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session or a stranger who has injured the mortgaged property and impaired the security by a removal of fixtures or things of value therefrom, is decided in Lavenson v. Standard Soap Co., 80 Cal. 245; 13 Am. St. Rep. 117, and the subject is treated at considerable length in a note appended to that case, at pages 153 to 156. Most of the cases cited in that note, as well as the principal case to which it is appended, maintain that before a mortgagee is entitled to bring an action against persons removing fixtures or things of value from the mortgaged premises, and before he is entitled to recover the damages occasioned thereby, he must first foreclose his mortgage, and ascertain that a deficiency remains due to him, Otherwise he canuot main. tain the action: Berthold v. Holman, 12 Minn. 333; 93 Am. Dec. 231; Ken. nery v. Burge88, 38 Mo. 440; Corbin v. Reed, 43 Iowa, 459. But there is another line of decisions affirming that the mortgagee can maintain an action and recover damages against the mortgagor or a third person for substantial and permanent damage done by him to the mortgaged property, even though in its damaged state or condition it is of sufficient value to satisfy the mortgage debt: Gooding v. Shea, 103 Mass. 360; 4 Am. Rep. 563; King v. Bangs, 120 Mass. 514; Tarbell v. Page, 155 Mass. 256; Byrom v. Chapin, 113 Mass. 308; Dorr v. Dulderar, 88 Ill. 107; Morgan v. Gilbert, 2 Flip. 645; In Byrom v. Chapin, 113 Mass. 308, the court said: “This case must be governed by the decision in Gooding v. Shea, 103 Mass. 360; 4 Am. Rep. 563. The owner of the equity has no more right than a stranger to impair the security of the mortgagee by the removal of buildings or fixtures, thereby causing substantial and permanent injury and depreciation to the mortgaged estate. The right of action in such case is based upon the mort. gagee's interest in the property, and the damages are measured by the ex. tent of injury to that property: Woodruff v. Halsey, 8 Pick. 333; 19 Am. Dec. 329; Page v. Robinson, 10 Cush, 99. It does not depend upon, and the damages are not to be measured by, proof of insufficiency of the remain. ing security. The mortgagee is not obliged to accept what remains as satisfaction pro tanto of his debt at any valuation whatever. He is entitled to the full benefit of the entire mortgaged estate, for the full payment of bis ontire debt."

MULLEN v. City of Owosso.

[100 MICHIGAN, 103.) NEGLIGENCE-WIEN IMPUTED.— The negligence of the driver of a private

conveyance in driving over an obstruction in the street is imputable to a person of the age of discretion who voluntarily rides with him, and prevents his recovery for the injuries received. G. L. Keeler and J. T. McCurdy, for the appellant. 0. Chapman, for the respondent.

104 LONG, J. The plaintiff, a woman about thirty-four years of age, was riding with Mr. Pond in a private carriage drawn by one horse along a public street in the city of Owosso. Overtaking Mr. Sanders, who was driving in the same direction, Mr. Pond attempted to pass him. Sanders

was driving at a rapid rate, and Mr. Pond, in attempting to pass, started his horse rapidly forward. The parties raced for a distance, when Mr. Pond ran over a pile of sand in the highway. His carriage was overturned, and plaintiff thrown out and injured.

The proofs are clear that Mr. Pond knew that a building was being erected by the side of this street, and that a mortar-box and other materials were out in the street, in front of it. He stated that on a former trial he testified that he knew the street was encumbered by such materials, and thought that somebody was liable to get hurt there. Yet, in view of this knowledge, he carelessly drove his horse at the rate of more than six miles an hour in the street, contrary to the ordinances of the city. The court directed the jury: “ If you find from the evidence in this case that the plaintiff would not have been injured but for the neglect of the city to give proper warning, then the plaintiff would be entitled to recover, unless you find that Mr. Pond knew of the obstruction to a portion of this street, 105 and heedlessly drove over the obstruction, then he would be guilty of gross negligence, and plaintiff could not recover.”

Again the court said: “If the plaintiff in this case voluntarily entered the private conveyance of Mr. Pond, and voluntarily trusted her person and safety in that conveyance to him, by voluntarily entering into the private conveyance of Mr. Pond, she adopted the conveyance, for the time being, as her own, and assumed the risk of the skill and care of the person guiding it. So, if you find that Mr. Pond was negligent in driving fast,.... the plaintiff in this case could not recover."

The jury returned a verdict in favor of the defendant.

The only question presented by the brief of plaintiff's counsel is whether the negligence of Mr. Pond is imputable to the plaintiff. This question was settled in the affirmative in Lake Shore etc. R. R. Co. v. Miller, 25 Mich. 274, which was decided by this court in 1872, and has not since been departed from. Counsel claim that some doubt has been cast upon this doctrine by some of the later decisions, and cite Battishill v. Humphreys, 64 Mich. 503. In that case a child three years of age was run over by an engine upon a railroad operated by defendants as receivers. The question was raised whether the negligence of the parents in permitting the child to go upon the track was imputable to the child.

Mr. Justice Morse held that such negligence was not imputable to the child. The other justices expressed no opinion upon that point. In Shippy v. Village of Au Sable, 85 Mich. 280, the question whether the negligence of the parents was imputable to a child three years of age was again presented; and, upon a full hearing, it was the unanimous opinion of the court that such negligence was not imputable to the child. Other cases of like character have been presented to this court, involving that question; and the rule 106 is now established that, when the child brings the action for negligent injuries, the negligence of the parents cannot be imputed to it.

But the present case presents quite a different question, Here a person of the age of discretion voluntarily enters a private conveyance of another to ride, and by the carelessness of that person is injured. The rule laid down in the Miller case, cited above, precludes al recovery. It has been too long settled to be now disturbed. In Schindler v. Milwaukee etc. Ry. Co., 87 Mich. 4:0, the rule was recognized. It was there said of the Miller case: “This is the general rule, and has been since flowed in this state.” The rule was also recognized by this court in Cowan v. Muskegon Ry. Co., 84 Mich. 583.

Judgment is affirmed.
Grant and MONTGOMERY, JJ., concurred with LONG, J.

HOOKER, J., dissented on the ground that, before the negligence of the driver of a vehicle or carriage of any sort can be imputed to a passenger or person riding in such vehicle, it must be shown that the driver is the agent of the passenger, or under his direction and control. Judge Hooker acknowledged that the case of Thorogood v. Bryan, 8 Com. B. 115, sustains the position taken in the majority opinion, but said that that case was dis. regarded in the subsequent case-Rigly v. Hewitt, 5 Ex. 240—and distinctly overruled in The Bemina, 12 Pro. Div. 58; Mills v. Armstrong, 13 App. Cas. 1-7; and Little v. Hackett, 116 U. S. 366. He contended that the great weight of authority establishes the rule that “in cases like the present the question becomes one of fact; the test of the passenger's responsibility for the negligence of the driver depending upon the passenger's control, or right of control, of the driver, so as to constitute the relation of master and servant between them,” and cited the following cases in support of such rule: Little v. Hackett, 116 U. S. 360; Missouri etc. Ry. Co. v. Texas Pac. ly. Co., 41 Fed. Rep. 316; Larkin v. Burlington etc. Ry. Co., 85 Iowa, 492; New York etc. R. R. Co. v. Steinbrenner, 47 N. J. L. 161; 54 Am. Rep. 126; Randolph v. O'Riordon, 155 Mass. 331; Galveston etc. Ry. Co. v. Kutac, 72 Tex. 643; Cahill v. Cincinnati Ry. Co., 92 Ky. 245; Nesbit v. Town of Gar. ner, 75 Iowa, 314; 9 Am. St. Rep. 486; Dean v, Pennsylvania R. R. Co., 129

Pa. St. 514; 15 Am. St. Rep. 733; Masterson v. New York Cent. etc. R. R. Co., 84 N. Y. 247; 38 Am. Rep. 510; Noyes v. Boscawen, 64 N. H. 361; 10 Am. St. Rep. 410; Follman v. City of Mankato, 35 Minn. 522; 59 Am. Rep. 340; Philadelphia etc. R. R. Co. v. Hogeland, 66 Md. 149; 59 Am. Rep. 159; State v. Boston elc. R. R. Co., 80 Me. 430; Town of Knightstown v. Musgrove, 116 Ind. 121; 9 Am. St. Rep. 827; Chicago etc. R. R. Co. v. Spilker, 134 Ind. 380. He denied that the question before the court had been settled or nec. essarily involved in the case of Lake Shore etc. R. R. Co. v. Miller, 25 Mich. 274, and said: “I think it may be said that the question before us was not necessarily involved in the Miller case, and that it was not considered the controlling point. If it is to be treated as conclusive, against the overwhelming weight of authority in the United States and England, we shall apparently accept an incidental remark in an opinion as decisive upon an important principle, which deserved a full discussion before being settled. An examination will show that this decision has never since been applied beyond a recognition of the doctrine in cases where it was not involved in the decision. It was mentioned and recognized in Cuddy v. Iorn, 46 Mich. 596; 41 Am. Rep. 178; but the court disposed of the case upon the ground that the passenger upon a yacht had no control of the management. In Schindler v. Railway Co., 87 Mich. 411 the court again recognized the rule, saying that it was settled in Lake Shore etc. R. R. Co. v. Miller, 25 Mich. 274, but that it did not apply, because the defendant was guilty of wan. tonness. The plaintiff was a child riding with a neighbor. Mr. Justice Champlin, in a concurring opinion, protested against the doctrine: 87 Mich. 416.

"In Battishill v. Humphreys, 64 Mich. 508, Mr. Justice Morse uses the following language: 'I am not content to let the question pass as a settled one in this state. At least I am not willing to assent to the proposition that the negligence of any other person can become the contributory negli. gence of a plaintiff without his fault.'

“In the case of Shippy v. Village of Au Sable, 85 Mich. 292, Mr. Justice Morse expressed satisfaction with the views in the Battishill case, and added: 'I am also satisfied that the greater weight of authority in this country is now opposed to the contention of the defendant.'

“In neither of these cases was the doctrine of Lake Shore etc. R. R. Co. V. Miller, 25 Mich. 274, applied.

“It seems, therefore, that the authority of the case of Lake Shore etc. R. R. Co. v. Miller, 25 Mich. 274, has been repeatedly questioned. The time has arrived when the question must be settled. I think it should be in conformity to the weight of authority and the better rule.

“The judgment should be reversed, and a new trial ordered. “McGrath, C. J., concurred with Hooker, J."

NEGLIGENCE OF DRIVER OF VEHICLE, WHETHER IMPUTED TO PASSEN. GER. — The negligence of the driver of a wagon and team which collides with a railway train does not necessarily preclude a recovery by a person riding in the wagon with such negligent driver; but such person cannot recover in such a case unless it affirmatively appears that his own negligence did not proximately contribute to his injury: Miller v. Louisville etc. Ry. Co., 128 Ind. 97; 25 Am. St. Rep. 416, and note.



accepting livestock for transportation under a contract providing that it " is to be loaded, unloaded, fed, watered, and otherwise cared for, while in the cars, by the shipper or owner" thereby becomes a bailee for hire, and, having control of the cars in which the stock is shipped, is bound to furnish the shipper an opportunity to give the animals the

care they may require in case the train is delayed. CARŘIERS OF LIVESTOCK - NEGLIGENCE – SUFFICIENCY OF PLEADING AND

Proof.-In an action by a shipper of livestock against a railroad com. pany to recover the value of an animal lost a declaration which alleges both delay in the transportation and failure to furnish an opportunity for feeding and watering the stock justifies a recovery upon proof of omission on the part of the company to furnish an opportunity to the shipper to feed and water the stock, although the company is not liable

for the delay. NEGLIGENCE - SUFFICIENCY OF COMPLAINT. If any negligent act of one

party is charged which, in the conditions existing, results in loss to another, the latter is entitled to recover, although the declaration may charge other acts as negligent which are either not proven or which


provision in a contract for the carriage of livestock that "the stock is to be loaded, unloaded, fed, watered, and otherwise cared for, while in the cars, by the shipper or owner, does not mean that the duty is to be performed by the shipper while the train is in inotion and without being afforded an opportunity by the carrier to perform the duty. On the contrary the carrier must afford the shipper such opportunity if the train is delayed. Hanchett, Stark & Hanchett, for the appellant. F. E. Emerick, for the respondents. 150 MONTGOMERY, J.

This is an action on the case. The declaration alleges that the defendant accepted from plaintiffs fifteen horses to be transported for hire and reward from Gaylord to Saginaw; that it became the duty of the defendant to take due and proper care of the same,


carry and convey the same with reasonable safety and dispatch, and to safely and securely, and without unnecessary delay, deliver the horses at the city of Saginaw; that defendant neglected its duty; that it left the car conveying the horses on the sidetrack of defendant's railway at West Bay City from 1 o'clock in the morning until 10 o'clock in the forenoon; that the said plaintiffs, on discovering that the defendant intended leaving the car standing on the said sidetrack for said length of time, requested the defendant to move the

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