other large sums of money in the reconstruction, rebuilding and repairing of said roads, to wit: $2,000 per mile thereof, and all to the plaintiff's damage $100,000, and for the recovery of which this suit is brought.

Plea.

Now come the said defendants, Republic Motor Truck Co., Inc., Frank W. Ruggles and Charles G. Rhodes, by Lyon & Searl, their attorneys, and demand a trial of the matters set forth in plaintiff's declaration in said cause.

And said defendants will, upon the trial of said cause, produce testimony tending to show and show, in case it is deemed necessary or proper so to do, the following:

1. That this action is not commenced or prosecuted by any person or official authorized by law to commence and prosecute the same.

2. That it does not appear by or from said declaration or either of the counts thereof that any of the roads mentioned and referred to therein were or are public highways of said township of Arcada of such character and standing as to authorize any action to be brought on account of any alleged injuries thereto or to any of them;

3. That said defendant Republic Motor Truck Co., Inc., was not incorporated until, to wit: August 16th, 1916, and did not act in any corporate capacity prior to its said incorporation.

4. That said defendants Frank W. Ruggles and Charles G. Rhodes did not become officers or directors of said company and were not active officers thereof, and did not direct and manage or assist in managing any of the affairs and bustness of said company prior to said date of its said incorporation.

5. That whatever, if any, acts either or both of said defendants, Frank W. Ruggles and Charles G. Rhodes, did or performed, and they deny that they did or performed any in reference to the trucks of said company being driven upon all or any of the public highways of said township of Arcada, they did and performed as officials of said company, not in any other capacity, and were not personally and directly financially profited thereby, and that if any profit arose therefrom it was the profit of said defendant Republic Motor Truck Co.,

Inc.

6. That whatever, if any, of the motor trucks of said defendant, Republic Motor Truck Co., Inc., were driven or operated upon all or any of the public highways of said township of Arcada, mentioned and referred to in the declaration in said cause, were motor vehicles within the terms and provisions of the statutes of said state applicable thereto.

7. That from and since, to wit: December 1st, 1917, to, wit: the time of the commencement of said cause, said defendant, Republic Motor Truck Co., Inc., assembled and manufactured for the United States of America, a large number, to wit: three thousand and upwards, of Standard Army Motor trucks and other motor trucks for the purpose of being used in and about the prosecution of the Great War, until recently raging in Europe and elsewhere, said motor trucks having been so assembled and manufactured under contracts, formal and informal, between said motor truck company and the proper officials of said United States of America, and that by the terms, provisions and requirements of said contracts, and by direction and requirement of the United States of America, by its proper army officials and others, said motor trucks so assembled and manufactured were required to be driven and operated upon public highways so that each of said trucks had received a road test of, to wit: 50 miles; wherefore, said plaintiff had and has no cause of complaint, even if it should appear that by reason of the operation and driving of said trucks upon its said highways they became injured and impaired.

damages for injuries to a county road alleged to have been occasioned by an excessive and unusual use of the road by the defendant. It appeared that there were two statutory provisions relating to the subject of injury to public roads: one (Ky. Stat. § 4335), making

any person who should "wilfully obstruct, injure or destroy" any of the public roads, liable to a fine and to a civil action for double damages to the county; the other (Ky. Stat. § 4325), providing that any person who by unusual use of a road materially damaged

8. That the roads mentioned and referred to in said declaration of said plaintiff were public highways, subject to travel thereon for all lawful purposes of the motor trucks mentioned and referred to in said declaration, and that whatever, if any, of said motor trucks were driven or operated upon said highways were so driven and operated for lawful purposes.

9. That whatever, if any, of said motor trucks were so driven and operated upon all or any of the highways mentioned and referred to in said plaintiff's declaration were entitled to so be driven and operated thereon, and were not carrying loads or weights in excess of the loads and weights lawfully permitted to be carried.

10. That the first count of said declaration has not by its terms, any application and is not relevant to the facts alleged in said first count.

11.

That the second count of said declaration does not state a cause of action. 12. That the first count of said declaration does not state a cause of action.

STONE, J. This case was brought here by the plaintiff's on writ of error to review a judgment for the defendants entered upon a directed verdict based upon the opening statement of plaintiffs' counsel. It appears from the declaration and opening statement of plaintiffs' counsel, which latter must here be treated as true, that prior to 1902 the electors of the county of Gratiot voted upon the proposition of adopting the county road law, and it failed to carry, and was not adopted by said county. That the township of Arcada, Gratiot county, at its annual township meeting in 1902, by a vote of its electors adopted what is known as the township road system, whereby the management and control of all its highways, and of all its moneys raised for highway purposes, are placed in the hands of a commissioner of roads, elected for that purpose; and since that date the township has at all times constructed and maintained its highways and has raised and expended its highway funds under this township system. That after such adoption a resolution was passed by the township board of said township taking. in, under the law, all of the public roads of the township. The township has also elected a highway commissioner, and had such commissioner at the time of the commencement of this suit. This action was begun by the plaintiff Struble, as commissioner of roads of such township, to recover damages for injuries to its highways inflicted by the defendants, as stated in the declaration in the case.

The declaration consists of two counts. In the first count it is alleged that the defendant Republic Motor Truck Company, Inc., was then and had been during the last 6 years engaged at the city of Alma, in

the same should repair all the damage caused thereby, upon notice by the supervisor or overseer of roads, and subjecting such person to a fine upon failure to repair the damage within a reasonable time after such notice. It was held that the action could not be maintained under the first section, as there was no allegation in plaintiff's

petition that the defendant "wilfully" obstructed, injured or destroyed the road in question; and that there was no liability under the second section by reason of the fact that the petition did not allege the statutory notice to the defendant to repair the damage done and the defendant's failure to comply therewith.

said county, in the manufacture of motor trucks, and during the time. alleged had manufactured and turned out large numbers of motor trucks each day. That the other defendants were then, and had been during said period, directors and executive officers of said company, and directed and managed all the affairs and business thereof, and directed and caused to be done all of the illegal acts complained of. That the said defendants, without any right so to do, unlawfully, wilfully, and with a reckless disregard of the rights of the plaintiff during each of the years 1913 to May, 1919, took possession of, and appropriated to their own private use all of the public roads of said township (theretofore described), together with all the bridges thereon, and used the same as and for testing grounds, and for the testing of their motor trucks aforesaid, and ran out, upon and over all said public roads a large number, to wit, 25 motor trucks, each of which they heavily loaded with a great weight, to wit, 4 tons, and each of said motor trucks so loaded the defendants drove each day with great speed over and upon all said public roads and bridges, and thereby the said defendants, unlawfully, recklessly, wantonly and wilfully, and with an intentional disregard of the rights of the said township, tore up and destroyed all of said roads, and tore up and destroyed the foundations thereof, and threw the surfaces off said roads, made large and deep ruts and holes therein, and injured and destroyed the bridges, tore off and threw the planks therefrom, and otherwise greatly injured and impaired the good condition of said roads and bridges; and that by reason thereof the said township has been compelled to expend large sums of money in the necessary repairing and rebuilding of said roads, to wit: $2,000 per mile thereof, and must necessarily expend other large sums of money in the reconstruction, rebuilding and repairing of said roads, to wit, $2,000 per mile thereof; which acts were and are contrary to the provisions of section 4464, 1 Comp. Laws 1915, and whereby, and by the provisions whereof, the defendants are liable to these plaintiffs in damages to three times the amount of said injuries to said public roads.

The second count of the declaration alleges the same unlawful, reckless, wanton, wilful and intentional misconduct on the part of the defendants as that contained in the first count, but makes no reference to the statute.

B. Weight regulations.

In White v. Turner, Wash. -, 195 Pac. 240, 197 Pac. 609 (1921), it appeared that plaintiff was engaged in the business of hauling sawlogs, loaded on trucks and trailers, through the streets of a city, and it was claimed that he was thereby ruining and de

stroying the streets. A city ordinance provided that it should be unlawful for any person to drive upon any public street within the corporate limits of the city any vehicle or object, which, with or without its load, should be of such weight as to destroy or permanently injure the street. Plaintiff sought to enjoin the commissioner of

Upon the filing of the defendants' plea and notice raising the question that the commissioner of roads was not the proper official to bring such action, and because section 4464, above referred to, names the highway commissioner as the person entitled to bring the action, the plaintiffs afterwards amended their declaration by adding the name of Clyde Bishop as highway commissioner, as an additional party plaintiff.

The case came on for trial, a jury was impaneled and sworn, and counsel for plaintiffs made an opening statement to the jury covering 14 pages of the printed record. In this statement counsel for the plaintiffs stated in great detail that he would introduce evidence to show the unlawful, wrongful, wilful and wanton acts of the defendants alleged in the plaintiffs' declaration. His statement was to the effect that the defendants had been guilty of wilfully, intentionally and recklessly injuring the highways and bridges in said township in the manner described in the declaration. This opening statement is too lengthy to be here repeated. We make one or two short quotations therefrom:

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"We will show you they were reckless, they didn't care what they did to the roads; that they knew they were tearing them up; that they did it wilfully, knowingly, and did it with an utter disregard of the rights of the taxpayers of that township, and of any damage it might be to the road. At times they would get them in the ditch because of reckless driving or some other reason, and then they would spin these wheels until those wheels would bury themselves on the side of the road and upon the edge of the road where they would tear the foundation out. We will show you that time and time again, after those trucks would get buried there by the side of the road a fleet of them, or four or five or more of them, would come down and hitch onto them for the purpose of drawing them out of the mud, and while they were in there these trucks, some of them extended up in the road, some on the side of the road, and they would draw them out. Sometimes there would be six or seven of these trucks hitched together in the mud, operating there, plowing up and digging out the highways, these highways I have spoken to you about that cost them this money. They destroyed the highway. We will show you at some times if another truck was not near, they would get spades and they would dig a great hole in digging the truck out, dig it out without any regard to what they did to the road; just dig a great hole in the road that you could bury a horse in, and go away and leave it, and perhaps send word to the highway officers that they could come there and fill up the hole. We will show you that they did that. We will show you that this was done recklessly, wantonly, wilfully, and, as I said before, with an utter disregard to the rights of the township and its roads. We will show you that although notified, they would not stop it; they refused to stop it, but simply continued in that manner, put these fleets of heavy trucks out upon the road and have them run in the manner I have stated; that this reckless, fast and furious driving would hurt the road, hurt the culverts and hurt the bridges."

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public safety from enforcing the ordinance against him and from interfering with his use of the streets in the manner he was using them. It was adjudged that the ordinance was good and valid and that plaintiff's complaint should be dismissed.

Defendant was convicted of heavy hauling over macadam and gravel road

in violation of the provisions of a statute which prohibited heavy hauling over any turnpike, macadam, or gravel road, while the same was in a condition to be cut up and injured thereby. The proof showed that the defendant hauled over the road a load of corn in a wagon with double sideboards and tires one ineh and three-quarters in

This and much other similar wilful and wanton misconduct on the part of the defendants and their servants are claimed in the opening statement of counsel.

At the conclusion of this statement, and upon motion of defendants' counsel, the court directed a verdict for the defendants for the reason that there was no right of recovery in the plaintiffs under their declaration, even if the facts should be shown as stated by counsel in his opening statement, upon which ruling error is assigned.

The facts constituting plaintiffs' cause of action are conceded to be as stated in plaintiffs' opening statement. It was also stated by counsel in such statement that the defendants' trucks, while being so tested upon the highways, bore no license plates.

At the trial it was contended by the defendants that neither of the plaintiffs was entitled to bring the action, and that if any action could be maintained it should be brought in the name of the supervisor of the township. A reference to the record will show that this point was urged as one of the reasons for a directed verdict, and it is the subject of the 1st, 2d and 4th assignments of error. On the other hand, it was the contention of the plaintiffs that the suit was properly brought, and by the proper officials.

It was also the claim of the defendants that under the statute the township system had been abolished. It was conceded in the course of the opening statement that the county of Gratiot did not adopt the county road system previous to 1913. A careful examination of the many acts of the legislature here involved brings us to the conclusion that the township system in Arcada township has not been abolished, and that the action may be maintained in the name of the highway commissioner of the township. We shall not attempt to quote from the many acts of the legislature here involved. It appears, however, that the original act creating the present county and township system of roads was Act No. 149, Pub. Acts 1893 (1 Comp. Laws 1915, §§ 43474377). This act, as originally passed, while providing for the county and township road system, did not provide for any township system to be operated under and through its own officers.

The legislature later passed Act No. 230, Pub. Acts 1895. This act

width, the weight of the wagon, corn and driver being about 3,360 pounds. There was evidence that the ground was thawing from the bottom and was left wet and sloppy on the surface from rain and snow, and that water was standing in the wagon ruts along the road. It was held that the evidence was sufficient to warrant the jury, in

the exercise of its judgment, to find the defendant guilty. Lucas v. State, 173 Ind. 302, 90 N. E. 305 (1910).

In Standard Oil Co. v. Common

wealth, Va. 109 S. E. 316 (1921), it appeared that a legislative act empowered the boards of supervisors of the several counties in the state to enact such special and local legislation