author:
Moore, J.
      Fellows, J.

text:
    JOHNSON v. COUNTY OF MUSKEGON.
    1. Municipal Corporations — Highways and. Streets — Personal Injuries — Negligence—Pleading—Variance.
    In an action against a county to recover damages for personal injuries claimed to have been due to the maintenance of a temporary way on an incline sloping down 1 from its roadway to a side ditch, where the evidence showed that the cause of the accident was a hole at the bottom of the incline into which a runner of plaintiff’s sleigh went, resulting in its turning over, plaintiff could not go to the jury upon a claim of negligence not alleged in his declaration. Kuhn, C. J., and Bird and Moore, JJ., dissenting.
    2. Appeal and Error — Pleading — Amendments — Regarding Amendment as Made.
    In an action to recover damages for personal injuries alleged to have been due to certain negligent acts of the defendant, where it appeared from the evidence that such injuries were due to certain other negligent acts of the defendant, and the court instructed the jury that the only negligence to be considered by them was that alleged in the declaration, and a verdict was returned for the defendant, and plaintiff made no motion in the trial court to amend the declaration, an amendment was not permissible on writ of error under 3 Comp. Laws, § 10273 (3 Comp. Laws 1915, § 12483), providing for amendments to cure omissions, imperfections, variances, and defects not against the right and justice of the matter of the suit and not altering the issue between the parties or the trial.
    Error to Muskegon; Sullivan, J.
    Submitted January 2, 1917.
    (Docket No. 2.)
    Decided April 9, 1917.
    Case by Charles L. Johnston against the county of Muskegon for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      R. J. McDonald (P. W. Kniskern, of counsel), for appellant.

      Galpin & Broek, for appellee.
   Moore, J.

(dissenting). In January, 1915, the county of Muskegon was engaged in the repair of a highway by covering the center thereof with stone or gravel to a width of nine or ten feet. At the time in question, a large number of teams were hauling stone or gravel and dumping it in the old traveled portion of the roadway. From the center of the highway to the outer edge of the grade there was a slope of about three feet. The plaintiff was drawing a load of hay, and because of the gravel he was obliged to travel north and outside of it. He was told by a man at work on the road that it was passable. Shortly after this, his load of hay was capsized and he was hurt. It is for these injuries this suit was brought.

Among the averments in the declaration are the following:

First count: “And it was the duty then and there of said defendant to keep said highway in said township and county in reasonable repair and in a condition reasonably safe and fit for public travel so that the said plaintiff and others might pass and repass, ride or drive with teams and vehicles, over said highway with safety while in the exercise of due care.”
Second count: “The highest part of the highway and parallel ditches so-called were scraped out and dug out on each side of said, roadway and distant from said roadway of said highway, to wit, 20 feet for each side thereof; that the highway from about the outer edge of said roadway and on each side thereof sloped down until the bottom of said parallel ditches on each side thereof were, to wit, 5 feet lower than the said roadway.”

The further count alleged the manner in which the roadway had been built; that it was being repaired and the manner of repair; that it was the duty of the defendant to keep said highway in a condition reasonably safe and fit for travel so that the plaintiff might ride or travel with team and vehicle over said highway with safety while exercising due care.

“That said plaintiff arriving at the point or place aforesaid on said highway where the same had become out of repair, obstructed, and rendered impassable by reason of piles of gravel, soil, and broken stone deposited thereon as hereinbefore described, and where the said highway was not kept in a reasonably safe and fit condition for public travel, and while the said plaintiff was in the exercise of due care, the said plaintiff, in order to pursue his way, was compelled to turn to the north side thereof into the ditch thereof, to continue on his way, and thereupon his sleigh was upset, and he, the said plaintiff, was thrown off said load of hay upon the ground, and by such fall, and by reason of his being thrown off said load of hay, the said plaintiff’s right collar bone was broken, and the right point of his right shoulder broken, all without any fault or negligence on the part of said plaintiff; which wrongs and injuries the said plaintiff suffered by means and in consequence of the failure and negligence of the said defendant.”

The plea was simply the general issue. The testimony of the plaintiff as to how the accident occurred is in part;

“I came along very nicely until I got to this place where they were spreading gravel in the center of the road. When I came to this gravel, I saw I had to go on one side of the road and getting along the best way I could in order to get over the place. _ There were some gentlemen working there spreading the gravel, and the work was going on in that condition. I uncovered myself from the blankets, got up on my load on my feet, and I drove perhaps 20 rods. I was out of the center of the road, down on the side or slope, and perhaps during that 20 rods one runner was 6 inches, and maybe at times 8 inches, higher than the other runners all the way on that sidling slope until I come to this sidling place where some others had trouble undoubtedly, and the road was scooped off still further, and when I come there my load suddenly shot sideways, and that throwed me from my balance, and I landed on my head and shoulders on the gravel that they had been spreading, that had been spread two or three days before. That is where I received the injury. * * * At the time of the accident, I stood on the south side of the load so as to balance it the best I could, taking careful pains to take care of my load and myself. I had a good team that would mind, and I could make them go just as slow as any man would want a team to go. I was driving on a slow walk and tending to my team. The road was cut up more or less. The road was like any other sidling snow track or road would be, full of slews and sidling all the way. The condition of the road at that place was the same as it was before, only there was slew there and a little deeper on that side, so that when I went into that it suddenly threw my feet from under me, and my load went one way and I the other. * * * The exact condition of the road at the place where this accident occurred was very sidling, and right at that spot there was a hole where one runner went 'in. Perhaps it was a foot or more than a foot lower than where the other runner was, and it tipped me over just as quick as that (snapping fingers). My load was as nice as any load of hay I ever rode until I turned into the ditch.”

When the testimony was all in, defendant asked for a directed verdict. The trial judge was of the opinion that defendant might have closed the road entirely during the time of the repairs, but, as this had not been done, the road should have been kept in a condition reasonably safe and fit for travel and submitted the case to the jury. A verdict was returned in favor of the defendant. The case is brought here by writ of error.

The important one relates to those portions of the-charge reading as follows:

“There is nothing said in the declaration about the slewing of sleighs on the road left open that made the road dangerous, nor is there anything said in the declaration about a sudden drop or hole in the incline that made the road dangerous, and so the defendant cannot be held for these defects in the road, because these defects are not alleged in the declaration. That is the law of the case; I so charge you. The sole defect alleged is the general incline to the north upon the traveled portion in the center of the road, and the sole question of negligence is: Was that decline of itself so dangerous as to render the road unsafe and unfit for public travel ? I have charged you very carefully upon this particular part which it is alleged was the negligence of the defendant, and it is your duty to follow the law of the case and to follow the evidence so as to determine whether there was any negligence on the part of the defendant, in view of what the court has said to you, to cut out from your consideration all other things in relation to the law of this case as to the negligence of the defendant, the county, except what I have charged you in relation to what is the negligence charged and the negligence which must be proven. * * *
“I have already stated to you that there is no negligence alleged as to any sudden drop in the incline. That you don’t consider. I have already stated to you that the plaintiff cannot recover because of any slews or working^ down of the snow, because that is not alleged, but it is on the general incline, and was this accident a direct — or sprung directly from the cause of negligence alleged, was the negligence the direct and proximate cause of the injury? * * *
“I have called your attention, and call it to you again, that the negligence alleged was simply the incline there, the general incline there, and because of that incline that it was the duty of the officers of this county who had that road in charge not to allow teams to pass thereon. That is the sole claim that is made.”

We have quoted some of the averments of the declaration. It has already appeared that the plea was the general issue. The testimony as to what occasioned the accident was received without any claim that the declaration was not sufficient.

Now counsel for appellee say, we quote from the brief:

“We submit at the outset that a careful reading of the' record in this case will show to the court that no error could have been committed in the charge of the court, for the reason that a verdict should have been directed for the defendant. '
“The testimony of the plaintiff and his witnesses show that outside of the condition caused by the snow, the road was in a condition reasonably safe for public travel.”

We think this claim overlooks the fact that the travel on the side of the road was made necessary by the work that was then in progress. It also overlooks the fact that officers supervising the work recognized the necessity of looking after the changed conditions, and say they employed a man to at once repair the holes which came because of the changed conditions. The man so employed testified that he looked after the filling of these holes. Plaintiff gave testimony denying that the holes had been filled. We think the trial judge was right in saying there was a case for the jury, and was wrong in narrowing the issue presented by those portions of the charge which we have quoted.

Judgment should be reversed, and a new trial ordered, with costs to the plaintiff.

Kuhn, C. J., and Bird, J., concurred with Moore, J.

Fellows, J.

I am unable to agree with Mr. Justice Moore that the trial court was in error in charging the jury that the only negligence alleged in the declaration, for which defendant would be liable, was that which grew out of the maintenance of the temporary way on an incline sloping down from the roadway to the ditch on the side. This, as I read this declaration, is the only negligence alleged. There is no allegation that the temporary way on this incline was out of repair by reason of holes, or sudden drops. The plaintiff in his testimony says:

“* * * The exact condition of the road at the place where this accident occurred was very sidling, and right at that spot there was a hole where one runner went in. Perhaps it was a foot or more than a foot lower than where the runner was, and it tipped me over just as quick as that (snapping fingers). * * *» ,

The existence of the incline or slope was alleged; the existence of the hole that the runner of plaintiff’s sleigh dropped into was not.

The plaintiff, to reverse this judgment, must affirmatively show error; and, to do so, I think must show by the record, not only that he has proven, but has alleged, actionable negligence on the part of the defendant which the court declined to submit to the jury. The fact that in making his proof, as to how the accident occurred, he.gave evidence tending to show negligence other than that alleged in the declaration, does not broaden the allegations therein contained, particularly when to so broaden them would work a reversal of the case. It must be borne in mind that the question here submitted is- not whether the defendant, on the state of the record, could obtain a reversal of a judgment in favor of the plaintiff if the court had submitted to the jury the question of negligence other than that alleged in the declaration. The defendant might be estopped by the record made in the court below from claiming here that a ruling of the trial court, which he had there acquiesced in, was erroneous. Such is not the question submitted to us. Here the plaintiff is seeking a reversal because the court failed to submit to the jury negligence not alleged in the declaration.

The holdings of this court have been uniform that, while the plaintiff is not required to set out the evidence in his declaration, he is required to inform the court and the defendant by his pleadings what his cause of action is, and particularly in negligence cases to allege wherein he claims the defendant was negligent. A few of these cases will illustrate the rule.

It was said by Mr. Justice Graves, in the case of Marquette, etc., R. Co. v. Marcott, 41 Mich. 433 (2 N. W. 795):

“Reason and good sense as well as law compel the plaintiff by his declaration in these cases to inform the defendant and the tribunal what the complaint is, and he must not only show that the defendant has been negligent, but must further show in what respect. The matters of negligence to which the injurious consequence is referred must be properly averred.”

Mr. Justice Durand, speaking for the court, said in Reed v. Gould, 93 Mich. 359 (53 N. W. 356):

“If a party is legally entitled to recover for an alleged wrong, it must be in a proceeding reasonably adapted to the purpose, or upon pleadings framed in such a manner as to warrant the particular remedy sought for; and a cause should not be submitted to a jury upon a theory not germane to the pleadings, or merely on account of certain equitable considerations which the trial may have disclosed, but which a party can only obtain in such a proceeding or upon such pleadings as fairly, logically, and legally furnish the court with a basis upon which to grant the remedy which it is called upon to give.”

In Schindler v. Railway Co., 77 Mich. 136 (43 N. W. 911), Mr. Justice Campbell said;

“The decisions of this court have been uniform that no proof of negligence can be received, beyond what is alleged, and that allegations of the wrong are necessary.”

Mr. Justice Hooker said, in O’Neil v. Railway Co., 101 Mich. 437 (59 N. W. 836):

_ “It is true, as contended by counsel, that a declaration is not required to set up the evidence by which the cause of action is to be proved, but an action upon the case does require a specific and unequivocal statement of the essential facts constituting- the cause of action.”

The case of Pennington v. Railway Co., 90 Mich. 505 (51 N. W. 634), is quite in point. There the court directed a verdict for the defendant on his own motion; there was a variance between the declaration and the proofs but the record did not disclose that the defendant made this point, or requested a directed verdict. The question was held, however, by a majority of this court to be available here.

The plaintiff, in the instant case, did not have a legal right to go to the jury upon a claim of negligence not alleged in his declaration; if no legal right was denied him in the court below, he is not entitled to a reversal here.

Counsel for the plaintiff most strenuously urges that the benefit of the statute of amendments be applied in this case. He says:

“Thus we see, by reference to the statute, that had the plaintiff been successful in this cause and obtained judgment, and the declaration was faulty as claimed by the court, it was the duty of the court of his own motion, by reason of the proofs produced, to have amended the declaration, and thus supported the judgment. It surely cannot be alleged that the rule would be different and the rights of the parties would be less when the plaintiff did not prevail in his contention because of the striking out of his evidence of the main facts of the case by the court.”

With counsel’s premise I agree; from his conclusion I differ. This statute should be applied to save a judgment, but not to work a reversal. The statute (section 10273, 3 Comp. Laws; section 12974, 5 How. Stat. [2d Ed.], 3 Comp. Laws 1915, § 12483) provides:

“The omissions, imperfections,' variances and defects in the preceding sections of this chapter enumerated, and all others, of the like nature, not being against the right and justice of the matter of the suit, and not altering the issue between the parties, or the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judgment shall be removed by writ of error.”

This statute has been frequently invoked in this court to prevent mistrials, and on numerous occasions it has been held that, inasmuch as the amendment might have been made in the court below, this court would make the amendment here on its own motion. Cases illustrative of this are: Smith v. Pinney, 86 Mich. 484 (49 N. W. 305); Enright v. Insurance Co., 91 Mich. 238 (51 N. W. 928); Johnston v. Insurance Co., 106 Mich. 96 (64 N. W. 5). But this is done to work an affirmance, not a reversal; to cure an error, not to create one. 31 Cyc. p. 404; White River Bank v. Downer, 29 Vt. 332. The question here is whether the statute of amendments should be invoked by this court to defeat a judgment valid in all regards, but rendered invalid by making the amendment. I think not.

It was said in Williams & Hall v. Birch, 6 Bosw. (N. Y.) 674:

“We are not aware of any decisions which hold it a proper exercise of discretion, or .that the court has the power to so amend the pleadings, after a trial and a review at the general term of exceptions there taken, as to convert, merely by force of such amendment, a correct decision into an erroneous one, and an irreversible into a reversible judgment.”

The supreme court of Iowa, in the case of Thyssen v. Storage Co., 134 Iowa, 749 (112 N. W. 177, 13 L. R. A. [N. S.] 572), holds:

“As plaintiff had chosen his ground, proceeded to trial, and_ submitted his case on the claim as stated in_ the original petition, we think he cannot be permitted to mend his hold after a verdict has been returned against him, and demand a new trial on another and materially different theory.”

The question 'was passed upon in Dunham v. Brown, 9 Kan. App. 889 (58 Pac. 232), and it was said by the Kansas court:

“It is contended by counsel for plaintiffs in error that the evidence shows a waiver on the part of the defendants of the right to plead failure of consideration for the note. The alleged waiver was not pleaded in the replies filed to the answers of the defendants, and no request for leave to amend the replies was made until after the motion for a new trial was overruled. The request came too late. An examination of a large^ number of decisions of the Supreme Court construing section 189 of the Civil Code, which provides that any pleading may be amended before or after judgment to conform the same to facts proven, when such amendment does not change substantially the claim or defense, leads us to conclude that such amendments are permissible only to uphold verdicts and judgments, and not to overthrow them.”

McKernan v. Railway Co., 138 Mich. 519 (101 N. W. 812, 68 L. R. A. 347), is not out of accord with these cases. There no question was made as to the sufficiency of the pleadings to cover the case made so far as the opinion shows, either by court or counsel, and this court did not permit the amendment here, but, reversing the case upon other grounds, contented itself with saying:

*‘We cannot assume that, had such a point been made, the circuit judge would have refused an amendment.”

In the instant case, the question was raised in the court below, not by the defendant it is true, but by the court, and plaintiff’s attention was challenged to it by the charge of the court; he made no request for permission to amend, although the trial court in his discretion could have allowed the amendment after instructions to the jury (Prater v. Miller, 25 Ala. 320 [60 Am. Dec. 521]), and, had he allowed such amendment, would, no doubt, then have submitted the case as made by the amendment to the jury, The formal amendments to the declaration need not have been filed instanter, but might be filed within a reasonable time after verdict. Harris v. Thomas, 140 Mich. 462 (103 N. W. 863).

Permission to amend was not asked for, plaintiff’s requests were general in their terms and did not point out the specific negligence here urged, nor, so far as the record discloses, was the court advised that plaintiff made any claim, other than that stated by the court in his charge, nor was any claim made that the declaration was broad enough to permit recovery, except upon the theory submitted to the jury.

I think the trial court correctly construed the declaration, and that we should not, either upon our own motion or at plaintiff’s request, so amend the declaration as to create error and then reverse the case for such error. I do not think the other assignments of error are well taken. In my judgment the case should be affirmed.

Stone, Osteandee, Steeee, and Beooke, JJ., concurred with Fellows, J.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    ANDERSON v. FRUITVALE TRANSPORTATION CO.
    1. Judgment — Joint Dependants — Joint Liability.
    A judgment against several defendants is permissible only where all such defendants are jointly liable.
    2. Work and Labor — Corporations—Liability.
    In an action against several corporations and the common president and general manager jointly to recover for services rendered to one or more of the defendant corporations', it is imperative that plaintiff show to which corporation she extended the credit or such an undertaking on behalf of the individual defendant to pay for the services rendered as satisfies the statute of frauds.
    3. Judgment — Several Dependants — Several Verdicts — Trial.
    A jury in an action of debt against several defendants who are sued jointly may not render several verdicts against the several defendants upon which several judgments could be based.
    Error to Muskegon; Sullivan, J.
    Submitted October 17, 1916.
    (Docket No. 155.)
    Decided April 9, 1917.
    Assumpsit by Mary E. Anderson against the Fruit-vale Transportation Company and others, for services rendered. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Cross, Vanderwerp, Foote & Boss, for appellants.

      Clink & Farmer, for appellee.
    The plaintiff is the proprietor of a livery stable and transfer business located at Montague. The defendant Harrison M. Parker is president and general manager of all three of the corporate defendants.
    It seems to have been the general purpose of the defendant corporations to acquire and develop a summer resort at Fruitvale, which is located about six miles from Montague. So far as it appears from the record, the Fruitvale Company became the owner of 6,000 or 7,000 acres of land purchased for the purpose indicated. The Fruitvale Transportation Company is a small corporation owning some small launches which run up the river between Montague and Fruitvale. The Whitehall Construction Company is a corporation engaged in building for the Fruitvale Company. During the years 1914 and 1915 the plaintiff rendered services for one or other of the defendants amounting to $1,-486.06, according to her bill of particulars. After certain credits were allowed there appeared to be a claimed balance of $849.97. Upon the trial plaintiff produced her book of account which showed the services were charged under the following heading:
    “The Fruitvale Development Co. — Harrison M. Parker, Fruitvale Development Co.”
    Being unable to secure a settlement of her alleged, claims, plaintiff brought suit against all three corporations and against Mr. Parker, the president and general manager of all three. Being questioned as to how she came to furnish the services and materials charged for in her bill of particulars, plaintiff testified:

      “A. Upon the request of Mr. Parker himself, and then on request of the superintendents whom he left. I had conversations many times with Mr. Parker about the furnishing of service or supplies.

      “Q. Can you remember what he said to you in that regard?

      “A. Why, he said that whatever work or livery his managers up there wanted that we should go ahead and fill their orders for any work and livery hire, that we should fill the orders of Mr. Williams, Mr. Franks, and his managers there, Mr. Preston.

      “Q. Did he say anything about the payment for such work?

      “A. He said he would pay for it.

      “Q. Did he enumerate at that time the managers or superintendents whom you should furnish service for?

      “A. He named some of them. He said whoever was up there as managers. * * * I have talked with Mr. Frank in regard to the Fruitvale Company. I had a talk with him in regard to the bills that I made. I had many, conversations with Mr. Frank. I saw him very frequently, and I asked him who those bills should be made to, or what should be the headings of those bills in my book, the Fruitvale Company, the Fruitvale Land Development Company, or Harrison M. Parker. He said: sWe are all one concern.’”
    An examination of the auditor of each of the three corporations showed that sometimes when signing checks in payment of the accounts of one or the other of the corporations she placed the following indorsement upon the back of the check:
    “In full for all claims of any nature and character against the Fruitvale Company, Whitehall Construction Company, Fruitvale Transportation Company, and Harrison M. Parker.”
    On cross-examination, being interrogated as to the reason for the organization of the Fruitvale Transportation Company, the defendant Harrison M. Parker testified:

      “Q. Mr. Parker, what was your primary purpose in organizing this company in connection with the Fruit-vale Company?

      “A. Our lawyers informed us that under the Fruit-vale charter we had no right to do that; we had no right to operate steamship companies under the provisions of our charter.

      “Q. And that was the reason for incorporating the transportation company?

      “A. Yes, sir.
    “Q. So that you could carry on your primary operations of the summer resort?

      “A. Yes; our lawyers said we had to have a separate business; we didn’t have any right under our charter to do it”
    - — and further by Mr. Farmer, counsel for plaintiff:

      “Q. It is all done for the purpose of obtaining one certain end, of conducting this Fruitvale summer resort; is that not correct?

      “A. (nodding head affirmatively). We are developing that whole country.

      “Q. So that all these defendant companies are working together?

      “A. Yes, sir.

      “Q. And they are engaged in one common enterprise to develop this resort?
    “A. Yes, sir.”
    Upon the stand the defendant Parker admitted an indebtedness of the defendant the Fruitvale Company to the plaintiff in the sum of $18 and of the defendant the Whitehall Construction Company to the plaintiff of $269.42.
    Over objection and exception, the court permitted the jury on the strength of the testimony set out, to find a joint liability on behalf of all defendants to the plaintiff, and the jury thereupon rendered verdict against all defendants and in favor of the plaintiff in the sum of $668.46.
   Brooke, J.

(after stating the facts). There are some 29 assignments of error which we find it unnecessary to consider at large.

It is elementary that a judgment against several defendants may only be had where all the defendants are jointly liable upon the cause of action. This record signally fails to show any joint liability of the three corporate defendants with each other or with the individual defendant. It is obvious that plaintiff rendered her services sometimes to one corporation and sometimes to another, and perhaps sometimes to the individual defendant. In endeavoring to collect her accounts she must be able to show to which corporation she extended the credit, or such an undertaking on behalf of the individual defendant to pay for all services rendered as would satisfy the statute of frauds.

The circuit judge charged that the jury might split their verdict, finding one defendant liable for a certain amount and another defendant liable for a certain other amount according to the admissions made on behalf of the several defendants or as the testimony might disclose. In this the learned circuit judge was in error. We know of no practice which would permit a jury in an action of debt to render several verdicts upon which could be based several judgments.

The judgment is reversed, and a new trial granted, with costs.

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


text:
    PEOPLE, for use of ZEELAND BRICK CO., v. FIDELITY & DEPOSIT CO.
    1. Accord and Satisfaction — Payment—Compromise.
    Where less than the full amount of a past-due liquidated and undisputed debt is paid, such payment is only to be treated as a partial payment and does not estop the creditor from suing for and recovering the balance, even though such payment was accepted and receipted, for as in full satisfaction.
    2. Same — Compromise—Part Payment — Acceptance—Estoppel.
    Where a creditor filed with the surety of the debtor for settlement a claim as due the creditor from the debtor, including a certain note for a part of the debt taken by the creditor from the debtor, the amount of which note the surety deducted from the claim as not within the surety’s liability and paid the balance of the claim, which the creditor accepted and receipted for as in full satisfaction, held, that such claim as filed by the creditor was not, at the time it was paid, “past due, liquidated, and undisputed,” and the settlement made is binding upon the creditor, barring action for the part of the claim deducted.
    Error to Ottawa; Cross, J.
    Submitted January 4, 1917.
    (Docket No. 35.)
    Decided April 9, 1917.
    Assumpsit by the People of the State of Michigan for the use and benefit of the Zeeland Brick Company against the Fidelity & Deposit Company of Maryland and others on a surety bond. Judgment for plaintiff. Defendant Fidelity & Deposit Company brings error.
    Reversed and no new trial ordered.

      Donnelly, Lyster & Munro, for appellant.

      Jarrett N. Clark, for appellee.
    On October 8, 1909, George Rickman Sons Company, a corporation, entered into a written contract with the city of Holland for the erection of a city hall. On October 12, 1909, George Rickman Sons Company, as principal, and the defendant the Fidelity & Deposit Company, as surety, executed a bond to the people of the State of Michigan, conditioned upon the payment by said George Rickman Sons Company “of all indebtedness which may arise froifi said contractor to a subcontractor, or party performing labor or furnishing material, * * * in the erection, repairing or ornamentation of such building.” During the years 1909 and 1910, the Zeeland Brick Company, for whose use and benefit the present action was brought, furnished to George Rickman Sons Company certain material, which was not wholly paid for by said George Rickman Sons Company. On September 27, 1910, and before said building was completed, said George Rickman Sons Company became insolvent, and a receiver was appointed, On June 12, 1910, prior to said insolvency, the Zeeland Brick Company had accepted a note in the sum of $1,000 from George Rick-man Sons Company, which note was unpaid at the time George Rickman Sons Company became insolvent. The balance due from George Rickman Sons Company, including said note as of June 13, 1911, was $2,-444.95. On that day the Zeeland Brick Company wrote to the defendant the Fidelity & Deposit Company as follows:
    “Fidelity & Deposit Co.,
    “Baltimore, Maryland.

      “Gentlemen:

    “We understand from Mr. Rickman of the George Rickman Sons Co. that you are paying bills on account of the Holland City Hall job and has asked us to send our statement to you for payment. We herewith inclose the statement and would be pleased to hear from you at an early date.
    “Yours truly,
    “Zeeland Brick Co.,
    “G. Veneklasen, Sec’y.”
    With this letter was inclosed a statement of account, showing balance as above stated. The defendant Fidelity & Deposit Company sent the following letter in reply:
    “June 17, 1911,
    “George Rickman Sons Company — Holland Contract
    —Zeeland Brick Company.
    “Zeeland Brick Company,
    “Zeeland, Michigan.

      “Gentlemen: We are in receipt of your letter of the 13th inst., inclosing statement of your account with George Rickman _ Sons Company for material furnished and used in connection with the contract for the Holland City Hall Building.
    “The information given you by Mr. Arthur W. Rickman is correct in that this company under the penal bond executed on behalf of George Rickman Sons Company did undertake to guarantee the payment by the contractors, of all subcontractors, materialmen and laborers.
    “After inspecting the account there is some confusion in our minds regarding the number of notes which were given you by George Rickman Sons Company and it would assist us in our investigation of the matter if you would state the number of notes given you by George Rickman Sons Company to be applied on this contract for material furnished for the Holland City Hall Building, together with the amount of each note and the dates thereof. Upon the receipt of this further information regarding the notes we will proceed to make our usual investigation and will advise you of our decision in the course of ten days or two weeks.
    “The account will have to be submitted to the Michigan Trust Company and by them to Mr. Arthur W. Rickman for his approval. Please understand that until we have made this investigation we cannot admit liability and this letter is written with a full reservation of all our rights.
    “Very truly yours,
    “T. W. Gambrill, Counsel.”
    The Zeeland Brick Company on the 20th day of June answered this communication, with a further statement showing that it had in its possession but one note of the George Rickman Sons Company in the sum of $1,000, and that it had paid upon the first renewal thereof the sum of $7.50 and upon the second renewal thereof the sum of $4.33 as interest. Upon receipt of this communication defendant the Fidelity & Deposit Company wrote the following letter:
    “June 23, 1911.
    “George Rickman Sons Company — Plolland Contract
    —Zeeland Brick Co.
    “Zeeland Brick Company,
    “Zeeland, Michigan.

      “Gentlemen: We are in receipt of your letter of the 20th inst., contents of which we note.
    “In arriving at the amount for which this company would be liable under the penal bond for the payment of subcontractors, materialmen and laborers, there should be deducted from the account presented by you the following items:
    May 17, 1910, Interest...................... $7 50
    June 12, 1910, Interest...................... 4 33
    June 12, 1911, Interest...................... 60 00
    June 12, 1911, Note......................... 1,000 00
    “Deducting the total of these items from the debit side of the account as presented by you, leaves a balance of $3,382.08. This balance is still further reduced by the following credits:
    February 17, 1910, note paid at ma-
    turity .........................$1,000 00
    March 15, 1910, bricks............. 8 96
    April 2, note which remains unpaid 1,000 00 $2,008 96
    Net balance due from this company........ $1,373 12
    “According to our interpretation of our liability the acceptance by you of the notes whether paid or unpaid discharges the surety to the extent of the face value of the note, and we believe our position in this matter is sustained by the case of People v. Grant, 138 Mich. 60.
    “If your clients are prepared to accept the sum of $1,373.12 in full settlement of all claims or demands against this company under the penal bond given in connection with the contract of George Rick-man Sons Company for the construction of the City Hall Building, Holland, we will forward a check for this amount to our attorneys in Detroit, Mess. Brennan, Donnelly & Van De Mark, with instructions to deliver the same upon the execution by our company of the usual affidavit and receipt.
    “Very truly yours,
    “S. W. Gambrill.”
    To which the Zeeland Brick Co. on July 28th replied as follows:
    “Fidelity &• Deposit Co.,
    “Baltimore, Maryland.

      “Gentlemen: In response to your favor of June 23d offering us a check for $1,373.12 in full settlement of claim against your company under bond given with the contract with George Rickman Sons Co. for the construction of the city hall at Holland, Mich. If agreeable to you we would kindly ask you to send the check to your attorneys at Detroit at an early date so that this matter may be closed up.
    “Yours truly,
    “Zeeland Brick Co.,
    “G. Veneklasen, Sec’y-”
    On July 31st, the Fidelity & Deposit Company wrote the Zeeland Brick Company the following letter:

      “Gentlemen: In replying to your letter of the 28th inst., please be advised that we are sending our check for $1,373.12 to our attorneys in Detroit, Mess. Brennan, Donnelly & Van De Mark, with instructions to deliver the same on their obtaining the usual receipt and release which we are requiring in all cases.
    “Very truly yours,
    “S. W. Gambrill, Counsel.”
    Then followed some correspondence between Messrs. Brennan, Donnelly & Van De Mark, counsel for the Fidelity & Deposit Company, and the Zeeland Brick Co. The result of which was the payment to the Zeeland Brick Company of the sum of $1,373.12, and the giving by the Zeeland Brick Co. of the following receipt:
    “Zeeland, Michigan, September 2, 1911.
    “Received of the Fidelity & Deposit Company of Maryland surety upon the bond of George Rickman Sons Company, for the payment of accounts of subcontractors and persons supplying material and performing labor in the construction of the new City Hall Building at Holland, Michigan, the sum of one thousand three hundred seventy-three dollars and twelve cents ($1,373.12) in full payment of the attached account. Said sum is accepted in full payment and satisfaction of all claims against said Fidelity & Deposit Company of Maryland under the above mentioned1 bond. It is agreed that all evidence, documentary or: otherwise, tending to prove the correctness of the above account, and the various items thereof, shall be preserved and placed at the disposal of said Fidelity & Deposit Company of Maryland at .any time that it may demand the same.
    “Zeeland Brick Co.,
    “By G. Veneklasen, Secy.-Treas.
    “In presence of B. H. Goozen, W. C. Irvine.”
    Following this judgment between the parties, the Zeeland Brick Company filed its claim under the $1,-000 note with the receiver of the Geo. Rickman Sons Company, and thereafter was paid by said receiver several dividends thereon, amounting in all to $308.50, the last dividend being paid January 6, 1915.
    The declaration in the case at bar was filed March 2, 1916, 4y% years after the date of the receipt given in final settlement between the parties. The claim made on behalf of the use plaintiff is for the amount of the $1,000 note and interest, less the sum received by it from the receiver of the Geo. Rickman Sons Company. There being no dispute as to the amount involved or any of the facts in the case, each party moved for judgment. The motion made on behalf of the use plaintiff was granted for the sum of $931.58.
   Brooke, J.

(after stating the facts). On July 23, 1915, this court handed down a decision in the case of the People, for use of Contracting Co., v. Bowen, 187 Mich. 257 (153 N. W. 672), in which it was held that a paid surety could not avoid liability upon its bond by showing that credit had been emended, to the principal in the bond, without the knowledge of the surety, in the absence of a showing that such extension of time operated to the injury of the surety. The material facts in the case at bar are identical with those in the case of the People v. Bowen, supra. It is contended that at the time of the payment by the defendant surety company to the use plaintiff of the sum of $1,373.12 and the giving by the Zeeland Brick Company to the surety company of a receipt in full, there was in fact due from the surety company to the Zeeland Brick Company the full sum of $2,444.95, and that said sum was a liquidated claim. It is argued, therefore, that the payment by the surety company to the brick company of a sum less than the amount actually due (even though a receipt in full was exacted upon payment thereof), does not discharge the surety company from its obligation to now pay the balance of the claim. This position is met by the appellant by the assertion that at the time the claim of the Zeeland Brick Company was presented to the surety company it was the belief of the surety company and its bona fide contention that if credit were extended to the principal without the consent or knowledge of the surety, the surety was relieved of its obligation under the bond pro tanto.

Under the law in this State there is no doubt that a payment of less than the full amount of a past-due liquidated and undisputed debt, although accepted and receipted for as in full satisfaction, is only to be treated as a partial payment, and does not estop the creditor from suing for and recovering the balance. Leeson v. Anderson, 99 Mich. 247, 248 (58 N. W. 72, 41 Am. St. Rep. 597); Tanner v. Merrill, 108 Mich. 58, 60 (65 N. W. 664, 31 L. R. A. 171, 62 Am. St. Rep. 687); Cunningham v. Irwin, 182 Mich. 629 (148 N. W. 786). The rule, however, is subject to numerous exceptions among them, as stated in Cunningham v. Irwin, supra, the following:

“When the claim is unadjusted or unliquidated; when payment is made before it is due; when a new security is given; when there is a composition with creditors; and where part payment in full settlement is made by a third party who is a stranger to the claim and under no legal obligations in relation to it. While this court, in accepting the general rule, has had little occasion to deal with these exceptions, they are well settled by almost universal weight of authority.”

The rule being a technical one and tending to defeat the express intention of the parties, it cannot be extended to embrace cases not within its strict letter. Tanner v. Merrill, supra.

The single question presented by the undisputed facts in this case is whether at the time the surety company paid to the brick company the sum of $1,-373.12, and received in exchange therefor its receipt in full, there was then a “past-due, liquidated, and undisputed debt” due from the surety company to the brick company in the amount of $2,444.95. We are of opinion that it cannot be said that the claim as filed with the surety company by the brick company, amounting to $2,444.95, was a liquidated claim within the meaning of the rule invoked. The first letter written by the defendant surety company to the use plaintiff clearly indicated this fact. It is there said:

“Please understand that until we have made this investigation we -cannot admit liability and this letter is written with a full reservation of all our rights.”

In a subsequent letter of June 23d, the position of the surety company is made plain to the use plaintiff, and the contention is set up- by the surety company that the extension of time to the principal worked a discharge of the surety .to the extent of the amount of the note or notes taken. Not only this, but the use plaintiff was advised of the authority in this State upon which said claim was predicated. The surety being abundantly responsible, it is apparent to us that the use plaintiff became convinced of the soundness of the position taken by the surety company, otherwise it would scarcely have accepted $1,373.12 for an indebtedness of $2,444.95. Nor.can it he said, considering the state of the law at that time, that the claim made by the surety company was without warrant. It is true that this court four years later decided that the position then taken by it was untenable, but at the time the compromise was made neither party knew that such a holding would be made. At the moment of the compromise the use plaintiff had two courses open to it: It could sue upon the bond and decide the question of the surety company’s liability for the amount of the note, or it could immediately accept the sum proffered, admitting the propriety of the surety company’s contention, and end the controversy. It chose the latter course. The case of Simons v. Supreme Council, A. L. H., 178 N. Y. 263 (70 N. E. 776), is upon the facts very similar to the case at bar. The court there held the claim to have been unliquidated, and reversed the judgment of the lower court in favor of the plaintiff.

The judgment will be reversed; and, inasmuch as there is no dispute upon the facts, there will be no new trial.

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


text:
    HAMILTON v. MACEY CO.
    Master and Servant — Workmen's Compensation Law — Notice— Depositions — Rules oe Industrial Accident Board.
    In proceedings under the workmen’s compensation act for compensation for injuries, where claimant’s attorneys served on the attorney for respondent notice of the intention to take depositions on the following day at a certain hour and place in the city where respondent’s attorney resided, but without giving in the notice the name of the witness or witnesses whose depositions were to be taken, or the name of the official before whom they were to be taken, and respondent did not appear at the time set, and, upon subsequent notice from the secretary of the industrial accident board of the filing of the depositions in his office, respondent’s attorney filed with said board objection to consideration of the depositions' because of insufficient notice, it was held, in view of part 3, § 3, Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5456), relating to the making of rules not inconsistent with that act for carrying out the provisions of the act by the hoard, and rule 6, Bulletin No. 3, of the board, providing for the taking of additional testimony, when necessary, by depositions, under the provisions of the general statutes, and Act No. 314, chap. 17, § 6, Public Acts 1915 (3 Comp. Laws 1915, § 12494), requiring that reasonable notice of the taking of depositions de bene esse in any civil case shall be given, indicating the name of the witness or witnesses and the time and place of taking the deposition and the name of the official before whom the same will be taken, the board should be bound by its rules, and the award, on the notice given, set aside and the case remanded.

    Certiorari to Industrial Accident Board.
    Submitted January 11, 1917.
    (Docket No. 98.)
    Decided April 9, 1917.
    Harry Hamilton presented his claim for compensation against the Macey Company for injuries received in defendant’s employ. From an order awarding compensation defendant and the Furniture Insurance Company, insurer, bring certiorari.
    Reversed.

      Francis D. Campan, for appellants.

      Nichols & Shaw, for appellee.

      As to workmen’s compensation acts generally, see extensive note in L. R. A. 1916A, 23.

   Brooke, J.

Certiorari to the industrial accident board. Attorneys for claimant on June 20, 1916, gave the following notice to the attorney for the respondent.

“State of Michigan — Industrial Accident Board.
“Harry Hamilton, Claimant, v. Macey Co., Furniture Mutual Insurance Co., Respondents.
“To Francis D. Campau,
“615 Michigan Trust Bldg.
“Sir: You will please take notice that we will take depositions in the above-entitled cause at 419 Houseman Bldg., Grand Rapids, Michigan, at 2:00 in the afternoon of June 22, 1916.
“Nichols & Shaw,
“Attorneys for Claimant.
“Dated June 20, 1916.”

This notice was received by the attorney for the respondent on June 21, 1916. Respondent did not appear at the time and place indicated in the notice, nor participate in the examination. On June 29, 1916, the respondent received the following notice from the industrial accident board:

“State of Michigan — Industrial Accident Board.
“Lansing, Mich., June 28, 1916.
“In re H. Hamilton v. Macey Co.
“The depositions of the witnesses named below have been filed in this office of the industrial accident board. This information is sent to you by the order of the board so that you will have timely notice of the depositions referred to.
[Signed] “G. W. Dickson,
“Secretary, R. M.
“Names of witnesses:
“Harry Hamilton,
“Dr. A. M. Leach,
“Dr. Wm. F. Birse.”

On July 3, 1916, the attorney for the respondent wrote the industrial accident board that he would object to the consideration of the depositions in question because of insufficient notice, and on July 10th filed with the board formal objections to their consideration as follows:

“1. The notice served upon the deponent of the taking of the said depositions was unreasonably short to enable the deponent to be present at the taking of the said depositions.
“2. The notice of the taking of the said depositions did not contain the name of the notary public, or other officer before whom the, depositions were taken.
“3. The notice did not contain the name of any witness, or witnesses whose depositions were to be taken.
“Yours, etc.,
[Signed] “Francis D. Campau,
“Attorney for Respondents.
“Dated July 10, 1916.”

The board, disregarding the objections of respondent’s attorney, made an award in favor of the claimant. Part 3, § 3, Act No. 10, Extra Session 1912 (2' Comp. Laws 1915, § 5456), provides:

“The board may make rules not inconsistent with this act for carrying out the provisions of this act.”

Under the authority of the statute the industrial accident board adopted certain rules which it caused to be issued as Bulletin No. 3. The following is a part of rule 6, there published:

“Where cases are taken before the full board for review, additional testimony may be taken, when necessary, by depositions under the provisions of the general statutes of the State.”

Act No. 314, chap. 17, § 6, Public Acts 1915 (3 Comp. Laws 1915, § 12494), which treats of depositions de bene esse in any civil matter or cause, provides :

“Reasonable notice must first be given in writing by the party, or his attorney, proposing to take such deposition, to the opposite party or his attorney of record, which notice shall state the name of the witness or witnesses and the time and place of taking his deposition, and the name of the official before whom the same will be taken.”

While in proceedings of this nature we recognize the .propriety of ignoring so far as is reasonably possible technicalities, to the end that early adjudication may be had, we are still of opinion that the board in its consideration of evidence should be bound by rules promulgated under its own authority.

The award will be vacated and set aside, and the case remanded to the industrial accident board for further action, in accordance with its rules and practices.

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


author: Kuhn, C. J.

text:
    SCHURTZ v. CITY OF GRAND RAPIDS.
    Municipal Corporations — Grand Rapids Charter — Res Judicata. The general validity of the charter of the city of Grand Rapids having been sustained in Kopczynski v. Schriver, 194 Mich. 553, the order dismissing plaintiff’s bill, based on the invalidity of said charter, will be affirmed.
    Appeal from Superior Court of Grand Rapids; Dunham, J.
    Submitted January 16, 1917.
    (Docket No. 149.)
    Decided April 9, 1917.
    Rehearing denied September 28, 1917.
    Bill by Perry Schurtz against the city of Grand Rapids for an injunction restraining said city from exercising any of its functions under its charter as revised. From a decree for defendant, plaintiff appeals.
    Affirmed.

      Shelby B, Schurtz, for plaintiff.

      Sheridan F. Master and Jewell & Smith, for defendant.
   Kuhn, C. J.

The purpose and intent of the bill of complaint filed herein may be gathered from the following paragraph of the prayer for relief:

“And that an injunction may be issued from this honorable court restraining and prohibiting forever the said city of Grand Rapids from taking any action under the proposed revised charter of the city of Grand Rapids submitted to the electors of Grand Rapids August 29, 1916; restraining and prohibiting forever the said city of Grand Rapids from exercising any of its functions as a municipal corporation under said proposed revised charter, and. commanding the said city of Grand Rapids to continue to exercise its functions as a municipal corporation'under Local Acts of the State of Michigan of 1905, No. 593, as amended by Local Acts of 1907, No. 749, until the charter of the city of Grand Rapids is revised or amended according to the laws of the State of Michigan.”

The defendant filed a motion to dismiss the bill on several grounds. It is. claimed that an individual citizen cannot question the legality of the corporate existence of the city in the absence of a statute giving that right, that the bill does not allege that the plaintiff’s burden as a taxpayer will be increased at least $100, and, third, that 'this, proceeding should have been brought by the attorney general by filing an information in the nature of a “quo warranto.” An appeal is taken from an order dismissing the bill of complaint.

Irrespective of whether this is the proper proceeding to raise the question sought to be reviewed, we are satisfied that the order dismissing the bill of complaint should be affirmed because the general validity of the charter of the city of Grand Rapids is sustained, contrary to plaintiff’s contentions, by the decision of this court in Kopczynski v. Schriver, 194 Mich. 553 (161 N. W. 238).

The order dismissing the bill of complaint is therefore affirmed, with costs to the defendant.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Steere, J.

text:
    HALLER v. CITY OF LANSING.
    1. Master and Servant — Workmen's Compensation Law — Wilful Negligence.
    It is only wilful and intentional negligence of an employee that precludes recovery of compensation under the workmen’s compensation act.
    2. Same — Course of Employment — Noon Lunch Hour.
    The .service tie or. contractual relation and obligation between master and servant is not broken by suspension of all activities directly beneficial to the employer, as by noon intermission for lunch.
    3. Same — Death—Personal Injury — Course of Employment.
    In proceedings for compensation for the death of an employee under the workmen’s compensation act, where the death was due to injuries sustained as the result of an explosion of gas caused by deceased lighting his pipe, upon going into the employer’s tool house adjacent to his work for better shelter from windy and inclement weather, while eating his lunch at the noon hour, and he was not prohibited by his employer from going into the tool house at such time, held, that such employee was within the act, and that compensation for his death was properly allowed.

    Certiorari to Industrial Accident Board.
    Submitted January 19, 1917.
    (Docket No. 29.)
    Decided April 9, 1917.
    Mrs. Mike Haller presented her claim for compensation against the city of Lansing for the accidental death of her husband in defendant’s employ. From an order awarding compensation,- defendant brings certiorari.
    Affirmed.

      Joseph H. Dunnebaeke, for appellant.

      Thomas A. Lawler and John F. Berry, for appellee.

       On application and effect of workmen’s compensation act, generally, see comprehensive note in L. R. A. 1916A, 23; particularly as to injuries received in the course of employment, see page 40 of above note.

   Steere, J.

The return of the industrial accident board to a writ of certiorari issued herein states that it made “no written findings of fact or law, or any decision in regard thereto, except such as is contained in Exhibit 8,” which is a brief order, affirming the award of the committee on arbitration, made on October 9, 1915, finding that this claimant (plaintiff) was entitled to recover from respondent (defendant) the sum of $6.49 per week for a period of 300 weeks from the 29th day of October, 1913, for the accidental death of her husband, Mike Haller, on the 29th day of October, 1913, while in defendant’s employ. Various exhibits, copies of orders, etc., and the testimony taken before the committee on arbitration, compose the return. Defendant asks reversal chiefly on the ground that the undisputed facts show the accident in question did not arise out of or in the course of deceased’s employment because the injuries causing his death were received by him during the noon hour after work was suspended; were the result of his own act in striking a match to light his pipe, which was not a part of his employment, but, on the contrary, entirely foreign to it and outside its scope. . While other questions are raised and theories advanced in behalf of defendant, as the case is presented by this record we think the foregoing contention embodies the only proposition calling for serious consideration.

No question of dependency has been raised by defendant, and a fatal accident, at the time and place claimed, is not denied. It is also admitted that at the time of the accident deceased was in defendant’s employ as a common laborer, working with other's at what is known as the East Side Park in said city. Their work began at about 6:30 in the morning upon the date in question, and the usual time of suspending labor for an hour to take the noon meal was 11:30.

In connection with its street improvements the city of Lansing owned a stone crusher plant, which was then located at East Side Park. Near the west side of the park was a small toolhouse used in connection with the crusher. On the day in question Mike Haller, the deceased, was working with others under a foreman on an elevation in the park some 60 or 70 feet from this toolhouse, engaged in leveling up or grading a place near the crusher for the purpose of receiving stone for paving operations of the following year, the work of paving having been suspended for that season. Haller, who was a Hungarian, had worked on the streets in defendant’s employ for some time, but this was his first day at that work. Two acquaintances of his nationality were working there with him. The three Hungarians quit work with the others at near the noon hour when the foreman called the men from labor to take their midday meal. These men had brought their dinner with them as was their custom when working for the city. Of this the foreman under whom they worked testified:

“If they work at outside work: they have to eat dinner wherever they can. * * * Wherever we were working they ate their dinner on the job, wherever it was; if on the street, grading or shoveling, they ate their dinner right there, unless some man happened to live close to the job; then he went home; most of them brought their dinners,”

—stating, however, that it was optional with them, as they had no instruction from the city in reference to it. The day was cloudy and cold, rendering it disagreeable to eat their dinners out of doors, and when work suspended for the' noon intermission, the three Hungarians took their dinner pail and went to the toolhouse to eat. The toolhouse was used to store tools and equipment relating to the crusher, including oils, pails of grease, wrenches, pliers, blow torches, etc., and on this day there was a small amount of gasoline in a can under a work bench. The building was provided with a telephone and a stove, resting on brick with a sand foundation. During the morning the foreman of the crusher had built a fire in the stove, and when he left for dinner there was a bed of coals in it, which he banked up with sand and ashes. He left the place unlocked, with the lock hanging in the staple. Very shortly after the three men entered the toolhouse there was an explosion and fire, which destroyed the building. In the explosion Haller received burns which caused his death a few days later.

Haller’s two companions, who were not seriously hurt, were the only witnesses to the accident. They both testified that when the three entered the building Haller, who was ahead, seated himself upon a box, and was about to light his pipe when the explosion occurred. One of them, named Kicsak, testified through an interpreter:

“He says he don’t know what really occurred. He was the third man in, and he just came — he came pretty near sitting down when the explosion came and all he saw, the man Mike was trying to' smoke his pipe, and he keeled over. He was the last one, so he didn’t realize really what it was. He said he saw Mike trying to light his pipe.”

On cross-examination:

“Q. Ask him to tell how the fire started.
“A. He don’t know how it happened.
“Q. Ask him if he was in the shanty when the fire took place — when it blazed.
“A. Sure. He says he went in there and saw him light the pipe, and just as soon as he saw the match just that soon he saw the flame.”

The other man, named Popai, also examined through an interpreter, said:

“It was quite cold, and they went in to get their dinner. The other fellow went in first and then this man. They had their dinner in one pail and they boarded at the same place. The other fellow says, ‘I am not going to eat, but I will light my pipe.’ He lit the pipe, and the explosion came.”

On cross-examination:

“Q. Ask him just what he means by an explosion and how it happened?
“A. He says all he knows, the fellow sat down there on a kind of a box or whatever might have been there, and took his pipe in his mouth and lit a match. „ That is the only thing he knows.”

Some slight, but we think incompetent, testimony, was introduced by defendant to the effect that shortly after the fire it was currently reported deceased had thrown a lighted match into a can of gasoline, and that he had endeavored to.throw the contents of the can into the stove; that one or both of these men had so stated to a fellow countryman who interpreted it to the witness; one. item of offered evidence was an anonymous letter written in Hungarian, purporting to tell how the accident occurred.

The two eyewitnesses denied any other facts, or knowledge, of the accident except as above stated, and consistently adhered, on direct and cross-examination, to the few graphic facts related by them as to what occurred. There is no evidence in the record which would warrant the accident board or this court in finding the facts otherwise.

These salient facts stand undisputed: Deceased was in defendant’s employ, working as a common laborer by the day at outside work. He had brought his dinner with him to “eat on the job,” and was there for the day on his employer’s premises within the ambit of his employment. It was customary for the men so employed by defendant, at grading and shoveling, to eat their dinners there, wherever they were, at such a spot as they found most convenient and comfortable for that purpose. The day was cloudy, raw, and windy, and the men were working on an elevation. The tool-house belonged to their employer, was conveniently adjacent, néar the bottom of the rise where they were working, and but 60 or 70 feet away. It offered warmth and shelter from the wind, was accessible, and the men had not been forbidden to go there. No place had been provided or pointed out for them to take their meal. It was a natural and apparently innocent and safe thing for them to seek shelter there to eat their dinner on such i a day. They had received no warning of occult dangers, were violating no rules and disobeying no orders in doing so. Under the shown facts the inference is strong that the accident resulted from an explosion of gas in the building ignited by deceased lighting his pipe. His negligence does not preclude recovery, unless it was wilful and intentional. There is nothing to show that it was, and the inference is that it was not. The fact that.the actual consequences were serious raises no presumption of intentional ..or wilful misconduct, but rather the contrary. He was doing a natural and apparently innocent thing, which a workman while employed may reasonably do, especially at a time of intermission from active work. In. McLauchlan v. Anderson, 1 Scot’s Law Times (1911), 127, where a workman who was injured by falling from a wagon in an attempt to recover his pipe, which he had dropped, was held entitled to compensation because the injury arose out of and in the course of his employment, the court said:

“He was doing a thing which a man while working may reasonably do; a workman of his sort may reasonably smoke, he may reasonably drop his pipe, and he may reasonably pick it up again.”

As directly applied to the noon intermission, it is a long and well-settled rule that the service tie, or contractual relations and obligations between master and servant, is not broken by such suspension of all activities directly beneficial to ijhe employer.

“A workman is considered in the employment of his master during the intermission for the noon hour if he remains upon the premises.” Baldwin on Pers. Injuries (2d Ed.), § 374.

This rule is more fully stated in 8 Thompson on Negligence, § 3752, as follows:

“A servant is deemed in his master’s service whenever present to perform his duties and subject to orders, though at the given moment he may not be actually engaged in the performance of any given work; thus the relation exists during the noon hour where ,the master especially and expressly or by fair implication invites his servant to remain on the premises and lunch in the immediate vicinity of his work.”

Agreeably to that rule, it is generally held under workmen’s compensation laws that, while such relation so continues, an injury to an employee may arise out of and in the course of his employment, although he is not directly engaged in the work of his employment at the time. Von Ette's Case, 223 Mass. 56 (111 N. E. 696, L. R. A. 1916D, 641). In that case the court sustained an award of the industrial accident board to an employee injured by falling from the roof of the building in which he was working, where hie had temporarily gone to get fresh air and relief from the heat below.

The general rule as to injuries during intermissions from labor, especially where the accident occurs on the employer’s premises, is formulated from the decisions as follows in 1 Honnold on Workmen’s Compensation, p. '381:

“Acts of ministration by a servant to himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the workmen’s compensation acts, though they are only indirectly conducive to the purpose of the employment. Consequently no break in the employment is caused by the mere fact that the workman is ministering to his comforts or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure a drink, refreshments, food, or fresh air, or to rest in the shade” (citing numerous sustaining cases).

In Morris v. Lambeth Borough Council, 8 W. C. C. 1 (somewhat analogous in its facts to this case), where a night watchman, who left his station and went to cook and eat his food in a small shanty near by used for storing tools, where workmen sometimes ate in the daytime, and while there cooking a chop, was injured by the shanty falling down, it was held that he had suffered an accidental injury arising out of and in the course of his employment.

In Carinduff v. Gilmore, 7 B. W. C. C. 981, a girl employed on a threshing machine was held not outside of her employment where she had seated herself to partake of refreshments in a position on the opposite side of an opening through which sheaves passed into the machine and was injured while arising.

Counsel cite as controlling precedents in this State Moronen v. McDonnell, 177 Mich. 691 (143 N. W. 8) and Hills v. Blair, 182 Mich. 20 (148 N. W. 243). The Moronen Case was an action for negligence, not under the workmen’s compensation act, and all the common-law defenses of assumption of risk, negligence of a fellow servant, and contributory negligence were open to defendant. During the noon hour blasting was done where the men worked. They were expected to withdraw to a place of safety during that time, and warnings were called whenever blasts were about to be fired. Plaintiff with others had withdrawn to eat their dinner at what they regarded as a safe place and distance. They were at liberty for the noon hour, knew of the dangerous operations in progress at the place they had been working, were free to go where and as far as they pleased. They were not at the place of their employment when plaintiff was injured or on the premises, but some distance away, at a location of their own selection beyond a small hill, sitting beside the highway. The distinguishing facts in the Hills Case are that when injured he was not at the place of his employment, where he usually ate his dinner with his foreman and fellow laborers, but had left that locality and its environments and was on his way home, free to go where and by any route he pleased, in the same position as any other member of the public so traveling, and while thus away on an errand of his own, with a choice between known dangerous and safe routes, he took the dangerous one.

From an examination of cases cited by defendant, and others we have examined in which it has been held that an employee injured on the premises of his employer during the noon hour or other temporary suspension of work was not under the act, we think it manifest that the controlling reason for denying an award in those cases rests upon the proven facts that the employee broke the so-called nexus between workman and employer by some manifestly reckless and unreasonable hazard, amounting to intentional and wilful misconduct, or by disregarding, or disobeying, some warning of danger at the place of injury or prohibition relating to the thing being done, either addressed to the workman or promulgated as a general rule of conduct while on the premises. We think the following two cases, respectively relied upon by the contending parties, illustrate this evident distinction:

In Blovelt v. Sawyer, 6 W. C. C. 16, cited by plaintiff, a bricklayer who was paid according to the number of hours he actually worked, at liberty to remain upon the premises to eat his dinner or not as he saw fit, sat down at the noon hour under the shelter of a wall which he was engaged in building, and, while eating his dinner there, was seriously injured by the wall falling "upon him. It was shown that the workmen employed on this building generally went away for dinner, but there was no absolute rule upon the subject, and they might spend the noon hour there if they wished. The court there said that, even though he was paid by the hour, the intermission for dinner could be regarded “as part of the time allowed for some purpose ancillary to the work to be done, as, for example, eating the necessary food; it would be taking a strained view to say that the pause in the middle of the work for dinner was a break in the employment.” It was accordingly held that he was within the act and entitled to compensation under its provisions.

In Price v. Edward Lloyd, 2 B. W. C. C. 26, cited by defendant, a workman on a night shift went some distance from where he was at work to a pumping station on his employer’s premises and climbed upon a warm tank where he sat to eat his supper. In getting down from the tank he fell through an aperture in it and was scalded, receiving injuries from which he died. It was shown that his employers had provided upon their premises, also some distance from where deceased worked, a well-warmed and well-lighted dining room for their workmen. They were not obliged to eat their meals in this dining room, but it was there for their comfort and convenience. It was shown that the chief engineer and chief stoker were the only persons entitled to deal with this, tank in any way, and that if deceased had been reported for going where he did, he would have been discharged. Differentiating this case from Blovelt v. Sawyer, supra, and Morris v. Lambeth, supra, in holding the accident did not arise out of his employment, it was said in part:

“In our opinion the workman, in needlessly exposing himself to risk, met with an accident which can in no sense be said to have arisen out of his employment. * * * A workman’s employment is not confined to the actual work upon which he is engaged, but extends to those actions which by the terms of his employment he is entitled to take, or where by the terms of his employment he is taking his meals on the employer’s premises. But the employment does not extend to the doing of those things which are unreasonable or which he is expressly forbidden to do. Here the workman was doing what he was forbidden to do by the employers, not expressly, but in the sense that he was doing that which was not allowed. It was a highly dangerous thing to do, and the evidence was that if it were known that a workman had done it, he would have been dismissed.”

The distinction pointed out ,is that the workman went where he knew, or ought to have known, he should not be, and was injured in doing a forbidden and manifestly highly dangerous thing, having of his own choice incurred an evident and unnecessary risk, external to his employment, in a prohibited place.

In the instant case the record is barren of any proof deceased knew that gasoline was in the toolhouse, that it was liable to vaporize and explode, or that the place was in any way dangerous. The building was unlocked and free of access, with no warning signs, was on his employer’s premises invitingly close to where he was working in the inclement weather. As before stated, in seeking shelter there during the noon intermission, he did a reasonable and natural thing under existing conditions, might reasonably light his pipe at such a time, was doing no forbidden thing, incurring no apparent risk, and violating no known rule of his employment. We think there is evidence in the case to sustain the conclusion of the board that he was within, and entitled to compensation under, the act.

Its order is therefore affirmed.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Brooke, and Fellows, JX, concurred.


author: Bird, J.

text:
    LARSON v. FEENEY.
    1. Arrest — Illegal Arrest — Ordinances—Disorderly Conduct.
    It is not disorderly conduct in violation of an ordinance warranting an arrest and imprisonment without a warrant, for a- woman who passes a man on a public street to cough and say to him, “Hello there, kid.”

      2. Same — Other Offenses.
    An arrest and imprisonment without a warrant is not warranted because the plaintiff, in an action to recover damages for illegal arrest and imprisonment without a warrant, is a bad girl, with a jail record, and admitted violations of the same ordinance on other occasions.
    3. Same — Disorderly Conduct — Breach of Ordinance in Presence of Officer.
    Arrest and imprisonment without a warrant are authorized only for offenses committed in the presence of the arresting officer and at the time.

    4. False Imprisonment — Evidence—Plea of Guilty — Admissibility.
    In an action against a police officer to recover damages for illegal arrest and imprisonment without a warrant, evidence of a plea of guilty to the offense charged in a warrant subsequently issued therefor and served, is inadmissible on the question of waiver of liability for such arrest.
    5. Same — Trial—Evidence—Practice.
    In such action, where a record of plaintiff’s conviction and sentence on a warrant subsequently issued for the same offense was excluded, held, that the better practice would have been to admit all documentary evidence relied on in justification and to then rule that no justification had been shown.

      6. Same — Trial—Evidence—Harmless Error.
    The exclusion of the record of plaintiff’s conviction and sentence on a warrant issued for the offense of being a disorderly person, is harmless error where it would have been immaterial if admitted.
    7. Pleading — Amendment—Discretion of Court.
    Where, after trial was well under way, defendant asked leave to amend his plea and notice, which was given upon condition that he pay plaintiff’s taxable costs and the case be passed to the succeeding term, held, that such condition was not unusual or unreasonable, and was no abuse of the court’s discretion.
    8. Trial — Appeal and Error — False Imprisonment — Conduct of Court.
    It was not prejudicial error for the court to interrupt argument of counsel, in an action against a police officer for damages for illegal arrest and imprisonment without a warrant, where the only question was as to the amount of damages and the verdict was for only $33j
    Error to Muskegon; Sullivan, J.
    Submitted October 5, 1916.
    (Docket No. 53.)
    Decided April 9, 1917.
    Case by Matilda Larson against William Feeney for false imprisonment. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Charles B. Cross and Willard J. Turner, for appellant.

      R. R. Gale, for appellee.

      On liability of an officer for making an arrest for breach of a city ordinance, see notes in 51 L. R. A. 193; 48 L. R. A. (N. S.) 69; L. R. A. 1915B, 505.

   Bird, J.

1. The real question involved in the case is whether the trial court was right in controlling the verdict as a matter of law. It appears that plaintiff, in company with her companion, Ruth Durham, was walking upon one of the public streets of Muskegon in the early evening, and as they passed defendant and two men who were talking with him plaintiff coughed and said, “Hello there, kid.” The defendant and his companions then stepped into a cigar store, waited a moment, and came out again, as defendant says, “for the purpose of giving the girls enough rope to see how far they would go with it.” Nothing further was done or said by the girls. Defendant followed them to the post office, where the plaintiff and her girl companion were taken into custody and locked up for the night. In the morning the plaintiff was taken before a justice of the peace, where it is said a complaint was made and sworn to by a stranger to the affair and a warrant issued thereon; that the complaint was explained to her by the justice that she was complained of as being a disorderly person because she solicited men for the purpose of prostitution, and that she pleaded guilty thereto and was fined, but in default of payment thereof she was sent to jail. Defendant seeks to justify his act in making the arrest under the authority of the charter of Muskegon, which confers upon policemen the authority to arrest without warrant any and all persons in the act of committing any offense against the laws of this State or the ordinances of the city. (This authority is challenged by plaintiff’s counsel, but he finally takes the position that if we assume that defendant had the power which he claims, he was not justified in making the arrest without a warrant, because plaintiff committed no act in his presence which would constitute her disorderly under the city ordinances. We are of the opinion that counsel is right in this contention. If plaintiff can be conclusively presumed to be a streetwalker or a soliciting prostitute by coughing and saying, “Hello there, kid,” as she passes certain men on the street, the personal liberty of the citizen of this State has reached a pretty low ebb. As well might defendant have concluded that she was disorderly because she turned up her nose at him, or because she was saucy to him, or because she was silly or bold and said indiscreet things. It is possible for a girl to be bold, silly, and have bad manners on the street and still be immune from arrest without a warrant. And it is evident that the defendant himself had his misgivings whether plaintiff’s conduct was sufficient to justify her arrest, as he suggested to his companions that they step into the cigar store and give the girls more rope to see whether they would carry it any further. Why wait until they carried it further if the cough and the salutation characterized her as disorderly under the ordinances?^

But it is said that the plaintiff is a bad girl and has a jail record, and that she admitted violations of the same ordinance on former occasions. Suppose this were true, that fact did not enlarge defendant’s authority to arrest her without a warrant. Such authority is available only when offenses or violations are committed in the presence of the arresting officer and at the time. Pinkerton v. Verberg, 78 Mich. 573, 580 (44 N. W. 579, 7 L. R. A. 507, 18 Am. St. Rep. 473); Tillman v. Beard, 121 Mich. 475 (80 N. W. 248, 46 L. R. A. 215); Schnider v. Montross, 158 Mich. 263 (122 N. W. 534).

In the first case cited some general observations are indulged with respect- to making arrests without warrant which are apropos here.

“If persons can be restrained of their liberty, and assaulted and imprisoned, under such circumstances, without complaint or warrant, then there is no limit to the power of a police officer. Personal liberty, which is guaranteed to every citizen under our Constitution and laws, consists of the right of locomotion, to go where one pleases, and when, and to do that which may lead to one’s business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places; and, while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens, there, they will be protected under the law, not only in their persons, but in their safe conduct. The Constitution and the laws are framed for the public good, and the protection of all citizens, from the highest to the lowest; and no one may be restrained of his liberty, unless he has transgressed some law. Any law which would place the keeping and safe conduct of another in the hands.of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon the suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees. These are rights which existed long before our Constitution, and we have taken just pride in their maintenance, making them a part of the fundamental law of the land. Whatever the charter and the ordinances of the city of Kalamazoo may provide, no police officer or other conservator of the peace can constitutionally be clothed with such power as was attempted to be exercised here. No disorderly conduct; no breach of the peace, committed in the presence of the officer; no suspicion of felony — and yet, under the charge of the court which counsel seeks to maintain here, a woman may, simply upon suspicion that she may commit an act which at most would only amount to a misdemeanor, be assaulted and imprisoned, if the officer has good reason to believe, and does believe, that she is plying her vocation in such a manner that it will result in an offense.”

'2. Defendant offered to show by the justice that plaintiff pleaded guilty to the offense of being a disorderly person, but the testimony was excluded by the court; Counsel insists this was admissible on the question of waiver, and assigns error thereon. This question appears to have been decided adversely to defendant’s contention in McCullough v. Greenfield, 133 Mich. 463 (95 N. W. 532, 62 L. R. A. 906, 1 Am. & Eng. Ann. Cas. 924), where it was said:

“We think the weight of authority does not favor the conclusion that the liability for the illegal arrest is waived by pleading guilty to the offense charged in the warrant.”

3. Counsel complains because the record of plaintiff’s conviction and sentence was excluded by the court. We think it would have been better practice to have allowed all the documentary evidence upon which defendant relied for justification to have come in for the benefit of the record, and then held as a matter of law that they did not amount to a justification. These matters were held immaterial by the court because they were all made the next morning after plaintiff had been apprehended and served a night in jail. It is quite obvious that, had they been admitted, no use could have been made of them to the jury under the previous ruling of the court.

4. After the trial was well under way defendant asked permission to amend his plea and notice. After some discussion the court granted permission on condition of the payment of the plaintiff’s taxable costs (which were conceded to be $30), and that the case pass until the succeeding term. The defendant refused to comply with the conditions, and assigns error upon the ruling of the court. The conditions imposed were neither unusual, nor unreasonable. We think no abuse of discretion is shown by imposing such conditions at that stage of the case.

Error is assigned upon the action of the trial court in interrupting counsel’s argument to the jury, and also upon the argument of the plaintiff’s counsel. The only harm that could have resulted therefrom was the enhancement of the damages, because that was the only question left to the jury. Inasmuch as the verdict was only $33, we think that we can safely assume that the criticism of the court and argument of counsel were not prejudicial.

. We think this case should be distinguished from the case of Durham v. Feeney, 195 Mich. 318 (162 N. W. 79), because it was shown in that case that Miss Durham made certain admissions prior to her arrest which are held therein to be admissible for the purpose of characterizing acts committed in the presence of the officer.

The judgment of the trial court is affirmed.

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