The whole agreement must be considered in order to ascertain the amount due either party thereunder. It contemplated a monthly settlement, an estimate of the ore delivered, also of the rent due, a deduction therefrom, and payment of the balance. No other sensible construction can be given such a contract, and although the parties may not thus have met and settled monthly, or may have met at some time and estimated and agreed as to the amount of ore delivered, and the sum to be credited to Gingrass therefor, yet he would not thereby be enabled to sue for and recover such amount without any reference to the deductions to be made therefrom on account of rent. The case of Roberts v. Wilkinson, 34 Mich. 129, and cases there cited, apply here.

The judgment must be reversed, with costs, and a new trlal ordered.

(The other justices concurred.)

J. M. HIRTH and others vs. ANNA BARBARA PFEIFLE.

Filed October 28, 1879.

The makers of a joint note, being sued thereon, set up in defence that one of them had been garnished previous thereto as the debtor of the payee's husband, who he claimed was the real owner of the note; that on disclosure therein he had admitted an indebtedness upon said note to payee's husband, upon which disclosure judgment had been entered. Held, to constitute no defence.-[ED.

Error to Washtenaw.

Fraser & Hamilton, for plaintiff in error.

E. D. Kinne, for defendant in error.

CAMPBELL, C. J. Plaintiffs in error, being sued on a joint note given by them payable to the order of defendant in error, set up in defence that one of them, John M. Hirth, had been previously garnished in a suit against one Adam Pfeifle, whom they averred to have been always the real owner of the note, and that John M. Hirth thereupon disclosed that he was indebted to said Adam Pfeifle on the note, and upon that disclosure judgment was rendered against him for its amount.

The record shows that on the second day of November, 1877, one Christian Schmidt sued John M. Hirth as garnishee of John A. Pfeifle in the circuit court for the county of Washtenaw, the suit against Pfeifle having been begun in that court. The disclosure is entitled in a cause against John Adam Pfeifle. The disclosure contains no reference to Abra

ham Hirth as signer of the note, and does not describe any note payable to Anna Barbara Pfeifle.

We might be called upon to consider the very peculiar defects in these proceedings, if they were not otherwise fatally defective. It is very certain that a person summoned as garnishee cannot waive or destroy by his admissions the rights of the owners of the claims against him, and that Mrs. Pfeifle cannot be affected by his admissions or assertions that he owed her husband and not her. The lawful owner of a claim can only be estopped by garnishee proceedings in which the garnishee has been put by regular course of law into a position to bind such owner. Hekel v. Amazon Insurance Co. 33 Mich. 400. In Wetherwax v. Paine, 2 Mich. 555, it was held that garnishee process could not reach a debt due from two joint debtors by service on one. It is a garnishee's. duty when he makes a disclosure to set forth the true condition of the liability, and if he sees fit to admit a different liability than the true one, or to admit a debt which does not exist, such an admission may authorize a judgment against himself, but it cannot affect any one else.

In the present case not only was Mrs. Pfeifle a stranger to the garnishee proceedings, but they were ineffectual to reach a joint debt at all. The court below decided correctly that they made no defence to this action.

The judgment must be affirmed, with costs. (The other justices concurred.)

An employe takes the risk of negligence of his co-servants, and the dangers incident to his employment, and the master is not liable for the negligence of such co-servants, if he has exercised proper care in their selection; and an employe, to recover for injuries sustained, must trace negligence directly to the master, or some one standing in his place. The mere fact that he is injured through the negligence of a co-servant, employed in a different branch of the same general work, is not enough to make the master liable. Record held not to show negligence.-[ED.

Error to Houghton.

Chandler & Grant and Ashley Pond, for plaintiff in error. Dan. H. Ball, for defendant in error.

COOLEY, J. Kitts sued the mining company to recover dimages for an injury alleged to have been suffered by himself through the company's negligence, while in its employ as

a miner.

It appears from the evidence that what in the declaration is called a bridge, over the chasm where the accident occurred, consisted merely of two timbers laid side by side, one of which broke and fell with the plaintiff as he was passing over. The timbers were of pine, and had been in place some five years. The evidence tended to show that they discovered no weakness when put in, and that, if sound originally, five years was not time sufficient to cause dangerous decay or weakness. The only evidence of any effort to examine the broken timber after the accident showed that it fell among others where it could not be distinguished, and the occasion of the breaking was, therefore, wholly unexplained. Other persons, including the plaintiff himself, had crossed upon these timbers with safety on the same day.

It was suggested, rather than urged, on the part of the defence, that the timber may have been weakened by a fragment of a rock falling upon it from above, and an inference to this effect might be drawn from the proofs. On the other hand the effort of the plaintiff seems to have been directed to satisfying the jury that the timber must have been weak originally, or become weakened from some unexplained cause, and that from want of proper supervision the defect had never been discovered. An effort was made to bring home the want of proper supervision to one Wagner, who was said to be charged with the duty, and who, though he had casually examined the timbers sometimes, had never applied some of the most simple and usual tests, such as striking with a hammer, and piercing with a sharp instrument. Wagner was what is called a timberman in the mine. The timberman put in and looked after such bridges or passages; and Wagner was sometimes called captain, as he had some authority over the other timbermen, and might direct them as to their work. He, however, as well as the others, was under the general supervision and control of Capt. Cliff, who had the entire charge of the underground work. No claim was made that either Cliff or Wagner was incompetent, or that the company had been negligent in the employment of incompetent persons, and the principal reliance of the plaintiff seemed to be on such inferences of negligence on the part of Wagner as might be drawn from the evidence.

The circuit judge was requested to instruct the jury that even if they found that Wagner was negligent, yet this negligence was the negligence of a fellow-servant of the plaintiff, v3-16 (no. ii)

(241)

and of this the plaintiff took the risk. This was refused, on the ground, as would seem, that in respect to the supervision of this bridge or passage way Wagner was charged with the responsibility of the company, and his neglect was the neglect of his principal. As between the company and any third person the extent of the authority and responsibility of Wagner would have been immaterial; but when a servant demands from his master compensation for an injury received in his service, it is necessary that he trace some distinct fault to the master himself. The mere fact of such injury is no evidence of such fault; neither is the mere fact that it resulted from the carelessness of some other person in the same employment. The servant assumes all the usual risks of his employment, and among these is the risk that fellow servants will sometimes be careless and that injuries will result. All that can be required of the master in that regard is that his servants shall be prudently chosen, and that they shall not be retained in his service after the unfitness or negligence has been discovered and has been communicated to him.

This duty of due care in the employment and retention of competent servants is one the master cannot relieve himself of by any delegation, and if it becomes necessary to entrust its performance to a general manager, foreman or superintendent, such officer, whatever he may be called, must stand in the place of his principal, and the latter must assume the risks of his negligence. The same is true of the general supervision of his business; if there is negligence in this, the master is responsible for it, whether the supervision be by the master in person or by some manager, superintendent or foreman to whom he delegates it. In other words, while the servant assumes the risk of the negligence of fellow servants, he does not assume the risk of negligence in the master himself, or in any one to whom the master may see fit to entrust his superintending authority. Albro v. Agawam Canal Co. 6 Cush. 75; McAndrews v. Burnes, 39 N. J. 117; Malone v. Hathaway, 64 N. Y. 9; Hard v. Vermont, etc. R. Co. 32 Vt. 473. But Wagner did not stand in respect to this company in any such position. He was no superintendent or manager; he was nothing but a fellow servant of the plaintiff. The duties of the two were different, it is true, but so commonly must the duties of fellow servants be. He had one thing to do, and the plaintiff another, but neither stood in the master's place in respect to the other; and if it be true, as the plaintiff claimed, that Wagner had special authority and was

charged with special duty in respect to a particular passage way, this cannot vary the legal aspects of the case. In any such business there must be division of employments among servants; one looks after one thing and another after another; but this each understands when he enters the service. He knows that his fellow servants are to be charged with duties and responsibilities of differing natures and differing grades, and he also knows that one of the necessary risks of the employment is that any one of them may be negligent and cause him injury. This risk he assumes. It is immaterial that the negligent servant was in a position of greater responsibility than himself, or in a different line of employment, so long as both were in the same general business, so that the negligence of the one might contribute to the danger of the other. Lehigh Valley Coal Co. v. Jones, 86 Pa. St. 432; McAndrews v. Burnes, 39 N. J. 117.

If, therefore, it had appeared that Wagner was negligent, as the plaintiff claimed, the action must nevertheless have failed. But we look in vain in the record for any evidence that Wagner was negligent. It may be guessed or surmised that there was negligence somewhere, and one juror may guess that it was in the want of careful selection of timber; another, that it was in the want of subsequent inspection, or in the want of care to prevent rocks falling on the bridge; but the case affords no safe ground for anything beyond conjecture; and if the master can be held liable under the circumstances which the record discloses, on mere guesses or inferences respecting the existence of fault somewhere, the rule that an employe assumes the ordinary risks of his employment will be wholly done away with. It is too late at this day to enter upon any discussion or defence of that rule. It has been too often enforced in this state, and is too salutary in its effects upon the care and diligence of those engaged in employments where these qualities are especially requisite, to be now disturbed or questioned. Davis v. Detroit, etc. R. Co. 20 Mich. 105; Wonder v. Baltimore, etc. R. Co. 32 Md. 417.

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

(The other justices concurred.)