author: Brooke, J.

text:
      In re MERRILL.
    1. Constitutional Law — Probate "Courts — Legislative Powers.
    Under section 13, art. 7, Const. Mich. 1909, the legislature is given plenary authority to prescribe the powers and duties of the probate courts , and the judges thereof.
    2; Statutes — Construction.
    Where the wording of a statute is absolutely unambiguous, these is no room, for construction.
    3. Constitutional Law — Probate Courts — Commitment — Due Process oe Law — Federal Constitution.
    Subdivision 2, section 13765, 3 Comp. Laws 1915, empowering probate judges to issue a warrant and imprison any person who shall refuse or neglect to comply with any order issued by said court, is not in contravention of the 14th Amendment to the Constitution of the United States; said orders being made only after due notice and hearing, it cannot be contended that it is not due process of law.
    4. Same — Habeas Corpus — Imprisonment eor Debt — Probate Courts — Warrant.
    Where petitioner in habeas corpus proceedings wilfully refused to comply with an order of the probate court to pay over money coming into his hands as executor of an estate, and the warrant of commitment was issued under section 13765 to enforce said order, it was not an imprisonment for debt in contravention of section 20, art. 2, Const. Mich. 1909.
    5. Habeas Corpus — Statutes.
    The words of the statute (subdivision 2, § 13765, 3 Comp. Laws 1915) providing for the arrest and imprisonment of “any person” is broad enough to include executors, and petitioner’s contention that the warrant of commitment is illegal and void because in violation of section 12819, 3 Comp. Laws 1915, cannot be sustained.
    Habeas corpus proceedings by Herbert W. Merrill to obtain his release from the county jail of Saginaw county.
    Submitted January 29, 1913.
    (Calendar No. 28234.)
    Writ dismissed March 27, 1918.

      G. W. Davis (Frank A. Rockwith and Fred A. Baker, of counsel), for petitioner.

      Weadoek & Weadoek, for respondent.
   Brooke, J.

After full hearing in the probate court for Saginaw county upon matters there in dispute, petitioner and his coexecutors of the last will and testament of William Merrill, deceased, were by an order entered on the 5th day of February, 1915, ordered to pay over to Eric S. Wessborg, as executor of the last will and testament of Alice E. Merrill Wessborg, all dividends collected by him on 41% shares of the capital stock of Mitts & Merrill amounting on January 1, 1915, to the sum of $3,652.

An appeal from said order to the circuit court for the county of Saginaw was perfected by petitioner, where, after a full hearing, the. same was affirmed. From said judgment of affirmance an appeal was taken to this court, where it was again affirmed. Wessborg v. Merrill, 195 Mich. 556. After the affirmance of said order in this court remittiturs from this court and the circuit court were duly filed in the probate court and on June 12, 1917, a demand was made upon petitioner and his coexecutors that they comply with said order of February 5, 1915. Petitioner and his surviving coexecutor, Eudora B. Merrill, refused'and neglected to comply with said order or any part thereof, whereupon, and on the 15th day of June, 1917, a warrant for the arrest of petitioner was issued by the probate judge, under subdivision 2, of section 13765, 8 Comp. Laws 1915. This section reads as follows:

“Sec. 2. Each judge of probate shall have power:
“1. To administer all oaths necessary in the transaction of business before the probate court, and all oaths required by law to be administered to persons executing trusts under the appointment of such court;
“2. To issue all warrants and processes in conformity to the rules of law, which may be necessary to compel the attendance of witnesses residing in any part of this State, or to carry into effect any order, sentence or decree of the probate courts, or the powers granted them by law, and to issue warrants directed to any sheriff, constable or other proper officer in this State, requiring him to apprehend and imprison any person who shall refuse or neglect to perform any order, sentence or decree of a probate court, requiring such officer to apprehend and imprison such person in the common jail of the county, until he shall perform such orders, sentence or decree, or be delivered by due course of law; and all such officers shall serve and execute all legal warrants and processes to them directed by any judge of probate;
“3. To keep order in his court, and to punish any contempt of his authority, in like manner as such contempt may be punished in the circuit court;
“4. And shall have such other powers as may be conferred by law.”

Petitioner thereupon instituted habeas corpus proceedings in the circuit court for the county of Saginaw, where a hearing was had upon pleadings and proofs, after which the learned circuit judge dismissed said writ, holding that the warrant under which petitioner was detained was valid and his arrest and commitment legal. Application was thereafter made to this court for a writ of certiorari to review the decision of the circuit court holding said warrant valid and commitment legal, which application was denied. Later, and on October 2, 1917, petitioner filed a bill in chancery to restrain the enforcement of said warrant. This injunction was denied. Thereupon petitioner caused to be issued a writ of habeas corpus from the United States court for the eastern district of Michigan, northern division, where, after argument, the writ was dismissed. Application was then made by petitioner to the circuit judge for Saginaw county for a writ of error to the Supreme Court of the United States, which was allowed, but, pending the hearing upon said writ, bail was refused by said circuit judge on the ground that the imprisonment of petitioner was valid. Petitioner thereupon applied to this court for a writ of habeas corpus, which, out of an abundance of caution and because a citizen was restrained of his liberty, this court allowed, and, pending the determination upon said writ, petitioner was enlarged upon bail in the sum of $20,000. All the antecedent proceedings, which are very voluminous, are now before us, but the issue is a very narrow one.

Assuming, though not determining, that the issuance of the writ was proper at a time when the identical question was pending in the United States Supreme Court upon a writ of error to the circuit court for the county of Saginaw, we come to the basic question involved which is the constitutionality of the act, Subd. 2, § 13765, 3 Comp. Laws 1915.

The first contention of the petitioner is that the issuance of the warrant by virtue of this section and his imprisonment thereunder is unlawful and void as a contravention of section 20, of article 2, of the Constitution of 1909, which provides:

“No person shall be imprisoned for debt arising out of, or founded on a contract, express or implied, except in cases of fraud or breach of trust, or of moneys collected by public officers or in any professional employment. No person shall be imprisoned for military fine in time of peace.”

Under this head it is argued that the order of the probate court of February 5, 1915, is, in substance, against the estate of William Merrill, and that, insofar as it mentions the executors of his estate, it refers to them de bonis testatoris and not debonis propriis, and hence, as a judgment or decree for the payment of money, it is not enforceable against the petitioner or his coexecutor. It is further argued that the money (referred to in the order), was paid to the estate of William Merrill, which, by the decisions of the courts respecting the same, it had the right to receive. It was therefore founded on contract express or implied within the meaning of section 20, art. 2, of the Constitution. Attention of the court is directed to the case of In re Bingham, 82 Vt. 329, where a similar statute was under consideration and where the court held that the proceeding was irregular and void.

Our Constitution, section 13, art. 7, provides:

“In each county organized for judicial purposes, there shall be a probate court. The jurisdiction, powers and duties of such courts and of .the judges thereof shall be prescribed by law, and they shall also have original jurisdiction in all cases of juvenile delinquents and dependents.”

It will be noted that by this section the legislature is given plenary authority to prescribe the powers and duties of the probate courts and the judges thereof. In the exercise of this power, the legislature in its wisdom saw fit to enact the law in question. The wording of the act is absolutely unambiguous, and where such is the case there is no room for construction. MacQueen v. City Commission of City of Port Huron, 194 Mich. 328. By its terms the judge of probate is granted power:

“To issue warrants * * * * to apprehend and imprison any person who shall refuse or neglect to perform any order, sentence or decree of a probate court * * * until he shall perform such orders, sentence, or decree or be delivered by due course of law.”

The statute confers the. authority to issue the warrant upon the judge of probate and does not require its issuance by the probate court. It does not prescribe that notice' shall be given before the warrant shall issue or that an order to show cause why it shall not issue shall be made before issuance. Its sole purpose is to enforce performance of the orders, sentences and decrees of the probate court which under our practice are made only after notice and hearing. .There is therefore no force in the objection of the petitioner that said warrant was issued without an order to show cause or a preliminary hearing. Petitioner was well advised of every step in the proceedings antecedent to the issuance of said warrant. He contested the making of the order, requiring the payment of the trust fund, in the probate court, in the circuit court, and in this court, and after the remittiturs were filed in the probate court, a demand was made upon him to comply with said order. This he refused to do in wilful defiance of the law as it had been established after the most exhaustive examination in the court of last resort in this State. In the light of the history of this litigation, the contention of the petitioner that the statute and the proceedings had thereunder do not afford petitioner equal protection of the law and is not due process of law within the fourteenth amendment to' the Constitution of the United States, is untenable. Cooley on Constitutional limitations (7th Ed.), p. 496. • Miedreich v. Lauenstein, 232 U. S. 236.

The imprisonment of the petitioner under the section in question is not imprisonment for debt within section 20, article 2, neither is it imprisonment as for contempt which, is provided for in another subdivision of the same section. It was provided as a summary and effective method of enforcing the orders of the court and is applicable to interlocutory as well as to final orders and decrees. The further contention is made that the warrant of commitment is illegal and void because issued in direct violation of section 12819, 3 Comp. Laws 1915, which provides:

“But such execution shall not issue against the body, nor against the goods- and chattels, lands and tenements of any executor, administrator, heir, devisee or legatee, unless in those cases specially provided by law,”

and it is .asserted that the only cases specially provided by law are such as arise in partition proceedings in the probate court. Section 18933, 3 Comp. Laws 1915. We cannot agree with this contention. The section under consideration is the law and provides by its terms for the arrest and imprisonment of “any person who shall refuse or neglect to perform, etc.” The words, “any person,” certainly include executors, administrators, heirs, devisees or legatees.

It may be said that the history of the litigation giving rise to the present inquiry is such as to afford a rather unusual commentary on the wisdom of the provision.

The writ is dismissed and the petitioner is remanded to the custody of the respondent, the sheriff of Saginaw county.

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


source: Caselaw Access Project

license: Public Domain

text:
    BUDD v. ANN ARBOR RAILROAD CO.
    1. Fires — Raiuroads—Pueading—Variance—Evidence—Surprise.
    In an action against a railroad company for setting fire to plaintiff’s premises by escaping sparks from a locomotive, •where the declaration alleged that defendant’s track ran so near plaintiff’s property that it was possible for sparks to be carried from the engine, properly stating a cause of action, testimony tending to support the inference of improper equipment and operation, from the circumstance of the great distance it was assumed the spark was thrown, was not inadmissible on the ground of variance; the proof offered should have occasioned no surprise to defendant.
    2. Same — Evidence—Expert Witnesses — Negiagence.
    In such action, testimony of two witnesses, formerly locomotive engineers, although, neither had operated an engine for many years, that a properly equipped engine could not throw sparks the distance traveled in the case at bar, was admissible, its weight being for the jury.
    3. Same — Evidence—Sparks—Negligence.
    Testimony of witnesses that, while working upon a barn, they had noticed live sparks fall upon the roof, carried a distance of from 150 to 200 feet farther from the track than the barn that was burned, was admissible for the purpose of showing that it was physically possible for sparks to be carried that distance through the air, but not for the purpose of showing that defendant’s engines generally caused fires at other times and. places.
    4. Trial — Fires—Evidence—Directed Verdict.
    The court below was not in error in refusing to direct a verdict for defendant, where the evidence warranted the conclusion that defendant’s engine caused the fire, although the evidence that the engine was out of order was based solely upon the testimony of experts that an engine properly equipped and managed would not emit a spark capable of setting fire at the distance in question.
    Error to Washtenaw; Kinne, J.
    Submitted January 18, 1918.
    (Docket No. 149.)
    Decided March 27, 1918.
    Case by Abraham D. Budd against the Ann Arbor Railroad Company for the negligent burning of plaintiff’s buildings. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Alexander L. Smith, Gustavus Ohlinger and Cavanaugh & Burke, for appellant.

      Arthur Brown and John P. Kirk (E. R. Sutherland, of counsel), for appellee.
    In this action plaintiff seeks to recover damages growing out of the loss of his farm buildings and contents by fire which he alleges was set by a passing locomotive belonging to defendant, equipped at the time with improper and defective appliances for arresting sparks and improperly managed. In the declaration it is alleged:
    “That on said date the defendant was the owner of, and was engaged in operating, a railroad in this State by means, of steam locomotives, which said railroad then and there ran so near to the said property so owned by the plaintiff that it was possible for sparks from said locomotives to be blown and carried over to and upon the said property.”
    In his opening statement counsel for plaintiff said that he would show that the straw stack which was ignited stood 453 feet from the railroad track. At the close of said statement counsel for defendant objected to the introduction of any evidence under the declaration upon the ground that it did not state a cause of action. Counsel said:
    . “Everything Mr. Brown in his statement says he was going to prove, he cannot prove under this pleading he had filed here. In the second paragraph Mr. Brown says that this, railroad Then and there ran so near to the said property of the plaintiff that it was possible for sparks from said locomotives, to be thrown over to and upon said property.’ In other words, that the track was so near that an engine, in proper order and properly operated, would throw sparks over onto that property, because it was so near, as he alleges in Ms declaration. _ The proof he intends to make, according to his opening statement, cannot come under that pleading, because under his opening statement he says he proposes to show, not that the property was so near, but that it was so far away that it was impossible to throw sparks unless the engine was in bad condition, and that is exactly contrary to what he had pleaded; and he must amend his declaration before he can make his proofs conform to his opening statement; if he asks for that we shall ask for a continuance of this case.”
    The court reserved ruling, permitting the testimony. to go in and afterwards in effect overruled the objection upon which defendant assigns error. The circumstances under which the fire occurred are, briefly, as follows:
    On September 23, 1916, at about 12 o’clock noon, plaintiff and the other members of his household had dinner. Immediately after dinner all the members of the household, including plaintiff, left the premises with the exception of Francis Jones, a boy between 11 and 12 years of age whose father and mother were plaintiff’s tenants and lived in the house with him. No fire was used in or about the house except in an oil stove. Immediately after dinner, Mrs. Jones and her daughter went to town, leaving the little boy, Francis, with instructions to wash the dishes. This he did, consuming about 20 or 25 minutes in the labor, and, desiring a drink, he took a pail and went to the well located between the house and barn, and while in the act of pumping a pail of water he noticed a fire in the straw stack about 10 feet from the ground. He took the pail of water and endeavored to quench the fire, but was unable to do so. He then ran to the railroad track and called some section men who were likewise unable to extinguish the fire, but who did remove some of the contents of the barns. The plaintiff was working in a field nearby, and himself observed the fire in the stack before it was communicated to the barns. Both the plaintiff and the boy, Francis Jones, noticed a train going past the barn buildings a few minutes before the fire was discovered. The train was said to be heavily loaded with coal and working hard, with black smoke coming from the stack. There was a strong wind blowing from the west, plaintiff’s barn buildings being located 453 feet east of the track. There had been a long spell of dry weather prior to the 23d day of September, though plaintiff testified that there had been a shower a day or two before. One witness testified to seeing this freight train pass heavily loaded and working hard; that within 10 or 15 minutes afterwards he noticed a heavy smoke in the neighborhood of Pittsfield Junction and got a telephone message to the effect that plaintiff’s barns were burning; that at about the same time he saw two other fires farther north along the east side of the track. Plaintiff offered as an expert, the witness, Spokes, who testified that he was then superintendent of the Ann Arbor waterworks, but that he had been a locomotive engineer working for the Ann Arbor railroad for a period of from 5 to 10 years, a good many years ago; that he understood the construction of locomotive engines and described the apparatus for the prevention of the throwing of sparks. He was. asked the following question:

      “Q. If a locomotive engine, drawing a heavily loaded freight train up that grade, laboring hard to make the grade, with a strong wind blowing from the west, if the spark arrester and appliances in the smokestack were in good order, whether or not it would be possible to throw out sparks having sufficient life to kindle a fire in a straw stack 453 feet east of the track, the wind being from the west?”
    Counsel for defendant objected to the question for the following reasons:
    "1. This witness, has not run a train for 25 years, and at the time he was engaged in operating locomotives they used a different type of spark arrester from that used at the present time. There is no showing that he ever operated an engine such as it is claimed set this fire.
    “2. There is no showing as. to the distance of this stack from the track.
    “3. Further, this is an attempt to introduce evidence directly at variance with their declaration; it is an attempt to show that this track was so far away that the fact of the communication of the fire there showed improper equipment of the locomotive or improper operation of it.
    “4. Further, there has been no showing here yet that this locomotive set this fire.”

      The objection was overruled and the question was answered in the negative.
    Another expert witness, one Loveland, was sworn for plaintiff, who testified that he was a locomotive engineer for 18 or 20 years, but had not run a locomotive since 1892. The following question and answer were permitted:

      “Q. If an engine is properly equipped with a spark arrester in good order and under proper management, will it throw out a live spark which will carry vitality and life for a distance of 453 feet and set fire to a straw stack?

      “Mr. Ohlinger: I object to his answering for the reason that he has. not been shown competent to answer. His experience was with the type of arresters known as the cone, and he quit engineering about twenty years ago. The hypothetical question does not include anything in regard to the construction of the engine at the present time, nothing about the construction of the engine which it is claimed set this fire. Furthermore, we claim this question is not proper under the pleadings here, especially as made in the second paragraph of the declaration. Furthermore, there has been no proof of the distance.

      “The Court: He may answer.

      “A. No, sir.”
    Two witnesses, Elwood Rogers and Lance Rogers, were permitted to testify, over objection, that when they were building a new barn for plaintiff, located from 160 to 175 feet farther from the track .than the old barn, they'had observed cinders and live coals from passing engines fall upon the roof of said barn, and that such cinders had sufficient vitality to set fire to a straw stack.
    At the close of the plaintiff's case a motion to direct a verdict in favor of the defendant was made, upon the ground that there was no evidence tending to show that the fire was set by the company and no evidence to show disrepair of the engine. This motion being denied, defendant introduced the evidence of the train dispatcher of the defendant company. He was able from his sheets to identify the train which passed plaintiff’s premises at the hour in question as train No. 71, engine No. 102. The evidence of one Edward Corcoran was then introduced who testified that he was inspector of the fronts of engines. On direct examination he testified that he inspected engine No. 102 on Oct. 22, 1916, and that he found the smoke stack, netting, ash-pan and grates in first-class condition. On cross-examination he fixed the date of this examination as Sept. 22, 1916. The date of this inspection given upon direct examination is probably erroneous. The motion for a directed verdict was again renewed and denied and the case was submitted to the jury who rendered a verdict in favor of the plaintiff for the sum of $1,000.
   Brooke, J.

(after stating the facts). Counsel for defendant in this court assert that they rely upon errors as follows:

1. In the introduction of evidence.

2. In overruling defendant’s motion for a directed verdict in its favor.

3. In refusing to give to the jury proper instructions requested by the defendant.

It is urged by counsel for defendant that inasmuch as plaintiff’s declaration alleged that:

“Said railroad then and there ran so near to the said property so owned by the plaintiff that it was possible for sparks from said locomotive to be blown and carried over to and upon the said property,”

the plaintiff should not be permitted to offer any proof because:

“The proof he intends to make, according to his opening statement, cannot come under that pleading, because, under his opening statement, he says he proposes to show, not that the property was so near, but that it was so far away that it was impossible to throw sparks unless the engine was in bad condition, and that is exactly contrary to what he had pleaded; and he must amend his declaration before he can make his proofs conform to his opening statement; if he asks for that we shall ask for a continuance of this case.”

In this connection it is argued that testimony as to the distance from the track to the straw stack and all testimony tending to support the inference of improper equipment and operation from the circumstance of the great distance it was assumed the spark was thrown was inadmissible:

“On the ground that the declaration laid stress upon the nearness of the point of ignition, but made no claim as to excessive distance.”

We are unable to grasp the force of this argument. The declaration averred that the property destroyed was within the possible radius of flying sparks; that the fire was- caused by sparks from defendant’s engine and that said engine was improperly equipped and improperly managed. We think the declaration stated a cause of action and that the proof offered thereunder should have occasioned no surprise to defendant.

It is next argued that error was committed in permitting the witnesses, Spokes and Loveland, to testify that an engine properly equipped could not throw sparks capable of setting a fire a distance of 453 feet. The objection to the testimony of these witnesses is based upon the fact that neither had operated a locomotive engine for many years. The evidence of these witnesses was admissible under the authority of Union Ice Co. v. Railway Co., 178 Mich. 346; its weight was for the jury.

Error is assigned upon the admission of the two witnesses, Rogers, to the effect that in November or December while building a new barn they had noticed live sparks fall upon the roof of said barn a distance from 150 to 200 feet farther from the track than the location of the barn that was consumed. On this point defendant relies upon the case of Ireland v. Railroad Co., 79 Mich. 163, where it is said:

"Where the particular engine is known and designated, it is not competent to show generally that the defendant’s engines have caused fire at other times and places.”

This testimony was not offered for the purpose of showing that defendant’s engines generally caused fires at other times and places, but was offered for the purpose of showing that it was physically possible for sparks to be carried that distance through the air. For this purpose it would seem the testimony was admissible. Hoskinson v. Railroad Co., 66 Vt. 618; Matthews v. Railway Co., 142 Mo. 645; Dunning v. Railroad Co., 91 Me. 87; Grand Trunk Ry. Co. v. Richardson, 91 U. S. 454; Black v. Railroad Co., 122 Iowa, 32; Cincinnati, etc., R. Co. v. Winkle, 148 Ky. 726.

Error is assigned upon the action of the court in refusing to direct a verdict for the defendant upon the ground that the testimony showed without contradiction that engine No. 102 on the day of the. fire was in proper condition and there was no evidence tending to show that it was improperly operated. In Potter v. Railway Co., 157 Mich. 216, we held that where the defendant offered testimony tending to show that the engine was in good order and properly managed which was not directly controverted, where expert witnesses gave evidence tending to show that an engine in good order and properly managed would not throw live sparks across the distance claimed, a question of fact was raised for the determination of the jury.

The evidence contained in this record certainly warrants the conclusion that defendant’s passing engine caused the conflagration. While the evidence that the engine was out of order was based solely upon the fact that the fire was set at the distance named and the evidence of the experts that a properly equipped and properly managed engine would not emit sparks capable of setting fire at such a distance, we think such evidence sufficient to support the verdict of the jury.

The judgment is affirmed.

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


text:
    O’DELL v. DAY.
    1. Replevin — Fixtures—Right to Possession — Directed Verdict.
    In an action of replevin for machinery removed from a grape juice plant by defendant, mortgagor, where the evidence was undisputed that the mortgages upon the farm, the foreclosure of which gave plaintiff the right to possession of the realty, did not'cover the personal property, which was in no way affixed to the freehold, and that, on the day the writ of replevin was issued, as between plaintiff and defendant, defendant was entitled to the possession of the property, a verdict should have been directed in his favor.

      2. Same — Correspondence—Admissions—Evidence—Title to Personalty — Right to Possession.
    Correspondence between plaintiff and defendant, after the foreclosure of the mortgages, in which defendant apparently admitted plaintiff’s ownership of the personal property, cannot be construed as a surrender either of title or the right to possession of the property by the defendant.
    Error to Van Burén; Tucker, J., presiding.
    Submitted January 17,1918.
    (Docket No. 122.)
    Decided March 27, 1918.
    Replevin by Benjamin F. J. O’Dell against James Ingersoll Day. Judgment for plaintiff. Defendant brings error.
    Reversed.

      W. J. Barnard, for appellant.

      Glenn E. Warner, for appellee.
    The defendant was the owner of a farm of 85 acres in the county of Van Burén upon which there was located a grape juice plant. Prior to 1912 he had executed three several mortgages covering said land to the First State Bank of Decatur. On June 7, 1912, he executed to plaintiff a fourth mortgage in the sum of $8,000 covering the same property. After describing the real estate embraced within the terms of the mortgage the instrument proceeds:
    “To have and to hold the same, together with all and singular the tenements, hereditaments, privileges and appurtenances thereunto belonging, or in any wise appertaining; and also, all the estate, interest, and claim whatsoever, in law as well as in equity, which the said party of the first part has in and to the premises hereby conveyed, unto the said party of the second part, his heirs and assigns, and to their only proper use, benefit, and behoof forever.”
    One of the mortgages given to the First State Bank of Decatur was foreclosed by the bank and redemption from said foreclosure was effected by the plaintiff on the 14th day of December, 1915. On December 15th, defendant wrote the plaintiff as follows:

      “My Dear Mr. O’Dell: I understand from Warner that you have redeemed the mortgage. I regret very much that I could not do it myself. As you are now the owner of the property I want you to know that I am now making every preparation and effort to leave as quickly as possible and in the meantime will protect the property the same as if it was my own. I am glad that you were able to protect your interest besides relieving my bondsmen.
    “Yours very respectfully, •
    “James Ingersoll Day.”
    A second letter, undated in the record, follows:

      “My Dear Mr. O’Dell: As I told you this afternoon I am anxious to go away and let matters stand for a few days and will assure you that in my absence nothing will be done one way or. the other. I would like very much to have an authority from you to give a neighbor full charge in my absence of what consists of the entire property.
    “With sincere personal regards I am,
    “Yours very respectfully,
    “James Ingersoll Day.”
    And later a third letter:
    “Decatur, Michigan, December 23, 1915.

      “My Dear Mr. O’Dell: I am in receipt of your letter and have turned it over to a responsible party giving him full authority to order any one off the place in my absence. I have also seen Mr. Wood and told him that I have nothing to report and that matters should remain as they are until my return, which he .said would be O. K. I told him my agreement with you and I had nothing to say as I felt I needed a rest assured that matters will rest just as I said they would until my return. You will hear from me shortly either in person or by letter and it is my wish and hope that matters can be arranged to the satisfaction of all.
    “With sincere personal regards, I am,
    “Yours very respectfully,
    “James Ingersoll Day.”
    It appears that at the time the $8,000 mortgage was executed by defendant to plaintiff, the grape juice plant was equipped with machinery. It further appears that some new machinery was purchased by defendant on contract some two years later, in 1914. Shortly after the correspondence above set forth, defendant, who apparently still remained in possession of the farm and plant, undertook to, and did, remove from said plant practically all the machinery and appliances used in the manufacture of grape juice and located in said plant. Much of the machinery was very heavy and it required some days to accomplish its removal from Decatur to Lawton. As soon as plaintiff learned of defendant’s acts in the premises, he caused to be issued a writ of replevin covering the property so removed. Much of the property covered by the writ was recovered and returned by plaintiff to the plant at Decatur. Some property was not recovered. It is asserted by plaintiff’s counsel, though upon this point the record is silent, that plaintiff since the institution of this suit, has adjusted the claims of the vendors of such machinery and appliances as were held by defendant under contract or lease. The case was tried before a jury who rendered a verdict in favor of the plaintiff and assessed plaintiff’s damages, by reason of the expense incurred in returning the property to the possession of the plaintiff, and damages resulting from failure to find and return property to which plaintiff had the right of possession, at the sum of $624. A motion for a new trial having been made, the court refused the same on condition that plaintiff remit $400 from his recovery.
   Brooke, J.

(after stating the facts). The real question involved in this case is whether the plaintiff, on the day the writ of replevin was issued, was entitled to the possession of the property taken upon the writ. Recognizing this, the learned circuit judge charged the jury in part as follows:

“2. One of the questions in the case is whether or not all of the equipment of the factory is to be treated as real estate and covered by O’Dell’s mortgage. Or, if not all of it, then what portion of it shall be so treated.
“3. So far as the rule applicable to this question is concerned, property thoroughly fastened to real estate has been often treated by the courts as personalty, and property quite detached from the real estate has been treated by the courts as real estate, because essential to the operation of the property or plant mortgaged, and because of such an arrangement having been made between the parties. I think the rule to be applied to any given case may be arrived at by an answer to the question: What was the intent of the parties to the case being tried as to its treatment?
“4. And in this case you will ask yourselves this question: What did these parties intend, when the $8,000 mortgage was executed; what was to be the rule as to the treatment of the property placed in the factory that was to be erected, by an understanding between the parties, upon this 85 -acres of land' in question? And when you have arrived in your own minds as to what you believe the intentions of these parties were, that is the end of your consideration of that proposition. If they intended that all the equipment of the factory was to be treated as a part of the real estate, and property covered by the mortgage, then the defendant in this case cannot be heard to say that he did not own the property and that some one else did own it, as against the man to whom he gave the mortgage.
“5. If the understanding was that all the equipment of this factory was to be treated as a part of the building (as real estate, in other words) and was to be covered by this mortgage, then you are to, treat it all as covered by the mortgage and render a verdict for the plaintiff as to all the property taken on the writ, except such as you may find to have been taken, if any, that was not intended to be a part of the equipment or covered by the understanding of the parties in the case; bearing in mind that unless you are satisfied by a preponderance of the evidence that it was to be treated as covered by the mortgage you will find for the defendant as to all property owned by him that was not fastened to the real estate, or a part of it.”

Defendant assigns error thereon.

The record, we think, shows without dispute that the property described in the writ of replevin was personal property in no way affixed to the freehold. Neither the plaintiff nor the defendant nor any witness for either party testified that in loaning the money, either the bank who took the first three mortgages, or the plaintiff who took the fourth, had any agreement, either verbal or written, with defendant that the mortgage should cover the personal property used in the grape juice plant; nor does it appear that the money was advanced by either of the mortgagees to the mortgagor for the purpose of purchasing equipment for the plant. Neither the mortgage given to the bank which was foreclosed by the bank and from which redemption was made by the plaintiff, nor the mortgage running to the plaintiff himself, contains any intimation that the security covers any personal property. So far as the situation is disclosed by the' evidence in this record, it is, we think, plain, that as between plaintiff and defendant, on the day the writ was issued, the defendant was entitled to the possession of the goods replevined. Counsel for plaintiff seem to place some reliance upon the correspondence quoted above. We do not think these letters can be construed as a surrender either of title or the right to possession of the property by the defendant. As we view this record, there was no evidence tending to show that either the plaintiff’s mortgage or that given by defendant to the bank which was foreclosed, covered the property in question, it was therefore error to submit that question to the jury. The court should, as requested by counsel for defendant under the testimony as it then stood, have directed a verdict in favor of the. defendant.

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

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


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    JERNER v. IMPERIAL FURNITURE CO.
    Master and Servant — Workmen's Compensation Law — Occupational Disease — Accident—Evidence.
    Where the evidence as to the cause of claimant’s injury-left it open to inference that it might have been caused by infection from a dyeing fluid, in the nature of an occupational disease, or, if caused by an accident, in the nature of an abrasion of the skin, through which the germ entered, there was no evidence as to when or how the accident occurred, in either event an award of compensation under the workmen’s compensation law was unauthorized, since occupational diseases are not covered by the act, and in the second event there was .no evidence of an-accident on which to base the finding of the industrial accident board.
    Certiorari to Industrial Accident Board.
    Submitted January 10, 1918.
    (Docket No. 38.)
    Decided March 27, 1918.
    Charles Jerner presented his claim for compensation against the Imperial Furniture Company, for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Furniture Mutual Insurance Company, insurer, bring certiorari.
    Beversed.

      Francis D. Campan, for appellants.

      Charles G. Turner, for appellee.
   Brooke, J.

On August 31, 1916, claimant entered into the employ of ' respondent Imperial Furniture Company, and continued in such employment to September 19, 1916, a period of 20 days. He was employed as a stainer of mahogany furniture. , In performing his duties it was necessary for him to completely immerse the article to be stained in a tank containing about 50 gallons of water, in which there was held in solution pounds of carbonate or bicarbonate of soda and 6 pounds of aniline dye. After removing the article from the tank, it was claimant’s duty to brush it off with a brush. During the operation it was necessary for claimant to get his hands into the staining liquid. No difficulty was experienced by claimant until the 11th day of September, on which day he testified, “the flesh started to open up on my hands.”

The record discloses that gloves were frequently used by the operatives in the staining department, but that none were furnished by the respondent to claimant. Referring to his condition on the 11th, claimant said:

“I didn’t feel it hurt very much on the 11th day, but could see a little red spot on there after I washed the hand.
“Q. You don’t know where you got the little red spot?
“A. No, sir, I do not.”

Plaintiff’s hand grew worse although he continued to work until the 19th, when he was compelled by his condition to stop.

Dr. Sevensma, who saw claimant in September, 1916, testified that at that time claimant’s hand was infected by a germ (staphylococcus). He said that he did not associate the infection with aniline dye. In anwer to a question by a member of the arbitration committee, he said:

“Q. Would you say the infection came from his employment?
“A. Would I say that?
"Q. Would you?
“A. Why, it might, in the course of his work.
“Q. Is it one of the dangers of the work down there ?
“A. Not necessarily, I imagine, in the staining room, unless they scratch their hand accidentally on the wood work.
“Q. You say he did have a scratch there?
“A. He must have opened the skin somehow to let in the infection.
“Q. Infection coming from employment there?
“A. Might have been and might have gotten it home.
“Q. When you first saw him, only his little finger was affected.
“A. Well, the whole hand was involved, but as I remember it, his little finger was where it started, was the most swollen of them all.”

This witness further testified that it would be possible for aniline dye to have the effect to crack the hand or chap it. Another witness, a fellow workman, testified that he saw claimant’s hand four or five days before he quit work and that, “there was a little scratch or something.”

The arbitration committee, before whom the claim was heard, unanimously denied compensation. On appeal to the industrial accident board, they unanimously reversed the finding of the committee on arbitration and allowed compensation at the rate of $6.25 per week during the period of disability.

We are of opinion that the award must be set aside. If the injury to claimant occurred by reason of the character of his work, he is precluded from recovery because the act does not provide compensation for those suffering injury from occupational diseases. The testimony seems to indicate that those engaged in dyeing furniture with mahogany stain frequently suffer from sore hands. If, however, claimant’s injury is due, not to the general character of his occupation, but to some accidental occurrence, then the record is entirely barren of any evidence of an accident. If claimant suffered a scratch or abrasion through which the germ entered, the record is silent as to when and how he sustained the accident. The case is clearly distinguishable from Dove v. Leather Co., 198 Mich. 132, and Blaess v. Dolph, 195 Mich. 137. In the first of these cases it- was held that there was testimony-tending to support the conclusion of the board that the claimant inhaled the infecting germs in the course of his employment, whereas in the case at bar the only ■ testimony upon the subject is that the germ infection from which the claimant suffered cannot be associated with aniline dye. In the latter case the germ (streptococcus) which killed claimant’s decedent, was clearly traced to a source within his employment.

The award of the industrial accident board is reversed.

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


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    OCEANA CANNING CO. v. KING.
    1. Evidence — Hearsay—Carriers—Freight Shortage.
    In an action against a railroad company by tbe assignee of a claim of tbe consignee for a shortage of goods, testimony by an agent of tbe consignee as to what tbe teamster told bim about tbe number of cases be bauled from tbe car to tbe warehouse was inadmissible as hearsay..
    2. Same — Trial—Appeal and Error.
    In view of positive testimony to tbe effect that tbe car was delivered to tbe consignee with tbe seals unbroken, and tbe only testimony of tbe shortage exclusive of tbe hearsay testimony of tbe teamster, was a notation made upon tbe freight bill by defendant’s agent without an investigation, it cannot be said that tbe objectionable testimony does not constitute reversible error.

      3. Customs and Usages — Evidence—Notice—Appeal and Error,
    Evidence of consignee’s custom with reference to securing from the carrier notations of shortages upon freight bills, in the absence of evidence showing that defendant knew of such custom, while inadmissible, was harmless error,
    4. Trial — Instructions—Bias oe Court.
    Where the trial judge, in his charge to the jury, taken as a whole, plainly indicated his bias, it is open to criticism.
    5. Depositions — Appeal and Error — Evidence—Saving Questions eor Review.
    The card containing the sealed record on arrival of the train at Chicago, part of the official records of the defendant, offered in evidence by defendant and identified by a witness on deposition, who, after identifying it, stated its contents, should have been admitted in evidence, although the card was not attached to the deposition, where no objection was made at the time the deposition was taken.
    Error to Oceana; Sullivan, J.
    Submitted January 25, 1918.
    (Docket No. 90.)
    Decided March 27, 1918.
    Case by the Oceana Canning Company against Paul H. King and Dudley E. Waters, receivers of the Pere Marquette Railroad Company, for the loss of freight in transit. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Norris, ' McPherson, Harrington & Waer (Parker, Shields & Brown, of counsel), for appellants.

      A. S. Hinds for appellee.
   Brooke, J.

For a statement of facts involved in this case see Oceana Canning Co. v. King, 195 Mich. 628. We there held that the question whether the shortage of 100 cases occurred before delivery, or after the car with the seals intact was delivered to the consignee, was one of fact for the determination of the jury under the evidence.

Upon this trial the plaintiff, to sustain his contention that the shortage occurred before delivery, offered the testimony of one Harnett, who, over the objection, of defendants, was permitted to testify as follows:

“I received a notice from Franklin MacVeagh & Company through the freight house foreman that such a shipment was coming to us, coming to the warehouse, car 74559, 650 cases, and that car didn’t come to the warehouse — it was hauled by team to the Pere Marquette Railroad Company and we received 550 cases. Now, that teamster, to the best of my recollection, is a man named Healy. He hauled the whole thing as far as I can remember, and he brought one load, and he said — I think he said he had 98 cases — either 98 or 100, but whatever number he said he had anyhow, he had two cases more on the wagon than he counted, and when he had the shipment completed he told me that a man at the Pere Marquette Railroad Company delivered him 548 cases. I checked in 550 cases and then I went up and made out a receipt to Franklin McVeagh & Company for 550 cases, and pinned the notice on the back of the copy of that receipt. That is all I know about it.”

1 ¿The specific objection to this testimony was that, so far as- it related to the statement of Healy, the teamster, it was hearsay. We are of opinion that the objection was well taken and the statement of the witness as to what Healy told him as to the number of cases delivered should have been excluded as pure hearsay. In the light of the fact that the defendants introduced positive testimony to the effect that the car was delivered to the consignee upon the team track with the seals unbroken and that the only testimony contained in the record (excluding the alleged statement of Healy) is based upon the notation of the shortage upon the freight bill made by an agent of the company, we are unable to say that the admission of the objectionable testimony does not constitute reversible error.

Testimony was admitted, over objection, tending to show the custom of the consignee with reference to securing from the carrier notations of shortages upon freight bills. While we think this testimony was inadmissible, there being no evidence tending to show that the defendants knew of such custom, its admission would, we think, be harmless error.

Error is assigned upon the charge of the court. We think this charge, taken as a whole, is plainly open to the criticism that it indicates the bias of the learned trial judge who delivered it. More particular reference thereto is unnecessary.

Exhibit “A,” offered in evidence by the defendants, should have been admitted. This was a card containing the sealed record on arrival of the train at Chicago. The record was taken at Tracy yard where the car was delivered to the consignee and was a part of the official records of the defendants. The witness who identified the card testified by deposition, and, after identifying it, stated its contents, but the card itself was not attached to the deposition. As no objection was made át the time the deposition was taken, we are of opinion the exhibit should have been admitted. Other assignments require no discussion.

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

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


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    WILCOX v. GAUNTLETT.
    1. Pledges — Debtor and Creditor — Money Deposited as Security..
    Where money was deposited by plaintiff with an automobile sales company as security for the performance of a contract, the relation of debtor and creditor was created.
    2. Corporations — Liability oe Directors — Corporate Act — Directed Verdict.
    The act of covering money deposited with a corporation as security for the performance of a contract into the general fund of the corporation was a corporate act for which the individual directors were not liable, and in an action against them to recover the money so deposited, the corporation in the meantime having become insolvent, a verdict was properly directed in favor of defendants.
    Error to Washtenaw; Kinne, J.
    Submitted January 24, 1918.
    (Docket No. 184.)
    Decided March 27, 1918.
    Case by George A. Wilcox against Elon Gauntlett- and others for the conversion of a deposit. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed.

      Baldwin, Alexander & Russell and F. M. Freeman» for appellant.

      George S. Wright (Cavanaugh & Burke, of counsel), for appellees.
   Brooke, J.

On October 9, 1913, plaintiff entered into a contract with the Gauntlett Auto Sales Co. by the terms of which said company agreed to supply plaintiff with goods manufactured by the Buick Motor Co. upon certain terms and conditions. Said contract contains the following:

“The receipt of two hundred fifty ($250.00), dollars is hereby acknowledged as a deposit; such deposit» however, not to apply on orders or purchase price of cars, but to be retained by the Gauntlett Auto Sales Co. and returned to you at the termination or cancellation of this contract, provided a full and complete settlement of all accounts due the Gauntlett Auto Sales Co. has been made.”

At the time the declaration in this case was filed, July 14, 1915, the Gauntlett Auto Sales Co. had become insolvent. It is conceded that upon determination or cancellation of the contract between plaintiff and the Gauntlett Auto Sales Co., plaintiff had made a full and complete settlement of all accounts due from him to said Auto Sales Co. and the $250 deposited with said Auto Sales Co. thereupon became due and payable to plaintiff according to the terms of said contract.

This suit is brought for the recovery of said $250 not against the Auto Sales Co., but against the defendants who were the directors of said company. The court having directed a verdict in favor of defendants, plaintiff reviews the case in this court under a single assignment of error that:

“The court erred in directing a verdict in favor of the defendants and against the plaintiff.”

It is the contention of plaintiff that the deposit of $250 by plaintiff with the Auto Sales Co. did not create the relation of debtor and creditor between them; that said deposit was in the nature of a pledge to be used by the company only upon a certain contingency which never arose; that the Auto Sales Co. had nt> authority to.mingle said fund with the general funds of the corporation and that its use by the corporation amounted to a conversion. It is further asserted that such conversion by the corporation through the activity of Gauntlett who was in active charge of its affairs, was made possible through the negligence of the other defendant directors whose duty it was to see that this deposit was used only for the single purpose for which it was made, and that therefore they are personally liable. As to the duty of corporate directors plaintiff cites: Hun v. Cary, 82 N. Y. 65; Briggs v. Spaulding, 141 U. S. 132, and Martin v. Webb, 110 U. S. 7. An examination of these eases shows that in each of them the court was considering the duties of directors of banks and in our opinion they are not applicable to the case at bar which involves the duties of directors in an ordinary mercantile corporation.

The question whether the deposit made under the circumstances indicated should be considered simply as a debt due from the bankrupt corporation to the plaintiff or as a pledge seems to be settled upon authority contrary to plaintiff’s contention. In the case of In re Banner, 149 Fed. 936, a lessee deposited with his lessor, the bankrupt, $5,000, “to be held by the landlord for the punctual payment and performance of the covenants of the lease.” The landlord having become bankrupt the lessee prayed for a preferential payment of the $5,000 out of the funds in the hands of the trustee. Disposing of this claim the court said:

“I am unable to perceive that the agreement between Banner and the Riggs Company created anything more than the relation of debtor and creditor.”

The case of Matter of See, 31 Am. Bankr. Rep. 360, is to the same effect. It is stated in the headnote:

“One who entrusts money to another to be held as security has not a preferred claim on the assets which come into the possession of the trustee in bankruptcy of that other in case the latter wrongfully appropriates the funds held in security to the payment of certain of his creditors, and they cannot be traced into any specific fund.”

See, also, In re Hosie, 7 Nat. Bankr. Reg. Rep. 601.

In the case at bar, plaintiff deposited his money with a legal entity known as the Gauntlett Auto Sales Co. That company instead of retaining his deposit in a special account, so preserving its identity, covered it into its general treasury and doubtless used it in its business. Whether this act was done by Gauntlett and the other defendants, directors of the corporation, or by Gauntlett alone without their knowledge, the act was nevertheless a corporate act and not one of the individual. No personal liability of the directors arose under the circumstances and the verdict in their favor was properly directed.

The judgment is affirmed.

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


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    TARPPER v. WESTON-MOTT CO.
    1. Master and Servant —Workmen’s Compensation Act — Personal Injuries — “Out of Employment.”
    To entitle an injured employee to compensation under the workmen’s compensation act, the injury must arise out of, as well as in the course of, his employment.
    2. Same — Injury Arising Out of Employment — Liability of Master.
    An injury to an employee, caused by his fellow employees injecting compressed air into his rectum in a spirit of fun, did not arise out of his employment so as to render the master liable under the workmen’s compensation act.

      Certiorari to Industrial Accident Board.
    Submitted. January 15, 1918.
    (Docket No. 87.)
    Decided March 27, 1918.
    Michael Tarpper presented his claim for compensation against the Weston-Mott Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the New England Equitable Insurance Company, insurer, bring certiorari.
    Reversed.

      Frank J. Riggs, for appellants.

      Samuel G. Thompson, for appellee.
   Brooke, J.

Claimant at the time of his injury was employed by respondent as helper to a riveter. At the time of his injury, claimant and his riveter were engaged in assembling housings for rear axles. It was his duty to put the rivets in the holes that were to be riveted, and to hold the case steady on the block while the riveter applied a hammer operated by compressed air to the rivets and so finished the job. Claimant performed no duty which required him either to use or come in contact with the compressed air system or hose. While the claimant was engaged in holding a case upon the block and his riveter was applying the hammer, a fellow employee named Congdon, either innocently or maliciously, committed an assault upon the claimant which he, Congdon, describes in the following manner:

“I walked over to where Mike Tarpper was working and put my arm around his waist. There was an air hose three or four feet away and in the spirit of fun I took hold of the hose which was dead (that is, no air was on), and placed it against his side, and in his moving around the hose slipped down until it got against his rectum. I don’t know how long I held it there, but in the meantime a man by the name of Thompson turned the air on. I did not know any air had been turned on, that is I could not tell by the hose, or by any other means that there was air on. I know that Thompson was standing on the block by the air valve where it is turned on when wanted. Tarpper sank down on the floor and stated that I had hurt him where I held my hand on his side. We all had a habit of fooling around at different times. There was absolutely no bad feelings between myself and Tarpper, or between him and the rest of the men in our department.”

As a result of the introduction of the compressed air into claimant’s rectum, the rectum was ruptured for a distance of five inches. An abdominal operation was performed very soon thereafter and as soon as the abdomen was opened the compressed air escaped. The rectum was repaired and plaintiff made, according to the record, a somewhat indifferent recovery. A claim for compensation was made and denied by the committee on arbitration. Upon review by the industrial accident board, the order of the committee on arbitration denying compensation was reversed and compensation was awarded. The board found:

“(a) That the applicant received an accidental injury arising out of and in the course of his employment by the respondent employer.
“(b) That the accident was not' the result of horseplay or skylarking, or practical joking.
“(c) That at the time the applicant was injured he was attending strictly to his work, and was in such a position that he could not see anything that was going on around and about him.”

We have examined this record with care and are unable to find a scintilla of testimony tending to support the second finding of the board. Claimant himself on the way to the doctor’s office stated that: “They aired me with the air.” The only witness sworn who knew exactly what occurred was Congdon who held the hose in position while Thompson turned on the air. This he says he did in a “spirit of fun,” and adds, “We all had a habit of íooliñg' around at different times.” The third finding of the board is amply supported by the proofs. At the moment of the assault claimant was busily engaged about his ordinary work and did not see what was happening. That claimant suffered his injury in the course of his employment is clear, but that it arose out of his employment is denied by respondent. In Federal Rubber Manfg. Co. v. Havolic, 162 Wis. 341, the supreme court of Wisconsin had under consideration a case identical in principle and nearly so upon the facts with the case at bar. The court there said:

“This court has endeavored to give to the workmen’s compensation act a broad and enlightened construction, to the end that it may accomplish to the fullest extent its beneficent purpose. It is to be remembered, however, that this purpose was to compensate for injuries resulting from one class of accidents only, namely, industrial accidents. There is liability only ‘where at the time of the accident, the employee is performing service growing out of and incidental to his employment.’ Wis. Stat. 1915, § 2394-3, subd. 2. It was held in Hoenig v. Industrial Com., 159 Wis. 646, after full argument and consideration, that the injuries covered by the act are such as ‘are incidental to and grow out of the employment.’ This seems practically to mean the same thing as the expression in the English compensation act, ‘arising out of and in the course of the employment.’ Under the English act it has been held that accidents resulting from ‘larking’ or playing with machinery cannot be held to arise out of the employment. Furniss v. Gartside & Co., 3 B. W. C. C. 411; Cole v. Evans, 4 B. W. C. C. 138.
“The Massachuetts act provides compensation for an injury which arises ‘out of’ the employment, and it was well said by the Massachusetts supreme court in McNicol’s Case, 215 Mass. 497:
“ ‘The causative danger must be peculiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.’
“* * * How injuries resulting from such inexcusable and revolting horseplay as this can be said to be incidental to the employment we are unable to understand. It is equally impossible to understand how it can be said that the claimant at the time of the accident was performing service ‘growing out of and incidental to his employment.’ ”

That the injury suffered by the employee must arise out of the employment as well as in the course of the employment is well settled by our own decisions. McCoy v. Screw Co., 180 Mich. 454; Klawinski v. Railway Co., 185 Mich. 643; Clark v. Clark, 189 Mich. 652; VanGorder v. Motorcar Co., 195 Mich. 588.

Upon the question of the employer’s liability under acts similar in character to our own for injuries sustained by employees while engaged in playing or fooling with each other, see De Filippis v. Falkenberg, 170 N. Y. App. Div. 153, where the English authorities are reviewed. See, also, Hulley v. Moosbrugger, 88 N. J. Law, 161, and, also, Coronado Beach Co. v. Pillsbury, 172 Cal. 682.

The award is reversed.

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


author: Bbooke, J.

text:
    McMILLAN v. SCHOOL DISTRICT NO. 2, PORTSMOUTH TOWNSHIP.
    1. Parties — Interveners—Principar and Surety.
    In an action by tbe trustee in bankruptcy of the contractor against a school district for a balance claimed to be due the contractor for the erection of a school house, the bondsmen of the contractor had such direct financial interest in the outcome of the litigation as to entitle them to intervene 'under the provisions of section 12362, 3 Comp. Laws 1915.
    2. Schools and School Districts — Evidence — Certificate of Architect.
    In an action against a school district for a balance claimed to be due for the erection of a school house, certificates made by the architect and the building committee of the school district were properly admitted in evidence; their value being for the jury, under proper instructions.
    3. Same — Rebuttal—Strikino Testimony — Trial.
    It was not reversible error to strike out the testimony of a witness for defendant, offered after both parties had rested, as to the cost of remedying alleged defects, testified to in their main case, in response to testimony for plaintiff that the structure was completed in accordance with the plans and specifications, although such testimony might well have been received, in the discretion of the trial judge.
    4. Trial — Instructions.
    There was no error in the charge of the court, of which defendant could complain, where all of its requests were given to the jury, and the charge presented the claims of the contending parties fairly, and, as a whole, preserved the rights of defendant.
    5. New Trial — Newly-Discovered Evidence.
    A motion for a new trial, on the ground of newly-discovered evidence, supported by affidavits of the members of defendant’s building committee that they had made a further examination of the building and had become convinced that their testimony given upon the trial was wrong, and that they had been deceived by the contractor and architect, was .properly denied.

      6. Same — Weight of Evidence.
    The court also properly denied a motion for a new trial on the ground that the verdict was against the weight of the evidence.
    Error to Bay; Coumans, J.
    Submitted January 31, 1918.
    (Docket No. 45.)
    Decided March 27, 1918.
    Assumpsit by Archibald H. McMillan, trustee in bankruptcy of the Valley Mantel & Tile Company, against School District No. 2 of the township of Portsmouth for a balance due on a building contract. Judgment for plaintiff, defendant brings error.
    Affirmed.

      Kinnane <& Black, for appellant.

      Stoddard & McMillan and O. W. Baker, for appellee.
    Plaintiff is trustee in bankruptcy for the Valley Mantel & Tile Co., which company, on July 13, 1915, entered into a contract with the defendant for the erection of a school house according to certain plans and specifications agreed upon between the parties. The contract provides that the work shall be done “to the satisfaction of and under the direction of the architect aforesaid”; that payments shall be made from time to time as the work progresses and that:
    “Ten per cent, of all estimates to be retained until the final completion, balance is to be paid upon the completion and acceptance by said architect and superintendent, of the entire work.”
    A building committee had been appointed by said defendant school district and a contract had been entered into by said building committee with the contractor a few days prior to the date of the final contract which was executed by the school board and work had already commenced when the contract was executed on July 13, 1915. The work progressed under the supervision of the architect and the three members of the building committee who by agreement among themselves spent two days each of each week in supervising and inspecting the work. The work was to be completed on or before the 15th day of September, 1915, and a penalty of $5 per day was provided for each day thereafter during which the building remained uncompleted, but
    “Fire, inclement weather, strikes, accidents or other causes beyond the control of the contractor, will, in the judgment of the architect, be valid cause for the extension of time on this contract.”
    The building was completed in December and on the 10th of December, 1915, the architect issued his final certificate by the terms of which there appeared to be due to the contractor $535.78 under the contract and $81.88 for extras. The district board of the defendant school district called a special meeting of the legal voters of the district on January 15, 1916,
    “To determine what action the district desires the board to take in regard to settling with the contractor or leaving it all with the board to make settlement with the contractor if they can.”
    At that meeting the electors of the district took a recess for the purpose of examining the completed work and after such examination passed the following resolution:
    “Motion made and supported that the board settle with the contractor for $300 if possible. Carried.”
    At a meeting between the parties and their respective attorneys shortly thereafter the compromise offer of $300 was rejected by the contractor. This offer was never withdrawn and at the time of trial, one of the trustees testified that it was a standing offer. The contractor having become bankrupt and no settlement of the balance alleged to have become due having been made by the defendant school district, this suit was brought by the trustee for the bankrupt. Defendant filed a plea of the general issue and gav.e notice thereunder that it would show that the building had never been completed in accordance with the contract. This notice sets out with great particularity the alleged defects in the building and demands that the several sums, alleged to be necessary to complete the building in accordance with the terms of the contract be allowed to defendant by way of set-off and recoupment.
    The trial in the circuit court commenced on the 6th day of June, 1916. On the 2nd day of June an intervener was filed in said cause by Jesse Marande, Richard Hayward and Alfred L. De Waele. These gentlemen by separate counsel set up the fact that they had executed the bond of the contractor, the Valley Mantel & Tile Co., and that a suit upon said bond was then pending against them for -labor and materials furnished to said contractor. They alleged that they were interested in the matters and things involved in the litigation and that any sum recovered by the plaintiff in said suit would by right of subrogation come to them and pro tanto reduce their liability under the bond. An order permitting the intervention was made by the court and the trial proceeded. A great mass of testimony was introduced upon the question whether the building was completed in accordance with the plans and specifications. At the time of the trial the amount due under the contract and for extras amounted to $681.36. The jury rendered a verdict in favor of the plaintiff for $385.76.
   Bbooke, J.

(after stating the facts). In this court the defendant reviews said judgment under 35 assignments of error which in our opinion do not require individual discussion.

• The first 8, the 12th and 13th assignments refer to the action of the court in permitting the bondsmen of the contractor to intervene and to the proceedings in court following said intervention. Section 11, chap. 12 of the judicature act (Cummins & Beecher, § 485, 3 Comp. Laws 1915, § 12362), is as follows:

“In an action either at law, or in equity, any one claiming an interest in the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.”

Section 2 of the enacting clause of the act provides:

“This act is hereby declared to be remedial in character, and as such shall be liberally construed to effectuate the intents and purposes thereof.” Act No. 314, Pub. Acts 1915.”

This provision of the judicature act has been construed by this court in Weatherby v. Kent Circuit Judge, 194 Mich. 46.

It cannot be doubted that the bondsmen had a direct financial interest in the outcome of the litigation and this is true whether in the bankruptcy court the whole sum recovered by the trustee should be held to be the property of the bondsmen, by right of subrogation or that they were entitled to share in the distribution of the fund so created the same as any ordinary creditor. There was no error in permitting the intervention of which complaint is made.

Assignments 9, 10, and 11 are based upon the action of the court in admitting as. exhibits certain certificates made by the architect and by the building committee. It appears to us that these exhibits were properly admitted. Their value as evidence was for the jury under the testimony and proper instructions from the court.

Assignments of error 14-24 are based upon the admission or exclusion of testimony. We find no reversible error therein.

Assignment 20 refers to the testimony of the witness, VanZaal. In its principal case defendant had offered much testimony tending to show the defective character of the construction, but had introduced no evidence tending to show the cost of remedying the alleged defects with the exception of fixing the cost of renewing the basement floor- which was placed at $228. Plaintiff thereupon swore many witnesses, including the three members of the building committee, who testified that the structure was completed in accordance with the plans and specifications. After both parties had' rested defendant put upon the stand the witness, Van Zaal, who was questioned by defendant’s counsel as to the cost of repointing the brick work, which he first placed at from $225 to $250. Later, it appearing that this estimate was intended to cover the entire building, and that he had made no examination of the walls higher than he could reach while standing on the ground, he was permitted to testify that- to remedy such of the walls as he had personally examined would cost from $30 to $35. He fixed the cost of putting a tile drain all around the building outside the footings at $50, and the cost of repairing or replacing alleged defective work on the black boards at $15.

All this testimony was admitted over the objection of plaintiff’s counsel as not being proper rebuttal and because the items being testified to were not set forth in any bill of particulars and took the plaintiff by surprise and would require the bringing in of testimony on the part of plaintiff. This testimony was finally, on motion of plaintiff’s counsel, stricken out by the court. In the discretion of the court this testimony might very well have been received although strictly out of order. We are unable to find reversible error in the action of the court in this respect.

Several assignments of error are based upon the charge of the court! This charge is quite lengthy and presents the claims of the contending parties fairly, and, when considered in its entirety, preserves, we think, the rights of the defendant. In this connection it should be said that all requests preferred by the defendant were given to the jury. They were told that they might find for the plaintiff for the full amount of the claim; that they might find for the plaintiff for a lesser sum than for the full amount of the claim; that they might find a verdict of no cause of action or that they might find for the defendant if they concluded that the defects in the building were greater than the amount of plaintiff’s claim. In bringing in a verdict for the plaintiff for $385.76 the jury actually allowed defendant on account of the defects, $295.60. Assuming that they allowed the entire sum of $228 for renewing the basement floor, they allowed $67.60 further for other defects, or about a quarter of the entire sum claimed for defective workmanship, even if the testimony of Van Zaal had been considered.

After verdict, a motion for new trial was made based upon newly-discovered evidence. This claim was supported by the affidavits of the three members of the building committee who swore that after the trial they had made a further examination of the building and had become convinced that their testimony given upon the trial was wrong and that they had been deceived during the progress of the work by the contractor and architect. The learned circuit judge in disposing of this motion said with reference to this evidence :

“This to my mind is not newly-discovered evidence, and owing to the fact that it will necessarily be a contradiction of their former testimony it cannot be of any great weight or use in any event.”

Of the claim that the verdict was against the weight of the evidence he said:

“As to the ground that the verdict is against the clear weight of the evidence, it is the opinion of the court that the case having been properly submitted to the jury, and their finding a verdict for the plaintiff for about one-half of the amount claimed, that this verdict should not be disturbed.”

After a careful examination of this record and the assignments of error we must agree with the learned circuit judge.

The judgment is affirmed.

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


text:
    KROUT v. J. L. HUDSON CO.
    Master and Servant — Workmen’s Compensation Act — Vaccination — Course oe Employment — Liability oe Employer.
    Where claimant, with her consent, was vaccinated, with other employees of defendant, hy an official of the Detroit hoard of health, at the request of the hoard, an infection resulting from such vaccination did not arise out of her employment so as to render her employer liable under the workmen’s compensation law.
    Certiorari to Industrial Accident Board.
    Submitted January 15, 1918.
    (Docket No. 67.)
    Decided March 27, 1918.
    Ida M. Krout presented her claim for compensation against the J. L. Hudson Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Globe Indemnity Company, insurer, bring certiorari.
    Reversed.

      Douglas, Eaman & Barbour, for appellants.

      Edward A. Rich (Russell L. Freyman, of counsel), for appellee.
   Brooke, J.

For some time prior to February 8, 1916, claimant was employed as a fitter for the J. L. Hudson Co., respondent. On that day a general vaccination of the employees of the J. L. Hudson Co. was performed by Dr. James A. McVeigh, an official of the board of health of the city of Detroit, who acted in the premises at the request of the board of health. He testified that the request of the board of health was communicated to the officers of the J. L. Hudson Co., and those officers through subordinates, conveyed the same to the several departments. He said:

“A. It was not an order, but a request for their co-operation.
“Q. For the co-operation of who?
C‘A. The J. L. Hudson Company to prevent the possibility of smallpox in their institution.
“Q. What alternative was offered by the board of health in the event any employee did not wish to be vaccinated?
“A. Following our usual procedure in such cases I told them that if any employees who had not been successfully vaccinated, if they were not successfully vaccinated within five years should be excluded from the place of employment for a period to twenty-one days. * * *
“Q. In the event that they refused to be vaccinated what was the remedy of the J. L. Hudson Company?
“A. The alternative was a twenty-one day lay-off covering the period of incubation of smallpox.”

Claimant, together with several hundred other employees, submitted to the operation. It is her claim that within half an hour after the operation she felt pain in her arm extending upwards into her neck, and that this condition continued for four days when she was obliged to discontinue work. Two days later, on February 14, she called a physician who diagnosed her trouble as “acute mastoiditis, lymphatic infection.”

He operated upon her on the 19th. Claimant remained in the hospital some two or three weeks and was convalescent for a considerable period thereafter. No notice of the accident was served upon respondent and no formal claim for compensation ever made by claimant until January 19, 1917. It is undisputed, however, that the respondent knew of claimant’s illness and that one of the nurses connected with the welfare department of the respondent called upon her at her home during her said illness. It is likewise undisputed that some time in June, 1916, claimant called upon the manager of the respondent for the purpose of ascertaining “if they could not do something for me, or what they could do for me.”

As a result of this interview claimant was paid two weeks’ salary, which, we gather from the record, was in accordance with the usual custom of the respondent' company. Respondent having denied liability, an arbi'tration followed and an award was made, which, upon appeal to the industrial accident board, was affirmed.

Respondent reviews the case in this court asserting that:

“(1) Claimant’s injury was not accidental.
“(2) Claimant failed to sustain the burden imposed upon her of showing that the alleged accidental injury arose out of and in the course of her employment.
“(3) Claimant has not discharged the burden of showing that the alleged accidental injury was the cause of her disability.”

While Dr. McVeigh, who had himself vaccinated approximately 100,000 persons, testified that he never knew or heard or read of a case of acute mastoiditis being caused by vaccination, it was the opinion of Dr. Williams, claimant’s family physician, that the mastoiditis was the result of a lymphatic infection, the germ of which, streptococcus or pneumococcus, found entrance to the system through the vaccination. Asked what he meant by an infected vaccination, he said:

# “Any open wound or sore exposed to the air, infection from clothing or any surroundings is liable to become infected. What I mean by that is, a man cutting a corn and wearing a black sock is liable to get streptococcus or pneumococcus.”

Assuming, then, as found by the board, that the mastoiditis was caused by the invasion of the germs through the vaccination wound (though the testimony contained in the record seems strongly to discredit this theory), there is still an absolute lack of evidence tending to show that the germ secured lodgment in claimant’s arm in the course of her employment. In this respect the case is distinguishable from Blaess v. Dolph, 195 Mich. 137, and Dove v. Leather Co., 198 Mich. 132. See, also, Chandler v. Railway Co., 5 B. W. C. C. 254; Bellamy v. J. Humphries & Sons, 6 B. W. C. C. 53.

, It seems quite clear to us that claimant has failed to show any connection between her employment in the store of respondent and the infection following vaccination. There was nothing in her employment which made her more susceptible to the reception of the germ infection than if she were walking upon the street or attending a theatre or church. In other words, the risk of infection was such and such only as that to which the general public is exposed. Claimant’s injury, if it can be traced to the vaccination, arose not out of her employment with respondent, but through the active agency of the Detroit board of health, which, for the benefit of the claimant as well as for the benefit of the general public, requested her to submit to the operation. The right of the board of health to insist upon general vaccination is not involved. Claimant submitted to the operation though she asserts “under protest.”

We are not here passing upon the sufficiency of the notice of injury or the claim for compensation.

The award is set aside.

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


text:
    VAN DRIEL v. STEVENS.
    1. Master and Servant — Personal Injuries — Course of Employment — Question for Jury.
    In an action for personal injuries by an employee, who had been engaged to assist in filling two silos, received from a fall from a defective ladder leading up to a chute to the top of the silo, where plaintiff, who had been temporarily employed in sharpening a set of knives to be used in the machine, unknown to the employer entered the chute and climbed to the top of the ladder to see if his help was needed in completing the filling of the silo, when he fell and received the injuries sued upon, the question as to whether he was acting within the scope of his employment was properly for the jury, under proper instructions. 1
    2. Same — Evidence—Self-Serving Testimony.
    Testimony of plaintiff as to his reasons for climbing the ladder was not objectionable on the ground that it was self-serving; its weight being for the jury.
    3. Same — Damages—Permanent Injuries — Earning Capacity.
    Where the testimony of the physician showed that plaintiff’s injury was of a permanent character, it was not error for the trial court to submit to the jury the question of his decreased earning power, although he testified that, because wages had gone up, he was able to earn, at lighter work, the same wages he received before the injury.
    4. Appeal and Error — Conduct of Court — Trial.
    Language of the trial court, which, if used in the presence of the jury, would have been open to serious objection, held, not prejudicial where the jury were not present when it was spoken.
    Error to superior court of Grand Rapids; Dunham, J.
    Submitted January 23, 1918.
    (Docket No. 168.)
    Decided March 27, 1918.
    Case by Cornelius Van Driel against Harry Stevens for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      A. C. Hindman (Ganson Taggart, of counsel), for appellant.

      William J. Landman (Fred P. Geib, of counsel), for appellee.
    In this case plaintiff sues to recover damages sustained by him through a fall from a ladder leading up a chute to the top of a silo. The silo was 28 or 30 feet high and held together by iron hoops. 30 inches apart. On one side of the silo an opening 28 inches wide was left from bottom to top. As the filling progresses this opening is closed by small doors 28 inches .wide and 30 inches high, which fit into a frame-work ■prepared for them and are held in place by two short levers, one on either side, fixed by a bolt near the outer edge of the door. Upon the outer end of these levers is an eccentric flange so that when the lever handles are upright the flange does not engage with the frame work of the silo. When in proper position and pushed downward the eccentric flange presses firmly against the frame and the door is. held in a fixed position. When so adjusted the ends of the levers or handles are in a horizontal position nearly touching each other in the center of the door, and they, together ' with the iron hoops, afford a safe and convenient sort of ladder upon which to mount the silo. If these doors be placed in position upside down the handles of the levers when not engaged would hang downward, and, in order to perform their service, would have to be raised upward to a horizontal position and when in that position the door would be held in place but the handles when subjected to any considerable weight would be liable to drop from a horizontal to a perpendicular position. The whole opening was protected by a chute which extended below the surface of the ground to the basement of the barn near which the silo was erected.

      Plaintiff was hired by defendant on October 4, 1915, to assist in cutting and hauling corn and to help fill two silos. • He continued to work with the exception of a day or two until October 16th, when he was injured. During these 10 or 12 days, plaintiff cut corn,' hauled corn, dug potatoes one day, and helped tramp down the ensilage in the larger silo which was filled first. During the operation of the filling of the larger silo plaintiff’s son for a time tramped the ensilage but made complaint to his father who thereupon changed work with him. This'silo was filled without incident. The smaller silo which was. only 10 feet in diameter was. then filled and the tramping was done therein by plaintiff’s son. On the day of the accident, plaintiff had been hauling corn from the field to the machine and between 2 and 3 o’clock had delivered his last load; 1 or 2 other loads remaining in the field were being drawn by other teams. A conversation ensued between plaintiff and defendant with reference to the sharpening of a set of knives to be used in the machine, and plaintiff was either directed or permitted to do said sharpening. He took the knives inside the barn, where, with the assistance of a younger son, he sharpened them. While engaged in this labor he was not in view of the defendant. Having completed the job, without reporting to defendant, his employer, he proceeded to the basement of the barn and there entered the chute and climbed to the top of the ladder above described. It was quite dark within the chute. All the doors of the opening, with the exception of the lowest one, had been placed upside down. The last door when placed left an opening only about eight inches high. Learning that the job within the silo was nearly complete, plaintiff attempted to descend, when the handles on the 3rd door from the top, upon which he was standing, dropped down, throwing his weight upon the handles of the top door which he held in his hands. These likewise dropped downward. He lost his hold and was precipitated to the bottom of the chute, somewhat seriously injuring both ankles. Asked to'describe the accident, plaintiff said:
    “I go in there and go up to ask my boy if I can do anything for him up there, and I go up there and talk with him, and he says: ‘Well, up here we got it finished here pretty near; better go down and pick up the tools, that we don’t have to go home so late at night; we have to move yet.’ * * *

      “Q. What were you going up there in that silo to do?

      “A. To help him, if he needed any help, to help him; otherwise to see how far it was before we get done.”
    At the time of the accident there remained only 15 or 20 minutes’ work before the filling of the small silo was completed. Upon completion of this job it was the purpose of the defendant to move his machine to the’ premises of a neighbor where the work of filling the neighbor’s silo was to commence the next morning. Plaintiff was to participate in that labor but it is disputed whether in so doing he should become the employee of the neighbor or remain the employee of the defendant.
    At the close of the plaintiff’s testimony, and at the conclusion of defendant’s case, a motion for a directed verdict was made upon the grounds:
    “1. That at the time of the accident the plaintiff was not acting within the scope of his employment or in the line of his duty.

      “2. Because at the time of the accident, the plaintiff was going about the premises for his own pleasure or convenience or curiosity.
    “3. Because the plaintiff at the time of the accident was not going to any place where his duty called, nor for the performance of any of his duties, but that he had left his work and place, and gone to another part of the premises for his own purposes and was injured at a place, and at a time when he was not acting for or on behalf of the defendant, nor in pursuance of any order or direction given him by the defendant, and was not upon a place of said premises fitted up or intended for his amusement, pleasure, or recreation, or for that of any other person.
    “4. Because at the time of the accident the doors were all in, and that there was no opportunity for any further work to be done. The obligation of master and servant had, so far as this particular work at that time was concerned, ceased, and the obligation of the master to maintain a safe place to work at that time had been ended.”
    This, motion was denied and the case was submitted to a jury who found for the plaintiff in the sum of $1,926.40. Upon a former trial, plaintiff had recovered a verdict of $4,341. Upon motion for a new trial the motion was granted unless plaintiff should remit all of said judgment except $841, which he declined to do. Following the second verdict a motion for a new trial was made which was denied.
   Brooke, J.

(after stating the facts). In this court, in addition to the four reasons for a directed verdict which may be considered together, defendant urges as ground for reversal alleged errors in the admission and exclusion of testimony; alleged errors based upon the conduct and language of the court in the progress of the trial; and alleged errors in the charge of the court.

We will first examine the assignment of error based upon the refusal of the court to direct a verdict in favor of the defendant upon the ground that at the time of the accident, plaintiff was acting without the scope of his employment and for his own pleasure and convenience. It is strenuously urged on behalf of the defendant that plaintiff’s own testimony as to his reasons for mounting the ladder, “to help him, if he needed any help, to help him; otherwise to see how far it was before we get done,” is a plain admission that his purpose was one of curiosity merely and was not inspired in a natural way by a desire to serve his master. In ■ connection with this claim counsel notice that the work of filling the small silo was nearly completed; that it could have been completed no faster if the plaintiff had been able to assist his son as only such ensilage could reach the silo as was put through the machine, and also that plaintiff mounted the ladder without any fork, which, it is claimed, would have been necessary to enable him to perform any service of value within the silo. Many cases are cited by counsel for defendant which it is claimed support the position taken. Among them the following: Spooner v. Detroit Saturday Night Co., 187 Mich. 125; Lindstrand v. Delta Lumber Co., 65 Mich. 261; Kinney v. Onsted, 113 Mich. 98; Hutchinson v. Cleveland-Cliffs Iron Co., 141 Mich. 346; Bedell v. Berkey, 76 Mich. 435; Brinkman v. Zuckerman, 192 Mich. 624; Rayner v. Furniture Co., 180 Mich. 168; Stetson v. Transportation Co., 182 Mich. 355; Clem v. Chalmers Motor Co., 178 Mich. 340; Gavigan v. Railway Co., 110 Mich. 71. Upon this point the court declined to hold, as a matter of law, that plaintiff in mounting the .ladder was acting without the scope of his employment, but instructed the jury that whether or not such act was within the scope of his employment was a question of fact for their determination, saying:

“He must prove that,at the time he went up that ladder he was still a servant of the defendant, and that in going up there he was about the defendant’s work, and that he was authorized by the terms of his employment to so go up that ladder and for the purpose that he did ascend it. * * *
“If the plaintiff of his own volition was occupying the position that he did occupy upon this ladder merely for his own convenience and accommodation, or out of mere curiosity on his part, then he would not be entitled to recover. * * *
“A,nd again, if you should find that the plaintiff at the time he was injured had quit the work assigned to him by the defendant, and voluntarily undertook to do work about which he had no duties to perform, by virtue of the contractual relations existing between him and the defendant, then while such condition exists the duty growing out of that relation, of using care by the defendant for plaintiff’s safety, does not rest upon the defendant. * * *
“If you find that the plaintiff was not' authorized, either expressly or impliedly, to go up that ladder as he did go; that if in going up there he was not in the, performance of his duty toward the defendant and in the service of the defendant, then he would not be entitled to recover.”

The rule, as stated in 4 Labatt’s Master and Servant (2d Ed.), § 1566, is as follows:.

“The question whether the injured person was acting in the course of his employment is for the jury, where the evidence is conflicting, or where a difference of opinion may reasonably be entertained with regard to the proper inference to be drawn from the testimony.”

See, also, 26 Cyc. pp. 1461, 1462, and cases cited in note 36, and see 4 Thompson on Negligence, § 3753, and cases cited.

After a careful consideration of all the authorities cited we have reached the conclusion that the question whether or not at the moment of injury the plaintiff was acting within the scope of his employment was one for the jury and that it was properly submitted.

Error is assigned upon the action of the court in permitting the plaintiff to give his reasons for climbing the ladder on the ground that such testimony was self-serving. We think the evidence competent and its weight for the jury.

Other assignments relate to the admission or exclusion of testimony, but we find no reversible error therein.

In discussing the measure of damages, the court permitted the jury to consider the question of the decreased earning power of the plaintiff. This is urged as reversible error upon the ground that:

“Plaintiff’s own testimony established the fact that since the accident and at the time of the trial he was earning as much as before the injury and also that he had returned to an identical job at the same wages as he had worked at before the injury.”

On behalf of the plaintiff it is pointed out that wages had gone up between the time of the accident and the time of the subsequent employment; that his injury made it necessary for him to do lighter work and that the undisputed testimony of Dr. Webb shows that the injury was of a permanent character and impaired plaintiff permanently. We think this element of damage was properly submitted to the jury.

Finally a reversal of the case is sought upon the ground that the trial judge indulged in improper conduct and language in the course of the trial. In denying a motion for a directed verdict the court said:

“He could not delegate the putting in of these to some of his employees and escape the liability for that neglect, to have that ladder properly built. The only wonder is others were not injured before the plaintiff here was injured.”

This language, if used in the presence of the jury, would doubtless be open to serious objection, but it was not so delivered and therefore must have been without prejudice to the defendant. Two or three other episodes occurring in the examination of witnesses are cited to show that the court was prejudiced, and that such prejudice worked to the detriment of the defendant. While we have frequently held that conduct or language on the part of the trial judge indicating the bent of his mind constitutes reversible error, Schwanz v. Wujek, 163 Mich. 492, and Jageriskey v. Railway, 163 Mich. 631, we are yet of opinion after a careful perusal of this record that the rights of the defendant were not prejudiced by the conduct or language of the court.

The judgment is affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, and Stone, JJ., concurred. Kuitn, J., did not sit.