* ** *

worked in the meantime satisfactorily. There has not been any slipping of poles or accident from the use of these tongs that I know of. Since the accident I have not been looking at every pole that went up, but in a general way I have, and I would say that there has been no slipping through the tongs. These tongs have never been sharpened since we have had them, that I know of."

In the light of the testimony as to the results attending the use of the tongs before and after the plaintiff's injuries, I do not think that it should be determined, as a matter of law, that the danger was so imminent and great that it was sheer recklessness on the part of the plaintiff to obey the directions of his employer, relying upon his

assurances.

The judgment is reversed, and a new trial granted.

MONTGOMERY, OSTRANDER, HOOKER, and MOORE, JJ., concurred with BLAIR, C. J.

BROOKE, J. (dissenting). A sufficient statement of the facts in the case, and of the circumstances surrounding the plaintiff at the time of his injury, is found in the opinion of my Brother BLAIR.

The plaintiff's testimony shows that the tongs were of the greatest simplicity, and that they were obviously dull; that he had used them the day before he was hurt loading shingle bolts, when they frequently slipped; that, after his protest to the master, he continued to use them from 1 o'clock until 3 o'clock, when he was injured. During this interval four or five poles slipped from the tongs, one of them slipping out twice. Under these circumstances, we are asked to say that it becomes a question of fact for the determination of the jury whether or not the plaintiff was guilty of contributory negligence in continuing to use the defective appliance. I believe that the plaintiff should be held to be guilty of contributory negligence, as a matter of law. He was obliged to stand in a narrow space between the car and the pile of poles he was loading, with scant opportunity to avoid a falling pole by stepping aside.

Yet, by great good fortune, he had escaped four or five such during the two hours preceding the accident. He continued to use the dull tongs, and was injured. Conceding that the promise to repair was made by the master and relied upon by the plaintiff, it is not true that every promise to repair by the master relieves the servant from the assumption of risk or from the effects of his own negligence.

In Hough v. Railway Co., 100 U. S. 213, the court laid down the rule, in effect, as follows:

"If the nature of the defect is not such as to impress a prudent man with a feeling or consciousness of imminent danger, then the master is liable."

In Mann v. Railway Co., 124 Mich. 641 (83 N. W. 596), this court said:

*

"Was the condition which presented itself to plaintiff so obviously a dangerous one that an ordinarily prudent man would not, even in reliance on the promise of defendant to repair, attempt what he attempted? * * Nor do we think we should hold, as matter of law, that the course of the plaintiff was so reckless as to preclude him from asserting a reliance on the promise to repair. The new machine had not been set in motion by escaping steam prior to the time of the accident, and the danger was not so obvious that we can characterize the plaintiff's attempt to tighten the nut as reckless."

Again, in Wheaton v. Coal Co., 151 Mich. 100 (114 N. W. 853), Mr. Justice MONTGOMERY, in discussing a pair of ice tongs (similar in construction to those in the case at bar), said:

"In fact, there is nothing about a pair of ice tongs that would seem to require expert testimony to instruct either a court or a jury. Both appeared to be equally sharp at the points. The Holland tongs curved a little less sharply than the Wheaton tongs, so-called, and it resulted that they would not grasp with equal efficiency a large cake of ice. In other words, the capacity of these tongs to grasp a cake of ice was limited. But it was a perfectly obvious limitation. Any one using such a tool would be able to know at a glance whether a sufficient hold had been se

cured upon the ice to support its weight, and any insistence on making use of the tongs without having a sufficient hold on the ice to support the weight was plainly negligence."

So, in the case at bar, the fact that the tongs would not grasp the poles sufficiently to sustain their weight was a perfectly obvious one, and one, too, which had received many illustrations for the plaintiff's benefit before his injury. His continued insistence in making use of them in the face of his experience was an act of the plainest negligence. See, also, Illinois Steel Co. v. Mann, 170 Ill. 200 (48 N. E. 417, 40 L. R. A. 781, 62 Am. St. Rep. 370), and notes; Gunning System v. Lapointe, 212 Ill. 274 (72 N. E. 393).

The judgment should be affirmed.

GRANT and MCALVAY, JJ., concurred with BROOKE, J.

SHOWEN v. J. L. OWENS CO.

1. CORPORATIONS - SERVICE OF PROCESS ON FOREIGN CORPORATIONS-STATUTES-ACTIONS-ATTACHMENT.

The foreign corporations mentioned in 3 Comp. Laws, § 10442, on which service of process may be obtained by serving an officer or agent with a copy of the process, do not include such corporations as obtain the right to transact local business in the State of Michigan by appointing an agent for service of process, and securing a certificate of authority from the secretary of State, but include only foreign corporations engaged in interstate commerce in the State.

158 MICH.-21.

2. SAME-ACTIONS-FOREIGN CORPORATIONS.

The effect of the statutes regulating the right of foreign corporations to engage in business of a local nature is to make them domestic corporations, entitled to, and subject to, the same remedies as corporations organized in Michigan.

A foreign corporation engaged in local business in the State without complying with the statutes is estopped to interpose the unlawful character of its business as a ground of invalidity of the service of process upon its local agent.

4. ATTACHMENT-FOREIGN CORPORATIONS-PROCESS.

Service of the writ of attachment upon defendant's resident agent conferred jurisdiction in personam under 3 Comp. Laws, SS 10474, 10555, et seq.

5. SAME AFFIDAVIT DAMAGES RECOVERABLE AS AFFECTING JURISDICTION.

Where damages alleged in a declaration in attachment for a breach of contract are susceptible of definite ascertainment by testimony, within a standard established by the contract, the remedy by attachment is allowed.

6. SAME

ASSIGNMENT OF CLAIM-ACTIONS-PARTIES.

It is not a sufficient ground of objection to the jurisdiction in attachment that the plaintiff sues as assignee of a foreign corporation for the purpose of giving the courts of Michigan jurisdiction.

Certiorari to Kent; Perkins, J. Submitted April 24, 1909. (Docket No. 83.) Decided October 4, 1909.

Attachment proceedings by John L. Showen against the J. L. Owens Company. An order overruling a plea in abatement and denying a petition to dissolve the writ is reviewed by defendant on writ of certiorari. Affirmed.

Sweet & Eastman, for appellant.

Clapperton & Owen, for appellee.

BLAIR, C. J. On May 13 and December 26, 1904, the Arbuckle-Ryan Company, an Ohio corporation, and the J. L. Owens Company, a Minnesota corporation, executed written contracts at Toledo, Ohio, by the terms of which

the Ohio corporation agreed to purchase Owens bean and pea threshing machines, to be delivered f. o. b. cars Minneapolis, the Owens Company "to guarantee the machines to be free from inherent and mechanical defects." By the contract of May 13th the Ohio company is given the exclusive sale of the machines in certain counties in this State. By the agreement of December 26th the Ohio company was given the exclusive right of sale in the entire State of Michigan. On the 4th day of April, 1908, the plaintiff filed an affidavit for a writ of attachment in the circuit court for the county of Kent, stating:

"That the J. L. Owens Company, a foreign corporation, the defendant named in said writ, is justly indebted to deponent in the sum of $8,500, as near as may be, over and above all legal set-off, and that the same is now due and upon express contract.

"And this deponent further says that he has good reason to believe, and does believe, that the said defendant is a foreign corporation."

A writ of attachment was issued against defendant, by virtue of which the sheriff returned that he seized certain machines of defendant:

"I served on Benjamin F. Long in the city of Grand Rapids, in said county, who was represented to me to be the agent of the defendant in said attachment named, the J. L. Owens Company, residing in the said city of Grand Rapids and doing business for said defendant company within the State of Michigan, a copy thereof, together with a copy of the inventory of said property, duly certified, as I am commanded, by delivering the same to the said Benjamin F. Long, in the said city of Grand Rapids.'

On the 18th day of April, 1908, the plaintiff, as assignee of the rights and interests of the Arbuckle-Ryan Company under its said contracts with defendant, filed his declaration claiming damages for breach of warranty of said contracts. The first count alleges, as to the machines purchased under the agreement of May 13th,—

"That the said machines at the time of the making of said promise and undertaking of the said defendant, and