text:
    HOGAN v. DETROIT UNITED RAILWAY.
    1. Railroads — Equipment—Sales—Contracts—Passing Title.
    Where an eleetrio railroad in process of construction sold to another “all the property, rights, and assets” of the seller, the buyer ■ succeeded to the seller’s right to have certain machinery, for which the seller had contracted, installed, and to acquire title to it as the result of such installation.
    2. Same — Good Faith — Question for Jury.
    Where an electric railroad bought “all the property, rights, and assets ” of another in process of construction, whether it did so in good faith, so as to confer upon it title to equipment purchased under a contract of conditional sale, not recorded as required by section 6336, 2 Comp. Laws, held, a question for the jury.
    Error to Wayne; Murphy, J.
    Submitted April 11,1907.
    (Docket No. 66.)
    Decided April 30, 1907.
    Trover by Walter G. Hogan against the Detroit United Railway. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark {Geer, Williams, Martin & Butler, of counsel), for appellant.

      Bowen, Douglas, Whiting & Murfin, for appellee.
   Carpenter, J.

Plaintiff brings this suit to recover for the conversion of certain electrical apparatus described as three rotary motors (hereafter called “rotaries”) which his assignor, the Northern Electrical Manufacturing Company, sold and delivered upon a written contract of sale— reserving title in itself until the purchase price was fully paid — to the Detroit Construction Company. The Detroit -Construction Company had a contract to build a suburban railway for the Detroit, Rochester, Romeo & Lake Orion Railway, and it purchased these rotaries for the purpose of using the same in performing that contract. Before the rotaries were installed said Detroit, Rochester, Romeo & Lake Orion Railway sold its railway to the defendant. The rotaries were subsequently installed, but were never entirely paid for; and upon defendant’s refusal to surrender them or to pay the unpaid balance, this suit was instituted.

The case has been tried twice. On the first trial it was assumed that defendant had purchased the title of the Detroit Construction Company, and the question was whether it had purchased that title in good faith. Its good faith would defeat plaintiff’s right to recover, because the contract of sale was not recorded as required by section 6336, 2 Comp. Laws. The issue was submitted to a jury, and plaintiff recovered a verdict and judgment. That judgment was reversed by this court, and our decision will be found reported in 140 Mich. 101.

A second trial was had, and the learned trial judge directed a verdict in plaintiff’s favor upon the ground that the evidence failed to show that defendants ever acquired the title of said Detroit Construction Company. The correctness of that decision is the principal question for our determination.

The evidence proves that these rotaries were installed by the Detroit Construction Company under its written contract (made before and in force when defendant purchased the railway) “to construct and equip” the Detroit, Rochester, Romeo & Lake Orion Railway; and that said Detroit Construction Company has been fully paid for performing this contract.

It is clear that the Detroit Construction Company retained no interest in said rotaries after it had installed them and had been paid for constructing and equipping said railway. Its title then passed either to the Detroit, Rochester, Romeo & Lake Orion Railway or to the defendant. Did that title pass to defendant ? That depends upon the proper construction of the contract by which the railway was sold to defendant. The Detroit, Rochester, Romeo & Lake Orion Railway “sold to defendant all its property, rights, privileges, and assets” and “all the property, engines, tools, cars, equipment, and material of the Detroit Construction Company used in the construction of said railway and now on said railway or in the vicinity thereof.”

Counsel for plaintiff contended, and the learned trial judge, whose carefully prepared opinion is a part of the record, decided, that, inasmuch as the rotaries in question were not described in the language last above quoted, they were not transferred to defendant. We think this decision erroneous. The reasoning is unsound, because it fails to give proper force to the language first above quoted by which there was transferred to defendant “all of the property, rights, and assets of the Detroit, Rochester, Romeo & Lake Orion Railway.” This transferred to defendant all the rights then possessed by the Detroit, Rochester, Romeo & Lake Orion Railway. One of the rights so transferred was the contract right to have these rotaries installed and to acquire title as the result of said installation. It therefore follows that when the rotaries were installed defendant acquired at the very least all the title of the Detroit Construction Company.

We think that the determining question presented by the record on the second trial as on the first is that of defendant’s good faith. Defendant’s counsel insist that a verdict should have been directed in its favor upon the ground that the undisputed evidence proves that it acquired this property in good faith. We content ourselves with saying that the testimony is not materially different from what it was when we formerly disposed of the case, and we adhere to the conclusion then expressed. Defendant insists that for other reasons a verdict should have been directed in its favor. As these are based upon the assumption that it purchased the property in good faith, there is no occasion to consider them. For if defendant did purchase said property in good faith, confessedly its title is perfect. The question of good faith was one for the jury to determine.

For the error pointed out, the judgment is reversed, and a new trial granted.

McAlvay, C. J., and Grant,.Blair, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    DETROIT PORTLAND CEMENT CO v. GENESEE CIRCUIT JUDGE.
    1. Venue — Change—Time for Application.
    Where a chancery cause was at issue as to all defendants who had been brought in, and the defendants who had joined issue had no means of knowing whether jurisdiction over the others would ever be acquired, an application for change of venue under Aot No. 309, Pub. Acts 1905, was not prematurely made.
    2. Same — Refusal.
    Where a cause was only at issue as to defendants who had been brought in, and the judge was advised that steps had been taken or were to be taken to acquire jurisdiction over other defendants, and it was not shown that complainant was chargeable with laches, the court properly declined at that time to make an order changing the venue.

      Mandamus by the Detroit Portland Cement Company and others to compel Charles H. Wisner, circuit judge of Genesee county, to vacate an order denying a change of venue.
    Submitted April 9,1907.
    (Calendar No. 22,210.)
    Writ granted April 30, 1907.

      Keena, Lightner & Oxtoby, for relator.
   Hooker, J.

The complainant filed a bill in chancery against several defendants in the circuit court for the county of Genesee on the 3d day of January, 1907. On January 28, 1907, an application for a change of venue was made under the statute. Act No. 309, Pub. Acts 1905. This was denied and the petition dismissed, and the order is before us on application for mandamus.

Issue was joined by answer filed on behalf of four resident defendants upon January 26, 1907. Process had not at that time been served upon the nonresident defendants. It does not appear that any action had been taken to obtain jurisdiction of them by a substituted service, though the opinion filed by the circuit judge states that he is “advised that proceedings for substituted service have been or soon will'be instituted to bring in ” the two nonresident defendants. The record fails to show what the return day of the subpoena was, or whether the subpoena had been returned before the application was made. Objection to granting the order was made upon the ground that the application was premature, it being claimed by counsel, as it was afterwards held by the court, that the statute does not authorize a change of venue until the cause is at issue as to all parties. Section 10 makes compulsory (upon a prescribed showing) the change of venue “ of any civil action pending, etc., * * * and direct the issue to be tried in the circuit court of another county, etc.” After the act became operative the Supreme Court prescribed the practice under it by Circuit Court Rule No. 58. See 137 Mich, xxxvii. The rule is as follows:

“Motion for change of venue in any civil cause shall be entered, and notice of hearing served within 10 days after the cause shall be at issue, unless the moving party shall make it appear to the satisfaction of the court that the facts upon which the application is based have come to his knowledge after the time above limited, and within 10 days previous to such deferred application, and that said party has been diligent in ascertaining the facts upon which said action is based. In causes pending and at issue when this rule shall take effect, said motion shall be entered within 20 days therefrom: Provided, That a deferred application may be made upon complying with the terms above prescribed.”

There is force in the suggestion of the learned circuit judge appearing in his opinion that the change of venue and transfer of a cause before.the appearance or lawful default of a defendant would subject such defendant to the danger of being defaulted for want of a seasonable appearance in the proper court. There could be little reason for an application for a change of venue before an issue of fact or law should be joined, for the case could then be heard only upon default. And we are of the opinion, therefore, that a court should not be asked to change the venue by a defendant who has not made an issue. And as chancery causes are not in condition for hearing, until all defendants over whom the court has obtained jurisdiction have either tendered an issue or been defaulted (see Chancery Rule 13), we think that an application made within 10 days after the filing of the last plea, answer, or demurrer, or expiration of the period for the entry of defaults, would be seasonable under the rule. We do not mean to be understood that an earlier application made by a defendant who had previously joined issue would be fatally premature. On the contrary we are of the opinion that it would not be, though the circuit judge ought to, or at least might in his discretion, defer the making of an order until the time when the case should be at issue, or default entered as to all defendants over whom jurisdiction had been acquired.

In this instance the cause was at issue as to all defendants who had been brought in, and the defendants who had joined issue may have had no means of knowing whether jurisdiction over the others would ever be acquired. We think this application should not be held to have been unauthorized, and unless there was some reason to believe that other parties should or would be brought in, the order should have been made. The record shows that the circuit judge was advised that steps had been or were to be taken to acquire jurisdiction over the nonresident defendants, and it does not appear that complainant was chargeable with laches. He was justified therefore in declining to make an order changing the venue at that time, but he should not have dismissed the petition as prematurely made. The writ must issue requiring the vacation of the order made, but we cannot require an order changing the venue upon this record, for the reasons given.

The writ will issue as indicated.

McAlvay, C. J., and Carpenter, Grant, and Blair, JJ., concurred.


text:
    LEWIS v. WRIGHT.
    Life Estates — Mortgage—Duty of Life Tenant.
    Where a will creating á life estate, which was accepted, imposed upon the life tenant the duty of paying the interest upon debts secured by mortgage upon the land, but he allowed the premises to be sold upon foreclosure, and after the time for redemption expired repurchased them on contract for the amount of the arrearages, his act inured to the benefit of the remaindermen, and on his death they became the owners of his rights under the contract.
    Appeal from Clinton; Searl, J.
    Submitted April 5, 1907.
    (Docket No. 19.)
    Decided April 30, 1907.
    Bill by Lena A. Lewis and John D. Wright against Sarah Anne Wright, Fred B. Carpenter, administrator of the estáte of Fred D. Wright, deceased, and others, for subrogation to the rights of Fred D. Wright, deceased, in a land contract, and for an accounting. From a decree awarding a lien to complainant Lewis, and dismissing the bill in other respects, complainants appeal.
    Reversed, and decree entered for complainants.

      Dooling & Kelley, for complainants.

      William M. Smith, for defendants.
   Hooker, J.

Mary A. Wright died in 1893, seised of certain lands. By her will it was provided that, after payment of her debts, which were about $400, the land should go to Fred D. Wright, her husband, for life, with remainder to her children, the complainants, in fee. The will directed that her husband pay the debts with the proceeds of her personal property. This was not done, and, there being mortgages upon the premises amounting to $361, Fred D. Wright borrowed on mortgage upon the premises $450, which he used in payment of testatrix’s debts. This mortgage and the accompanying note were executed by Fred D. Wright and the complainants, and was foreclosed in 1900; the premises being bid in by the mortgagee. Immediately after expiration of the period of redemption, he sold the sanie to Fred D. Wright, upon a land contract for the amount of the arrearages, receiving from him in cash sufficient to reduce the same to $450. Fred D. Wright resided on the premises with a second wife and their two children, until his death in August, 1904. A question then arose as to the right to the property. The complainants assert that they were ignorant of the purchase until October, 1903, at which time Mrs. Lewis, complainant, made a payment of $127.40 upon the statement of Fred,D. Wright’s widow and a letter from Frink’s agents that there was some money due on the place.

The defendants maintain that, by the foreclosure, complainants’ estate in remainder was cut off, and that, as common heirs of their father, they are entitled to share with the complainants equally, in whatever interest the estate had in the premises.

On the other hand, complainants assert that his purchase must be held to have been made for and to inure to the common benefit of the life tenant and the remainder-men, and that with his death his life interest ended, and the remaindermen became equitably entitled to the property, subject to the outstanding indebtedness to Frink, and they have filed the bill in this case, to settle that question. Upon a hearing, the learned circuit judge found that the title of complainants was cut off by the foreclosure, that Frink acquired a full and perfect title, that Fred D. Wright obtained the same by purchase subject to payment of the purchase price, and that complainants are not in a position to attack' his title; and he held, further, that Mrs. Lewis was entitled to a lien for the money which she had paid upon the contract, and that a “further decree should be made, dismissing the complainants’ bill, leaving the property as the estate of Fred D. Wright, and that it would then follow that, subject to the rights of the widow and the liens of Mrs. Lewis and Frink, the balance of the property will belong in equal shares to the four children of Fred D. Wright.”

The will creating a life estate, which was accepted, imposed upon Fred D. Wright the duty of paying the interest upon the mortgage debts, and this obligation continued under the arrangement, whereby they were funded in a new mortgage. Instead of performing this duty, which he owed to the remaindermen as well as the testatrix, he suffered the premises to be sold at foreclosure sale. Doubtless, Frink obtained title, and, had he sold to a stranger, complainants would have lost all interest in the land. It is manifest that, had Fred D. Wright seen fit to redeem the premises, the redemption would have inured to the benefit of complainants, subject to an obligation to contribute to the cost thereof. Instead, Fred D. Wright waited until it was too late to redeem, when he took a contract of purchase. Perhaps Frink would consent to nothing else. In doing this, it must be held that he was acting for the benefit of the complainants as well as himself, under the rule laid down in the following cases, which are analogous: Defreese v. Lake, 109 Mich. 429 (32 L. R. A. 744); Damm v. Damm, 109 Mich. 620: Bowen v. Brogan, 119 Mich. 218.

It is significant that through his wife he informed Mrs. Lewis that money was due upon the place, and Mrs. Lewis responded, once in July, 1903, when she sent $20, and again in October, 1903, when she paid interest $27, and principal $100, as appears from receipts of those dates. The testimony convinces us that there was no design on the part of Fred D. Wright to defeat the remainders, and to acquire the land at the expense of his children, but that both himself and wife expected that the remaindermen would aid in payments of principal when they became due. While it is true that both Fred D. Wright and the complainants were in default, and both were cut off by the foreclosure, and Fred D. Wright might have made no further effort to preserve his estate, he saw fit to do otherwise, and in doing it he preserved the rights of his children, the complainants. It is to his credit that we are able to find such an intent.

A decree will be entered to the effect that, upon the death of Fred D. Wright, his interest ended, and that all rights held by him by virtue of the contract became equitably the property of the complainants, in whose interest he held them, and that, as against Miner Frink, also, they be adjudged to be the owners of said contract. Complainants will recover costs of both courts against all defendants, except Miner Frink.

Grant, Blair, Montgomery, and Moore, JJ., concurred.


text:
    CLEMENT v. CROSBY & CO.
    1. Negligence — Concurring Negligence — Dangerous Substances — Sale—Manufacturer and Retailer — Joint Liability.
    Where a manufacturer knowingly places upon the market a highly dangerous article which contains no intrinsic evidence of its dangerous character, without notice, by label or otherwise, of its dangerous character, he is liable in damages to a purchaser injured by it, though such purchaser bought from a retailer who had full knowledge of its character and sold it without warning; and in such case both manufacturer and retailer are liable jointly and severally.

      3. Same — Declaration—Sufficiency.
    In. an action against the manufacturer of an explosive and inflammable stove polish for injuries to a purchaser, an allegation that it was the duty of defendant to know the properties of the article put upon the market by it as stove polish, and that it should not manufacture and sell dangerous and highly inflammable substances of such a composition and character as to be liable to ignite, explode, or spontaneously burn, and not to deceitfully withhold information of such dangers from the public, is a sufficient allegation of defendant’s duty, though it does not allege that all of defendant’s product was of that character.
    3. Same — Scienter.
    The allegation of deceitful and artful withholding of knowledge from the public sufficiently charges knowledge on defendant’s part of the dangerous character of its product, if a scienter be necessary.
    4. Same — Lack of Warning.
    The allegation that defendant deceitfully and willfully concealed from the public the dangerous elements and properties of its product, and that plaintiff purchased same without warning, i. e., from either the retailer or the manufacturer, sufficiently charges want of warning from the manufacturer, and amounts to a charge of fraudulently putting upon the market.
    Certiorari to Wayne; Murphy, J.
    Submitted April 15, 1907.
    (Docket No. 89).
    Decided April 30, 1907.
    Case by Alice D. Clement against Crosby & Company and Arthur O. Q-. Rommeck for personal injuries. There was an order overruling a demurrer as to defendant Crosby & Company, and it brings certiorari.
    Affirmed.

      A. W. Wier, for appellant.

      James H. Pound, for appellee.

       As to liability of manufacturer to person injured by article dangerous to life, in the absence of any privity of contract, see note to Watson v. Augusta Brewing Co. (Ga.), 1 L. R. A (N. S.) 1178.
      As to liability of manufacturer for defective tool, see note to Kuelling v. Roderick Lean Manfg. Co. (N. Y.), 2 L. R. A. (N. S.) 303.

   Hooker, J.

The plaintiff brought an action to recover damages for a personal injury, received by her through burning, occasioned by the inflammable nature of a compound that she was using to polish a gas range. The defendants are the manufacturer of the compound, Crosby & Co., a corporation, and'one Arthur O. G. Rommeck, a retailer, and the declaration states .that she was led to purchase from the latter through her agent, and to use it by reason of the invitation, solicitation, and representations of the defendant Crosby & Co., it being sold without notice or warning of its dangerous nature.

The defendants demurred to the declaration, stating the following grounds:

1. A misjoinder of causes of action.

2. A misjoinder of defendants.

3. A failure to state a cause of action against Crosby & Co.

The circuit judge overruled the demurrer of Crosby & Co., but sustained that of Rommeck. Crosby & Co. has removed the cause to this court by certiorari under the statute, Act No. 310, Pub. Acts 1905. j""lt*is obvious that this is a charge of concurring negligence of two persons, and that the separate act of each was a contributing cause to the injury. If the manufacturer is justly chargeable with knowingly making and putting upon the market a highly dangerous article, which did not contain intrinsic evidence of its dangerous character, without notice by label or otherwise of its dangerous character, he failed in his duty to such persons as should purchase it, and any person injured by it might have a cause of action against him, although he purchased it from a third party or retailer. The fact that he did so buy it would be no defense to the manufacturer, even if the retailer had full knowledge of the dangerous nature of the article, and sold it without warning. In such a case an action would lie against both jointly, or separate actions might be brought, and, if the only point raised by the demurrer was that these acts being separate this was a ease of a misjoinder of actions and parties, we should be compelled to overrule the demurrer. Churchill v. Holt, 127 Mass. 165; Bryant v. Bigelow Carpet Co., 131 Mass. 503; Hawkesworth v. Thompson, 98 Mass. 77; Colegrove v. Rail road Co., 20 N. Y. 492; Chipman v. Palmer, 77 N. Y. 51; Slater v. Mersereau, 64 N. Y. 147; Masterson v. Railroad Co., 84 N. Y. 256; Boyd v. Watt, 27 Ohio St. 268; Matthews v. Railroad Co., 56 N. J. Law, 35 (22 L. R. A. 261).

The circuit judge has held that the declaration does not state a cause of action against Rommeck, and that question is not before us. Does it state a cause of action against Crosby & Co. ? The declaration states that the plaintiff bought from Rommeck some stove polish without any warning of its dangerous nature, that it was manufactured and put upon the market by defendant Crosby & Co. as a stove polish, and that—

‘ ‘ It was and then and there became the duty of the defendants and each of them to know the property and properties of the goods manufactured and sold by them, and that they should not manufacture and sell both or either of them dangerous and highly inflammable substances of such a composition and character as to be liable to ignite, catch fire, explode, and spontaneously to burn, and thereby to bring pain, suffering, and injury upon and to persons innocently and properly using the same, who are ignorant of the constituent parts of said product which was and is artfully and deceitfully kept from the knowledge of the purchasing public, as well as the dangers or risks of the use of said compound product and composition, 6-5-4, so furnished to plaintiff by and through the instrumentality of the defendants.”

We are of the opinion that the statement that it was the duty of Crosby & Co. to know the property and properties of an article manufactured, and put upon the market by it, as a stove polish, and that it should not manufacture and sell dangerous and highly inflammable substance of such a composition and character as to be liable to ignite, explode or spontaneously burn, and not to deceitfully withhold information of such dangers from the public, is a sufficient allegation of defendant’s duty, although it does not allege that defendant’s product was all of that character. There are authorities that hold that one who carelessly places upon the market a dangerous article may be chargeable with negligence to third persons as in case of poisons. Barney v. Burstenbinder, 7 Lans. (N. Y.) 210; Davis v. Guarnieri, 45 Ohio St. 470; Hall v. Rankin, 87 Iowa, 261. And in case of a dangerous machine. Schubert v. J. R. Clark Co., 49 Minn. 331 (15 L. R. A. 818, 45 Alb. Law J. 497); Carter v. Towne, 98 Mass. 567; Wellington v. Oil Co., 104 Mass. 64. See 1 Thompson on Negligence, § 821; Elkins, Bly & Co. v. McKean, 79 Pa. 493, 502. George v. Skivington, L. R. 5 Exch. 1.

This declaration might charge some of these things more positively, but, even if a scienter be necessary (which we do not determine), it is necessarily implied by the allegation of deceitful and artful 'withholding of knowledge from the public.

As to want of warning from Crosby & Co., the allegation substantially amounts to such a charge. It states the manufacture of a dangerous compound, and placing it upon the market, at the same time deceitfully and willfully concealing from the public its dangerous ele4 ments and properties; that these are such as to make it liable to spontaneous combustion, explosion, etc.; that plaintiff purchased the same without any warning — i. e., from either defendant. This is to be taken in connection with the charge of concealment. It amounts to a charge of fraudulent putting upon the market within the rule stated by defendant’s counsel:

“A manufacturer can become liable to subsequent purchasers who do not stand in relations of privity with him, in two cases only, to wit: (a) When the manufactured, with the actual knowledge of defects in his product, willfully and fraudulently places same. on the market. (6) When the article sold is one which is per se dangerous to human life.”

We are of the opinion that this declaration contains, in substance, the essential allegations of a cause of action, and that the order of the learned circuit judge should not be reversed. In saying this, we do not say whether this article is one which was per se dangerous. It is enough that the declaration alleges that it was dangerous. If not dangerous per se, the question is open to proof.

The order is affirmed.

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


author: Moore, J.

text:
    KIMBALL v. GREEN.
    Gifts — Causa Mortis — Establishment — Evidence — Sufficiency.
    On a bill to establish complainant’s title to a certain note and mortgage claimed as a gift causa mortis, from deceased intestate, by delivery and without written assignment, evidence examined, and held, insufficient to establish complainant’s claim.
    Appeal from St. Clair; Tappan, J.
    Submitted April 16, 1907.
    (Docket No. 55.)
    Decided April 30, 1907.
    Bill by Harriet E. Kimball against Isaac P. Green, special administrator of the estate of Louis Almond, deceased, to establish a title to a certain note and mortgage. Prom a decree dismissing the bill, complainant appeals.
    Affirmed.

      Gyrus A. Hovey, for complainant.

      Benedict & Schell (Avery & Walsh, of counsel), for defendant.
   Moore, J.

This is a proceeding in equity to establish complainant’s title to a certain note and mortgage claimed as a gift causa mortis, from the deceased intestate, by-delivery and without written assignment. Louis Almond, the deceased intestate, at the time of his death was about 75 years of age.

It is the claim of complainant that on December 26, 1904, being then in possession of the note and mortgage, and conscious of approaching dissolution, Mr. Almond called complainant to the room where he was sitting, and in the presence of her husband and daughter, whom he had previously called, gave her the note and mortgage and made delivery thereof to her. The case was tried in open court. The court decreed that the legal title to the note and mortgage be confirmed in the estate of deceased, and dismissed the bill of complaint.

We agree with the solicitor for complainant that the important question in the case is one of fact. The record is somewhat voluminous. We have examined it with care. It would profit no one to set out in detail what it contains. It does show, however, that Mr. Almond was a man of intelligence, and that he had the note and mortgage with him when it is claimed he gave them to complainant. The note was payable to “ Louis Almond or order.” Mr. Almond did not indorse it. The record also shows that the complainant filed a petition after his death for the appointment of her brother-in-law as administrator, in which petition she stated “that said deceased had personal estate situated and being in the county of St. Clair, aforesaid, of the estimated value of $500 and upwards.” The record shows that, excluding the note and mortgage, deceased did not have $50 worth of personal property. See Bellis v. Lyons, 97 Mich. 398. There is other testimony of much significance. We have no doubt the court below reached a right conclusion. '

The decree is affirmed, with costs.

McAlvay, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Mooee, J.

text:
      In re BEERS.
    1. Appeal and Error — Appeal prom Probate Court — Notice pp Appeal — Scope of Review.
    On appeal to the circuit court from an order of the probate court directing a father to contribute to the support of his indigent, adult, insane child, the circuit court is limited in its hearing to the reasons stated in the petition for an appeal.

      2. Insane Persons — Support—Liability of Parent — Proceedings to Enforce — Order—Sufficiency.
    A probate order requiring a father to contribute not to exceed $50 per quarter to the support of his indigent, adult, insane child, confined in a State asylum for the insane, is not invalid, in view of section 20, Act No. 217, Pub. Acts 1903, and Act No. 221, Pub. Acts 1905, because not for a definite amount.
    3. Appeal and Error — Appeal from Probate Court — Notice of Appeal — Scope of Review.
    An appeal to the circuit court from an order of the probate court directing a father to contribute not to exceed a certain sum to the support of his indigent, insane child on the grounds (1) that the order for issuing of the citation varies from the petition and order, and is void; (2) that no specific sum is , ordered paid, but leaves the amount with the asylum authorities to fix, substituting their judgment for that of the court; and (3) that the appellant is not legally liable for the support of the insane person, does not authorize the circuit court to make an order for a different amount.
    Certiorari to Hillsdale; Chester, J.
    Submitted April 18, 1907.
    (Docket No. 132.)
    Decided April 30, 1907.
    Petition by Clayton A. Powell, prosecuting attorney of Hillsdale county, to compel Angus Beers to reimburse the State for the expense of maintenance of his indigent, insane, adult daughter at the Michigan asylum for the insane at Kalamazoo. An order was entered granting the petition, and respondent appealed to the circuit court. There was an order modifying the order of the probate court, and petitioner brings certiorari.
    Reversed, and order of probate court affirmed.

      John E. Bird, Attorney General, Arthur P. Hicks, Assistant Attorney General, and Clayton A. Powell, Prosecuting Attorney, for petitioner.

      Frank M. Hall, for respondent.
   Mooee, J.

This is a proceeding commenced in probate court to compel a father to contribute to the support of an indigent, insane, adult daughter, who is confined in the Michigan asylum for the insane at Kalamazoo. A hearing was held before the judge of probate for Hillsdale county. He made an order the material parts of which read:

“And it appearing to the court, after a full hearing upon said petition, that the said Sarah E. Beers is an indigent, insane person, and that Angus Beers is legally liable for the support and maintenance of Sarah E. Beers at said asylum, and is so situated financially as to be able to contribute to the future support and maintenance of the said insane person at said asylum, and to reimburse the State for the expenses heretofore paid by it in behalf of said insane person, and the said Angus Beers, relative as aforesaid, having been cited to appear and show cause why the prayer of the petitioner should not be granted, it is hereby ordered that the said Angus Beers pay to the treasurer of Hillsdale county, within 60 days from the date of this order, the sum of $158.75, to be applied towards reimbursing the State of Michigan for the expenses heretofore paid by it in the maintenance and support of the said Sarah E. Beers in the Michigan asylum for the insane, at Kalamazoo, Mich., up to the 1st day of April, A. D. 1906; and it is further ordered that the said Angus Beers pay to the treasurer of the State of Michigan, quarterly, not to exceed the sum of $50, the same to be applied by the said treasurer towards the payment of the expenses for the future maintenance and support of the said Sarah E. Beers in said asylum, and the said Angus Beers, relative as aforesaid, is therefore ordered to pay the same accordingly; that is to say, that said Angus Beers do pay to the treasurer of the State of Michigan quarterly such sum as may be required for the support and maintenance of said Sarah E. Beers, while she is an inmate of said asylum, not exceeding $200 per annum.”

An appeal was taken to the circuit court. The only reasons for taking the appeal were stated to be (1) that the order for issuing of the citation varies from’ the petition and order, and are void; (2) that no specific sum is ordered paid, but leaves the amount with the asylum authorities to fix, substituting their judgment for that of the court; (3) that the said Angus Beers is not legally liable for the support and maintenance of said Sarah E. Beers. No issue was framed in the circuit court and no testimony was taken therein. The circuit judge made an order, after the formal part thereof, which reads as follows:

“ In this cause, the court doth find and order that the said Angus Beers, the respondent herein, pay to the State of Michigan for the maintenance of the said Sarah E. Beers the sum of $25 quarterly, or a total of $100 per year.”

It is sought to review this action of the circuit judge by writ of certiorari.

The first question presented is: Was the circuit court limited in its hearing to'the reasons stated in the petition for an appeal ? In 1 Chatterton on Probate Law, § 1499, it is said:

“The notice of appeal must be in writing, containing the reasons for appeal, and filed with the judge of probate. All of the reasons upon which the appellant relies must be stated therein, as the trial in the circuit court will be restricted to the reasons assigned^”

This we understand to be the rule.

The second question is: Was the order made by the probate judge a valid one ? Counsel for Mr. Beers insist the order is invalid because it did not fix a definite amount which should be paid. We quote from brief of counsel:

“ A judgment or decree to be valid must be definite in amount. The sentence of the court must be definite so that the person against whom it was rendered can comply with it. 1 Black on Judgments, § 3, says, after discussing the essentials of a judgment:
“ ‘ Again, the judgment must be definite. * * * If the amount remains to be determined by a future contingency or ascertained by referees or diminished by the allowance of an unliquidated credit or is otherwise indefinite and uncertain it is no proper judgment.’
“ See, also, Battell v. Lowery, 46 Iowa, 49; Nichols v. Stewart, 21 Ill. 106.”

An examination of the authorities cited shows they do not refer to orders like the one made by the judge of probate. Section 20, Act No. 217, Pub. Acts 1903, under which this proceeding was begun, provides:

“If it shall appear to said court on said hearing that such insane person is indigent and that he has relatives, who are parties to said proceedings, who are legally liable for his support, and who are able to contribute thereto, he may make an order requiring the payment by such relatives of such sum or sums as he may find they are reasonably able to pay, not exceeding however, in all, the sum of two hundred dollars per year. Said order shall require the payment of such sums to the State treasurer to be made annually, semi-annually or quarterly, as the court may direct.”

This section further provides»

“ If such relatives so ordered to pay shall neglect or refuse so to do, the State treasurer shall notify the prosecuting attorney of the county in which the proceedings were had, and in case any of said relatives reside in another county or counties, then also the prosecuting attorney of such other county or counties, of such neglect or refusal, and the prosecuting attorney of the county where said relatives or any of them reside, shall proceed, by action to be brought in the name of the State, to collect such sum.”

Section 38, Act No. 217, Pub. Acts 1903, as amended by Act No. 221, Pub. Acts 1905, provides:

“The rate of charges per week to be paid each institution for the board and treatment of patients shall be fixed annually at a joint meeting of the boards of trustees and the board of State auditors; said charge not to exceed the actual cost thereof including all salaries, repairs, improveroents and machinery, exclusive of new buildings, boilers, engines and dynamos, but this provision shall not be construed to prevent the furnishing of extra care and attendance to patients by special contract. Within ten days after the joint meeting of the said boards it shall be their duty to inform the governor in writing of the charge per week prescribed. If in the opinion and discretion of the governor, the rate so fixed at such meeting shall be excessive, he shall within ten days after' receipt of such communication call another joint meeting of the said boards for the purpose of fixing such a rate as shall be approved by the governor.”

It will be seen by these statutory provisions that'the cost of support of any person at the asylum is determined annually by a meeting of the joint board of trustees, together with the board of State auditors, and that the cost of maintenance for a given period is based upon the rate so fixed by these authorities acting under the law, so that, when the rate is fixed, it becomes simply a matter of computation to determine how much should be paid. It will also be observed, if there is not a compliance with the order made by the judge of probate, that further proceedings- must be commenced to enforce the order. We do not think the legislature in passing this statute intended to require the judge of probate in the first instance to make an order for a specific amount. To so construe the statute would prevent his making the order until the exact cost of maintenance, not exceeding $200 a year, was known. The statute should be given such a construction as will make it a practicable measure. We think the order made in the probate court was a valid one, and that under the issue as made by the appeal the circuit judge was not authorized to make an order for a different amount.

The order made by the circuit judge is set aside, and the one made by the probate court is affirmed.

‘ McAlvay, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Ostrander, J.

text:
    PEOPLE v. TOLMAN.
    Intoxicating Liquors — Keeping Open on Sunday — What ConSTITUTES.
    Under section 5395, 2 Comp. Laws, requiring that saloons shall be kept closed on Sunday, a saloonkeeper is guilty whose bartender and porter enter the saloon on Sunday to clean it, though the doors are kept locked, no person other than themselves enters, and no liquors are sold or drank.
    Error to Kalkaska; Chittenden, J.
    Submitted April 18, 1907.
    (Docket No. 133.)
    Decided April 30, 1907.
    John Tolman was convicted under section 5395, 8 Comp. Laws, of keeping his saloon open on Sunday.
    Affirmed.
    Defendant is charged with failure to keep his saloon closed on Sunday, April 8, 1906. The facts appearing upon the trial are stated from appellant’s brief:
    “ The respondent was tried and convicted for keeping his saloon open on Sunday, April 8, 1906. The evidence, undisputed, shows that on the morning of Sunday, April 8, 1906, at about the hour of 8 o’clock, two employés of the respondent, the bartender and porter of the saloon, were in the saloon engaged in cleaning. The porter of the saloon was admitted by the bartender, and the doors of the saloon were locked, and kept locked, and no other person was in there, except the sheriff, who was admitted by the bartender because he demanded admittance as an officer. No person took a drink in there that morning, and no outsider was in there, and the doors were all securely locked so that no outsider could get in. The foregoing facts were all brought out in the testimony of the people, and were not disputed by the defense.”
    The court charged the jury:
    ‘‘ This is an action brought by the people of' the State of Michigan against John Tolman, charging him with violation of the liquor laws, charging, to wit, that his saloon was open, and not closed, on Sunday, the 8th day of April, 1906. You have heard the testimony that these two men.were in that saloon on that day. Now the court instructs you: that if you believe the testimony that this saloon was opened and not closed on that day, and if you believe the testimony that these two men were in there on that day, your verdict will be guilty, otherwise your verdict will be not guilty. The fact that no liquor was sold has nothing to do with this case at all. The law provides that these saloons shall be closed, and when the people are in there they are not closed. They have to open them to go in, and open them to come out; therefore a saloon is open, and I charge you that this is the law, and if you believe the statements of the witnesses on the stand, and there is no testimony to the contrary, then your verdict will be guilty.”
    There was a verdict of guilty. Error is assigned upon the refusal of the court to direct a verdict of not guilty, and upon the charge as given.

      Ernest C. Smith, for appellant.

      Chauncey C. Jencks, Acting Prosecuting Attorney, for the people.
   Ostrander, J.

(after stating the facts). The instructions were right. This court has never held that an overruling necessity may not excuse entrance to a saloon on Sunday. It has expressly determined that the proprietor must, at his peril, .see that no necessity exists for keeping the same open by carrying on any other business therein which would require the doors to be open or for persons to enter therein. People v. Waldvogel, 49 Mich. 337; People v. Blake, 52 Mich. 566; People v. Cummerford, 58 Mich. 328; People v. Schottey, 116 Mich. 1; People v. Kriesel, 136 Mich. 80; People v. Crowley, 90 Mich. 366; People v. James, 100 Mich. 522; People v. Bowkus, 109 Mich. 360.

The conviction is affirmed.

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


author: Montgomery, J.

text:
    PEOPLE v. PRINZ.
    1. Criminal Law — Appeal—Scope oe Review — Questions Raised Below.
    The general rule in criminal as well as civil cases is that this court will, on review, consider only such questions as were presented for the consideration of the trial court.
    2. Same — Trial—Instructions—Duty of Court.
    In a criminal case the trial judge should, even though no request be preferred, give instructions covering the general features of the case, define the offense, and indicate what it is essential to prove to establish the offense. ,
    Error to the recorder’s court of Detroit; Phelan, J.
    Submitted April 18, 1907.
    (Docket No. 81.)
    Decided April 30, 1907.
    Otto Prinz was convicted of the crime of rape, and sentenced to imprisonment for not less than 10 nor more than 20 years in the branch of the State prison at Marquette.
    Affirmed.

      Edward H. Kennedy, for appellant.

      George F. Robison, Prosecuting Attorney (Walter M. Trevor, of counsel), for the people.
   Montgomery, J.

The respondent was convicted of the crime of rape, and brings the case here for review on error.

It was conceded at the argument that no exception was taken to the rulings of the trial judge now complained of, and no requests to charge upon the questions which it is now claimed should have been covered. The general rule in criminal as well as civil cases is that this court will, on review, consider only such questions as were presented for the consideration of the trial court. People v. Wade, 101 Mich. 89; People v. Warner, 104 Mich. 337; People v. Smith, 106 Mich. 431; People v. Carter, 117 Mich. 576. It is doubtless true that the trial judge should, even though no requests be preferred, cover the' general features of the case, define the offense, and indicate what it is essential to prove to establish the offense. This duty was fully performed in this case. We do not intimate that, if the questions discussed were all open to review, there was any prejudicial error.

The testimony was ample to warrant the conviction, which is affirmed.

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


author: McAlvay, C. J. Ostrander, J. Carpenter, J. Hooker, J.

text:
    PERE MARQUETTE RAILROAD CO. v. UNITED STATES GYPSUM CO.
    Certiorari — Mandamus—Propriety—Final Order — Condemnation Proceedings — Appeal prom Probate Court.
    The probate court having dismissed a petition by a railroad company to condemn lands, on the ground that they were wanted for a private, rather than a public, purpose, petitioner took an appeal to the circuit court, where the same issue was tried, resulting in a reversal of the order of the probate court, and an order that the case stand for trial in the circuit court, before a jury, on the merits. On application for certiorari to review the action of the circuit court, held, that inasmuch as the railroad company would be entitled to take possession pending appeal, which course might result in irreparable injury to respondent if it should be finally determined that the taking was for a private purpose, the remedy by appeal is not adequate, and an order to show cause why mandamus should not issue, accompanied by a stay of proceedings, should be granted. MoAlvay, G. J., and Blair and Ostrander, JJ., dissenting on the ground that certiorari is the proper remedy.

      Condemnation proceedings by the Pere Marquette Railroad Company against the United States Gypsum Company, the American Trust & Savings Bank, and the German American Bank. The petition was dismissed in the probate court, and petitioner appealed to the circuit court. There was an order reversing the action of the probate court, and ordering the case to proceed in the circuit court on the merits: On motion for a writ of certiorari to review the order of the circuit judge.
    Submitted April 30, 1907.
    (Calendar No. 22,286.)
    Order to show cause granted May 9, 1907,
    returnable.June 4, 1907.

      Butterfield & Keeney, for the motion.
    , Stevens, McPherson & Bills (Charles E. Ward, of counsel), contra.
   McAlvay, C. J.

On a petition by the Pere Marquette Railroad Company to the probate court of Kent county to condemn certain lands an issue was made upon the answer of these respondents, the United States Gypsum Company, American Trust & Savings Bank, and German American Bank, that the proceeding was to condemn iands for a private, and not a public, purpose. A preliminary hearing was had and proofs taken upon tbi> issue. The probate judge found that the purpose for which the land was to be condemned was a private purpose, and made an order dismissing the petition. Petitioner then took an appeal from this order to the circuit court, under the general statute allowing appeals from probate court. Section 669, 1 Comp. Laws. The same issue was tried in the circuit court for Kent county upon' said appeal, and the circuit court made an order reversing the action of the probate court, and overruling all the objections of respondents and their motion contained in the answer to dismiss the petition, and ordered the case to proceed to a hearing in said circuit court, before a jury, on the merits. Respondents appeared in both courts specially upon the questions of the jurisdiction of said courts. They apply for a writ of certiorari, claiming that the court erred in overruling the order of the probate court; that the remedy to review said order was by mandamus or certiorari to this coui’t, and not by appeal; and that, if an appeal could be entertained by the circuit court, its jurisdiction on said appeal would extend no further than to dispose of the question passed upon by the probate court. Both parties have filed briefs upon this application.

Upon this preliminary motion the only question to be determined is whether the writ should issue. The policy of this court since the case of People v. Thompson, 108 Mich. 583, both in civil and criminal cases, has been to refuse to hear upon certiorari questions which may be raised upon -a final hearing before it, after a full hearing in the trial court, and this rule has been applied in condemnation proceedings, and will be adhered to when applicable. Upon this application, it appears that the circuit court obtained jurisdiction upon an appeal under the statute mentioned, which is not the appeal provided for in cases of condemnation of lands, and the right to such appeal is claimed upon the authority of Defoe v. Bay Circuit Judge, 116 Mich. 567. The entire case was not taken by this appeal to the circuit court. A question had been raised and an issue made before the probate court that the taking sought was for a private, and not a public, purpose. The probate court so held and dismissed the petition. From this order alone an appeal was taken, and the same issue was tried in the circuit court. It was a question of law to be found by the court upon the facts presented upon a preliminary hearing. The jurisdiction of the circuit court was invoked in its appellate capacity, and it could only affirm or reverse the order of the probate court, and, having reversed such order, the only authority it had under this statute regulating these appeals from probate court was to include in such order of reversal an order remitting the matter to the probate court for further proceedings. It is not questioned by any member of this court but that such order should have been made, and that certiorari would lie to this court from that order. The circuit court did not do this, but ordered the case to proceed to a hearing before a jury upon its merits. It is contended that this thereby became an interlocutory and not a final order, and that under the decisions of this court neither certiorari nor mandamus will lie. This will be admitted if the order is interlocutory, but we insist that, because the circuit court saw fit to make this order in the form in which it was made and proposes to conduct the condemnation proceedings, it cannot change the nature of the order and make' it other than in fact and law it actually is, and thereby deprive respondents of rights they have under the law governing these appeals. The circuit court now assumes original jurisdiction over a cause in which it never has had, or acquired, such jurisdiction. It is not necessary to follow the argument that at the determination of the case after the necessity for taking and the award have both been found by the jury the respondents may appeal to this court, and perhaps in connection with such appeal take a writ of certiorari and save the questions raised.

Keeping in mind the distinction between the question of public purpose, which is one of law for the court, and the question of public necessity, which is one of fact for the jury, it is sufficient answer to say that the question raised on the appeal was a question of law heard and determined by an appellate court of competent jurisdiction, and whether respondents proceed and participate in the trial upon the merits, of whether they refuse to have anything further to do with such proceedings, if no review is had of the determination of the circuit court upon that question, it becomes the law of this case. If the order made had remitted the case to the probate court for further proceedings, and no writ of certiorari had been asked to review it, no one questions but that respondents would have been concluded by it. The same situation is presented by the order that was made, and the same reasoning applies to it. The fact that the case might have been begun in the circuit court, as well as in the probate court is of no consequence. It was not begun there, and that court never had original jurisdiction, and the fact that it assumes such jurisdiction and proposes to conduct these proceedings ought not to prevent the issuance of the writ prayed for. The order of the circuit court must be considered a final order reversing the order of the probate court in proceedings not after the course of the common law and re viewable upon a writ of certiorari.

The writ should be granted.

Blair, J., concurred with McAlvay, C. J.

Ostrander, J.

If this court is to at all interfere in the matter at this time, I am of opinion that certiorari, and not mandamus, is the appropriate remedy.

Carpenter, J.

I do not think that the remedy afforded by a review of the order condemning the lands of the gypsum company is adequate to redress the grievances complained of in this application. The statute (section 6248, 2 Comp. Laws) authorizes the railroad company, after it has recorded in the office of the register of deeds a certified copy of the order of condemnation and paid the compensation awarded, “to take possession of and use ” the land condemned. It is my understanding — and, if I am wrong in this, then my conclusion is wrong — that a review of the final order of condemnation will not affect the right of the railroad company to the possession above given. In other words, the railroad company may, pending the review of the final order in this court, take possession of and use the condemned .land. It follows that a determination then made by this court that the railroad company is taking the land' condemned for a private purpose will not be made until after the land has actually been taken and used and the rights of the landowner seriously interfered with. That remedy is, therefore, in my judgment, entirely inadequate.

I think this case distinguished by the circumstances above set forth from the cases in which we have refused to interfere by certiorari or mandamus before final judgment. I think we should review these proceedings by mandamus, and that- an order to show cause, accompanied by an order staying proceedings, should at once issue.

Montgomery and Moore, JJ., concurred with Carpenter, J.

Hooker, J.

I am of the opinion that the order of the probate court dismissing this proceeding was perhaps an appealable order under 1 Comp. Laws, § 669, as interpreted in the case of Defoe v. Bay Circuit Judge, 116 Mich. 568. I am also of the opinion that, if so, such appeal may not have authorized a trial of the case upon the merits in the circuit court, and that, after reaching the conclusion that the probate judge erred, he should have made an order reversing his decision and remanding the cause for further proceedings. Had he done so, that would have been a final order, and might perhaps have been reviewable here on certiorari.

He did not make such an order, but treated the cause as one removed to the circuit court and triable there de novo upon the merits. He made a determination of what counsel call a “preliminary question of law,” as to the proposed public use, upon new proof taken before him and directed the calling of a jury to try the merits, and I understand that the jury will be in court for the purpose on Monday, May 6th, to proceed in the case. So far from rendering what he understood to be a final order, he rendered only an interlocutory one, if it can be said to be even that. There is room for the suggestion that it was thought to be the mere passing on a question of fact in the process of the trial. But, whichever we may call it, it was interlocutory in its nature, and certiorari does not lie in such a case. See the following Michigan cases: Palms v. Campau, 11 Mich. 109; Wiley v. Allegan Circuit Judge, 29 Mich. 491; Detroit, etc., R. Co. v. Backus, 48 Mich. 582; People v. Thompson, 108 Mich. 583; Culver v. Travis, 108 Mich. 640; Maynard v. Ingham Circuit Judge, 124 Mich. 465; Meads v. Belt Copper Mines, 125 Mich. 456; 3 Am. & Eng. Enc. Law (1st Ed.), p. 64, and cases cited; 6 Cyc. pp. 736, 755, and cases cited; 7 Current Law, p. 611, and notes; 4 Enc. Pl. & Pr. pp. 9, 44, and 45.

In view, however, of the fact that the law is said to permit the taking of immediate possession of condemned land on payment, and pending an appeal, and the showing that serious and irreparable injury would result, it is possible that relief can be afforded by mandamus, although the cases are exceptional where such writ can be used to review interlocutory orders. I therefore suggest and consent to an order to show cause (reserving, however, the question of the propriety of such writ), thinking that the proceedings had before the circuit court may be treated as equivalent to a motion to vacate the order and a denial thereof. A stay of proceedings should accompany the order to show cause.


author: McAlvay, J.

text:
    WALTERS v. WOLVERINE PORTLAND CEMENT CO.
    1. Master and Servant — Personal Injuries — Assumed Risks.
    An employé in a cement factory was given two wrenches and told to tighten the bolts in á tube mill which was not running, and in doing so he lost an arm by reason of a wrench slipping on the bolt and allowing him to fall backward on a similar mill in operation adjoining. He was aman of mature years, in possession of all his faculties, familiar with machinery, had worked in the mill two months, and it was not claimed that he was not acquainted with the use of wrenches or that those given him were defective. The factory was sufficiently light and the mills of simple construction. Held, that the employer was not liable for the injury, the employé having assumed the risk.
    2. Same — Evidence.
    That the brightness of the surface of the mill upon which the employé was injured rendered it impossible, when looking from a certain direction, to observe that the mill was. running, was immaterial, when he testified that he did not look at it, that he was directed to work at the mill which was not running, and that he selected the one not running without difficulty.
    3. Same — Guarding Machinery — Custom.
    It is not negligence to fail to guard certain machinery in the absence of a custom to guard machinery of that character.
    Error to Branch; Yaple, J.
    Submitted April 11, 1906.
    (Docket No. 52.)
    Decided May 18, 1907.
    Case by Frank Walters, against the Wolverine Portland Cement Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Newberry & Humphrey, for appellant.

      H. H. & B. E. Barlow, for appellee.
   McAlvay, J.

Plaintiff brought suit for personal injuries received while employed in and about defendant’s cement plant, claimed to have been caused by the negligence of defendant. Defendant was engaged in the manufacture of Portland cement in Branch county. That department of the plant in which plaintiff was employed was known as the “wet end.” It is upon the ground floor, and is a space about 75 feet long by 75 feet wide. Over the east end of this space is what is called the “ clay floor,” under which plaintiff and the other workmen changed their clothing before going to work. Next to this, going west from the east end, is a “slurry vat,” made of concrete. It is about ten feet wide east and west, 48 feet long, and 8 feet deep. The walls of the vat rise about 2 feet above the level of the ground floor. “ Slurry ” is a mixture of clay and marl, of a grayish color, and is like thin mud-. This vat was usually full, or nearly full, of this mixture. Directly west of this vat is another vat, 12 feet in width and of like length and depth as the first one. These vats are separated by a heavy concrete wall 6 feet 8 inches thick on its upper surface. About 25 feet from this second vat, and where plaintiff usually worked, were several “slurry” tanks and pumps for pumping the slurry into them, and farther away in the west end of the factory was another row of tanks.

■ The tube mills, upon one of which plaintiff was injured, are located over the vat first described. There is a battery of five of them placed side by side in a row; their ends supported on wheels, called “trunnions,” fixed on bases on top of the east and west walls of the vat. These mills are hollow iron cylinders 16 feet long and 5 feet in diameter, weighing several tons each. They are partially filled with stones, and are used to grind and mix the slurry as they revolve. The west end or head of each of these mills is a heavy iron plate, and is removable. It is fastened to the cylinder by means of bolts through the plate and through a flange on the end of the cylinder. These are |-inch bolts, 5 inches long, with right-handed thread, and hexagonal heads and nuts. There are 12 bolts in each head. The holes in the flange and head which receive the bolts being round, it is necessary to use two wrenches to tighten the nuts. Eight inches from the west end of each cylinder or mill is a heavy iron tire or band 8 inches wide, which runs on the trunnions or wheels which support it. The trunnions are 2 feet in diameter with 8-inch faces. The constant wear of the tires of the mills upon the faces of the trunnions has caused the surface of both to become highly polished. The trunnions are supported by bases 2 feet 6 inches long, upon which are boxes for the bearings of the trunnions. About one-half of the trunnion is concealed by the bases and boxes. The cylinders run at the rate of 24 revolutions, and the trunnions at the rate of 70 revolutions, per minute. The height of the tube mills from the cement foundation on which they rest is 6 feet 9 inches. The distance between the nearest points on the separate mills is 3 feet 9 inches. The distance between the nearest points of the trunnions of the separate mills is 28 inches, and between the nearest points of the bases 21 inches. The accompanying cut drawn to scale shows two of the mills.

These vats are usually filled or partly filled with “slurry,” and there was always more or less mud upon the floor and walls of the vats. As we understand it, the mud was taken from the first vat, passed through the tube mills, and discharged into the second vat.

Plaintiff at the time of his injury was 41 years of age. He had worked on a farm until he was nearly 30 years old, and then for six years worked as a section hand on a railroad. Later he worked in and about a flouring mill for six years at packing flour and feed and nailing barrels. On March 18, 1902, he was employed by defendant. He went to work in the west end of the factory as a common laborer, wheeling mud, watching the tanks to keep them from running over, oiling the pumps, and running errands, as directed by Mr. Burkholder, who had charge of that department of the work.

On June 4, 1902, at about 8 o’clock in the forenoon, plaintiff was in that part of the factory under the clay floor. Burkholder handed him two wrenches and told him to “go and tighten the bolts on the head of that mill standing still, and do it quick, because we are in a hurry. We are getting behind on the mud.” He took the wrenches, and went from the east, between the dead mill

and the one north of it, which was running, walking on a plank about a foot wide, towards the west, until he came to the west end, turned south, and passed in front of the west end of the dead mill, and turned in between that mill and the one nest south of it, facing to the side of the head of the dead mill upon which the bolts were to be tightened. This mill was standing still, or “dead,” as it is called. It was the third mill counting from the south. All the other mills were running. He saw that the fourth mill was running when he went between it and the dead mill. He was told to tighten the bolts on the mill that was standing still. He says he did not notice that No. 2 was running. Plaintiff started to tighten the bolts, and had worked about five minutes. He used the two wrenches, pulling up on one and pushing down on the other, while doing this. To use his words: “The bolt slipped in the wrench, and jerked — gave me a sudden jerk, and my feet slipped, and I went on my back.” His arm was caught between the trunnion and tire on the tube mill behind him and was cut off. He was otherwise seriously injured.

At the close of plaintiff’s case defendant moved that the court direct a verdict in its favor, on the ground that the evidence was not sufficient in law to warrant a recovery. The court, in granting such motion, gave his reasons as follows:

“ In an action of this kind the employé’s knowledge or ignorance of a risk may be a factor which of itself, and, without any reference to the quality of the employer’s conduct, furnishes or supplies the test for the determination of the employe’s right of action.
“ If the employé knows of the dangers of the premises or place of work, or with the exercise of ordinary care— that is, such care as an ordinarily prudent man would exercise over his own affairs under like circumstances— could see and understand them he assumes the risks which arise therefrom. If the plaintiff knew of the dangers of his place of work or by the exercise of reasonable care and caution in the discharge of his duties would or could have known of it then there could be no recovery in this case. He could not go blindly about his work. He was required to use his senses. It is a man’s duty to exercise his common sense in his employment.
“ The plaintiff was at the time of his employment and at the time of the accident a man of mature age experienced in life and in the full possession of his faculties having capacity to understand and appreciate the dangers which were patent and obvious to a person of ordinary intelligence; and in so far as he knew or ought in the exercise of reasonable care to have known the risks and dangers of the work he is deemed to have accepted and assumed those risks and dangers and this whether the work was outside of the scope of his regular employment or not.
‘ ‘ The plaintiff had been in the employ of the defendant in and about the factory for some time before the accident. He had prior experience in the particular work of tightening bolts I think while he was in the employ of the railroad company. The place in- the factory where he had worked, and the kind of work which he had performed, while in the employ of the defendant, was such. as to challenge his attention to the situation of the premises. The location and character of the machinery, the existence and operation of the tube mills, their proximity to each other, their liability to be in operation at any time, and the fact that he understood that some of them were in operation at the time he went to do the work he was engaged in when the accident occurred — generally, the dangers to be expected — all these things were and had been right in front of him in his line of vision, and he must be held to have known what his eyes would have told him if he had used them. There is nothing in the evidence to show that the exigencies of the work he was doing were such as to excuse him, or relieve him from the duties imposed upon him by the law. Although the defendant company may have been negligent in leaving the machinery of the mills uncovered and unguarded, negligent in the respects charged and relied upon in the declaration filed in the case, still the danger arising from the tube mills adjoining the one where he was working was one which, under his own testimony, he knew, or ought to have known in the exercise of ordinary care. The fact that plaintiff sustained serious and permanent injuries, injuries of a character which enlist the sympathies of all, does not alone furnish sufficient ground for his recovery in this action. As I view it, the evidence is insufficient under the law to entitle the plaintiff to recover, and the jury are directed to return a verdict for the defendant.”

The plaintiff assigns error upon this action of the court and specifically alleges that the court erred in its findings and instructions to the jury as follows:

“1. That the plaintiff, from the length of his employment with the defendant, the place in the factory where he had worked, and the kind of work which he had performed, must be presumed to have known and appreciated the dangers to be expected in the work he was engaged in at the time of his injury and assumed the risk.
2. In holding that there was nothing in the evidence to show that the exigencies of the work he was doing were such as to excuse him,' or relieve him from the duties imposed upon him by law.
“3. In holding that, although defendant might have been negligent in leaving the machinery of the mills uncovered and unguarded in the respects charged and relied upon in plaintiff’s declaration, still the danger arising from the tube mills adjoining the one where he was working was one which under his own testimony he knew, or ought in the exercise of ordinary care to have known.
“á. That the court erred in not submitting to the jury the question of defendant’s negligence in permitting mud and slurry to remain upon the surface of the abutment where the plaintiff was sent to work, thus rendering it slippery and unsafe, as charged in the declaration, and in failing to caution and warn him of the dangers of the place where the work was to be done.
“5. That the court erred in not submitting the question of defendant’s negligence in giving the order which was given to plaintiff, when it had knowledge that the adjoining mills were in operation and the abutment was slippery, and that the work he was ordered to do was outside of the usual scope of his employment.
“6. That the court erred in not submitting to the jury the question whether plaintiff knew and appreciated, or ought to have known and appreciated, the danger to be encountered by him in the performance of the work he was directed to do, and whether such danger was so apparent and imminent that a person of average prudence and intelligence would have declined under the circumstances to comply with the order.”

Plaintiff had worked in this department 2£ months, passing near the tube mills every day. These mills were running most of the time, and were not complicated machinery. Plaintiff had on two occasions, when, the mills were not running, assisted in removing the stones from the third mill and in replacing them. A man of ordinary intelligence could not approach these mills and look at them from either end, whether they were still or running, without observing the trunnions upon which they turned. One-half of the trunnions was always visible above the bases, except when one of the mills was being cleaned out. Then plank was put in front of it, up to the lower rim of the mill, to prevent stones from falling back into the vat. The extreme ends of the bases under the individual mills were 21 inches apart, the rims of the trunnions 28 inches, and the least distance between any part of the cylinders was 3 feet 9 inches. There was ample space to pass between .and around the mills by a person using ordinary care.

This was, from the necessities of the business, the wet end of the factory. Nothing was handled but mud, and, of necessity, there was more or less mud everywhere. Plaintiff’s employment was mostly with tanks filled with mud by pumps, and his business was to see that they did not overflow. Plaintiff says he was directed to go to the mill which was standing still and tighten the bolts in the head. This challenged his attention to the fact that the others were running, a fact which was apparent to him, because he selected without further direction and went to work at the dead mill. He says he knew No. 4 was running when he went between 3 and 4; but paid no attention to No. 2; that he walked in there without seeing that mill at all; that he looked only at the bolts he was to go to work on.

Plaintiff was a man of mature years, in the possession of all his faculties. It is not claimed that he was not acquainted with the use of wrenches, or that the ones given him were defective. He had worked six years in a flour and feed mill, and so informed defendant’s superintendent when he was hired. The accident occurred in the middle of the forenoon of June 4th. The light, although not very good, was sufficient on an ordinary summer day to see the trunnions, according to plaintiff’s testimony, at least 6 feet, and' the tube mills 25 feet, away. This machinery was not complicated. It was, in fact, of the simplest construction. It was in all respects open, apparent, and visible to any person of ordinary intelligence. The rule of law is that an employe assumes all risk of accident from defects or dangers which are open, visible, and apparent. Bailey on Master’s Liability for Injuries to Servant, p. 220, and cases cited; Gavigan v. Railway Co., 110 Mich. 73; Hathaway v. Milling Co., 139 Mich. 708. And this is true, whether within or without the regular scope of his employment. Both cases last cited were where the employé was directed to work outside of the scope of his employment. In the Hathaway Case Justice Ostrander, speaking for the court, said:

‘ ‘ Plaintiff was 28 years old, sound, and in possession of all his faculties. The room in which he was injured was properly lighted. There was no defect, hidden or other, in the machinery. The work he was doing was in itself neither difficult nor dangerous, and to perform it properly and safely required only ordinary care. Whatever danger there was, was visible. The result likely to follow contact of clothing or person with the cogwheels was evident. We do not discover any testimony in the record warranting an inference that any instruction or cautionary suggestion from the superintendent would have afforded plaintiff any better knowledge of the danger to be apprehended from the cogwheels than was afforded by merely looking at them.”

No words could more appropriately fit the case under consideration. Whatever danger there was of injury from this machinery was perfectly apparent to any one using ordinary care, and he must be held to have assumed the risk. His injury was the result of an accident caused by the slipping of the wrench he was using.

It is urged that, on account of the brightness of the surface of the trunnion and the tire on the mill, the fact that a mill was running could not be told when looking at this surface, for the reason that they appeared to be the surface of one large wheel. This appears from the record to be true, if looking directly at them from a point having their surfaces in perfect alignment; but the testimony of plaintiff is that he did not look at all at the mill on which he was hurt. He gave no attention whatever to the place where he was working, although his attention had been directed to the fact that all the mills but one were running, and he selected that one without difficulty.

Negligence is alleged because these trunnions were not protected by guards. There is no proof in the case that it was customary to put guards upon machinery of this character. The court was not in error in directing a verdict for defendant.

The judgment of the circuit court is affirmed.

Carpenter, Grant, Blair, and Moore, JJ., concurred.


author: MoAlvay, J.

text:
    HENDERSON v. McRAE.
    1. Accord and Satisfaction — Failure to Perform — Rescission.
    Where a creditor agrees to accept a certain sum of money in satisfaction of his demand, a part of which the debtor pays and repudiates the balance, the creditor is entitled to rescind the contract for an accord and bring his action on the original demand without returning the amount paid, though the debtor should be given credit for it in the final account.
    2. Specific Performance — Purchase of Lands — Joint Account.
    A contract between a land looker and a lumber manufacturer that a tract of land called to the manufacturer’s attention by the land looker should be purchased by the manufacturer if found satisfactory, and the profits arising from the purchase divided, is enforceable in equity.
    8. Same — Parties.
    The act of the manufacturer in taking a third party into the deal without the land looker’s consent, and causing the conveyance to be made to him, cannot affect the rights of the land looker.
    Appeal from Muskegon; Russell, J.
    Submitted April 13, 1906.
    (Docket No. 68.)
    Decided May 18, 1907.

      Bill by David W. Henderson against John McRae, Donald McRae, and Peter McArthur, copartners as John McRae & Company, for an accounting. From a decree for complainant, defendants appeal.
    Affirmed.

      James C. McLaughlin, for complainant.

      O. W. Sessions, for defendants.
   MoAlvay, J.

In this case complainant, claiming to be entitled to one-half of the net profits arising out of the sale of certain pine timber and land situated in Ontonagon county, by virtue of a certain agreement made and entered into between the parties to this suit in the year 1895, filed his bill of complaint against defendants, asking for an accounting therefor. He is a resident of Muskegon county. The case was heard before the circuit court for Muskegon county, in chancery, and a decree was rendered therein granting complainant the relief asked. Upon the appeal of defendants to this court the determination of the questions raised depends upon the facts which the evidence in the case shows have been established. There was a sharp dispute between the principal parties upon the material facts involved. To discuss the evidence, together with questions of the credibility of witnesses, and corroborating facts and circumstances in support of testimony, will be of no benefit to the profession. We therefore state the facts we have found after a careful examination of all the testimony.

The record establishes that complainant, an experienced land looker, having learned of a certain tract of pine timber land belonging to one Josiah E. Just, of Ionia, and having theretofore examined and estimated the same, brought his information, with the estimates, to the attention of defendants, who were engaged in the lumber business in Ontonagon county, under the firm name of John McRae & Co., and who desired to purchase timber of the kind growing upon said land, and made and entered into a verbal agreement with them through Donald McRae, one of the defendants, that they would have the lands examined, and, if found satisfactory, they would furnish the money to buy them, and would divide equally with complainant the profits arising from the transaction. By agreement complainant obtained an option in writing for the purchase of said lands from the owner for $5,000, running long enough to permit an examination of the lands by defendants. This option, together with the estimates complainant had and descriptions of the land, were turned over to defendants. Defendant Donald McRae thought the land should be bought for $4,000, and it was agreed that further correspondence with Mr. Just should be continued by defendants. Complainant on November 22, 1895, so wrote to Mr. Just, inclosing a letter of same date from defendants showing their estimate, the situation of the land, and their objections to the price. Complainant explained the relation of the parties to the deal, and that defendants were furnishing the money. Several letters passed between defendants and Mr. Just in relation to the matter, and, finally, on January 16, 1896, a contract in writing was entered into between them for the purchase of this land for the sum of $4,000, tobe paid part in cash, and the balance in notes. In consideration of payment of cash in full, this was reduced to $3,950, and on February 24, 1896, a warranty deed of these lands was made by Just and wife to Patrick A. Ducey, in which it was stated:

‘ ‘ This deed is given in accordance with and in fulfillment of a contract made the 16th day of January, 1896, between Josiah E. Just, of the first part, and John McRae, Dan McRae, and Peter McArthur, composing the firm of John McRae & Company, of the second part.”

Complainant had no knowledge of this deed, and never consented to it. Donald McRae in January or February, 1896, told complainant that they had bought the land for $4,000. Complainant then asked for a letter showing his interest. Mr. McRae denied that he had any interest, and said they were obliged to take another party into the deal.

In March of the same year complainant proposed to Donald McRae to settle this dispute upon the payment to him by defendants of $50 in cash, and a receipt in full for his account on defendants’ books for $30 borrowed money and interest, making $31.45. This proposition was accepted, and defendant Donald McRae paid him $15, stating that he would pay the balance of the $50 at any time after the following day. On the second day complainant went to the office and asked for the balance, which was refused; McRae claiming the agreement was that complainant was to be paid $50 in settlement of his claim, the account to be included in that amount. Complainant then withdrew his offer of settlement, and stated that he would try to collect all that was corning to him. The timber was sold for $7,000 in September, 1896, realizing a profit of $3,050, less expenses. Complainant instituted this suit in February, 1899.

The principal question of law raised by defendants in the case is,* that the compromise agreement between the parties constituted a full and complete settlement; that a new contract was substituted for the old one, and was partially executed by the payment of $15 which complainant has retained; and that complainant cannot rescind the new agreement, retain the benefits, and bring suit upon the original contract. In matters of accord and satisfaction, there is a well-defined and easily recognized distinction between two classes of agreements:

1. Where the agreement of the creditor is to accept the performance of the debtor’s new promise or agreement in satisfaction of the demand.
2. Where such promise or agreement itself, based upon sufficient consideration, is accepted in satisfaction of the demand. 2 Chitty on Contracts (11th Am. Ed.), p. 1124.

And in this class of cases it must clearly appear that the intention of the party was to accept such promise, and not the performance, in satisfaction of the original demand. In the first class of cases the accord must be fully executed to bar an action on the original demand. 1 Cyc. p. 312, and cases cited. In the second class the original demand is extinguished, and cannot be the foundation of an action. 1 Cyc. p. 336, and cases cited. Some of the cases cited by defendants recognize this distinction. Sioux City Stock-Yards Co. v. Packing Co., 110 Iowa, 396.

The facts as found by us bring this case within the first class. Complainant agreed to accept the debtors’ performance of the agreement in satisfaction of his demand. Complainant was ready to carry out the agreement, and defendants refused to perform their part. Complainant had a right to rescind the contract and bring his action on the original agreement. That complainant retained the $15 paid by defendants is not disputed. In the first class of cases above mentioned part execution of the accord does not extinguish the original demand. Defendants on the accounting were properly given the benefit of the amount paid. Brunswick, etc., R. Co. v. Clem, 80 Ga. 534; Campbell v. Hurd, 74 Hun (N. Y.), 235.

The contract established by complainant was one usual in the business in which the parties were engaged, and enforceable in a court of equity. Petrie v. Torrent, 88 Mich. 43, and cases cited.

The relation of Mr. Ducey to the defendants is one which cannot affect complainant’s rights in the premises. Complainant was in no way connected with him in the transaction. His agreement was with the defendants alone. If they have advisedly or mistakenly turned over some of the profits of this deal to Mr. Ducey, they have done so at their own risk. Complainant was not guilty of laches in bringing this suit, nor has he made a mistake in his remedy.

The decree of the circuit court is affirmed, with costs to complainant.

Carpenter, Blair, Hooker, and Moore, JJ., concurred.


author: McAlvay, C. J.

text:
    TAYLOR v. ZIEM.

    1. Saving Questions por Review — Exceptions—Necessity.
    Error in overruling a motion for a new trial cannot be reviewed where no exceptions were taken to any of the reasons contained in the decision of the court denying the motion.
    2. Appeal and Error — Record—Verity—Statements op Trial Judge.
    The statement of the trial judge as to whether he struck out certain evidence will be accepted as true, notwithstanding it contradicts the printed record, where such course will save to the plaintiff in error the benefit of his exception.
    3. Libel and Slander — Evidence—Suppioienoy.
    In an action for libel, evidence examined, and held, not to connect plaintiff’s failure to obtain employment as master of a certain vessel with the libelous letter written by defendant.
    Error to Alpena; Emerick, J.
    Submitted October 16, 1906.
    (Docket No. 84.)
    Decided May 18, 1907.
    Case by Robert G. Taylor against August W. Ziem for libel. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Collins & D’Aigle, for appellant.

      L. G. Dafoe, for appellee.

       Rehearing pending.

   McAlvay, C. J.

Plaintiff, a vessel master, recovered a judgment of $2,000 against defendant for libel. The libelous article was a letter written by defendant to Charles Chamberlain, a vessel owner and broker of Detroit. The defense was that the letter was privileged and its statements were true. It is not necessary to give the contents of this letter. If it was not a privileged communication, its statements were libelous, A motion for a new trial was made upon the ground that the verdict was excessive and not warranted by the evidence; that $1,500 of said verdict allowed as injury to feelings was excessive, and not supported by the evidence; that there was no evidence of any damages to plaintiff’s business or profession to submit to the jury; also on account of improper argument by plaintiff’s counsel. This motion was denied, and reasons for such denial in writing were filed by the court.

The several errors assigned on account of the denial of this motion cannot be considered, for the reason that no exceptions were taken by defendant to any of the reasons contained in the decision of the court denying said motion.

During the trial of the case the court under the declaration limited plaintiff’s recovery for general damages to loss of employment. At the close of plaintiff’s case, counsel for defendant asked the court:

“That all the testimony relating to any letter received from McMorran and Boland as testified to by plaintiff and Gilchrist, also all testimony relating to this plaintiff not receiving the mastership of the boat Rounds, be stricken from the case, for the reason that they have not connected —they have not shown by any evidence in the case that his not securing the mastership of the Rounds was by reason of the writing of the letter complained of. And, also, the same reason for the others applies right through that they have not connected that testimony with this case.
The Court: That is that they have not connected those results with the publication of this libel ?”

To which counsel replied “ Yes,” and the court stated that he would consider the motion, denying it for the present and allowing an exception until it was finally decided. Defendant excepted. At the close of the testimony thiá motion was renewed,' and the following occurred between court and counsel for defendant:

The Court: The McMorran letters?
‘ ‘ Mr. D'Aigle: The McMorran letter.
The Court: The Boland letter ?
Mr. D’Aigle: The Boland letter.
The Court: And the Gilchrist Company letter?
Mr. D’Aigle: Yes; and also all that part of his testimony relating to his not receiving the mastership of the Rounds.
The Court: That goes and rests solely upon the letter. Have you any objection to that, Mr. Dafoe ?
Mr. Dafoe (Plaintiff’s Attorney): No, your honor; I haven’t the slightest.
“ The Court: Well, it may be done.”

The original bill of exceptions does not contain this last line, although the record shows that counsel for plaintiff in his brief and the court in his reasons for denying a new trial both quote it as párt of what occurred. The court, however, says:

“ I never intended to strike out this evidence so far as it might have'a bearing upon his loss of a position upon the schooner Rounds. The stenographer’s notes are, however, open to that construction.”

We must accept this statement of the court, which leaves the defendant the benefit of his exception taken, which specifically included plaintiff’s testimony relative to the vessel Rounds. The letters referred to were replies from vessel owners to letters written by plaintiff asking for employment, and were offered as tending to show damages to him on account of the letter complained of. It is admitted that they were properly stricken out. Mr. Chamberlain was the owner of the Rounds. He was the person who received this letter which is the foundation of this suit. Plaintiff testified that he applied to Chamberlain for employment and received a favorable reply, giving him to understand that he would place him in the schooner Rounds at $90 per month. Capt. Kunna corroborates this, saying plaintiff showed him the letter containing such statement. The letter was not produced. Plaintiff said he was not able to find it, although he had made diligent search. He did not get the position as master of the Rounds. On the part of plaintiff the deposition of Mr. Chamberlain was taken. It was not offered or used by plaintiff upon the trial, but was read in evidence by defendant. On direct examination by plaintiff’s attorney he testified that he did not recall that plaintiff made application to be placed as captain (master) of one of his vessels; that about June 1, 1903, after the receipt of this letter, he employed plaintiff to sail the schooner Belle Hanscomb for him. Cross-examined, he said his opinion of plaintiff was not changed a particle after the receipt of the letter, and plaintiff’s reputation was not injured with him; that plaintiff sailed the Hanscomb the entire season. From this testimony it appears affirmatively that plaintiff lost no employment on the Rounds because of the letter written by defendant; that the letter as far as Chamberlain was concerned did not injure the plaintiff. There was no evidence in the case to connect the fact that plaintiff was not employed in the Rounds with this letter written by defendant. The motion to strike out all of plaintiff’s testimony upon that question should have been granted.

We have examined the other errors relied upon, and find most of them without merit and none of them prejudicial.

For the error pointed out, the judgment of the circuit court is reversed, and a new trial ordered.

Carpenter, Grant, Blair, and Moore, JJ., concurred.


author: Carpenter, J.

text:
    ANDREWS v. BOOTH.
    1. Libel and Slander — Damages — Reputation — Statutory Provisions.
    The damages recoverable in an action for libel extend to injury to reputation notwithstanding section 10428, 8 Comp. Laws, specifically enumerating the elements of damage in such cases, omits reputation.
    2. Courts — Decisions—Stare Deoisis.
    Decisions are not binding authorities, as precedents, upon propositions which should have been, but were not, considered.
    Error to Emmet; Shepherd, J.
    Submitted October 17, 1906.
    (Docket No. 93.)
    Decided May 18, 1907.
    Case by John P. Andrews against Oliver T. Booth for libel. There was judgment for plaintiff for a part of the verdict only, and he brings error.
    Reversed, and remanded.

      Pailthorp & Hackney, for appellant.

      Halstead & Halstead (Will A. Norton, of counsel), for appellee.
   Carpenter, J.

Defendant published a libel charging that plaintiff burned or caused to be burned his buildings for the purpose of securing the insurance upon them, and for the purpose of defrauding the company insuring them. Plaintiff brought this action to recover damages. The issue was submitted to a jury, who found a verdict for plaintiff and assessed his damages as follows: $150 for damages to feelings; $626 for damages to reputation. The trial court decided that the law did not entitle plaintiff to damages for injury to reputation, and directed judgment to be entered only for the $150, which the jury had found as damages to plaintiff’s feelings.

Plaintiff insists that this decision was erroneous, and asks us to reverse said judgment. The question for our determination is this, viz.: Does the law entitle plaintiff to damages for a reputation injured by the publication of a libel ? This depends upon the proper construction of section 1, Act No. 216, Pub. Acts 1895 (3 Comp. Laws, § 10423). That section reads:

“That in suits brought for the recovery of damages for libel or slander in this State, the plaintiff shall be entitled to recover only such actual damages as he may have suffered in respect to his property, business, trade, profession, occupation or feelings.”

In McGee v. Baumgartner, 121 Mich. 287, we held that this statute did not prohibit recovery of damages for injury to reputation, saying that, if it did, “the act in this respect is clearly unconstitutional.” And upon this reasoning a judgment awarding damages for a reputation injured by the publication of a libel was affirmed. If this decision is authoritative, it controls this case, and compels us to say that plaintiff was entitled to a judgment for the full amount of the jury’s verdict. It is urged, however, that the authority of McGee v. Baumgartner is destroyed by the decisions of Derham v. Derham, 123 Mich. 451, and Line v. Spies, 139 Mich. 484. Line v. Spies has no application. There in a slander suit the trial court permitted the jury to give damages for injury to the plaintiff’s reputation and profession. This court held this action erroneous, because there was no evidence of injury to plaintiff’s profession. In Derham v. Derham the trial court, in charging the jury, limited the damages to a plaintiff injured by the publication of a libel to what “ she may have suffered in respect to her feelingsand this court held that such limitation was correct. The effect of this ruling was to prevent the recovery of damages for injury to plaintiff’s reputation, but this point was not called to the attention of the court by the briefs of counsel ; neither did it receive any consideration in the opinion of the court, nor was the case of McGee v. Baumgartner referred to, either in the opinion of the court or in the briefs of counsel.

The utmost that defendant can claim for Derham v. Derham is this: That, if this court had there considered and affirmed the proposition decided in McGee v. Baumgartner, it would have reached a different conclusion:

“That proposition was not, however, considered. It was not even presented, and decisions are not binding authorities, as precedents, upon propositions which should have been, but which were not, considered. Atwood v. Mayor, etc., of Sault Ste. Marie, 141 Mich. 295.” Moinet v. Burnham, Stoepel & Co., 143 Mich. 489.

The authority of McGee v. Baumgartner is not therefore destroyed by the decision of Derham v. Derham. We conclude, therefore, that McGee v. Baumgartner is an authoritative exposition of the law of this State; that section 10423, 3 Comp. Laws, construed, as it should be, in harmony with the Constitution, entitles plaintiff to damages for injury to his reputation.

The judgment should be reversed and the record remanded, with directions to the trial judge to enter a judgment for the full amount of the damages assessed by the jury, unless for some reasons not disclosed by this record he determines that a new trial should be awarded.

McAlvay, C. J., and Grant, Blair, Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.