author: Brooke, J.

text:
    DINGMAN v. DULUTH, SOUTH SHORE & ATLANTIC RAILWAY CO.
    1. Carriers — Railroads—Discrimination—Baggage.
    A carrier of passengers may agree with one of several persons engaged in the business of transferring baggage and passengers by vehicle at the terminus of the railway, to furnish a pass on its trains and permit him to solicit business thereon, refusing like privileges to his competitors, without violating the statute forbidding discrimination. 2 Comp. Laws, § 6266.

      2. Same.
    The carrier has a right to provide facilities for the transfer of baggage for its passengers, and to protect them against annoyance from solicitation of competing agents.
    3. Evidence — Interstate Commerce — Judicial Notice.
    The oourt may take judicial notice of the fact that the Duluth, South Shore & Atlantic Railway Company is engaged in interstate commerce.
    4. Carriers — Interstate Commerce Law — Discrimination.
    Only undue or unreasonable discrimination is unlawful within the provisions of 24 U. S. Stat. 379 (U. S. Comp. Stat. 1901, p. 3154).
    Error to Chippewa; Steere, J.
    Submitted January 13, 1910.
    (Docket No. 25.)
    Decided February 1, 1911.
    Case by Walter Dingman against the Duluth, South Shore & Atlantic Railway Company, for the unlawful discrimination against plaintiff’s business. A judgment sustaining a demurrer to plaintiff’s declaration is reviewed by plaintiff on writ of error.
    Affirmed.

      F. T. McDonald and M. M. Larmonth, for appellant.

      A. B. Eldredge and A. E. Miller, for appellee.

       As to discrimination by carrier as to hackmen and other solicitors of patronage at depots, wharves, etc., see note in 13 L. R. A. 848; and note in 16 L. R. A. (N. .S. ) 777.

   Brooke, J.

Plaintiff, a resident of Sault Ste. Marie, in this State, commenced suit against defendant by declaration, alleging: That he had been engaged for several years in the business of carrying passengers and their baggage for hire, being the owner and operating a number of buses and wagons used for that purpose, and principally in carrying passengers and baggage to and from the passenger trains of railroads having their termini in the city of Sault Ste. Marie; that defendant is a common carrier, engaged in the business of carrying passengers and freight between various points in the State of Michigan and the city of Sault Ste. Marie, and it was the duty of defendant to afford equal facilities to all persons operating bus and baggage wagons, to solicit passengers on its trains and at its depots, and not to discriminate, or allow undue or unfair advantage to any one; that defendant, intending to injure him, has discriminated in favor of one Price Eagle engaged in a like business as plaintiff, by entering into an agreement with Eagle, August 1, 1904, whereby he and his agents are permitted to go upon defendant’s passenger trains, and solicit passengers and baggage for his buses and baggage wagons, and for that purpose has been given a pass to be carried free, on all trains between Soo Junction and Sault Ste. Marie, all within this State, which said Eagle has continued to do since that date, and the same privilege has been continuously denied to plaintiff. The declaration further alleges that by reason of the exercise of this privilege by Eagle he has suffered great damage, etc. Defendant demurred to this declaration, giving several reasons. The court sustained the demurrer.

To give to section 6266, 2 Comp. Laws, the construction contended for by plaintiff, would result in depriving the public of one of the most valuable privileges incident to public travel. That the privilege of dealing with a competent and trustworthy baggage agent is a valuable one, seems too obvious for argument. The traveling stranger is often ignorant of the location of termini or his destination, and the best means of transportation to and from the same. He is entitled to receive this information, and to receive it from one whose position upon the train is a guaranty that he is responsible and may be safely intrusted with the person or property of the traveler. In large cities, scores, nay hundreds, are engaged in the same business as is the plaintiff. To compel the railroad company to transport all persons who desired to solicit the transportation of passengers or baggage would, of necessity, result in the refusal of the company to carry any, and, as a consequence, the denial to the traveling public of a service of the greatest possible importance.

But suppose the railroad, instead of refusing to carry all, permitted two or more baggage agents upon its trains. The conditions which would result from such a course would at once become intolerable. Rival agents would besiege the passenger for his business to his infinite annoyance, and, when he finally made a selection, he would have no means of knowing that he had chosen either a competent or responsible agency for its transaction. It may be urged that the passenger is subjected to the same annoyance upon his arrival at his destination. If this is so, it is because he voluntarily transacts his business at the depot, rather than upon the train. But the conditions at the depot are different from those upon the train. , At the depot the competition for his business is ordinarily duly regulated and under the supervision of the police, a safeguard entirely wanting upon trains.

I have said this much as bearing upon the general aspect of the question, and the result to the public if the contention of the plaintiff should prevail. While these considerations are not controlling, they certainly militate most strongly against such a construction of the statute as would result in harm or inconvenience to the general public, unless that construction is forced upon us by plain and unequivocal language, or pertinent judicial determination. Neither, in my opinion, compel us to adopt plaintiff’s contention.

The case at bar is not within the principle of the decision in Kalamazoo Hack & Bus Co. v. Sootsma, 84 Mich. 198 (47 N. W. 667, 10 L. R. A. 819, 22 Am. St. Rep. 693), relied upon by plaintiff. That decision itself is probably not in harmony with the weight of current authority. See, for a full discussion of the question, Beale & Wyman on Railroad Rate Regulation, p. 759, and authorities there cited. It is not, however, necessary to question the soundness of the principles there enunciated. In that case, the railroad company had leased a portion of its depot grounds to the Hack & Bus Company, which, relying upon said lease, sought to exclude Sootsma, who also operated a hack, from said leased premises. It is apparent that the contract between the railroad company and its lessee was one which resulted in profit to the company, while, in the case at bar, the record fails to show that Eagle paid anything for the privilege; indeed, the declaration charges that Eagle and his agents were given free transportation, while a like favor was refused plaintiff.

So far as the averments in the declaration disclose the facts in the case, it may be presumed that the arrangement between the defendant and Eagle was one solely for the benefit and accommodation of the traveling public, and to provide it with a capable and responsible agency for the transaction of such business as the traveler desired to commit to its care. This court said, in Kalamazoo Hack & Bus Co. v. Sootsma, supra:

“But independently of the statute, upon principle, the plaintiff could not recover in this case. A railroad company can make all needful reasonable rules and regulations concerning the use of its depots and grounds, and can exclude all persons therefrom who have no business with the railroad or the passengers going to and coming from the trains or depots, and it probably can prohibit all persons from soliciting business for themselves upon its premises; but it cannot, arbitrarily, admit one common carrier of passengers or freight to its depots or grounds, and exclude all others, for no other reason than that it is for its own profit or pleasure.”

In considering this identical question here involved, it was said in Kates v. Cab Co., 107 Ga. 636 (34 S. E. 372, 46 L. R. A. 431):

“ It cannot successfully be maintained that the grant of these privileges to the cab company is in violation of law, nor do the concessions of themselves create a monopoly, nor are they in any sense an interference with the right of the traveling public. On the contrary, it will be recognized that the exercise of the facilities named tends to the public convenience and the prompt and safe handling of the baggage of the passenger. Under no view of the case would the petitioner be entitled to the aid of the courts in restricting these conveniences, and lessening the facilities for the safe and convenient handling of the effects of a passenger. *' * * It is not the right of the plaintiff in error, by injunction or otherwise, to take away or disturb any reasonable means tending to promote the convenience or comfort of the public. The merit of his complaint, if any exists, must be found in the fact of the refusal of the defendant to grant to him the opportunities so to serve the public and thereby better his business. Whether the refusal so to do is proper or unlawful does not depend upon the favor or inclination of the railroad company, but upon the plaintiff’s right. If it should depend upon favor, then the plaintiff in error has no cause of complaint, because favor is essentially free and voluntary, and may not be demanded; and it is in this view that we come to measure by the legal standard what are the rights of the petitioner under the allegations he makes, as against the rights of the defendants to control property to which they have title and consequently the right of use, and the plaintiff in error, to succeed, must establish the proposition that the defendants as common carriers are in law bound to afford to him the same conveniences and facilities for carrying on his business, which they afford to others engaged in the same calling. * * * Railroad companies have rights of way, stations, depots, cars, engines, etc., as their equipment to serve the public. In the use of such property as public carriers, no one of the public ought to be favored more than another, nor is it lawful to impose any restriction, or make any discrimination in such use, against any one, which does not apply to all-; but this rule of impartiality applies to railroad companies in their public capacity, and it by no means follows that such reasonable rules and regulations which a carrier may make for the protection of its property, for the safety and convenience of its passengers or freights, are subject to the same unqualified condition.”

See, also, Donovan v. Pennsylvania Co., 120 Fed. 215, 57 C. C. A. 362 (61 L. R. A. 140).

It has been held, in many jurisdictions, that the right to sell lunches upon railroad premises is wholly dependent upon contract. See Barney v. Steamboat Co., 67 N. Y. 301 (23 Am. Rep. 115); Landrigan v. State, 31 Ark. 50 (25 Am. Rep. 547 ).

I am of opinion that, if plaintiff’s position is tenable, it could be urged with equal force that any one desiring to enter defendant’s trains to sell books, candies, fruits, etc., would have a perfect right to do so. Supplying these necessities to the traveling public adds to the comfort of travel, and, of course, results in profit to the person or corporation exercising the privilege; but I think it would scarcely be claimed that the railroad was guilty of unjust discrimination because it granted this privilege to one only, thus protecting its patrons from the annoyance of a horde of insistent vendors.

We may take judicial notice of the fact that defendant is engaged in interstate commerce. 16 Cyc. p. 861, and cases there cited. Section 1 of the interstate commerce law (Act Feb. 4, 1887, chap. 104, 24 U. S. Stat. 379 [U. S. Comp. Stat. 1901, p. 3154]) permits railways to furnish free transportation to baggage agents, among others. Section 3 provides that it shall be unlawful for any common carrier to give any undue or unreasonable preference or advantage to any particular person, etc. It has been held repeatedly that all discriminations are not unlawful, but only such as are unjust, undue, or unreasonable. See Louisville, etc., R. Co. v. Naval Stores Co., 198 U. S. 483 (25 Sup. Ct. 745), and cases there cited and approved. Cases may arise, as in the case under consideration, where, to preserve to the public a valuable right, a railroad company not only has the power, but it is bound, to exercise its right of selection or discrimination to the end that public convenience may be served, and its passengers’ baggage handled with promptness and safety.

The judgment is affirmed.

Ostrander, C. J., and Hooker, Blair, Moore, McAlvay, and Stone, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    GOW v. STODDARD.
    1. Taxation —Assessment—Forest Products —Logs and Logging-Ownership.
    Under Act No. 32, Pub. Acts 1899, logs on a loading ground, rented for the purpose of piling and loading the logs on cars, are assessable to the lessee, whether or not the sale of the property to him was fully executed.
    3. Replevin — Taxation—Warrant.
    Replevin does not lie for personal property taken by a township treasurer under a tax warrant, fair on its face, and valid for a portion of the taxes assessed. 3 Gomp. Laws, § 10651.
    Error to Kalkaska; Chittenden, J.
    Submitted January 13, 1910.
    (Docket No. 64.)
    Decided February 1, 1911.
    Replevin by James Gow and John Campbell against Orson T. Stoddard. Judgment for defendant. Plaintiffs bring error.
    Affirmed.

      William Carpenter and J. L. Boyd, for appellants.

      Ernest C. Smith, for appellee.
   Blair, J.

The plaintiffs are lumbermen residing at Muskegon, Mich., and in the winter of 1906 and 1907 were buying logs in the township of Rapid River, Kalkaska county. The plaintiffs’ testimony tended to show that all the logs bought in that township were bought under oral contracts, by the terms of which they were to be delivered f. o. b. cars, and were to be finally paid for when they were on the cars. Some of the logs contracted for had been hauled to the skidways, or sidings, by the vendors, and left there preparatory to loading, at the time the assessment was to be made in April, 1907. The supervisor, finding them there' at that time, assessed them to the plaintiffs. Three separate assessments were made: One for logs on section 1 at the siding at Westwood, valued at $1,230.20, against which a tax of $31.11 was levied. The second, for logs on section 27, Rapid River, valued at $3,710, against which a tax of $105.05 was levied. These were at a place called Lola’s Siding. The third, for logs on section 30 at Rugg’s Siding, valued at $520, against which a tax of $13.12 was levied. The undisputed testimony showed that the banking ground upon which the logs were piled at Rugg’s Siding was leased by plaintiffs for that purpose.

The plaintiffs having refused to pay the taxes so assessed, the township treasurer, in the spring of 1908, levied on certain other logs of plaintiffs to enforce collection, and plaintiffs brought this suit in replevin therefor. The warrant showed the separate amounts of the three taxes as above set forth. At the close of the testimony the circuit judge directed a verdict for defendant, for the following reasons:

“ I think the motion is well taken that, Gow & Campbell having rented those grounds of Mr. Rugg, this property, the logs, was on their premises, and in their possession, and, if assessed to them, it was properly assessed under the statute. If it had been on the G. R. & I. Railroad land, it should have been assessed to the G. R. & I., perhaps; if it had been on my land, it should have been assessed to me; but, Gow & Campbell having rented this property of Mr. Rugg, the property was properly in their possession. It was their yard, not Mr. Rugg’s yard, and not those several individuals’ that had sold those logs; but it was Gow & Campbell’s banking ground. They had paid rent for it, had taken possession of it; and under this motion I shall hold that the assessment was properly made to Gow & Campbell. The motion is granted.”

Plaintiffs bring the record to this court for review upon writ of error, contending that in all respects the case is ruled by the previous decision of this court: Gow v. McFarren, 156 Mich. 365 (120 N. W. 800 ). Defendant’s counsel in their brief attempt to distinguish the cases as follows:

"In neither of the cases, Grand Rapids Bark & Lumber Co. v. Township of Inland, 136 Mich. 121 (98 N. W. 980), and Gow v. McFarren, 156 Mich. 362 (120 N. W. 800), does it appear that the plaintiffs leased or controlled the ground where the forest products were stored, and in view of the statute heretofore quoted (Pub. Acts 1899, Act No. 32, § 8), this distinction is decisive and controlling.”

While the opinions in the cases referred to do not disclose that the section of the statute referred to or the facts which it is claimed rendered it applicable received the attention of the court, the record in Gow v. McFarren discloses that a similar state of facts existed in that case, and in the brief for defendant therein the following appears:

“However, in the view which we fake of this case, if is not absolutely essential to determine whether title passed or not. These logs were located at different sidings on the railroad. At two of these sidings, at least, the plaintiffs leased and paid rent for the ground on which the logs lay, and they leased it for the purpose of storing these logs in question; and, because they were therefore in control of the yards or piling ground where the logs lay, the logs were properly assessable to them, regardless of ownership, under the provisions of the tax law. Pub. Acts 1899, Act No. 32, § 8.”

The same question was again raised by motion for rehearing, which was denied.

It is apparent, therefore, that, if we adhere to the decision in Gow v. McFarren, the judgment herein must be reversed. Upon reconsideration, however, we are satisfied that we failed to give proper effect to the statute in question. The statute provides that—

“All forest products owned by residents or nonresidents, or estates of deceased persons, shall be assessed in the township or ward where the same may be, to the person having control of the premises, store, mill, dock, yard, piling ground, place of storage, or warehouse where such property is situated in such township, on the second Monday of April of the year when the assessment is made,” etc.

Under the-undisputed evidence in the case, the plaintiffs were in control of the piling ground at the Rugg Siding at the time of the assessment, and in assessing the logs on such piling ground to them the supervisor was following the express command of the statute.

Section 10651, 3 Comp. Laws, provides that—

“No replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment or fine, in pursuance of any statute of this State.”

Certainly where, as in this case, not only is the warrant fair on its face, but a portion of the tax is valid, the statute applies, and prohibits the action. Boyce v. Stevens, 86 Mich. 549 (49 N. W. 577); Scott v. Whelan, 96 Mich. 624 (55 N. W. 1025); Curtiss v. Witt, 110 Mich. 131 (67 N. W. 1106); Roberts v. Denio, 118 Mich. 544 (77 N. W. 7); Forster v. Brown, 119 Mich. 86 (77 N. W. 646); Northwestern, etc., Lumber Co. v. Scott, 123 Mich. 357 (82 N. W. 76). So far as the case of Gow v. McFarren is inconsistent with this opinion, we think it should not be followed.

The judgment is affirmed.

Hooker, Moore, McAlvay, and Brooke JJ., concurred.


author: Bird, J.

text:
    WHEELER v. CITY OF SAULT STE. MARIE.
    1. Municipal Corporations — Contracts — Ultra Vires —Eminent Domain — Acquisition oe Property. •
    Unless authority therefor is conferred by its charter, a city has no power to contract for the purchase of a strip of land to widen a public street in consideration that it move and repair ■ a building standing on the premises, indemnify the owner against its loss by oollapse, and assume all risks in so doing.

      2. Same.
    Cities have only such powers as have been conferred by the legislature upon them.
    3. Same — Eminent Domain.
    To acquire such property, the city must proceed in the manner authorized by law, and purchase by agreement or condemn the same, paying a money consideration.
    4. Same — Indemnity Contracts.
    Cities have no general authority to undertake casualty risks, or to indemnify persons against loss or injury.
    Appeal from Chippewa; Steere, J.
    Submitted October 4, 1910.
    (Docket No. 1.)
    Decided February 1, 1911.
    Bill by Eben S. Wheeler against the city of Sault Ste. Marie for the specific enforcement of a contract. From a decree dismissing the bill of complaint on demurrer, complainant appeals.
    Affirmed.

      George A. Gady (John H. Goff, of counsel), for complainant.

      Sherman T. Handy, for defendant.
   Bird, J.

The bill of complaint in this cause prayed for a specific enforcement of a land contract, which complainant claims to have made with the defendant city, and which the city now refuses to carry out. It appears that the defendant was desirous of widening Portage avenue, one of its streets, and requested complainant to state his terms upon which he would convey a strip of land fronting on that avenue, which land was partially covered by a stone store building. His reply was as follows:

“If the city will assume all responsibility and move back the stone building ten to twelve feet, the exact distance to be hereinafter decided by Wheeler, fill front, reestablish fences, basement and foundation walls and piers, and all sewer and water connections, leaving the block in as good physical condition as now, and with same sized basement, and with new door and window frames therein, also, in addition, pay to Mr. Wheeler the sum of four hundred dollars, he will thereupon give a quitclaim deed to the city of seven feet of ground for street use off south end of his land as desired. It shall be understood, however, that the city saves Wheeler harmless, and assumes all risk in moving the building, both to persons and property, and pays Mr. Wheeler for the building, in case it is wrecked or collapses in process of removal, its fair value, also all damages to structure; and this shall be in addition to said four hundred dollars.”

It is alleged by complainant that several months after this proposition was submitted to the defendant, its council accepted the proposition but now refuses to carry it out. Defendant demurred to the bill, alleging several causes of demurrer. Upon the hearing, the trial court sustained the demurrer and dismissed the bill, whereupon complainant appealed to this court. The fourth cause of demurrer is as follows:

“The common council of the city of Sault Ste. Marie had no authority under its charter to enter into such a contract with complainant, as is set forth in his said proposition.”

It will be unnecessary to state or discuss the other grounds of demurrer, as a consideration of this one will dispose of the case.

The contract was one which the city had no authority to make. An enforcement of this contract would compel the city to move and repair complainant’s stone structure. While the city might perform such work on its own buildings, it is without authority to engage in such work for another. The city has only such powers as have been conferred upon it by the legislature, and the power to make valid contracts to move buildings and repair them for others is not found among the powers conferred. The contract cannot be sustained on the ground that it is for the purpose of acquiring property for the public use. The city undoubtedly has a right to acquire the strip of land which complainant agreed to convey, but when it decides to do so, it must resort to some of the modes of acquisition pointed out by the statute or its charter. To acquire the property in question, it is unnecessary to enter into such a contract. It can be purchased by agreement or condemned and a money consideration paid for it. It has not the power to acquire property for the public use by entering into contracts of this character. Penley v. City of Auburn, 85 Me. 278 (27 Atl. 158, 21 L. R. A. 657); Stewart v. City of Council Bluffs, 50 Iowa, 668.

Another equally cogent reason suggests itself why the city could not legally enter into the proposed contract. By accepting the terms of the contract, it would undertake to carry a casualty risk during the time the building was being moved, and might subject the city to a great loss in the event that the building should collapse. It would likewise compel the city to carry a personal indemnity risk for the employés while engaged in the work. The carrying of casualty and indemnity risks for individuals or other corporations is clearly beyond the power of the defendant city. City of Nashville v. Sutherland & Co., 92 Tenn. 335 (21 S. W. 674, 19 L. R. A. 619, 36 Am. St. Rep. 88); Carter v. City of Dubuque, 35 Iowa, 416; Blake v. City of Macon, 53 Ga. 172.

The proposed contract was ultra vires, and the trial court was right in refusing to enforce it.

The order of the trial court sustaining the demurrer is affirmed.

Ostrander, O. J., and Hooker, Moore, and McAlvay, JJ., concurred.


text:
    PUTNAM v. DETROIT UNITED RAILWAY.
    1. Trial — Directing Verdict — Weight oe Evidence.
    In determining whether or not a verdict should be directed against a plaintiff, in an action for personal injuries, his evidence must be given its greatest possible probative force.
    3. Street Railways — Contributory Negligence — Crossing
    Street Car Tracks.
    A plaintiff who looked both ways before driving his automobile across a street car track, and had reason to think that he could cross in safety before an oncoming car, which, the testimony tends to show, was approaching at an excessive rate of speed, is not, as a matter of law, guilty of contributory negligence.
    3. Same — Speed Ordinance — Evidence—Pleading—Negligence.
    While the ordinance of a municipality is not admissible to show negligence, in an action against a street railway, for injuries sustained by plaintiff in a collision between his automobile and a car, unless the ordinance is pleaded, it is admissible in evidence to show that plaintiff had a right to anticipate that the speed of the car would not exceed a maximum therein specified.
    Error to Wayne; Donovan, J.
    Submitted October 10, 1910.
    (Docket No. 17.)
    Decided February 1, 1911.
    Case by Charles Putnam against the Detroit United Railway for damages to his automobile and for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Gfraves, Hatch & Wasey, for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.
   Brooke, J.

Defendant maintains a double-track street railway on Michigan avenue, in the city of Detroit. That street runs practically east and west. The northerly track carries the cars running west, and the southerly track those running east. Plaintiff, who was a wholesale dealer in flour, was, on the day of the accident, calling upon his customers, in doing which he used an old secondhand runabout automobile, capable of running not more than eight miles per hour. Plaintiff was, proceeding easterly along the south side of Michigan avenue. Desiring to call upon a customer on Harrison avenue, a street which intersects Michigan from the north, he found it necessary to cross both street car tracks from south to north. He testifies that, just before reaching Harrison avenue, a large interurban car passed him at a high rate of speed, running in the same direction in which he was going; that he proceeded east to a point opposite Harrison avenue, where he intended to cross; that he then looked east, and saw, more than a block away, a car on the north or west-bound track, coming towards him; that he then looked west, and saw a car approaching from that direction, about a block distan't; ’that he had slowed his machine to about three miles per hour; that he believed from the position of the cars it would be safe to cross between the two, and he attempted to do so. He crossed the southerly track in safety, but, when upon the north track, was struck by the west-bound car, his machine demolished, and he himself injured. Testimony was introduced by plaintiff tending to show that the west-bound car was running at an excessive rate of speed. At the close of plaintiff’s proofs, a verdict was directed against him, upon the ground that he was guilty of contributory negligence as a matter of law.

Giving to plaintiff’s evidence its greatest probative force, as we are bound to do where a verdict is directed against him, we are unable to say, as a matter of law, that he was guilty of contributory negligence. Ryan v. Street-Railway Co., 123 Mich. 597 (82 N. W. 278); Chauvin v. Railway Co., 135 Mich. 85 (97 N. W. 160); Gaffka v. Railway, 143 Mich. 456 (106 N. W. 1121); Hebblethwaite v. Railway, 145 Mich. 13 (108 N. W. 433); La Londe v. Traction Co., 145 Mich. 77 (108 N. W. 365); McQuisten v. Railway Co., 147 Mich. 67 (110 N. W. 118); Deneen v. Railway Co., 150 Mich. 235 (113 N. W. 1126).

Plaintiff offered in evidence an ordinance of the city of Detroit regulating the speed of street cars. The ordinance was not pleaded and was excluded. At the time of offering it, plaintiff’s counsel explained that it was offered, among other reasons, for the purpose of showing that the plaintiff had a right to anticipate that the speed of the car that was approaching would not exceed a certain maximum rate. It is urged in this court that it was offered, not for the purpose of showing negligence on the part of the defendant, but to acquit the plaintiff of contributory negligence.

An examination of the record in the case of Moran v. Railway, 124 Mich. 582 (83 N. W. 606), relied upon by plaintiff, shows that the ordinance was in that case duly pleaded. An ordinance may not be introduced for the purpose of showing the negligence of the defendant unless pleaded. Richter v. Harper, 95 Mich. 221 (54 N. W. 768); Gardner v. Railway Co., 99 Mich. 182 (58 N. W. 49). We think, however, an ordinance may be admitted in evidence without pleading, where the sole purpose of its admission is to acquit the plaintiff of contributory negligence. The ordinance should have been admitted under proper instructions from the court as to the purpose of its admission.

The other errors assigned require no discussion. The judgment is reversed, and a new trial ordered.

Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.


text:
    GARRISON v. UNION TRUST CO.
    1. Gifts — Personal Property — Transfer of Title.
    To constitute a valid gift inter vivos there must be a gratuitous and absolute transfer of the property from the donor to the donee, taking effect immediately and fully executed by a delivery of the property by the donor and an acceptance thereof by the donee.
    2. Same — Conditions.
    That deceased gave plaintiff a ring, which she delivered and he accepted, that she requested that he let her wear it until she died, and he consented, warranted a finding that plaintiff had title to the ring.
    3. Same — Possession—Title.
    Possession of the ring by the donor until her death, is not conclusive that she did not intend a gift.
    4. Same — Evidence—Admissions.
    Declarations and admissions of a decedent that she had made a gift of her ring to plaintiff are admissible as corroborative evidence of her intent.
    5. Same — Instructions to Jury.
    Defendant was not entitled to have the jury instructed that if plaintiff was not to have the ring until the death of the donor, and she should meanwhile have the use of it, the gift was not valid.
    Error to Wayne; Murphy, J.
    Submitted October 13, 1910.
    (Docket No. 57.)
    Decided February 1, 1910.
    Replevin by James H. Garrison against the Union Trust Company, special administrator of the estate of Kit-tie Levering, deceased, for a diamond ring. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Devine & Snyder, for appellant.

      Davis & Bromley, for appellee.
   Bird, J.

The plaintiff, James H. Garrison, commenced an action of replevin against the defendant, as special administrator of the estate of Kittie Levering, deceased, to recover possession of a diamond ring, to which he claimed title by gift. His title was contested by the defendant, and the issue was determined by a jury in favor of the plaintiff. Defendant asks this court to reverse the judgment of the trial court for several reasons, chief of which is that the court erred in refusing to direct a verdict for the defendant. It was the claim of plaintiff that Kittie Levering gave him thé ring while he and his wife were on a visit to her home in Detroit, on February 6, 1905. It was Mrs. Garrison’s birthday, and Mrs. Levering invited other relatives to dinner that evening. It is claimed that while at dinner Mrs. Levering gave him the ring. All the invited guests, save plaintiff, testified as to what was said and done with reference to -the ring.

In determining whether the trial court was in error in refusing to direct a verdict for the defendant, it will be necessary to review briefly the testimony of those present on that occasion.

Mamie Garrison, the wife of the plaintiff, testified that:

“ While we «were playing cards, we had our hands on the table, and she spoke up and she says: ‘Well, Jim, we have all got on rings but you. Where is yours? ’ And he says, ‘ Well, I have not got any just now, Aunt Kit-tie,’ and she says, ‘How would you like to wear one like this ?’ He says, ‘ I think it is pretty fine,’ and she says, handing — she took it off and handed it to him, and she says, ‘Try it on,’and she says, ‘I will give you this ring, Jim.’ She says, ‘ It was a diamond that was in the stud that my husband, Harry, wore in the front of his shirt.’ And Jim then says: ‘ Oh, thank you, Aunt Kit-tie; that is awfully nice.’ And he slipped it on, and he says, ‘It don’t quite fit,’and she says, ‘You can easily have that fixed, made larger.’ And he says: ‘Oh, yes; I can. I have got a cousin in the jewelry business, that is an expert, I think, at doing such things as that.’ And he says, ‘ I will appreciate it highly, Aunt Kittie, and shall always enjoy wearing it, and I am very thankful to you.’ And she says, ‘ Jim let me take it and wear it till I am through with it, but the ring is yours.’ So he handed it back to her, and she put it on her finger, and ever afterwards she spoke of it as Jim’s ring — ‘this is the ring I gave Jim.’ ”

This testimony was corroborated by Seely Wolfe, a nephew of Mrs. Levering.

The following is the testimony of Della Wolfe, a niece of Mrs Levering, who testified to subsequent statements of Mrs. Levering that she had given the ring to plaintiff:

“This was Christmas Day, 1908, that we were at my aunt’s for a Christmas dinner, and I was Santa Claus, distributing the presents, and she said — we were all looking at our presents, after we got them — and she says, * I didn’t give anybody any Christmas presents this year because I was not able to get it,’ and she turned to my brother-in-law, and she says, ‘You have not forgotten I gave you this ring?’ and he says: ‘No, auntie; I have not.’ And she says, ‘Well, it won’t be long before you have it.’”

Mary E. Wolfe, a sister of Mrs. Levering, was present on this occasion. She gave testimony to the same effect as the foregoing.

Charles Fuller, a neighbor of plaintiff, ate his Christmas dinner at plaintiff’s house in 1907. Mrs. Levering was also present, and made statements to him with reference to her having given the ring to plaintiff, as follows:

“ I think she spoke directly to me. I had on a ring, and I went out in the dining room and kitchen to smoke before dinner, and Mrs. Levering was there. She and Mr. Garrison were talking out there, and she says, ‘ Here is the ring I gave Jim,’ and pointed to the ring on her finger, in comparison with mine.”

To constitute a valid gift inter vivos, there must be a gratuitous and absolute transfer of the property from the donor to the donee, taking effect immediately, and fully executed by a delivery of'the property by the donor and an acceptance thereof by the donee. 14 Am. & Eng. Enc. Law (2d Ed.), p. 1015. In the foregoing testimony, every necessary element to constitute a valid gift inter vivos can be found. There is testimony that the deceased intended to and did give plaintiff the ring; that she delivered it to him and that he accepted it; and that after-wards she borrowed, or, as one witness said, she loaned it to wear until she was done with it. This testimony, if believed by the jury, would justify them in finding that the title to the ring was in plaintiff.

Counsel insists that, because the donor had the ring in her possession until her death, that fact shows conclusively that she intended no gift. After the gift was once completed and the title had passed to the plaintiff, he could loan it to her or to any one else without affecting the validity of the gift. Gannon v. McGuire, 160 N. Y. 476 (55 N. E. 7, 73 Am. St. Rep. 694); Ivey’s Adm’r v. Owens, 28 Ala. 641; Conner v. Hull, 36 Miss. 424; Clinton v. McKeown, 39 S. C. 21 (17 S. E. 504); Whitford v. Horn, 18 Kan. 455; Crittenden v. Insurance Co., 41 Mich. 442 (2 N. W. 657); Mutual Benefit Life Ins. Co. v. Savings Bank, 68 Mich. 131 (35 N. W. 853).

In Whitford v. Horn, supra, the facts were very similar to the one under consideration. One Nicklison gave a watch to a girl about 12 years of age and delivered it to her. She afterward returned it to him to keep until she was older. Nicklison had the possession of the watch when he died, and in a contest between his administrator and the girl it was decided that it was a valid gift. In Ivey’s Adm’r v. Owens, supra, where the donor repossessed himself of the gift until the donee was older, the court said:

“Although an actual delivery is indispensable to effect a parol gift, yet it is not necessary that the actual possession should be afterward retained by the donee. Subsequent possession by the donor is not necessarily incompatible with the donee’s dominion over the property; nor is it conclusive-evidence that there was no delivery, or that the dominion did not pass to the donee.”

It would undoubtedly call for an explanation where the custody of the thing given had been retained by the donor, and such fact might be taken into consideration in determining whether a valid gift had been consummated, but it would not necessarily raise a conclusive presumption. Gannon v. McGuire, supra.

It is assigned as error that the trial court admitted the testimony of the witnesses Della and Mary Wolfe and Charles Fuller, who testified to admissions of Mrs. Levering that she had given the ring to plaintiff. Counsel say that this testimony was incompetent because declarations and admissions of the donor are not sufficient to establish a valid gift, and cite Campbell v. Sech, 155 Mich. 638 (119 N. W. 922). That case so holds, but it also holds that such declarations and admissions are admissible as corroborative evidence. It was for this purpose that the testimony of these witnesses was used, and we see no error in its admission. Harris v. Hopkins, 43 Mich. 272 (5 N. W. 318, 38 Am. Rep. 180).

Defendant’s counsel complain because the court refused to give their five requests to charge. We think the general charge of the court fairly covered requests 1, 2, 3, and 4. The fifth request was refused, and properly so. It was as follows:

“ If you find from the evidence that Mr. Garrison was not to have the ring until after Mrs. Levering’s death, and that she was to have the use of it in the meantime, then there was no such unconditional passing of title as the law requires, and the gift is not valid, and your verdict must be for the defendant.”

This request assumed that, if the donor had the custody of the ring until her death, there could be no valid gift. This is not the law. As we have before said, if the gift was complete and title passed to the plaintiff, he could permit her to have the custody until her death, without affecting his title in any way.

The testimony clearly presented a question of fact for the jury. The trial court submitted the questions to them with a very lucid charge of the law applicable thereto and explained to them fully what they must find before they could determine that the title was in plaintiff. We think there was no error in the charge.

We have examined the other assignments of error, but find no reversible error in them.

The judgment of the trial court will be affirmed, with costs of both courts.

Ostrander, C. J., and Brooke, Blair, and Stone, JJ., concurred.


author: Ostrander, O. J.

text:
    MARKEY v. MUTUAL BENEFIT LIFE INSURANCE CO.
    1. Appeal and Error — Prejudice—1Trial,
    Prejudicial error is not shown, on the trial of a cause before the court without a jury, by the admission of testimony which the trial court stated was, in his opinion, inadmissible, and which does not affirmatively appear to have affected the result.
    2. Same — Findings oe Fact and Law — Questions Reviewable. ’
    Alleged errors of the court, in a cause tried without a jury, are not reviewable, where no findings of fact or law were requested or made, and the assignments merely allege error in rendering judgment for the defendant.
    Error to Wayne; Hosmer, J.
    Submitted October 13, 1910.
    (Docket No. 58.)
    Decided February 1, 1911.
    Assumpsit by Jennie H. Markey and A. Ottilie Comfort, against the Mutual Benefit Life Insurance Company, of Newark, New Jersey. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Charles Engelhard, for appellants.

      Bowen, Douglas & Eaman, for appellee.
   Ostrander, O. J.

The cause was tried by the court. No findings of fact or of law were requested or were made. A judgment was rendered for defendant. There are twelve assignments of error, six of which purport to be based upon rulings admitting testimony over plaintiffs’ objections, and six of which allege, in substance and effect, that it was error to render a judgment for defendant. It appears from the record that the first assignment is not based upon an exception, nor was the question objected to answered by the witness. The second is based upon no exception to the ruling. As to two others, the court stated that the testimony was not, in his judgment, admissible, but it was admitted. As to all of the first six, it may be said that it is not pointed out how the testimony affected the result to plaintiffs’ injury. Under the long-settled practice, the second group of errors cannot be considered. Haines v. Saviers, 93 Mich. 440 (53 N. W. 531); Township of Cumming v. Schick, 94 Mich. 222 (54 N. W. 40); Child v. City of Jackson, 93 Mich. 503 (53 N. W. 629); In re Estate of Buchan, 100 Mich. 219 (58 N. W. 1003); McDonell v. Union Trust Co., 139 Mich. 386 (102 N. W. 953).

The judgment is affirmed.

Bird, Brooke, Blair, and Stone, JJ., concurred.


author: McAlvay, J.

text:
    HINK v. SHERMAN.
    1. Damages — Civil-Damage Act — Intoxicating Liquors —■ Minors, Sale op Liquor to.
    It is misleading to charge the jury that a plaintiff who brings action against a retail liquor dealer for selling intoxicants to her minor son, may recover at least $50 and such exemplary damages in addition thereto as the jury might think she ought to recover, and that the actual damages are such as the mother would really suffer, not less than said $50.
    2. Same — Intoxicating Liquors — Exemplary Damages.
    In civil-damage actions under 3 Comp. Laws, §§ 5398, 5399, damages of a merely punitive or penal nature are not recoverable.
    3. Same — Punitive Damages — Exemplary Damages — Words and Phrases.
    The exemplary damages referred to by the statute are limited to such increased compensation for mortification, mental anxiety, or injury to feelings as could fairly be said to flow from the wanton or wilful invasion of rights.
    4. Same.
    The minimum of $50 damages, fixed by the statute, includes actual and exemplary damages, and a verdict for that amount is warranted by proof of a single sale.
    5. Same.
    In so far as the opinion in the case of Theisen v. Johns, 72 Mich. 285 (40 N. W. 727), authorizes recovery of other damages than such compensationffor injury to feelings and like elements, or intimates that exemplary damages, in addition to the amount claimed in the declaration, are recoverable, it is overruled.
    6. Same — Instructions to Jury.
    The words “exemplary damages,” “punitory damages” and “vindictive damages” should be omitted in charging the jury in this class of cases.
    7. Same.
    Without the offer of substantive proof that she suffered actual damages, or damages from injury to feelings, the plaintiff should be limited to the minimum fixed by statute.

      Error. to Lapeer; Smith, J.
    Submitted October t, 1910.
    (Docket No. 11.)
    Decided February 1, 1911.
    Case by Mary Hink against Robert F. Sherman, principal, and David Willis and Jesse Cypher, as sureties on a liquor bond, for the unlawful sale of intoxicating liquor to plaintiff’s minor son. Judgment for plaintiff of $500. Defendant brings error.
    Reversed, and judgment reduced to $50.

      W. E. Brown, for appellants.

      B. F. Feed, for appellee.
   McAlvay, J.

Plaintiff, the mother of a minor son of the age of 18 years, recovered a judgment against defendants, a retail liquor dealer and his sureties, under sections 5398, 5399, 2 Comp. Laws, for the unlawful sale of spirituous and intoxicating liquors to said minor. The facts in the case were disputed by defendants. What such facts were for the greater part is immaterial, and no benefit can be derived by any one from their statement, and pointing out wherein the parties disagreed. The verdict of the jury determined necessarily that an unlawful sale had been made to the minor, and such verdict was supported by evidence.

The errors relied upon and discussed by appellants have to do entirely with the charge of the court, refusals to charge, and refusal to grant a new trial. The most important questions in the case are those which are raised upon the assignments of error to the charge of the court and refusals to charge upon the question of damages.

The statute under which the suit was brought respecting unlawful sales of intoxicating liquors to minors provides that the person so selling—

“ Shall, in addition to all other penalties provided therefor by this act, be liable for both actual and exemplary damages * * * in such sum, not less than fifty dollars in each case, as the court or jury shall determine.”

At the request of plaintiff, the court, upon the question of damages, charged:

“ I charge you, further, that, if you find that the defendant or any of his clerks sold Frank Simmons any of the intoxicating liquors that have been mentioned, on any of the dates mentioned, * * * then the plaintiff is entitled to recover at least $50 and such exemplary damages in addition thereto as you think she ought to recover.”

And further, upon his own motion:

“The actual damages are such as this mother would actually and really suffer, and the statute says it shall not be less than $50. It may be as much more as you think the actual damages to her are. There is no great amount of evidence of any actual damages above the $50. It does not appear that the boy contributed any great amount toward her own support. * * *
“I charge you further, on the part of the plaintiff, that in determining the amount of exemplary damages, you will award the plaintiff such a sum as will compensate her for the injury to her feelings, if any such injury exists, caused by the wanton, reckless, and unlawful acts of the defendant or his agents in selling the intoxicating liquor to * * * the minor son of plaintiff. The amount of exemplary damages can be any amount which the good judgment and common sense of the jury settle upon.”

The evidence in the case showed that the minor was the son of plaintiff by a former marriage, and that she had remarried four to five years before the claimed sales; that the minor during that time had worked out most of that time, and had been at the home of his mother but a small portion of the time. There is no evidence that she depended upon him for her support, and during all that time he had given her but $1. Defendants admit that the question of whether the claimed sales to the minor were made was a question for the jury to determine.

It is insisted that the erroneous portions of the instructions above quoted are:

“ * * * Then the plaintiff is entitled to recover at least $50, and such exemplary damages in addition thereto as you think she ought to recover,” and “the actual damages are such as this mother would actually and really suffer and the statute says it shall not be less than $50. It may be as (much) more as you think the actual damages to her are.”

We think this charge was misleading and erroneous. The court did not correctly state the terms of the statute, which are:

“ * * * Shall be liable for both actual and exemplary damages therefor * * ■* in such sum not less than fifty dollars as the court or jury shall determine.”

In this case it will be necessary to determine whether, under this statute, which provides that a violator “shall be liable for both actual and exemplary damages,” a different rule shall be applied from the one well settled in this State, that all damages recoverable in civil actions are compensatory, and not by way of punishment. The question arises, in the case at bar, and similar cases under this statute, upon claims that charges to juries with respect to the measure of damages are erroneous because of the improper use of the terms “exemplary” and “actual.”

In Scripps v. Reilly, 38 Mich. 10, 23, this court reaffirmed and restated the meaning in this State of actual damages, saying:]

“ (1) In any injury entitling the party to redress, damages to the person, property, and reputation, together with such special damage as may be shown, are recoverable.
“ (2) Where the act done is one which, from its very nature, must be expected to result in mischief, or where there is malice or wilful or wanton misconduct, carelessness, or negligence so great as to indicate a reckless disregard of the rights or safety of others, a new element of damages is allowed, viz., for injury to the feelings of the plaintiff.
“(3) Damages for injuries to feelings are only allowed in those torts which consist of some voluntary act or very gross neglect, and depend in amount very much upon the degree of fault evinced by all the circumstances.
“ (4) Where the tort consists of some voluntary act, but no element of malice, carelessness, or gross negligence is shown to have existed, but that the wrong was done in spite of proper precaution,- the damages to be awarded on account of injured feelings, will be reduced to such sum as must inevitably have resulted from the wrong itself.
“ (5) Where, however, the elements exist in a case, entitling a party to recover damages for injured feelings, the amount to be allowed for shame, mental anxiety, insulted honor, and suffering and indignation consequent on the wrong, may be increased or aggravated by the vindictive feelings, or the degree of malice, recklessness, gross carelessness or negligence of the defendant, as the injury is much more serious where these elements, or either of them, are shown to have existed.
“ (6) This increase of damages dependent upon the conduct of the defendant must be considered in this State as actual damages, although usually spoken of as exemplary, vindictive, or punitory, and the amount thereof to be recovered, where recoverable at all, as they are incapable of ascertainment by any other known rule, must rest in the fair and deliberate judgment and discretion of the jury acting upon their own sense of justice in view of all the circumstances, both mitigating and aggravating, appearing in the case, and which can fairly be said to give color to or characterize the act, aided, however, by such instructions from the court as will tend to prevent the allowance of damages merely fanciful, or so remote as not fairly resulting from the injury.”

It has been the rule in this State for many years that damages in civil cases must be limited by some rule of compensation which has been adhered to. It is true, charges have been sustained where exemplary damages have been referred to as “punitory” or “vindictive" (Ross v. Leggett, 61 Mich. 452 [28 N. W. 695, 1 Am. St. Rep. 608]), but the court has in no case not dependent on statute given sanction to the distinct instruction that the jury may award a sum by way of punishment to the defendant, by whatsoever term such sum may be designated.

“As the case must go back for a new trial, we think it proper to say that in defining exemplary damages to the jury, while the circuit judge was probably within the law, inasmuch as no further instructions upon that subject were asked, yet we deem it better for the court to caution the jury, that the added damages in a case of this character should be such damages as will compensate the plaintiff for injury to her feelings occasioned by the wrong of the defendant. While it may not be error to refer to exemplary damages as such, yet it has never been the policy of the court to permit juries to award captiously any sum which may appear just to them by way of punishment to the offender, but rather to award a sum, in addition to the actual proven damages, as what, in. their judgment, constitutes a just measure of compensation for injury to feelings, in view of the circumstances of each particular case. Scripps v. Reilly, 38 Mich. 10.” Ford v. Cheever, 105 Mich. 679, 685 (63 N. W. 975).

“Damages for injury to feelings, shame, mortification, mental anxiety, insulted honor, and indignation have always, in this State at least, been regarded as actual damages, and not as exemplary, punitory, or vindictive damages. Scripps v. Reilly, 38 Mich. 10. * * * Confusion arises from the use of terms in this class of cases, and it would be well if the terms ‘ exemplary damages,’ ‘punitory damages,’ and ‘vindictive damages’ were omitted from the judicial vocabulary, in this class of cases at least.” Long v. Printing Co., 107 Mich. 207, 215 (65 N. W. 108).

“The court was in error, however, in instructing the jury that plaintiff was entitled to exemplary damages, in the absence of any explanation as to what was meant by that term. Detroit Daily Post Co. v. McArthur, 16 Mich. 447.” Lucas v. Railroad Co., 98 Mich. 1, 5 (56 N. W. 1039, 39 Am. St. Rep. 517).

“Wilful trespasses, assaults and batteries, libels and slanders, false imprisonment, and perhaps other actions, where the injury is in part to the feelings of the plaintiff, to his shame and humiliation, are cases where ‘increased’ damages may be given.” Durfee v. Newkirk, 83 Mich. 522, 527 (47 N. W. 351).

In the statute quoted, supra, the words “actual” and “ exemplary ” are used with reference to damages to be recovered, and from the use of those words it is assumed that the rule already stated is not to be applied to cases under this statute, and that it was intended to change the rule relative to the measure of damages. No reason is advanced why a different rule should be applied to cases of this kind. Upon consideration it will be seen that the elements of damage which enter into them are no other or different than in other tort actions for damages, namely, damages for injury to feelings, shame, mortification, mental anxiety, insulted honor, and indignation, which have always in this State been regarded as actual damages for which compensation is to be given, not smart money to be exacted.

We find but one case in this court under this statute from which it can be claimed that any other view has been taken, viz., Theisen v. Johns, 72 Mich. 285, 293, 294 (40 N. W. 727). In the opinion, Mr. Justice Long speaking for the court, we find the following language:

“It is evident the legislature intended that, in prosecutions for damages under this statute, if the jury found liquors had been furnished to a minor under the age of 18 years, in violation of the act, then the plaintiff might recover the penalty, which should in no case be less than $50 for actual damages, and such exemplary damages as the jury might find under all the circumstances of the case. It might appear by the evidence given that the plaintiff had suffered a much larger amount in actual damages than $50 and this the jury could give, up to the amount claimed in the declaration, if, under the circumstances of the case, the facts of the case warranted it, and the plaintiff had sustained actual damages to that amount, together with such exemplary damages as they might find were warranted by the circumstances of the case.”

Later, this court, in opinions written by Mr. Justice Montgomery, in two cases, cited and approved this case. Sterling v. Callahan, 94 Mich. 536 (54 N. W. 495); Cramer v. Danielson, 99 Mich. 531 (58 N. W. 476). In these cases, however, the question under discussion was not involved. In a later case—Haviland v. Chase, 116 Mich. 216, 217 (74 N. W. 477, 72 Am. St. Rep. 519)—an action of trespass vi et armis, in affirming the rule that damages in civil cases should be limited by some rule of compensation, as laid down in Scripps v. Reilly, supra, Mr. Justice Montgomery, speaking for this court, said:

“ The only apparent exception to this rule is created by statute (section 22836 8, 3 How. Stat.), which provides for the recovery of actual and exemplary damages. In my own view, the recovery under the statute ought not to include smart money, but should be limited to such increased compensation for injury to feelings as could fairly be said to follow from wanton or wilful invasion of rights (see Ford v. Cheever, 105 Mich. 679 [63 N. W. 975]), but the statute has not always had this construction. The present case does not, however, arise under the statute.”

The statute referred to is in terms identical with the statute under discussion. This last quotation is the only unanimous statement of this court found upon the question. In Sterling v. Callahan, supra, and Cramer v. Danielson, supra, an instruction that, if an unlawful sale was shown, the plaintiff would be entitled to recover both actual and exemplary damages in not less than $50, was held not to be erroneous.

Careful examination of the opinion in Theisen v. Johns, above quoted, and the statute which it gives at length, discloses that a mistake was made in the statement of the statutory provision. It does not provide that the plaintiff “might recover the penalty, which should in no case be less than $50 for actual damages, and such exemplary damages as the jury might find under all the circumstances of the case.” The statute reads that the violator “ shall be liable for both actual and exemplary damages therefor * * * in such sum not less than $50 in each case, as the court or jury shall determine.” The minimum recovery of $50 fixed by the legislature includes “actual and exemplary” damages mentioned in the statute. This court has held that proof of an illegal sale is in itself sufficient to warrant the minimum recovery. Cramer v. Danielson, supra. Further, the statement in the Theisen v. Johns opinion, quoted supra, that a plaintiff under this statute might recover all actual damages which he could prove up to the amount claimed in the declaration together with such exemplary damages as a jury might find were warranted by the circumstances of the case, is obviously an incorrect statement of law. In no case can a recovery be had for a greater sum than that claimed in the declaration. The case, therefore, so far as the question here involved is concerned, if it may be said to authorize a rule of damages in these cases different from the rule so long recognized in this State and stated at length in Scripps v. Reilly, supra, is overruled, and we adopt the view expressed by Mr. Justice Montgomery in Haviland v. Chase, supra, that—

“ The recovery under the statute ought not to include smart money, but should be limited to such increased compensation for injury to feelings as could fairly be said to follow from the wanton or wilful invasion of rights.”

Such a determination is consistent with the reasoning upon which a well-established rule was founded.

In the charge the circuit judge did not, as he should have done, explain to the jury the theory according to which, under this statute, the plaintiff is entitled to recover the added, increased, or aggravated damages which are permitted when wilful, malicious, or vindictive conduct, on the part of the defendant, has caused the injury complained of. A suggestion of this court in a case already cited, that much confusion will be avoided in this State if the words “exemplary damages,” “punitory damages,” and “vindictive damages” are omitted from the judicial vocabulary in this class of cases is here emphasized by repetition. In the instant case there was no substantive proof of any actual damages whether pecuniary or added or increased damages. In order to recover the minimum amount fixed by the statute, no such proof was necessary. Cramer v. Danielson, supra. Under the proofs in this case, there being no evidence of actual damages, we must hold that no recovery could be had beyond the minimum fixed by statute. The request to so charge, presented by defendants, should have been given. Plaintiff, under the finding of the jury that the unlawful sales were made as claimed, was entitled to a verdict of 150, and costs of suit. No further recovery was warranted. The judgment to the amount stated should stand. The parties have presented their evidence. The jury has found the material facts for plaintiff, and the statute fixes the recovery. A new trial cannot be of any benefit to either party. There is no contradictory testimony on the question of damages, and it was all introduced by plaintiff. For reasons pointed out, the judgment in excess of the statutory minimum amount is reversed and set aside, and affirmed as to the balance.

Defendants will recover costs of this court.

Ostrander, C. J., and Bird, Hooker, Rnd Moore, JJ., concurred.


text:
    LUKOVSKI v. MICHIGAN CENTRAL RAILROAD CO.
    1. Master and Servant — Risks Assumed — Promise to Repair.
    Plaintiff was employed by defendant to load coal on its engines> by means of a derrick and numerous buckets. The method of dumping full buckets was to release a spring held by a wedge in the bottom, which then turned on a rod and dumped the coal. Occasionally buckets dumped prematurely. It was customary for plaintiff to write to his foreman at another town when there were buckets in need of repair, and men were sent to repair them. Plaintiff wrote less than two weeks before his injury that certain buckets were out of repair. He was injured by the premature dumping of one of the buckets which he seized with his hand instead of using a rope attached to the chain which held it. The evidence did not show that he supposed it was a defective bucket when he used it. Held, that plaintiff did not know the bucket was out of order and sent no notice concerning it, and therefore no promise to repair it could be inferred.

      3. Same — Assumption of Risk — Notice.
    Since plaintiff knew that the buckets of coal frequently dumped when they struck the side of the tender, and that he could and did, at any time when a bucket was out of repair, set it aside, he was bound to make a reasonable inspection of the appliance, and assumed the risk of their striking the car and dumping.
    3. Same — Adoption of Unsafe Method of Operation.
    Where two methods of guiding the buoket were apparent, and it was safe to use a rope attached to it, and it was dangerous to guide the bucket by hand, plaintiff could not recover for injuries received as a result of choosing the more dangerous way.
    Error to Otsego; Sbárpe, J.
    Submitted October 11, 1910.
    (Docket No. 33.)
    Decided February 1, 1911.
    Case by John Lukovski against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Cooley & Hewitt (Watts S. Humphrey and Humphrey, Grant & Baker, of counsel), for appellant.

      De Vere Hall, for appellee.
    This is an action for personal injuries sustained by plaintiff while an employé of defendant company at Vanderbilt. It appears that defendant maintains at that place a coal dock, from which, as required, engines upon that portion of its lines receive coal. Plaintiff was foreman of the gang at that point, there being no one in authority over him at Vanderbilt. This dock was about 25 by 50 feet in size, and between 4 and 5 feet high. ■ The coal was piled loosely upon the dock and was transferred from the dock to the engine tenders by means of iron buckets. These buckets were round, and about three feet in diameter and four feet high. Each one held about half a ton. The bottom of the bucket swung open and shut upon a rod or hinge which passed across it about one-third of the distance from back to front. When closed, the bottom was held in place by. means of a flat steel spring which was riveted to the front of the bucket, and passed inside an iron hoop or band at the bottom. This spring had a lip at the lower end about one-half inch deep, which, when the bottom was closed, caught it and held it in place. To prevent the spring from pushing out and so releasing the bottom, iron wedges were supplied, attached by a chain to the bucket, which were driven between the iron hoop at the bottom and the back of the spring. The bucket had a bail from which a chain ran to a pulley which was used in hoisting. Air from the engine was used as power. Attached to the chain near the bucket bail was a rope about 25 feet long, one end of which was intended to be used by the fireman upon the tender for the purpose of drawing the bucket over the tender when at a proper height. The other end was for the use of a man on the dock to enable him to steady the bucket as it was raised and to prevent it from striking the side of the tender, and to draw the bucket back when empty. The defendant had furnished 16 of these buckets for use at this point, 4 of which had been found defective by the coaling crew, and were not in use. The other 12 were in use on the day plaintiff was injured. They were all full when he started work in the morning. Plaintiff himself was in charge of the coaling operation when injured. He attached the chain to the bail of the bucket which caused his injury.
    He testifies:
    “ When the bucket was going up, I grabbed it to keep it from striking the side of the tender. When the bucket struck the engine tender, the wedge came out, and the bottom came down and caught my hand.”
    With reference to the use of the rope, he testified:
    “There was no rope on the bucket for a man to hold onto it with. There was a rope tied to the chain that fastened the bucket. It was one rope tied through the middle. One end of it would be taken by the man who stood on the dock coaling and the other end by the man on the tender.

      “Q. And those two ropes were for the purpose of steering the bucket up onto the engine, were they not ?

      “A. No.

      “Q. What were they for ?
    “A. Well, when the bucket was filled and hoisted, one was used to pull the bucket over on the engine, and the other was after it was emptied to pull the bucket back on the dock.

      “Q. Well, the same rope that would pull the bucket back onto the dock, you could hold onto, couldn’t you, when it was going up ?
    “A. Couldn’t hold the bucket when it was going up.

      “Q. Couldn’t you hold it with the rope just as well as with your hands ?

      “A. No.

      “Q. Why?

      “A. When you take hold of the bucket, you could hold it back. When you take hold of the rope, it would swing. After the coal was dumped, we would pull the bucket back until it hung straight over the dock and then let it down. When they would give the bucket a sudden jerk, sometimes the jar would cause the bucket to empty.

      “Q. Well, if the coal held in the bucket when it first came up, it wouldn’t dump then unless it struck something, would it ?

      “A. If it was in good shape and the springs were right, it wouldn’t.

      “Q. And if the wedge set in there ?

      “A. Sometimes the wedge would stay in, and it would drop out.

      “Q. When they first jerked it up ?

      “A. Sometimes whether the wedge would be in or not, it would come out.

      “Q. Come out ? Did that happen very often ?

      “A. Not very often.

      “Q. How often wbuld it happen in the course of a month ?
    “A. If the bucket was in good shape, sometimes it wouldn’t happen over once in two weeks.”
    Paul Ososki, a witness for plaintiff, upon the same subject, testified:
    “ Q. How would you keep it away ?
    “A. Of course, before when John was hit, we held with the hand, and, when we know that he was hit, we hold with the rope.
    “Q. Where did you put the rope ?

      “A. On top of the chain. Of course, you put it on, and there was hook, and after the hook was a rope.

      “Q. Now, was the rope ever used there to keep it away before John was hurt ?

      “A. Yes, sir; the rope was used every time.

      “Q. Before or after ?

      “A. Before and after.

      “Q. How would you keep it away before he got hurt?

      “A. Lots of time with the hand. Of course, I don’t know. Nobody was told us until John was hurt, and after that we know better, and we keep with the rope.
    * * *

      “Q. When you first went there, they used these ropes to keep the buckets away from hitting the engine, did they ?

      “A. When I first started, they got two ropes on that chain. One was used the brakeman on the tender, and the next one I use it.

      “Q. Yes; and you used to use it to keep the bucket from striking the engine, didn’t you ?

      “A. Yes; I keep that off too.

      “Q. How much of the time that you worked there were the ropes used for that purpose ?

      “A. I use them right along.

      “Q. And did you work daytimes with John ?

      “A. Yes.

      “Q. And, when you handled the buckets, did you do it with the rope ?

      “A. I pull up pretty near all the time with the rope, and sometimes I can’t do with the rope, of course, before John was hurt, why I catch with the hand, too.

      “Q. Sometimes you wouldn’t touch the rope, but would do it with your hands ?

      “A. Yes; I can’t do with the rope, of course, swung around. I couldn’t do with the rope, and I touched them with my hand, of course, before John was hurt, and after John was hurt I do just with the rope.

      "Q. You never touched it with your hands ?

      “A. Not after that; no, I was scared.”
    With reference to discarding broken buckets, plaintiff testified:

      “Q. Now, if one of the other 12 had been broken, you would have set that to one side, wouldn’t you ?

      “A. Yes; I would set it aside.
    “Q. Whenever there was any of them broken, you stood them aside and didn’t use them ?

      “A. Whenever any of them would get fixed, I would replace some that were broken.

      “ Q. Now, the night men would do the same, wouldn’t they?

      “A. Yes, sir.
    “Q. If they saw a broken bucket, they would set it aside ?

      “A. Yes, sir; if there was any that was set aside and was all right.

      “Q. Well, suppose there were no good ones there, and these twelve had one broken, what would you do with it ?

      “A. I would fire it out, too;

      “Q. Yes; and each one of you men that were working on the dock at night and in the daytime would do the same thing, wouldn’t they ?

      “A. There was different kinds of men. Borne would do it and others would not.

      “Q. Yes; well, if they did what they ought to do, they would do it, wouldn’t they ?
    “A. Yes; but they all won’t give the attention that was necessary.”
    Thomas' Malak, plaintiff’s witness, who filled the buckets the night before, testified:
    “ The twelve buckets that were filled with coal had been filled by me along the night before the accident.

      “Q. And, when you filled them the night before, did you see any of them that wasn’t fit to use ?

      "A. No; I didn’t see them.
    “Q. You thought that they were all in good repair, and fit to use, didn’t you ?

      “A. Yes; I thought that they were good, for I didn’t see anything wrong with them at that time.”
   Brooke, J.

{after stating the facts). The negligence of the defendant relied upon by the plaintiff is:

“ In that it omitted to furnish, provide, and maintain for use in elevating such coal to the tenders of said engines buckets having springs thereon reasonably fit and safe for use.”

Plaintiff testified that, when buckets were out of repair, .he would tell the agent or operator at Vanderbilt to write a letter to Phil Coll at Bay City. Coll was foreman of the coal heavers; that from time to time Coll would send men to repair the defective buckets. Plaintiff further testified that he ordered such a letter to be sent on March 18th prior to the date of his injury on March 30th, but that Coll had sent no one to repair the buckets in the interval.

In our view of this question, it is immaterial whether plaintiff properly proved the notice to repair or not, or whether, by reason of custom, he had a right to rely upon an implied promise to repair. The reason for this conclusion is that it is apparent from the record that neither plaintiff nor any member of the gang knew that the particular bucket which caused the injury was out of repair. It was in use up to the moment of the accident, and all witnesses agree that, when found out of repair, the buckets were set aside to await the arrival of the man who would fix them. The notice to repair, therefore, even if sent and received, had absolutely no reference to this bucket.

Did plaintiff assume the risk ? It is clear from the record that a bucket in perfect repair would occasionally dump prematurely, particularly when hoisted too rapidly, or when it was permitted to strike the side of the tender. This situation seems to have been known and appreciated by all those familiar with the operation of the buckets. The plaintiff himself was chargeable with the knowledge, and was bound to govern himself accordingly. The appliance was of the simplest and most elementary character, easily understood, and constantly under the supervision and control of the plaintiff who could, at any moment, set aside any bucket found out of repair. Under these circumstances, it was the duty of the plaintiff to make such examination as he deemed necessary to assure his own safety. In using the buckets he assumed the risk. Fischer v. Goldie, 132 Mich. 574 (94 N. W. 5); Juchatz v. Alkali Co., 120 Mich. 654 (79 N. W. 907); Dolan v. Atwater, 167 Mass. 274 (45 N. E. 742); Lamotte v. Boyce, 105 Mich. 545 (63 N. W. 517); Younggren v. I. Stephenson Co., 150 Mich. 488 (114 N. W. 341); Wheeler v. Berry, 95 Mich. 250 (54 N. W. 876); Bauer v. Foundry Co., 132 Mich. 537 (94 N. W. 9); Lynch v. Traction Co., 153 Mich. 174 (116 N. W. 983, 21 L. R. A. [N. S.] 774); Bays v. Featherbone Co., 131 Mich. 205 (91 N. W. 1641: Clark v. Goldie, 146 Mich. 303 (109 N. W. 1044).

Another reason exists, however, why plaintiff cannot recover. The record discloses that the defendant had provided a rope to be attached to the chain above the bail, by means of which plaintiff might, if he had chosen, have held the bucket steady as it was elevated, instead of using his hands for that purpose. His fellow employés used the rope part of the time before his injury. Since that time all of them use it all the time. Where two methods are open for the performance of a duty, one dangerous and the other safe for the operator, one who chooses the dangerous method rather than the safe will be precluded from recovery. Davey v. Hall & Munson Co., 122 Mich. 206 (80 N. W. 1082); Deering v. Canfield & Wheeler Co., 126 Mich. 373 (85 N. W. 874); Mulholland v. Manufacturing Co., 149 Mich. 126 (112 N. W. 483); Conner v. Railway Co., 158 Mich. 688 (123 N. W. 533).

The judgment is reversed, and a new trial ordered.

Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.