Volume 219 — Michigan Reports

), J. . Assumpsit by the city of Grand Rapids against Max Crocker and another for the amount of an award against plaintiff under the workmen’s compensation act. Judgment for plaintiff. Defendants bring error.

<p>Master and Servant — Workmen’s Compensation Act — Independent Contractor Not Entitled to Compensation.</p> <p>On certiorari to review an award of compensation by tbe department of labor and industry, under the workmen’s compensation act, where it appears that plaintiff entered into a contract with defendant to cut wood from its timber according to certain definite specifications and for a fixed price per cord, plaintiff furnishing and keeping in repair his own tools therefor, and that defendant had no control over him or the men he employed, so long as the work was done according to the contract, he was an independent contractor rather than an employee, and therefore not entitled to compensation under said act for the loss of an eye while so engaged.</p> <p>Independent contractors, subcontractors and their employees as employees within the meaning of workmen’s compensation acts, see notes in L. R. A. 1916A, 118, 247; L. R. A. 1917D, 147; L. R. A. 1918F, 206.</p>

), J., presiding. Assumpsit by the Thomas Canning Company against the Canners Exchange Subscribers at Warner Inter-Insurance Bureau on certain policies of insurance. Judgment for plaintiff. Plaintiff and defendant bring error.

), J., presiding. Case by Mary Jarosz, administratrix of the estate of Anthony Jarosz, against Frank H. Geisler and others for' the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendants bring error.

), J., presiding. Bill by Olin E. Harvey and others against Harry Rubin to enjoin the violation of certain building restrictions. From a decree for plaintiffs, defendant appeals.

), J., presiding. Assumpsit by Briggs & Turivas against the Adjustable Table Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.

), J., presiding. Frank Roemelmeyer presented a claim against the estate of Alice Roemelmeyer, deceased, for money had and received. The claim was disallowed by the commissioners, and plaintiff appealed to the circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Dismissal and Nonsuit — Moot Case — Eminent Domain.</p> <p>Where, on. appeal hy street railway companies from the decree in condemnation proceedings by the city of Detroit, it appears that since the argument in the Supreme Court the city has taken over the property of appellants, and it was conceded if this was done the case would be a moot case, the appeal will he dismissed.</p>

), J., presiding. Bill by Edward F. Weiss and others against Frank P. Weiss and others for the partition of certain real estate. Defendants filed a cross-bill to restore certain lost deeds. From a decree for defendants, plaintiffs appeal.

), J. Assumpsit by Delia M. Barton against Samuel B. Molin for money paid under an alleged void land contract. Judgment for plaintiff on a directed verdict. Defendant brings error.

<p>1. Negligence — 'Personal Injuries — Contributory Negligence' —Failure to Dim Lights — Evidence—Question for Jury.</p> <p>In an action for personal injuries caused by a collision in the nighttime between the automobile, going east, in which plaintiff was riding, driven by her husband, and defendant’s taxicab, going west, where the collision occurred on the south side of the road, testimony by her husband that he dimmed his lights and turned from the center of the road 120 feet west of where the collision occurred, held, to present a question of fact for the jury on the issue of his contributory negligence, and the trial judge was in error in directing a verdict for defendant.</p> <p>2. Same — Violation of Statute No Bar to Action Unless a Causal Connection Shown.</p> <p>That plaintiff’s husband had not yet received his license, although paid for, and he was driving his car without license plates at the time of the accident, would not bar her right of action, since, even if he was technically guilty of violating the motor vehicle' statute and therefore guilty of negligence per se, it was in a particular which in no sense did or could cause or contribute to the accident.</p>

Burget), J. Bill by Frank Niles and others against Charles P. Meeker and others to enjoin the erection of a dam. From a decree dismissing the bill, plaintiffs appeal.

), J. Ejectment by Wilhelmina Steeb against the Washington Building Company. Judgment for plaintiff. Defendant brings error. The premises involved in this ejectment suit are located on lots 7 and 8 of block 1 of the original plat of the village (now city) of Ann Arbor and are in the business section of the city, plaintiff’s property on which a store building has been erected being to the west of the defendant’s property.

), J. Case by the Thomas Canning Company against the Southern Pacific Company for damage to certain beans in transit. Judgment for plaintiff on a directed verdict. Defendant brings error. Plaintiff shipped from points in California to itself at Grand Rapids three car loads of beans. The dates of the shipments were January 8, 1917, March 19, 1917, and March 23, 1917. Defendant was the initial carrier. A uniform order bill of lading was issued for one of the cars.

Case by Betronella Kuyk against Walter Green and another for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.

Assumpsit in justice’s court by the Patrons Mutual Fire Insurance Company against William Pechta for an amount due on certain policies of insurance. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

), J. Case by Fred C. Wall against the Studebaker Corporation for loss of wages of minor son in defendant’s employ. Judgment for defendant on a directed verdict. Plaintiff brings error.

), J., presiding. Assumpsit by Martin Larsen against Katherine Field for work and labor done and materials furnished. Judgment for plaintiff on a directed verdict. Defendant brings error.

), J. Assumpsit by the Foster Machine Company against the Covel Manufacturing Company for money paid by mistake. Defendant pleaded recoupment for fraud. Judgment for defendant. Plaintiff brings error.

<p>Sales — Special Damages — Notice.</p> <p>In an action for the balance due on the purchase price of automobile frames sold by plaintiff to defendant and shipped by plaintiff contrary to defendant’s' orders, evidence offered by defendant that he thereby suffered special damages in their resale was properly rejected by the trial judge in the absence of proof that defendant disclosed to plaintiff, at the time the contract was made or before, that his purchase was made for the purpose of resale.</p>

), J. Bill by Anna Gasses against Kltr Razk to enjoin the violation of an agreement relative to a store building. From a decree for plaintiff, defendant appeals.

Case-made from Eaton; Smith (Clement), J. Assumpsit by George W. Rowley, administrator of the estate of Louisa J. White, deceased, against Allen M. White for moneys had and received. Judgment for plaintiff. Defendant appeals.

), J. Bill by John J. Leser and another against David T. Smith and another for subrogation to the rights of a mortgagee of certain real estate. From a decree for plaintiffs, defendants appeal.

<p>1. Trial — Replevin—Permitting List of Articles to Go to Jury Room:.</p> <p>In replevin, -where a long list of articles of household furniture and other property was involved, and there was sharp conflict in the testimony as to the ownership of them, it was not error for the trial judge, without the knowledge or consent of plaintiff’s counsel, to send to the jury room, at the request of the'jurors, an inventory attached to the bill of particulars containing a complete and correct list of said articles.</p> <p>2. New Trial — Impeaching Verdict — Affidavits of Jurors.</p> <p>On motion for a new trial, the' trial judge properly refused to consider the affidavits of jurors, impeaching the verdict, as to matters happening outside of the jury room.</p> <p>3. Trial — Reception of Verdict by Clerk — Absence of Judge— Irregularity.</p> <p>Although it was irregular for the clerk to receive the verdict of the jury, in the absence of the judge, at the latter’s instruction, without consent of counsel, it will not therefor be held void, on error, where the Supreme Court is not satisfied that any different result would have been reached if the judge had been present when the verdict was taken.</p>

), J. Louis Jacobs was convicted of promoting a lottery, and sentenced to imprisonment for 6 months in the county jail together with a fine of $1,000.

<p>Error to Van Burén; DesVoignes (L. Burget), J.</p> <p>Assumpsit by Alvin Harlan against Malcolm S. Carney for goods sold and delivered. Judgment for plaintiff. Defendant brings error.</p>

Case-made from Monroe; Root (Jesse H.), J. Summary proceedings by Emma Russell against H. Hutchins & Company for possession of leased premises. There was judgment for plaintiff, and defendant appealed to the circuit court. From an order denying a motion to dismiss the appeal, plaintiff appeals.

), J. Joe Rimkus was convicted of wilful and malicious destruction of personal property, and sentenced to imprisonment for not less than 1 nor more than 5 years in the house of correction at Ionia.

<p>Error to Wayne; Barton (Joseph), J., presiding.</p> <p>Action commenced by capias ad respondendum by Herman H. Runo against Douglas Rothschild. Judgment dismissing writ. Plaintiff brings error.</p>

), J., presiding. Mandamus and prohibition by Albert L. Stover to compel Edgar 0. Durfee, probate judge of Wayne county, to vacate an order allowing fees to the special administrator of the estate of Catherine Briggs, deceased, and to prohibit further action in relation to said petition. Harry F. Elwell presented for probate the last will of Catherine Briggs, deceased. The Security Trust Company, as special administrator, petitioned for an allowance of attorneys’ fees.

), J., presiding. Assumpsit by Julius Knack and another against the Velick Scrap Iron & Machinery Company for rent. Judgment for defendant on a directed verdict. Plaintiffs bring error.

), J. Case in justice’s court by Edward R. Sloat against the Mid-West Finance Corporation for the wrongful conversion of an automobile. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

<p>Error to Ottawa; Cross (Orien S.), J.</p> <p>Assumpsit by Sam Shapiro and others against the Patrons’ Mutual Fire Insurance Company of Michigan, Limited, on a policy of insurance. Judgment for</p> <p>plaintiffs. Defendant brings error.</p>

, presiding. Bill by Bernard Schwartz and others, copartners as Bernard Schwartz & Sons, against the Cigar Makers International Union and others to enjoin picketing. Defendants filed a cross-bill asking for specific performance of a contract of employment. From a decree for defendants, plaintiffs appeal.

), Case by Frederick Ecklesdafer and another against Wallace Obets for breach of an alleged warranty in the sale of certain seed com. Judgment for defendant. Plaintiffs brings error.

<p>1. Acknowledgment — Recording Land Contracts — Statutes.</p> <p>A contract for the sale of land is not entitled to he recorded unless the statute (3 Comp. Laws 1915, §§ 11770, 11773) requiring two witnesses and acknowledgment by the vendor are complied with.</p> <p>2. Evidence — Record of Defectively Executed Contract Not Admissible.</p> <p>The record of the register cof deeds’ office showing a land contract is not admissible as evidence of the original paper where the requirements of the statute entitling it to be recorded were not complied with.</p> <p>3. Same — Public Records Not Admissible Where Defective — Land Contracts.</p> <p>While the recording of a land contract not entitled to record might be notice of certain facts, it would not render said record admissible in evidence in ejectment proceedings where plaintiffs were attempting to establish title to the land in question by the public record, nor does the curative statute (3 Comp. Laws 1915, § 11784) change the rule of evidence promulgated by section 11770 et seq.: the question involved not being on© of notice.</p> <p>4. Executors and Administrators — Deeds — Land Contracts — Compliance With Statute,</p> <p>In order for a conveyance of land to be in compliance with 2 Comp. Laws 1915, § 9366, authorizing conveyance by the administrator when the terms of a land contract made with the deceased had subsequently been complied with, it would have to be executed by a representative of the estate, and therefore where a deed was executed by the administratrix prior to her appointment and no attempt was made thereafter to remedy the defect, the deed is invalid.</p> <p>5. Same — Authority to Convey — Equities—Deeds.</p> <p>In the absence of a showing as to how the conveyance In question would affect the equities of deceased’s estate, the rule that the authority of the administratrix related' back to the death of her intestate and validated the deed will not be applied by the court.</p> <p>6. Same — Deed to Contain Copy of Contract.</p> <p>A deed made in pursuance to section 9366, which does not contain or have annexed thereto a copy of the land contract, as required by said' statute, is invalid; a reference to the contract and the parties being insufficient.</p>

<p>1. Insurance — Burglary Insurance — 'Proof of Loss — Sufficiency.</p> <p>In an action on a burglary insurance policy covering plaintiff’s retail stock of men’s clothing and furnishings, testimony tending to show the inventory value of the stock at a certain date, to which was added the amount of the purchases from said date to the date of the burglary, • and from this sum was deducted the amount of the sales and profit during said period, helé, sufficient to present a method by which might be determined approximately the amount of the loss.</p> <p>2. New Trial — Jurors—Misconduct—Affidavits of Cojurors:</p> <p>Misconduct of jurors may not be shown by affidavits of their cojurymen.</p>

<p>Exceptions before judgment from Berrien; White (Charles E.), J.</p> <p>Harry Griffin was convicted of violating the liquor law.</p>

The Hocking Valley Products Company presented a claim against the estate of Marion F. Tackett, deceased, for. goods sold and delivered. The claim was allowed in the probate court, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

The First National Bank of Hicksville presented a claim against the estate of Marion F. Tackett, deceased, for the amount of certain promissory notes. The claim was allowed in the probate court, and defendant appealed to the circuit court. Judgment for •defendant. Plaintiff brings error.

The Sherwood Co-operative Company presented a claim against the estate of Marion F. Tackett, deceased, for goods sold and delivered. The claim was allowed in the probate court, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

), J. Bill by Carl Gasta and another against the Farmers State Savings Bank to enjoin the foreclosure of a mortgage. From a decree for plaintiffs, defendant appeals.