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number of witnesses so testified. In our opinion this testimony raised a question of fact for the jury.

In McDonald v. Railway Co., 105 Mich. 659, 63 N. W. 966, the question was whether certain bars were up at 4 o'clock. One Brearly testified that they were. Justice Montgomery, speaking for the court, said, after reciting the testimony: "I think it very clear that this testimony raised a question of fact for the jury. It is true that the defendant's witness testified that the bars were up at 4 o'clock on the 7th, but there is no testimony that there was anybody there whose duty it was to put them up after 1 o'clock on the 7th, when witness English testified they were down. This testimony tended to impeach the recollection or veracity of the witness Brearly. According to his testimony, the bars could not have been down, whereas the other witness testified that the bars were left down constantly.

* In my judgment it was for the jury to say whether his positive testimony that they were up on the 7th should be accepted in view of the fact that his testimony upon this question of their being up at other times during the summer was so directly disputed by the testimony of other witnesses."

2. Were the lights kept at the switches and at this raise for the benefit of the employés of the mine, and to enhance their safety? In the argument at the hearing, defendant's counsel took the position that these lights were not intended for the security of the workmen. There was testimony upon that subject as follows: Andrew Vronch, one of defendant's witnesses, among other things, testified: "I had nothing to do with putting the lights in. That was the business of the electricians. It was their business to put back a light if it was out. If a light went out on the night shift, a lamp burned out, they have to get some lights extra. Then the captain-the foreman-or the motorman put them in. If the motorman put a lamp over the chute or any place, he would be just doing that of his own free will. The only ones whose business it was to do it was the electricians. It was their business to see that lamps were kept burning, and on the night shift it was the business of the boss and the motorman. They kept the lamps burning there to show the men how to walk in the raise, in through, was the reason they kept them there to make it good and safe to walk along. Q. Because if there was no lamp there a man might walk in a hole, is that true? A. Why, sure; he might walk in a hole. A fellow could see from one light, or might see from one light to another." This man had testified on direct examination that the light was kept at the raise to show the men where to walk. Harry Caddy, the shift boss of defendant, testified on cross-examination, as follows: "Q. And you just testified that there was a light

eral habit, and you depended upon that? A. Well, it is my general habit, and, if there was a light out in passing through, we certainly would notice it. I always notice that, because that is part of my business. I had to look out for the light and raises, switches, and such things, and I was the only man on the fifteenth level at that time whose duty it was to do that--to look after the lights. And that is why I am so positive about the fact that the light was there. Q. Did defendant impose that duty of keeping the lights there for protection of the men upon you? A. Well, that is the electrician's through the day, the same as I said before. On the night turn, we look out for them at such places as switches and raises where they are most necessary. I see that they are there. The company expects me to do that for the safety of the men. They expect us to see that we carry that out. That is a part of my duty as shift boss. It was my duty to look after the lights on the fifteenth level. I was the only one that that was imposed upon. I looked after the lights and the motorman, and was the only one on the fifteenth level. Well, there are five of us, but I was on the fifteenth level; yes, sir. I was the only boss on the level, and the only one that was appointed to look after the lights for the safety of the men. Yes, sir; for the safety of the men." We are of the opinion that this evidence tended to show that the light had been placed and kept at the raise by the defendant for the safety and security of the workmen. At least, that question became one of fact for the jury under the evidence. The raise was a dangerous place.

*

3. If this was the duty of the defendant, does the doctrine of fellow servant apply, and can it be said that the matter of the failure to keep the raise lighted was simply the neglect of Caddy, the shift boss, who was the fellow servant of the plaintiff? The lighting of this passageway or thoroughfare of the mine, far distant from the working places of most of those who passed through them-it being always dark in the mine-was just as necessary for the safety of the men, as it was to have the walls and floors in a proper condition. It was one of the "instrumentalities" which it was necessary to provide to enable the men to do their work, and get to and from their work safely. It was a thing which it was necessary to keep permanently in condition. Unlike the case of Livingstone v. Saginaw Plate Glass Co., 146 Mich. 236, 109 N. W. 431, here the place furnished was a permanent place of work, and not one where the conditions were constantly changing. Here, in our opinion, the rule of a safe place to be furnished by the master applies. In Cristanelli v. Saginaw Mining Co., 154 Mich. 423, 117 N. W. 910, it was held that the engineer of a mining hoist in so far as it is

trainmen. In Knapp v. Chicago & West. Mich. R. Co., 114 Mich. 199, 72 N. W. 200, and in Fluhrer v. L. M. & M. S. Ry., 121 Mich. 213, 80 N. W. 23, where brakemen received inju

same holding was made. In McDonald v. Michigan Central R. Co., 108 Mich. 8, 65 N. W. 597, where a brakeman was injured by a defective coupling on an engine, it was held that the engineer whose duty it was to inspect the couplings, etc., on his engine, was not in that respect a fellow servant of the brakeman. In Thomas v. Toledo, Ann Arbor & Northern Ry., 114 Mich. 59, 72 N. W. 40, where a section foreman in selecting a rope for the use of his men was held not in that respect a fellow servant with them; but was a fellow servant in so far as using the rope was concerned. In McDonald v. Michigan Central R. Co., 132 Mich. 372, 93 N. W. 1041, 102 Am. St. Rep. 426, it is held that the car repairer, whose duty it is to inspect the cars, is not in that respect a fellow servant of a conductor. This brings us to the general question of assumption of the risk.

low servant of an employé engaged in loading machinery upon the skip at the collar of the shaft. In Beesley v. F. W. Wheeler & Co., 103 Mich. 211, 61 N. W. 662, 27 L. R. A. 266, Justice Montgomery, in a concurries from holes in a defective track bed, the ring opinion, said: "The rule that it is the duty of the master to furnish a safe place for the servant to work is so universal, and so thoroughly settled, that no citation of authorities is necessary to sustain it. It is also settled in this state that this duty is one which cannot be delegated by the master so that the employé engaged to do the work of making the premises safe is to be treated as a fellow servant of those who are employed and engaged in the general work for which the premises are intended"-citing Van Dusen v. Letellier, 78 Mich. 492, 44 N. W. 572; Brown v. Gilchrist, 80 Mich. 56, 45 N. W. 82, 20 Am. St. Rep. 496; Roux v. Lumber Co., 94 Mich. 607, 54 N. W. 492; Morton v. Railroad Co., 81 Mich. 423, 46 N. W. 111. See, also, Sadowski v. Car Co., 84 Mich. 100, 47 N. W. 598; Town v. Railroad Co., 84 Mich. 214, 47 N. W. 665; Fox v. Iron Co., 89 Mich. 387, 50 N. W. 872; James v. Emmet Mining Co., 55 Mich. 335, 21 N. W. 361. The 4. Did the plaintiff assume the risk? rule is well stated in Baldwin on Personal The doctrine of assumed risks of servants Injuries (2d Ed.) § 386, as follows: "The applies, and is limited in application to master must provide his servant with a safe dangers which the employé either knew, or place in which to work, and furnish him should have known. The evidence in this with suitable machinery and appliances with case may be said to be undisputed that the which to perform such work, and it is his plaintiff did not know as a matter of fact of duty to keep such machinery and appliances the existence of the raise. Therefore, upon in good repair. If he cannot do this himself this branch of the case, the only question personally, he must provide some other per- is whether as a matter of law it can be said son to take his place in this respect, and the that he should have known. The learned person to whom the master's duty is thus circuit judge charged the jury as follows: delegated-no matter what his rank or grade, "Now, it seems to me that this case falls no matter by what name he may be desig- clearly within the cases that, where a dannated-cannot be a servant in the sense or gerous place is apparent and obvious, the under the rule applicable to injuries caused servant is bound in law to observe it. He by fellow servants. Such a person is an has had an opportunity of doing so, and agent, and the rules of law applicable to certainly a man, as the plaintiff did in this principal and agent must apply. He is gen- case, passing this chute or raise as many erally called in the law a vice principal. In times as he did, could not help but have the order to keep the machinery and appliances opportunity of seeing it. I am forced to that safely in repair, the law makes it the duty conclusion the more that I have looked over of the master to make all needed inspections the authorities. It seems to me that it falls and examinations; and he cannot escape re- absolutely within the cases that hold that sponsibility by delegating this duty to one a servant assumes all of those risks that who in other respects may be a fellow serv- are apparent to him if he has an opportunity ant of the person injured by the failure to to observe them for himself. In this case properly perform his duty. The the plaintiff certainly had such opportunity." weight of authority holds that the duty of An inspection of the record will show that inspection cannot be delegated, or the re- there was a conflict in the evidence as to the sponsibility therefor shifted from the mas- appearance of the hole or raise. It is the ter, and that whenever the duty of inspec- claim of the defendant that it was open tion is placed upon a servant, whatever may and obvious to any passerby. But taking be his grade or rank, he is to that extent a into consideration the surroundings, and that representative of the master, though in all there is some testimony which does not other respects he may be a fellow servant." make the opening upon the north side wider In. Anderson v. Michigan Central R. Co., than one foot when looking down upon it, 107 Mich. 592, 65 N. W. 585, and in Balhoff and that the timber underneath had been v. Michigan Central R. Co., 106 Mich. 607, cut off slantingly to enlarge the entrance 65 N. W. 592, it is held that sectionmen in horizontally, it may well be doubted whether so far as they have the duty of keeping the this hole was so apparent, and apparently

*

order for the defendant's contention to pre-
vail upon this point, it should appear that
this hole was so apparent that it must
have been obvious to a person of ordinary
prudence and care in the employe's situa-
tion. That is, it must be such a defect or
hole as would not escape ordinarily careful
observation. Lamotte v. Boyce, 105 Mich.
545, 548, 63 N. W. 517; Bauer v. Am. Car
& Foundry Co., 132 Mich. 537, 94 N. W.
9: "Assumption of risk is a term of the
contract of employment, express or implied
from the circumstances of the employment,
by which the servant agrees that dangers
of injury obviously incident to the discharge
of the servant's duty shall be at the serv-
ant's risk." The employer must furnish a
suitable place where the servant, with due
care, may perform his work without being
exposed to any but the ordinary danger of
his occupation; and the servant will not
be bound to familiarize himself with all the
machinery or appliances which he does not
use himself. The servant has a right to
presume that his safety has been reason-
ably provided for, and in general may use
a walk or appliance without first particular-
ly inspecting it. See Clark v. Wolverine P.
Co., 138 Mich. 673, 101 N. W. 845, where the
loose plank in the walk threw decedent into
the machinery. Also Nichols v. Pere Mar-
quette R. Co., 145 Mich. 643, 108 N. W. 1016,
where it was held that defects in a 35-foot
ladder on the side of a tank, only occasional-
ly used, need not be discovered by a work-
man who uses it, even though ordinary care
and inspection discloses them; and it was
claimed that it presented a question for the
jury. It was said in Boman v. Mashek, 147
Mich. 178, 110 N. W. 518: "A person who is
employed and instructed to commence work
at a particular place is under no obligation
in order to protect himself from a charge
of contributory negligence to first go over a
building or plant and make himself familiar
with each piece of machinery, and the dan-
ger he may incur in coming in contact with
it." And the same rule would apply with
reference to the assumption of risk.
said by Justice Blair in De Kellands v.
Washtenaw Home Telephone Co., 153 Mich.
25, 116 N. W. 564: "When there is a possible
phase of the case where the risk is not as-
sumed, the trial judge cannot properly di-
rect the verdict on the ground that such
risk was assumed."

As was

proximate cause of the injury, should also have been submitted to the jury.

For the errors pointed out, the judgment below must be reversed, and a new trial granted.

KALAMAZOO TRUST CO. v. MERRILL. (Supreme Court of Michigan. Feb. 3, 1910.) 1. PARTNERSHIP (§ 104*)-ACTIONS BETWEEN PARTNERS.

A partnership may not maintain an action at law against one of its partners.

[Ed. Note.-For other cases, see Partnership, Cent. Dig. § 156; Dec. Dig. § 104.*]

2. PARTNERSHIP (§ 115*)-ACTIONS BETWEEN PARTNERS-PARTIES.

In actions at law, by or against a partnership, all the partners must be named as plaintiffs or defendants, as the case may be.

[Ed. Note. For other cases, see Partnership, Cent. Dig. § 178; Dec. Dig. § 115.*] 3. CONTRIBUTION (§ 6*)-ACCRUAL OF RIGHT -PAYMENT OF JOINT LIABILITY.

One joint obligor may not sue another joint obligor on their common obligation until he has paid the debt, or a larger portion thereof than. as between, himself and his co-obligor, he would be liable to pay.

[Ed. Note. For other cases, see Contribution, Cent. Dig. 88 10-12; Dec. Dig. § 6.*] 4. PARTNERSHIP (§ 104*)-ACTIONS BETWEEN

PARTNERS.

Where three of the six members of a partnership doing a banking business were, with defendant and others, liable as makers or guarantors on notes running to the bank, the firm could not sue at law on the notes against defendant; none of the three partners liable on the notes having paid the same.

Cent. Dig. § 156; Dec. Dig. § 104.*]
[Ed. Note. For other cases, see Partnership,

5. BANKRUPTCY (§ 281*)-ACTIONS BY TRUS

TEE.

A trustee in bankruptcy of the banking partnership could not maintain the action, having no better right than the bank.

Dec. Dig. § 281.*]
[Ed. Note. For other cases, see Bankruptcy,

Error to Circuit Court, Calhoun County;
Walter H. North, Judge.

Action by the Kalamazoo Trust Company, a corporation, as Trustee in Bankruptcy of the Union Bank, Whitney, Gilkey & Co., From the judg against David L. Merrill. ment, defendant brings error. Reversed, and no new trial ordered.

Gilkey, Bowman, Wilson, Dewey, Whitney and Stratton, were equal copartners, engaged in the banking business under the firm name of Union Bank, Whitney, Gilkey & Co. GilIn our opinion the circuit judge should key, Bowman and Wilson, together with dehave left to the jury the question as to fendant and several others, signed, either as whether the risk resulting from the pres- makers or guarantors, promissory notes to ence of this raise was open and apparent, the amount of $83,200. Gilkey signed with and was assumed by the plaintiff. We think defendant, either as maker or guarantor, $83.the question was for the jury under proper 000 of these notes. Bowman signed with deinstruction, and that the court erred in di- fendant, either as maker or guarantor, $28,recting a verdict for the defendant. The 000 of these notes, and Wilson signed with questions of contributory negligence, and the defendant, either as maker or guarantor, whether the absence of the light was the $22,000 of these notes. The notes all ran

gors might also be adjudicated. (2) That the defendant, D. L. Merrill, had paid other notes to the amount of about $20,000, principal and interest, given at the same time, for the same purpose, in connection with the same transactions, and on which these same copartners Patrick H. Gilkey, Elias W. Bowman, and Rell S. Wilson were jointly obligated with the defendant. That the defendant has a legal and equitable set-off against all the notes and guaranties sued upon, they being the notes and guaranties of Patrick H. Gilkey, Elias W. Bowman, and Rell S. Wilson, three of the six members of this copartnership, and that a court of equity is the proper tribunal to sift out and determine the rights and liabilities of all parties at interest. (3) That the trustee has in its possession all of the property and assets of Patrick H. Gilkey, Elias W. Bowman, and Rell S. Wilson, which, under the bankruptcy statute, must be first applied to the payment of their individual

to Rell S. Wilson, cashier of the copartner- | respective rights and interests of the co-obliship bank. As to $83,000 of the $83,200 worth of notes, the liability of Gilkey was the same as that of the defendant. Upon $28,000 worth of them Bowman was likewise equally liable. And upon $22,000 worth of them Wilson was likewise equally liable. These notes were discounted by the copartnership bank, and the money was used in connection with the business of two corporations, in each of which Gilkey, Bowman, Wilson, and defendant were stockholders. Wilson, besides being cashier of the bank, was manager of one of these corporations and treasurer of the other. No payments have been made on the notes by any person liable thereon. Defendant offered to show that he had paid $20,000 worth of other notes upon which Gilkey, Bowman, and Wilson were liable, which notes were given in connection with the same enterprises as those above mentioned were given. This proof was excluded. In November, 1907, the partnership bank was adjudicated a bankrupt, and each of the six partners was like-indebtedness; that, the notes sued upon bewise so adjudicated. The plaintiff in this case was appointed and duly qualified as trustee, not only of the estate property and assets of the copartnership, but likewise of the property of each of the six partners. Plaintiff brought suit in assumpsit upon the notes against the defendant.

Under the plea of the general issue defendant gave notice of special defense in substance as follows: "(1) That Patrick H. Gilkey, Elias W. Bowman, and Rell S. Wilson, three of the six men forming the copartnership, Union Bank, Whitney, Gilkey & Co., are joint makers and guarantors with the defendant on all the notes sued upon; that one joint obligor has no right of action against a coobligor until he has paid the debt, and then his suit would be for contribution; that, neither Mr. Gilkey, Mr. Bowman, or Mr. Wilson having paid the notes, or any of them, they could not sue Mr. Merrill; that Gilkey, Bowman, and Wilson could not collect from the defendant a debt which they themselves owed as well as the defendant; that, Gilkey, Bowman, and Wilson, being barred from bringing suit themselves, they could not do so by join- | ing in the action Wallace W. Dewey, Richard D. Whitney, and Asa Stratton, who are in privity with them; that the trustee in bankruptcy has no greater rights than the copartnership it represents, and could not bring an action which the partnership could not bring; that any proceedings brought either by said copartnership or its representatives on these notes owed by the defendant and three of its copartners should be in a court of equity where the interest of the copartners Wallace W. Dewey, Richard D. Whitney, and Asa Stratton, who are not obligated on the notes, could be determined, where an accounting between the firm and Patrick H. Gilkey, Elias W. Bowman, and Rell S. Wilson might be had to ascertain whether they owed the

ing the notes of these copartners and a part
of their individual indebtedness, the said
trustee, as a duty in carrying out his trust,
should apply this property on said notes pro
rata with other individual indebtedness; that
if the defendant be compelled to pay these
notes, he would have no recourse against
the property of Patrick H. Gilkey, Elias W.
Bowman, and Rell S. Wilson, as their estate
is in the hands of the trustee, and would be
distributed among those persons who were
creditors of said parties at the time of the
filing of their petitions in bankruptcy. For
these reasons a court of equity is the proper
tribunal. (4) That at the time the notes at
issue were given it was the understanding
and agreement that all parties should sign
all notes; that as to all those notes not so
signed the defendant is not liable. (5) That
no steps were taken by either the copartner-
ship, or by any one for or in its behalf, to
charge the defendant as either indorser or
guarantor, and for this reason he is not lia-
ble. (6) That the trustee has in its posses-
sion a large amount of collateral, to wit, $90,-
000, par value of the capital stock of the
Price Cereal Food Company, given to secure
the payment of the notes known as Price
Cereal Food Company notes, for which col-
lateral said trustee should account to this de-
fendant and the other owners thereof, and
credit the value of said stock on said notes.
(7) That the notes were without considera-
tion."

Proof was offered, but excluded, showing that the trustee proved its claim under these notes against Gilkey's individual estate for $95,502.13, and against Bowman's individual estate for $37,194.22. The schedule filed by Gilkey in bankruptcy shows individual assets of his in the hands of the trustee of nearly $50,000. The trustee also has in its possession individual assets of Mr. Bowman

sands of dollars. A verdict against defendant was directed by the court, to the amount of $81,789.76. The jury, upon questions of fact submitted by the court, found a further liability, bringing in a total verdict against defendant for $92,923.36. The case is before us upon writ of error.

tions to the rule rather than to afford any modification of it. But it is urged by plaintiff's counsel that, even conceding this to be the rule, it has no bearing upon the case before us because Merrill, the defendant, was not a member of the copartnership, and therefore no reason exists under the authori

Argued before HOOKER, MOORE, MCAL ties cited why he should not be made defendVAY, BROOKE, and BLAIR, JJ.

A. M. & C. H. Stearns and Arthur B. Williams, for appellant. Stewart & Jacobs and Dallas Boudeman, for appellee.

ant in a suit at law wherein all the partners were parties plaintiff. This would be unquestionably true if in fact all six members of the copartnership bank are under no disability which would prevent them from becoming BROOKE, J. (after stating the facts as parties plaintiff in a suit at law upon these above). Two questions are involved in this notes. It will be remembered that Gilkey, controversy: (1) Could the copartnership Bowman, and Wilson are jointly and severalbank itself have maintained a suit at law up-ly liable with the defendant upon the paper. on said notes, it being conceded that three of the six members were jointly liable with the defendant thereon? (2) If this is answered in the negative, can the trustee maintain such suit?

With reference to the first question we think it may be said to be settled law in this state that a copartnership may not maintain a suit at law against one of its partners, and the reason for the rule is that, inasmuch as all the partners have a joint interest in the claim, all are necessary parties plaintiff, and to permit the action would present the anomaly of a single individual acting as both plaintiff and defendant in the same suit. And it is elementary that in suits at law, by or against a copartnership, all the partners must be named as plaintiffs or defendants, as the case may be. As to both these propositions, the authorities (where, as in this state, the common law obtains) are practically unanimous. 30 Cyc. pp. 561, 567; Mechem's Elements of Partnership, §§ 130, 131, 147, 225; George on Partnership, p. 363; Smith v. Canfield, 8 Mich. 493; Barber v. Smith, 41 Mich. 138, 1 N. W. 992; Learned v. Ayres, 41 Mich. 679, 3 N. W. 178; Davis v. Merrill, 51 Mich. 480, 16 N. W. 864; Carpenter v. Greenop, 74 Mich. 664, 42 N. W. 276, 4 L. R. A. 241, 16 Am. St. Rep. 662; McGowan v. Lamb, 66 Mich. 615, 33 N. W. 881; Grimes v. Bowerman, 92 Mich. 258, 52 N. W. 751; Reed v. Gould, 105 Mich. 368, 63 N. W. 415, 55 Am. St. Rep. 453; Stever v. Brown, 119 Mich. 196, 77 N. W. 704. See, also, Jacand v. French, 12 East, 317; Toronto Bank v. Nixon, 4 Ont. App. 346; Hoare v. Oriental Bank Corp., 2 App. Cas. 589; In re Wakeham, 12 Q. B. D. 43; Demazar v. Pybus, 4 Ves. Jr. 644; Jones v. Blun, 145 N. Y. 333, 39 N. E. 954; Strauss v. Frederick, 91 N. C. 121; Chambers v. Sloan, 19 Ga. 84; Harris v. Visscher, 57 Ga. 232; Schreiner v. United States, 6 Ct. Cl. 359; Cases cited 15 Ency. Pl. & Pr. 839. The cases of Kinney v. Robison, 52 Mich. 389, 18 N. W. 120, Mitchell v. Wells, 54 Mich. 127, 19 N. W. 777, Carpenter v. Greenop, 74 Mich. 664, 42 N. W. 276, 4 L. R. A. 241, 16 Am. St. Rep. 662, and Cook v. Canny, 96 Mich. 398, 55 N. W. 987, relied upon by appellee, will be

We

Can these three men, who, as we have shown, are necessary parties plaintiff, maintain a suit at law upon the notes against their coobligor, no one of them having paid the debt secured thereby, or any part thereof? think not. One joint obligor may not sue another joint obligor, upon their common obligation, until he has paid the debt, or a larger portion thereof than, as between himself and his co-obligor, he would be liable to pay. His action would then be for contribution. 9 Cyc. pp. 798-801, and cases cited; Tobias v. Rogers, 13 N. Y. 59. All six being necessary parties, and three being under disability, the suit at law could not be maintained by the copartnership bank. Let us see what the result would be if the copartnership bank were permitted to maintain a suit at law upon the notes. For convenience, let us suppose that the notes amount to $100,000, and that Gilkey, Bowman, and Wilson are, with defendant, equally liable upon all of them. Then the bank would recover a judgment against defendant for $100,000, $75,000 of which it was the duty of Gilkey, Bowman, and Wilson to pay. And who receives the $100,000? The copartnership bank, one half of which is owned by Gilkey, Bowman, and Wilson. Therefore these three men, instead of paying $75,000, actually receive $50,000. Such a result would be manifestly monstrous.

It is not necessary that this defendant should first pay the notes, and then have recourse to a suit for contribution against his co-obligors. Nor is his claim against them one in the nature of a set-off, as claimed by appellee. It is his right to have the equities, as between himself and his co-obligors, adjusted in the action upon the instrument, where such instrument is, in part, the property of those equally liable thereon with himself, and this conclusion does no violence to the rights of the copartnership or of the three members thereof, not themselves liable upon the paper. The copartnership bank, in taking the paper of three of its members, must be presumed to have known that a suit at law could never be maintained thereon because of the lack of necessary parties plaintiff. This was an infirmity in the paper, apparent

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