mo. 584 (13 S. W. 906, 18 Am. St. Rep. 569); McCarty v. Carter, 49 Ill. 53 (95 Am. Dec. 572); Corbett v. Spencer, 63 Mich. 731 (30 N. W. 385).

The second reason of the defendant, in the words of the demurrer, is—

“ Because this court has no jurisdiction in this matter, for the reason that a court of chancery cannot set aside a judgment rendered on the law side of the court, or in the justices’ courts for the city of Detroit.”

In the argument supporting this ground of demurrer, defendant, in its brief, has enlarged the claim by stating—

“That a chancery court has no jurisdiction to set aside a judgment rendered in favor of plaintiff in a suit in the justices’ court in the city of Detroit.”

This claim does not appear from this record to have been made in the circuit court; nor could it have been made under its demurrer introduced. The argument is silent upon the general proposition set up in the demurrer that a court of chancery has no jurisdiction to set aside a judgment rendered in a court of law, for the reason, doubtless, that the exercise of such jurisdiction has prevailed since courts of chancery were organized. The argument fortifying this position, which defendant now takes for the first time, is that no cases have been found in Michigan where a chancery court has exercised such jurisdiction. It has frequently occurred in the history of jurisprudence that there may be no authority in support of a new question arising in a case; and the logic of the argument relied upon would necessarily be that no new law would ever be promulgated. One of the principal causes for the development of chancery jurisdiction was the necessity of a tribunal clothed with power and authority to set aside judgments fraudulently obtained in courts of law. Accepting the general proposition that chancery has jurisdiction to set aside judgments rendered in courts of law, obtained through fraud, actual or constructive, no reason exists why such courts should relieve defendants and allow plaintiffs to go without remedy under a like state of facts.

This court, where an infant conveyed a parcel of land, and after arriving at full age deeded the same land to another person, held that the second deed was a disaffirmance of the first deed, and that the second grantee could maintain ejectment. Corbett v. Spencer, supra. In that case the question of the refusal or neglect to return the property received by the infant in payment for the land was decided against the contention of defendant in the instant case. And upon principle the case is in point upon both propositions raised by the demurrer.

The Supreme Court of the United States, in the case of a bill filed to set aside a judgment in favor of complainant for the reason that it was inadequate in amount, granted the relief asked. United States v. Beebe, 180 U. S. 343 (21 Sup. Ct. 371).

We have discussed all of the reasons, specified by defendant in its demurrer to the bill of complaint, and can consider no others. Chancery Rule 9 {a), and notes.

The demurrer admits all of the material allegations of the bill of complaint. The bill alleges misrepresentations on the part of the physicians and one of the agents of the insurance company, relative to the seriousness of complainant’s injury and the length of time before he would recover, which proved to be misleading. It also shows conduct on the part of agents of the insurance company in bringing about this settlement by complainant with defendant and securing the judgment in its favor, which amounts to constructive fraud. They were dealing with knowledge of the complainant’s minority. He shows that he has repudiated the settlement he made. His bill of complaint presents a case entitling him to relief in equity.

The order overruling the demurrer is affirmed, with costs. The case will be remanded, and the defendant will have the time provided by rule in which to answer the bill of complaint, or take such steps as it may be advised. .

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


text:
    COURTOIS v. KING PAPER CO.
    1. Master and Servant — Assumption of Risk — Negligence.
    In a personal injury case brought against his employer by a servant who was employed in a paper mill at a washing tank containing revolving paddles, and who was injured by the starting of the machinery while he was necessarily inside the tank in the course of his work, the court properly refused to direct a verdict for defendant on the testimony of defendant’s millwrights, disputed by plaintiff, that they warned him that they were about to repair the machinery and not to enter the tank: the doctrine that ordinary risks are assumed had no application to the aotion, for the reason that the risk was not ordinary.
    2. Same — Fellow-Servants—Repairing Machinery.
    Where plaintiff had reported a loose or defective belt to defendant’s millwright who promised to repair it, and sent his assistants to do the work, they were not fellow-servants of plaintiff, but represented the master in performing such work. Ostrander, J., dissenting.
    3. Same — Contributory Negligence — Choice of More Dangerous Way.
    It was not error to hold that the question of contributory negligence was for the jury, where plaintiff went into the tank in the performance of his duties, by means of a ladder provided by defendant for that purpose, although he might have done the work less expeditiously by using a pole and hook, and where he had taken the precaution to throw off the belt and tie the lever so the power could not be applied while he was inside.
    Error to Kalamazoo; Knappen, J.
    Submitted January 24, 1912.
    (Docket No. 24.)
    Decided October 7, 1912.
    Case by Alfred H. Courtois against the King Paper Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Fred L. Vandeveer and F. M. Irish, for appellant.

      Jackson & Fitzgerald, for appellee.
   McAlvay, J.

The plaintiff in this case recovered judgment against defendant for damages on account of injuries received by him while employed in the paper mill of defendant at Kalamazoo, which injuries are claimed by him to have been caused by the negligence of defendant. His employment was that of operating certain machines known as “washers,” in which the pulp used in manufacturing paper was washed. A washer consists of a tank 12 feet in diameter and 8 feet in depth. In this tank, attached to a central upright shaft, were arms or paddles, which, when power was applied, revolved and stirred up the pulp during the process of washing. The pulp was drawn out of the tank by an opening in the bottom. The power was furnished to the upright shaft in the tank by means of a counterline shaft and a belt connecting the two shafts, running over pulleys on each shaft. The washer was equipped with a tight and loose pulley, and by shifting the belt to the loose pulley the power was removed. After the washer was emptied, the trap in the bottom would be closed before filling the machine with pulp again. It was the duty of plaintiff, after the contents of washer had passed through the trap, to see that everything was removed from about the opening, so that it would close perfectly tight. For the purpose of doing this, formerly a pole with a hook on it was used to pick out obstructions, but this was found to take too much time, and a ladder was provided for the use of plaintiff to go down into the tank for this purpose.

Plaintiff had been employed by defendant about three months operating two of these washers in defendant’s mill, and had worked in and about mills and factories, among machinery, for four years. Some time before his injury, the belt which furnished the power to the washer in question became loose and plaintiff reported this fact to the head millwright of defendant, who promised that it would be fixed. On the day in question, the millwright sent two assistants for that purpose, who notified plaintiff why they came. Plaintiff at the time was In the performanee of his work at the washer in question, emptying it, and, when it was emptied, he found he could not close the trap by pulling the lever. He then took the ladder, put it into the tank, and went down to clean the opening by taking out the strings that were in it. Before he started to empty the washer, he had thrown off the belt by the shifter used for that purpose, and, as was his duty, tied the shifter down so that the belt could not be shifted to the tight pulley, and thus start the machine revolving while he was in it. While plaintiff was so employed in the bottom of the washer, the millwrights proceeded to take the belt from the machine, and released it from the shifter where it was held on the loose pulley, and shifted it to the tight pulley, which applied the power to this washer, causing the paddles to revolve, and thereby injured plaintiff. There is a dispute in the testimony between plaintiff and the two millwrights as to what was said between the parties at the washer when they came there; defendant’s claim being that they told plaintiff to keep out of the washer. This is denied by plaintiff. There is other disputed testimony in the case, which, if necessary, will be considered later.

At the close of plaintiff’s case, defendant moved for a directed verdict in its favor, which was denied. The question was again raised in the requests to charge, which was refused. The case was submitted to the jury and a verdict was given in favor of plaintiff, upon which judgment was entered.

The errors assigned and relied on in the case by appellant are that the court erred (1) in not holding and charging that the plaintiff assumed the risk; (2) that the assistant millwrights were his fellow-servants; and (3) that plaintiff was guilty of contributory negligence. These errors are based upon the refusal of the court to direct a verdict for defendant and refusing certain requests of defendant to charge, without modification, and upon certain portions of the charge as given by the court.

The general doctrine that an employé assumes all the ordinary risks incident to his employment evidently is not what defendant invokes in his contention that plaintiff in this case assumed the risk of injury. This was not in any aspect of the case an ordinary risk, usual and incident to the employment of plaintiff. The only admissible use of the words “assumed risk” in this connection, it appears to us, would be, provided defendant’s theory is accepted, that plaintiff, having been warned and given notice of danger in case he went into the tank, might be said to have assumed the risk of the injury which might follow from such act. In similar cases in the decisions in this court and others this use of the term “assumed risk” has become common. The contention of the defendant is that the court refused to charge that plaintiff assumed this risk, and that in the charge given by the court the question was entirely overlooked. The record does not sustain this contention. The charge of the court must be taken as a whole. In portions of it, not excepted to, the court clearly and correctly charged the jury upon this question, as follows:

“ If you find that the plaintiff was told by De Vries to keep away from the vat, or warned in any form of words so that the plaintiff understood it, to keep away from the machine while the belt was being fixed, then the verdict of the jury must be no cause of action. If the jury find that the plaintiff, Courtois, had worked around this machine for several months, and was acquainted with the pulleys in question, and that he knew the counterline shaft was in motion, and that the millwrights were about to fix the belt and start the machinery when he entered the washer machine, then he assumed the risk, and the verdict of the jury should be no cause of action, if he had knowledge of those facts before he entered the vat or had notice or had reason to believe it. If the jury find that the plaintiff, Courtois, had worked for several months around this machine, and was familiar with it, and had been in the habit of starting it and stopping it by means of the tight and loose pulleys, and that a man of ordinary intelligence should have known that there was danger of the machine starting while the millwrights were at work fixing the belt and when he entered the washing machine, then the verdict should he no cause of action. If the jury find that a man of ordinary prudence and caution, of the experience that Courtois testifies that he had had, would not have gone into the vat under the circumstances, then they should find that he was guilty of contributory negligence, and that he assumed the . risk, and their verdict should be no cause of action. If the plaintiff knew, or had good reason to know, that the act of going into the vat while repairs were being made was dangerous, then it was not necessary for any one to warn him of that danger, for it would simply be telling him what he already knew. It is not essential that an employer should warn a servant of danger that the servant himself must appreciate.”

It is apparent that defendant’s contention is not tenable.

The fellow-servant doctrine is also invoked in this case, upon the theory, of course, that the two assistant millwrights were fellow-servants with plaintiff, and for their negligence defendant cannot be made liable. The record shows that the loose belt had been reported to the millwright. No question is made but what this act on the part of plaintiff was a proper and necessary one, in order to protect himself. In discussing the application of the fellow-servant doctrine, this court has said:

“We have often held that the question whether one is a fellow-servant or not depends upon the nature of the act. If it is one which it is the duty of the master to do, like keeping a machine in repair, the master is responsible for injuries resulting from negligence therein.” Randa v. Screw Works, 134 Mich. 343, 346 (96 N. W. 454, 455).

The duty to repair and to keep the place and appliances used in and about his business reasonably safe rested upon the defendant. Such duty is a nondelegable one. The performance of the duty in this case was undertaken by the head millwright, who sent his assistants to do the work. In performing this work they represented the master, and could not be fellow-servants with the plaintiff. If the injury was caused by the negligence of these repairers, it was the negligence of the principal. Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111); McDon ald v. Railroad Co., 108 Mich. 7 (65 N. W. 597); Potvin v. Shipbuilding Co., 156 Mich. 201 (120 N. W. 613); Charron v. Carbide Co., 151 Mich. 687 (115 N. W. 718). The court was not in error in refusing to charge that plaintiff could not recover, because the negligence, if any, was the negligence of fellow-servants, and correctly charged that the assistant millwrights represented defendant.

Upon the question of contributory negligence, defendant contends that it was such negligence for the plaintiff to go down into the tank when he knew the millwrights were handling the pulley, that he was an experienced man, acquainted with this machinery, and that another appliance, in the shape of a hook, could have been used by him with comparative safety. Upon these propositions the evidence for the plaintiff shows that he was in the usual performance of his duties; that before the millwrights came he had shut off the power and tied the lever so that it could not be applied, except by some one releasing it, making the place absolutely safe for going into the tank to clear the trap; that the tank was already .being emptied, and that he continued in the usual performance of his duties, going into the tank by the use of the ladder provided by defendant for that purpose because it was the most expeditious way to do so. And it also appears that in removing the belt the millwrights threw it into the driving pulley of the washer in attempting to take it off, instead of, as might have been done, taking it off from the loose pulley, and they testified that this was done because it was more convenient. Under this same claim of contributory negligence of the plaintiff, defendant urges that he (plaintiff) was warned by the millwrights not to go into the tank while they were at work. That such warning was given is denied by plaintiff, and this was a question of fact. The court refused to charge that the plaintiff was guilty of contributory negligence, but left these disputed questions of fact upon that question, under proper instructions, to the jury. No error was committed by such disposition of the question.

The error assigned upon the denial of the motion to direct a verdict for defendant being founded upon a view of the principal propositions opposite to the determination of this court thereon, it is not necessary to further consider them. The exceptions to the charge of the court are all covered by the propositions already decided contrary to the contentions of the defendant.

We find no error in the case. The judgment of the circuit court is affirmed.

Moose, C. J., and Steere, Brooke, and Stone, JJ., concurred with McAlvay, J.

Ostrander, J. I am not satisfied that plaintiff was injured as a result of negligence which can be charged to the master or principal.


text:
    GUSTIN v. EVENING PRESS CO.
    1. Libel and Slander — Demurrer—Pleading.
    In actions for libel, a demurrer admits the publication and also the allegations of its falsity and malice.
    2. Same — Evidence—Newspapers.
    To test its libelous quality, a publication is to be considered as a whole, including the character of the display of its headlines when the article is published in a newspaper, and the language employed therein.
    8. Same — Words Actionable Per Se.
    Upon demurrer to. plaintiff’s declaration, the court correctly held that it was actionable per se to publish concerning an attorney and business man engaged in lumbering operations and other transactions requiring him to borrow money, that he had turned over his assets to a friend and gone to Australia, the article appearing under black faced headlines as follows, “Goes to Australia. Alpena Man Turns Over Assets and Seeks New Country;” plaintiff’s declaration charging that the article was false and imputed to him flight, financial embarrassment, and an intention ■ to abandon his domicile, profession, and property.
    4. Same.
    The publication of such article in a newspaper tended to work injury to plaintiff’s good name, credit, and business: no special averments of damage were required.
    5. Same — Innuendo—Pleading.
    When words are libelous per se no innuendo is needed; but if the declaration contains an innuendo not borne out by the publication, the allegations relative thereto may be treated as surplusage, and plaintiff may recover on the article itself.
    Certiorari to Kent; Perkins, J.
    Submitted April 5,1912.
    (Docket No. 50.)
    Decided October 7, 1912.
    Case by Henry K. Gustin against the Evening Press Company for libel. An order overruling a demurrer to plaintiff’s declaration is reviewed by defendant on writ of certiorari.
    Affirmed.

      James H. Campbell, for appellant.

      Hunt & Altland, for appellee.
   McAlvay, J.

This case is before the court for consideration upon a writ of certiorari to the circuit court for Kent county, as provided by Act No. 310 of the Public Acts of 1905, to review the action of said court in overruling defendant’s demurrer to the first count in plaintiff’s declaration.

Plaintiff instituted in that court an action against defendant to recover damages for an alleged libel. The defendant is a Michigan corporation, publishing a newspaper in the city of Grand Rapids. The declaration filed in the case contained two counts, covering two publications of two articles relative to plaintiff, claimed to be libelous. A demurrer was interposed as to the first count, and defendant entered a plea to the second count. The first count is upon the following article, published in the Evening Press, the newspaper of defendant company, on December 8, 1909, as follows:

“ GOES TO AUSTRALIA.
“ Alpena Man Turns Over Assets and Seeks New Country.
(Special to the Evening Press.)
“ Alpena, Dec. 8. — Harry K. Gustin has gone to Australia to rest for three or four months. He has a brother there who is American Consul at New Castle in New South Wales, says J. A. Widner, of the Alpena' Cedar Company, a friend and business associate of Gustin. He fell in debt to the amount of $40,000 or $50,000. He has turned his affairs over to Widner, who says that his assets are more than $200,000.
“ Last season Gustin operated thirty lumber camps, all within 100 miles of each other on the Detroit & Mackinaw. Slow returns pressed him hard, as he was at great expense in the support of the camps. Michael O’Brien, leading real estate man, says Gustin is the biggest taxpayer on lands in this section of the State. Business men generally agree that he has not defrauded any one.” , ■

Plaintiff, in the inducement to this count, avers at length-that he was an attorney at law, engaged in practice at Alpena, and engaged in the business of the purchase and sale of lands and timber, and in the manufacture of lumber and timber products, and financially and personally interested in a large number of business concerns and enterprises; that he had held public office, and was prominently engaged in business and public affairs and was a borrower of money from banks and other, sources in the conduct of or promotion of various business enterprises, and that some of the business concerns and partnerships in which he was interested were also borrowers. Further details of this inducement need not be given. The declaration, by the innuendoes, avers that defendant meant and intended to charge and cause persons who might read the article to understand, believe, and be informed that plaintiff had abandoned his domicile at Alpena; that plaintiff had relinquished the practice of his profession in Michigan ; that plaintiff had irrevocably assigned and transfer^ red the control and management and disposition of his business, assets, and property to a party or parties other than himself; that plaintiff had decamped, absconded, and fled from his home and his country, and without intention of returning again; that plaintiff was financially embarrassed at and before the time of his flight; that the flight of plaintiff was disgraceful and dishonorable, and indicative of a suspicion that plaintiff was guilty of past misconduct.

In the demurrer of defendant it is averred that the publication set out in the declaration was not libelous; that it did not support the innuendoes of the declaration; that it did not tend to injure the plaintiff in any of the respects alleged, either in his good name, credit, reputation, integrity, business, or otherwise.

In actions for libel, the demurrer admits the publication, and also the allegation of its falsity and malice. 25 Cyc. p. 469, and cases cited; Belknap v. Ball, 83 Mich. 583 (47 N. W. 674, 11 L. R. A. 72, 21 Am. St. Rep. 622).

To test its libelous quality, a publication must be considered as a whole, which would include, if, as in this case, it is published in a newspaper, the character of the display of the headlines, as well as the words used in them. 25 Cyc. p. 357, and cases cited. O’Connor v. Sill, 60 Mich. 175 (27 N. W. 13, 28 N. W. 162).

In the instant case the declaration charges that these headlines were printed in large, black-faced type in the daily edition of defendant’s newspaper.

“The title or heading of an article is a part thereof, and must be considered in determining whether or not the publication is libelous; and it has been frequently held, in actions based on publications in newspapers, that the sting of the libel was contained in the headlines.” 18 Am. & Eng. Enc. Law (2d. Ed.), p. 985, and cases cited.

No more apt illustration of this doctrine could be found than in the instant case, where the display headlines contain the sting of the libel, fixing with certainty the character of the publication as libelous per se.

As we construe the count in the declaration demurred to, it was intended to charge that the publication was libelous per se, and therefore did not require any averment of special damages.

An eminent authority says:

“ In determining whether the words charged are libelous per se, they are to be taken in their plain and natural import, according to the ideas they are calculated to convey to those to whom they are addressed; reference being had not only to the words themselves, but also to the circumstances under which they were used. They should receive a fair and reasonable construction, and will be presumed to have been used in the ordinary import attached to them in the community in which they are uttered or published.” 1 Cooley on Torts, pp. 409, 410, and cases cited.

See, also, 25 Cyc. p. 355.

Applying this rule of construction to the article under consideration, our conclusion is that it is libelous per se, and warrants the construction placed upon it by the plaintiff in the allegations of his declaration demurred to. There is no ambiguity in the meaning of the words used by defendant. This publication clearly tended to injure plaintiff in his good name, credit, and business.

It is urged that the innuendoes are not supported by the declaration. It is well settled that when the publication complained of is libelous per se no innuendo is necessary; and if the innuendo alleged is not borne out by the words it may be treated as surplusage and a recovery had on the words themselves. 1 Cooley on Torts, p. 416, and cases cited; 25 Cyc. p. 449, and cases cited. Our conclusion is that the trial court was not in error in overruling the demurrer in this case.

The judgment is affirmed. Defendant will be allowed the time provided by rule in which to plead.

Moore, O. J., and Steers, Brooke, Stone, and Ostrander, JJ., concurred.