text:
    BROWN v. MILLIMAN.
    1. Boundaries — Surveys—Government Grant — Accretions. Complainants sought to restrain defendants from trespassing • upon certain marsh lands in Lake Brie which they claimed under government grant. Defendants contended that the portion of the land upon which the alleged trespass was committed was an island which had formed subsequent to the government survey, and did not pass with the grant to complainants. From the government survey and field-notes, it appeared that, if the shore line had remained substantially unchanged, a creek located in the field-notes was one that continued to exist; otherwise, that the present creek did not then exist, and the one described in the notes was not accounted for. Allowing courses and distances as indicated in the field-notes .to be controlled by the creek, the shore line of the land claimed by complainants corresponded with the line of the survey. The witnesses were agreed that there had been no change in the shore line within their recollection. Held, tjiat the land was included in complainants’ grant.
    3. Same — Courses and Distances — Fixed Object Controlling. A call for a natural and ascertained object in a government survey, as a creek, a spring, or a river, will control courses and distances.
    .Appeal from Monroe; Kinne, J.
    Submitted January 3, 1899.
    Decided April 4, 1899.
    Bill by Harvey H. Brown and others against William Milliman, Jr., and Samuel Gay, to quiet title to land. From a decree for complainants, defendants appeal.
    Affirmed.

      E. T. Wood (Willis 6r. Clarice, of counsel), for complainants.

      E. R. Cilday and Willis Baldwin, for defendants.
   Moore, J.

Complainants obtained a decree in the court below quieting tbeir title to a piece of land, and restraining defendants from trespassing thereon. The defendants have appealed from that decree.

A reference to the accompanying plats will aid in understanding the questions at issue. The first plat is one prepared by the United States land department from a survey

made in 1817. The other plat was made by Mr. Allen, who was employed by defendants, from a survey made by him in February, 1897. The land in dispute is marked upon Mr. Allen’s plat as “Gay’s Island.”

The complainants are hunters. For the purpose of having permanent grounds for the abode of ducks and other game, they have acquired by purchase or lease lands extending for a mile north of the mouth’ of Huron river, and for about four miles south or southwest of its mouth, bordering 'on Lake Erie, about 2,600 acres in all. It is

their claim that their ownership of the shore of the lake is interrupted only by a piece of land known as the “Clark Piece,” which extends about a mile on the shore. The complainants have title in fee to the southeast quarter of section 25, and claim to be owners of all the.land east of the center line of section 25. It is the claim of the defendants that a piece of land called by them “Gay’s Island ” has formed east of section 25 since the government made its survey, and that the title thereto is not in the complainants,- but is in the State. They claim one Thompson was in possession of this land as a squatter, and, obtaining a quitclaim deed from him in January, 1897, they brought, a small house, which was upon runners, over the ice, and put- it upon this land. They personally, or by some one else, have retained possession of the house, and claim to be in possession of the land they call “Gay’s Island,” and that the legal title thereto is in the State of Michigan. They sought to get a title to this land from the United States government, and also from the State of Michigan. The officials of the respective land departments did not understand their respective offices showed any title which could be conveyed. It is the claim of defendants the case is within People v. Warner, 116 Mich. 228, and Sherwood v. Commissioner of State Land Office, 113 Mich. 227.

These lands are mostly marsh lands, usually covered with a small depth of water, upon which rushes, wild rice, and other aquatic growths thrive. At the mouth of the Huron river, and extending south therefrom, the action of the waves upon the sand has thrown up' a sand dune, and the sand, mixed with the wreck of the marsh, has lifted that portion of the land higher out of the water-than the portions of the marsh westerly therefrom. West of this land is Yermette creek, which puts into the Huron river a short distance above its mouth. This marsh extends back from the sand dune or higher land bordering the lake a mile or more, and at certain times shooting punts can be pushed all through it. It is the claim of defendants that near the south border of the land occupied by them there is a cut running from Vermette creek through to Lake Erie, which makes of their land an island, and that this is made land, and that, as it is east of section 25, it is not the land of complainants. It is the claim of complainants that there is no water going through this cut except at high water, when it is simply one of the outlets of the Huron river, and that the meandered line made by the óvernment survey on the east side of section 25 is practically the east line of the land in controversy. They also claim they and their grantors have been in possession of these lands for a good many years, and that Thompson was in possession under a license from them, and that his possession was their possession, and that he had nothing he could convey to defendants. There is no claim by any one that Thompson had any record title. The circuit judge found he had no title to the premises, that complainants and their grantors had been in possession thereof for more than 20 years, and that complainants were owners in fee of the title.

This land was surveyed by the surveyors of the United States government in 1817, and plats therefrom made and field-notes prepared. Some of the witnesses have known the land from 30 to 60 years, and they all agree that there has been no considerable change in the Huron river or the shore line. The defendants caused a survey to be made of these lands by Mr. Allen in February, 1897. According to the government survey and field-notes, the southeast corner of section 25 was at the western shore of Lake Erie. The meander line, according to the field-notes, from the post at the southeast corner of section 25, was as follows:

“N., 41 W., 9.50, S. bank of Huron river. Impossible to take the dist. across by observation on account of the grass and rushes being very high. No object could be seen. . Set post. Thence up and on the south bank of Huron river with the several courses thereof. N, 70 W., 15.50, small creek .50 wide, course N.; N., 40 W., 27.50; N., 12 W., 17.00; N., 38 W., 11.00; N., 67 W., 17.50; N., 32 W., 6.00; N., 5 E., 12.50; N, 32 W., 3.08; N, 22 W., 2.23. Intersected post Cor. Sec. 24 — 25.”

Treating the southeast corner post as being at the shore line, the above courses and distances are approximately the same as the present shore line. Vermette creek is accounted for as being in the same position in relation to the shore line fixed in the field-notes as it is in fact.

Mr. Allen, in his survey, treaded the post at the southéast corner of section 25 as being 17.20 chains west of the shore line, and then ran his meander line according to the field-notes. He did not find the creek called for by the field-notes, nor' any creek at all. He did nothing to ascertain the accuracy of the stake he found at the southeast corner of section 25. He was told that it was put there by a former surveyer, Mr. Bartlett. He testified that the variation of the compass now is nearly one-half degree west. On the government plat it was said to be 4.39 degrees east. This variation of nearly 5 degrees would make a difference of 14 chains in 2 miles. Mr. Allen also testified he had found variations in these ancient government surveys of 7, or 8 rods across a single section. The survey, as made by Mr. Allen, left Vermette creek east of the meander line, and, if his construction is to prevail, it did not in fact exist at the time the government survey was made. This is a result which is entirely untenable. We think it very clear that substantially all the lands in controversy were embraced within the line as meandered by the government surveyor, and were in section 25 as surveyed by him and as platted by the government. This has been the construction put upon the situation by the officers of the United States land department and the land department of the State. .

In County of St. Clair v. Lovingston, 23 Wall. 46, Justice Swayne said:

"It is a universal rule that course and distance yield to natural and ascertained objects. A call for a natural object — as a river, a spring, or even a marked line — will control both course and distance. ”

Practically the same language is used by Justice Champlin in Turner v. Holland, 65 Mich. 453.

In Gilman v. Riopelle, 18 Mich. 164, Justice Cooley said:

."Where definite and permanent boundaries are given, the deed must be held to convey all the land within those boundaries, notwithstanding the quantity is much greater than that mentioned. This is on the familiar principle that the incorrect portion of the description is to be rejected where that which remains is sufficient, and that definite and permanent monuments are to control distance and quantity.”

See Bruckner's Lessee v. Lawrence, 1 Doug. 29, and cases there cited; Morrow v. Whitney, 95 U. S. 551; Forsyth v. Smale, 7 Biss. 201.

In Cragin v. Powell, 128 U. S. 691, it is held that when the general land office has once made and approved a government survey of public lands, and the plats, maps, field-notes, and certificates have been filed in the proper office, and the lands are granted according to an official plat of their survey, the plat, with its notes, lines, descriptions, and land-marks, becomes as much a part of the grant, and, so far as limits are concerned, controls as much, as if such descriptive features were written in the deed or grant. In Russell v. Maxwell Land-Grant Co., 158 U. S. 253, it is held a survey made by .the proper officers of the United States, and confirmed by the land department, is not open to challenge by any collateral attack in the courts. In Diehl v. Zanger, 39 Mich. 605, Justice Cooley said:

“Nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and, if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed, the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity.”

See Flynn v. Glenny, 51 Mich. 580; Beaubien v. Kellogg, 69 Mich. 333; Carpenter v. Monks, 81 Mich. 103.

Applying, these principles of law to this case, we think it entirely clear the court helow was right in holding the complainants were owners in fee of these lands, and that defendants were trespassers. This makes it unnecessary to discuss the other 'questions argued by the solicitors.

The decree is affirmed, with costs.

Grant, C. J., Montgomery and Long, JJ., concurred. Hooker, J., did not sit.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    MOORE v. SAGINAW, TUSCOLA & HURON RAILROAD CO.
    1. Carriers — Injury to Passenger — Jolting Car — Negligence.
    Evidence that plaintiff was invited by a carrier to enter a passenger car standing, with other cars in front of it, upon the track, detached from the engine and other cars, which were engaged in switching, and that, before he had time to seat himself, the car was struck in front with very great force, causing him to be thrown and injured, is sufficient to warrant the jury in inferring that cars were negligently backed against the one plaintiff had entered.
    2. Same — Contributory Negligence — Entering Detached Car.
    A passenger is not guilty of contributory negligence per se in not looking to see whether other cars are being backed towards a detached car which the carrier has invited him to enter.
    3. Same — Selecting Seat.
    On entering, on invitation of the carrier, a car from which the engine is detached, the passenger has a right to select any seat he chooses, and may presume that he will have time to do so before the engine is backed against the car in such a manner as to endanger him unless he is sitting, down.
    Error to Tuscola; Beach, J.
    Submitted January 6, 1899.
    Decided April 4, 1899.
    Case by James H. Moore against the Saginaw, Tuscola & Huron Railroad Company for personal injuries. From a judgment for plaintiff, defendant Brings error.
    Affirmed.

      L. T. Durand, for appellant.
    Sparling, Daw & Moore (H. W. Stevens, of counsel), for appellee.
   Grant, C. J.

This case was once before in this ‘court, and reversed. 115 Mich. 103. The evidence is substantially the same as upon the former trial.

1. That opinion very fully stated the law governing the case. The court, in its instructions to the jury, followed that opinion, and fairly submitted the case to the jury, who again rendered a verdict for the plaintiff. The principal point now urged against the judgment is that there was no evidence of negligence, because the record fails to show how the force was communicated to the passenger car in which the plaintiff was about to take his seat, or what that force was. The passenger car, with others in front of it, stood upon the main track, while the engine and the other cars were detached. Plaintiff was invited to leave the station, walk down the track, and enter it. The passengers were evidently given to understand that the train would soon leave. At that time the engine and other cars were separated from these, and the train hands were engaged in switching cars near the station. The rule that negligence cannot be inferred from the mere fact that an accident has happened does nót apply to this case. According to the testimony of the plaintiff and his witnesses, some force struck the cars in front, which caused the accident. It is a fair inference from the surrounding circumstances that the shock was caused by backing or in some manner running the cars in front against these, and that this was the work of the defendant. The, severity of the shock was evidence to justify the conclusion that this was negligently done. We think the inference was one to be drawn by the jury, and not by the court.

2. It is again urged as a matter of law that the plaintiff was guilty of contributory negligence. This matter was fully discussed before, and the record does not present a different state of facts. Plaintiff was invited upon the train. It cannot be held that he was guilty of negligence per se in not looking to see whether the other cars were backing when he was invited to enter the car, or that he was guilty of negligence per se in not taking the first seat. Others were behind him, and it is difficult to understand why he had not the right to select any seat in the car he chose. When passengers are invited to enter a car, they have the right to assume that they will have time to enter and take seats before other cars are backed against it in such a manner as to endanger them while doing so.

There are other assignments of error, but we do not find in them any prejudicial error.

The judgment is affirmed.

Montgomery, Moore, and Long, JJ., concurred. Hooker, J., did not sit.


text:
    AUSTIN v. HYNDMAN.
    1. Wills — Construction—Life Estate.
    A will devising to a wife, “during her natural life, * * * the possession, exclusive use, control, and management ” of specified land, creates in her a life estate.
    3. Libel — Candidates for Office — Malice.
    Malice is implied from the publication of a libel, though the person libeled was a candidate for a public office.
    3. Same — Publication of Untruths — Privilege.
    The right publicly to criticise the character of a candidate for office in no way warrants the publishing of untruths concerning him.
    4. Same — Absence of Malice — Rule of Damages.
    The rule permitting plaintiff in an action of libel, where it is shown that defendant acted in good faith, having good cause to believe in the truth of his statements, to recover only the minimum of damages, does not mean, necessarily, nominal
      damages, but, rather, such damages as have actually resulted from the publication, regardless of malice.
    Error to Jackson; Peck, J.
    Submitted January 25, 1899.
    Decided April 4, 1899.
    Case by Addison J. Austin against Duncan Hyndman for libel. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    This is an action of libel, in which the plaintiff recovered a verdict and judgment of $175 for damages to the feelings of the plaintiff. Plaintiff was a supervisor, and a candidate for re-election at the time of the publication of the alleged libel. The publication was as follows:
    “SAD CASE IN NORVELL.
    “And Some Queer Practices by a Sworn Official.
    “There lives in the village of Norvell, in this county, an estimable lady, Mrs. Eliza Sweezey, who is 87 years old. She is the widow of William Sweezey, who died in 1887, leaving an estate valued at nearly $35,000. The widow was entitled by law to about $8,000, but was induced to accept about $3,000, and the use, free, during her life, of the house she lives in. Being very frail as well as aged, she has for five dr six years been unable to leave her bed, only as she was helped, and has to be helped and turned and fed and waited upon continually night and day, and must have two .attendants, for one could not possibly do it. All previous supervisors, knowing the situation, either remitted her tax or made it nominal, as the law permits, and, of course, assessed the house and lot to the estate of William Sweezey, to whom it belongs; and the estate paid the tax, except in 1888, when the executor of said estate, one Stephen W. Holmes, had some money paid to him for the said aged lady, and kept enough to pay the tax on said lot, and would not give it up when demanded, and never has. This executor has never failed to urge every supervisor to assess said lots to the poor, infirm old lady, who has now but very little left of the pittance she accepted from that estate. But now comes a supervisor in 1896, as he was also in 1895, named A. J. Austin, who, as all supervisors are, was sworn to do his duty according to law, which says, and no question about it, that the supervisor ‘ shall assess to the owner if known,’ etc. This sworn officer knew the owner, for he assessed the same property to the estate of William Sweezey in 1895. Yet in 1896 he assessed it to the poor, old, and totally dependent widow, and not at all to the said estate and owner. It can be proven that the reason he gave for doing this — and we have the affidavits which do prove it — was to please Stephen W. Holmes, said executor.
    “A further reason he gave was that it could not do any harm, because the tax on said land could be returned if not paid; and yet they could sell the poor old lady’s goods for the tax, if they could find anything. This same person is up for re-election, and is now trying to hedge by parading a letter, purporting to be from our probate judge, as a decision in this particular case. We all admire the upright 'and courteous Judge Hammond, and we have good reason to; so when the judge states, within 10 days back, that he never heard of Mrs. Sweezey, or of the estate of William Sweezey, as that estate has never been before him, nor brought to his notice, being closed before his term, we know it to be true. He admits that he may have given his opinion upon some question of law in some such general class Of cases, as he frequently does as a lawyer, but’has rendered no decision in this particular case at all, either as judge or otherwise.”
    The innuendo alleges that by this publication it was meant'that plaintiff,—
    “Having been sworn to do his duty as supervisor according to law, and knowing that the law required him to assess the taxes against the estate of William Sweezey, nevertheless willfully, corruptly, and in violation of his oath as such supervisor, and contrary to the statute in such case made and provided, assessed the said taxes against the said Eliza Sweezey.”
    The article contained, also, the following:
    “ Ye taxpayers of Norvell, this tax has been returned, and who must make up for this nonresident tax, if it is unpaid ? What guaranty have ye that the favors in the above line ended with this case of accommodation to the above executor ? You surely have men among you who are above such practices.”

      The innuendo as to this last paragraph alleges that plaintiff, as such supervisor,—
    ‘Had been guilty of irregular and illegal conduct in making his assessments as such supervisor, and that he had been paid and accepted bribes therefor.”
    With his plea of the general issue, the defendant gave notice that he would prove the truth of the allegations in the alleged libel complained of.

      Geo. S. Wilson and T. E. Barkworth, for appellant.

      Blair, Smith & Townsend, for appellee.
   Grant, C. J.

(after stating the facts). 1. The court instructed the jury that Mrs. Sweezey was the owner of the life estate, that it was her duty to pay the taxes, that the land was properly assessed to her, and that the publication overstepped the bounds of privilege which the occasion gives, in that it charged the plaintiff with having unlawfully, knowingly, and with an improper or corrupt motive, made the assessment of the property to her, instead of to the estate of William Sweezey. The duty of the owner of the life estate to pay the taxes is conceded. • The learned counsel for the defendant claim that, under the will, Mrs. Sweezey was not the owner of the life estate. The language of the will is as follows:

‘ ‘ I give and bequeath to my beloved wife, Eliza, if she survives me, $1,500; and I also direct that my said wife, during her natural life, shall have the possession of, and the exclusive use and control and management of, the following real estate [describing it], and all of the household goods, all of which she may receive in lieu of her right of dower, should'she so elect.”

By this language she was given the exclusive use and control of the property during her life. It clearly created a life estate, and the instruction was correct.

2. It is next urged that the court erred in its instruction upon the subject of malice. The instruction complained of is as follows:

“In considering the question of damages, gentlemen, it is necessary, to enable you to- make an intelligent disposition of it, to understand what is meant by the term ‘malice,’ which you have heard used so frequently in the course of the trial. The word ‘ malice,’ when used in relation to the action of libel, means no more than ‘willfulness.’ A willful injury without just reason is properly called ‘ malicious.’ Malice is said to be express or implied. So far as any explanation of that distinction is necessea-y for our purposes here, I instruct you that implied malice is the kind of malice which the law presumes actuated the defendant, Dr. Hyndman, in publishing the libel in question ; it is what the law assumes influenced him in making the publication; while express malice is such further or additional or actual malevolent design or purpose as may have been entertained by the doctor in making the publication in question. I instruct you, gentlemen, without any further evidence, that the mere fact of the publication itself — -those parts of the publication which have not been justified, and which I have instructed you are libelous— should be considered by you as a voluntary act by the doctor, and to have proceeded from a malicious motive. The willful publication by Dr. Hyndman of this libelous statement necessarily involved a design on his part to produce such injury upon the plaintiff as is a necessary consequence of the libel, and the doctor would be liable, without other proof than the publication itself, for all the necessary damages which resulted to the plaintiff from the publication of all those parts of the publication which have not been proven to be true.”

The argument against the instruction is that it does not make the distinction between that malice which is actual willfulness and that which in law makes the words actionable ; or, as counsel, state it, ‘ ‘ in other words, the case is tried precisely the same as if no privileged occasion existed.” The court had previously instructed the jury that the occasion was privileged, but that the publication, if untrue, was not. We think the distinction sought to be made is rather technical. If the charge made was untrue? it was libelous per se, and defendant w<as liable for all the necessary damages resulting. The rules governing criticisms upon the character of candidates for office have been frequently discussed by this court, and are familiar to the profession. Bailey v. Kalamazoo Publishing Co., 40 Mich. 257; Belknap v. Ball, 83 Mich. 583 (11 L. R. A. 72, 21 Am. St. Rep. 622); Dunneback v. Tribune Printing Co., 108 Mich. 75. One who attacks the character of a candidate for office must be as careful to ascertain the truth of the facts charged as in any other case of libel. The damage resulting from false charges would be more injurious to the candidate for public office than if made against the private individual. The court carefully guarded the rights of the defendant, in instructing the jury what facts they should consider as bearing upon the question of malice. We find no error in this instruction.

3. Counsel for defendant requested the court to instruct the jury:

“ (1) Damages in this case are reduced to the minimum if the libel results from an honest mistake, made in an honest endeavor to enlighten the public.
“ (2) If the jury find that the defendant acted in good faith and with proper precaution, and had good reason to believe that the statements were true, they should award nominal damages merely, if any.”

The second request does not accurately state the law. The word “minimum,” used in some of the decisions under similar circumstances, does not mean nominal damages. It means the minimum of damages which the plaintiff has sustained. In such case there could be no damages allowed for malice. Where the charge is untrue, the defendant is liable for the actual damages which result, regardless of malice. McGuire v. Vaughan, 106 Mich. 280, 287. We think it extremely doubtful if the first request is applicable to the facts in this case; but, however this may be, the court, at the request of defendant, instructed the jury that plaintiff could recover no special damages, and that if they found that defendant was acting upon the advice of the prosecuting attorney as to the law in the case, and that he believed that this advice was correct, they should consider that fact in determining the extent of tbe defendant’s good faith or malice in making the publication. The small verdict shows that the jury-must have taken these things into consideration; for, if any substantial damage was suffered on account of injured feelings, it is difficult to see, under this record, how the verdict could have heen less.

Judgment affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    GRAVES v. KENNEDY.
    1. Sale op Insurance Business — Value op Renewals — Misrepresentations — Custom.
    One who is induced to purchase a half interest in an insurance business on a representation that the commissions for one renewal on the business in force at the date of the con-' tract amount to a specified sum is entitled to damages where the commissions, excluding policy fees, are less than such amount, unless a custom to treat the policy fee as part of the commissions is shown to exist.
    2. Same — Expert Testimony.
    Insurance men having a general knowledge, though no particular knowledge, of an insurance business which was sold under a guaranty that the renewals amounted to a specified sum, are competent to testify to what extent the value of the business is affected by the fact that the renewals are substantially less than the sum guaranteed.
    3. Same — Agreement not to Re-engage in Business — Breaoh.
    An insurance agent’s agreement, on sale of his agency, not to re-engage in the insurance business except as a broker in the purchaser’s employ, is violated by his handling as a broker the insurance of an estate of which he is executor, placing it with others than the purchaser.
    Error to Jackson; Peck, J.
    Submitted January 25, 1899.
    Decided April 4, 1899.

      Assumpsit by Ora J. Graves against George W. Kennedy for the breach of a contract of sale. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Blair, Smith & Townsend, for appellant.

      Wilson & Cobb, for appellee.
   Montgomery, J.

The defendant, Kennedy, had, prior to May 30, 1891, been for many years engaged in the insurance business at Jackson as agent for a number of insurance compánies. . At the date named he entered into a written agreement with the plaintiff, by the terms of which the plaintiff became the purchaser of a one-half interest in the business and office furniture, the two parties agreeing to continue the business for one year as copartners, with the further provision that, at the end of the year, plaintiff should purchase the remaining interest of defendant for the additional sum of $1,000. This arrangement was carried out; The contract contained the following provisions :

“In consideration of the fulfillment of the stipulations and agreements herein mentioned to be performed by the party of the second part, the party of the first part hereby expressly agrees that he will never again enter into or be engaged as an agent for any insurance company with an interest in renewals in said county of Jackson, except as a broker in the employment of said second party; and said second party hereby expressly agrees to pay said first party the customary price for soliciting business, viz., one full commission of 15 per cent, and policy fee, when obtainable, with no interest in renewals in any way after full and complete sale of said business, as herein agreed and provided.”
“Party of the first part hereby represents and guarantees to said second party that the commissions upon all the business now in force in and of the companies which he now represents, for one renewal of the saíne, amount to the sum of $2,850.”

This suit was brought to recover damages for the breach of these undertakings, and on a trial before a jury plaintiff recovered a verdict of $1,450.30, and defendant brings error.

The case involved two distinct claims by the plaintiff, —the first, that the commissions for one renewal on the business in force at the date of the contract did not amount to $2,850; the second, that the defendant had violated his agreement not to again engage in business. Upon the first' branch of the case the circuit judge permitted the defendant to offer testimony tending to show that a local custom prevailed of considering policy fees a part of the commissions, and that the commissions,'including policy fees, amounted to a trifle more than $2,850. The evidence clearly shows that the commissions, excluding policy fees, were less than $2,850. The circuit judge left it for the jury to determine whether a custom to treat the policy fee as a part of the commissions was shown, and charged that, if it was not, the plaintiff was entitled to recover on this branch of the case, as damages, the difference between the value of the business as it was shown to have been in fact and the value which it would have had if it had been as guaranteed. These instructions were sufficiently favorable to defendant.

It is, however, insisted that error was committed in receiving certain testimony offered to show the difference between the value of the business as represented and as it turned out to be. The testimony was of this character: Witnesses were called, who had been or were engaged in the insurance business, and had some general knowledge, but not a particular knowledge, of the business- in question ; that is, none of them had been through the books to know the character of the risks, — whether mainly dwelling houses or commercial risks; but their testimony was to the effect that the value of an insurance business depends largely upon the value of the live business; i. e., ' business which was likely to be renewed. We think it' was competent to take the opinion of these witnesses upon the question of how the value of this business was affected by the fact that tfie renewal premiums were substantially less than guaranteed by the defendant. The knowledge which they showed extends to this subject at least. It is difficult to see how the value could be otherwise shown. The cases cited by defendant’s counsel are unlike the present. If is true, as contended, that, before the testimony of a witness is receivable, it must' appear that the witness has a knowledge of the subject which the jury do not possess, which enables him to give an opinion whibh will be of aid to the jury. Judged by this test, the testimony was admissible. The witnesses were familiar with the insurance business. They had a knowledge of what makes such a business valuable. The other testimony in the case showed the amount of commissions on l’enewal, and, aided by this fact, stated hypothetically, the witnesses were able to show how the fact that the' renewals were less than the guaranteed amount affected the business.

Upon the other branch of the case, the court left it to the jury to find whether the defendant had violated the terms of his contract wherein he agreed that he would not again be engaged as an agent for any insurance company with an interest in renewals in Jackson county, except as a broker in plaintiff’s employ. There was, we think, some evidence tending to support plaintiff’s claim as to this branch of the case also.

It is contended that the court was in error in permitting the jury to consider the business which the defendant did for the Hibbard estate, of which he was executor. The court instructed the jury as follows:

“Some controversy has arisen in the case with reference to more or less of Mr. * Kennedy’s own private business and his business as an executor of the estate of the late Daniel B. Hibbard. I instruct you, gentlemen, that the contract .only prohibited him from placing or handling insurance that he did as a broker. Now, whether he did the business that he controlled as executor as a broker or otherwise would determine whether or not the plaintiff here, Mr. Graves, could complain of it under this provision in the contract. ■ If he did not handle it as a broker, then whatever he did with it would not violate these provisions of the contract. If, although he was an executor, he handled the business as a broker, and was able to give it any direction, or place it with any agency that he chose, and, acting as such a broker, did give it to other agencies than the plaintiff, that would be a violation of the contract. If he did not, and was not so situated, and as to all business that he did nob treat in that way, and was not able, by reason of his relation, to treat in that way, whatever he did with it, it could not be said that he violated this part of his contract in handling it.”

While we agree with counsel for the defendant that the executor may not properly represent both the insurance company and the estate, the question, as affecting this case, is what he did do in this regard. And the instruction, we think, correctly states the rule which should be held applicable to the state of facts shown.

Some complaint is made of the language employed by plaintiff’s counsel towards the defendant. In considering the language in the connection in which it was used, and in view of the caution of the court to the jury, we do not think the case should be reversed on this ground.

The other questions presented do not call for extended discussion. The judgment is affirmed.

The other Justices concurred.

       The following are the Michigan cases cited: Dyer v. Rosenthal, 45 Mich. 590; Quest v. Insurance Co., 66 Mich. 100; Williams v. Williams, 82 Mich. 449; Showman v. Lee, 86 Mich. 566.


author: Hooker, J.

text:
    NOEKER v. HOWRY.
    1. Mortgages — Foreclosure—Purchase by Junior Mortgagee —Application of Proceeds.
    A national bank and two other banks agreed, as second mortgagees, to pay interest upon the prior mortgage, and the taxes, and to bid in the land when sold under that mortgage, sharing the expense pro rata. The national bank, after paying certain moneys under the agreement, became insolvent, and the receiver refused to join in further payments of taxes or interest, but agreed subsequently, subject to the approval of the comptroller of the currency, to share in the purchase at foreclosure. The comptroller refusing his permission, the receiver sought to recover back from the other banks, which were preparing to bid in the property without his assistance, the sums previously advanced by the insolvent bank. Held, that he was entitled to have such sums repaid, if the sale should produce more than enough to pay the first mortgage and attend. ant costs, before any of the surplus should be applied upon the second mortgage.
    2. Same — Taxes—Priority of Liens.
    A junior mortgagee has a lien superior to a senior mortgage for taxes paid by him to protect his mortgage.
    3: Same — Bill oe Review.
    The comptroller of the currency refused to permit the receiver of an insolvent national bank to carry out an agreement made by him with two other banks to join in the purchase of land to be sold under first mortgage, upon which land the three banks held a second mortgage. Upon being advised of the comptroller’s refusal, the receiver sought to reopen the decree of foreclosure for the purpose of having moneys paid by the bank for taxes declared a first lien upon the land. Held, that the necessity of asserting the right having arisen after the decree, the receiver should, under the circumstances of the case, be permitted to file a supplemental bill in the nature of a bill of review to test his claim.
    Appeal from Wayne; Grove, J., presiding.
    Submitted January 26, 1899.
    Decided April 4, 1899.

      Bill by Joseph and Mary Noeker against H. Kirke Howry and others to foreclose a mortgage. Thomas A. E. Weadock, receiver of the First National Bank of East Saginaw, petitioned for a review of the decree of foreclosure, and from a denial of the petition he appeals.
    Be-versed.

      T. A. JS. & J. C. Weadock, for petitioner.-

      Walker & Spalding, for defendants.
   Hooker, J.

H. Kirke Howry made his mortgage to Joseph and Mary Noeker. It contained the usual tax clause. He afterwards deeded the premises to Brewer, who in turn made a mortgage to Goodwillie, trustee for the First National Bank of East Saginaw, the State Savings Bank of Detroit, and the Saginaw County Savings Bank, to secure several claims held by them. The mortgage to the Noekers was foreclosed, decree being filed March 35, 1898. Previous to'the foreclosure, the three banks had agreed among themselves that they would pay interest and taxes upon the land, and, if the first mortgage should be foreclosed, they would bid the premises in at the amount necessary to purchase the interest of the first mortgagees, and pay, pro rata, the expense incident thereto. Accordingly, the First National Bank had paid $473.18, $139.75 of which was for taxes, and the remainder for interest upon the first mortgage. On November 30, 1896, the First National Bank went into the hands of a receiver, who refused to join in the further payment of taxes or interest on the property. On March 35, 1898, it was agreed by the receiver on behalf of the First National Bank, and the other two banks, that they would, if necessary, purchase the premises at foreclosure sale, and that each should pay its proportionate share therefor; said agreement on the part of the receiver being subject to the approval of the comptroller of the currency. Such approval was refused. This was communicated to the officers of the other banks, and they decided to bid the property in without the assistance of the receiver. The receiver has since requested of each of said banks the repayment of the sum advanced by the First National Bank, and each has refused. Thereupon said receiver has filed his petition praying for a review of the decree of foreclosure, and that the sum paid by said First National Bank may be decreed to be a first lien upon the property, to be paid out of the proceeds of the sale thereof. Affidavits, were filed upon behalf of the other banks, admitting the truth of the allegations of the petition, and expressing a willingness to permit the petitioner to join with them in the,purchase of the property as agreed, but denying his right to reimbursement in case he refuses to do so. The circuit court denied the prayer of the petition, and the receiver has appealed.

The agreement, as originally made, was, in substance, that the three parties in interest under the trust mortgage should protect the property by payment of taxes and interest, which they had a right to do; and it is not unreasonable to say that the arrangement contemplated reimbursement from the proceeds of the sale, should there be a surplus above the amount necessary to pay the first mortgage and attendant expenses. While not expressly so agreed, because under the arrangement to purchase and pay pro rata it could make no substantial difference whether or not the application was made specifically to such payments before anything was paid upon the respective claims of the cestuis que trustent, it is plain that, had one of them, by his own volition, seen fit to protect the trust mortgage, it would be inequitable to make pro rata application of the surplus over the first mortgage claim to the several debts until the one who protected the mortgage should be reimbursed. We think that, if the sale shall produce sufficient to more than pay the first mortgage and attendant costs and expenses, the surplus should be applied to the payment of the sums advanced for the protection of the second mortgage, before anything is paid upon that mortgage. If, however, there shall be no such surplus, the receiver would be remediless, so far as the payments of interest are concerned; for, having refused to join in the purchase of the property, he cannot participate in any profits that the other banks, or either of them, may realize from the property, should it be purchased by them.

The taxes were a claim paramount to both mortgages. They are by law made a lien upon the land, and either mortgagee might protect his mortgage by paying them, and by doing so would succeed to the lien upon .the land, which would take precedence over both mortgages. The authorities are harmonious that taxes so paid constitute a lien against the owner, and it appears equitable that a junior mortgagee who pays them should be reimbursed from the property before it is applied to the payment of an earlier mortgage. The payment ought not to be treated as a voluntary payment, in any technical sense; and, as it inured to the benefit of the first mortgagee, equity requires that his security should be postponed to its repayment from the property. The case of Fiacre v. Chapman, 33 N. J. Eq. 463, is in point.

The ground upon which the application is said to he based is that new matter has arisen since the decree, viz., that petitioner finds that the comptroller will not permit him to join in the purchase of the property. He has neglected to assert his tax lien in the foreclosure case because he had expected to participate in the purchase of the property, in which case it would have been immaterial whether it was made a first or second lien; but, upon finding that he could not secure it by purchase, it became important to have it adjudged a first lien in the foreclosure decree. In short, the right to the relief has not arisen since the decree, but the necessity of asserting that right has, and, under the circumstances, we think it was within the discretion of the circuit court to permit the petitioner to intervene by filing a supplemental bill in the nature of a bill of review, and testing his claim.

The order of the circuit court is reversed, and the prayer of the petition is granted, with costs of this court.

The other Justices concurred.


author: Per Curiam.

text:
    GIFF v. HOWRY.
    Mortgages — Foreclosure—Bill of Review.
    Case ruled by Noelcer v. Howry, ante, 636.
    Appeal from Wayne; Grove, J., presiding.
    Submitted January 26, 1899.
    Decided April 4, 1899.
    Bill by Richard Gift against H. Kirke Howry and others to foreclose a mortgage. Thomas A. E. Weadock, receiver of the First National Bank of East Saginaw, petitioned for a review of the decree of foreclosure, and from a denial of the petition he appeals.
    Reversed.

      T. A. E. & J. C. Weadock, for petitioner.

      Walker & Spalding, for defendants.
   Per Curiam.

This case is ruled by that of Noeker v. Howry, ante, 626.


author: Moore, J.

text:
    FRANK v. BROWN.
    Replevin — Judgment por Value — Failure to Return Writ. Where plaintiff in replevin in justice’s court fails to appear on the return day, and the officer refuses to make a return of the writ, defendant may show the delivery of the goods to plaintiff, and their value, and, if he so elects, may take judgment for the value, under 2 How. Stat. §§ 8346, 8347, instead of for a return of the goods.
    Error to St. Clair; Vance, J.
    Submitted January 26, 1899.
    Decided April 4, 1899.
    Replevin by Nellie Frank against Delemere Brown. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      John B. McIlwain and Frank Whipple, for appellant.

      Harvey Tappan and Avery Bros. & Walsh, for appellee.
   Moore, J.

The plaintiff commenced a suit by replevin in justice’s court. Such proceedings were had therein that judgment was rendered iu favor of the defendant for the value of the property replevied. The plaintiff removed the case to the circuit court by writ of certiorari. The judgment in the justice’s court was affirmed. The case is brought here by the plaintiff.

The two grounds of error discussed in plaintiff’s brief are:

First. The justice had no jurisdiction to render a judgment in said cause until the officer made a return.
Second. The justice had no jurisdiction to render a judgment for value until there was a return showing that the property had been delivered to plaintiff.

The justice made two returns to the writ of certiorari. It was thought that they were inconsistent with each other. By consent of counsel for both parties, made in open court, the justice was subpoenaed to appear in court with his docket and files, including his minutes taken at the trial, to be examined in open court, and his testimony to be treated as a part of his return. The record, including the examination of the justice as to what was done on the return day of the writ, is not as clear as could be wished. It does appear, however, that plaintiff filed an affidavit and bond, and that a writ of replevin was issued, returnable May 3d, at 10 a. m., which writ was delivered to a deputy sheriff. May 3d, at 11 a. m., the case was called. No return was made by the officer, he refusing to make a return, and there was no appearance by plaintiff. The defendant appeared, and asked to have writ quashed, for the reason that, after waiting one hour after the time fixed for the return of the writ, the plaintiff had not appeared, and because there was no return by the officer of the writ. The court refused to quash the writ, but, upon his own motion, held the court open until 1 o’clock, at which time the plaintiff appeared by her attorney. The court then dismissed the proceeding, and entered a judgment of non-suit. The defendant waived a return of the property. Proof was given that it had been delivered to plaintiff^ and of its value, and judgment was rendered in favor of defendant.

In Harbour v. Eldred, 107 Mich. 95, it was held, in a replevin case, that the justice cannot, upon his own motion, adjourn a case, without the return of the writ, to enable the plaintiff to secure its return. Tt is insisted by the plaintiff that the court has no jurisdiction to render a judgment until the return is made; and she cites some authorities. The authorities cited are to the effect' that the justice cannot render a judgment in favor of the plaintiff until the writ is returned, showing a valid service, unless the defendant has appeared voluntarily; and that is undoubtedly the law. This case, however, is unlike those. The issue in a replevin case is, Who is entitled to the possession of the property ? When this suit was commenced, the property was in the possession of the defendant, and, whether he was the owner or not, he might maintain the possession against a trespasser. By means of a proceeding instituted by plaintiff, the property is taken from the possession of defendant. If that proceeding fails, the defendant has a right to have the property returned, or he may assert the right given him under the statute (2 How. Stat. §§ 8346, 8347), — to waive its return, and have a judgment for its value.

It is said that, unless the return of the officer shows he took the property and delivered it to the plaintiff, there can be no waiver, and no judgment for damages. That is not the language of the statute, and is not the construction which has been given to it. In Johnson v. Dick, 69 Mich. 108, the property was seized, but there was no proper service upon defendant, and for that reason the case was dismissed. It was held that the defendant might waive a return, and have his damages assessed. See cases there cited; also, Soper v. Hawkins, 56 Mich. 527; Humphrey v. Bayn, 45 Mich. 565; McCabe v. Loonsfoot, ante, 323.

Judgment is affirmed.

The other Justices concurred.


text:
    SCHOLTZ v. SMITH.
    1. Drain Taxes — Duty op Supervisor.
    The board of supervisors having ordered a drain tax to be spread upon the assessment roll of a township, it is not within the province of the supervisor of such township to refuse compliance because, in his judgment, the drain proceedings were irregular.
    3. Same — Certiorari to Cirouit Court — Return.
    In certiorari to review a mandamus issued out of the circuit court to compel a supervisor to spread upon his roll a certain drain tax, as directed by the board of supervisors, the circuit judge’s return that the answer below raised no question as to the board’s having made the order, and that the fact appeared from the proceedings of the board furnished at the hearing, is conclusive that the tax was ordered spread.

      Certiorari to Gratiot; Daboll, J.
    Submitted February 9, 1899.
    Decided April 4, 1899.

      Mandamus by Charles A. Scholtz, drain commissioner of Gratiot county, to compel Gordis Smith, supervisor of Pine River township, to spread a drain tax upon the assessment roll of said township. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      J. Lee Potts, for relator.

      Newell Leonard, for respondent.
   Hooker, J.

The relator is drain commissioner of the county of Gratiot, and the respondent is supervisor of the township of Pine River, in said county. In 1898 the former attempted to lay out and construct a drain, called “Drain No. 104,” and to procure the assessment of the cost thereof, as required by law, upon the township, and owners of lands benefited thereby. The board of supervisors ordered the assessment spread upon the roll, but the respondent refused to do so, attempting to justify his action by an order of the township board directing him not to spread it. The relator applied to the- circuit court for a mandamus to compel it, which resulted in an order directing a peremptory writ to issue, and the respondent has brought the proceeding to this court by certiorari.

The brief of counsel for the respondent attacks the proceedings of the drain commissioner upon many grounds, and apparently seeks to justify the respondent in his disobedience of the order ,of the board of supervisors to spread the tax by showing that the drain proceedings were irregular. Among the reasons given for the sunervisor’s refusal are:

1. The order of the township board.
3. Because he had been informed that the right of way had not been lawfully secured. •

As reasons why the order of the circuit court should be reversed, he adds to the above the following:

3. That the petition for mandamus does not affirmatively allege that the relator had obtained the right of way; that it does not show any legal authority for the apportionment of the tax.
4. That the drain cannot be completed by October 1, 1898, and therefore the tax should not be added to the current roll.
5. That the relator falsely stated that the estimated cost of the drain was $3,400, and that the roll, as corrected by the striking off 'of the assessment of two persons, will produce but $3,148.40.

These are the principal claims mads in the answer.

We have held that the supervisor is not vested with the authority to sit in judgment upon the action of the board of supervisors. When, in the exercise of their lawful authority, they order a tax to be spread, it is his duty to spread it, and not block the regular course of the public business by refusal because he may think that the board should have decided differently. Nor is it a part of the official duty of the supervisor to sit in judgment upon drain proceedings, which are within the jurisdiction of another officer. If his ideas of the sufficiency of petitions' and other papers in drain proceedings, and the rumors that come to his ears about irregularities, and his notion of the time that taxes should be laid with reference to the completion of the drain, are to be held sufficient to jhstify a refusal to spread a tax which the duly-constituted authorities have ordered spread, the public business in connection with drains will be seriously embarrassed as soon as the fact becomes generally known. This question was before the court in the case of Laubach v. O'Meara, 107 Mich. 29, and we think the rule there laid down is applicable here. As a rule, it is safe for a public officer to obey the commands of the law, and perform the duties imposed upon him, without attempting to find an excuse for refusing in irregularities in the proceedings of others, with which he has nothing to do.

It is urged that the cases of Nugent v. Erb, 90 Mich. 278, and Board of Supervisors of Cheboygan Co. v. Township of Mentor, 94 Mich. 386, justify respondent’s conduct. The prevailing opinion in the latter case admits that circumstances must be extraordinary which will justify a refusal by an officer to perform a statutory duty, and the refusal to grant the writ in that case may be ascribed to the exercise of a lawful discretion. See Laubach v. O'Meara, 107 Mich. 32.

It is said that the board of supervisors did not order the taxes spread. The circuit judge’s return shows that the answer raised no such question, and that the proceedings of the board furnished upon the hearing show that the order included the assessment for this drain. We must take this as conclusive.

The order of the circuit judge is affirmed, with costs against the respondent.

The other Justices concurred.


text:
    PEOPLE, ex rel. ATTORNEY GENERAL, v. VILLAGE OF HOLLY.
    Municipal Corporations — Incidental Powers — Incendiaries— Reward por Apprehension.
    An incorporated village, authorized to provide for the preservation of public property, and to adopt ordinances and make other regulations for the safety and general welfare of the inhabitants, has power to offer a reward for the conviction of persons who have set Are to buildings within its limits.
    Appeal from Oakland; Smith, J.
    Submitted February 9, 1899.
    Decided April 4, 1899.
    Bill by the people of the State of Michigan, on the relation of Fred A. Maynard, attorney general, against the village of Holly, to restrain the payment of a reward offered, for the apprehension of an incendiary. From the decree rendered, complainant appeals.
    Affirmed.

      Davis & Bromley and Sam J. Patterson, for complainant.

      Charles F. Collier (Spaulding, Norton & Dooling, of counsel), for defendant.
   Hooker, J.

The village of Holly offered a reward for testimony that should secure the conviction of the persons who had set fire to certain buildings within its limits, and work was done upon the case by Sargeant and Green, and a deputy sheriff named Botsford. The reward seems to have been earned, and the council passed a resolution that unless, within 10 days, the parties claiming the reward should agree to arbitrate the question of who was entitled to it, the village attorney should cause a bill of interpleader to be filed against them. Nothing was done, however, under this resolution, and some time afterwards the attorney general filed the bill in this cause to restrain the payment of the reward to the persons named, or any of them. Such persons were not made parties to the suit. A decree was made restraining payment until a judgment should be obtained against the village. The complainant has appealed, and claims that the decree should have allowed a perpetual and unqualified injunction against the payment of the money. As the village has not appealed, we must assume that it is satisfied with the decree, and the only question before us is whether the complainant was entitled to a broader decree.

Holly was incorporated under the general law for the incorporation of villages, which authorizes it to provide for the preservation of public property, and to adopt ordinances and make other regulations for the safety and general welfare of the inhabitants, not inconsistent with the general laws of the State.

The authorities are not harmonious upon the subject of rewards. The Massachusetts courts seem to recognize the existence of an implied power to offer rewards for the apprehension of incendiaries who have destroyed property within the city, from what is called the “general welfare clause.” Freeman v. City of Boston, 5 Metc. (Mass.) 56; Loring v. City of Boston, 7 Metc. (Mass.) 411; Mead v. City of Boston, 3 Cush. 404; Crawshaw v. Roxbury, 7 Gray, 374; Brown v. Bradlee, 156 Mass. 28 (15 L. R. A. 509, 32 Am. St. Rep. 430), In New Hampshire the authority is expressly conferred. See Janvrin v. Town of Exeter, 48 N. H. 83 (2 Am. Rep. 185). In Pennsylvania, municipalities have the authority to offer rewards in such emergencies. Shaub v. City of Lancaster, 156 Pa. St. 366 (21 L. R. A. 691); Borough of York v. Forscht, 23 Pa. St. 391. 2 Bac. Abr. 147, supports the doctrine that the power to prevent fires is incidental to all municipalities; while Mr. Dillon says:

“The governing body of a municipal corporation (which has express power to protect the property and promote the welfare of its inhabitants) may, it has been held, offer a reward for the detection of offenders against the general safety of its people, as, for instance, those guilty of the crime of arson within its corporate limits. The contrary doctrine has also been held.” 1 Dill. Mun. Corp. (4th Ed.) § 139.

The California supreme court is said to uphold the power, but we are unable to verify it from the citation given. Some of the States deny it. The latest case seems that of City of Winchester v. Redmond, 93 Va. 711 (57 Am. St. Rep. 822), where authorities supporting it are' collected. Of these some apply to other offenses, the commission of which affects the inhabitants of the city only in common with those of the State outside of the city. Thus, in Baker v. City of Washington, 7 D. C. 134, it was held that the defendant had no authority to offer a reward for the capture of the slayer of President Lincoln. A similar case, involving a reward for murder, is that of Gale v. Inhabitants of South Berwick, 51 Me. 174. Patton v. Stephens, 14 Bush, 324, applied the same rule to a reward offered for. the apprehension of one who, through forgery, had embezzled the city funds. The case of Hanger v. City of Des Moines, 52 Iowa, 193 (35 Am. Rep. 266), was another case of reward for the detection of a murderer. Butler v. City of Milwaukee, 15 Wis. 498, was not a case of arson, and seems to be within the principle of the preceding cases. The rewards in all of these cases are open to the criticism that they were not offered to preserve the welfare of the inhabitants of the municipality, as contradistinguished from those of the general public. The case of Murphy v. City of Jacksonville, 18 Fla. 318 (43 Am. Rep. 323), is not in point, because governed by a prohibitive statute, which, in the absence of a “general welfare clause” (which does not appear), is a sufficient reason for the decision. Crofut v. City of Danbury, 65 Conn. 298, is in point, and supports City of Winchester v. Redmond, supra.

The danger of conflagrations in cities and villages necessitates preventive measures that are not common in sparsely-settled districts, and such municipalities are authorized to expend large sums for apparatus to extinguish them. But these only serve to prevent the spread of fires. A determined incendiary in a city is a menace which cannot be safely disregarded, and may call for more than the ordinary methods to guard against his acts. We think the “general welfare clause” is sufficiently broad to cover the employment of private detectives, through rewards, in such emergencies. We consider its exercise as “ contravening no provision of the Constitution, * * * and made in the exercise of the police power necessary to the safety of the city,” and, we may add, impliedly conferred upon it. See Baumgartner v. Hasty, 100 Ind. 580 (50 Am. Rep. 830).

The decree is affirmed, with costs.

The other Justices concurred.


author: Grant, C. J. Montgomery, J.

text:
    PEPPETT v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Defective Engine — Inspection by Engineer— Assumption of Risk.
    A railroad engineer, whose duty it was to inspect his engine before going out on a trip, and who made such inspection, but reported nothing wrong, assumed the risk resulting from an alleged worn center casting in the engine, where the wearing, if any, was clearly discernible.
    2. Same — Derailment—Condition of Rail — Evidence.
    A locomotive jumped the track at a curve, causing the engineer’s death. In an action by the administrator against the company, the plaintiff sought to show that the rail was de-' fective at the point where the engine left the track, and introduced two witnesses, who testified that they had noticed certain marks on the rail after the accident, and had observed that the rail was considerably worn; that, in their opinion, the rail ivas subsequently changed, they having looked for the marks previously noticed, and been unable to find them. On defendant’s behalf, a disinterested witness, who lived in the vicinity, testified that, at the time of the accident, he made a mark with a chisel on the flange of the rail at the point where the wheels left the track, and that the same rail, with his mark upon it, was in place 10 days before the trial. Four witnesses, including defendant’s road-master, assistant track-master, and local section man, testified positively that the rail had not been changed, and the state mechanical engineer and other experts testified that they had seen the rail in question, and that it was in no respect defective. Held, that the court was-right in refusing to submit to the jury the question whether the rail was defective and had been removed.
    3. Same — Negligence—Accident—Causal Connection.
    The representatives of a locomotive engineer, who was killed in a derailment, must show some causal connection between alleged defects in the engine and the accident, to warrant a recovery against the company because of its claimed negligence in failing to remedy the defects.
    4. Trial — Reopening Case — Refusal to Allow — Expert Witnesses.
    It was a proper exercise of the court’s discretion to refuse to permit the plaintiff, in an action for alleged negligent killing, to reopen his case, after several expert witnesses called for defendant had been discharged and had returned to their homes at some distance, for the purpose of introducing an expert to give testimony in support of the main case.
    Montgomery, J., dissenting.
    Error to Jackson; Peck, J.
    Submitted June 17, 1898.
    Decided April 18, 1899.
    Case by Sarah F. Peppett, administratrix of the estate of George Peppett, deceased, against the Michigan Central Railroad Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff’s counsel state her case as follows:
    “George Peppett, the plaintiff’s intestate, was, on the 13th day of September, 1895, a locomotive engineer in the defendant’s employ. He was running passenger engine No. 50?, pulling the train known as the ‘ North Shore Limited,’ one of the fastest trains on the road. He left the city of Jackson at 10:30 o’clock in the morning of September 13th, and was due at Marshall, 32 miles distant, at 11:20. The train was not-scheduled to stop at Marshall, and, while running around a curve inside the city limits, the engine left the track at a point a few feet west of Maple street. At the time of the derailment the train was moving at the rate of about 35 miles an hour. After leaving the rails, the engine ran on the ties for about 350 feet, when she left the ties, and, running in a southerly direction across the right of way, tipped over in Marshall avenue, pinning the engineer under the cab, and causing his death. The track between Maple street and Marshall avenue runs east and west, in a curve of 2° 15'. The point where the truck wheels first left the rails is in the sharpest part of the curve, and the south rail formed the outside of the curve.”
    The declaration contains eight counts, alleging several grounds of negligence. Two only are now insisted upon, viz., defective center castings and a defective rail. The able circuit judge, in directing a verdict, gave his reasons in the following language upon the two grounds now insisted upon:
    “The plaintiff claims that the evidence would justify the jury in finding the following conditions as the basis of the alleged negligence: That the center castings, male and female, of the engine in question, where they connect together between the engine and truck, had become worn so as to be elliptical or oblong instead of round, as they should have been, and that the outer rail where the derailment occurred was worn.
    “In disposing of the case by peremptory instructions to the jury, it is the duty of the court to adopt that view of the evidence most favorable to the plaintiff; to consider that the jury might believe the testimony which makes most in the plaintiff’s favor, and disbelieve all that which would make or tend to sustain the position of the defendant. Taking that view of the case, it must be said that the jury might be justified in finding that the following conditions existed: First. That the center castings were worn so as to become oblong or elliptical where they came together. Second. That the center castings were not jacked up for inspection, or inspected while separated, except when the engine was jacked up for some other purpose than inspection; that there was no inspection of them except when the engine was jacked up and the parts were separated, except such inspection as the engineer might make when he took the engine out for his trip or returned with dt.
    “Assuming these conditions to exist, we are confronted by the next element of the plaintiff’s case, which is this: Would the jury be justified in finding, from the evidence, that any or all of these conditions constituted negligence on the part of the defendant ?
    “Now, whether the condition of the center castings and of the worn rail was a negligent condition — a condition which the defendant allowed in violation of its duty — is to be determined from the evidence in the case. At the threshold of that inquiry is presented the question: What is proper evidence that the center castings or worn rail were in an unsafe and dangerous condition ?
    ‘ ‘ My views with reference to this question, as applicable to both the worn rail and the center castings, will be sufficiently explained by a reference to the outer rail — the worn rail — only. It is certain that every railroad rail commences to wear as soon as its use for railroad purposes begins, and continues to wear as long as that use continues. It might be possible that any one could tell that a rail just put down was not so worn as to be unsafe and dangerous, or that any one could say that a rail nearly worn out, or just hanging together, was unsafe and dangerous ; but, in my judgment, no person having only the common intelligence of mankind could say, so as to make it evidence, that a rail in the condition limited on the one hand by the testimony of the plaintiff, and on the other by the testimony of the defendant, was unsafe and dangerous or not. I know I could not; I am confident that as intelligent jurors as you are could not; nor could any man, however intelligent he may be in a general way, tell, with any great certainty or confidence in his judgment. I am, therefore, convinced that information upon that subject — evidence which should actuate us in reaching conclusions — can only be sought from people who do know it, who have some unusual intelligence and judgment upon the subject, by reason of experience or special training. It is my judgment, therefore, that the only evidence in the case which it is proper for the jury to consider upon that subject is the opinions of trained men in that field.
    “Now, looking at the testimony of the men who have been, witnesses here, who have shown an .equipment or qualification to give us information upon that subject, I am clearly of the opinion that the jury would not be justified in finding either that the rail was unsafe and dangerous, or that the center casting was unsafe and dangerous, and therefore that the evidence fails to prove, in either of these respects, that the defendant has violated any duty, and is negligent.
    “With reference to the question of inspection of the castings: There was by the evidence, and beyond dispute, an inspection of these castings by men who appeared by the evidence to have been competent inspectors, at the time they were separated and the engine jacked up. There was no inspection at any other time except that made by the engineers who ran them. I understand the plaintiff’s contention to be that if the jury should find that these castings were so worn on the 13th of September, 1895, as to permit of side motion or shucking of an inch, or any similar or lesser amount, that that condition must have existed at the time of the last inspection, August 28th, some two weeks before the accident; and that the jury would be justified in 'finding that the defendant at that time knew, by potice to its employés and inspectors, that the center castings were so worn as to permit of shucking to a considerable degree, — an inch or less, — and that, therefore, the jury would be justified in finding that, with knowledge of that fact, the defendant sent Mr. Peppett out with this engine to his death. Now, I cannot adopt that view, or permit the jury to, under the evidence in this case. In my judgment, the evidence would not justify you in reaching that conclusion; and being of that opinion, and clearly so, it is my duty to so instruct you.
    “Now, gentlemen, the view I have taken and expressed of the evidence with reference to these different bases of negligence makes it unnecessary to discuss them further, and I come now to other necessary elements of the plaintiff’s case. And that is whether the conditions named, if assumed to be proved, are shown by the evidence to have been the cause of the derailment. And with reference to that subject I instruct you that the evidence does not, in my opinion, justify you in finding or reaching that conclusion with reference to any one of them.
    “I call your attention now, gentlemen, to another feature of the case, which is, in my opinion, decisive of the plaintiff’s rights, when viewed with reference to certain of these claimed bases of negligence. The plaintiff was, and for many years had been, an engineer on the Michigan Central Railroad. He was intrusted with its most important service in that field, the running of engines that drew its passenger trains, and thus held the lives of many people in his hands, — a trust which nobody who has testified in the case here has ventured to say he did not faithfully fulfill, and which we must presume he faithfully fulfilled. He had had wide experience; had been many years running from the same roundhouse; had taken his engine and returned it to the same place; was familiar with the defendant’s method of conducting its business, so far as the business'related to the inspection and the oiling and the running of its engines. A part of his duties was to inspect the engine himself before he took it out upon the tracks to make his run and when he returned it. He was competent, under this evidence, to make that inspection, — a man of mature years, of ripe experience in the field, charged by his consciousness of his own safety, and that of his fellow workmen and the passengers whom he was to carry, with a quickened sense of his duty in making that inspection. And he made it. He made it knowing the custom and practice of the defendant company with reference to the oiling of the center castings, and its practice and custom, also, with reference to the treatment of his engine. A part of his duties was to inspect the center castings; and he did inspect it, presumably, every morning before he made his trip, — certainly, under the evidence, the morning in question, before he made his trip.
    “Now, he first assumed all the obvious risks of his employment. He also assumed all the risks which would have been averted by an inspection properly made by himself. Now, what would an inspection, properly made by himself, of the condition of that center casting, on the morning of September 13, 1895, have disclosed under this evidence? It was made in conditions of light and surrounding obstacles which have been shown by the testimony, — conditions which the jury cannot say would have prevented him from finding out, if it were true, that these center castings shucked an inch; possibly not if they shucked 3-16. But if they shucked an inch, or anything near it, a prudent inspection on his part would have disclosed it. It has been said to me in argument, in your absence, that some of the evidence shows that there was dust, dirt, accumulated by oil, perhaps gum, and other conditions, which would make it difficult for him to see whether those would shuck on that morning (shucking the model) more than was designed, or to a degree that made them unsafe; but the evidence also shows that he was provided with a light to make that examination, and, in my judgment, he was charged with the duty of making it. He could see it as well as any person on earth. He was familiar with the mechanism; knew how it operated; had been for years an observer of it, as of all parts of his engine. In my judgment, he cannot complain of any fault which a prudent inspection by himself at that time would have disclosed, and, if it shucked to any appreciable degree, he could, by an examination, have found it out. There might have been dust on the female part, or gum, or sand, or oil, but he was there charged with the duty of seeing that it was all right, and he cannot answer that he did. not see by reason of difficulties that were surmountable, that presented themselves in his way.
    “ Now, it is conclusively apparent to me that whether the male or female casting, or both, were worn more below where the view strikes them than-they were at the top, would make no difference in the amount of shucking that would be allowed. There certainly could be no more shucking of that engine than would be allowed by the upper or any part of the female casting. The movement is of parts which are fixed by being bolted to heavy machinery. (Illustrating the model.) It will lie upright and flat, and it is idle to say that a shucking would be possible beyond what would be allowed by such a separation of the parts at the top, where it would be seen, would allow it. Now, I have pointed to that aspect of the case because it is undisputed — cannot be disputed- — that whatever risks of his employment were obvious to Mr. Peppett, of whatever he could have discovered by a prudent and reasonable inspection of these center castings, on the morning of that day, he cannot complain of in this suit, and he cannot, therefore, complain of any degree of shucking which an inspection, carefully made there at the time,-would have disclosed; and it would have disclosed as much as was possible under his evidence, save only such a condition — such changed conditions — as might have arisen in making the trip from Jackson to Marshall that morning- * * *
    “Now, gentlemen of the jury, I have taken some little pains, and used perhaps unnecessary words, to explain to you the views entertained by the court with reference to this case, and which are decisive of the case, in the judg- • ment of the court. I need not say to you that I performed this duty impressed fully with the consciousness that it is an unwelcome duty, and should not be resorted to when the court is in doubt. If, upon these propositions, there was evidence upon both sides, although the great burden and weight of it may have been in favor of the defendant, in my judgment it would be my duty to submit it to you. We all regret (none more than I) the great calamity which has fallen upon Mr. Peppett’s family, but that is a consideration which we must seek some other place and time to express than here, in a court of justice. The views I have expressed, gentlemen, lead to the conclusion that it is my duty to instruct- you, as I now do, to return a verdict that the defendant is not guilty in manner and form as the plaintiff hath in her declaration in this case charged, and this you may say, without leaving your seats.”

      Blair, Smith & Townsend, for appellant.

      Parkinson & Campbell and O. E. Butterfield, for appellee.
   Grant, C. J.

(after stating the facts). We approve the instructions of the court in directing a verdict. The following facts are established by the evidence:

1. That the engine was properly constructed.

2. That defendant had performed its full duty as to inspection.

3. It was the duty of the decedent, both after coming in and before going out, to inspect the engine, and, after coming in, to minute in a book, kept for that purpose, any repair needed. He did make such inspection, but reported nothing wrong. The wearing, if any there was, was easily discernible; He therefore assumed the risk of such defect.

4. If there was an}*- testimony tending to show that the casting^ were worn, plaintiff introduced no testimony to show that such wearing would cause a derailment. On the contrary, defendant introduced the testimony of nine competent and experienced experts that such wearing has no tendency to cause a derailment.

5. The evidence is overwhelming that the rail was not worn sufficiently to cause the derailment. The state mechanical engineer' and several others testified that the rail was safe. But more convincing than the testimony of these experts is the fact that the rail was not removed from its place, and was still in use at the time of the trial. It is, however, insisted that there was a conflict of testimony upon this point, and that the question, if it were material to the determination of the case, should have been submitted to the jury. The testimony on behalf of the defendant is as follows: One Isaac Bisbee lived near the track. On the Sunday after the wreck, he marked the rail where the wheels ran upon it with a cold-chisel on a flange of the rail. He testified that the same rail was still there 8 or 10 days before the trial, with his mark upon it. Daniel Foley, the road-master of the defendant road, testified that the rail had never been changed. Charles Belcher testified: “ That rail is still in the track, and has not been taken away. It could not have been taken away without my knowledge.” John Walters, a section man, testified that the track was not changed, and he had never known of the rail being taken out. Patrick Wall, assistant trackmaster, testified that he did not know of the rail having been changed, and that he should have known it if it had been. Elliott F. Moore, the state mechanical engineer, testified that some days after the wreck he saw the rail, which had a mark upon it, and that it was a safe rail, and in no respect dangerous. Warren B. Stimpson, superintendent of the Grand Rapids & Indiana Railroad, testified that he had seen the rail in the track which was marked by Mr. Bisbee, and that it was a fit and proper rail. The only testimony on the part of the plaintiff to contradict the above testimony, and to show that the rail had been removed, is as follows: One Thomas Mapes saw the rail after the accident; saw a very slight mark across the top, and noticed that it was worn, but could not say how much, but that he considered it worn quite a good deal; that he had been along the track since, and was unable to find the mark upon it; that he was there about a week before the trial, and, in his opinion, that rail was not worn as much as the rail that was in there at the time of the wreck. On cross-examination, he testified that it was a mere matter of recollection, and, “ I do not know that it is not the same rail, but I did not see this mark on the rail, — the reason that I did not think it was. ” William Hawkins testified that he noticed the rail at the time of the accident, and also within three or four days after the accident, and that the marks had then disappeared. On cross-examination he testified:

Q. The same rail was there three or four days after, you say ?
‘A. I didn’t use any such expression.
“ Q. But didn’t notice the mark ?
“A. I said I looked for the rail, but the mark was gone.
Q. Was it the same rail?
“A. If it was, they had destroyed the mark some way. I should not think it was the same rail.
“ Q. You didn’t notice any differences except the mark, did you ?
“A. No; the rail was not worn as bad as the one that was in there the day of the accident.
‘ Q. Are you sure of that ?
“A. I looked at that particularly.
Q. Do you know that to be so ?
“A. I could not swear to it, no; but, in my opinion, I think so.”

Would a jury be justified, in any case, in finding that there was a serious conflict in the evidence, and in adopting the mere opinion or recollection of two witnesses, who made no measurements or careful examination, as against the positive testimony of six witnesses, who were unimpeached ? No court, having due regard for justice, would permit a verdict to stand when rendered against such positive and convincing evidence. Property rights are too sacred to be bartered away upon such flimsy statements. Mr. Bisbee was an entirely disinterested witness, engaged in the milling business, and made the mark with the chisel because there was some discussion among the men as to the point where the wheel left the track.

6. There was no testimony, from any one competent to speak, that any or all of the alleged defects caused the derailment, or that the engine or rails were not in a safe condition, such as is justified by good railroad management.

From the facts, it conclusively appears that no negligence on the part of the defendant was shown. It is not enough for the plaintiff to indicate a state of facts from which there is a possibility the accident occurred. The facts must be such as to indicate a reasonable probability that the accident occurred from the negligent acts charged. Plaintiff must' establish the probable producing cause; otherwise, her case fails. The cause of this accident is as uncertain and problematical as was the cause of the accident in Whalen v. Railroad Co., 114 Mich. 512. Plaintiff’s counsel reason thus:

“Given a normal engine, runnipg upon a normal track, under normal conditions, and the engine would not leave the track. The engine did leave the track, the surrounding conditions were normal, but the engine was certainly abnormal, and w'e think the track. It is a fair deduction that the abnormal conditions caused the abnormal result.”

This reasoning would be sound, provided plaintiff had shown any causal connection between the alleged fiefects and the derailment. While juries deal with probabilities, and not with certainties, they can only do so when there are facts upon which to base the probabilities. Many accidents happen for which there is no reasonable explanation. In such cases, juries cannot be turned loose in the field of speculation. Employés assume the risk of all such accidents.

After plaintiff had rested, and defendant had occupied two days in putting in its testimony, plaintiff’s counsel asked permission to reopen her case and introduce one expert witness. The most of the expert .witnesses on the part of the defendant had been discharged and returned home, some of them at considerable distances. The testimony was not in rebuttal, but was part of plaintiff’s main case. Her counsel recognized this, and offered the opinions of some witnesses as to the effects of the condition of the rail and the worn castings. They were not shown to have sufficient knowledge and experience to testify, and their testimony was excluded. Of this .ruling no complaint is made. The circuit judge refused to admit the testimony. This is alleged as error, on the ground that the ruling was an abuse of discretion. We cannot concur in this view. We think the circuit judge was right in so ruling.

Judgment affirmed.

Hooker and Long, JJ., concurred with Grant, C. J. Moore, J., concurred in the result.

Montgomery, J.

(dissenting). While fully recognizing that this case lies very near the line; I am not able to assent fully to the views expressed by the Chief Justice. I think the evidence as to the worn condition of the rail, offered on behalf of the plaintiff, while relatively weak as compared with that of defendant, raised a question for the jury. Clyde v. Railroad Co., 59 Fed. 394. I also think the question as to the condition of the center casting, and as to whether it was a probable cause of the derailment, was for the jury. Schoepper v. Chemical Co., 113 Mich. 582. I do not think it. conclusively appears that such defect in the center casting would be apparent to the engineer on such an inspection as he was required to make. As a majority of the court are well satisfied that the ruling below was correct, no good end would be served by elaborating my views.


text:
    CITY OF GRAND HAVEN v. GRAND HAVEN WATERWORKS.

    1. Waterworks —Fire Protection —Accounting by City — Measure of Compensation.
    A city, upon an accounting with a private water company for the use of its hydrants for fire protection throughout a series of years, will be charged, in the absence of better data for measuring the comx>ensation, with interest and depreciation upon the cost to the city of a xfiant of its own up to the time such plant was acquired, and, after such time, with an equitable allowance per gallon for water actually furnished to the city by the private company.
    2. Same — Taxation of Mains — Personalty.
    A personal tax levied upon the mains of a water company prior to Act No. 206, Pub. Acts 1898, § 8, subd. 16, authorizing the assessment of such fixtures as personal property, was without jurisdiction and void.

    Appeal from Ottawa; Padgham, J.
    Submitted October 30, 1898.
    Decided April 18, 1899.
    Bill by the city of Grand Haven against the Grand Haven Waterworks for the rescission of a contract. On a former appeal (99 Mich. 106) the Supreme Court granted complainant the relief prayed, but remanded the case for an accounting as to the amount complainant was equitably bound to pay for services rendered by defendant. From a decree fixing the allowance at $1,500, defendant appeals.
    Additional allowance granted.

      George A. Farr, for complainant.

      A. Howell, for defendant.

       Rehearing (defendant’s application) denied July 11, 1899.

       On the question what constitutes real estate for purx>oses of taxation, there is a note collecting the authorities to the case of Oskaloosa Water Co. v. Board of Equalization, (Iowa) 15 L. R. A. 296.

   Montgomery, J.

This case was before the court at the October term of 1893, and a decision rendered, which is reported in 99 Mich. 106. The relations of the parties are fully stated in the opinion of Mr. Justice Long. It was there determined that the defendant had failed to comply with the terms of its contract, and that the complainant had exercised its right to rescind. The case was remanded to the court below for an accounting for the use of hydrants; it having been determined that it was equitable that it should pay for whatever use had been made of the hydrants for fire purposes. This accounting has been had, and from a decree fixing the allowance to the defendant at the sum of $1,500 the defendant appeals, claiming that the allowance is inadequate.

We have found difficulty in fixing a basis upon which to base an estimate of the value of the services which the defendant rendered to the city. The circuit judge found the same difficulty, and could find no other basis than to estimate the actual number of gallons actually furnished by defendant for use at fires; .and, estimating the price of this water at 50 cents per 1,000 gallons, he reached the result stated. There is apparently some injustice in this basis of computation, for the reason that the cost of maintaining pressure for fire purposes is greater than the cost' of maintaining pressure for the ordinary domestic uses of water, and for the further reason that the computation leaves out of the account the occasions when, upon notice of fires, extra pressure is provided for, at expense to defendant, although no water at all is thrown. If this apparent' injustice can be avoided in any way by the use of any data appearing in the record, we feel that it should be done. If, however, as is contended by the complainant, no such data appear, we are powerless to relieve the defendant. Taking as a starting point the date of October 14,1884, when the first fire occurred, down to the fall of 188.7, when the city commenced to extend its own waterworks, during this period the city had an inadequate plant for fire protection, — worth, as testified by the witnesses, about $6,000. The deficiency of the city’s plant was supplied by the defendant, substantially. It appears by the testimony of an expert called by the complainant that the cost of a plant which would furnish adequate fire protection would be about $20,000. It would appear, therefore, that the city was saved the interest and depreciation on $14,000, which, at the rate of 8 per cent., would amount to $1,120 per year. We do not overlook the testimony that the city had two steamers, but we do not gather from the record that they were used during this time. This condition continued for three years, when the city expended an additional $10,'000. Upon the same basis for the following year, 1887-88, the saving to the city by the presence of the defendant’s plant was $320. In the fall of 1888 the city expended a further sum of $6,000, so that from this time on another basis must be adopted. After this date, we discover no safer basis than that adopted by the learned circuit judge, viz., to base the allowance on the amount of water actually furnished; for, while we recognize that this may not adequately compensate the defendant, we have no better data upon which to base a decree. The cost to the defendant cannot be the criterion, for the reason that the defendant cannot profit by its own default, or subject the complainant to added expense by reason of its failure to live up to its contract. Upon this basis, the number of gallons used after this date was, substantially, 608,000, at the price adopted by the circuit judge amounting to $304, which, added to the amount previously allowed ($3,680), makes a total allowance of $3,984 to defendant.

A claim is made for water furnished the public schools of the city, but we discover no such claim set up in the answer, and cannot consider it.

The city claims, as a set-off, certain taxes assessed against the defendant. The taxes on the real estate would appear to have been satisfied by a sale to the State. As to the personal property tax, the evidence shows that an assessment was made of pipes in the ground, as personal property, in wards in which the company had no abiding place. It would seem that there was, prior to 1893, no authority to assess these fixtures as personal property. In re Des Moines Water Co., 48 Iowa, 331; Com. v. Lowell Gaslight Co., 12 Allen, 75; Providence Gas Co. v. Thurber, 2 R. I. 15 (55 Am. Dec. 621). In 1893 this rule was changed by statute (Act No. 206, Pub. Acts 1893, § 8, subd. 16). The taxes in question were levied before this act took effect, and the assessment was made without jurisdiction.

The decree will be modified by allowing to defendant fqr the use of hydrants the sum of $3,984. The complainant will be permitted to offset the costs on the original hearing in this court, and the costs of the first hearing in. the circuit, and the defendant will recover costs of this hearing in this court.

The other Justices concurred.