author: Moore, J.

text:
    BENNETT v. CLARK.
    1. Mortgages — Deeds—Foreclosure — Parties — Agent—Equity— Trusts.
    A foreclosure bill may be maintained in tbe name of tbe grantee of real property, conveyed by warranty deed as security for advances to be made or credit extended by his principal or employer after the date of its execution; such grantee being agent for a nonresident partnership doing brokerage business in Michigan and other States.
    2. Same — Multifarious Bill — Deficiency.
    Nor was the bill multifarious because it asked for a deficiency judgment and for foreclosure of a deed given as security.
    Appeal from Wayne; Mandell, J.
    Submitted June 2, 1914.
    (Docket No. 5.)
    Decided July 24, 1914.
    Bill by Edward S. Bennett against Arthur J. Clark and Nella S. Clark to foreclose a deed given as a mortgage. From an order overruling a demurrer to the bill, defendants appeal.
    Affirmed.

      Stevenson, Carpenter, Butzel & Backus, for complainant.

      George E. Eckert (Thomas Mulvihill and George M. Lehman, of counsel), for defendants.
   Moore, J.

This is an appeal from an order overruling a demurrer to an amended bill of complaint. The bill is filed to foreclose a deed in form, though it is in fact a mortgage. We quote from the brief of counsel for appellants:

“There are several grounds of demurrer; * * * the ones upon which we will dwell most extensively being:

“(1) The complainant has no interest in the subject-matter of this suit, nor any title or interest in the thing therein demanded, viz., the $2,842.82 alleged to be due to Hayden, Stone & Co., or rather to the individual members composing that firm.

“(2) The bill is multifarious.”

As to the first ground of demurrer, it is necessary to consider the averments of the bill. The bill states in substance that complainant is the local representative and manager of Hayden, Stone & Co., stating the names of the persons constituting the partnership, all of whom reside out of the State of Michigan. It avers that defendants Clark & Clark, residents of Detroit, desired credit of said firm which was doing business in Detroit, and, to secure the payment of the credit so desired, executed a deed of certain real estate they owned in Detroit to the complainant, and delivered the same to him, which deed was duly recorded; that the deed, though absolute upon its face, was in fact a mortgage; that the debt secured by said deed, though past due, has not been paid; that no suit or proceeding at law has been taken for the recovery of the debt. The bill avers that complainant is duly authorized by the persons constituting the firm of Hayden, Stone & Co. to bring this suit for them and in their behalf, and that complainant does so bring this suit. Complainant makés Charles Hayden, Galen L. Stone, N. Bruce Mackelvie, Jare Arthur Downs, Felix R. Rosen, and Fred H. Baird defendants. The bill .of complaint and the amendments to the bill of complaint were signed by Edward S. Bennett.

We think it clear the bill states such a state of affairs as to constitute complainant trustee for Charles Hayden, Galen L. Stone, N. Bruce Mackelvie, Jare Arthur Downs, Felix R. Rosen, and Fred H. Baird, and, as they are made parties in the amended bill of complaint, that complainant, as trustee, may file the bill. Shelden v. Bennett, 44 Mich. 634 (7 N. W. 223); Michigan State Bank v. Trowbridge, 92 Mich. 217 (52 N. W. 632); Foley v. Kleibusch, 123 Mich. 416 (82 N. W. 223).

In 9 Enc. Pl. and Prac., p. 285, it is said:

“But it sometimes happens that ordinary mortgages are held in trust, and the question then arises as to the proper party to bring the foreclosure suit. Generally in suits by the trustee, the cestui que trust or beneficiary should be made a party. Where, as is sometimes the case, the suit is brought by the cestui que trust, the trustee should be made a party: and where the trustee is not originally made a plaintiff, he may be brought in by amendment. A bill by a part only of the beneficiaries is sufficient when filed on behalf of the plaintiffs and all others who choose to come in as parties.”

We have not overlooked the case of Mudge v. Rinkle, 45 Ill. App. 604, cited by counsel, but that case is an action at law, and is clearly distinguishable from the case in equity which we have before us.

Should the bill be dismissed upon the ground it is multifarious? Counsel say:

“On the face of the bill the money, if due and owing at all, is due and owing to Charles Hayden et al. The complainant, Edward S. Bennett, has no interest therein. He is not a member of Hayden, Stone & Co. No money is due to him. How, under' any conceivable theory, can the defendants .be decreed to pay any deficit, to him? Still that is the very thing that is prayed for in this bill. The amended bill is multifarious because there is a misjoinder of parties and a misjoinder of distinct and separate matters of equitable cognizance between the same parties of so dissimilar a character as to render it unfit that they should be litigated in the same suit.”

We do not so understand the averments of the bill. We do not understand it can be inferred from the averments of the bill that two causes of action are stated, each of which would justify a suit in equity.

The following rule has been stated:

“Mere surplusage will not render a bill multifarious, and therefore a bill is not rendered multifarious if in addition to stating a case for equitable relief it contains allegations with reference to another matter, but insufficient to entitle plaintiff to relief with reference thereto. The addition of a prayer for relief not warranted by the allegations of the bill does not therefore render the bill multifarious. To have that effect the bill must state two or more grounds of suit, and each ground must be sufficient as stated to support an independent bill in equity. Therefore a bill is not multifarious for adding to an equitable cause of action matter in which there is no equity, or matters over which a court of equity has no independent jurisdiction., For this reason the insertion in a bill of an exclusively legal demand will not make it multifarious.” 16 Cyc. p. 241.

In Storrs v. Wallace, 54 Mich. 112 (19 N. W. 770), it was said, if a plaintiff states a case for equitable relief, even though multifarious, a demurrer will be overruled, as costs are within the control of the court.

The decree of the court below • is affirmed, with costs, and defendant is given the usual time in which to answer.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN WALLACE SONS CO. v. WILKINSON.
    1. Mechanics’ Liens — Homestead—Husband and Wife — Signature of Wife — Contracts.
    A contract to furnish materials for a homestead occupied hy defendant and his wife is not valid unless it is signed hy both husband and wife.

      2. Same — Remodeling—Contracts.
    Complainant, a materialman, furnished lumber and materials for tbe reconstruction of a house upon real property wbicb belonged to one of tbe defendants. Tbe premises were occupied by a son-in-law of such owner, as tbe homestead of himself and family. Tbe owner was not a party to tbe contract. No evidence was offered which established an agency in tbe son-in-law to bind tbe owner. Held, that a lien could not be decreed upon tbe real property for tbe value of materials entering into tbe remodeling of tbe bouse.
    Appeal from Berrien; Bridgman, J.
    Submitted June 5, 1914.
    (Docket No. 30.)
    Decided July 24, 1914.
    Bill by John Wallace Sons Company, a corporation, against Lucy A. Wilkinson, Adin H. Morton, and others, for the enforcement of a mechanic’s lien. From a decree for defendants, complainant appeals.
    Affirmed.

      G. M. Valentine, for appellant.

      John C. St. Clair and James O’Hara, for appellees Morton and Wilkinson.
   Moore, J.

The bill of complaint is filed to enforce a lien, under the mechanic’s lien statute of this State, upon lot 209 and the house thereon, in the city of St. Joseph, Mich.

Complainant is a dealer in building materials, and began furnishing materials to defendant Lessing October 14, 1911, and so continued until the 16th day of December, 191Í.

We quote from the bill of complaint as follows:

“Your orator shows that about the year A. D. 1904, Lucy A. Wilkinson became the owner in fee of lot 209 of the original plat of the village (now city) of St. Joseph, Michigan, and that she has ever since that time been the owner of the same, except as in this paragraph hereinafter stated. Further, that Adin H. Morton is the son-in-law of said Lucy A. Wilkinson, and that in the year 1911 and prior to October 14, 1911, she entered into a contract or agreement with said Morton, by which he, the said Morton, should and did have an interest in or become the owner or part owner of said lot, the precise nature of said contract or agreement your orator is not able to state, and that said Morton should for himself and the said Lucy A. Wilkinson rebuild, repair, and improve the dwelling house on said lot 209; and your orator avers that the said Morton became and was, the agent of said Lucy A. Wilkinson for the purpose of making said improvements and repairs, and for the purpose of making contracts in reference to the same. Your orator shows that at some time in the summer of the year 1911, and prior to October 14, 1911, the said Lucy A. Wilkinson and the said Adin H. Morton made a contract and agreement with one John Lessing, wherein and whereby it was agreed that the said John Lessing should build, construct, alter, improve, and repair for them the dwelling house on said lot; but the precise terms of said contract your orator is not able to state.”

The bill then sets out in detail the material furnished by it to Mr. Lessing, claiming a balance due to complainant of $674.96. The fourth paragraph avers the service upon Mr. Morton of a notice reading:

“St. Joseph, Mich., Nov. 27, 1911.

“To Adin H. Morton,

“Main Street:

“Take notice that the undersigned is furnishing John Lessing, contractor, certain material for rebuilding a certain house situated on the following described property, number 608 Main street, this city.

“Yours truly,

“John Wallace Sons Company.”

It is not necessary to refer to the other averments of the bill further than to say there is no suggestion therein that the wife of Adin H. Morton had any interest in ,the property, or had any part in making the contract with. Mr. Lessing. It will be observed that she is not made a party to this proceeding.

Defendants answered fully.

Three defenses were urged as follows:

(1) That the premises are the homestead of defendant Morton, his wife and daughter, who have been in the open, exclusive possession of same for the last 15 years or more, paying the taxes, insurance, making and paying for the improvements as needed; Mrs. Morton, who is not a party to these proceedings, not having signed the contract for the remodeling.

(2) That, even if the homestead rights of said defendant Morton and family cannot prevail, still, the title to the property being in a stranger to the contract, the complainant is not entitled to any lien on the building itself under the third section of the lien law, for the reason that the work was not furnished for a new and original building.

(3) For the reason that there was tendered to complainant, before this action began, an amount more than sufficient to satisfy any lien that the complainant could possibly have been entitled to, and its refusing the tender discharged its lien, if any it ever had.

The case was heard in open court, and a decree entered dismissing the bill of complaint. •

A careful reading of the entire record shows that at his decease, more than 30 years ago, lot 209 and other property was owned by John Wilkinson, who left surviving him six heirs, his widow, Lucy A. Wilkinson, Alecta Hamilton, a daughter by his first wife, Frank N. Wilkinson, Charles Wilkinson, Eva Morton, wife of defendant Morton, and Margaret Needham. Charles died without issue, and Alecta Hamilton quitclaimed her interest in the estate to the widow in 1883. Defendant Morton, his wife Eva, and daughter Hazel, have occupied the premises for the last 15 years and more, and claim it as their homestead. Except as above stated, the title to the lot stood in the estate of John Wilkinson until 1904, at which time Frank Wilkinson and Margaret Needham quitclaimed their interest to Lucy A. Wilkinson. It is claimed that at this time Mrs. Wilkinson made a will, which will be mentioned later. The record title stood in the name of Eva Morton and the widow, and remained that way until after the Lessing contract for the improvement had been made, and complainant had begun to; furnish defendant Lessing material on the job. Mr. Morton made a contract with John Lessing for $1,710 on October 9, 1911, to remodel the building on the lot. On October 14, 1911, complainant began to furnish materials to Mr. John Lessing. Mr. Morton was an employee in the postoffice. The claim on his part is that it was understood from the time in 1904 when the deeds mentioned above were made, and for a long time before, that lot 209 should belong to Mrs. Morton, and from then on was her homestead, and the homestead of her husband and their daughter, who was born and always lived in the house until the time the contract was made to Mr. Lessing, and that it was their intent as soon as the remodeling was done to resume living there.

It was also shown that the son Frank Wilkinson lived at the corner, of Main and Market streets, with his family, and that the daughter Mrs. Needham, with her family, lived on Main street, under a like understanding, and that to accomplish this it is claimed the deeds in 1904 were made, and Mrs. Lucy A. Wilkinson made her will.

It also appears that for many years Mr. Morton made repairs on the house, filled in the lot at an expense of $200, and that he and his wife regarded the property as their homestead, and treated it as their own.

It should be remembered, also, that Mrs. Morton, as the heir of her father, had at least a one-fifth interest in the property.

It is the claim of Mr. Morton that he had $300 or $400 of his own when he entered into the contract with Mr. Lessing, and that he negotiated a loan from the bank of $2,500, and that to secure the bank, and so that the record would justify the bank in making the loan, a deed was made by Mrs. Morton and himself to Mrs. Wilkinson, and she made a mortgage to the bank; that the deed was never delivered to Mrs. Wilkinson, but was put upon record with the mortgage, and the money was passed to the credit of Mr. Morton; and that Mrs. Wilkinson never had any of the money, never saw the contract, and did not see the house from before the time the contract was drawn until the house was ready to be papered, and that she had nothing whatever to do with the transaction, except as above stated.

The testimony of Mr. Morton is not uncertain. So far as she has knowledge of the facts, it is confirmed by the testimony of Lucy A. Wilkinson. Mr. Morton and Mrs. Wilkinson both testified that, in making the contract, Mr. Morton was not acting for Mrs. Wilkinson. Mr. Lessing made the contract with Mr. Morton, not as agent, but as acting for himself. He testified he never saw Mrs. Wilkinson.

The bill of complaint indicates that complainants supposed Mr. Morton had a contract interest in the property. The notice that they had commenced furnishing material ran to Adin H. Morton.

After the contract was entered upon, trouble arose between Mr. Morton and Mr. Lessing, and, though the latter had been paid more than he was at that time entitled to by the terms of the contract, he failed to go on with it. Mr. Morton then completed the building at a considerable more expense than the contract price, and attempted to settle with the complainant. His attorney called on them and attempted to arrange a settlement. It is Mr. Morton’s claim that he computed what the claim of complainant would be, and to guard against any contingency added thereto approximately $50, and had his attorney take the amount in gold to the office of the complainant and tendered it to them.

It is not disputed but that a tender was made; but complainant insists the amount was not large enough, and this litigation followed.

It should be remembered the materials were furnished to remodel an old building. If the house was a homestead, the contract should have been signed by the wife. If the house and lot wa,s not a homestead, it belonged to Mrs. Lucy A. Wilkinson. She was not a party, to the contract. Nor is there evidence from which the inference can fairly be drawn that, in making the contract with Mr. Lessing, Mr. Morton was acting as the agent of Mrs. Wilkinson. See Merrill v. Brant, 175 Mich. 182 (141 N. W. 550).

We do not deem it necessary to pass upon the question of the homestead (see Maatta v. Kippola, 102 Mich. 116 [60 N. W. 300]), or upon the question of the tender. The record does not disclose such a situation as to entitle complainant upon any theory to a decree.

The decree of the court below is affirmed, with costs.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.


author: Moore, J. Ostrander, J.

text:
    BENNETT v. KALAMAZOO CIRCUIT JUDGE.
    Mandamus — Criminal Law — Quashing Information — Review.
    It is necessary, in a criminal proceeding as well as in a civil suit, to move to vacate an order wliicli tlie relator by mandamus seeks to have set aside: the rule applies to an order quashing the information in a prosecution for violation of the liquor law. Ostrander, J., dissenting.
    Mandamus by Milo O. Bennett, prosecuting attorney for the county of Kalamazoo, to compel Nathaniel H. Stewart, circuit judge of said county, to set aside an order quashing an information charging one George Duncan with selling liquor without furnishing the statutory bond.
    Submitted June 9, 1914.
    (Calendar No. 25,986.)
    Writ denied July 24, 1914.

      Milo O. Bennett, in pro. per.

      George V. Weimer, for respondent.
   Moore, J.

In the case of People v. George Duncan the complaint, warrant, and information charged that the respondent “did engage in the business of selling and keeping for sale and did sell intoxicating liquors on the second floor of a certain building situated on North Rose street, etc., without theretofore having made, executed and delivered the bond,” etc. A motion to quash the information was made and granted. The relator seeks by mandamus to have that action vacated for many reasons which he discusses in his brief.

The circuit judge in his return states, among other reasons, that the prayer of relator should not be granted, because the petition does not show that there was “any request by relator and refusal by this respondent to vacate the said order mentioned in said petition quashing said information and warrant and discharging said Duncan.”

The attorney for the respondent, who is also the attorney for Mr. Duncan, insists that because of this return this court should not issue the writ of mandamus.

The relator concedes the rule in civil cases, but argues it does not apply in criminal cases where an information has been quashed, citing a number of cases. We have examined them all, and do not find a case, either civil or criminal, where the person seeking the vacation 'of an order was granted a writ of mandamus, where the record shows that no motion to vacate the order was made and counsel insisted upon the objection.

There are many cases where under such circumstances the writ was denied. Hitchcock v. Wayne Circuit Judge, 97 Mich. 614 (57 N. W. 189), and cases cited in the note; Stenglein v. Saginaw Circuit Judge, 128 Mich. 440 (87 N. W. 449); Freud v. Wayne Circuit Judge, 131 Mich. 606; Blain v. Chippewa Circuit Judge, 145 Mich. 59 (108 N. W. 440). See, also, Lapham v. Oakland Circuit Judge, 170 Mich. 564 (136 N. W. 594).

The application is denied.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, and Steere, JJ., concurred with Moore, J.

Ostrander, J.

(dissenting). I think there was no occasion to move to vacate the order.


text:
    WARDEN v. LINEBARGER.
    Easements — Deeds—Equity—Injunction.
    Under a warranty deed conveying to the complainant a parcel of land and “a right of way one rod wide commencing,” etc., describing the way and providing that complainant and defendant should - have joint rights in the use thereof, complainant did not acquire a title in fee simple, but an easement in the way, and the court properly refused a decree restraining defendant from tearing down a fence which complainant had erected along the parcel granted to him for easement purposes.
    Appeal from Leelanau; Mayne, J.
    Submitted June 16, 1914.
    (Docket No. 73.)
    Decided July 24, 1914.
    Bill by Theodore G. Warden against Charles E. Linebarger for an injunction. From a decree for defendant, complainant appeals.
    Affirmed.

      Underwood & Umlor, for complainant.

      C. L. Dayton, for defendant.
   Moore, J.

The attached plat will aid in understanding the case.

Mr. Linebarger bought his 21/2 acres with a right of way of Philip Drow and wife, in August, 1901, and put a hotel on the land. The complainant was given by Mr. Drow and wife a warranty deed to his íy<¿ acres in August, 1907, and in the ^ime deed is the following language:

“Also a right of way one rod wide commencing at the northeast corner of the land above conveyed and running thence in a northeasterly direction along the south side of lands heretofore conveyed to C. E. Linebarger to the northeast corner of said Linebarger land; thence N. 78% degrees E. to the township highway, 412.5 feet more or less; the line above given being the northerly line of said one rod in width, and it is hereby understood that the right of way running northeasterly from Linebarger land to township highway is to be used jointly by the said Theodore G. Warden, C. E. Linebarger and Walter T. Best, their heirs and assigfs.”

After obtaining his deed complainant put up a fine house upon the land, and now claims the right to fence in the one-rod strip. This claim is denied by defendant, who has torn down some of the fences, and insists upon the right to tear them down. Out of this dispute grew the filing of this bill of complaint asking for an injunction, and that the rights of the parties be defined, on July 3, 1911. From á decree dismissing the bill of complaint the case is brought here by appeal.

There are certain additional facts to those already stated that appear so clearly in the decree, that we quote from it as follows:

“And it further appearing to the court that the complainant contends that through said deed he acquired a title in fee simple to a part of said right of way, and it further appearing to the court that the said deed should not be so construed, but that it conveyed an easement of right of way;
“And it further appearing that fences are not needed by the said complainant along the said right of way in order to fully enjoy its use;
“And it further appearing to the court that the said Philip Drow and wife undertook to convey the lands over which said right of way runs to said complainant by quitclaim deed, dated August 11, 1911, and recorded in the office of register of deeds of Leelanau county, Mich., on August 12, 1911, in Liber 37 of Deeds on page 350;
“And it further appearing to the court that the said deed was given and delivered after the commencement of this cause, and is not mentioned in any of the pleadings therein, and that prior to the giving and delivery of this last-mentioned deed the said Philip Drow and wife had executed to one Harry P. Harrison a warranty deed of certain lands, including the lands Over which said right of way runs, and that said deed had been deposited in escrow at the time said quitclaim deed of August 11, 1911, was given and delivered, and that about the time said deed was deposited in escrow said Harry P. Harrison took possession of the lands conveyed by said warranty deed with the consent of said Philip Drow and wife, and that the said Harry P. Harrison, prior to the commencement of this action, had entered into a contract to convey part of said lands, including the lands over which the said right of way runs, to said defendant, and that prior to the commencement of this suit the said defendant had taken possession of said last-mentioned lands, and was in actual and lawful possession of the same at the time this suit was commenced, and that at the time the said quitclaim deed, dated August 11, 1911, was given by Philip Drow and wife to Theodore G. Warden the said complainant had full knowledge of the terms of the said warranty deed given by said Philip Drow and wife to Harry P. Harrison, and at that time deposited in escrow;
“And it further appearing that since that time the said warranty deed deposited in escrow has been delivered to the said Harry P. Harrison and been recorded in the office of the register of deeds, and the said Harry P. Harrison has executed and delivered to the defendant a warranty deed of the lands that said Harry P. Harrison had contracted to convey to the defendant, including the' lands over which said right of way runs;
“And it further appearing to the court that the said deed of August 11, 1911, is of no force as against said defendant as far as this cause is concerned, for the reason that it was given after this cause was commenced, and is not mentioned in any of the pleadings; and it further appearing that said quitclaim deed of August 11, 1911, > of no force or effect as against the said defendant, for the reason that the defendant was in actual and lawful possession of the lands said Harry P. Harrison contracted to sell and convey said defendant prior to the giving of said quitclaim deed and prior to the commencement of this suit, and for the reason that said complainant was fully advised of the terms of said warranty deed given -by said Philip Drow and wife to said Harry P. Harrison, prior to and at the time the said quitclaim deed of August 11, 1911, was executed and delivered.”

The complainant contends here, as he did in the court below, that he has such a title to the one rod wide right of way that he has the right to fence it in. The language of his conveyance is not ambiguous. We think it gives him but an easement over well-defined grounds. See 39 Cyc. p. 1767; Moffitt v. Lytle, 165 Pa. 173 (30 Atl. 922); Sizer v. Quinlan, 82 Wis. 390 (52 N. W. 590, 16 L. R. A. 512, 33 Am. St. Rep. 55).

The case does not call for an extended discussion.

The decree is affirmed, with costs.

McAlvay, C. J., and Brooee, Kuhn, Stone, Ostrander, Bird, and Stebre, JJ., concurred.


author: Steere, J.

text:
    PASTORINO v. CITY OF DETROIT.
    1. Municipal Corporations — Streets—Adverse Possession — Prescription.
    Act No. 46, Pub. Acts 1907 (5 How. Stat. [2d Ed.] §§ 14133, 14134), enacting that rights by prescription might not be thereafter obtained in public streets, changed the preexisting rule in Michigan and brought the law into conformity with the general rule recognized by the weight of authority.
    2. Same — Fruit-Stand—Definition.
    The word “fruit-stand" signifies a place where fruit is sold at retail — a ■ place where the business is conducted, the pursuit being closely related to hawking: the business of one who sells or offers goods for sale on the public-street, by outcry or by exposing the wares, or by placards, labels, signals, etc.
    3. Same — Nuisance—Cities.
    A fruit-stand maintained in a street of the city of Detroit without permission and in violation of a municipal ordinance prohibiting persons from obstructing or incumbering streets and other public places with buildings, boxes and like objects, was an encroachment and constituted a public nuisance.

      4. Same — Prescription—Adverse User.
    While adverse title may be acquired through possession held by a tenant, the party claiming presciptive title must show a disseisin and unequivocal assertion of title in himself as against the original holder of the title; and as bearing upon the adjacent owner’s claim of right to part of a public street in support of his title, it is important to ascertain whether any notice was ever given to the municipality of the alleged claim.
    5. Nuisance — Streets—Prescription.
    A fruit-stand upon a public highway is not in its nature , such a permanent obstruction that rights of prescription can be based upon its maintenance.
    6. Same — Municipal Corporations — Police Power.
    Such a structure on the sidewalk is a nuisance which may be abated after proper notice, and the objectionable object may be summarily removed from the street.
    Appeal from Wayne; Hally, J.
    Submitted June 17, 1914.
    (Docket No. 90.)
    Decided July 24, 1914.
    Bill by Celestino Pastorino against the city of Detroit and others for an injunction and other relief. From an order sustaining a demurrer to the bill of complaint, complainant appeals.
    Affirmed.

      Joseph T. Schiappacasse, for complainant.

      Richard I. Lawson, Corporation Counsel, and W. E. Tarsney, Assistant Corporation Counsel, for defendants.
   Steere, J.

This case involves the question of title by adverse possession claimed to have been obtained through encroachment upon a public street of the city of Detroit.

Complainant, claiming a title in his landlord by prescription and a resulting right in himself as lessee to the peaceable possession, enjoyment, and use of a location occupied by him as a fruit-stand beyond the street line of a certain corner lot in the business district of said city, filed his bill of complaint in. the circuit court of Wayne county in chancery, asking an injunction to restrain the municipal authorities from forcibly ejecting and removing him and his fruit-stand from said premises, as was threatened. From an. order sustaining a demurrer to and dismissing said bill of complaint, he brings the case here for review.

Briefly stated, the bill of complaint alleges, in proper form and apt language, that complainant leases a place for and owns a fruit-stand on the northwest corner of Jefferson avenue and Randolph street in said city, on the front of and adjoining lot 12 of section 1 of the Governor and Judges’ plan of the city of Detroit; that said fruit-stand is located upon the sidewalk in front of said lot occupying a width of two feet and four inches and a length of about eight feet from the corner on each street adajacent to the lot line; that the premises which said fruit-stand covers in said street in front of said lot have been occupied as a fruit-stand, under a lease from the owners of said lot, continuously since March 27, 1890, by successive fruit venders, each successor buying said stand from a previous owner and attorning during his occupancy as tenant to the owner of the lot; that complainant himself first purchased the fruit-stand from a prior owner, and became a tenant on April 29, 1900, and was in possession until September, 1908, when he sold the same to one John Pastorino, who was in possession until May 12, 1913, when complainant bought him out and has since continued in the occupation of said premises, paying the owner of the adjacent lot rent therefor until the time of filing this bill. Continuous occupation, use, lease, and payment of rent for the statutory period are positively stated, and it is averred that:

“Through your orator and the other prior owners or lessees of the said stand, by reason of continuous payments of rent to the owners or lessees of said lot the owners of said lot were in actual, visible, open, and notorious, distinct, exclusive, and continuous, hostile and adverse possession of said premises occupied by the said stand.”

Said bill recites certain action by the city council looking to abating encroachments on streets, and requiring that notice be given to all parties occupying and obstructing the streets and sidewalks with shoe-shining stands, vending stands, booths, etc., to vacate within 30 days from service of notice, directing the commissioner of public works and chief of police of said city to forcibly remove and eject all those not .complying with said notice, and to remove all obstructions from said streets; that said officials have served the directed notice on John Pastorino, complainant’s assignor, and have informed complainant of their intent to obey said orders and eject him accordingly, and are threatening so to do. Without going into further details, the bill sets forth at length the necessary facts and circumstances to fairly raise the issue of title by prescription here presented.

Defendants’ demurrer specifies six reasons therefor, in substance that complainant has made out no title or right to relief, and has but a permissive use of - the space occupied by him as a fruit-stand, title to which cannot be acquired by such permission; that the bill shows the premises occupied by the fruit-stand are in a public highway, the right of possession being claimed under a lease by an occupancy—

“Not adverse as against the owner of the adjoining property, and therefore complainant cannot acquire title to said premises by virtue of his lease; that complainant is not a proper party to file a bill of complaint, having acquired no interest in the subject-matter by virtue of his lease, and adverse possession cannot be obtained by the occupancy of a portion of a public highway with temporary obstructions.”

While some technical questions are raised as to the sufficiency of both the bill and demurrer, which might, if found controlling, temporarily dispose of this case, we conclude that the pleadings, considered as a whole, fairly put in issue the really important and vital propositions involved. Taking all the allegations of fact in complainant’s bill as true, with the prayer for relief following, met by the portion of defendant’s demurrer which urges that, under the facts stated, complainant nevertheless had from the city but a permissive use of the space occupied, that he acquired no title or right by virtue of his alleged lease, and that “adverse possession cannot be obtained by occupation of a.public highway with temporary obstructions,” the grounds of demurrer stated sufficiently apprise complainant of the city’s contention, and fairly raise the questions of law which must dispose of this case in its final analysis.

Counsel for complainant in a very able and candid brief has clearly mapped out the field of fair contention within the range of conflicting authorities, frankly conceding an adverse line of decisions in other jurisdictions and urging his propositions squarely on the ground that in Michigan, contrary to the doctrine in many other States, title by prescription may be acquired to public property, and contending that this bill ought to be sustained, not only on the ground that title by adverse possession is shown, but also because the contemplated injury sought to be restrained is threatened under a claimed right to summarily remove complainant’s fruit-stand from the street and abate it as a nuisance before any legal determination by competent authority that it is such; that the municipal authorities can and should first institute proceedings in the courts for a determination of that question and obtain an order of abatement, the existence of a public nuisance being a question to be first determined by a court or jury before summary measures can be taken by the officials to suppress it.

Considering first the question of title by adverse possession, as frankly conceded by complainant’s counsel, the great weight of authority in the United States is to the effect that title by prescription cannot be acquired against a city. The principle upon which this rule is founded is said to be that a city merely holds title to its streets and possession of them in trust for the general public, and has no authority to dispose of them or their use for other purposes, by lease, license, sale, or gift. This is recognized as a general rule of law by most of the text-writers upon municipal corporations, and, with due notice of and deference to conflicting views in certain jurisdictions, is well stated in 3 McQuillin on Municipal Corporations, § 1396, as follows:

“There is much conflict in the decisions as to whether the right to a street or alley may be lost by adverse possession. In a few States such property is looked upon the same as any property held by an individual, and the maxim nullum tempus oceurrit regi is considered not applicable to municipal corporations, so far as street and alleys are concerned, and hence title can be acquired to all or a part of a street by adverse possession. However, the great weight of authority is to the contrary, and it is held in nearly all the States that the rights of the public in a street or alley cannot be divested by adverse possession of another for the statutory period. * * * ”

Seven States, including Michigan, are enumerated as holding, or having held, contrary to the general rule. Several of these States, including Michigan, have been brought into line with the general rule by subsequent legislation, following the decisions rendered by their courts holding otherwise.

By Act No. 46, Pub. Acts 1907, it is provided that:

“Hereafter no rights as against the public shall be acquired by any person, * * * by reason of the occupation or use of any public highway, street or alley,” etc.

While up to the time of enacting the above statute the law was well settled in Michigan, as stated, and must control as to rights arising prior to the act, in view of this legislation and the great weight of authority throughout the United States, we are not disposed to enlarge the scope or go beyond the imperative requirements of those former decisions, in passing upon prescriptive rights to a portion of a street, claimed to have matured before the act went into effect.

In some States it is held that all obstructions or encroachments upon streets which are not in some manner connected with or related to the use of the streets as public thoroughfares are ipso facto nuisances. Such is not the rule in this State. It has been held that many encroachments which otherwise have none of the characteristics of a nuisance per se are not to be treated as nuisances merely because intruding on public highways. People v. Carpenter, 1 Mich. 273; Everett v. City of Marquette, 53 Mich. 450 (19 N. W. 140).

Counsel for complainant cites as particularly appropriate and in point the following cases arising in the same city as the instant case: Flynn v. City of Detroit, 93 Mich. 590 (53 N. W. 815); Leonard v. City of Detroit, 108 Mich. 599 (66 N. W. 488); Vier v. City of Detroit, 111 Mich. 646 (70 N. W. 139). Those decisions and numerous others of this court squarely sustain said exceptional 'doctrine of title against the public by prescription, which is thus concisely stated in Flynn v. City of Detroit, supra:

“It is settled in this State that title may be acquired by adverse possession of property within the limits of streets. City of Big Rapids v. Comstock, 65 Mich. 78 [31 N. W. 811]; Village of Essexville v. Emery, 90 Mich. 183 [51 N. W. 204].”

It is to be observed in the cases cited, and others which may be found of like import where title has been sustained under this rule,- that the purpresture involved was not only untainted by any characteristics suggestive of a nuisance per se, but supported by clear proof of an unequivocal, exclusive, and distinct possession connected with, and arising out of, such uses and obstructions of a permanent nature as to make manifest the intent, and amount, in effect, to an assertion of a right hostile to the rights of the public, being initiated by inclosing an alley or part of a street by fences, or walls, the erection on the owner’s lot of a building which projected with some of its parts over the street line, building steps rising above, and basement stairways through sidewalks on the street, etc.

Consulting complainant’s bill for information as to the exact nature of his possession of the premises claimed, we find it described as located- entirely within the limits and at the intersection of two public streets, adjacent to a corner lot. The bill alleges that he and his predecessors owned and operated a “fruit-stand” on a designated street corner continuously since 1890, occupying with, or by, “said stand” a strip of sidewalk next to said lot two feet four inches in width, extending back from the corner on each street about eight feet; that they leased said premises on which said fruit-stand was conducted from the owner of the adjacent lot, and paid rent therefor. It is also alleged in positive terms "that the possession relied upon was open, hostile, adverse, etc., but such assertions, in their nature conclusions, are to be read and interpreted in connection with all other statements and allegations of facts appearing in said bill, which qualifies such possession by alleging that it was—

“through your orator and the other prior owners or lessees of said stand, and by reason of the continuous payments of rents to the owners or lessees of said lot.”

So far as physical features of the fruit-stand are concerned, no definite information is given. What fixtures, structures, appliances, or conveniences for the business occupied the space claimed is left to conjecture, or to inference from the name given to that which it is alleged was located there. The nature of the use, occupation, and possession of the space, and even of the business carried on there, is only disclosed by the allegations that complainant and those before him “owned,” “operated,” “conducted,” “purchased,” and “sold” said “fruit-stand” which was located on and occupied said premises. No special features or attributes being pointed out peculiar to this fruit-stand, it is to be taken for whatever that compound word generally implies, and its possession of the kind which generally goes with the operation or conduct of such an enterprise. While it can safely be said that those speaking the English language have in a general way a quite definite understanding that the word signifies a place where fruit is sold at retail, the lexicographers have given it but scant treatment. It is one of the many compound words coined by combining a word indicative of some minor line of business activity, designed to meet the temporary desires or necessities of the passers-by, with the word “stand,” such as news-stand, lunch-stand, cigar-stand, flower-stand, peanut-stand, ice cream-stand, shoe shining-stand, hack-stand, etc.; the words thus combined signifying in a general way, when not further qualified, some place where the named business is conducted, whether indoors or out. It is a matter of common knowledge, and has been recognized by courts, that certain of the lines of business activity to which such names are given are more or less closely related to hawking.

“The business of one who sells or offers goods for sale on the streets, by outcry, or by attracting the attention of persons by exposing his goods in a public place, or by placards, labels, or signals.” Black’s Law Dictionary.

These peculiarities of such business, which often result in aggressive competition and annoying intrusion upon the public streets, have given rise to a line of decisions in other States sometimes called “fruit-stand cases.” In those opinions the courts, when squarely confronted with the question, have almost universally held that such vending stands, when maintained in the streets of a city, are public nuisances per se.

As those decisions are from States where the right to acquire title against a city by adverse possession is not recognized and in some the authority of a city to license use of its streets for places of traffic is denied, they are not in their entirety of controlling significance here, but the views there expressed of the nature and general attributes of “fruit-stands” and like places of barter on public thoroughfares is worthy of consideration.

In the early case of Commonwealth v. Wentworth, 4 Clark (Pa.), 324, decided in 1823, it was held to be a public nuisance, indictable at common law, to place on the footway of a street in the city of Philadelphia a stall for the sale of fruit and confectionery, although the defendant paid rent to the owner of adjoining premises for so much of the street as was so occupied. The subject is reviewed in an exhaustive and able opinion by Justice Head, in Costello v. State, 108 Ala. 45 (18 South. 820, 35 L. R. A. 303), where it was held that a fruit-stand, though erected on the covering of the open way through a sidewalk to a cellar, was an indictable nuisance, the court saying, amongst other reasons given:

“And to this must be added, as a necessary legal inference, from the fact that these stands were used for carrying on the business of selling fruits, etc., the permanent occupation of the sidewalk by the person or persons * * * making the sales; and by the standing thereon, from time to time, day by day, of customers trading at such stands.”

See, also, City of Chicago v. Pooley, 112 Ill. App. 343; Galloso v. City of Sikeston, 124 Mo. App. 380 (101 S. W. 715); State v. Berdetta, 73 Ind. 185 (38 Am. Rep. 117); Schopp v. City of St. Louis, 117 Mo. 131 (22 S. W. 898, 20 L. R. A. 783); People v. Keating, 168 N. Y. 390 (61 N. E. 637).

That the fruit-stand is an encroachment upon, and obstruction of, a portion of a public street of the city appears from the bill of complaint. It is alleged that neither complainant “nor any of the prior owners of said stand have ever operated or conducted the same by reason of any permit issued by the department of public works of the city of Detroit, or any person,” etc. It was maintained there in violation of a city ordinance.

The charter of the city of Detroit, (section 175) gives the common council power to prohibit and remove all encroachments upon and obstruction in public streets, avenues, and spaces in said city by buildings, fences, or any other manner. We are not advised of any buildings or fences in this case. The exclusive possession claimed is stated to be a fruit-stand operated by its owners. A fruit-stand in operation on the sidewalk of a public street is both an incumbrance and obstruction.

By an ordinance of some length, passed in 1894 (chapter 60, Comp. Ord. 1912), obstructing and incumbering streets and other public places with buildings, boxes, etc., is prohibited with certain exceptions, authorizing, under permission obtained from the department of public works, temporary use' of sidewalks in front of business places in elevating and receiving heavy merchandise, and other customary use and occupation of streets in connection with business conducted on adjacent property, not to obstruct public travel—

“With a proviso, that nothing herein contained shall be construed to grant authority to any owner or occupant of any premises to let, sublet, rent, lease or grant, where such use and occupation will not obstruct public travel, free use of, to any person whatsoever, any of the sidewalk space (meaning the space between the lot line of the property and the curbstone or any space outside of the lot line, on, above or below ground) for business stands of any kind, or for any purpose whatsoever; and any person so found doing business may be summarily removed by the department of public works or the metropolitan police and be deemed a violator of this ordinance.”

The ordinance further prohibits structures or framework covered or uncovered, attached to or in front of any building, extending into the street beyond any lot line, and authorizes summary removal of same after 24 hours’ notice from the department of public works.

It was after a notice from the commissioner of public works of an intention to enforce this ordinance, served upon John Pastorino, that complainant bought back the fruit-stand and filed this bill basing his claim of right to remain undisturbed on the strength of his landlord’s title by adverse possession. There is no intimation in the bill that the city officials or the public generally had any notice or knowledge that the relation of landlord and tenant existed between the changing owners and operators of this fruit-stand in the street and the owner of the adjacent property in direct violation of a city ordinance, and, if any presumptions arise, they would be to the contrary.

While the bill alleges the possession was notorious, there is no allegation that its vicarious character was notorious.

It is contended in behalf of complainant that in the demurrer and argument defendants assume without warrant that the fruit-stand is a “temporary obstruction,” a fact not admitted in the bill, but, in substance, alleged to the contrary, it being distinctly stated that said stand had remained continuously, and in effect, permanently, on the one spot described since 1890, and before; that, in any view, whether or not the obstruction in this case is temporary or permanent is a question of fact to be determined as an issue in the case.

The length of time the obstruction may have remained in the street does not determine its character. Whether it is to be Regarded as temporary or permanent depends upon what it is. In the light of views expressed by courts having occasion to deal with the subject, as well as from common knowledge and definition, we have no hesitancy in concluding, as a matter of law, that “fruit-stands” located on the sidewalks of public streets are not, as such, permanent obstructions, in the sense the term is used by courts and applied to inclosures, substantial structures, steps, stairways, walls, and other physical attachments to the soil of a permanent nature, obtruding upon and obstructing a street.

The scheme of complainant’s bill founds his claim for equitable relief on a title by prescription in the owner or owners of the adjacent lot, to a portion of the street in front of the property. The owner is not a party to the suit. Who, or what, or how many such there are, or what he, she, it or they personally claim is not disclosed. The case, however, must turn on the question of a title in the unknown owner or owners. In Fuller v. City of Grand Rapids, 105 Mich. 529 (63 N. W. 530), the general rule relative to obtrusions upon streets by adjacent owners is thus stated:

“Owners of adjacent lands acquire no permanent rights in the public streets by the erection of structures for their own use and benefit. So long as the space so occupied is not required for public use, they are usually permitted, but, when the public demands it for the use for which it has been condemned or dedicated, the private use must go, and the structures be removed. The opportunity to remove them is all the right the law gives the owners.”

Much less would they acquire permanent rights if, while quietly remaining undisclosed; they privately, though for a consideration, allowed others who were strangers to their ownership of the adjacent property to establish a fruit-stand in the street for their own use, but a joint benefit. It is unquestioned that adverse title may be acquired through possession held by a tenant, but it is elementary that, whether the claimant acts in person or through a tenant, he must show a disseisin and unequivocal assertion of title in himself as against-the original holder of the title, and as bearing upon the adjacent owner’s claim of right in support of his title being brought home to the city this is a consideration, for there is no allegation in the bill or claim that any notice was ever given to the city that the adjacent lot owner claimed or intended to claim title, to a portion of the street held in hostility to the city, beyond the fact that the owners of the fruit-stand were openly in possession and doing business there.

Though the bill states said stand was not conducted by reason of any permit from the department of public works, it is manifest that the possession was in its inception, when ascribed to the adjacent owner, as it is here, by mere indulgence, sufferance, or implied permission, and of the character stated in Fuller v. City of Grand Rapids, supra, which might continue so long as the space occupied was not required for public use, and which could not ripen into a title however long continued until there was a disseisin by change in the nature of the possession and an expressed, hostile, adverse assertion of title. 14 Cyc. p. 1152.

In this case we are dealing with the right of an adjacent owner to set up a fruit-stand on the sidewalk beyond his lot line, and, by operating it there for the statutory period in the usual way, acquire title to that portion of the street he has cumbered with it.

A fruit-stand upon a public highway is not, in its basic characteristics, a permanent obstruction of the class by which title may be acquired by prescription. The name itself imports locality and a huckstering business combined. The place would not be a fruit-stand unless the business of selling fruit was carried on there.

When established on a sidewalk in a public street, it has been held a nuisance per se, and to maintain it a public offense. It is within the police power of the city of Detroit under its charter to summarily remove, in a reasonable manner, after proper previous notice, “any person so found doing business,” and any obstructions found on the public streets in connection with said business!'

The following language by Justice Grant in Weber v. City of Detroit, 159 Mich. 14 (123 N. W. 540, 36 L. R. A. [N. S.] 1056), relative to the adjoining owner acquiring title to public property by prescription is appropriate and well in point here:

“There was nothing in appearance to indicate a permanent, hostile, or adverse possession. It is common knowledge that merchants are permitted, without objection by the public, to occupy parts of streets and sidewalks in front of their stores to exhibit goods for sale. It has never been held that by so doing they could acquire title by adverse possession. They occupy these portions of the public thoroughfares by permission, and not in hostility to the public. * * *
“Under complainant’s contention, every occupancy by an adjoining owner of the unused portion of a public highway or street along its sides for the storage or display of merchandise would result in depriving the municipalities of a portion of their streets if such occupancy were continued for the statutory period. Such holding is not in accord with authority or sound reason.”

The decree of the court below dismissing said bill of complaint is affirmed, with costs.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.


text:
    HILLS v. BLAIR.
    1. Master and Servant — Industrial Accident Board — Death— Workmen’s Compensation Law.
    Where a section, hand was killed while he was returning home at noon for dinner, being struck by a passing train, the burden rested on his representatives to show, in proceedings before the accident board, that death resulted from an accident arising out of and in the course of his employment.
    2. Same — Appeal and Error — Certiorari to Industrial Accident Board.
    Findings of the industrial accident board which are supported by facts or inferences from the testimony must be taken as true on certiorari.
    3. Same — Employment—Dinner Hour.
    Accidents to employees in the act of going to or from their work are not usually regarded as arising out of the employment or in the course thereof.

      4. Same — Railroads.
    The fact that decedent was still on the premises of his master, at a considerable distance from the place at which his work was done, did not. bring him within the exception to the rule which has been recognized in certain cases when the servant was so near the place of his employment as in effect to be within the protection of the law.
    Certiorari to the industrial accident board.
    Submitted June 22, 1914.
    (Docket No. 53.)
    Decided July 24, 1914.
    Leone H. Hills applied for an award of compensation for the injury and death of her husband, Irwin E. Hills, an employee of Frank W. Blair and others as receivers of the Pere Marquette Railroad Company. From the award granted, defendants bring certiorari.
    Reversed.
    O. C. Trask (McArthur & Dunnebaeke, of counsel), for applicant.

      Parker, Shields & Brown (S. L. Merriam and J. C. Bills, of counsel), for respondents.
   Steere, J.

This is an appeal by respondents, as receivers of the Pere Marquette Railroad Company, from an award of compensation made by the Michigan industrial accident board for the accidental death of Irwin Hills, at Williamston, Mich., on November 16, 1912, while he was an employee of said railway, as a section hand. The facts in the case as testified to by witnesses are practically undisputed. The controversy is over inferences which may be drawn from the facts proven, and conclusions of law thereon.

On the day in question Hills was working during the forenoon at his regular employment in a section crew along respondent’s railway track east of Williamston. The crew returned to Williamston with their hand car and stopped for dinner at the hand car house by the south side of the track shortly after 11 o’clock, standard time, putting the car inside preparatory to taking their meal. As they were returning, the smoke of a train coming from the east was seen in the distance. It was customary for the men to carry their dinners with them and eat together at or near where they were at work; but on this day deceased had not waited in the morning for his dinner to be put up by his wife, and hurried away to his work, saying that if he could get excused he would be home to dinner. After the men.had put the hand car into the car house and the others were proceeding to eat their noonday meal, Hills took his coat and told the foreman that he was going home for his dinner, to which the foreman assented, and he hurried away. Just as he left the car house, the foreman, when reaching for his dinner pail, noticed a freight train coming from the east “about four or five pole lengths from the car house,” meaning the distance between telegraph poles, and told Hills to look out for it. Answering that he would be all right, Hills hurried down the railway track in a westerly direction towards the station. The car house at which the section men ate their dinner was located 1,934 feet east of the station, while Hills’ home was about half a block north of it; 225 feet west of the car house a street crossed the railway tracks intersecting a wagon road which ran east and west, parallel with the railroad and just to the north of it. One of the section hands saw Hills go west on the track as far as the street crossing. He could have left the railroad at that point by the public street and gone home along the wagon road on the. same side of the railroad as his home. This road, however, though open to the public, was not in good condition for travel. The men employed in the yards were accustomed to enter and leave at the station, going to the car house and elsewhere along the tracks as they found- it most convenient. There was also a footpath along the railroad right of way between the main track and a side track, upon which they could walk in safety. The freight train, which the foreman had noticed and warned Hills of, was coming from the east on the main track of the railway and passed throúgh the village of Williamston without stopping. It was the custom of such trains when approaching Williamston to shut off steam and slow down to from 8 to 12 miles an hour until they could catch the signal, when, if a stop was not indicated, they would increase their speed and proceed without stopping. No stop signal was set for this train on the day in question, and it passed through the yards between the car house and the depot at an estimated speed of from 15 to 18 miles an hour. The conductor and fireman of the train testified that before catching the signal the train slowed down to 10 or 12 miles. A witness named Whipple, who was loading a car with hay at some sheds located 12 or 15 rods west of the hand car house, testified that as the train was approaching he saw a fellow coming from the west on a run pulling on his coat, and noticed him stop on the north side of the track and look to the east; from his actions witness thought he was a brakeman waiting for the train, and that the train stopped, but “they hit up quite a clip just as soon as the engine got by there;” that this was about 50 rods from the place where the man was killed by the switch. Being asked if the man he then saw was deceased, he replied:

“It was a man with a fur cap on, and when I see who was lying on the ground it looked just like the coat he was putting on and the cap he had on, and that is all I know about it.”

A short time after the train had passed, the body of Hills was found lying beside the main track approximately 950 feet west of the hand car house and about 1,000 feet east of the depot near a stub switch, a lantern prong of which was bent to the west. There were no eyewitnesses to the accident. The manner in which it occurred was a matter of inference from surrounding facts and circumstances proven.

. It was the theory in behalf of claimant that deceased was accidentally struck by the train as he was traveling along the track towards his home and thrown against the switch standard which stood about 20 feet east of where his body was discovered. Respondents contended that shortly after leaving the car house, and near the highway crossing, deceased boarded the train, which was moving slowest at that point, intending to ride as far as the depot, near his home, and drop off, but that as the train increased its speed on approaching the depot, after ascertaining that there was no signal set for a stop, he either jumped or fell, striking the switch standard, and was thereby killed.

The industrial accident board apparently adopted claimant’s theory that deceased walked, or ran, along the railway ahead of the oncoming train for a distance of 930 feet from where he left his fellow workmen at the car house, before the train overtook him at the switch, when, as he started to pass by the light standard on the south near the track, he “walked a little too close to the car and was struck by the train and thrown against the light standard; the force of the impact hurling his body about 20 feet to the west.” The board found as a fact that deceased, on his way from the car house to his home for dinner, “was accidentally struck by said train while he was traveling towards the depot and was thrown against the switch standard mentioned'in the evidence, causing death.” As a conclusion of law it found that:

“He was still his master’s servant while so in the act of leaving his employment, and that the employment covers not only the time during which the workman is engaged in his ordinary labor, but also a later time during which he is passing from the surroundings of his employment into surroundings unrelated thereto.” Also holding “that deceased was killed by an accident arising out of and in the course of his employment.”

Under the provisions of this act, only that employee is entitled to compensation who “receives personal injuries arising out of and in the course of his employment.” It is to be borne in mind that the act does not provide insurance for the employed workman to compensate any other kind of accident or injury which may befall him. The language of the Michigan compensation law is adopted from the English and Scotch acts on the same subject, and, in harmony with their interpretations, has been construed by this court, in Rayner v. Furniture Co., 180 Mich. 168 (146 N. W. 665), as meaning that the words “out of” refer to the origin, or cause of the accident, and the words “in the course of” to the time, place, and circumstances under which it occurred.

In Ayr Steam Shipping Co., Ltd., v. Lendrum, 6 B. W. C. C. 326, involving a fatal accident attended with uncertainty as to details, the court said:

“I think one may deduce from the decisions (1) that the burden is always upon the applicant to prove that death resulted from an accident arising out of as well as in the course of the employment; (2) that such proof need not be direct but may be by circumstantial evidence, but there must be facts from which an inference can be drawn, as distinguished from mere conjecture, surmise, or probability; and (3) that an award by an arbiter cannot stand unless the facts •found are such as to entitle him reasonably to infer his conclusion from them.”

It is contended by appellants that the facts proven here do not in reason support the inference of the board as to the manner in which deceased met his death, but, on the contrary, conclusively show that he was killed in an attempt to board or leave a moving train, precluding any award under the ruling in Pope v. Hill’s Plymouth Co., 5 B. W. C. C. 175, in which case a workman in a colliery going home to his dinner on the premises of his employer was killed in attempting to jump on a passing tramcar. It is further urged as a defense that, if it cannot be said as a matter of law a finding of fact should have been made as appellants contend, it should at least be held that the proven facts are equally consistent with either one of the two alternatives, and no inferences can legitimately be drawn to support an award.

We are not prepared to hold that the findings of fact, as to the manner of the accident, are entirely without evidential support, either direct or by inference. They are therefore to be taken as conclusive under the statute. Accepting them as such, do they sustain the conclusion of law that Hills’ death arose out of and in the course of his employment?

It is well settled that the burden rests upon the one claiming compensation to show by competent testimony, direct or circumstantial, not only the fact of an injury, but that it occurred in connection with the alleged employment, and both arose out of and in the course of the service at which the injured party was employed.

While occasional exceptions are noted, as in the case of most rules, it is laid down by the authorities as a general rule that accidents which befall an employee while going to or from his work are not to be regarded as in the course or arising out of his employment. Boyd on Workmen’s Compensation, § 486; Harper on Workmen’s Compensation, § 34; 1 Brad-, bury on Workmen’s Compensation (2d Ed.), p. 404.

This inquiry, therefore, narrows down to whether this is an exception to the general rule. As deceased was doing no work he was. required to perform in fulfillment of his. contract of employment, the contention that it is an exception rests mainly upon the claim that when killed he was yet on the premises of his employer, going from, and in the vicinity of, his place of employment. No question is involved of exceptions by the terms of hiring, of the employee being required to work overtime, or of any interruption, rfnusual kind of work being done, or other special circumstance in connection with the employment. The only unusual and special thing shown in that connection is the fact that at the noon hour, contrary to previous usage and custom, he left his place of employment and fellow workmen to go elsewhere on a mission of his own, not connected with his employer’s business, but to please himself; the occasion being that he had failed to bring with him his dinner as was customary with the crew and as he had always done before. Can it be said that he was then engaged in his employer’s business, discharging any duty or on any errand connected with his employment?

In applying the general rule that the period of going to and returning from work is not covered by the act, it is held that the employment is not limited by the exact time when the workman reaches the scene of his labor and begins it, nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while-he is at or near his place of employment. One of the tests sometimes applied is whether the workman is still on the premises of his employer. This, while often a helpful consideration, is by no means conclusive. A workman might be on the premises of another than his employer, or in a public place, and yet be so close to the scene of his labor, within its zone, environments, and hazards, as to be in effect at the place and under the protection of the act, while, on the other hand, as in case of.a railway stretching endless miles across the country, he might be on the premises of his employer and yet far removed from where his contract of labor called him. The protection of. the law does not extend, except by special contract, beyond the locality, or vicinity, of the place of labor.

“It is not a sufficient test that the workman should be on the premises of the employer; but it may be sufficient that he is in such a state of proximity as may be treated as a reasonable margin in point of space.” Hoskins v. Lancaster, 3 B. W. C. C. 476.

Upon this subject, and leading directly to the protection which the act gives the employee during the noon intermission, it is said in Boyd on Workmen’s Compensation, § 481:

“A workman’s employment is not confined to the actual work upon which he is engaged, but extends to those actions which by the terms of his employment he is entitled to take or where by the terms of his employment he is taking his meals on the employer’s premises. (Brice v. Lloyd, 2 B. W. C. C. 26.) In other words a workman does not lose his character as a workman while eating his lunch on his employer’s premises at a place where he may safely do so and not at an especially forbidden place or a place of obvious danger. But this rule would not apply to cases where the employee leaves the premises of his employer to eat his lunch during the time set apart for this purpose.”

To the same effect it is said in Ruegg on Employers’ Liability and Workmen’s Compensation, p. 377:

“In one sense, it may be said to be a part of his duty to get to such place, but if his method of traveling is not controlled by the employer, if he is a free agent, it is thought this qualified dirty is not sufficient to raise, at the time, the relation of employer and workman.
“The same may be said with respect to the time occupied in returning home from work, and of intervals allowed for meals when spent off the employer’s premises.” *

The rules of presumption and inference which often go far to assist a claimant in establishing his case where a workman is found dead at the scene of his labor are of scant application here. When the employee dies at his post of duty, a presumption may reasonably be entertained that he was then performing his duty and engaged in the work for which he was employed, from which a causal relation between his employment and the accident may be inferred; but it is shown here that deceased left the locality and sphere of his employment at a time when work was suspended, that he was doing nothing within the scope of his employment, was not under the direction or control of his employer, and went away for purposes of his own, going where and as he pleased. Though he was traveling on his employer’s premises when injured, he was then 950 feet away from where any duty in the line of his employment called him, and had selected his own route. But a short distance from where he left the car house he could have turned by a public street onto a wagon road along which he could have gone to his home, and a safe footpath was also available to him along the right of way. The custom of employees to travel along the railroad in going to and from their work, when it is shown that there was another and safe way which they might have taken, is not of controlling importance. At the same distance deceased was injured, from the place of employment, they would be at most but mere licensees. In Caton v. Steel Co., 39 Scot. L. R. 762, it was held that the injury did not arise out of and in the course of the employment of a laborer who, at the conclusion of his day’s work, was knocked down and killed by a passing engine 230 yards from where he had been working, while walking home along a private railway track belonging to his employer, which many of the men employed at the same place were in the habit of using in going to and from their work. The court there said:

“The deceased at the time of the accident had ceased his work, had left the place where he did it, and was on his way home. He had at the time no duty to fulfill to his master, and his master had no duty to fulfill towards him. The relation of master and servant had ended for the day, he having fulfilled his work and left the place where his work was being done.”

Under the undisputed testimony in this case, and accepting the findings of fact made by the board as conclusive, claimant has failed to show such relations of cause and effect between the accident and the duties of the party injured to his employer as will support a conclusion of law that the injury arose out of and in the course of the employment.

The decision, or award, herein is therefore reversed and set aside.

Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred with Steere, J.

McAlvay, C. J. In my opinion the facts proven were equally consistent with either- theory, and no legitimate inference- can be drawn to support an award. I am therefore in favor of reversal for this further reason.


author: Mooke, J.

text:
    LEVITAN v. HOUGHTON NATIONAL BANK.
    Equity — Accounting;—Jurisdiction—Adequate Remedy at Law.
    A bill of complaint for an accounting, instituted by complainant as depositor of a national bank, averring that her husband, without authority, had drawn checks on her account in her name, that complainant had warned defendant bank not to honor checks signed by him and that she had executed a mortgage to satisfy an alleged indebtedness to the bank, due to his unauthorized transactions, and that the mortgage was used to satisfy a debt of her husband, that complainant subsequently gave her note to the bank, which the bill charged, was void on the ground of coverture, held, demurrable: complainant had an adequate remedy at law and the court of equity would not interpose its jurisdiction to require the surrender of jewelry and other valuables in the possession of defendant bank. Bird and Moore, JJ., dissenting.
    Appeal from Washtenaw; Kinne, J.
    Submitted June 18, 1914.
    (Docket No. 107.)
    Decided July 24, 1914.
    Rehearing denied December 19, 1914.
    Bill by Rae Levitan against the Houghton National Bank, for an accounting. From an order overruling a demurrer to the bill of complaint, defendant appeals.
    Reversed.

      Arthur E. Fixel and Max H. Finkélston (Selling & Brand, of counsel), for complainant.

      Allen F. Rees {Rees, Robinson & Petermann, of counsel), for defendant.
   Mooke, J.

This is an appeal from a decree overruling a demurrer to a bill in chancery. Stripped of its formal parts and its legal verbiage, the bill of complaint avers in substance: That complainant had a personal savings account and a personal commercial account in defendant bank. That she was formerly the wife of David Levitan, from whom she has been divorced'. That complainant purchased and sold copper stocks through the agency of said bank. That during the same time her said husband also purchased and sold copper stocks through the agency of said bank. That, without authority from her, said bank paid out of her commercial account upwards of $7,000 upon checks signed in her name by said David Levitan without her knowledge or authority. That said bank now claims that complainant is indebted to it in the sum of upwards of $9,000, and that she believes the said debt is the debt of David Levitan, who became a bankrupt in June, 1909. That said Levitan liquidated his said debt through the cashier of said bank, which result was brought about by giving a mortgage on the homestead of the complainant, which was signed by her on her understanding that it liquidated the debt referred to.

We quote from the bill of complaint:

“(9) Your oratrix shows: That the said David Levitan concealed his stock transactions from your oratrix. That your oratrix had distinctly forbidden him to trade in stocks in her name. That your oratrix had distinctly cautioned the defendant, the Houghton National Bank, to refuse to honor orders, checks, and notes given by him on her bank account, whether signed in his name or in the name of your oratrix. Your oratrix shows: That said defendants connived at the unlawful and unauthorized transactions of said David Levitan with the money of your oratrix, honored orders and checks signed by said David Levitan, and paid same out of the commercial account of your oratrix at said bank. That such transactions were carried on without the knowledge or consent of your oratrix.
“(10) Your oratrix further shows: That in the year 1907, before the failure of the said David Levitan in his business in L’Anse, Mich., your oratrix underwent a surgical operation in Chicago, State of Illinois. That after going home from Chicago, Ill., to L’Anse, Mich., your oratrix called at the Houghton National Bank. That your oratrix was importuned by the said William McLaughlin, who was the cashier oif the defendant bank, to sign a certain note. That your oratrix had had very little business experience and relied entirely on what said William B. McLaughlin told her. That your oratrix at first refused to sign said note. That your oratrix was in a very weak condition physically by reason of the recent operation performed on your oratrix. That the said William B. McLaughlin detained your oratrix at the bank of the said defendant at Houghton, Mich., for a long period of time, to wit, four hours, during which time the said William B. McLaughlin, by various representations, artifices, and threats, finally succeeded in getting the signature of your oratrix on said note.
“(11) Your oratrix shows: That she has no knowledge as to what the said note was given for, nor does she know the amount of said note or anything in connection with it. That your oratrix had heard from her former husband, the said David Levitan, that William B. McLaughlin could be relied upon for all purposes. That your oratrix had always had her business transactions at the Houghton National Bank with the said William B. McLaughlin. That your oratrix, on the occasion of signing said note, did so on the representations of the said William B. McLaughlin that your oratrix was incurring no liability by the signing of said note. That said David Levitan was indebted to the bank in a large amount. That your oratrix, by signing the said note, was rendering her husband, the said David Levitan, great assistance. That, unless your oratrix signed the said note, the said David Levitan would get into trouble with his creditors and would lose his business. That by reason of an indebtedness to said defendant on the said home at L’Anse, Mich., your oratrix and David Levitan might be put out of their home. Your oratrix further shows unto the court that yielding to the solicitation of the said William B. McLaughlin to sign the said note (having no idea that she was signing a note for unauthorized purchases of stock made in her name) after being detained at the bank in her weakened condition for almost four hours, and being unable to judge for herself as to the propriety of her signing said note, and being unable, because of her physical condition and because of the influence exerted over her by the said William B._ McLaughlin, to judge for herself what she was doing in reference to her property rights, at the direction of the said William B. McLaughlin, caused her signature to be affixed to said paper now alleged to be a note for $9,736.69. * * * ”

The bill then states various transactions and memorandums.

“ (20) Your oratrix further shows: That about the 1st day of October, 1907, your oratrix delivered for safe-keeping to the said defendant her diamonds valued at about $1,000. That said diamonds were not given to the said defendant as a pledge or to secure any account of your oratrix or of any other person. * * * That she requested a statement of account from the said defendant. That your oratrix likewise made demand of the said defendant to return to her her diamonds, which request was refused by the said defendant. * * * ”

The bill of complaint avers: That complainant relied entirely upon the statements of the cashier of defendant bank.

“That as a consequence your oratrix does not know all of the amounts withdrawn from her credit at said defendant bank on memorandum checks. That your oratrix does not know the exact amount received on the sale of her Houghton National Bank stock. That your oratrix, at the present time, does not know the exact amount of money secured by the said defendant from the savings account of your oratrix at the Marquette National Bank. Your oratrix further shows that she does not know the amounts of the unauthorized charges against the account of your oratrix at said bank on checks signed in the name of your oratrix by the said David Levitan, and that your oratrix has no complete records of the stock purchases and sales made through the agency of said defendant for your oratrix or for said David Levitan in the name of your oratrix, for which moneys were borrowed in the name of your oratrix at said bank. * * * Your oratrix shows: That she must therefore have a complete and true accounting from the said defendant with reference to all of its transactions involving the commercial account of your oratrix at the said bank. That your oratrix is entitled to such accounting, so that every charge made against the account of your oratrix can be identified, and so that those charges which were made at the direction of the said David Levitan and for his benefit may be segregated from those withdrawals which your oratrix herself made from her .said- bank account. That, should it be determined after such accounting that any. of the items charged against the account of your oratrix do not represent an indebtedness or an obligation of your oratrix, your oratrix may have a decree for the amounts so found to be due her from the said defendant, the Houghton National Bank.”

The bill of complaint prays, among other things, for an accounting and for a decree for the amount due complainant.

“That the court decree the surrender to your oratrix of the diamonds and jewelry belonging to your oratrix and now in the possession of said defendant. * * * That, by reason of the coverture of your oratrix at the time of signing said alleged note, the said note is not a valid obligation for any indebtedness which is not chargeable to the dealings of your oratrix with her individual property. That, should the court find that any part of the indebtedness evidenced by said note is a liability of said David Levitan, the court order said note to be canceled and delivered up to your oratrix. That the court restrain said defendant from transferring, assigning, or disposing of said alleged note pending the hearing in this cause.”

There were prayers for other relief and a prayer for general relief.

The defendant demurréd to the bill of complaint, assigning five reasons, but the important one argued in the briefs and in the oral argument of the solicitor for appellant is that:

“The said bill of complaint on its face shows that complainant has a full and adequate remedy at law for the several claims and demands set forth in said bill of complaint.”

Many cases are cited, and an elaborate argument is made on the part of appellant. We shall not attempt to analyze the bill of complaint or make a criticism of the cases. The demurrer of course admits the truth of such of the averments of the bill of complaint as are properly pleaded. The court below, in decreeing that the bill of complaint made a case for the exercise of chancery jurisdiction, is justified by the following cases: Blodgett v. Foster, 114 Mich. 688 (72 N. W. 1000, 68 Am. St. Rep. 504); Excelsior Wrapper Co. v. Yund, 176 Mich. 372 (142 N. W. 353); Kirby v. Railroad, 120 U. S. 130 (7 Sup. Ct. 430); Tompkins v. Hollister, 60 Mich. 470 (27 N. W. 651); John Hancock Ins. Co. v. Dick, 114 Mich. 337 (72 N. W. 179, 43 L. R. A. 566); Mactavish v. Kent Circuit Judge, 122 Mich. 242 (80 N. W. 1086); Edwards v. Investment Co., 132 Mich. 1 (92 N. W. 491); Township of North Allis v. Allis Township, 142 Mich. 137 (105 N. W. 139); Fred Macey Co. v. Macey, 143 Mich. 138 (5 L. R. A. [N. S.] 1036), and the many cases cited in the two opinions in the last-named case.

We think the averments of the bill of complaint are sufficient to call for an answer and proofs.

The decree of the court below should be affirmed, with costs, and defendant allowed the usual time in which to answer.

Bird, J., concurred with Moore, J.

Stone, J. I think that the demurrer should have been sustained on the ground that complainant has an adequate remedy at law.

McAlvay, C. J., and Brooke, Kuhn, Ostrander, and Steere, JJ., concurred with Stone, J.

i


text:
    STRONG v. CHANEY.
    Pledge — Corporate Stock — Title.
    Upon, an issue of fact as to the ownership of certificates of certain shares of stock, evidence considered, and held, to justify the trial court in granting complainant the relief prayed, and in finding that defendant was in possession as pledgee, the indebtedness secured having been paid.
    Appeal from Wayne; Hally, J.
    Submitted June 4, 1914.
    (Docket No. 18.)
    Decided July 24, 1914.
    Bill by William H. Strong against E. Hall Chaney for the surrender of certain shares of stock. From a decree for complainant, defendant appeals.
    Affirmed.

      Lyle G. Younglove, for complainant.

      Angelí, Boynton, McMillan, Bodman & Turner, for defendant.
   Moore, J.

The complainant is president of the Wilder-Strong Implement Company, a corporation doing business in Monroe. In December, 1909, he was, president of the Charlevoix Company, which had control of an apartment hotel, known as the Charlevoix in Detroit. The company was in need of funds, and for the purpose of raising money Mr. Strong secured a loan from his wife for $2,700, and as evidence of that indebtedness gave the note of the Charlevoix Company, indorsed by himself and the treasurer of the company. Mrs. Strong subsequently recovered judgment on this note. As security for the payment of the note Mr. Strong gave to her certain certificates of stock of the Charlevoix Company, also certificates Nos. 8, 9, and 10 of the Wilder-Strong Implement Company for 150 shares of the common stock, and received a written acknowledgment thereof, and of the purposes for which such certificates were delivered, from his wife. In March, 1910, the. three certificates of the Wilder-Strong Implement Company were canceled, and one certificate, No. 21, of the same company, for the same number of shares issued to Mrs. Strong was delivered to her, and remained in her possession until delivered to Mr. Helfman of the firm of Lucking, Emmons & Helfman about January 21, 1911, who delivered the certificate to complainant with other papers. On January 23d, Mr. Helfman gave Mrs. Strong a check for $2,710.65. The note of the Charlevoix Company had been surrendered and assigned by Mr. Helfman to Grinnell Bros., two or three days prior to that date. Mrs. Strong died in September, 1911, and her son, E. Hall Chaney, and daughter, Isabella C. Chaney, were appointed executors of her will, which was duly probated. E. Hall Chaney at the annual meeting in November, 1911, was elected treasurer, and held that position at the time this suit was started. In March, 1912, complainant asked E. Hall Chaney for the return of certificate No. 21 of the Wilder-Strong Implement Company common stock, and showed defendant, Chaney, the receipt which originally had been given by Mrs. Strong when she received the stock, and subsequently returned to Mr. Strong. Mr. Chaney took the receipt' to show his sister, Isabella C. Chaney, who indorsed certificate No. 21 for delivery to complainant. Subsequently defendant, Chaney, refused to surrender the certificate, asserting his belief that it belonged to the estate of his mother. Mr. Strong demanded orally and in writing the certificate, and, his demands being refused, filed a bill of complaint, praying that defendant, Chaney, be compelled to surrender and deliver up the said certificate No. 21. This case was tried in open court. The judge made a decree in favor of the complainant. The case is brought here by appeal.

The single question involved is whether the complainant is the owner of certificate No. 21 for 150 shares of the common stock of the Wilder-Strong Implement Company. If he is such owner, the decree is right.

The appellant contends that as the certificate of stock stood in the name of Mrs. Strong at the time of her death, this affords prima facie evidence of her ownership, and that the burden of showing it belonged to the complainant, and has not been met by him. It is also claimed that Mrs. Strong claimed the stock as her own, and that this claim was recognized by the complainant, and that she never delivered the certificate to the complainant nor authorized any one to do so. We have carefully considered these claims in connection with the evidence disclosed, by the record. It is agreed that the stock was originally owned by Mr. Strong, and it is clear it was transferred to Mrs. Strong to secure her for a loan she made, which was afterwards put into a judgment. The loan so far as she was concerned was satisfied, and she was paid her money. We think it is also shown that at the time, and as part of the transaction, she caused the certificate to be delivered to a member of the legal firm through whose agency she obtained her money for the loan she had made, and that the certificate was then delivered to Mr. Strong, who claimed that as the debt was paid the stock belonged to him.

We are entirely satisfied that the decree of the court below is justified by the evidence, and it is affirmed, with costs.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.


text:
    MOSS v. DETROIT & MACKINAC RAILWAY CO.
    1. Carriers — Duty to Deposit Passenger at Station — Negligence — Failure to Notify.
    Evidence tending to show that plaintiff, a girl of about nine, and her brother about four years older,' bought tickets and took a train of defendant railway company, the conductor of which agreed to let them know when to alight, that he neglected to tell them, and deposited the children nearly five miles from their destination, so that they were forced to walk back through a snow storm in cold weather nearly seven miles, and the plaintiff suffered from exposure and had a relapse into a serious illness from which she had recently recovered, held, to sustain a verdict for the plaintiff and finding that the illness was the proximate result of plaintiff’s being carried past her destination.

    2. Trial — Special Questions.
    Answers to special questions that would not be controlling of the verdict need not be required.
    3. Carriers — Requests—Contributory Negligence.
    The court did not err in refusing to submit a request of defendant that if there were places where the children could have stopped and avoided exposure it was their duty so to do.
    Error to Bay; Collins, J.
    Submitted June 10, 1914.
    (Docket No. 50.)
    Decided July 24, 1914.
    Case by Pearl Moss, by next friend, against the Detroit & Mackinac Railway Company for failure to carry plaintiff to destination, etc. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry, Henry & Henry (James McNamara, of counsel), for appellant.

      Thomas G. Baillie (R. L. Crane, of counsel), for appellee.

       As to what injuries may be deemed the proximate result of discharging passenger at improper place, or one not his destination, see note in 7 L. R. A. (N. S.) 1177.

   Moore, J.

It is the claim of the plaintiff that on December 28, 1911, her father purchased one one-half fare ticket, and one full fare ticket at the office of the Pere Marquette Railroad in Saginaw, from Saginaw to Linwood. These tickets were to be used by Pearl Moss, who was nine years old, and by William Moss, a brother of Pearl, thirteen years old, who were going to spend Christmas with their grandfather, who lived on a farm about two miles from Linwood. At Bay City the children got a train on the defendant road, and it is claimed that when the conductor took up the tickets he told them he would tell them when to get off; that after passing a number of stations the boy asked the conductor if they had reached Linwood, and the reply was given, “You are away by that place, and you had better hurry and get offthat the train was stopped, and they were compelled to walk back, and finally to walk to the home of the grandfather, which they reached about 7 o’clock on a cold, stormy day, snow being on the ground, and the children having a suit case to carry. It is claimed the distance they walked was approximately seven miles. It is further claimed that the girl was just recovering from diphtheria, and was made ill, from which illness she had not made a complete recovery at the time of the trial, nearly two years later. From a verdict and judgment of $380, the case is brought here by writ of error.

It is claimed a verdict should have been directed in favor of defendant: First, because no negligence was shown on the part of defendant, which was the proximate cause of the illness of the plaintiff; and, second, because plaintiff was guilty of contributory negligence.

It goes without saying that for the purposes of this case the testimony most favorable to the plaintiff must be regarded as true, even though the testimony of the girl and boy as to what the conductor said and did to them is contradicted by the conductor and brakeman. A very elaborate argument is made to show that being carried past the station was not the proximate cause of the illness of the plaintiff.

We do not think it can be said, as a matter of law, that no negligence on the part of defendant was shown. The facts surrounding the occurrence and the inferences to be drawn from them were for the jury. See 6 Cyc. pp. 585-586, and notes; 3 Thompson on Negligence (2d Ed.), p. 355; Schroeder v. Railway Co., 174 Mich. 684 (140 N. W. 968). Nor do we think it can be said, as a matter of law, that this young girl was guilty of contributory negligence. 3 Thompson on Negligence (2d Ed.), p. 361.

A request was made that the court submit to the jury five special questions. The court disposed of this request as follows:

“Counsel for defendant have passed up five questions to be submitted to you. I decline to submit all of them, except question No. 3. My reason for that is that they were not submitted in. time for proper consideration, and that I consider them each defective as. rejected in some particular.”

As to the third question the jury returned they could not agree. We have examined these questions; but it is not necessary to quote them. An answer to them would not be controlling of the verdict. We think the action of the court was not error. Clement v. Crosby & Co., 157 Mich. 643 (122 N. W. 263); Ward v. Campau, 161 Mich. 85 (125 N. W. 734); Malkowski v. Olfs, 161 Mich. 303 (126 N. W. 199); Dykstra v. Railway Co., 165 Mich. 13 (130 N. W. 320).

Defendant preferred the following request:

“In order to find a verdict against the defendant and in favor of the plaintiff, the jury must determine that the condition of the girl, Pearl Moss, at the time of the commencement of this suit was caused by the negligence of the defendant, or its legal representatives, and if, while at the place where the children left the train there were places for them to stop and remain, thereby avoiding the exposure which followed, it was their duty so to do, and the only damage which the defendant could be chargeable with would be such as resulted from the time they left the train until they could arrive at a place where they , could remain without injury to their health, and the great burden of proofs is to the effect that within 300 or 600 feet of the place where the boy claims they left the train there were houses in which they could have waited and avoided any damageable result by exposure.”

Counsel also call particular attention to the excerpts from the charge:

“Now it appears that there is an east and west road running through Linwood village, and in going to Linwood village from where they were put off the train, the children walked as far down as. that. It also appears that Linwood station is some distance south of this east and west road running through Linwood village. Now, I charge you, as a matter of law, that for a distance between that east and west road running through Linwood village to Linwood station, for walking a distance as far as that on the road the children actually traveled, they cannot recover any damages. But if you find as a fact that the portion of the walk that I have described, viz., from the place where the children got off to Linwood village, less the distance from Linwood Park to that east and west road, for that distance if the plaintiff has sustained injury which you can measure by damages, she is entitled to recover. * * *
“I charge you, as a matter of law, that no contract plaintiff might have had could have carried her beyond’ Linwood Park on the defendant road; that the evidence shows that she would have had to walk from there to her grandfather’s, the home of Peter Camaries; and that you shall not allow the plaintiff to recover for injuries that may have resulted to her health by reason of walking a distance, equal distance from Linwood Park to the crossing or east and west road running through Linwood on the Michigan Central Railroad, and’that there can in no case be a recovery for injuries received in walking the distance from Linwood village to the home of her grandfather,” — and assign error.

The record would not justify the giving of the defendant’s request to charge. That portion of the charge we have quoted must have been given in the desire to be so cautious that no error should get into the case.

It is clear that the proximate cause of the long walk taken by the children was the fact that they were carried past their station. If any one has reason to complain of this portion of the charge, it is not the defendant.

The judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.