text:
    EMERY v. AIRTH.
    Default — Equity Practice — Opening Default.
    In order to obtain a decree in chancery permitting a defendant to open his default in omitting to answer the cross-bill of one of the joint defendants, a sworn answer should have been tendered as provided by Chancery Rule 7, and the application must be made within six months after the entry of default.
    Appeal from Cheboygan; Shepherd, J.
    Submitted January 23, 1914.
    (Docket No. 55.)
    Decided June 1, 1914.
    Bill by Mary Emery against Henry M. Airth and Arthur F. Watson for a decree discharging a certain mortgage as paid and satisfied and determining the amount due, if any. Defendant Airth filed a cross-bill for an accounting and the codefendant defaulted. From an order denying a motion to open his default, defendant Watson appeals.
    Affirmed.

      J. J. Tweddle, for complainant .Emery.

      William N. Cross and Victor D. Sprague, for defendant Airth.

      I. S. Canfield, for defendant Watson.
   Brooke, J.

On November 24, 1897, complainant gave to defendant Watson her promissory note for $660, secured by a real estate mortgage covering certain lands described in the bill of complaint. On the same day defendant Watson assigned said note and mortgage, together with five other notes and mortgages, to defendant Airth as security for his note of $1,100, given to Airth. Complainant between the years 1898 and 1908 made certain payments upon principal and interest to defendant Watson, some of which were turned over to Airth by Watson. On November 8, 1911, complainant tendered to defendant Airth $145, which she claimed to be the balance due from her and demanded a discharge of the mortgage. This being refused, she filed her bill of complaint, alleging the payment to Watson of the several sums of principal and interest, alleging her ignorance of the assignment from Watson to Airth and averring that Watson was the agent of Airth. To this bill defendant Watson filed an answer admitting all the material averments, except as to the amounts paid. As to those he left complainant to her proof.

Defendant Airth filed an answer and cross-bill. He admitted the making and assignment of the mortgage as alleged, but denied that Watson was his agent to collect the moneys payable thereunder, and denied that complainant had made any payments upon principal or interest to said Watson as his agent, and claimed that there was then due him upon said mortgage the sum of $629.85; this sum being the balance due him from Watson on the $1,100 note. He prayed for an accounting as between himself, complainant, and defendant Watson, and for a sale of the mortgaged premises to satisfy any sum found to be due from complainant. Upon this cross-bill a subpoena was issued and duly served upon defendant Watson. Watson not having appeared, an order pro eonfesso was duly entered against him by the solicitor for cross-complainant Airth on June 5, 1912. On July 3, 1912, the case came on to be heard. The complainant and her counsel were present, Defendant Watson was represented by his counsel, Mr. I. S. Canfield, and defendant Airth by his counsel, Mr. William N. Cross. Testimony was taken in open court, and it was determined that defendant Watson was indebted to defendant Airth in the sum of $644.21, and that of this sum complainant should pay the sum of $272; that being the amount found to be due from her upon her note and mortgage. A decree was noticed for settlement on July 15, 1912. That decree provided that complainants should pay the sum of $272 to defendant Airth, and in default thereof her mortgage should be foreclosed, and further that defendant Watson should pay to Airth, as cross-complainant, the further sum of $372.21 with costs. On the same day (July 15, 1912) defendant Watson filed objections to the entry of any decree against him. It is necessary to notice the third objection only:

“Because said defendant Watson has not been brought before the court as a party defendant to said cross-bill.”

The other objections are all such as should have been urged by way of demurrer or answer to the cross-bill. As to the third objection, the record conclusively shows that personal service of the subpoena issued on the cross-bill was made upon defendant Watson on February 20, 1912. The proposed decree was not finally signed until January 25, 1913. In the meantime, defendant Watson had filed an answer to the cross-bill and by his counsel now claims to have secured an oral order from the court that his default should be set aside and a hearing had upon the issues raised by his answer. On January 18, 1913, complainant Emery filed a petition in the cause asking-leave to pay into court the sum of $272, and have her mortgage discharged. This petition came on for hearing on January 24, 1913, and the decree was signed the following day. On April 29th, defendant Watson filed a petition asking leave to be heard touching the issues raised by his answer to the cross-bill, voluminous affidavits and counter affidavits were filed, and the matter came on to be heard on July 7, 1913. The learned circuit judge made the following finding and order:

“In this matter it is made to appear before the court that a claim for appeal from a decree heretofore, on the 3d day of July, 1913, granted herein, was made by the said Arthur F. Watson on the 17th day of April, 1913, and a case proposed and amendments proposed to the case was this day brought on for consideration of the court, and there was also brought on for consideration before the court a petition dated April 29, 1913, in which it appears that 'the petitioner therefore appears in this honorable court and asks to be heard touching the matters of said decree and herein refers to his answer to the said bill of complaint now on file in said cause, and asks that he may be permitted to file the same, or such other answer as he may deem best in said case, and that upon the hearing said court will order that said decree be set aside, altered, or amended as to court may seem just, and that the court will grant the petitioner such other relief in the premises as to equity shall appertain,’ and said petition coming on to be heard on notice, I. S. Canfield appeared for the .defendant Arthur F. Watson, William N. Cross and Victor D. Sprague appeared for Henry M. Airth, and Mrs. Mary Emery was not personally represented, a full hearing was had upon the petition, an examination of the records and files made the answer of Mary Emery and Henry M. Airth to said petition of Arthur ,F. Watson, and the affidavits in support of said answer were all presented to the court, and after hearing counsel, and the court being fully informed in the premises, and after full hearing, the court doth find, order, adjudge, and decree as follows:
“ (1) That the said Arthur F. Watson was duly and regularly served with subpoenas to answer the cross-bill, and his default for not appearing, answering, or demurring thereto was regularly taken.
“(2) That the defaults of said Arthur F. Watson were not set aside by oral order or other order of the court as alleged in paragraph 4 of said Arthur F. Watson's petition.
“(3) That a full hearing and trial of said case was had on July 3, 1912, and testimony taken, and that said Watson was represented by his counsel, I. S. Can-field, during a portion of said hearing had on the forenoon of said day, and he absented himself on the afternoon- of said day without asking or obtaining permission of the court.
“(4) That on said July 3, 1912, after such full hearing, and argument of counsel, a decree was granted, and the terms thereof fully determined by the court, and that the decree finally entered is in accordance with the terms as then provided by the court.
“(5) That on July 13, 1912, a form of decree was presented to the court, after due notice given to Arthur F. Watson, and the other parties interested, and that there was present and represented at that time Mr. Cross, as solicitor for said Airth, and Mr. Canfield, as solicitor for said Watson, and that said Watson, through his solicitor, filed some objections and exceptions to the entering of a decree, largely based upon an affidavit in which it was claimed that the defaults of said Watson were irregular and illegal, and that no process had been issued against him under the cross-bill, and no service of said cross-bill had, which allegations as to nonservice of process and no service, this court thereafter found, and now finds to be untrue in fact, and that a subpoena was regularly issued against said Watson under said cross-bill and regularly served upon him, and his default thereafter regularly taken, and that all this occurred prior to the hearing and decree on July 3, 1912, the former decree, being taken under advisement by the court, was finally settled and signed as proposed by the court, and the same duly filed by complainant on January 25, 1913.
“(6) That since the decree was made and before the petition herein was filed, the status of the parties had changed, it appearing that under the terms of said decree Mrs. Emery had paid into court her money and had discharged the mortgage in question.
“(7) That on April 23, 1913, before the filing of the petition herein, the decree and all proceedings hereunder were enrolled.
“(8) That the decree heretofore made herein is in accordance with the justice of the case, and was duly and regularly settled according to law, and is hereby confirmed in every particular, and the petition dated April 29, 1913, of said Arthur F. Watson, is hereby dismissed as insufficient in law and fact to warrant the setting aside of said decree.”

The decree so far as it affects complainant Emery appears to have received the assent of defendant Watson in open court. As between himself and defendant Airth he has no right to complain. He was personally served with process under the cross-bill and neglected to enter his appearance. He was in court by his solicitor when the cause came on to be heard, and his counsel seems to have participated for a time in the hearing when he absented himself, before the differences between himself and Airth were considered. There are two reasons why his default, duly entered, should not have been set aside: First. He did not tender a sworn answer as required by Chancery Rule 7. Hews v. Hews, 145 Mich. 247 (108 N. W. 694). Second. His application was not made within six months after the entry of his default. St. Louis Hoop & Stave Co. v. Wayne Circuit Judge, 155 Mich. 311 (118 N. W. 989), and cases cited.

The decree is affirmed, with Costs.

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

This was made out from information which the adjuster Spear testifies he secured from the plaintiff. It is signed by the adjuster, and not by the plaintiff. It is contended by defendant that the record clearly shows that the last item therein, “less purchaser’s interest per advance payment made, $80.00,” is clearly false, as the record conclusively shows that a much larger sum had been paid plaintiff. Plaintiff denies all knowledge of this entry. Even where the false statement has been sworn to, it has been held not to void the policy in certain instances. Tiefenthal v. Insurance Co., 53 Mich. 306 (19 N. W. 9) ; Knop v. Insurance, supra; Walker v. Underwriters’ Ass’n, 142 Mich. 162 (105 N. W. 597).


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    FUHRMAN v. SUN INSURANCE OFFICE OF LONDON.
    1. Insurance — Insurable Interest — Sale of Insured Property.
    Evidence that plaintiff, suing to recover insurance on certain lumber, had sold the property but had not been paid in full and that he claimed that the scale as estimated by the buyer was deficient and fraudulent, that he stated the facts to the insurance agent of the defendant who made a personal examination of the lumber and his estimate confirmed plaintiff’s claim as to the incorrectness of the vendee’s scale, held, to support the contention that plaintiff owned an insurable interest, -at least in such part of the lumber as had not been scaled or paid for, although the contract of sale provided that title should pass to the buyer upon inspection or payment of any part of the price.
    2. Same — Fraud—Concealment.
    It was not necessary to show that plaintiff stated the exact amount which he had been paid on the deal, unless information was asked for by the agent upon that subject.
    3. Same — Payment—Effect on Interest of Insurer.
    Receipt of a portion of the purchase price by the insured after the issuance of his policy did not avoid the policy or effect any change in the title of the property which remained in the possession of the plaintiff.
    4. Same — Fraudulent Proof of Loss.
    Where the insured had stated the facts concerning the sale to the agent of defendant who was present when its adjuster investigated the loss, to whom the plaintiff mentioned only one of the buyers who had contracted to take his lumber, and the plaintiff signed a sworn statement regarding his loss, but claimed to have overlooked the omission, there was no injury to the insurer shown which would avoid the policy for fraud.
    5. Same — Feattd—Pboofs of Loss.
    Also where the plaintiff claimed that he did not know anything about a false statement contained in a schedule attached to the proofs of loss and denied swearing to it, there was not such a fraudulent statement as would avoid the policy.
    Error to Presque Isle; Emerick, J.
    Submitted January 21, 1914.
    (Docket No. 106.)
    Decided June 1, 1914.
    Assumpsit ■ by Gustave H. Fuhrman against the Sun Insurance Office of London upon a policy of fire insurance. Judgment for plaintiff and defendant brings error.
    Affirmed.

      Joseph H. Cobb (Bates, Harding, Edgerton & Bates, of counsel), for appellant.

      I. S. Canfield, for appellee.
    On the 10th day of December, 1909, plaintiff, who was the proprietor of a small sawmill, entered into a written contract with the Michigan Manufacturing & Lumber Company, by the terms of which he agreed to sell all hemlock lumber and cedar that he would have during the following winter at a certain price per foot for the several grades and classes.
    “Lumber to be delivered at La Rocque as directed by the second party. Cedar to be delivered at La Rocque as directed by the second party. Delivery to be made before March 15, 1910.”
    “All inspection to be done by A. J. Fortier or some other competent inspector to be furnished by said second party.
    “The title to all material passes absolutely to the purchaser upon inspection of same, or upon any money being advanced on same.”

      It was the plaintiff’s claim that, attached to this written contract, was a paper writing containing specifications for the sawing of the lumber, and also a provision that, in case plaintiff was not satisfied with the inspection, he could have the lumber reinspected.
    About the same time the plaintiff entered into an oral contract with one Reuben Mitchell, by the terms of which he agreed to sell to said Mitchell the hardwood lumber which he expected to manufacture during the following winter. Under these two contracts the plaintiff proceeded to manufacture certain lumber. This lumber he delivered as required by both contracts at La Rocque, where it was piled. Various advances were made to him from time to time by A. J. Fortier, representing the Michigan Manufacturing & Lumber Company and by Reuben Mitchell on account .of the contracts. On March 15, 1910, a meeting was had between the plaintiff, Mr. Fortier, and Mr. Mitchell at Millersburg, where the account was gone over, and it was claimed by Fortier and Mitchell that a settlement was arrived at in the course of which the balances due to the plaintiff were determined and checks were given marked “in payment in full for lumber,” which checks were afterwards cashed by the plaintiff. Plaintiff denies that this settlement was in full of his demands, and claims that the scale of the lumber in question was fraudulent. He notified both Mr. Fortier and Mr. Mitchell not to move said lumber until a rescale could be made. This being the situation on May 21, 1910, plaintiff applied to the defendant’s agent, William Schmidt, for a policy of insurance upon said lumber. He claims to have disclosed to the agent Schmidt the exact condition of the title, that the scale given him by the scaler employed by Fortier and Mitchell was fraudulent and much too low, and that upon a proper scale his interest in the lumber then piled at La Rocque would amount to some $800 or $900. Whereupon, on May 21, 1910, the defendant caused to be issued to the plaintiff a policy of insurance in the sum of $600, covering said lumber, for which plaintiff paid a premium of $7.50. The policy was to run for four months. On June 14, 1910, the lumber was in whole or in part destroyed by fire. Plaintiff at once notified the agent of the defendant company, and a Mr. Spear, of Bay City, went to Mr. Fuhrman’s farm north of La Rocque in company with Mr. Schmidt, the local agent, where the loss was adjusted at the sum of $520. The proofs of loss, which were in part prepared in Bay City, and in part at the plaintiff’s farm, stated:
    “The property described in said policy belonged, at the time of the fire herein mentioned, to Gustav H. Fuhrmann, and no other person or persons had any interest therein, except as follows: Agreed to be sold to Reuben Mitchell of Millersburg — no other interest.”
    It is the claim of the plaintiff that at this time he fully disclosed to Mr. Spear the fact that Mr. Fortier’s company likewise had an interest in the lumber, and that he did not notice the omission of the name of the Michigan Manufacturing & Lumber Company in the description of the property. Upon receipt of the proof of loss the defendant company sent to the agent Schmidt a draft for $520 in payment of the loss, which Mr. Schmidt delivered to plaintiff, taking a receipt and a surrender of the policy therefor. This check was delivered by Schmidt to the plaintiff on June 29, 1910, and he thereupon wrote the following letter to the defendant company:
    “Sun Insurance Office of London,
    “Chicago, Ill.

      “Gentlemen:

    “I herewith inclose you draft, duly indorsed, also receipts duly signed. As I cannot get the draft cashed here, you would oblige me if you would send me the currency by registered mail.
    “Thanking you for your promptness in the matter, I am, respectfully yours,
    “Gustav H. Fuhrmann.”
    This letter was received by the defendant company on June 29, 1910. On June 30, 1910, Reuben Mitchell sent a telegram to the company as follows:
    “Defer payment of loss on lumber at La Rocque to Fuhrmann until investigated. . See letter.”
    On the same day Mitchell wrote a letter to the defendant, to which the name of G. Covey, Jr., was signed by typewriter, as follows:
    “Millersburg, Michigan, June 30, 1910.
    “ [On the letter head of Mr. Mitchell.]
    “The Sun Insurance Co.,
    “Chicago, Ill.

      “Dear Sirs:

      “1 understand your company had a recent fire on lumber at La Rocque station, Hawks post office, Presque Isle county, Michigan, on policy issued to August Fuhrmann, which loss has been adjusted and, I am told, paid. This lumber belonged to R. Mitchell, of Millersburg, Mich., and the circumstances connected with this indicate incendiarism and point suspicion towards Fuhrmann. Kindly do me the favor to furnish me with full details as to when the insurance was effected, by whom, its amount, and the proof of loss which were furnished to your company. As the matter stands, it now looks as if a crime had been committed, as well as a civil wrong, and I trust I may have your assistance in investigating this matter and punishing the criminal, if we can secure the evidence to do it.
    “Very respectfully yours,
    “G. Covey, Jr., “Prosecuting Attorney.”
    This letter seems to have been dictated by Covey, but actually written by Mitchell.
    And on September 10, 1910, the following letter was written signed by Mitchell himself:

      “Sun Insurance Co.,
    “Lansing, Mich.

      “Dear Sirs:

    “Your letter of August 18 received during my absence from home; hence this delay in answering. The matter of Fuhrmann has been placed in the hands of the prosecuting attorney, and we are awaiting developments. It matters not what Fuhrmann claims due him on the lumber. He has received every dollar for this lumber and cedar, according to contract prices, he is entitled to. If he has anything due on lumber, why don’t he get to work and collect it from the people who he claims to owe him? They are all good.
    “At the time of the fire there was not a foot of lumber anywhere around which belonged to any one beside myself and the Michigan Mfg. & Lumber Co. In regards to my oral agreement with Fuhrmann, I was to have the hardwood lumber at a price agreed upon, the inspector was agreed upon to do the inspection, and I was to pay him for his stock as fast as it was delivered at La Rocque, inspected, and in piles. This I did. I expect arrest will follow soon.
    “Yours truly,
    “R. Mitchell.”
    The earlier of these communications having been received by the defendant about the time the indorsed draft for $520 reached its hands, it declined to return to plaintiff the money represented by said draft. On May 28, 1912, plaintiff brought suit against the defendant in assumpsit for the proceeds of said draft. The defendant defended the suit upon several grounds. Defendant claimed, first, that the policy was void because plaintiff had no insurable interest in the lumber; second, that, the description of the property and title thereto being false in fact, the policy was void; third, that the plaintiff was responsible for the origin of said fire; and, fourth, that the plaintiff’s suit could not be maintained because of a provision' óf the policy, “that no suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity, unless commenced within twelve months next after the fire.” Under these pleadings the parties went to trial, and plaintiff recovered a judgment for the amount of the draft, with interest. Defendant reviews the case in this court by writ of error.
   Brooke, J.

(after stating the facts). Defendant first claims that the plaintiff should not be permitted to recover because, at the time the policy was written, he had no insurable interest in the lumber, for the reason he had been paid in full and accepted his money.

As nearly as we are able to determine from a careful examination of the record, it seems to have been the claim of Fortier, representing the Michigan Manufacturing & Lumber Company, that the plaintiff had been paid in full according to the scale sheets of McComb, the scaler employed by Fortier. The total amount of hemlock settled for according to said sheets was 36,523 feet. Mitchell claims to have paid according to the scale sheets for 26,551 feet. The plaintiff produced his scale book made at the time the lumber was cut, from which it appears that there was hardwood to the amount of 56,417 feet, and hemlock to the amount of 70,144 feet. The insurance agent before writing the policy in question made a personal examination of the lumber, counted the piles and the tiers in each pile, and estimated the amount at about 100,000 feet. It is apparent that, if the agent Schmidt’s estimate was correct, there was at that time in the piles nearly 40,000 feet for which the plaintiff had not been paid. The record discloses that the plaintiff refused to accept the scale given him by Fortier and Mitchell, and had forbidden the removal of the lumber until a new scale could be made. Under these circumstances we are of opinion that the title to the lumber, or at least such portion of it as had not been scaled or paid for, remained in plaintiff.

Plaintiff’s application for insurance was verbal; but Mr. Schmidt, the agent, testifies that he was told by plaintiff that the lumber was contracted to be sold to Mitchell and Fortier. Plaintiff does not claim to have disclosed to the agent the exact amount which had been paid him thereon. This, however, we think is unnecessary; the agent not having requested such information. Guest v. Insurance Co., 66 Mich. 98 (33 N. W. 31) ; Gristock v. Insurance Co., 87 Mich. 428 (49 N. W. 634) ; Boose v. Insurance Co., 84 Mich. 309 (47 N. W. 587, 11 L. R. A. 340) ; BrunswickBalke-Collender Co. v. Northern Assurance Co., 142 Mich. 29 (105 N. W. 76).

Upon this question, the court charged the jury as follows:

“Now, gentlemen of the jury, that is a question of fact what he informed Mr. Schmidt. That is for you to determine what he really did say to Mr. Schmidt. You have heard Mr. Schmidt’s testimony, and you have heard his testimony. But I tell you, gentlemen, that unless at that very time he fairly and fully apprised Mr. Schmidt of what his real interest there was, that he could not recover in this case at all.
“But I also charge you, gentlemen of the jury, that if he at that time fully and fairly stated to Mr. Schmidt the truth — the truth — that he had an interest there in that lumber, that he had not been paid fully for the lumber, that he had an interest there of several hundred dollars, more than he had been paid, that he could recover in this case.”

It ,is next urged that plaintiff cannot recover because the interest, title, and possession of the lumber changed after the policy was written and before the fire. This claim is based upon the fact that plaintiff received two small checks from Mr. Fortier and Mr. Mitchell shortly after the policy was issued. In view of the circumstances under which this policy was issued, and the contracts for the sale of the lumber covered by it which were known to defendant through its agent, we are of opinion that the receipt of these sums cannot be held to vitiate the policy. In other words, that it did not effect a change in the interest, title, or possession of the subject of insurance.

Defendant next urges that plaintiff cannot recover because he misrepresented the material facts and circumstances concerning the insurance, the subject thereof, after the fire, and in his proofs of loss. This claim is based upon the fact that Fortier’s name was not mentioned as one of the vendees of the lumber in question. It is the claim of the plaintiff that he told the adjuster that Fortier, as well as Mitchell, was interested in the lumber, and it is admitted by the agent Schmidt that such information was imparted to him at the time the policy was written. As Schmidt was present with the adjuster at the time the loss was adjusted, it cannot be said that the insurance company was in any wise injured by the failure to include Fortier’s name as a vendee in the description of the title. The paper itself was prepared by the defendant’s agent. It was read to and signed by the plaintiff, who swears that he did not notice the omission of Fortier’s name. Knop v. Insurance Co., 101 Mich. 359 (59 N. W. 653); Brunswidc-Balke-Collender Co. v. Northern Assurance Co., supra.

Attached to the proofs of loss was a schedule or statement of loss as follows:

Put nothing here except what assured actually agrees to and signs. All other statements and reports should he separate from proofs. Original amount lumber per estimate made by assured at time of piling:

Hardwood, 41,000 ft. cost at $10............... $410 00

Hemlock, 50,000 ft. cost at $8................ 400 00

$810 00

Deduct for sold and del. 21,000 ft. hardwood... 210 00

$600 00

Less purchaser’s interest per advance pmt. made. 80 00

$520 00

The defendant next urges that, as the plaintiff relies upon the draft, his action is an action upon the case, trover, and not in assumpsit. With reference to this point, it is only necessary to state that the question was raised for the first time in a motion for a new trial. It will not now be considered.

Defendant’s final claim of error is based upon three grounds: First, admission of the testimony; second, improper remarks of counsel; and, third, improper remarks of the court, and improperly conducting the trial of the case.

We are of opinion that no reversible error was committed in the admission or exclusion of the testimony. With reference to the two latter grounds, it is enough to say that the case for one involving so small an amount was rather unduly prolonged. The learned trial judge at times displayed some slight impatience; but we are unable to say that he disclosed any bias which tended to defendant’s prejudice. His charge was very full and presented the issues to the jury in a manner entirely fair to defendant’s claims.

The judgment is affirmed.

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


author: Kuhn, J.

text:
    MERRITT v. WESTERMAN.
    1. Adverse Possession — Landlord and Tenant — Possession.
    Acts of ownership such as to openly and publicly indicate an assumed control or use of the premises, sufficiently sustain the claim of adverse possession; the occupation need not be such as to inform a passing stranger that the person in possession claims title, but if it would advise the owner in ■ case he visits the premises that the person in possession claims to hold adversely the notice is sufficient.
    2. Evidence — Cross-Examination—Adverse Possession.
    Where it appeared from the proofs that the defendant’s title by adverse possession was complete not later than 1897 and in 1907 the claimant entered into a contract to sell the premises, providing that $500 should be deposited in a bank to remain five years unless the cloud on the title was removed before the expiration of the period, the trial court did not commit prejudicial error in refusing to permit the plaintiff’s counsel to cross-examine such witness relative to the reason for inserting the five-year limit.
    3. Same.
    Where the holder of certain tax titles put a tenant into possession, claiming to own the premises, and the tenant actually occupied the house and garden mentioned in the lease, and the instrument provided that he should permit no trespass, his occupancy was enough to apprise the original owners that an adverse claim was asserted.
    Error to Manistee; Withey, J.
    Submitted January 21, 1914.
    (Docket No. 45.)
    Decided June 1, 1914.
    Ejectment by James E. Merritt against Walter S. Westerman. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Smurthwaite & Belcher, for appellant.

      Max E. Neal, for appellee.
   Kuhn, J.

This cause has been before this court before and is reported in 165 Mich. 535 (131 N. W. 66), where the facts are sufficiently stated for a proper understanding of the issues involved. Being sent back for a new trial, it again resulted in a verdict and judgment for the defendant. The plaintiff brings the cause to this court by writ of error and claims that the testimony was insufficient to show adverse possession and that in the submission of the case to the jury and in the rulings and charge of the court there were material and prejudicial errors.

The first five assignments of error relate to the claimed legal proposition that, when a party claims an entry upon land on a date certain and under color of title, it is not competent to prove adverse possession after the expiration of limitation provided by the statute. The first alleged possession dated back to 1881, when S. W. Fowler, a lawyer, under color of a tax deed, put a tenant in possession. The circuit judge submitted the case to the jury both upon a claim of ten years’ possession under color of title of the tax deed and also under claimed possession for fifteen years. With reference to this, he charged the jury, in part, as follows:

“It must be a continuous possession. And that, gentlemen, is the crucial question in this case I think, the closest question in the case on the testimony. It must be a continuous possession, in this case, for at least 10 years. Mr. Fowler owned these tax titles. If he went into possession of this land through Mr. Hull, claiming to own the land under his tax titles, and possession of the character which I am describing to you for 10 years consecutively would create a valid paramount title by adverse possession. If he did not go in claiming title under the tax deeds, then his possession must be of the same character for a period of 15 years before title by adverse possession will ripen and defeat the other title. The fact that these tax titles and tax claims were found after-wards to be void and worthless and of no force as deeds would cut no figure in this case. You may lay that question aside and not discuss it nor refer to it, because the law provides that when a man receives a deed of land from the State and goes into possession claiming to own it under that deed, and stays there and is adversely possessed of it in the way which I have described for 10 years, his title is good against everybody. And it does not make any difference that the deed is afterwards found to be void. But if he did not enter claiming under these tax deeds, but just entered without right and without claim of right, through Mr. Hull, then his possession, adverse possession, with all its constituent elements, must obtain for 15 years instead of 10 in order to make this title paramount and defeat the other title.”

It is appellant’s claim that there is only one theory in this case, viz., that the entry was under the tax deed as color of title, and that under this claim there was but one period of limitation, 10 years, by virtue of the statute. Section 9714, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14119). The court permitted the defendant to offer testimony as to possession 18 years after the entry. It is claimed that, if the color of title is abandoned, then the defendant could claim only that part of the tract actually occupied, and there is nothing to extend the occupancy to the boundary of the land described in the deed. The so-called Richardson lease, dated January 26, 1889, it is claimed, limited the occupation to the house and garden. It reads as follows:

“Manistee, Jan. 26, ’89.
“Be it remembered that George Richardson has rented the house and garden on place Richmeyer had on section seven, twenty-two, fourteen, for the improvements he made on the house- and place, to live in until May, 1890, subject to sale by said Fowler. That he is to leave his improvements and they do and are to belong to the premises, but in case of sale, and he has to move and before time, he is to have his proportion of lumber paid back by purchaser, and he will
permit no trespass nor cut any green or valuable trees or timber.
“George Richardson.
“He may cut the maple tree, one tree back of the house if he sees fit to do.”

On the back of this lease there is indorsed in the handwriting of Mr. Fowler:

“Leased to George Richardson, house on Sec. 7, 89.”

This question was discussed in the briefs filed in the case when it was here before, and it seems to have had the consideration of the court, as the opinion says, page 537 of 165 Mich. (131 N. W. 66):

“We think, also, that there was testimony justifying an inference that these descriptions were occupied and used as one parcel, and that occupation extended to all of the land.”

By the terms of the lease, while he only occupied the house and garden, as to all but Fowler he was in possession of the entire premises, as by its terms it was his duty to “permit no trespass,” and this must be construed to refer to the Richmeyer place, which, it is conceded, is the land here in controversy. The actual occupation of the house and garden together with his duty to prevent trespassing was sufficient to fully apprise the original owners, had they been in view of the premises, that adverse claims were being asserted to the entire tract. The occupancy in the instant case comes within the rule announced in Murray v. Hudson, 65 Mich. 670, 673 (32 N. W. 889), where it was held that:

“It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as are consistent with the character of the premises in question.”

In Whitaker v. Shooting Club, 102 Mich. 454, 459 (60 N. W. 983), this court said:

“The occupation need not be such as to inform a passing stranger that some one is asserting title. If it be such as to notify and warn the owner, should he visit the premises, that a person is in possession under a hostile claim, it is sufficient.”

We cannot therefore see how it was prejudicial to the plaintiff to have submitted to the jury the question of adverse possession for the period of 15 years. Cook v. Clinton, 64 Mich. 309 (31 N. W. 317, 8 Am. St. Rep. 816). An examination of the testimony in this case as to adverse possession shows that it was substantially of the same character as on the previous trial. We would not be warranted, therefore, in coming to a different conclusion than was had in that case, viz., that it was not error to submit the question of adverse possession to the jury. Merritt v. Westerman, supra, and cases cited.

The lands were conveyed to the defendant by Isaac N. Hilliard on April 8, 1907. On April 10, 1907, Hilliard and the defendant entered into a contract which provided that as the parties had theretofore entered into a contract for the sale of the land and the remaining 40 acres of the same quarter section, and that as an interest in said lands was claimed by the plaintiff herein, as agent for another person, $500 of the purchase money was to be deposited in a bank, to remain there for a period of five years unless the cloud upon the title was removed before that period. This contract was admitted in evidence to show the interest of the witness Hilliard in the subject-matter of the litigation. He was asked on cross-examination why the period of five years was mentioned in the contract, and the court did not permit an answer. It is urged that this was error, as it was proper to show this as bearing upon the question of the defendant’s good faith. The title of the defendant, if perfected at all, was completed in 1891, under the ten-year period, and in 1896, under the fifteen-year period and the contract in question was entered into several years later. The contract does not disclose any waiver or nonclaim of his own title by adverse possession on the part of Hilliard or on the part of Westerman. We do not think that limiting the cross-examination was prejudicial error under the circumstances of this case.

We are satisfied that the case was fairly tried and submitted to the jury with a proper charge, and the judgment is therefore affirmed.

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


text:
    McCOY v. MICHIGAN SCREW CO.
    1. Master and Servant — Industrial Accident Board — Personal Injuries — Proximate Cause.
    Where an employee’s eye received an injury from pieces of steel flying from a lathe that he was operating and the eye became infected with gonorrhea with which the employee was afflicted, the loss of his eye, resulting from the disease, did not arise out of and in the course of his employment under the workmen’s compensation law. Act No. 10, Special Session 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.).

      2. Same — Evidence—Burden of Proof.
    The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose out of and in the course of his employment rests upon the claimant.
    Certiorari by the Michigan Screw Company to review an award of the industrial accident board to William McCoy, claimant.
    Submitted January 28, 1914.
    (Docket No. 62.)
    Reversed June 1, 1914.

      Stevens T. Mason, for appellant.

      Edmund C. Shields, for appellee.
   Kuhn, J.

The claimant, William McCoy, was employed by the contestant and appellant as an operator on a lathe machine. On February 1, 1913, several small pieces of steel from the machine on which he was working lodged in his eye. This, it is claimed, caused an irritation and caused him to rub his eye. At the time, claimant was being treated by Dr. A. M. Campbell for gonorrhea. On February 7th he went to Dr. Cochrane, who removed four pieces of steel from the eye. The next day the doctor removed another piece of steel and discovered that the eye had become infected with gonorrhea. He was then sent to a hospital and subsequently lost the sight of the eye. The industrial accident board affirmed an award made claimant by an arbitration committee of $6.49 per week for 100 weeks.

It is the claim of contestant and appellant that the loss of the eye was not the result of a personal injury arising out of and in the course of claimant’s employment, but was the direct result of a disease unconnected in any way with his employment. At the hearing before the industrial accident board, four physicians were sworn, who testified as to the effect upon the eye of gonorrheal infection.

Claimant contends that the germs would not have entered the eye had not the steel caused “(a) an inclination to rub — the inciting cause — (b) inflamed condition which made the eye susceptible to the entry of the germs, as in the case ,of blood poison and erysipelas.”

A careful reading of the testimony of the physicians shows that the infection can easily be caused to a normal eye by rubbing the eye with a hand infected with the gonorrheal germ. Dr. Bret Nottingham testified:

“Mr. Mason: And will you say as an expert how gonorrhea can be communicated to the eye? Is it by germ or otherwise?
“A. Yes; it is a contagious disease of course, produced by this germ, and a person, in caring for themselves as they have to, get some of this pus on their finger containing the germs, and of course, the eye being irritable, would rub the eye with the finger containing this pus.
“Mr. Mason: No doubt that infection of the eye was caused by the entering of gonorrhea germs. Could that infection occur if there was no injury in the eye?
“A. Yes.
“Mr. Mason: Therefore, if a perfectly normal eye will be rubbed by a hand infected with the germ, it will infect the eye.
“A. It might be very easily infected; a normal eye can be infected in this same manner.
“Mr. Mason: Suppose this boy had not had any
injury to his eye, and had rubbed his eye; would it be possible that he could have lost his eye?
“A. Yes; the same result might have been obtained.”

Dr. Cushman testified:

“Gonorrhea is one of the most common conditions that there is perhaps, and it is an admitted fact, without any argument upon what we are supposed to know, that the gonorrhea germ will attack and penetrate the unaffected covering of the eye. I have heard it said on reasonably good authority that it is perhaps the only germ that will attack an uninjured eye; but the fact of there having been this injury to the eye from the steel, without any question in my mind, has lowered the resistance of the eye, that is, weakened it, and made it less resistant to the infection. With the inflammation, it was much more probable that the eye become affected. Now, if the infection of gonorrhea was easier transmitted to the eye, there would be probably about 50 per cent, of us running around blind. That is, gonorrhea is common, and you don’t see many blind. I have heard that 90 per cent, of the men in a certain town either have or have had gonorrhea, and 90 per cent, of the men haven’t got ba,d eyes, and probably have been careless about their fingers. The presence of an injury to the eye makes it far more probable that the eye will become diseased.”

Dr. Cochrane testified:

“Mr. Mason: Dr. Cochrane, did you examine this William McCoy; on what date?
“A. February 7th.
“Mr. Mason: He came to you for what trouble?
“A. He complained of steel in his eye.
“Mr. Mason: Did you take the foreign bodies?
“A. Yes.
“Mr. Mason: Where were they in the eye?
“A. On the upper lid on the under side.
“Mr. Mason: Were they in a place where they would have been apt to give very serious injury to the eye?
“A. Not serious injury; they would produce irritation.
“Mr. Mason: Does the present loss of the eye result from these cinders having been in or from another cause?
“A. The direct cause is from the gonorrhea infection.
“Mr. Mason: Therefore the loss of the eye is the direct result of disease, and not of accident.
“A. The immediate cause is the disease.
“Mr. Mason: In other words, what we call the resulting cause is the disease.
“A. The immediate or. direct cause.
“Mr. Mason: How did that gonorrhea get into his eye?
“A. Probably from rubbing with his fingers.
“Mr. Mason: He had gonorrhea before that?
“A. I understand so.
“Mr. Mason: At the time you examined him did he have gonorrhea?
“A. I understand so.
“Mr. Reaves: You say, Doctor, that that was the approximate cause of the loss of his eye — the immediate cause — what would you say if he had not have had the steel in his eye?
“A. If he had not had the steel in his eye, he might not have rubbed his eye, at least not as vigorously as he did, and so he might not have infected the eye.”

Dr. Campbell testified:

“Mr. Atkins: How much more chance would there be for his losing his eye after having the piece of steel in there, and the inflammation with it, how much more chance would there be to lose the eye ?
“A. Just as soon as the infection gets in there I don’t think it would make a great deal of difference. You are just as liable to lose the eye as soon as your infection gets there, whether you had anything in there or not. The point is here, your steel would be an inciting cause, and get infection on that account; but, once you get the infection, you are liable to lose the eye one way or the other. The point is here, there is an inciting cause from rubbing the eye; the effect of the steel being there, a man would be more liable to get infection of the eye, but, once your infection is in there, you will lose the eye from the gonorrhea infection. It does not make any difference how it gets in there, you will lose the sight partially or complete.”

The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose “out of and in the course of his employment” rests upon the claimant. Bryant v. Fissell, 84 N. J. Law, 72 (86 Atl. 458) ; 8 Negligence & Compensation Cases Annotated, p. 585. Ruegg on Employers’ Liability and Workmen’s Compensation, p. 343, says:

“If an inference favorable to the applicant can only be arrived at by a guess the applicant fails. The same thing happens where two or more inferences equally consistent with the facts arise from them.”

Boyd on Workmen’s Compensation, § 559, says:

“The workman carries the burden of proving that his injury was caused by the accident and where he fails to do so, and where the evidence as to the cause of the injury is equally consistent with an accident, and with no accident, compensation may not be awarded him.”

In the instant case it is not reasonable to say that he would not have rubbed his eye if the steel had not lodged there. He might not have rubbed his eye, it is true; but it is just as reasonable to suppose that he might have had occasion to rub his eye without this particular inciting cause. By the medical testimony it conclusively appears that the infection could have taken place if the steel had not been there. It must be said, from this record, that the loss of the eye was directly and immediately due to the infection caused by the gonorrhea,, which it cannot be claimed is a risk incident to the employment. We are of the opinion that the facts are not capable of supporting the inference that the injury arose out of and in the course of the employment.

The decision of the industrial accident board is reversed.

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


author: Kuhn, J. Ostrander, J.

text:
    RANTA v. NEWPORT MINING CO.
    1. Mines and Mining — Negugence — Evidence — Expert Testimony — Witnesses.
    On tbe trial of an action for injuries sustained in tbe mine of defendant by tbe giving way of certain timbers supporting a “raise,” tbe opinion of a miner wbo bad been in that line of employment for ten years and upwards and was familiar with the work of constructing raises, that certain timbering was usually done in a way which he described, was properly received in evidence and defendant’s objection that he was not qualified to testify to the custom was correctly overruled, defendant not cross-examining the witness and attempting to raise the point by a general objection and where defendant’s captain and foreman testified to similar facts. Ostrander, J., dissenting.
    2. Same — Evidence.
    Another witness who gave expert evidence as to the proper method of timbering was also correctly allowed to testify where he had been a miner for a long period and had seen the method of doing similar work and had practical experience.
    3. Same — Evidence — Mortality Tables — Permanency oe Injuries.
    Evidence that plaintiff’s leg- was broken and became shortened as a result of injuries sustained in a mine, that he suffered other serious injuries, that some of them would be permanent to some extent, authorized the admission in evidence of the mortality tables; and it was sufficient to sustain a charge and verdict for 'future pain and loss of earning power and for future expenses.

    4. Trial — Charge—Claims.
    It was also proper for the court to state to the jury the claim of the plaintiff whose testimony supported the instructions.
    5. Same — Safe Place — Assumed Risk.
    The doctrine that it was the master’s obligation to furnish a safe place, applied to the insufficient or defective construction of a raise in defendant’s mine, which was not securely timbered or supported and gave way injuring the employee: the duty could not be delegated and as the evidence tended to show that plaintiff had no warning or knowledge of the danger he could not be held to have assumed the risk of the alleged negligence.

      Error to Gogebic; Cooper, J.
    Submitted January 22, 1914.
    (Docket No. 65.)
    Decided June 1, 1914.
    Case by Victor Ranta against the Newport Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      C. W. Westerman (James G. Flanders, of counsel), for appellant.

      O’Brien & Le Gendre and George O. Driscoll, for appellee.

       On the question of mortality tables as evidence, see note in 40 L. R. A. 553.

       As to servant’s assumption of risk in attempting dangerous work in obedience to orders, without fully appreciating the danger, see note in 4 L. R. A. (N. S.) 838.

   Kuhn, J.

The defendant operates an iron mine at Ironwood, Mich., with the customary shafts, drifts, levels, sublevels, chutes and raises. From one of the main drifts, or levels, known as the fifteenth level, a perpendicular shaft, or raise, had been constructed, reaching upward to a drift 47 feet above, which was known as the forty-seventh sublevel. Mining operations were going on in this sublevel, and the raise in question had been constructed as a chute through which ore was dropped to the level below. It was divided by a partition into two perpendicular compartments, and, when the ore clogged in one of these compartments, a workman might be let down into the other to loosen the ore by pounding on the partition between.

At the time of the accident, the plaintiff, who had worked in mining operations for about two years, was employed as a marker on the top of this raise on the-forty-seventh sublevel. It was his duty to mark how much ore the miners brought in and help the trammers turn the car on the turntable, keep the table free of dirt, and open the door of the car. He had been at this work one day, and was told by the shift boss to continue the work on the second day. The chute became clogged, and it is the claim of the plaintiff that the shift boss ordered him to go down the chute and loosen the ore, and that a rope was tied around his body and he was lowered down the larger side of the raise; that he was given a four or five pound hammer with which he was instructed to pound upon the dividers; that he had never done this work before; that no warning of the danger was given him; and that, while engaged in this work and suspended about ten feet from the bottom of the raise, the clogged ore started to run in the opposite compartment, and some of the dividers near the middle of the ore chute broke through, and ore, together with some of the dividers, fell, through the opening thus made, upon the plaintiff and caused the injuries of which he complains, and for which the jury awarded him damages in the sum of $5,000.

One of the grounds of negligence which were submitted to the jury was the claimed defective construction of the raise in question. Plaintiffs declaration describes the construction as it was, and as it is claim- • ed it should have been, as follows:

“That said raise was of great size, to wit, 4 feet wide by 7 feet in length on the inside, and extending, to wit, from said fifteenth level, a distance of, to wit, 50 feet, upward to a certain sublevel therein, and was made and constructed by making an excavation or hole upwards from, to wit, said fifteenth level, and placing timbering, called cribbing, inside of said hole, to wit, 8 feet in length lengthwise, and 4 feet, in length crosswise, which cribbing was and is from 6 to 12 inches in diameter, and for the purpose of dividing said raise into two compartments, or holes, the defendant undertook to make a dividing or partition wall within the rectangular space formed by the inside of said cribbing, so constructed therein, as aforesaid. That defendant constructed said partition or dividing wall in said raise in the following manner, to wit: By nailing or spiking cleats of, to wit, two pieces of plank and lagging, about 4 or 5 inches apart, upward and downward on the inside of the timber or cribbing in said raise, and on opposite sides thereof, and then placing across said raise, so that the ends thereof would come within the said 4 or 5 inch space between said cleats of plank and lagging, certain lagging, to wit, cedar and other lagging, from the top to the bottom of said raise, and in this manner: Divided said inside space into two holes or compartments — and at the top of said raise, to wit, on said sublevel, defendant so built, constructed, and arranged tracks, platforms, and turntables that cars used for transporting or tramming ore in said mine could be conveyed to, and their contents dumped in, said raise, and so built and constructed an opening at the bottom of said raise, known in mining parlance as á ‘chute,’ that ore dumped in said raise, in said sublevel, could be taken, therefrom through said chute at the bottom thereof. That, in the use of such raises in like mines as said Newport mine, ore is qt times dumped therein in such quantities as to fill,, or partially fill, such raises, and at times such ore becomes clogged therein at divers points above the bottom thereof, while that part near the bottom thereof runs, and is taken out, through the chute at the bottom thereof, and there remains in the bottom of such raise a vacant space in one of the chambers of such raises, and it becomes necessary in order to loosen such ore, so clogged, as aforesaid, and to cause it to pass through such raise, for some person to descend into one hole or chamber of such raise and loosen such clogged ore and matter in the opposite chamber by striking upon the dividing or partition wall, producing a vibration, and thereby loosening and liberating the ore and matter in the opposite chamber, and causing it to fall to the bottom thereof, so that it can be taken therefrom through the chute therein; and that the work and operation of so descending into such chute and loosening and liberating such clogged ore is of an unusual and exceptional nature, and highly dangerous and perilous to the person performing the same, and great skill and experience is required in such person in order that he may escape injury while so doing. That the proper and safe way to build and construct such raises, and to place such partitions or dividing walls therein, is to build and construct the outside wall of such raise with good, strong, sound, and heavy timber, and to place crosspieces of like timber, securely set and placed into notches, grooves, or pockets made on the inside of such outside timbers, at distances of from 3 to 4 feet apart, and then to strongly and securely spike strong, sound, and heavy timber upward and downward at right angles with such crosspieces, on the side (or sides) of such raise, which is to be used as an ore compartment therein, but the plan and manner under which said 15 raise was constructed was and is of an unsafe, insecure, and dangerous kind and character, and it was and is extraordinarily dangerous and hazardous for any person (and especially an unskilled person) to descend therein and perform the work and operation of loosening and dislodging ore, as aforesaid, and such operation in such raise as said 15 raise was and is of a much more highly dangerous, perilous, and hazardous nature than to perform a like operation in a raise properly built, as aforesaid; and the timbers (both outside timbers and cross timbers) in said 15 raise were not of a sound, strong, secure, and proper kind, or of sufficient size and strength for use in such a raise, being, to wit, too small, weak, rotten, unsound, defective, and unrealiable for such use, which greatly increased such danger to such person so descending therein — all of which was at and at all times prior to the time of the occurrence of said injuries well known to the defendant, but unknown to the plaintiff, as the defendant well knew, or should have known.”

Counsel for appellant has grouped the legal questions raised by proper assignments of error as follows:

(1) Admission of expert testimony relative to the method of constructing raises.
(2) The admission in evidence of the table of mortality.
(3) Instructions in reference to future suffering, future expenses, and future loss of time and earnings.
(4) Excessiveness of verdict.
(5) Improper assumption in the judge’s charge of a fact which is contradicted by the testimony and the pleadings.
(6) Verdict contrary to evidence.
(7) Question of fellow-servants and safe place to work.

The first question relates to the qualifications of witnesses Kilponen and Koski to testify-' as experts as to the proper construction of raises in mines. Kilponen had worked as a miner for oven ten years, and his work had been building raises. He illustrated how the raise should be properly constructed by drawing a diagram on a blackboard. No question was asked him on cross-examination as to his qualifications, and the objection chiefly urged against his testimony is that he was allowed to testify as follows:

“Q. Have dividers been customarily put in in that way for the past six years in this vicinity, with the joggle in?
“Mr. Norris: That is objected to as incompetent, irrelevant, and immaterial and not a subject of expert testimony.
“Mr. Driscoll: I think he can testify as to the custom.
“The Court: Take the answer.
“Mr. Norris: Exception.
“The Witness: A. Yes, in all the mines; in all the Oliver Company mines. The reason that the joggles are put in that way is because it makes it more solid and strong and won’t-slip off.”

No suggestion was made in the objection of counsel that witness had not sufficient knowledge of the custom to answer the question. The question called for competent, relevant, and material testimony, and no error was committed in permitting the answer. He further testified:

“It is necessary to have them strong and solid because lots of fellows have to be around there. Pipes run through, and there are pipe gang men. They have to be strong so that nobody won’t get hurt.
“Q. How would they get hurt if they were not strong?
“A. If the raise gets blocked up with ore and then loosened, its heavy weight will break it or push them out, if the chute is blocked up.
“Q. What I want to know is whether it will do that with a chute that is properly built?
“Mr. Norris: The last objection is renewed.
“The Court: Answer the question.
“Mr. Norris: Exception.
“The Witness: A. No, sir; it won’t if it is correctly built. Where dry, soft ore is being run through a raise, and the raise has not been used to exceed about a month, the timbers would not rot within that time.”

We cannot see how allowing the answers was prejudicial to the defendant, as both the defendant’s mine captain and shift boss testified that, in order to withstand the strain, it was necessary to have the dividers strong and of proper length and firmly set against the opposite sides of the raise.

The witness Koski testified that he had worked in at least five different mines in the vicinity of defendant’s mine; that he had built and helped build raises, but not before 1909; that he knew how raises were customarily built before that time, as he had been going through such raises three or four years before and had examined them to see how they were built. The testimony which gave rise to the objection was as follows:

“Mr. Driscoll: Q. Do you know how raises were built in 1909 and prior thereto?
“A. I have not been building them myself, but I have seen.
“Q. Then do you know how they were built?
“A. I saw it that they were built the same way as—
“Mr. Norris: Wait a minute; I object to that, if the court please. That question only calls for yes or no.
“The Witness: A. Yes.
“Mr. Driscoll: Q. Now, I ask you how they were built at that time?
“Mr. Norris: I object to that, if the court please, because the only evidence of this man himself as to his observation is simply that he went through them.
“The Court: You may take the answer.”

The witness thereupon made a drawing on the blackboard and described the construction.

“Q. Why are joggles put in those dividers?
“Mr. Norris: I object to that because he has not shown himself competent to testify as to those things in 1909 or prior thereto.
“The Court: Take the answer.
“Mr. Norris: Exception.
“The Witness: A. Because it is more solid and stronger.”

Both Kilponen and Koski qualified themselves to the satisfaction of the trial judge to testify as to this construction, and, as both of these witnesses were miners of practical experience, we are of the opinion that no prejudicial error was committed in allowing the questions and answers objected to. 17 Cyc. p. 239; Bettys v. Denver Township, 115 Mich. 228 (73 N. W. 138).

The objection to the admission of the mortality tables is based on the claim that there was no. evidence to show permanent disability. At the time of the accident, plaintiff was 23 years of age, sound physically, and in good health. As a result of the accident, his right leg was broken, there has been a shortening of about three-quarters of an inch, and also a limitation in the movement of his knee joint, which the physician testified will be permanent to some extent. Plaintiff also claimed that his face was swollen, his lips smashed, so that he could not eat solid food for weeks, and still show a scar about an inch long; that he was in the hospital five months lacking two days; that since the injury he has headaches, stomach and bowel trouble, and suffers pain, not only in the broken limb, but in his side; that he is unable to do hard work, such as mining, and the work that he does is attended with pain. There can be no question from this record that his leg is permanently injured, and it was therefore not error to introduce the mortality tables in evidence. Haines v. Railway Co., 129 Mich. 475, 479 (89 N. W. 349).

We are also satisfied that the testimony offered to show the injuries was sufficient to support the instructions of the trial judge with reference to future suffering, future expenses, and- future loss of time and earnings. Kuney v. Butcher, 56 Mich. 308 (22 N. W. 866) ; Olson v. Village of Manistique, 110 Mich. 656 (68 N. W. 986) ; Styles v. Village of Decatur, 131 Mich. 443 (91 N. W. 622).

The part of the judge’s charge which is criticised as assuming a fact which is contradicted by the testimony and the pleadings is the part in which the court stated to the jury the claim of the plaintiff, which it was proper for the court to do, as the claim stated was supported by evidence. Schweyer v. Jones, 152 Mich. 241 (115 N. W. 974).

We are also of the opinion that the doctrine of safe place applies in the instant case. The plaintiff had nothing to do with the building, inspecting, or repairing of the raise, and he claims he was ordered to do this work by the shift boss, without any warning of the danger, and that he did not know of any danger. The duty to furnish a safe place was a duty which could not be delegated by the master; nor can it be said that the plaintiff assumed the risk. See Orso v. Engineering Works, 164 Mich. 568, 571 (129 N. W. 673), and cases therein cited.

The trial judge properly denied the motion for a new trial. We are satisfied that the evidence was sufficient to sustain the verdict and the amount thereof.

Judgment affirmed.

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

Ostrander, J.

In my opinion the testimony of the witness Kilponen as to the custom of using or putting dividers in Oliver Company mines was incompetent.


author: Steere, J.

text:
    MYERS v. ERWIN.
    1. Limitation op Actions — Appeal and Error — Law op the Case —-Judgment.
    Upon the second review of a cause in the Supreme Court a finding in the first appellate proceedings to the effect that there was evidence in support of the plaintiff’s contention as to the statute of limitations is conclusive and will not be reconsidered upon a similar record.
    2. Same — Payment—Joint Obligation.
    Payment by one of several joint obligors, without the authorization or consent of one of the others does not interrupt the running of the statute of limitations as to the latter: section 9745, 3 Comp. Laws (5 How. Stat. [2d Ed.] §14152).
    3. Same.

      Held, also, that the court should have submitted to the jury the issues raised by the evidence of one of the defendants which tended to show that he had no knowledge of the alleged payments; and it was erroneous to direct a verdict for plaintiff on the theory that the claim was not barred by limitation of time under the statute.
    Error to Muskegon; Sullivan, J.
    Submitted January 23, 1914.
    (Docket No. 100.)
    Decided June 1, 1914.
    Assumpsit by Henry E. Myers and Edwin F. Holmes as administrators of the estate of John L. Woods, deceased, against the Muskegon Improvement Company, George L. Erwin and others upon a promissory note. From a judgment for plaintiff on a verdict directed by the court, defendant George L. Erwin brings error.
    Reversed.

      Hatch, McAllister & Raymond, for appellant.

      Clamper ton, Owen & Hatten, for appellees.
   Steere, J.

This action is brought by the administrators of John L. Woods, deceased, upon a promissory note given to him by the Muskegon Improvement Company, having been executed by G. L. Mason, as president, and George L. Erwin, as secretary, and indorsed by George L. Erwin, G. L. Mason, F. L. Holbrook, David D. Erwin, and F. A. Nims..

Defendants interposed a plea of the statute of limitations which was sustained on a former trial in the circuit court, and on review reversed by a decision of this court reported in 169 Mich. 689 (135 N. W. 949), to which reference is made for a statement of the case and questions then passed upon.

Following the former decision by this court, application was made for a rehearing; one of the grounds urged being that certain facts were found and stated as a basis of the opinion which were not supported by the record. The application was denied. It is again urged that the evidence in this case does not sustain certain of the material facts found, and, if there is any testimony in the record so tending, there was also testimony to the contrary presenting disputed questions of fact; and on the second trial, in which a jury was demanded, those questions were for the jury.

On a retrial at circuit before a jury, the learned circuit judge directed a verdict for plaintiff, saying, after reviewing the testimony:

“Now, what I have said shows you that here is the same case, it is the same facts, and there is nothing left for the court or jury to do excepting to follow the law of that case, and that was * * * that the statute of limitations did not operate to bar the claim of the plaintiff.”

The evidence is the same here as on the former trial, with the addition of the testimony of George L. Erwin, who is the only appealing defendant. He was not a witness upon the first trial.

Much of defendant’s brief is devoted to a reargument of the questions raised and argued in the case when here for review of the first trial, had before the court without a jury. The conclusions reached on the record then made and then before this court cannot now be reconsidered nor disturbed. Then all questions of fact as well as of law were before the court, and it was determined that the record contained evidence, though upon some points perhaps but inferential, to sustain and justify the result arrived at.

It is undisputed that the statute of limitations had run against this note, unless it is relieved from the force of said statute by one or more of the last three payments, discussed in the former opinion, and those payments would not stop the statute running in favor of appellant unless she is shown, either by inferential or direct evidence, to have consented to or authorized the same. A new promise will not be implied from a partial payment made by another under such circumstances as will preclude such inference.

The records of both cases show that, though he was a payor, the business of collecting and remitting payments, collected from collateral given to secure this note, was. attended to chiefly by David D. Erwin, of the law firm of Nims, Hoyt, Erwin, Sessions & Vanderwerp. The payment of $82.23 was remitted by said firm, as shown by its letter dated February 20, 1904, sent with the remittance to plaintiffs. F. A. Nims, of said law firm, in seeking to avoid the effect of said payments, testified that he knew nothing about the collateral given with, nor of the payment made upon, such note. It was the opinion of this court when reviewing the first trial that, upon the record then made and considered in its entirety, Nims should be held to have known of and authorized such payments. On the second trial, by jury, the trial court held, as a matter of law, that appellant, “who testifies to the same facts, that he knew nothing about the payments that are indorsed upon the note and which it was alleged by the plaintiff in this case took it out of the statute of limitations,” could not escape liability inasmuch as this court had previously held that a new promise should be implied by reason of such payments as to all defendants, including Nims.

Appellant, George L. Erwin, who was not a witness nor present at the former trial, here testified that he was never a member of nor connected with the law firm of which David D. Erwin and F. A. Nims were members and knew nothing about their transactions with John L. Woods, whom witness had never seen and did not know personally; that the Muskegon Improvement Company failed, turned over all its remaining property to trustees, held no more meetings, and went out of business in 1894, at which time he severed his connection with the concern; that he had been absent from Muskegon most of the time for 12 or 13 years and supposed the improvement company’s matters were all closed up; that he had no interest in the collateral given to secure the note in question nor in any surplus which might arise therefrom after such note was paid; that he had no knowledge David D. Erwin made any collections on such collateral or any payments on said note subsequent to 1894, and had never, directly or indirectly, authorized or consented to the payments in question.

These were statements of fact not in the previous record. If they are true, the payments in question made by David D. Erwin without appellant’s knowledge or consent would not deprive the latter of claiming the benefit of the statute of limitations which by his plea he has sought refuge under. Section 9745, 3 Comp. Laws (5 How. Stat. [2d. Ed.] § 14152); Rogers v. Anderson, 40 Mich. 290; Gates v. Fisk, 45 Mich. 522 (8 N. W. 558) ; Borden v. Fletcher’s Estate, 131 Mich. 220 (91 N. W. 145).

There is evidence in this record, some of it documentary, tending to negative appellant’s testimony, but the conflicting.testimony raised issues of fact in the case which were not for the court to decide in a jury trial, and which should have been submitted to the jury under appropriate instructions as to their legal significance and directions as to what verdict should be rendered according as the jury might determine the facts.

The judgment is reversed, and a new trial granted.

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


text:
      In re DAILEY’S ESTATE. DAILEY v. McCARTHY.
    1. Trial — Wills—Evidence—Conduct of Court.
    Where the trial court excluded the opinions of some of the witnesses for proponent in a will contest, but later, after examining into the point, overruled the objection and permitted the witnesses to testify, any prejudice which may have resulted from the original ruling was cured.
    2. Witnesses — Executors and Administrators — Knowledge of Decedent.
    An administrator with will annexed, who appeared in a contest over the will as a party to the cause only by virtue of his interest as administrator of the estate but was not a proponent of the will, was not an opposite party as to the contestants within the meaning of 3 Comp. Laws, §10212 (5 How. Stat. [2d Ed.] § 12856), excluding testimony of the opposite party as to matters equally within the knowledge of decedent. It was error to exclude questions of contestant’s counsel what the administrator saw and heard in an interview with the testator who was a near neighbor. of the administrator and had known him well for 42 years.
    Error to Kent; Cogger, J., presiding.
    Submitted January 23, 1914.
    (Docket No. 91.)
    Decided June 1, 1914.
    Mary McCarthy presented for probate an alleged will of Dennis Dailey, deceased, which was allowed in the probate court and the contestants appealed to the circuit court; being joined by the said Mary McCarthy, in contesting the validity of the instrument. Martin Whalen, administrator of the estate of decedent, and the proponents bring error from a judgment denying the probate of the will.
    Reversed.

      Powers & Eardley, for appellants.

      Martin H. Carmody and William F. McKnight, for appellees.
   Steere, J.

This is a contest over the last will and testament of Dennis Dailey, formerly of Wyoming township, Kent county, Mich., who died in the city of Grand Rapids on November 3, 1910, at the age of about 67 years, leaving an estate of uncertain value, consisting of over $3,500 of personal property and 40 acres of land lying close to the city of Grand Rapids, valued by certain witnesses as high as $10,000; the whole estate, however, being estimated in the petition for probation of his will at approximately $7,000. He never married, and was survived by a brother, Jeremiah Dailey, residing in Nebraska, a sister, Mrs. Mary McCarthy, and four nieces and nephews residing in Minnesota, and a niece and nephew apparently residing in Massachusetts.

On April 30, 1910, while a patient at a hospital in Grand Rapids, deceased executed the will in controversy, by the terms of which he bequeathed $600 to his sister, Margaret (Mary) McCarthy, $100 to his parish priest, $5 to each of four nephews and nieces, and the remainder of his estate to his brother, Jeremiah Dailey.

The instrument in question is in legal form, appearing on its face to have been executed in compliance with all statutory requirements. It was filed with, and admitted to probate in, the probate court of Kent county, on the petition of Mary McCarthy, after a contest in which she was one of the contestants, protesting against its admission to probate. Subsequently the proceedings were removed by appeal to the circuit court, in which she joined with other contesting heirs, where a trial by jury resulted favorably to the contestants. The contest was made upon the grounds of undue influence and mental incompetency.

It was claimed by contestants, and testimony was introduced tending to show, that the alleged mental incompetency resulted directly from an attack of apoplexy followed by partial paralysis, which came upon deceased but three days before the date of the will, and that failing health occasioned by hardening arteries naturally led up to, and caused, the apoplexy; that subsequent to the attack he was removed to a hospital, where he remained until his death, his mind being seriously impaired and enfeebled to such an extent that he was wholly incapacitated to understandingly transact any business, and mentally incompetent to make a will. This claim is further emphasized and elucidated by the testimony of experts, produced by contestants who, in answer to hypothetical questions pages in length, state that deceased must have been, and in truth was, suffering for a considerable time before the making of his will with general atheroma and arterial sclerosis, which were the superinducing causes of the apoplectic stroke, and that mental impairment and ineompetency existed as the inevitable result of his malady; while experts called by proponent testify to the contrary in answer to equally long hypothetical questions, and say that deceased’s mental condition at the time of the execution of his will was such that he was perfectly competent to transact such business understandingly, and possessed of sufficient testamentary capacity to dispose of his estate, asserting that, even though affected with the maladies testified to by experts upon the opposite side, it did not follow that his intellect was materially impaired, because persons affected with general atheroma and arterial sclerosis could be, and often were, mentally normal, and competent not only to understandingly make testamentary disposition of their property, but to follow intellectual pursuits.

In support of the will it was claimed, and testimony was introduced tending to show, that the condition of deceased on the day he went to the hospital was not such, nor so serious, as claimed by contestants, and did not result from a stroke of apoplexy, but from an attack of vertigo coming upon him while at work following a very hearty meal; that shortly thereafter he was able to walk and talk, and had possession of his faculties as before, although, realizing he was in failing health, he followed the advice of his pastor and went to the hospital, where he remained until his death, which was six months later; that at the time he went there and when he made his will he was in full possession of his mental faculties, knew his relatives and friends, visited with them, and discussed his business affairs, understood the nature and extent of his property and what disposition he desired to make of it; that, in speaking of his business matters with his brother, who had come to visit him, he asked for a notary to get his affairs settled, and, in compliance with this request, an attorney, who was a notary, was summoned and introduced to him, who, after some general conversation, prepared the will while alone with deceased in his room, summoning two nurses as witnesses when the instrument was ready for execution. They testified to facts showing compliance with legal requirements, and to testator’s participation in, and apparent understanding of, what was being done, as indicated by remarks made by him while executing the will, telling the attorney, who started to read the will in their presence, that he need not read the rest of it, as testator knew all that was in it.

The two grounds of contest, upon each of which there was abundance of sharply conflicting testimony, were submitted to the jury, in connection with the general charge of the court, by special questions, which, with their answers, are as follows:

“(1) Q. Was undue influence used upon Dennis Dailey in making the will in question? A. No.
“(2) Q. Was Dennis Dailey on April 30, 1910, at the time of making the will in question, mentally competent to make said will? A. No.”

The question of undue influence having been decided by the jury in appellants’ favor, the 201 assignments of error in this record, upon all of which we are advised appellants rely, relate to the issue of mental incompetency. A careful reading of the record convinces us that most of these are not well founded and call for no serious consideration. Many of them involve a contention that in the general conduct of the case the attitude of the court was adverse to those seeking to sustain the will, and prejudicial to a fair trial.

Nineteen assignments of error and many pages of appellants’ brief are devoted to tentative rulings of the court sustaining objections to subscribing witnesses giving their opinion as to the mental competency of testator, at the time of executing his will; they having related their means of observation and facts upon which they based their opinions. One of these witnesses was allowed to testify to her opinion before leaving the stand; the other later. Although the latter’s testimony was insisted upon and considerable discussion had, the court expressed a purpose to further investigate the question before admitting the testimony and said:

“If I am satisfied later that I am wrong about that I will not hesitate to reverse the ruling.”

This occurred during a session of the court on Saturday, and at the opening of court on Monday the court called up the matter of this ruling, stated he had announced at that time he would investigate the question and might change said ruling, and that, after giving the matter some study, he had decided the testimony was competent, and he would allow it. The evidence of the witness was thereupon introduced. Full latitude was finally given in the examination of both witnesses upon that subject. Counsel now insist the conduct and remarks of the court in the first instance belittled this testimony and were prejudicial, stating that such “prejudice to proponents would not have arisen * * * if he had less stubbornly refrained from ruling upon something with which he had absolutely nothing to do, and constantly reminding the jury that the opinion of those witnesses was not of sufficient value to be entitled to their consideration.” The last utterance of the court upon such ruling was to the effect that he was previously mistaken and the opinions of those witnesses were entitled to be considered by the jury. We have examined all that was said by the court and counsel in connection with this matter, and conclude that the subsequent admission of the testimony obviated the error previously committed. Cool v. Snover, 38 Mich. 562; Mason v. Partrick, 100 Mich. 577 (59 N. W. 239). While other isolated remarks of the court pointed out by counsel as prejudicial might be considered as captious, when considered alone, when read with the record as a whole, they do not impress us as of the import or importance contended for. We do not discover from this record that the court disclosed any opinion on the merits of the case or special inclination to favor either side of the controversy.

Some confusion appears in certain parts of the record, and possible misunderstanding, as to who were parties to these proceedings. The original proponent of said will, and, so far as the record shows, the only one who ever filed a formal petition for its probation, was Mary McCarthy, deceased’s sister and a beneficiary under said will to the extent of $600. After starting the machinery of the court in motion, she, with other heirs, filed objections and contested the probation. The order admitting the will to probate recites that upon the date appointed for hearing said petition, and when objections had been filed by Mary McCarthy, Jeremiah Dailey appeared by counsel as proponent in support of said petition. The order made upon said hearing, after reciting in proper form the admission of said will to probate, appointed Martin Whalen administrator of said estate, with the will annexed. He and Jeremiah Dailey appear to be sometimes collectively referred to in the record as the proponents, although Whalen’s name is first found in the records as administrator after the will was probated, and only in that capacity. He was not a proponent, and it- was stated on the trial, by counsel for Jeremiah Dailey, that they represented Whalen only as administrator of the estate. He was called as a witness by proponent Dailey to testify to deceased’s mental competency. Objections to certain questions asked him were sustained on the ground that he was an opposite party, precluded by statute from testifying to matters which, if true, must have been equally within the knowledge of deceased.

We are impelled to hold, under a well-settled line of authority, that the proposed testimony was erroneously excluded, and upon this record are unable to say this was harmless error. Whalen was a near neighbor of deceased, and knew him intimately for 42 years, seeing him often. Two days before he went to the hospital deceased called at witness’ place and stayed about an hour. Witness also visited deceased while in the hospital, where he observed his condition and appearance and conversed with him. Objections were sustained to the following questions:

“Q. Well now, tell the court and jury what you observed and what you heard him say and what your conversation was at that time.”
“Q. What have you to say as to his health and physical condition and his mental condition on these two occasions?”

The court ruled that this witness could give no conversations with deceased, nor testify as to what he talked about, nor the things said by him, nor state what witness observed as to his mental condition, nor express any opinion as to his mental competency based on facts seen and known by witness.

Contestants were permitted to thoroughly cover all this range of inquiry with witnesses of shorter acquaintance, and apparently less intimacy and opportunity for knowledge than Whalen. His proposed testimony bore directly upon the one controlling issue decided adversely to proponent, and was only rejected on the theory that he was an “opposite party,” within the meaning of section 10212, 3 Comp. Laws (section 12856 [2d Ed.] 5 How. Stat.). Whalen was neither a propent nor contestant. He was not interested as an heir or legatee; the proceeding was not against him nor the estate as such; it did not seek to deplete the estate, but was only to obtain an adjudication of how it should be distributed. The statute did not apply to him. This subject has been fully adjudicated, and is discussed in its various aspects more or less directly in point in the following cases: Brown v. Bell, 58 Mich. 58 (24 N. W. 824) ; Schofield v. Walker, 58 Mich. 96 (24 N. W. 624); Duryea v. Granger’s Estate, 66 Mich. 593 (33 N. W. 730) ; Lautenshlager v. Lautenshlager, 80 Mich. 291 (45 N. W. 147) ; McHugh v. Fitzgerald, 103 Mich. 21 (61 N. W. 354); Moore v. Machen, 124 Mich. 216 (82 N. W. 892) ; Tabor v. Tabor, 136 Mich. 255 (99 N. W. 4) ; Ashley v. Smith’s Estate, 152 Mich. 197 (115 N. W. 1052) ; Freda v. Tishbein, 174 Mich. 391 (140 N. W. 502).

As this error demands a retrial of the case, we deem it unimportant and unnecessary at this time to further consider other questions raised.

The judgment is reversed, and a new trial granted.

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


author: McAlvay, C. J.

text:
    LEPIRE v. KLENK.
    Easements — Naviqabue Waters — Canal—Public Wat.
    Evidence that complainant and other members of the public had used a canal from Lake St. Clair and the Detroit river to and through complainant’s premises for many years, that part of it had been improved at the expense of the public and it had been dedicated to the public at the time defendant platted the surrounding land, also, that the stream was the only possible way by which complainant could reach the lake and river from his home, held, to justify the court in restraining defendant from obstructing the canal.

      Appeal from Wayne; Hally, J.
    Submitted January 6, 1914.
    (Docket No. 1.)
    Decided June 1, 1914.
    Rehearing denied December 19, 1914.
    Bill by John B. Lepire against William C. Klenk for an injunction. From a decree for complainant, defendant appeals.
    Affirmed.

      Lucking, H elf man, Lucking & Hanlon, for complainant.

      Daniel P. Cassidy, for defendant.
   McAlvay, C. J.

This is an appeal from the Wayne circuit court, in chancery. Complainant filed his bill in that court praying that defendant be temporarily and permanently restrained from obstructing a certain water course which complainant used in passing to and from his house, which was situated thereon, and that complainant and other members of the public “be decreed to have the right to use said stream for any and all purposes for which the public may lawfully use a navigable stream or public highway.” A demurrer by defendant to the bill of complaint was overruled, and on an appeal to this court the order of the circuit court was affirmed. Lepire v. Klenk, 169 Mich. 243 (134 N. W. 1119, Ann. Cas. 1913E, 50). Reference is had to the opinion in that case for a brief statement of the allegations in the bill of complaint upon which complainant relied for the relief sought.' Mr. Justice Beooke, speaking for the court in that opinion, said :

“The bill of complaint in the instant case clearly sets out facts from which it is apparent that complainant suffers private and direct damage other and different from that suffered by the public at large. It further avers that the way in question is a public highway. For the purpose of determining the question now here, that fact must be taken as admitted by the demurrer. Under the facts alleged in this bill, if sustained by competent evidence, complainant is entitled to the relief sought” (citing numerous authorities).

Defendant then answered the bill, and a full hearing was had on the merits, which' resulted in a decree in favor of complainant, granting him full relief as prayed. The case is now before this court upon an appeal from such decree. The question involved is whether, upon the evidence in the record, complainant is entitled to relief. A digest of the evidence produced by the respective parties and a discussion of the same would be of no benefit to the profession.

Complainant, by a preponderance of the evidence contained in the record, has sustained the material allegations contained in his bill of complaint: That said stream is a navigable stream or canal and a public highway and is the only way possible by which complainant by water may reach Lake St. Clair and the Detroit river from his home, which is located on. this stream above the obstruction complained of. This navigable water has been used by complainant and the public freely, without objection or obstruction, as a navigable public highway for many years, and the upper part of it, below complainant’s residence, has been improved at the public expense, and a large part of it was dedicated to the public use by defendant at the time this subdivision was platted by him. Complainant has also established the fact that the navigation of this waterway has been wrongfully and wilfully obstructed by defendant by sinking a barge across its channel.

It follows that the decree of the circuit court should be affirmed. Complainant will recover costs to be taxed.

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