text:
    McBride v. CLOSSER.
    1. Taxation — Tax Sams — Notice to Redeem — Sufficiency.
    Where a tax title purchaser went into possession without giving a notice to redeem that complied with the provisions of Act No. 229, Pub. Acts 1897 (1 Comp. Laws 1915, § 4138 et seg.), the notice given by him was void and of no effect, and he was a trespasser from the beginning, and therefore not entitled to recover for his improvements.
    2. Same — Equity—Injunction—Ejectment by Owner.
    Said act, being a beneficent one, must be recognized by courts of equity as well as law, and therefore equity will not restrain ejectment brought by the owner.
    3. Same — Frauds, Statute of — Oral Statements of Owner— Estoppel — Waiver.
    Statutory proceedings which divest the owner of his property must substantially comply with the provisions of the statute, and where a tax-title buyer failed to give the statutory notice to' redeem, his title was void, and the defect was not waived by oral statements of the owner that he did not intend to redeem, since the title to real estate does not rest in parol, and is not acquired or lost by casual conversations.

      Appeal from Chippewa; Hart (Bay), J., presiding.
    Submitted October 9, 1919.
    (Docket No. 17.)
    Decided December 23, 1919.
    Bill by James McBride against Dayton W. Closser to enjoin an action of ejectment and to quiet title. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      John W. Shine, for plaintiff.

      Davidson & Hudson, for defendant.
   Fellows, J.

The litigation between these parties concerning the premises here involved was before this court in Closser v. McBride, 182 Mich. 594. That was an action of ejectment brought by Mr. Closser against this plaintiff to recover the possession of these premises. Plaintiff here (defendant there) defended under certain tax proceedings. It was there held by this court, adopting the opinion of the trial judge, that the tax notice was void, that defendant there was but a trespasser and was not entitled to recover for improve^ ments placed on the premises. After the remittitur from this court was filed, application for a second trial was made, which application was refused. In McBride v. Chippewa Circuit Judge, 202 Mich. 61, this court granted a writ of mandamus directed to the circuit judge requiring him to vacate such order, holding that the application for a new trial should have been granted. Subsequently this bill was filed to restrain the further prosecution of such ejectment suit and to quiet plaintiff’s title to the premises. From a decree dismissing the bill on defendant’s motion, plaintiff appeals.

It is here urged that this bill is maintainable upon the theory that plaintiff’s title to the premises may be sustained upon equitable grounds, which equitable grounds are not matters of defense upon the law side of the court in the ejectment suit. These equitable grounds are alleged to be that after plaintiff had received his tax deed from the auditor general, and had given a notice to the then owner of the premises, he endeavored to have such owner redeem from the tax sale; but that he was informed by the owner that the land was not worth the amount of the taxes and that he did not intend to redeem; that relying upon these statements he made certain improvements on the premises ; that the owner was guilty of laches in not paying taxes for a great many years and that his grantee is now estopped from asserting title to the premises in question.

The cases most strenuously relied upon by plaintiff are Olsen v. Williams, 172 Mich. 316, 185 Mich. 294; Rogers v. Davison, 188 Mich. 519. In the Olsen Case, which was before this court on demurrer and later on the merits, the complainant had acquired title to tax homestead lands under the provisions of section 131, Act No. 206, Public Acts of 1893, as amended (1 Comp. Laws 1915, § 4130). He was in possession of the premises under a deed which at least purported to give him a right to possession. The bill was filed to restrain a multiplicity of suits. We held that, under the facts of that case, the defendant was guilty of such laches as precluded him from successfully controverting complainant’s title. In the Rogers Case we held the tax notice was insufficient, that being the only question involved in the case. This court has also held that laches of the owner may preclude him from appealing to a court of equity for relief from irregular tax proceedings: Beuthien v. Dillon, 160 Mich. 396; Clothier v. Miller, 173 Mich. 530; Owens v. Auditor General, 147 Mich. 683. In each of these cases the owner sought by bill in equity to set aside and vacate decrees entered many years before in tax proceedings; laches was held to preclude such relief. But in the instant case the plaintiff went into possession without giving a notice that complied with the provisions of Act No. 229, Public Acts of 1897 (1 Comp. Laws 1915, § 4188 et seq.) ,* the notice given by him was void and of no effect. It was the same as though no notice was given. He was a trespasser from the beginning. The beneficent purpose of this act is well known to all. The act must be recognized as well by courts of equity as courts of law. A complete answer to the plaintiff’s contention is found in the language of Chief Justice Grant, speaking for the court, in the case of G. F. Sanborn Co. v. Alston, 153 Mich. 456, where the same act was under consideration, and the same contention was made. We said:

“The act of 1897 was not designed to assist only those who had been diligent and-free from fault. The failure to pay taxes is, in most cases, the result of negligence and involves laches. The statute covers all cases where the purchaser has acquired the tax title at the public sales or by purchase of the title acquired by the State. It was regarded as sufficient punishment to the original owner and sufficient compensation to the tax purchaser to require the owner to pay double the amount which the purchaser paid and certain other items. To sustain this contention on behalf of the defendants would result in rendering the act of 1897 inapplicable to a great majority of tax titles. It may well be conceded that the complainant in this case, which stands in the shoes of the original owners, does not deserve any consideration in a forum of equity. Courts of equity, however, as well as of law, must apply legislative enactments in accordance with the plain intent and language used by the legislature. The requirements of the act are not difficult to understand, and compliance therewith is easy. He who relies upon the notices required by the statute must show a substantial compliance therewith, regardless of any fault or laches of the original owner.”

All the precedent tax proceedings may be regular and valid, but title in fee does not ripen, or right of possession accrue until there has been a substantial compliance with the provisions of this act. Statutory proceedings which divest the owner of his property must substantially comply with the provisions of the statute, and as title to real estate does not rest in parol, it is not acquired or lost by casual conversations.

Nor are we persuaded that plaintiff is entitled to recover the value of his improvements. He entered the premises without complying with the act in question. Under such circumstances he is a trespasser and is not entitled to recover for his improvements. Corrigan v. Hinkley, 125 Mich. 125; Cook Land, etc., Co. v. McDonald, 155 Mich. 175; Closser v. McBride, supra. In Cook Land, etc., Co. v. McDonald, supra, this court said:

“The defendant is not entitled to recover for his improvements. Under Corrigan v. Hinkley, supra, he was a trespasser, and was presumed to know the law. The very terms of his deed gave him notice that it was subject to the provisions of that act. He acted in direct violation of its terms, and must be content with what benefits he has obtained from the land during his occupancy. We in that case distinctly held that one entering into possession in contravention of the act could not recover for improvements.”

It follows from what we have said that the decree appealed from must be affirmed. Defendant will recover costs of this court.

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


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    PEACOCK v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Railroads — Not Liable for Negltgence of Lessee.
    A railroad company which, has leased its property to another is not liable for the negligent acts of such other.
    2. Same — Operation by Government — Relation of Lessor and Lessee.
    During the control of the railroads as a war measure by the United States government by a director general (39 U. S. Stat. p. 645, 40 U. S. Stat. p. 1733, 40 U. S. Stat. p. 451 et seq.) the relations between a railroad and the government were either technically those of lessor and lessee or analogous thereto.
    3. Pleading — Defenses—Affirmative Defenses.
    In an action against a railroad company in charge of the director general for damage to property by fire, the defense that the railroad company had committed no negligent act, and that any negligent acts proven were the negligent acts of the agents of the director general was not an affirmative defense under section 2 of Circuit Court Rule No. 23, nor would such defense be likely to take plaintiff by surprise.
    4. Evidence — Judicial Notice of Acts of Congress.
    The courts of this State take judicial notice of the acts of Congress, and the proclamations of the President.
    5. Appeal and Error — Amendment of Pleading — Substituting Director General for Railroad Company on Error.
    Where the director general of railroads, by general order, ordered that all actions at law for loss and damage to property arising under government control should be brought against the director general, and also gave his consent to amendments substituting the director general for the railroad company, and dismissing the company from the action, he cannot be heard to complain if the Supreme Court, under the broad power conferred by fhe statute of amendments (3 Comp. Laws 1915, § 12478) permits such amendment in this court, and affirms the judgment in favor of plaintiff; there being no defense upon the merits.
    On liability of railroad company for injuries caused by another company using road under lease, license or other contract, see note in L. R. A. 1918E, 260.

      Error to Shiawassee; Collins (Joseph H.), J.
    Submitted October 24, 1919.
    (Docket No. 18.)
    Decided December 23, 1919.
    Case by Carrie E. Peacock, administratrix of the estate of Frank Peacock, deceased, and personally against the Detroit, Grand Haven & Milwaukee Railway Company for damage to fruit trees by fire. Judgment for plaintiff. Defendant brings error.
    Order entered substituting the director general of railroads for defendant railway, and judgment affirmed.

      Harrison Geer (W. K. Williams, of counsel), for appellant.

      Miner & Miner, for appellees.
   Fellows, J.

By the act of August 29, 1916, entitled: “An act making appropriations for the support of the army for. the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes,” the congress of the United States, among other things, enacted (39 U. S. Stat. p. 645) :

“The President, in time of war, is empowered, through the secretary of war, to take possession and assume control of any system or systems of transportation, or any part thereof, and to utilize the same, to the exclusion as far as may be necessary of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency as may be needful or desirable.”

On December 26, 1917, this country was at war with Germany and with Austria. On that date the President issued a proclamation (40 U. S. Stat. p. 1733). It is not necessary to quote it in full; but in it the President did—

“Take possession and assume control at 12 o’clock noon, on the 28th day of December, 1917, of each and every system of transportation and the appurtenances thereof, located wholly or in part within the boundaries of the continental United States and consisting of railroads and owned or controlled systems of coast-wise and inland transportation engaged in general transportation, whether operated by steam or by electric power.” * * *

And by the proclamation the President directed that the possession, control, operation and utilization of such transportation systems should be exercised by and through William G. McAdoo therein appointed and designated as “director general of railroads”; and such director general of railroads was authorized to control and operate such systems through the officers and employees thereof.

On March 21, 1918, the congress by an act entitled “An act to provide for the operation of transportation systems while under Federal control, for just compensation of the owners, and for other purposes” (40 U. S. Stat. p. 451 et seq.), after reciting that the President had in time of war taken possession, use, control and operation of the transportation systems, made quite comprehensive provisions with reference to such Federal control. So far as important here, the act provided for the execution of agreements for compensation to the owners while under Federal control, provided for control and compensation in the absence of agreements, declared the money and property derived from operating the systems to be the property of the United States, appropriated the sum of $500,000,000 for a revolving fund for the purpose of paying the expenses of Federal control. Among the provisions in section 10 of the act is the following:

“Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; ana m any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal government. * * * But no process, mesne or final, shall be levied against any property under such Federal control.”

Considering the Federal control over the transportation systems of the country, the Supreme Court of the United States speaking through the Chief Justice in the case of Northern Pacific R. Co. v. North Dakota, 250 U. S. 135 (39 Sup. Ct. Rep. 502), said:

“No elaboration could make clearer than do the act of congress of 1916, the proclamation of the President exerting the powers given, and the act of 1918, dealing with the situation created by the exercise of such authority, that no divided but a complete possession and control were given the United States for all purposes as to the railroads in question. But if it be conceded that, despite the absolute clarity of the provisions concerning the control given the United States, and the all-embracing scope of that control, there is room for some doubt, the consideration of the general context completely dispels hesitancy. How can any other conclusion be reached if consideration be given the comprehensive provisions concerning the administration by the United States of the property which it was authorized to take, the financial obligations under which it came, and all the other duties and exactions which the act imposed, contemplating one control, one administration, one power for the accomplishment of the one purpose, the complete possession by governmental authority to replace for the period provided the private ownership theretofore existing?”

On October 28, 1918, the then director general of railroads promulgated what is known as “General Order No. 50.” In it we find the following:

“It is therefore ordered, ■ that actions at law, suits in equity, and proceedings in admiralty hereafter brought in any court, based on contract, binding upon the director general of railroads, claim for death or injury to person, or for loss and damage to property arising since December 31, 1917, and growing out of the possession, use, control or operation of any railroad or system of transportation by the director general of railroads, which action, suit, or proceeding but for Federal control might have been brought against the carrier company, shall be brought against William G. McAdoo, director general of railroads, and not otherwise; * * *
“The pleadings in all such actions at law, suits in equity, or proceedings in admiralty, now pending against any carrier company for a cause of action arising since December 31, 1917, based upon a cause of action arising from or out of the operation of any railroad or other carrier, may on application be amended by substituting the director general of railroads for the carrier company as party defendant and dismissing the company therefrom.”

The plaintiffs own land adjoining the right of way of the Detroit, Grand Havén & Milwaukee Railway Company. Upon this land they had a considerable number of fruit trees. On March 22, 1918, and while said railroad property was under Federal control, sparks from a passing locomotive set fire to the grass either on the right of way or on plaintiffs’ land; the fire spread, killing a large number of fruit trees and damaging others. On June 1st, this action was commenced by declaration against the railway company to recover for such damages. To the declaration the defendant pleaded the general issue. At the opening of the trial counsel for the defendant offered that the proceedings might be amended by making the director general of railroads defendant, stating that he would not ask for a continuance if the amendment was made, but did object to proceeding further against the railway company, and insisted that the wrong defendant was named. By appropriate motions and requests the objection to a recovery against the railway company was properly raised. Considering the act itself, what is disclosed by this record, and what occurred at the argument, it substantially appears that the attorney who tried the case was the attorney for both the railway company and the director general of railroads. No claim is made that the service of the declaration was defective or that it was not made on the proper agent of the director general of railroads. The objections made were overruled and the case proceeded as instituted, resulting in a verdict and judgment against the railway company.

The arguments revolve around the construction and validity of the act of congress. On the part of the plaintiff, it is urged that the term “such carriers” found in section 10 of the act of March 21, 1918, has reference to the corporation owning the railroad, while defendant’s counsel insists that it has reference to the director general of railroads. The statute has been considered by several courts, and a comparison of the decisions, and the various constructions urged as the proper one are of interest. Among the cases are Johnson v. McAdoo, 257 Fed. 757; Jensen v. Railroad Co., 255 Fed. 795; Postal Telegraph-Cable Co. v. Call (C. C. A.), 255 Fed. 850; Bryant v. Pullman Co., 188 App. Div. 311 (177 N. Y. Supp. 488); McGregor v. Railway Co. (N. Dak.), 172 N. W. 841; Lavalle v. Railway Co. (Minn.), 172 N. W. 918; Gowan v. McAdoo (Minn.), 173 N. W. 440; Rutherford v. Railroad Co., 254 Fed. 880; Schumacher v. Railroad Co., 175 N. Y. Supp. 84; Hatcher & Snyder v. Railway Co., 258 Fed. 952; Mardis v. Hines, 258 Fed. 945; Castle v. Railway Co. (S. C.), 99 S. E. 846; Vaughn v. State (Ala. App.), 81 South. 417; Haubert v. Railroad Co., 259 Fed. 361. Other constructions than those suggested by counsel in the instant case have been suggested or may be indulged in. It is possible that congress thought to preserve to persons having causes of action antedating government control the right to proceed against the corporation during government control, or to expressly preserve the right to proceed against the corporation for its own acts which occurred or accrued during government control, and at the same time preserve the railroad property from seizure or process. But in the disposition we propose to make of the case, we find it unnecessary to devote time or space to a consideration or discussion of the legislative intent.

Whatever the holding elsewhere, it is the settled law of this jurisdiction that a railroad company which has leased its property to another is not liable for the negligent acts of such other, that the recovery should be had against the company by whose negligent acts the damage was done. Ackerman v. Railroad Co., 143 Mich. 58 (8 Ann. Cas. 118). While this record does not disclose whether or not a lease was entered into between the company and the government, it is unimportant so far as the rights of the parties to this litigation are concerned. By the act of congress compensation was to be paid by the government to the railroad company whether a lease was executed or not. The relations were either technically those of lessor and lessee or analogous thereto.

The defense of the railroad company that it had committed no negligent act resulting in damage to the plaintiff, that any negligent acts proven were the negligent acts of the agents of the director general of railroads, was not an affirmative defense under section 2 of Circuit Court Rule No. 23, nor would such defense be likely to take the plaintiff by surprise. The courts of this State take judicial notice of the acts of congress. McMorran Milling Co. v. C. H. Little Co., 201 Mich. 301; and of the proclamations of the President. Jenkins v. Collard, 145 U. S. 546 (12 Sup. Ct. Rep. 868).

But the director general of railroads by General Order No. 50 has ordered that “actions at law * * * for loss and damage to property arising since December 31,1917, * * * shall be brought against William G. McAdoo, director general of railroads, and not otherwise,” and by the same order has given his consent to amendments substituting the director general for the company and dismissing the railroad company from the action. We do not determine the validity or the propriety of an administrative order directing the method of procedure in the courts of the various States. What we do determine is that the director general of railroads cannot be heard to complain if this court, under the broad power conferred upon it by the statute of amendments, permits such amendment here. It is not pointed out that any defense was, or is, available to the director general of railroads upon the merits that was not permitted in the trial court. Indeed, there appears to have been no defense made on the question of negligence; that the locomotive set the fire resulting in the destruction of some of plaintiffs’ fruit trees appears not to have been disputed; the amount of such damage was in dispute. The case was tried by the attorney for the director general of railroads; when the trial began he suggested that the amendments be then made as provided by General Order No. 50, and stated that it might be made without a continuance. Section 12478, 3 Comp. Laws 1915, provides:

“The court in which any action or proceeding shall be pending, shall have power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before, judgment or decree rendered therein. The court at every stage of the action or proceeding sba.ll disregard any error or defect in the proceedings, which do not affect the substantial rights of the parties.”

An order will be here entered substituting the director general of railroads for the railway company and dismissing the case as to the railway company. Upon the entry of such order the judgment will be affirmed. The railway company will recover its costs to be taxed.'

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


text:
    WILSON v. DETROIT UNITED RAILWAY.
    1. Damages — Personal Injuries — Permanent Injuries — Rendering Plaintiff Incapable of Earning^-Excessive Verdict.
    Where plaintiff, 39 years of age, earning $91 a month at the time of the injury sued on, was rendered permanently unfit as a wage earner, and the evidence shows that between the time of the injury and the trial he had lost $2,500 in earnings and that he had suffered greatly during this period, it cannot be said that a verdict for $6,000 is so grossly excessive that of itself it shows prejudice, passion, or partiality on the part of the jury.

      2. Appeal and Error — Excessive Verdict.
    The Supreme Court may not, on error, set aside a verdict as excessive by substituting its judgment for that of the jury.
    3. Trial — Conduct of Counsel — Evidence—Harmless Error.
    Where plaintiff’s counsel asked him if he had any children, stating that the question was asked in view of defendant’s claim that he had chronic venereal disease, and the court declined to receive the answer, held, not error, where there is nothing to indicate that counsel did not act in good faith, and the fact that plaintiff had children had already been testified to without objection.

      On excessiveness of verdicts in actions for personal injuries other than death generally, see comprehensive note in L. R. A. 1915F, 30.

      4. Same — Instructions—Question for Jury.
    Where clinical reports of a hospital giving certain data of plaintiff’s physical condition were received in evidence, and the person making such entries was not called as a witness, but the senior surgeon who signed them testified that while some of the facts stated therein were within his personal knowledge, others were not, and on cross-examination stated that “clinical records are not infallible by a long ways; they are frequently wrong, I will say," and many of the facts found in said reports were denied by plaintiff, the trial court was not in error in instructing the jury: “As to these hospital records, they have been received in evidence in this case. Their probative effect, that is, how much of them you believe, or how much of them you disbelieve, is left solely as a question for your determination.”
    Error to Wayne; Hunt (Ormond F.), J. Submitted
    October 10, 1919.
    (Docket No. 29.)
    Decided December 23, 1919.
    Case by Walter Wilson against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.

    Affirmed.

      Corliss, Leete & Moody and A. B. Hall, for appellant.

      Wurzer & Wurzer, for appellee.
   Fellows, J.

Plaintiff brings this action to recover-damages for personal injuries received in a collision between the car in which he was a passenger and another street car in the city of Detroit. He had verdict and judgment for $6,000. Liability of defendant and absence of contributory negligence of plaintiff are not denied. The principal contention of defendant is that the trial judge was in error in refusing a new trial sought on the ground that the verdict is excessive. The accident occurred October 21, 1916. Plaintiff was then 39 years old. For a number of years he had been mate on the boat “Anona” owned by Mrs. T. D. Buhl. About nine months before the accident he left that position and went to work in a building owned by Mrs. Buhl where he ran the elevator and did some janitor work. He was earning at the time of the accident $91 per month. He had received a fall while at work on the boat and defendant claims the injuries then received, together with other physical ailments, necessitated his retirement from that service and caused his present condition; that'he was given light employment by Mrs. Buhl, but that he then had a tubercular knee which rendered him unfit for hard labor, and that plaintiff’s present condition is but the result of a progressive disease for which it is not liable; that prior to the street car accident plaintiff was obliged to use crutches and had them with him when injured. Plaintiff, on the other hand, insists that neither the fall nor his physical condition caused the change of work; that, while he was afflicted at times with rheumatism and on occasion used his crutches, he was able to work; that the street car accident caused his present condition and particular stress was made that the accident aggravated and accelerated any diseased condition then existing.

A careful examination of this record convinces us that the overwhelming weight of the evidence establishes that plaintiff had a tubercular knee at the time of the accident and had been treated for it at different times; that the disease is a progressive one, which might be retarded for a number of years, but which sooner or later was liable to develop with serious results and was not curable. The undisputed testimony shows that at the time plaintiff was examined by the physicians he had a hernia, undoubtedly of some years standing; .such examination also disclosed that there had been three incisions, in the scrotum. Hospital records offered by defendant tended to show that he had at one time been afflicted with gonorrhea which defendant claimed was chronic. The testimony of the tenants in the building where plaintiff worked is quite convincing that he was able to do his work up' to the time of the accident. The testimony tends strongly to establish that after the accident the tubercular condition developed, the hip bone became involved, the muscles atrophied, the joints ankylosed; his weight decreased from about 140 pounds to 111 pounds; that he suffered much pain, his disability is permanent, and that he is wholly unfit to further perform manual labor.

The testimony shows that there were some immediate effects of the accident, the plaintiff was rendered unconscious, was taken to a hospital where he remained some seven weeks, his knee was put in a cast and weights were applied to his limb; but in the main the aggravation of existing conditions was most strongly pressed and the verdict no doubt is largely based on that feature of the case.

May we say upon this state of facts that the trial judge who heard all the testimony, saw the plaintiff, and was in much more advantageous position to pass upon the question, erred in holding that the verdict was not so excessive for the injuries resulting from this accident as to warrant the granting of a new trial on this ground? While the testimony is convincing to us that the plaintiff had been treated for tuberculosis of the knee prior to the accident, there was reliable testimony given upon the trial that it was of a “slow type,” “latent,” that plaintiff had “a little tuberculosis which possibly would never have bothered him,” and that an injury “would wake up the tuberculosis,” cause it to develop and spread to the hip, and produce the condition the testimony disclosed plaintiff was in at the time of the trial.

If this plaintiff at the time of the accident, notwithstanding his physical condition, was able to discharge the duties connected with his employment and earn $91 per month, and by reason of the accident has been rendered permanently unfit to longer continue as a wage earner, and a latent or slow case of tuberculosis r#as caused to be developed into an active one, thus shortening his life and depriving him during the remainder thereof of his earning power, ’then plaintiff was entitled upon this record to a verdict in some amount. There was sufficient evidence in the case to warrant the jury in finding such to be the situation and to award him a verdict. May this court say, having due regard for the functions of the jury, that the amount awarded was so excessive as to require its vacation? The trial occurred upwards of two years and three months after the accident. Plaintiff’s earnings during the period intervening at his then wage would have approximated $2,500. He had suffered greatly during this period, and it cannot be doubted upon this record that his ability to work is at an end. In the recent case of Fishleigh v. Railway, 205 Mich. 145, we fully discussed the question of excessive verdicts, and, therefore, need not go over the ground again. The functions of the jury, the trial judge and the appellate court are well understood. We have searched this record in vain to find appeals to prejudice, passion or partiality that would justify us in saying that the verdict was the result of anything other than the evidence in the case; nor can we say that the verdict is so grossly excessive that of itself it shows prejudice, passion or partiality on the part of the jury. We could only set this verdict aside by substituting our judgment for that of the jury. This, under the repeated decisions of this court, we may not do.

We have examined the other errors assigned and are unable to discover reversible error in any of them. But two of them will be considered. Plaintiff was asked by his counsel the question, “Have you any children?” This was objected to and plaintiff’s counsel stated in substance that it was asked in view of the claim of defendant that plaintiff had a chronic venereal disease; that he desired to show that plaintiff had children. The court declined to receive the testimony. The incident is assigned as error, and McKormick v. City of West Bay City, 110 Mich. 265; Rickabus v. Gott, 51 Mich. 227; Phillips v. Benevolent Society, 120 Mich. 142, and Martin v. Fisher, 143 Mich. 462, are cited. There is nothing in this record indicating that plaintiff’s counsel did not act in good faith in asking the question and in stating the purpose for which he asked it; but beyond that it had already appeared from the testimony of plaintiff’s fa,mily physician without objection that plaintiff had children.

Defendant introduced several clinical reports of the Marine Hospital giving a record, history, treatment, and other data of plaintiff’s physical condition at times before and after the accident. The plaintiff denied many of the facts found in these reports, including in his denial the fact of treatment at the hospital at the times stated before the accident. The person who made the entries in these reports was not called as a witness but the senior surgeon, who signed them, was. While some of the facts stated in the reports were within his personal knowledge, others were not. In answer to a question asked on cross-examination, he stated:

“Clinical records are not infallible by a long ways; they are frequently wrong, I will say.”

The trial judge in his charge to the jury said:

“As to those hospital records, they have been received in evidence in this case. Their probative effect, that is, how much of them you believe, or how much of them you disbelieve, is left solely as a question for your determination.”

This is assigned as error. We think in view of the testimony above quoted this instruction was justified.

Finding no reversible error, the judgment is affirmed.

Bird, C. J., and Sharpe, Moore, Steeke, Brooke, Stone, and Kuhn, JJ., concurred.


text:
    O’CONNOR v. SCALLEN. UNION TRUST CO. v. O’CONNOR.
    Joint Adventures — Evidence—Sufficiency.
    Where plaintiff real estate employee had obtained an option on. 30 acres of land in his own name, and, being unable to finance same, sold a one-half interest to his employer, who negotiated a sale thereof to a real estate company and was by it appointed a sales manager, plaintiff’s claim against his former employer that he was to receive a share of the profits realized as commissions on sales, held, not sustained by a preponderance of the evidence.
    Appeal from Wayne; Dingeman (Harry J.), J.
    Submitted October 21, 1919.
    (Docket No. 87.)
    Decided December 23, 1919.
    Bill by A. Louis O’Connor against John P. Scallen, executor of the last will of John A. O’Brien, deceased, and others for an accounting. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Oxtoby & Wilkinson and McKee Robinson, for plaintiff.

      McNamara & Scallen and Fred, Dye, for defendant estate.
   Fellows, J.

By a stipulation filed in this court since the record was printed and filed, we are advised that the matters involved in the various appeals other than the one having reference to the disposition to be made of the controversy between the plaintiff, Mr. O’Connor, and the O’Brien estate have been adjusted and need not be considered by this court. Only such facts, therefore, need be stated as bear upon this branch of the case, and our discussion and consideration of this controversy alone will dispose of the case. Mr. O’Brien died after decree in the court below and the suit'was revived in the name of the executor of his estate.

In' April, 1915, and for some two or three years prior thereto the plaintiff, Mr. O’Connor, was in the employ of John A. O’Brien, a real estate dealer of the city of Detroit, who specialized in acting as general agent of subdivision properties. In that month plaintiff obtained from one Wandke and wife in his own name and by payment of $200 of his own money an option to purchase 30 acres of land located near Detroit and available for platting purposes. The purchase price was $30,000; $9,800 was to be paid by-October 1,1915, and the balance in deferred payments. It is the claim of the plaintiff that he had decided to quit Mr. O’Brien’s employ; that he obtained this option and had an .opportunity to become associated with another dealer, also having an option on unplatted property; that he informed Mr. O’Brien of his intention to leave and of his option, and as a result of some talk, it was agreed between them that Mr. O’Brien should pay him one-half the amount he had invested in the option; that the option should be disposed of to a real estate company in which Mr. O’Brien was interested or to a new company to be organized; that they should each raise their proportionate share of the money to make the first payment; that each was to receive one-half of what it was sold for; that a sales contract should be procured from the company taking the option with Mr. O’Brien to put the property on the market; that the commission on the sales, after paying expenses, was to be divided, one-third to Mr. O’Connor and two-thirds to Mr. O’Brien; he insists that these agreements of Mr. O’Brien were a part of the consideration for the transfer of the option; that he has fulfilled all of the obligations he was to perform and is entitled to an accounting. Mr. O’Brien denied that any such arrangement was made. He testified that Mr. O’Connor and he had talked about Mr. O’Connor getting the option before it was secured; that when Mr. O’Connor had obtained it he was without means or financial connections sufficient to make the payment of $10,000, and could not float the enterprise; that Mr. O’Connor never intimated that he was going to leave his employ and handle the option himself, but did ask him to come in on it, and that he made an outright purchase of a one-half interest in the option for $100 and he exhibits a receipt signed by Mr. O’Connor for this amount reciting that it is “payment in full for one-half interest (undivided) on option held by me on Wandke piece of 30 acres, Hamtramck.” He also exhibits the check given for the payment. It should be stated that the receipt and the check are the only written evidence of the dealings of the parties.

Mr. O’Brien was largely interested in, and the president of, the defendant O’Brien-Dores Development Company. Mr. O’Connor had a small amount of stock in the company and was its secretary. This company had been the owner of, and had put several subdivisions on the market. In each instance, Mr. O’Brien had acted as its sales agent in disposing of the lots. The option on the Wandke property was sold to the O’Brien-Dores Development Company for $15,000 of its stock. The directors’ meeting at which the option was purchased was held June 8th. The option had been assigned to one Lawton, a friend of Mr. O’Con-nor, and the same was purchased by the company from him and the stock issued to him. He, in turn, surrendered his certificate and $7,500 of the stock was issued to O’Connor and a like amount to O’Brien. At the same meeting a sales contract was authorized with O’Brien. Both O’Connor and O’Brien voted to purchase the option from Lawton, but O’Brien did not vote on the question of the sales contract. On August 9th the board of directors of the company authorized the borrowing of $10,000 to make the first payment on the Wandke property and the payment of a bonus if necessary to secure the loan. Both parties seem to have voted for this action. The property was put on the market as the Fordham subdivision. Mr. O’Brien employed a Mr. Harrison as sales manager to handle the subdivision. The lots were all sold. Shortly thereafter, and in March, 1916, both Mr. O’Connor and Mr. Harrison left the employ of Mr. O’Brien and formed a partnership. February 2, 1917, this bill was filed. From a decree dismissing it on the merits after a hearing this appeal was taken.

We agree with the result reached by the trial judge and will proceed to state some of the reasons which impel us to this conclusion. What the agreement was between the parties was known only to these two men. As to what it was we have the testimony of the one against the testimony of the other. Defendant insists that there was nothing beyond the purchase of a half interest in the option; that the payment of $100 was all the consideration agreed upon. Plaintiff insists that there were further considerations. The receipt, executed nearly two years before this case was started, recites that the hundred dollars was “payment in full for one-half interest” in the Wandke option. While a receipt may not be conclusive upon the parties as a matter of law, in the instant case it is quite persuasive of defendant’s claim. Beyond this is the situation of the parties. Plaintiff had an option to purchase this property, for which he had paid $200, but he was required to pay the balance of the down payment of $10,-000 ($9,800) in a few months; unless that payment was made the option would expire and be valueless. He was not in position to make the payment; defendant through his connections was. The stock of the O’Brien-Dores Development Company was then worth par and was at the time of the trial worth much more. Mr. O’Brien’s check to plaintiff for the hundred dollars, which he claims was the full consideration for the half interest in the option, is dated June 5th. Three days later, plaintiff and Mr. O’Brien received stock of the value of $15,000 for the option, $7,500 of which went to Mr. O’Connor. It seems to us quite doubtful that this employee, with the immediate prospect of $7,500 for his hundred-dollar investment, haggled with his employer for a greater profit.

Mr. O’Brien was the president of the O’Brien-Dores Development Company, and the holder of a substantial amount of its stock. He had been sales agent for all the subdivisions the company had put on the market. There is nothing in the record intimating that the company was dissatisfied with his past services. When the matter of selecting a sales agent came up at the directors’ meeting he left the room. Plaintiff claims that Mr. O’Brien left the matter of making this arrangement in his hands. Mr. O’Brien denies this. It should be stated at this point that we have been particularly struck, in reading plaintiff’s testimony, with the marked magnifying of the effect of his efforts and the marked minimizing of the effect of the efforts of others in making a success of each detail in working out this transaction. It is plaintiff’s claim that at this directors’ meeting he succeeded in overcoming objections of other directors and succeeded in securing a sales contract that was more advantageous to Mr. O’Brien than to the company, and he urges that this is evidence that he had a personal interest in the sales contract with Mr. O’Brien, and that his action, while sitting on the board of directors of this corporation, was to further that personal interest. What we may think of this claim viewed in the light of public policy is unimportant, but it gives us a sidelight on plaintiff’s mental processes and his moral viewpoint that has been quite helpful in reaching a conclusion in this case as to where the truth rests.

It is alleged in the bill that a part of the arrangement between plaintiff and Mr. O’Brien was that they were each to raise one-half of the funds necessary to finance the transaction and that plaintiff, to carry out his part of the bargain, sold sufficient stock to cover his half but that O’Brien took the proceeds of such sales and used his own stock instead of treasury stock in filling the sales. The answer denies this arrangement. Mr. O’Brien says he sold some of his stock, that the sales were made by one Holz to whom he paid a commission. It is claimed by plaintiff that he raised his half of the necessary funds by these sales of stock, but that by reason of O’Brien’s substituting his stock for company stock, and O’Brien’s failure to sell enough stock to make up his share the company was obliged to borrow money and pay a large bonus. But the record discloses that the arrangement for borrowing the money and paying the bonus was made at a meeting of the board of directors at which plaintiff was present on August 9th, while all of the stock that was sold except seven shares was sold after that date and some of it months afterwards, and plaintiff admitted in his testimony that most of the sales were made by Mr. Holz, although he claims to have assisted. Nor was there introduced in evidence the record of any meeting of the directors of the company authorizing the issuance of any treasury stock except that issued for the option.

We are not persuaded that Mr. O’Brien’s affidavit filed in other litigation, when properly analyzed, stamps him, as plaintiff claims, as a man unworthy of belief. His testimony in the instant case was taken by deposition shortly before he left for France where he met his death. A reading of his testimony shows a straightforwardness in his answers and convinces one of his truthfulness. f

We cannot without making this opinion unnecessarily prolix point out further circumstances detailed in the record which, together with those here detailed, convince us that the plaintiff has failed to establish the claim he now asserts by a preponderance of the proof. We have read this record with care. From it we conclude that plaintiff has not sustained the burden cast upon him by the law to establish his case by evidence and circumstances which outweigh the evidence and circumstances against it. In this conclusion, we are fortified by the fact that the trial judge, who heard the testimony and who saw the plaintiff upon the stand, reached the same conclusion.

The decree of the court below will be affirmed, with costs to the appellee.

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


text:
    ANDERSON v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO.
    1. Commerce — Interstate Commerce — Administrative Questions —Jurisdiction of Courts.
    Under the act of congress of February 4, 1887, creating the interstate commerce commission, and amendments (24 U. S. Stat. p. 379 et seq.), where questions in interstate commerce arising between shipper and carrier are administrative in character, unless they are first submitted to the interstate commerce commission the courts are without jurisdiction to afford relief.
    2. Same — Damages for Failure to Furnish Cars — Jurisdiction of State Courts.
    The question of a railroad’s failure to furnish a shipper with sufficient cars for interstate shipments was not one of an administrative character, requiring submission of same to the interstate commerce commission before beginning action therefor in the State court; the Hepburn act amending the interstate commerce act (34 U. S. Stat. p. 584), requiring the carrier to furnish sufficient cars, being but declaratory of the common law.
    3. Same — Unjust Discrimination — Rule of Carrier — Jurisdiction of State Courts.
    In an action for failure to furnish sufficient cars for interstate shipments, where unjust discrimination is alleged, if such distribution has been made pursuant to a rule of the carrier and in conformity with it, the shipper must first proceed before the interstate commerce commission to establish the discriminatory character of the rule; hut if the discrimination was caused by a breach of the rule and resulted from its nonobservance, then the State courts have immediate jurisdiction.
    4. Carriers — Failure to Furnish Sufficient Cars — Evidence— Sufficiency.
    In an action against a carrier for failure to furnish sufficient cars to meet plaintiff’s normal demands, testimony held, to make a case for plaintiff.

      5. Same — Doty to Furnish Cabs Not Measured by Sudden Demand.
    If the great demand to furnish cars was sudden, and one the carrier would have no reason to apprehend, and it could not have been reasonably expected, the individual shipper could not insist as an absolute right upon having his requisitions filled.

    6. Same — Distribution of Cars — Discrimination.
    In case of car shortage it is the duty of the carrier to allot the cars so as to prevent unjust discrimination.
    7. Same — Method of Distribution — Adoption of Ruin.
    Leaving the distribution of cars, in case of a shortage, to the discretion of ar officer of the carrier company would not be the adoption of a rule, but if such officer provided a rule of distribution, the rule would be the rule of the company.
    8. Same — Adoption of Ruin — Evidence—Sufficiency.
    Evidence, held, sufficient to justify the conclusion by the jury that a rule for the distribution of cars was adopted by the carrier.
    9. Same — Unjust Discrimination — Question for Jury.
    Evidence that plaintiff was unjustly discriminated against in the nonenforcement of the rule, held, sufficient to raise a question for the jury.
    10. Same — Trial—Discrimination—Instructions.
    The trial judge was in error in instructing the jury that plaintiff could recover if there was discrimination in fact, taking no account of the question of the adoption of a rule.
    11. Same — Doty to Furnish Cars for Seasonal Commodities.
    A carrier’s duty to furnish sufficient cars to meet the normal demand of the trade is not to be estimated by the number of ears needed when the normal demand is least, but by the number when the normal demand is heaviest, in respect to a seasonal commodity, such as logs.
    12. Same — Doty to Anticipate Seasonal Demands.
    The carrier is bound to know that at certain seasons of the year there will be movements of certain seasonal commodities, and is bound to anticipate and provide for such demand.

      Error to Ontonagon; Driscoll (George Q.), J.
    Submitted October 29, 1919.
    (Docket No. 25.)
    Decided December 23, 1919.
    Rehearing denied April 10, 1920.
    Case by Robert E. Anderson against the Chicago, Milwaukee & St. Paul Railway Company for failure to furnish cars for the transportation of logs. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Leigh C. Caswell and Arthur H. Brown (J. N. Davis, of counsel), for appellant.

      Van Slyck & Walsh, for appellee.

      On the question of duty of carrier to furnish cars to shipper, see notes in 8 L. R, A. (N. S.) 108, and 44 L. R. A. (N. S.) 643.

   Fellows, J.

Plaintiff is a logger and in 1916 and 1917 owned timber lands near a branch of defendant’s railroad called in the record the “White Pine Branch” and the “White Pine Extension.” Intending to operate during the winter season on this property he made known to defendant’s agent his requirement for cars during the season. It is his claim that the cars were not furnished in the number requested and needed; that he was required to bank a large number of his logs, many were left on the ground and were rendered valueless, and that by reason of the failure of the defendant to furnish him cars he has suffered damage for the recovery of which this action was brought. He counts in his declaration on the failure of defendant to furnish the cars and upon unjust discrimination of the defendant in apportioning cars among the shippers in that locality. Such further detail as may be necessary to a full understanding of the case will be stated as we proceed.

Plaintiff’s shipments were interstate. By appropriate objections at the beginning of the trial and motions for a directed verdict defendant raised the question of jurisdiction of the court to hear and determine the controversy. As this question challenges the jurisdiction of the court over the subject-matter and^is~tEe important question in the case and the one upon which defendant and appellant lays greatest stress, we shall consider it first. We note, but disagree with plaintiff’s contention that it is not properly raised. It is insisted by the defendant that 'the questions here involved are administrative ones and the shipments being interstate shipments such questions are to be first submitted to, and determined by the interstate commerce commission created by the act of congress under the commerce clause of the Federal Constitution. It is insisted that such commission has jurisdiction to the exclusion of the State courts when the questions are administrative in character, and that the questions here sought to be litigated are of that character.

The power of congress to regulate interstate commerce is beyond question. Has it by the legislation regulating such commerce, withdrawn or attempted to withdraw from the State courts jurisdiction to adjudicate such controversies as are here involved? Has it committed to the interstate commerce commission the determination of such controversies as here presented? Are the questions here involved of an administrative character to be solved only by an administrative board? These are the questions, which present themselves at the threshold of this inquiry, and to them we must first address ourselves.

By the act of February 4, 1887, entitled, “An act to regulate commerce” (24 U. S. Stat. p. 379), the interstate commerce commission was created. . By this act and amendments to it (see 25 U. S. Stat. p. 855; 28 U. S. Stat. p. 643; 32 U. S. Stat. p. 847; 34 U. S. Stat. p. 584), comprehensive provisions have been enacted in the regulation of interstate commerce and broad powers have been conferred upon the commission, powers of an administrative and qitcm-judicial character. In the original act, and it has continued without amendment, by section 22 it is, among other things, provided:

“And nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies.”

In the leading case of Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 (27 Sup. Ct. Rep. 350, 9 Ann. Cas. 1075), the court had before it for review the decision of the court of last resort of Texas on the question. The Abilene company had brought suit in the State court against the railway company, alleging that the railway company had exacted an unjust and unreasonable rate for certain interstate shipments; there was also an allegation that the rate exacted was discriminatory. The railway company defended principally on the ground that the State court was without jurisdiction, that the interstate commerce commission must be first applied to, as the questions involved had been committed to that body by the act to regulate commerce. A judgment for the oil company in the trial court had been affirmed by the court of civil appeals. In an exhaustive opinion by the present Chief Justice, then Mr. Justice White, the legislation and authorities were reviewed and the functions of the commission and of the courts and the jurisdiction of both were fully considered, and it was held that the courts were without jurisdiction where the character of the question was as there involved until after the commission had acted; that the questions were administrative, the rate-making power was not in the judiciary, and that congress acting within its power had committed the determination of such administrative questions to an administrative body to the exclusion of the courts, and the judgment was reversed. This case was followed, and the reasoning of the opinion applied and extended in the later decisions of that court. Among others see Robinson v. Railroad Co., 222 U. S. 506 (32 Sup. Ct. Rep. 114); Baltimore & Ohio R. Co. v. Pitcairn Coal Co., 215 U. S. 481 (30 Sup. Ct. Rep. 164); Loomis v. Railroad, Co., 240 U. S. 43 (36 Sup. Ct. Rep. 228); Northern Pacific R. Co. v. Solum, 247 U. S. 477 (38 Sup. Ct. Rep. 550); Pennsylvania R. Co. v. International Coal Co., 230 U. S. 184 (33 Sup. Ct. Rep. 893, Ann. Cas. 1915A, 315); Mitchell Coal & Coke Co. v. Railroad Co., 230 U. S. 247 (33 Sup. Ct. Rep. 916); Morrisdale Coal Co. v. Railroad Co., 230 U. S. 304 (33 Sup. Ct. Rep. 938). We have stated that the doctrine of the Abilene Case had been extended. In the case of Mitchell Coal & Coke Co. v. Railroad Co., supra, Mr. Justice Pitney in an exhaustive dissenting opinion insisted that it had been extended too far, that it had nullified certain of the provisions of the act itself. But the cases cited and others which might be added must be taken as laying down the rule that where the questions are administrative in character they must be first submitted to the interstate commerce commission, and that unless first submitted to such commission the courts are without jurisdiction to aiford relief.

This naturally leads us to consider whether the questions here involved are administrative in character such as to preclude the State court from inquiring into and adjudicating them without application having been first made to the commission. And first as to the failure to furnish sufficient cars. By the Hepburn act (34 U. S. Stat. p. 584), an amendatory act to the act of 1887, it is provided:

“And it shall be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable thereto.”

This was but declaratory of the common law. In the case of Pennsylvania R. Co. v. Sonman Coal Co., 242 U. S. 120 (37 Sup. Ct. Rep. 46), the court had before it for review a decision of the supreme court oi the State of Pennsylvania. The coal company had brought suit in the State court to recover against the railroad company for damages claimed to have been occasioned by the failure of the railroad company to furnish cars and for unjust discrimination; upon'the trial the claim of unjust discrimination was abandoned, leaving only the question of failure to furnish cars as the basis of recovery; a judgment for $145,-830.25 had been affirmed by the supreme court of the State (241 Pa. St. 487, 88 Atl. 746). The contention there made was the same as here made, that the State court was without jurisdiction, that the questions were administrative in character and must first be submitted to the interstate commerce commission. Mr. Justice Van Devanter, speaking for the court after citing authorities, said:

“Applying these rulings to the case in hand, we are of opinion that a State court could entertain the action consistently with the interstate commerce act. Not only does the provision in section 22 make strongly for this conclusion, but a survey of the scheme of the act and of what it is intended to accomplish discloses no real support for the opposing view. With the charge of unjust discrimination eliminated, the ground upon which a recovery was sought was that for a period of four years, during which the conditions were normal, the carrier had failed upon reasonable demand to supply a shipper in interstate commerce a sufficient number of cars to transport the output of the latter’s coal mine. Assuming that the conditions were normal and the demand reasonable, it was the duty of the carrier to have furnished the cars. That duty arose from the common law up to the date of the amendatory statute of 1906, known as the Hepburn act, and thereafter from a provision in that act which, for present purposes, may be regarded as merely adopting the common-law rule. There was evidence tending to show, and the jury found, that the conditions in the coal trade were normal and the demand for the cars reasonable. Indeed, without objection from the carrier, the court said when charging the jury: ‘There is no testimony disputing the claim of the plaintiff that these were normal times.’ The carrier insisted and the jury found that the carrier had a generally ample car supply for the needs of the coal traffic under normal conditions, and' the jury further found that the failure to furnish the cars demanded was without justifiable excuse. Thus far it is apparent that no administrative question was involved — nothing which the act intends shall be passed upon by the commission either to the exclusion of the courts or as a necessary condition to judicial action.
“But there was testimony tending to show that the carrier was applying or following a rule for allotting cars which did not entitle the coal company to receive as many cars as it needed and requested, and because of this it is contended that the reasonableness of this rule was in issue and was an administrative question which the act intends that the commission shall solve. We cannot accede to the contention. The conditions in the coal trade being normal, as just shown,_ the number of cars to which the coal company was entitled was to be measured by its reasonable requests based upon its actual needs. It is only in times of car shortage resulting from unusual demands, or other abnormal conditions, not reasonably to have been foreseen, that car distribution rules originating with the carrier can be regarded as qualifying or affecting the right of a shipper to demand and receive cars commensurate in number with his needs. Pennsylvania R. Co. v. Puritan Coal Co., 237 U. S. 121, 133. Such a rule being inapplicable in the conditions existing at the time, the rule mentioned in the testimony could not be a factor in the decision of the case, and whether in a time of unforeseen car shortage it would be reasonable or otherwise was not then material.”

Let us consider now the question of unjust discrimination. As before, we should turn to the decisions of the court of final resort when Federal questions are involved. In the ease of Pennsylvania R. Co. v. Puritan Coal Co., 237 U. S. 121 (35 Sup. Ct. Rep. 484), the court had before it another holding of the supreme court of Pennsylvania (237 Pa. St. 420, 85 Atl. 426, Ann. Cas. 1914B, 37). The coal company had brought an action and recovered a judgment for $74,323.88 for damages resulting from unjust discrimination. This judgment had been affirmed by the State supreme court. There, as here, the railroad company insisted that the State courts were without jurisdiction. Mr. Justice Lamar, speaking for the court after considering sections 8 and 9 of the act, takes up the provisions of section 22, which we have quoted above, and says:

“But sections 8 and 9 standing alone might have been construed to give the Federal courts exclusive jurisdiction of all suits for damages occasioned by the carrier violating any of the old duties which were preserved and the new obligations which were imposed by the commerce act. And, evidently, for the purpose of preventing such a result, the proviso to section 22 declared that ‘nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of -this act are in addition to such remedies.’
“That proviso, was added at the end of the statute, —not to nullify other parts of the act, or to defeat rights or remedies given by preceding sections, — but to preserve all existing rights which were not inconsistent with those created by the statute. It was also intended to preserve existing remedies, such as those by which a shipper could, in a State court, recover for damages to property while in the hands of the interstate carrier; damages caused by delay in shipment; damages caused by failure to comply with its common law duties and the like. But for this proviso to section 22 it might have been claimed that, congress having entered the field, the whole subject of liability of a carrier to shippers in interstate commerce had been withdrawn from the jurisdiction of the State courts and this clause was added to indicate that the commerce act, in giving rights of action in Federal courts, was not intended to deprive the State courts of their general and concurrent jurisdiction. * * *
“There are several decisions, already cited, which hold that suits against railroads for unjust discrimination in interstate commerce can only be brought in the Federal courts. But it must be borne in mind that there are two forms of discrimination — one in the rule and the other in the manner of its enforcement; one in promulgating a discriminatory rule, the other in the unfair enforcement of a reasonable rule. In a suit where the rule of practice itself is attacked as unfair or discriminatory, a question is raised which calls for the exercise of the judgment and discretion of the administrative power which has been vested by congress in the commission. It is for that body to say whether such a rule unjustly discriminates against one class of shippers in favor of another. Until that body has declared the practice to be discriminatory and unjust no court has jurisdiction of a suit against an interstate carrier for damages occasioned by its enforcement. When the commission has declared, the rule to be unjust, redress must be sought before the commission or in the United States courts of competent jurisdiction as provided in section 9.
“But if the carrier’s rule, fair on its face, has been unequally applied and thd suit is for damages, occasioned by its violation or discriminatory enforcement, there is no administrative question involved, the courts being called on to decide a mere question of fact as to whether the carrier has violated the rule to plaintiff’s damage. Such suits though against an interstate carrier for damages arising in interstate commerce, may be prosecuted either in the State or Federal courts.”

Sustaining the views expressed in these cases will be found the following: Eastern Railway Co. v. Littlefield, 237 U. S. 140 (35 Sup. Ct. Rep, 489); Illinois Cent. R. Co. v. Mulberry Coal Co., 238 U. S. 275 (35 Sup. Ct. Rep. 760).

The cases clearly and unmistakably lay down the rule that when the action is for damages due to the carrier’s failure to furnish cars when reasonably demanded, the shipper may proceed in the State court; that when the action is for damages occasioned by discrimination practiced by the carrier in the distribution of cars during a period of car shortage and such distribution has been made pursuant to a rule of the carrier and in conformity with it, the shipper must first proceed before the interstate commerce commission to establish the discriminatory character of the rule; but that where the discrimination is caused by a breach of the rule, and the discrimination results from its nonobservance, then the State courts have jurisdiction in an action brought by the shipper to recover damages occasioned by such discrimination.

But counsel for the defendant insist that plaintiff failed to make a case under either of the claims asserted and that the court for this reason should have directed a verdict. This contention requires us to again refer to the facts and to more fully state them. And first as to the failure to furnish cars. The plaintiff testified that he made a seasonable request of the agent of defendant for eight cars daily, and that he was not furnished them. It is not necessary for us to determine whether this proof alone made a prima facie case, as he further testified that for several years defendant had been short of cars to meet his demands, in addition to his testimony, the testimony of the superintendent of transportation of defendant is to the effect that in normal years the division in which these logging operations were being conducted required from 1,400 to 1,500 cars for logging purposes, while the superintendent of the division testified that during this season the division had only 500 cars, which number was, during the season, reduced to 450. Clearly a case of failure to furnish cars to meet the normal demands was made by this testimony.

As to discrimination, it was the claim of defendant that there was a shortage of cars adaptable for use in transporting logs during this season due to unforeseen and unprecedented conditions; that heavy snow storms prevented delivery of cars; that the prewar demands of the government took a large number of flat cars; that the shortage was country-wide, and that due to weather conditions and unprecedented and unforeseen demands for flat cars a large amount of its equipment became unavailable for logging operations on this division. Manifestly the impossible could not be required of the carrier. If the great demand to furnish cars was sudden and one the carrier would have no reason to apprehend, and it could not have been reasonably expected, the individual shipper could not insist as an absolute right upon having his requisitions filled. As remarked by Mr. Justice Lamar in Pennsylvania, R. Co. v. Puritan Coal Co., supra:

“The common law of old in requiring the carrier to receive all goods and passengers recognized that ‘if his coach be full’ he was not liable for failing to transport more than he could carry.”

It is equally manifest that in case of car shortage the duty of the carrier is to allot the cars so as to prevent unjust discrimination. We have attempted to make clear that when a car shortage occurs, if the cars are allotted in accordance with a rule adopted by the carrier and it is claimed by the shipper that the rule works a discrimination, the shipper must first have that administrative question settled by the interstate commerce commission, and that no matter how inequitable the rule may be, or how unjustly it may discriminate against the individual shipper, its propriety is to be first submitted to the commission and the administrative question settled by that administrative body before any action may be brought for damages occasioned by its enforcement; but where a rule has been adopted and it is not adhered to and discrimination is worked by a failure to observe the rule, by and in its breach, then no administrative question is involved, but one of fact is presented which the courts may determine. One of the claims of defendant’s counsel is that by leaving the distribution of available cars to the discretion of the chief train dispatcher, the railroad company thereby adopted a rule. But leaving the distribution of cars in case of car shortage to the discretion of an officer of the company is not the adoption of a rule. If such officer provides a rule of distribution under the circumstances, the rule would be the rule of the company; but giving an officer a free hand is not the adoption of a rule. There is something of a conflict in the testimony as to whether there was a rule adopted and what it was ; but we think there was evidence which would have justified the jury in finding that a rule was adopted. The chief train dispatcher testified: “We would distribute the cars in the ratio of the available cars to the calls.” The jury had the right to conclude from this testimony that this was the rule adopted by the company. Was there evidence that unjust discrimination resulted in nonenforcement of this rule? We think there was. If by the use of the word “calls” this witness intended to convey the impression that the available cars were distributed in the ratio of cars to the requests fot cars his own testimony is susceptible of the conclusion that the rule was not observed. There were three logging companies operating in this territory, during át least a portion of the time: The Diamond Lumber Co., Spies-Thompson Co., and North-land Lumber Co. This witness testified that the Diamond Lumber Company never that winter placed a specific order for cars with him. If by the use of the word “calls” this witness intended to convey the impression that the available cars were distributed In the ratio of cars to the demands for cars by reason of the operations of the various loggers and logging companies, then there was conflicting testimony upon the question of whether the rule was violated. There was disputed testimony tending to show that the extent of the operations of the Diamond Lumber Company and Spies-Thompson Company were each twice those of plaintiff; while a table of cars furnished that season put into the case by the defendant shows that for the month of December after the date plaintiff commenced operation he received 8 cars, the Diamond Lumber Company 45 cars, Spies-Thompson Company 47 cars; for January, plaintiff received 69 cars, the Diamond Lumber Company 221 cars, Spies-Thompson Company 271 cars; and for February, plaintiff received 44 cars, the Diamond Lumber Company 151, Spies-Thompson Company 191. There was also testimony that in the distribution of the “bunk” cars, so-called, a car desirable in shipping logs as it saved the shipper the expense of binding and securing the load, there was considerable favoritism shown the Diamond Lumber Company. While much of the testimony here detailed was disputed testimony, on a motion to direct a verdict for defendant that most favorable to plaintiff must be accepted. Under this rule we are satisfied that plaintiff was entitled under proper instructions to take the verdict of the jury on both his claims.

There remains to be considered two assignments of error based on the charge of the court. The first of these which we shall discuss covers the main part of the charge. It is insisted by counsel for the plaintiff that it is not sufficiently specific, and it is pointed out that it covers some two and one-half pages of the record. But the length of the assignment of error alone does not determine the question as to whether it is sufficiently specific. It is somewhat difficult to perceive, when we consider the charge, how error could be assigned upon it without setting forth the portion claimed to be erroneous. Without quoting the assignment of error in full it will suffice to state that the court charged the jury that the plaintiff could recover if they found that defendant had unreasonably failed to furnish ears or had in fact unjustly discriminated against the plaintiff, and entirely eliminated from the consideration of the jury the question of whether the discrimination, if any, was due to the enforcement or the violation of a rule adopted by the shipper in case of car shortage; and the liability for failure to furnish and the liability for discrimination were interwoven in the portion of the charge upon which error is assigned. Without going over the ground again we may say that we have laid down the rule of law applicable to the case; we have pointed out that where the discrimination arose by reason of the enforcement of a rule the shipper cannot in any action at law recover for such damages without first having proceeded before the interstate commerce commission. In the portion of the charge now being considered the trial judge instructed the jury that he could recover if there was discrimination in fact and took no account of the question of the adoption of a rule. In this the court was in error. This question not only went to the right to recover but it also went to the jurisdiction of the court as we have pointed out.

The trial judge instructed the jury:

“The defendant was only bound to have on hand a sufficient supply of cars to meet the normal demands of the trade. It was not obliged to have a sufficient supply on hand to meet abnormal and unexpected conditions. But the normal demand of the trade is not to be estimated by the number of cars needed when the normal demand is least, but by the number when the normal demand is heaviest, in respect to a commodity, such as logs, where there are certain well known seasons during which the normal demand for log transportation is practically the same and heavier than at other times. And while the number of cars needed in each of the months of these seasons may be taken into consideration in determining the number needed to supply the demand during all of the logging season, the number needed during the other months of the j^ear outside of the logging season — the summer months, in this case — is entitled to little consideration in determining what number of cars is needed to supply the normal demand of the trade.”

The other assignment of error relates to that portion of the above quoted instruction after the first two sentences. This instruction followed the rule laid down by the court of last resort of Kentucky in the case of Illinois Cent. R. Co. v. Coal & Coke Co., 150 Ky. 489 (150 S. W. 641, 44 L. R. A. [N. S.] 543, Ann. Cas. 1914C, 1255), and substantially contains the language of that court in deciding that question. We think it states the correct rule. In Shoptaugh v. Railroad Co., 147 Mo. App. 17 (126 S. W. 752), it was said:

“Taking up the appeal on the merits, we hold it would have been a good defense if an extraordinary increase of business on defendant’s line, which could not have been anticipated and provided for by using judgment and diligence, had prevented defendant from furnishing the cars. Railroad companies are expected to be prepared with an equipment necessary to handle the average traffic over their lines and such an increase as would be expected by managers of experience, for the volume of traffic will vary with the seasons and general business conditions. These contingencies ought to be provided for and the law requires them to be; but a railroad carrier need not be ready to handle any accession of business, however great, which some unforeseeable condition may cause; and in case an extraordinary traffic occurs and consequent congestion of freight, the carrier must distribute its cars at the various stations in proportion to their needs.”

In the case of State v. Railroad Co., 71 Neb. 593 (99 N. W. 309), it was said:

“It is the duty of a railroad company to provide itself with all the instrumentalities and facilities necessary to carry on the business for which it is organized. It must furnish the necessary cars to transport the goods which are offered to it for carriage, but to this rule there is an exception. When the carrier has furnished itself with the appliances necessary to transport an amount of freight which may, in the usual course of events, be reasonably expected to be offered to it for carriage, taking into consideration the fact that at certain seasons more cars are needed, it has fulfilled its duty in that regard, and it will not be required to provide for such a rush of grain or other goods for transportation as may only occur in any given locality temporarily or at long intervals of time.”

The trial judge very carefully guarded his instruction and confined the rule to the normal demand of seasonal shipments. The defendant was bound to know that while the snow was on logs would be gotten out and offered for shipment; that more would be offered for shipment during that season of the year than at other seasons, was well known to the officers and agents of defendant, as this record discloses. The carrier is bound to know that at certain seasons of the year there will be movements of certain seasonal commodities, and was bound to anticipate and provide for such demand. There are certain portions of the State where fruit is raised in abundance and offered for shipment to the market. Clearly the carrier would not discharge either its common-law or its statutory duty by providing itself with only equipment sufficient to transport such fruit if given the entire year so to do. It must have sufficient equipment to transport such fruit when the normal demand is the greatest; and this is true and must be true of all seasonal freight. Any other rule would refuse to the shipper of seasonal commodities the markets of the country when such markets are open and available. We do not mean to say that the carrier is bound to provide for abnormal conditions, for unforeseen and unprecedented demands. In the instant case, the jury was told:

“The defendant was only bound to have on hand a sufficient supply of cars to meet the normal demands of the trade. It was not obliged to have a sufficient supply on hand to meet abnormal and unexpected conditions.”

Further instructions were not requested and we discover no other error in the charge except the one noted. For this error the judgment must be reversed and a new trial granted, with costs to defendant.

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


text:
    CARPENTER v. DENNISON.
    1. Quieting Title — Equity Jurisdiction to Entertain Bill When Ejectment Pending.
    A court of equity has no jurisdiction under 3 Comp. Laws 1915, § 12302, to entertain a bill to quiet title whére plaintiffs claim a legal, record title and do not allege any fraud, accident, mistake, or other grounds of general equity jurisdiction, nor point out any impediment to their defense in an action of ejectment already pending.
    2. Courts — Jurisdiction—Waiver.
    Jurisdiction of the court oyer the subject-matter may not be acquired by waiver or consent.
    3. Appeal and Error — Denial oe Motion to Dismiss — Right op Appeal.
    Defendant’s right to appeal from denial of motion to dismiss bill is not absolute, but under 3 Comp. Laws 1915, § 13753, depends upon obtaining an order of a Justice of the Supreme Court to do so.

      4. Same — Denial of Motion to Dismiss — Jurisdiction — Res Judicata.
    Where defendant’s motion to dismiss bill to quiet title on jurisdictional grounds was denied and without appealing therefrom he answered, reserving “all right of exception to the said bill of complaint,” the question of jurisdiction is not therefor res judicata, but is open upon appeal from the decree.
    Appeal from Kent; McDonald (John S.), J.
    Submitted October 15, 1919.
    (Docket No. 50.)
    Decided December 23, 1919.
    Bill by Norman Carpenter and another against William H. Dennison to quiet title to land, and to enjoin an action of ejectment. From a decree for plaintiffs, defendant appeals.
    Reversed, and bill dismissed.

      Smedley & Linsey, for plaintiffs.

      P. H. Walsh, for defendant.
   Fellows, J.

On the 6th day of February, 1919, the defendant here, William H. Dennison, brought suit in ejectment in the Kent circuit court against the plaintiffs here, Norman Carpenter and Morris Carpenter, to recover the possession of the south % of the southeast % °f the northeast % of section 26 of the township of Sparta in Kent county. On February 17th, these plaintiffs filed this bill in the circuit court for the county of Kent, in chancery, to quiet their title to said premises and to restrain the further prosecution of such ejectment case. They claim a legal, record title and do not allege any fraud, accident, mistake, or other grounds of general equity jurisdiction, nor do they point out any impediment to their defense in the action of ejectment already pending. Defendant first moved to dismiss the bill on jurisdictional grounds, and upon such motion being overruled, answered, reserving to himself, however, "all right of exception to the said bill of complaint”; and upon the hearing of the case in the court below and in this court he insists that a court of equity is without jurisdiction to entertain this bill to quiet title and to restrain the further prosecution of the ejectment case pending in the court which first obtained jurisdiction of the controversy between these parties over the premises here, and there, involved.

The plaintiffs insist upon their right to maintain this bill under the following provisions of section 12302, 3 Comp. Laws 1915:

“The powers and jurisdiction of the circuit courts and circuit judges in chancery, in and for their respective counties, shall be co-extensive with the powers and jurisdiction of the courts and judges in chancery in England as existing on March first, eighteen hundred forty-seven, with the exceptions, additions and limitations created and imposed by the Constitution and laws of this State. Said circuit court in chancery shall also have jurisdiction and authority: * * *
“4. To hear and determine suits instituted by any person claiming the legal or equitable title to lands, whether in possession or not, against any other person not in possession, setting up a claim thereto in opposition to the title claimed by the plaintiff: And, if the plaintiff shall establish his title to such lands, the defendant shall be decreed to release to the plaintiff all claims thereto.”.

While this subdivision of the section in its present form is the result of amendments, it originally was enacted in 1840 (Act No. 76, Laws 1840, p. 127). It has generally been recognized as declaratory of recognized jurisdiction of the courts of equity with amplification of their powers, and its object has been recognized by this court to be to enable one in possession of real estate (now including one out of possession where the other party is also out of possession) to remove all doubts as to his title caused by claims of third persons who are taking no steps to test the validity of their claim and who by their refusal or neglect to take proceedings to have their title adjudicated cast a doubt upon the title which without the interposition of a court of equity remains a cloud upon such title to the injury of the true owner. But it has never been held, as we shall presently see, that the object of the act was to afford a defendant in an ejectment suit the option to deprive the plaintiff of his right to a trial by a jury, and permit him to elect in which court he would try the question of title.

Counsel for plaintiffs, in support of the contention that the bill is maintainable, cite the following cases: Woods v. Monroe, 17 Mich. 238; Dale v. Turner, 34 Mich. 405; Olsen v. Williams, 172 Mich. 316; Conley v. Sinclair, 163 Mich. 306; Grand Trunk, ele., R. Co. v. Fuller, 205 Mich. 486. But a careful examination of these cases shows that in each of them there were facts alleged bringing the case within the jurisdiction of a court of equity and calling for equitable relief, and that each case is clearly distinguishable from the instant case.

In Woods v. Monroe, supra, the defendants were severally bringing actions of ejectment with reference to a portion only of the premises involved. This court there said:

“The defendants were severally bringing actions against him in respect to one of the lots, and as he had an unquestionable right to file a bill to quiet his title to the others, and the questions were the same as to all, it was proper that, to avoid a mutiplicity of suits, the ejectment suits should be enjoined, and the questions in controversy be all determined in one proceeding. Besides, the record title was in the defendants, which, of itself, would justify the bill.”

In Dale v. Turner, supra, which involved the Federal and State legislation concerning swamp lands, this court expressly pointed out that complainant’s title was an equitable title (p. 417).

In Olsen v. Williams, supra, the bill was filed to prevent a multiplicity of suits and upon that point this court cites and quotes from Woods v. Monroe, supra.

In Conley v. Sinclair, supra, an ejectment case had been instituted 25 years before by one Thomas Sinclair; it had been tried and a judgment rendered against Sinclair, which judgment had been affirmed by this court. A new trial had been granted under the statute then in force but the case had thereafter abated. The ejectment case was, therefore, no longer pending. It was held by this court that upon the abatement of the ejectment case the holder of the title could maintain a bill to quiet title.

In Grand Trunk, etc., R. Co. v. Fuller, supra, the question of jurisdiction was not considered, but an examination of the case will disclose that the plaintiff sought and obtained relief on equitable grounds.

Each of these cases presented a case for equitable relief upon equitable grounds and is in no way out of harmony with a long line of holdings by this court announcing the general rule that courts of law are the proper forum for the adjudication of legal titles. Among the numerous cases see Stockton v. Williams, Walk. Ch. 120; Devaux v. City of Detroit, Harr. Ch. 98; Blackwood v. Van Vleet, 11 Mich. 252; Moran v. Palmer, 13 Mich. 367; Tabor v. Cook, 15 Mich. 322; Methodist Church of Newark v. Clark, 41 Mich. 730; Chandler v. Graham, 123 Mich. 327; Moody v. Macomber, 158 Mich. 209; Berger v. Roe, 179 Mich. 184. We quote from the syllabus in Moran v. Palmer, supra:

‘‘A bill to quiet title will be entertained on behalf of the legal owner when he is not in a position to force the adverse claimant into a court of law to test its validity; but when each party claims the legal title, and a court of law is already possessed of the case, and it is not alleged that either fraud, accident or mistake has intervened to prevent the possessor establishing his title at law, equity will not interfere.”

This case was written when parties, as a matter of right, had two trials in ejectment cases, and defendants had successfully maintained their rights upon the first of these trials. Mr. Justice Cooley, speaking for the court, said:

“We have thus presented to us the anomaly of a party who asserts that, he is possessed of a complete legal title to lands which are occupied by him, and who points out no difficulty in the way of his exhibiting and establishing such title, appealing to a court of equity for rélief against the claims of other parties who are pressing their claims against him at law, and have already obtained an adjudication in their favor. Argument to show that this bill cannot be sustained is entirely unnecessary.”

In Tabor v. Cook, supra, the same Justice, speaking for the court, said:

“It is not in the power of the legislature, under our present Constitution, to provide for the trial of titles to land in equity, in the cases which were triable at law at the time the Constitution was adopted, unless it shall first make provision for having the case tried by jury if the defendant shall so elect.”

In Methodist Church of Newark v. Clark, supra, it was said:

“The bill is a bill to quiet title. A bill for that purpose is based upon an actual possession by complainant of the land in dispute, and when sustained, it is upon the ground that complainant has no other means of bringing his title to an adjudication.”

And in Moody v. Macomber, supra, Mr. Justice Montgomeey, speaking for the court, said:

“W'e think it far better that the practice should be adhered to, and that the title to real estate should not be left to be tried in equity where the remedy of ejectment is open, unless the case is distinctly brought under some other head of equity jurisprudence.”

' But it is insisted by plaintiffs counsel that defendant is not in position to raise this question; that the order denying defendant’s motion to dismiss is res adjudícala; that not having been appealed from, it is final and the question not now availáble. This overlooks the character of the question under consideration, that it is a question of jurisdiction, and of jurisdiction of the court over the subject-matter. While opinions may be found in this court holding that this question of jurisdiction may be waived, and cases which have disposed of the controversy notwithstanding the jurisdictional question, the tendency of the later decisions of this court is to hold that jurisdiction of the subject-matter, jurisdiction of the case itself, jurisdiction of the court, may not be acquired by waiver or consent.; Riley v. Railway, 163 Mich. 327; J. F. Hartz Co. v. Lukaszcewski, 200 Mich. 230; Bolton v. Cummings, 200 Mich. 234; Miller v. Johnson, 201 Mich. 535; Monroe, Boyce & Co. v. Ward, 207 Mich. 369. The defendant made his motion to dismiss, he reserved the question by his answer, he seasonably raised the question on the hearing. This court in three of the cases last above cited, upon its own motion, dismissed writs of error where it had not acquired jurisdiction. Defendant had no absolute right to appeal to this court from the order denying his motion to dismiss. By section 13753, 3 Comp. Laws 1915, he could only do so by obtaining an order of a Justice of this court.

The question of jurisdiction of the court over the subject-matter is here open to the defendant to urge upon this record and his contention is sustained. A decree will be entered dismissing the bill with costs of both courts to defendant.

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