author: Carpenter, J.

text:
    BRAY v. FLETCHER.
    1. Statute of Limitations — Breach of Warranty.
    The statute of limitations against an action for a breach of warranty under a deed of lands in Wisconsin, given when certain taxes were a lien on the land, begins to run from th& date of recording the tax deed, as, under the laws of that State, the recording of a tax deed gives the grantee constructive possession, and amounts to an eviction.
    2. Sam:e — Suspension of Statute.
    The statute of limitations against an action for a breach of warranty is not suspended by reason of the grantor’s authorizing the grantee to bring suit to clear the title, where tho grantee settles such suit without the consent of the grantor.
    Error to Wayne; Rohnert, J.
    Submitted December 2, 1902.
    (Docket No. 62.)
    Decided February 17, 1903.
    James M. Bray and Leander Choate presented a claim, against the estate of George N. Fletcher, deceased (represented by Frank W. Fletcher and Allan M. Fletcher, executors), for damages for the breach of the covenants in a deed. The claim was disallowed by the commissioners, and claimants appealed to the circuit court. From a judgment for defendants on verdict directed by the court,, claimants bring, error.
    Affirmed.

      De Forest Paine, for appellants.

      Russel & Campbell (Henry M. Campbell, of counsel), for appellees.
   Carpenter, J.

This is a claim for damages for the breach of covenants. On November 5, 1879, defendants’ testator deeded to claimants an undivided 9-16 interest in 65 40’s of pine land, situated in Wisconsin. This deed contained a covenant of seisin, covenant against incumbrances, and covenant of warranty. The controversy arises out of certain taxes levied on said lands for the years 1876 and 1877. At the time the deed was executed, these taxes had not ripened into a title, though the land had been sold for the nonpayment of the taxes, and this sale constituted an incumbrance on the lands. A tax deed of 19 of these 40’s and other lands was issued to one Joseph H. Porter, September 9,1881, and recorded September 12, 1881. Four tax deeds of 25 of these 40’s and other lands were issued to one William H. Webster, bearing date, respectively, July 8, 1881, July 12, 1881, February 20, 1883, and September 17, 1885, and recorded, respectively, July 8, 1881, July 23, 1881, February 27, 1883, and September 17, 1885. All of these tax deeds are for an undivided three-fourths of the land described in the deed from defendants’ testator, so far as they described said lands.

On the 13th of March, 1882, claimants commenced two ejectment suits, one against Porter, to recover the 19 40’s in his tax deed covered by the Fletcher deed, and other lands, and another against Webster, to recover the 25 40’s in his tax deeds covered by the Fletcher deed, and also other lands. On October 14, 1886, claimants settled their controversy with Porter. They paid him $1,436.89, and received a quitclaim deed of all the land described in his tax deed, and of other land. March 12, 1895, claimants settled with Webster, paying him $25,000, and received his quitclaim dee'd of all the lands described in his tax deeds, and of other lands. An interest in'the tax titles acquired by Webster still remained outstanding. On May 24, 1886, he had sold and conveyed an undivided one-third of his three-fourths interest to one S. A. Coleman. October 15, 1896, one Julius B. Grunert, grantee of Coleman, commenced a suit against one Jesse Spaulding, grantee of claimants, to recover damages for timber cut from the land in said Fletcher deed, and from other lands. Claimants, having given a warranty deed to Spaulding, were bound to and did assume the defense of this suit. December 12,1896, claimants served on Fletcher a writing notifying him of the suit, and asking him to assume its defense. To this writing no attention whatever was paid. This suit resulted in a judgment against claimants for $18,500. Under the laws of Wisconsin, the recording of a tax deed gives the grantees therein constructive possession of the land, and amounts to an eviction.

Defendants’ testator, George N. Fletcher, died November 6, 1899. This claim was not presented until March 9, 1901. At this time the commissioners on claims had filed their report, and the claim in controversy was presented under an order reviving the commission. The trial court directed a verdict for defendants upon grounds which we are not called upon to consider, as, in our judgment, as hereinafter shown, plaintiffs’ claim is barred by the statute of limitations.

It is apparent that the statute of limitations commenced to run as early as 1885, at least, and that plaintiffs’ claim is therefore barred, unless, in some manner, the operation of the statute has been suspended. Claimants contend that “the promises and conduct of defendants’ testator induced them to refrain from bringing action within the period fixed by the statute; and that he would be, if living, and his legal representatives are, estopped to set up the statute.”

Let us examine the promises and conduct referred to. November 5, 1881, Mr. Fletcher wrote Bray & Choate the following letter:

“A letter from Messrs. Finch & Barber, giving me their opinion of the case, is at hand, and they ask what proportion of the expense I will pay, provided they go on with the case for you. I wish to say at once that I have no disposition to divide the expense with you. If there must be a suit, it is my business to pay it all, but, at the same time, I am not so overflush with funds that I do not care what the expense is. I wish you to engage these men at some fair figure to do the business for me, and I will pay them. See that their charges are fair. And I wish them to include all the lands granted me by the act.”

The record does not show that any response was made to this letter, but it does show that claimant Choate showed the same to Messrs. Finch & Barber, and engaged them as attorneys in the ejectment suits which were commenced the 13th of the following March against Porter and Webster. Some correspondence took place between Messrs. Finch & Barber and Fletcher (which is not produced or proved), and the latter paid the former some money for their services in conducting these suits. On January 12, 1885, Finch & Barber wrote Fletcher about the tax litigation, inquiring if he was willing to settle certain suits, saying that another was begun to save the statute of limitations running, and stating:

“We would like to sort of weed out this litigation, and determine it in the principal cases where Bray & Choate are interested, and where the value of the lands is such that it will justify litigation. In the case of Bray & Choate v. Porter, it is our test suit. Have closed the testimony for the plaintiff, and at the next term of the Appleton circuit will probably get a decision.”

September 9, 1886, Fletcher wrote Choate the following letter:

“ It is* strange that the State should go back on the contract, and then assume to sell the lands. I admit it is better to settle when it can be done finally, but there are too many cases, as I suppose, to admit of it. What does Palms propose to do F I should never have given a warranty deed only as to my own acts, but I did, and expect to suffer.”

Notwithstanding this letter, claimants, on October 14, 1886, settled with Porter, as already indicated. Shortly after this, Fletcher declined to make further payments to-Finch & Barber towards the prosecution of these suits, and, after this, claimants paid them. We are able to say that this refusal of Fletcher occurred before February 11, 1887, as on that date claimants paid Finch & Barber $1,000 to be applied on their services. Respecting this, claimant Choate testified: '

‘ ‘ Finch & Barber notified me at a certain time that we would have to stand liable for their fees, and something to the effect that they wouldn’t go ahead unless we did. They didn’t say that Mr. Fletcher refused to make these payments. They said they couldn’t get the money from him when they sent for it, and therefore I had to make the payment in the Porter settlement at that time.”

The record shows no communication between the parties from this time until June 2, 1893, when Fletcher wrote Finch & Barber (it is evident that this letter is a reply to a letter from Finch & Barber, and their letter is not produced), as follows:

“I had hoped that all these perplexing matters had all passed into oblivion. B. & C. must have made a big thing in their purchase, while I was the loser. The great increase on the lands and the worthless claims, against all justice, leads me to decline paying anything more.”

June 27, 1893, Finch & Barber wrote Fletcher as follows :

“ Your valued favor of June 21st received. * * * You are aware that we settled the most important part of it [the litigation], taking up the certificates and obtaining a quitclaim deed from one Joseph H. Porter and others. There is still, however, a suit pending in the name of Bray &c Choate against W. H. Webster and others, in which the validity of your title is involved, and in consequence of several tax deeds that were taken out on account of the nonpayment of the taxes for 1877 and 1878. I submitted your letters to Messrs. Bray & Choate, but they seem to think that under the arrangement you made with them, and under your warranty, and under the letter you wrote to us, in which you directed us to clear up the title, you ought to co-operate with them in removing this cloud from the title. They say that this land has been tied up for a number of years on account of this litigation, that it has been exposed to fire, that fire has run through it, and that they are willing, with some loss to themselves, to do what is right so far as you are concerned. I have been in hopes that they would be able to make an amicable settlement themselves with the parties who hold these tax deeds, and have urged Mr. Choate to see you personally and explain to you in detail just the condition of this litigation. * * * Mr. Bray, a member of the firm of Bray & Choate, is in poor health, and for that reason I think Mr. Choate would like to get the matter off his hands. I have told him repeatedly that I had no authority to make any arrangements for you, that I was simply your attorney in this matter, and that you felt that your title was good, and that if the litigation was pressed to a final termination we would be successful. The great trouble is that there are so many points involved, and that the litigation is so expensive on account of the different questions that arise, that we have not forced the cases to a trial, as we would have ■done, hoping that Bray & Choate would effect a settlement themselves with these parties. We have protected you by bringing these suits and keeping them alive, in order that no question of the statute of limitations might be involved. It is our advice that you either force this litigation, or that you endeavor to make some arrangement with Mr. Choate whereby you will in the future be relieved from all possible liability in respect to the ■same.”

(It is probable that this is in reply to the letter of June 3d, therein referred, to as June 31st, though Mr. Barber thinks the letter is in reply to! one from Fletcher asking for information about the suit.)

July 30, 1893, Mr. Fletcher wrote Finch & Barber as follows:

“I have written B. & Choate, and when I hear will write you again. In Nov., ’81, you wrote you had closed the Palms and my suits, beating the Oconto claimers; and, under this as a precedent, why not close these ? Palms and I were contractors, but were subcontractors. Did you attempt to set the deeds aside from defects in taxing by terms outside of the lands ? Could not the State be made to father these suits and costs, for unfair taxing lands exempt? As I read, the law says when a deed has been given and recorded nine months, and the lands were subject to taxation, then it was barred. Are these lands subject to taxation? If Taylor gained his case in IT. S. courts, could we not, for same reasons ? This suit was commenced in Choate’s name. Why not press it for a close, and have it for C. and I to arrange after?”

No reply is shown to have been made to this letter. Claimant Choate testified:

“I don’t think I have any other correspondence from Mr. Fletcher on the question in controversy in this claim, other than the letters I have presented. I think there was a letter previous to that that I handed to the attorney. It don’t seem to be found. I might have received a letter from Mr. Fletcher from November 5, 1881, to September 9, 1886, upon this question. I think there was one letter came before the date of any of these. I think there has been some since September 9, 1886, but that is all that I could find. ”

Does the testimony warrant claimants’ contention that they were induced to refrain from bringing the action within the period fixed by the statute ? It is to be observed that this testimony is most unsatisfactory. The entire correspondence is not produced. Fletcher’s letter of June 21, 1893, which was shown to claimants (if it was not, as we suspect, the letter of June 2, 1893), is not produced; and it is a very important letter, because it indicated his position respecting the pending litigation. Nor is Fletcher’s letter written to claimants, which presumably indicated his position respecting the pending litigation, referred to in his letter of July 20, 1893, produced. Nor is the letter of Finch & Barber, which drew out Fletcher’s letter of June 2, 1893, produced. We think no inference can be drawn from this testimony which warrants claimants’ contention. They contend that, as Mr. Fletcher promised, to pay the expense of litigation to test the tax titles, he could not, while that litigation was pending, claim the benefit of the statute of limitations. It may be doubted if Mr. Fletcher authorized the suits actually commenced and car. ried on by claimants. Mr. Fletcher’s letter of November 5, 1881, authorized claimants to institute suits to test the tax titles on the lands sold by him to claimants, and on other lands of his. The suits commenced omitted all other lands of his, and included other lands of claimants.

But assuming, without deciding, that the suits commenced were authorized by. Mr. Fletcher, claimants, in settling the suit against Porter in 1886, put an end to the agreement. It should be stated that Mr. Fletcher obtained his title to the land conveyed to claimants by a patent from the State of "Wisconsin in 1871, which not only conveyed the land in question, but alsd other land. At this time an act of the legislature of Wisconsin exempted the land from taxation. It was Mr. Fletcher’s claim that, by virtue of this act, the land was not subject to taxation in 1876 or 1877. The correspondence shows Mr. Fletcher’s wish to “include in the suit all the lands granted him by the act ” (patent); and that the Porter suit, as shown by the letter from Finch & Barber of January 12, 1885, was a test suit, in which Fletcher, as the owner of other lands, had a special interest. Mr. Fletcher, as shown by his letter of September 9, 1886, was opposed to the settlement of the Porter suit. Yet notwithstanding Mr. Fletcher’s interests, and in opposition to his request, claimants settled the Porter suit. This was a breach of the contract by which Mr. Fletcher had agreed to pay the expense of prosecuting these suits. Had a suit been brought at once by the claimants against Mr. Fletcher, he might have been liable because of the covenants in his deed, but he would not have been liable upon the agreement under consideration. The claimants’ failure to prosecute the suits as agreed would have afforded a complete defense. Is it possible that the claimants, having thus broken the contract upon which they rely, can now take advantage of that contract to prevent the running of the statute of limitations ? This question admits of but one answer. They cannot, unless the subsequent conduct of Mr. Fletcher indicates that he proposed, notwithstanding this breach of the agreement, to abide by it. It may be demonstrated from this record that his subsequent conduct is inconsistent with an intent to abide by this agreement, and is consistent only with an intention to disregard it. After this date he refused to make any further payments towards the expense of this litigation. But it is claimed the correspondence in 1893 indicates an intention to abide by the original agreement. This intention is certainly not found in the first letter written in that year, namely, the letter of June 2, 1893, for in that letter he declines paying anything more. It cannot be found in his letter of June 21st (a letter not produced, and which may be identical with that of June 2d). We can infer the contents of that letter from the following statement in Finch & Barber’s letter of June 27th:

“ I submitted your letter to Messrs. Bray & Choate, but they seem to think that under the arrangement you made with them, and under your warranty, and under the letter you wrote to us, in which you directed us to clear up the title, you ought to co-operate with them in removing this cloud from the title. They say that this land has been tied up fob a number of years on account of this litigation, that it has been exposed to fire, that fire has run through it, and that they are willing, with some loss to themselves, to do what is right so far as you are concerned.”

Two things are obvious: First, Bray & Choate insist upon more than Mr; Fletcher offered in his letter of June 21st; and, second, even they do not insist upon his carrying out the original agreement, but are willing to stand part of the loss themselves. The missing letter of June 21st (if it is missing) certainly did not indicate an intent to carry out the original agreement.

Great reliance is also placed upon Mr. Fletcher’s letter of July 20th, which concludes as follows: “This suit was commenced in Choate’s name. Why not press it for a close, and have it for Choate and I to arrange after?” Does this mean that, when the suit is ended, Fletcher will settle with Bray & Choate according to their legal rights, or that he will pay the expense of the pending litigation ? Clearly not. The language is a mere inquiry. The letter abounds in inquiries, to all of which, including the one under consideration, an answer is desired. Even if this language amounted to a proposition, it cannot be taken as granting more than claimants had demanded; viz., an •agreement that Fletcher should bear a part of the loss. But whether this was an inquiry or a proposition, it was never accepted or acted upon; for the suit then pending, —the Webster suit, — instead of being pressed to a close, was settled without any consultation with Mr. Fletcher.

'We conclude, therefore, that nothing transpired, after the breach of the contract by the claimants in 1886, from which an inference can be drawn that Mr. Fletcher chose to abide by such contract, and that the claim asserted in this suit is, therefore, barred by the statute of limitations.

The judgment of the court below is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    KYES v. VALLEY TELEPHONE CO.
    1. Personal Injuries — Contributory Negligence — Telephone Companies.
    While a telephone company was removing a pole from the street, it fell upon the foreman of a street-paving work, who was 35 feet from where the pole stood. Held, in an action against the telephone company for the injury, that the fact that the foreman knew that the telephone wires were being cut and removed was not sufficient notice that the pole would fall.
    2. Same — Question for Jury.
    Where there was conflicting testimony as to whether plaintiff’s intestate was warned as to the danger, the question of contributory negligence was properly left to the jury.
    3. Same — Survival Aot — Damages.
    An administrator, in an action to recover for personal injuries resulting in the death of his intestate, is entitled to recover,, under the “Survival Act” (3 Comp. Laws, § 10117), for what the deceased might have earned during the time he probably would have lived had he not been injured.
    Error to Saginaw; Snow, J.
    Submitted December 5, 1902.
    (Docket No. 117.)
    Decided February 17, 1903.
    Case by Nora Isabella Kyes, administratrix of the estate of Roderick Kyes, deceased, against the Valley Telephone Company, for alleged negligent injuries to her intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    The deceased, Roderick Kyes, was a general foreman on the work of paving Saginaw street, in the city of Flint. The defendant had been notified to remove its telephone poles from the street, and was engaged at that work. The wires had been removed. The guy wire was cut from the pole, which fell, and struck and injured the decedent. He was at the time engaged in filling a sewer trench. The pole fell upon him, and inflicted injuries from which he died the following day. The injury occurred at 9 o’clock in the morning. He remained unconscious until about 1 o’clock, then regained consciousness, and retained it until the following day, about 2 o’clock, when he became unconscious, and remained so until his death. He was 39 years of age, in good health, and intelligent. He received $2.50 per day. He left a wife-and twp children, and a third child was born after his death. The negligence charged is the failure to exercise due care and caution in taking down the telephone pole. Plaintiff recovered a verdict for $5,000.

      Weadock & Purcell, for appellant.

      L. T. Durand {Durand & Carton, of counsel), for appellee.
   Grant, J.

{after stating the facts). The defendant does not contend that there was no evidence o£ negligence on the part of the defendant, but upon the trial insisted and requested the court to instruct the jury that the deceased was guilty of contributory negligence. It is insisted that he continued to work in this dangerous position with full knowledge that the pole was liable to fall. We cannot concur in this view. It is unnecessary to state the testimony in deta'il. He was not warned by the defendant that there was any danger. The fact that he knew that the telephone wires were being cut and removed, and that some of them had fallen near where he was at work, was not sufficient notice to him that the pole would fall. He had a right to act upon the belief that, when the defendant’s employes were ready to take down the pole, they would notify him, if there was any danger, or would adopt safe means to take it down. Two men who were walking along the street testified that they said in the presence of three men, including the deceased, who were working there, that they “wouldn’t work there a minute;” that it was dangerous. One of the workmen positively denied any such conversation. Besides, the deceased was at work in the trench, from 30 to 35 feet distant, and perhaps paying no attention to the conversation. One may be in position to hear, but it does not follow that he does hear or that he ought to hear. That depends upon how his mind and attention are occupied. The testimony on this point was in sharp conflict, and was properly left to the jury. Menard v. Railroad Co., 150 Mass. 387 (23 N. E. 214); Horn v. Railroad Co., 4 C. C. A. 346, 54 Fed. 301.

This action is brought under what is known as the “Survival Act” (section 10117, 3 Comp. Laws), which reads as follows:

“In addition to the actions which survive by the common law, .the followiug shall also survive, that is to say: Actions of replevin and trover, actions-of-assault and battery, false imprisonment, for goods taken' and carried away, for negligent injury to persons, for damage done to real and personal estate, and actions to recover real estate where persons have been induced to part with the same through fraudulent representations and deceit.”

The court instructed the jury that:

“The plaintiff is entitled to recover the same damages that the deceased would have been entitled to recover had he brought the action in his lifetime. That is to say, you may award such damages as, in your judgment, would be a fair compensation for the loss sustained by the deceased by reason of the injuries he received. You are to consider his age, his habits of industry, his ability to labor, his capacity to earn money, and the wages he was in the habit of earning when injured, and the length of time he would probably have lived had he not been injured, the loss he sustained by reason of being deprived by such injuries of the ability to labor and earn money during the time he probably would have lived had he not been injured, — using your best judgment, under all the facts and circumstances in the case, in arriving at what would be a just compensation for such loss.”

In Sweetland v. Railway Co., 117 Mich. 329 (75 N. W. 1066, 43 L. R. A. 568), it was decided that the statutes do not give two rights of action. The statutes were again before the court in Dolson v. Railway Co., 128 Mich. 444 (87 N. W. 629),’and we again so decided, and held that, where death is not instantaneous, the administrator recovers under the survival act, and that, where the death is instantaneous, the recovery, if any, must be under the death act (sections 10427, 10428, 3 Comp. Laws). Defendant now insists that plaintiff’s measure of damages, in addition' to compensation for pain, suffering, and medical attendance, is what the deceased might have earned between the time of his injury and his death. We said in the Dolson Case that the administrator could recover “the full measure of damages for the benefit of the next of kin.” When an action survives, the representatives of the deceased are entitled to recover the same measure of damages that he could have recovered if he had lived to bring his suit to a successful issue. Muldowney v. Railway Co., 36 Iowa, 462; Maher v. Traction Co., 181 Pa. St. 391 (37 Atl. 571); 8 Am. & Eng. Enc. Law (2d Ed.), 908, par. 11. The instruction was correct.

We find no prejudicial error in the rulings of the court upon the testimony.

The judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    M. C. BULLOCK MANUFACTURING CO. v. SUNDAY LAKE IRON MINING CO.

    1. Repeal op Statutes — Corporations—Liens.
    Section 5472, 2 Comp. Laws, is not repealed by section 44 oí Act No. 113, Pub. Acts 1877.
    2. Same — Title op Act.
    The title to an act (Act No. 113, Pub. Acts 1877), limiting it to the revision of the laws providing for the incorporation of certain companies, does not authorize the repeal of a section of an act (2 Comp. Laws, § 5472) authorizing corporations of other States to engage in business in this State.
    3. Same — Construction op Statute.
    A clause in an act relating exclusively to domestic corporations, purporting to repeal, “so far as they relate to” such corporations, certain specified acts, among them one referring solely to foreign corporations, cannot be said to effect a repeal of the last-mentioned act.
    4. Liens — Purchase op Property — Merger.
    Where one of the holders of two concurrent liens purchases the property subject to the liens, his own lien is not merged in the title thus purchased.
    5. Same — Accounting.
    Wher.e a judgment creditor, who is also the holder of a lien on the debtor’s property, causes a portion of the property, upon which there is a concurrent lien, to be sold on execution, and applies the proceeds upon the judgment, upon an accounting between the lienholders the proceeds of such sale should be deducted from bistro rata share under the lien,

      Appeal from Gogebic; Haire, J.
    Submitted December 3, 1902.
    (Docket No. 138.)
    Decided February 17, 1903.
    Bill by the M. C. Bullock Manufacturing Company against the Sunday Lake Iron Mining Company, James Corrigan, Stevenson Burke, and Price McKinney to determine the priority of certain liens. From a decree for defendants, complainant appeals.
    Reversed.

      Ball & Ball, for complainant.

      G. JE. Miller (A. L. JElewelling, of counsel), for defendants.

       Rehearing denied May 29, 1903.

   Montgomery, J.

In 1893 the Sunday Lake & Gogebic Company, a corporation organized and existing under the laws of the State of Wisconsin, became indebted to complainant in the sum of $9,784.36 for the purchase price of a hoisting plant and its appurtenances furnished to the company by complainant. This hoisting plant was erected on land in the county of Gogebic of which the mining company was a lessee. At the same time the company was indebted for labor to sundry parties in an amount aggregating some $26,419.67, which was represented by drafts indorsed to and which were apparently the property of Price McKinney. Numerous levies had been made upon the property of the corporation. On the 3d day of August, 1893, the complainant filed a bill in the circuit court of Gogebic county, in chancery, to have a lien declared in its favor, and for the enforcement of such lien. The corporation and attaching creditors were made parties. Decree was entered on the 8th of March, 1894, declaring a lien in favor of complainant in the sum of $10,278.86, besides costs of $285.30. This lien, by the decree, attached to the hoisting plant and to the title and interest of the mining company in the land of which it was lessee. After the decree was entered, there was intervention by injunction to prevent the execution of the same by the defendant Price McKinney, and it was agreed that no steps should be taken to enforce the same without notice to McKinney's attorney, and no steps were in fact taken for a considerable period.

On the 15th of August, 1893, suit had been commenced against the mining company by Corrigan, Ives, and Burke, and on the 4th of November a judgment was rendered in their favor in a sum for more than $190,000. On the 15th of February, 1894, a sale of the land and personal property belonging to the mining company was made, and Price McKinney became the purchaser. This sale was made in different parcels: First, $8,000 was paid for the personal property, consisting of two stockpiles of ore and other personal property. The ore piles were sold to Price McKinney, subject to the lien of Price McKinney for royalty and labor claims, and the other personal property was sold subject to the lien of complainant, and’ a lien claimed by Price McKinney for labor. The proceeds of this sale, the $8,000, were paid to Price McKinney in part, as assignee of judgments secured against the company. On the same day that the sale was had, an action was brought by Price McKinney to recover on the labor claims held by him, which proceeded to judgment on the 25th of May, 1894, when a recovery for the amount of the labor claims was had, and it was adjudged that McKinney had a lien upon all the real and personal property of the defendant in the Upper Peninsula for said sum.

The present bill is filed setting forth these facts, and, in addition, alleging that the leasehold interest of which Price McKinney became the purchaser became the property of Corrigan, McKinney, and Burke, through the agency of the Sunday Lake Iron Mining Company, of which they held substantially all the stock, and that they thereafter caused the Sunday Lake Iron Mining Company to relinquish its lease, thereby depriving the complainant of all the property upon which it could enforce its lien, with the exception of the hoisting plant; that the hoisting plant is still in possession of the Sunday Lake Iron Mining Company, the new corporation created by the defendants. The circuit judge decreed that the complainant had a lien under the statute providing for a mechanic’s lien, that the defendant Price McKinney acquired by his judgment a lien under section 10755 of the Compiled Laws of 1897, and that this lien had priority over that of complainant, and decreed that, before complainant could proceed to-en force its lien, it should pay or tender to defendant the amount of this prior lien. Complainant appeals.

The contention of complainant is that it is entitled to a lien under section 5472 of the Compiled Laws, which provides that “Every person who shall'perform any labor or furnish any material for such corporation * * * shall have a first lien for the amount due thereon, * * * which lien shall take precedence of all debts, judgments or decrees, liens or mortgages against such corporation, except liens accruing to this State for taxes, fines, or penalties,” and that this lien is concurrent with the lien of defendant Price McKinney, acquired under section 10755, 3 Comp. Laws, which lien, it is conceded, is substantially of the same character. The circuit judge held, in accordance with defendants’ contention, that section 5472 of the Compiled Laws had, as it affects the corporation in question, been repealed, and this -presents the first question for our consideration.

The statute which it is claimed repeals section 5472 is Act No. 113 of the Public Acts of 1877. This act is entitled:

‘ ‘ An act to revise the laws providing for the incorporation of companies for mining, smelting, and manufacturing iron, copper, silver, mineral coal, and other ores or minerals, and to fix the duties and liabilities of such corporations.”

The act proceeds to provide for the incorporation of domestic corporations, and section 44 is the repealing section. This section begins as follows: “The following entitled acts, so far as they relate to corporations authorized by this act, are hereby repealed.” This is followed by an enumeration of a large number of acts, including specifically an act to authorize corporations of other States to engage in the mining and smelting of ores or minerals in this State, of which section 5472 is a part. We think it cannot be said that the act of 1877 repeals section 5472. In the first place, the repeal of that section is not within the title of that act. The title limits the purpose of the act to the revision of the laws providing for the incorporation of companies, and does not relate to the authority given by statute to corporations of other States to engage in mining in this State. More than this, the language of the repeal is limited to the acts enumerated so far as they relate to corporations authorized by the repealing act. Foreign corporations were not authorized by the repealing act, and we think it must be held that the intent of the legislature is too obscure to justify an inference of a direct repeal. It follows from this that the liens of complainant and defendant Price McKinney were concurrent or simultaneous liens.

It is next contended by complainant that the effect of the purchase of this property by Price McKinney, subject to the liens of himself and complainant, was to merge the McKinney lien in the title thus purchased. It is conceded by complainant that the equity rule would, if there had been an intervening equity in favor of defendant and between complainant and the title acquired, prevent a merger. We think the rule should be the same where there is a remedy concurrent with, complainant’s, and where it is evidently for the benefit of the defendant that no merger be presumed. See 2 Pom. Eq. Jur. § 798.

What, then, are the rights of the parties ? It is manifest that the decree below, as it proceeded upon the theory that the defendant’s lien was a prior one, cannot be sustained. The proper decree should be based upon the theory that these liens were concurrent, and we think it will be necessary to remand the case for the purpose of ascertaining more definitely the rights of the parties. A sale of the property covered by these liens will be ordered, and the amount realized should be applied upon the respective liens represented by the judgment of Price McKinney and the decree of complainant. But as it appears that, out of the proceeds of the sale of the personal property, Price McKinney, as the alleged assignee of judgments recovered against the company, .received $3,952.75, which he applied upon such judgments, and which sum should have been applied upon his prior lien for labor claims, this amount should be deducted from the pro rata share coming to him upon the accounting. Upon such accounting it should also be ascertained and determined whether anything of value passed to Price McKinney’s assignees upon the surrender of the leasehold interest. Should it be ascertained that they did receive any sum upon such surrender, then, as the two liens of complainant and McKinney should first have been satisfied out of the proceeds of such surrender, the amount so received will be charged against the defendant in the accounting. The complainant will recover costs of both courts.

The other Justices concurred.


text:
    BARTLE v. HOUGHTON COUNTY STREET-RAILWAY CO.
    1. New Trial — Weight of Evidence.
    The decision of the trial court in denying a motion for a new trial, based on the ground that the verdict was against the weight of the evidence, will not be reversed, where the only question was whether a street car was in motion at the time plaintiff attempted to alight, and her testimony that it was not in motion was corroborated by other evidence, although the conductor and six passengers testified that it was in rapid motion.
    3. Street Railways — Negligence—Evidence.
    Testimony by plaintiff that, while she was holding to the rail of a street car with her left hand, with her foot out to step on the ground, she heard the bell ring, became insensible, and, on regaining consciousness, found her left arm pulled out of its socket, warrants the jury in finding that the car started as she was alighting.
    Error to Houghton; Streeter, J.
    Submitted January 7, 1903.
    (Docket No. 9.)
    Decided February 17, 1903.
    Case by Mary Bartle against the Houghton County Street-Railway Company for personal injuries. There was a judgment for plaintiff, and, a motion for a new trial having been denied, defendant brings error.
    Affirmed.

      Gray, Haire & Bice, for appellant.

      J. F. Hambitzer, for appellee.
   Carpenter, J.

The jury in the trial court, by their verdict, found that plaintiff was injured while a passenger on defendant’s street car, because said car was negligently started as she was alighting therefrom. After the verdict, defendant moved for a new trial, on the ground that the verdict was not supported by the evidence, and was against the clear weight and preponderance of the evidence. The court below denied this motion, and the only questions raised by this appeal relate to the correctness of that decision.

It is conceded that plaintiff, while a passenger on defendant’s street car, was injured in attempting to alight from said car. The only question disputed by the testimony is whether or not the car was in motion when this attempt to alight was made. Plaintiff testified that the car was not in motion; that she followed three ladies who got off the car.

“When the last lady left the first step, I got right there, so I could go down, so as not to step on her skirts, and when they left the bottom step I got onto the bottom step. I was standing on my left foot. I put this foot out, for to step off onto the ground, and I heard the bell ring. I was holding on to the rail with my left hand. * * * I put my foot out over, and I was injured. Of course, I was insensible after I heard the bell ring. That is all I remember. * * * My left arm was pulled out of its socket.”

Mrs. Lydia Reynolds, who was a passenger on the car, testified:

“I heard the bell ring very quickly after Mrs. Bartle went out, and I wondered if those ladies had time to get off. * * * I did not leave the car when I heard there was a woman injured. The car had just stopped when I saw Mrs. Bartle come down the aisle, and I saw those three ladies coming down the aisle, and Mrs. Bartle behind.”

Defendant introduced the testimony of the' conductor of the car and six passengers, who testified that the car was in rapid motion at the time plaintiff attempted to alight. One of these witnesses, however, was accustomed to ride on passes given by defendant; and the plaintiff’s son testified that he asked the conductor, the next day after his mother’s injury, “how he came to start the car before mother got off, and he said he thought she was off.” Plaintiff’s husband, too, gave testimony tending to contradict the testimony of defendant’s witnesses that the car was not stopped at the place where plaintiff was injured. Under these circumstances, we cannot say that the trial judge was not justified in deciding that the verdict was not against the clear weight and preponderance of the evidence.

Defendant also insists that the evidence did not warrant the submission of the case to the jury, on the ground that plaintiff’s testimony does not warrant the inference that she was injured by reason of the car starting as she was alighting therefrom. It is to be noted that, though the defendant filed its original brief in this court on the 1st of August, 1902, and its reply brief on the 29th of August, this claim is first made in a supplemental brief filed on the 7th of November. Defendant explains its neglect to make this point earlier by saying, ‘ The feature of the law now to be suggested did not occur to us before. ” It is unnecessary to dispose of this contention by saying that it will not be considered because not made earlier. We think that plaintiff’s testimony, heretofore quoted, that, while she was holding to the rail with her left hand, with her foot out to step on the ground, she heard the bell ring, became insensible, and, when she regained consciousness, found her left arm pulled out of its socket, clearly warranted the jury in inferring that the car, the rail of which was in her left hand, started as she was alighting. This is not like the case of Benedick v. Potts, 88 Md. 52 (40 Atl. 1067, 41 L. R. A. 478), cited in defendant’s brief, where it was held that the jury could not be permitted to infer negligence from the mere fact of the injury. It is a case, however, in which negligence may be inferred from the' injury and from the accompanying circumstances. La Fernier v. Soo Fiver Lighter & Wrecking Co., 129 Mich. 596 (89 N. W. 353).

The case of Paynter v. Traction Co., 67 N. J. Law, 619 (52 Atl. 367), is confidently relied upon by defendant in support of the proposition under discussion. There the plaintiff testified that she was attempting to alight from a •car after it stopped, and while she was in the act of alighting she was thrown to the ground. The witnesses introduced by her, who were passengers, and in a position to make accurate observation, had no recollection of the car starting again until after plaintiff’s injury; and the court, upon the principle that “the mere happening of the accident is not sufficient to place legal responsibility for its effects upon the defendant,” decided that the jury could not, from this evidence, infer that the injury was caused bj the starting of the car. That case is clearly distinguishable from the case at bar. There it was more probable that some other cause than the starting of the car had occasioned plaintiff’s injury. Here it is difficult to see how any other cause than the starting of the car could have occasioned plaintiff’s injury in the manner and under the circumstances stated by her.

The judgment of the court below is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    CORNELISSEN v. ORT.

    1. Evidence — Admissions—Affidavits.
    The affidavit of a party to a suit, and that of his solicitor, made at his request, and filed in the cause, may be used as an admission against the party in another suit.
    3, Attorney and Client — Negligence—Evidence.
    Plaintiff brought an action against three attorneys for negligence in not perfecting an appeal in a chancery suit. On a motion to extend the time for taking the appeal, he filed an affidavit by himself, as well as one by his solicitor, showing that he relied upon the solicitor to perfect the appeal, and not upon the two who were employed as counsel. Held, that a verdict of not guilty in favor of the two who were employed as counsel was justified by the evidence.
    8. Same — Damages.
    In an action against an attorney for negligence in not perfecting a.n appeal in a chancery suit, evidence of the amount involved in the suit and the costs paid by reason of the decree does not overcome the presumption of the validity of the decree, and, without further proof being offered, is inadmissible.
    4 Same — Burden of Proof.
    Whether, in an action against an attorney for negligence, after negligence has been shown, it is incumbent upon him to show that the client has not been injured by reason of the negligen ce, — queer e.

    Error to Kent; Wolcott, J.
    Submitted January 8,1903.
    (Docket No. 16.)
    Decided February 17, 1903.
    Case by Felix Cornelissen and Pbilomena Cornelissen against Felix J. Ort, and also Reuben Hatch and Hugh E. Wilson, copartners as Hatch & Wilson, for damages for failure to perfect an appeal. From a judgment for plaintiffs against defendant Ort only, plaintiffs bring error.
    Affirmed.

      McCormick & La Cron, for appellants.

      Fred M. Raymond (Charles M. Wilson, of counsel), for appellees Hatch & Wilson.
   Moore, J.

This is an action against attorneys for negligence in allowing the time in which an appeal could be taken from a court of record to the Supreme Court to expire, so that the case tried in the court below could not be reviewed. The case was tried by a jury, who returned a verdict in favor of defendants Hatch & Wilson, and one against the defendant Ort for $85. A motion was made for a new trial, which motion was overruled. The plaintiffs have brought the case here by writ of error. Defendant Ort has not presented a brief in the case.

It was the claim of plaintiffs that defendants were all employed generally to remove the case to the Supreme Court, and that all were negligent in not doing so. It was the claim of defendants Hatch & Wilson that the solicitor of record was defendant Ort; that Hatch & Wilson were employed as counsel simply, and Ort was to look after getting the proper extension of time in which to take an appeal, and the negligence of which complaint is made was the negligence of Ort. Upon that question the trial judge instructed the jury as follows:

‘ ‘ I instruct you, as a rule of law in that regard, that if the plaintiff employed these three attorneys generally to take the case to the Supreme Court, and it was understood between them that they were all charged with the responsibility and duty of doing whatever was necessary in that regard, then each of them would be liable for any neglect of duty to the plaintiff’s damage.
‘ ‘ If, on the other hand, the plaintiff relied on Mr. Ort as his solicitor having charge of the case, relied on Hatch & Wilson as counsel only, having charge of a certain portion of the work in the case, but it was understood that Mr. Ort was intrusted with procuring such extensions of time as were necessary, and Hatch & Wilson used reasonable care and diligence in the portion of the work intrusted to them, without any negligence on their part, then they would not be liable in this action, but the defendant Ort would be liable.
“If, on the other hand, it was the understanding of the plaintiff that he had engaged the services of Hatch & Wilson, and that was so understood by them, charging them with the duty and responsibility of taking whatever steps were necessary to save his rights of appeal, and to perfect his appeal and get it in the Supreme Court, and they failed to do it, they would be liable. If that was the understanding between the plaintiff and these parties, and Hatch & Wilson were to be held responsible for doing this work, it would not be an excuse for them that they intrusted it to Mr. Ort, and that he failed to do it, unless, as I say, it was the understanding in the beginning, on the part of the plaintiff, that Mr. Ort was the principal attorney having charge of the case, and that Hatch & Wilson were counsel only.- These facts you must determine from the evidence.
“ If you find, as I have said, the duty and responsibility with a fair understanding between the plaintiff and these counsel that they were each and all charged with the responsibility of taking the necessary steps, and that there was a failure in that regard, — negligence on their part,— for which the plaintiff was not responsible, resulting in the loss of the right to take his case to the Supreme Court, then they would all be liable.”

It is claimed the admitted facts in the case conclusively show the liability of Hatch & Wilson, that their employment was general, and not special, and that the verdict of acquittal as to them is wholly unwarranted.

The record shows that in July, 1896, the plaintiffs filed a bill of complaint in the chancery side of the court, Mr. Ort appearing as solicitor for complainants. It was not until 1898 that Hatch & Wilson were employed to assist Mr. Ort. It is their claim they were employed as counsel. The case was heard in July, 1898. The circuit judge rendered a decree against complainants. After the time had expired to remove the case to the Supreme Court, the complainants employed Burlingame & Belden, attorneys, arid they moved the court for an extension of time in which to perfect the appeal. This motion was based upon the affidavits of Cornelissen and Ort. - The motion was overruled. Upon the trial of this case those affidavits were received as evidence. Complaint is made of their admission, because it is said Cornelissen, because of his unfamiliarity with the English language, did not understand what they contained. It is also said that, though they might be used as impeaching testimony, they cannot be used as affirmative evidence of the facts stated. These affidavits were prepared by Mr. Belden, a reputable attorney, in the presence of Mr. Cornelissen and Mr. Ort, and from facts which they stated to him preliminary to the drawing of the affidavits, and both of the affidavits were read to Ort and Cornelissen. Mr. Cornelissen swore to the one, and Mr. Ort to the other; Mr. Cornelissen knowing for what purpose they were to be used. In the affidavit made by Mr. Cornelissen he swore, among other things, as follows:

‘ ‘ Deponent further says that the bill of complaint herein was filed by E. J. Ort, Esq., as solicitor for complainants, and that, at the request of the said Ort, deponent procured a satisfactory appeal bond, which was duly filed in this cause ; * * * that he was informed from time to time by said Ort that satisfactory progress was being made in the case, and, finally, that the case had been removed to the Supreme Court at Lansing; that he did not know until Sunday, the 29th of October, 1899, that said appeal had not been perfected. * * * Deponent further says that he was greatly surprised to thus learn for the first time of the condition of said case, because of having relied upon the said Ort to perfect said appeal and take such other steps as might be necessary.”

The affidavit of Mr. Ort contains the following:

“E. J. Ort, of said county, being duly sworn, deposes and says that he is an attorney at law and solicitor in chancery, and that he filed the bill of complaint in said cause as solicitor for complainants, and that afterwards said complainants, at his request, retained Messrs. Hatch & Wilson as counsel, and that they performed the greater part of the work in preparing the cause for hearing; and deponent further says that he has read the affidavit of Felix Cornelissen, hereto attached, and that the same is true; and deponent further says that he was directed by his counsel, Hatch & Wilson, to extend the time for making and settling the case for review in the Supreme Court, and that he agreed so to do, and that he is informed that Messrs. Hatch & Wilson proceeded to and did prepare the greater part of the testimony taken in said cause for review by the Supreme Court, believing that said time had been extended for such work to be done. And deponent further says that through unfamiliarity of practice, and for other reasons, he neglected to have the time extended as aforesaid, and, when he discovered what the effect of said neglect was upon the complainants, he kept postponing the time of informing them of the consequences; that they are in no respect to blame for his failure to perfect said appeal, and that they ought not to be permitted to suffer by reason thereof.
“F. J. Ort.”

' It will be observed that Mr. Cornelissen swore he relied upon Ort to perfect the appeal. Ort swore he had read the affidavit of Cornelissen, and that it was true. There is not a suggestion in either affidavit that Cornelissen relied upon Hatch & Wilson to perfect the appeal. It must not be forgotten that one of these affidavits was made by a party to this record, and both of them were caused to be filed by him in a judicial proceeding. They were not only competent as impeaching evidence, but they were competent as admissions made by him. See Reiser v. Portere, 106 Mich. 102 (63. N. W. 1041); Liesemer v. Burg, 106 Mich. 124 (63 N. W. 999). We not only think there was evidence upon which to base the verdict; of the jury, but we do not see how the verdict could well be different.

Error is assigned in relation to the rulings on the admission of testimony.' We do not think it is necessary to discuss the assignments further than to say we do not think them well taken.

A more difficult question is one relating to the measure of damages. The tender of testimony in addition to what was received upon that branch of the case, and the ruling upon it, was as follows:

Plaintiffs’ Counsel: I would like the record to show that we offer to prove on the measure of damages the value of the property involved in that litigation (Cornelis sen v. Vanderveen), being the property mentioned in tbe declaration; and also the items of costs and disbursements incurred by the complainant in that case; the value of the property offered being its value at the time of the decree.
The Court: The court has intended to admit evidence tending to show costs and disbursements in and about the preparation of that case to take it to the Supreme Court, but up to this time he has not admitted any of the costs and disbursements of the original case in this court, nor the value of the property in litigation.”

No offer was made to follow this by other testimony. It is the claim of plaintiffs that, when negligence has been shown on the part of a solicitor, it is then incumbent upon the solicitor to show the client has not been injured as the result of the negligence. It is the claim of the defendants that, while there are cases in support of the above rule, they are contrary to the great weight of authority. They claim a negligence case against an attorney is not different from one against any other defendant. The true rule is said by them to be that the burden is upon plaintiffs not only to show negligence, but that plaintiffs have suffered damage by reason thereof. The authorities are not in harmony upon this question, but we do not deem it necessary to decide between them. It was made to appear that a trial was had in the court below upon the merits, and a decree rendered against the plaintiffs. Prima facie this decree was right. Turnbull v. Richardson, 69 Mich. 400 (37 N. W. 499). The presumption of its validity would not have been overcome by showing the amount involved in the case, or the amount of costs paid by reason of that decree. With the proof admitted, the jury would not have been authorized to disregard the decree of the court below, and assume it .was wrong, and would be overruled by the appellate court.

Judgment is affirmed.

The other Justices concurred.


text:
    CORNELL v. WHITNEY.
    Deeds — Consideration — Support — Breach of Condition — Trusts.
    Complainant conveyed his homestead to defendant in consideration that he should be furnished “ a comfortable house to live in, good board and lodging, clothing, and all necessaries of life.” After living with defendant for a year and a half, he left without cause, and defendant published a notice forbidding any one to trust or harbor him on his account. On a bill by complainant to set aside the deed, it was held that a decree should be entered compelling defendant to pay for complainant’s maintenance since the publication of the notice and until complainant should choose to return, declaring the conveyance a trust to secure the performance of defendant’s obligations, and, upon failure to perform such obligations, the property should revert to complainant.
    Appeal from Wexford; Chittenden, J.
    Submitted January 7, 1903.
    (Docket No. 14.)
    Decided February 17, 1903.
    Bill by John Cornell against Frank Whitney and Mary E. Whitney to set aside a deed. From a decree for complainant, defendants appeal.
    Modified.

      Farm C. Gilbert, for complainant.

      Patchin & Orotser, for defendants.
   Carpenter, J.

Complainant obtained a decree in the court below setting aside a conveyance of his homestead to the first-named defendant, Frank Whitney, who is the husband of the other defendant, Mary E. Whitney. In consideration of this conveyance and the transfer of complainant’s personal property, defendant Frank Whitney agreed in writing to furnish complainant “ a comfortable house to live in, good board and lodging, clothing, and all necessaries of life; in case of sickness, with proper medical aid and attendance; and at death give his remains a respectful burial.” The decree was rendered on the ground that the defendants had violated this agreement. Defendants claim that the testimony did not establish such a violation of the agreement as to warrant the decree, and this claim presents the only question this court is called upon to consider.

The conveyance in question was made on the 5th day of September, 1899, when complainant was more than 80 years old, but in full possession of his faculties. At this time defendants were living in Traverse City. They immediately removed to the property in question, and complainant resided there with them, as an inmate of their family, until May, 1901. During this period the evidence clearly proves that defendants faithfully performed every obligation of the contract above quoted, except this: They did not furnish complainant with clothing. It clearly appears, however, that complainant provided himself with clothing from means of his own, under an arrangement by which this outlay should be reimbursed from the proceeds of a sale of a part of the personal property transferred by him to the first-named defendant.

Complainant left his home with defendants because of a difficulty which deserves special mention. Early in May, 1901, a daughter of defendants eloped with an insurance agent. Shortly after this occurrence a sister-in-law and a niece of complainant called at defendants’ house, and in a conversation with the niece complainant said, referring to the daughter who had eloped

“ They have always brought the girl up in laziness and idleness, and she didn’t amount to much anyway. The first time I am up to your house, I am going to tell you something.”

Thereupon defendant Mrs. Whitney came from the next room, and said:

“If you have anything to say, say it to me. Don’t go to the neighbors and say it or tell it.”

Complainant testifies that Mrs. Whitney also uttered a vile slander concerning one of his daughters, but this testimony we do not credit, as it is contradicted not only by Mrs. Whitney, but also by complainant’s niece. The following morning complainant left defendants’ house, and took up his abode with one of his children. Shortly thereafter the first-named defendant published in the Sherman Pioneer, a newspaper in circulation in the community where the parties resided, this notice:

To Whom It May Concern: That John Cornell has left his bed and board without any just cause or provocation, and I forbid any one trusting him or harboring him on my account, for I will not pay any bills after this date.
“Frank Whitney.”

It also appears that defendants have since that time furnished complainant with no clothing or other necessaries, and have made no effort whatever to induce complainant to return to their home. It should be noted, too, that this finding of facts is not materially different from that of the trial j udge.

We agree with the trial judge that—

“Defendants’ duty, undoubtedly, was to go to him [complainant], and try to induce him to come back home; to endeavor to reason him out of the notions he had got into his head, erroneously, perhaps. Instead of doing that, they do the very thing that would antagonize him and keep him away. They place a notice in the paper, wherein they say that they will not hereafter pay any of his bills, nor will they pay anything to any person who harbors him or trusts him. This, to a man of any spirit or mettle, would be the very thing that would drive him away and keep him away. This contract does not require that he shall live at that home. There is no special provision in the contract to that effect, although I think that that would be presumed in any case, — that he was to live there. But this does not prevent them or him from buying his own clothes, or their furnishing him with money to take care of and pay his little expenses.”

Complainant testified that this notice was published and came to his attention some days before the trouble which occurred in May, while he was absent from home on a short visit to his daughter; and, in explanation of his contention that he left because Mrs. Whitney slandered his daughter, he testified that he was willing to continue his relations with defendants, notwithstanding said publication. Defendants urge that this testimony proves that this publication was not a serious grievance. There would be force in this -contention if we credited the testimony, but we do not credit it. As already indicated, we find— and in making this finding we give full credit to defendants’ testimony — that said publication did not occur until after the separation in May. We cannot credit complainant’s explanation for taking a certain step, after we have found that he did not take it. Defendant Frank Whitney insists that he published this notice because he had reason to fear that complainant’s relatives would seek to hold him responsible for complainant’s board, and because both his physician and the township supervisor advised it. These circumstances mitigate, but do not excuse, his wrongful conduct. No advice could justify the repudiation of defendants’ contractual obligation to provide complainant with clothing and proper spending money, whether he lived with them or elsewhere; nor could it justify the creation of such an obstacle as this publication created to complainant’s return to his old home, unless he returned an object of pity, humiliation, and ridicule.

We agree, too, with the trial judge-that the property in dispute ‘ ‘ ought to be devoted to the purpose of his [complainant’s] care and maintenance hereafter.” We do not think, however, that the evidence in this cáse justifies the decree of the court below. Complainant, for a year and a half, enjoyed the comforts of a home with defendants, and would have continued to enjoy those comforts, had he not chosen, without just cause, to leave his home. Notwithstanding what has occurred, it is not at all unlikely that complainant may choose to return to defendants, and be entirely satisfied with his home with them. Defendants, by removing to the property in dispute, and carrying out this contract for the time specified, have equities which no court should disregard. At the same time we do not think that complainant should be compelled, against his will, to take up his residence in their home.

Under the circumstances' of this case, a decree should be made compelling defendant Frank Whitney to reimburse complainant for the cost of his maintenance since the publication of the notice above quoted, to pay such a sum each week as will secure complainant’s proper maintenance during such time as he shall choose to reside elsewhere than in defendants’ house, and to pay the medical attendance and funeral expenses provided in the contract. The decree should, of course, recognize complainant’s right to return to his home with defendants whenever he chooses to do so, and to receive there the full benefits of his contract, as originally contemplated. The conveyance in .question should be declared a trust to secure the performance of these obligations, and, in case of -their nonperformance, this trust should end, and the property revert to complainant.

As the record does not show what complainant has expended for his past maintenance, or what will be a proper allowance for his future maintenance, the decree will be reversed, and the case remanded to the court below, to take proofs, and to enter a decree in accordance with this opinion. Complainant is entitled to costs of the trial in the circuit court. Defendants will recover costs of this court. These costs shall not be collected from the money owing by them to complainant, or from the property which is the subject of this suit.

The other J ustices concurred.


text:
    HINTZ v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads —Negligent Injuries at Crossing — Statutory Signals — Questions ror Jury.
    The testimony of the plaintiff, under the circumstances of this case, that defendant’s train struck the wagon in which she and her husband were crossing defendant’s tracks in the highway, causing the team to run away, whereby she was injured, and that they stopped, looked, and listened before crossing the tracks, and heard nothing, made a proper case for the jury.
    2. Appeal — New Trial — Trial by Jury.
    The Supreme Court has no power to enter a verdict contrary to the finding of a jury, but it may, under 3 Comp. Laws, § 10504, reverse the decision of the circuit judge denying a motion for a new trial; such action is not contrary to the constitutional provision securing the right to a trial by a jury, as it gives the party a right to a new trial by another jury.
    3. Same — Presumptions—Decision or Trial Court.
    In determining whether a trial court should have granted a new trial, the Supreme Court will bring to the support of his decision all reasonable presumptions which arise from his superior opportunity to determine the credibility of witnesses.
    4. Same — Preponderance or Evidenoe.
    When it is apparent from the record, notwithstanding the presumptions in favor of the decision of the trial judge, that he erred in refusing to grant a new trial on the ground that the verdict was against the weight of the evidence, his decision will be reversed.
    5. Same — Injuries at Railroad Crossing.
    In an action against a railroad company, plaintiff was the only witness who testified that the runaway of her team was caused by a collision with defendant’s train; the trainmen testified that there was no collision, and several people residing near the crossing testified that her team ran away before reaching the crossing, — one that the train passed the crossing several minutes before the runaway. Held, that a verdict for plaintiff should be set aside as against the weight of the evidence.

      Error .to Saginaw; Snow, J.
    Submitted January 13, 1903.
    (Docket No. 22.)
    Decided February 17, 1903.
    Case by Anna Hintz against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Watts S. Humphrey, for appellant.

      Howland Connor, for appellee.
   Carpenter, J.

Plaintiff obtained a verdict and judgment in the court below for damages resulting from the alleged negligence of defendant. Defendant seeks a reversal of that judgment on three grounds: First, that there was no evidence from which the jury could find that the defendant was negligent; second, that the evidence conclusively established plaintiff’s negligence; third, that the trial judge improperly denied defendant’s motion to set aside the verdict on the ground that the same was against the weight and preponderance of the testimony.

The testimony introduced on the part of the plaintiff tended to prove that while crossing defendant’s track, driving in an easterly direction, on Davenport street, in the city of Saginaw, defendant’s regular passenger train collided with the vehicle in which plaintiff was riding with her husband, and as a result the horses drawing said vehicle ran away, the vehicle capsized, plaintiff’s husband was killed, and she herself badly injured. On the other hand, the testimony of the defendant tended to prove that no collision whatever occurred between its train and the vehicle in which plaintiff was riding; that plaintiff’s injuries were due to being thrown from the vehicle in consequence of the horses’ running away; that the horses commenced running away before they reached defendant’s track; and that they passed over said track after the train with which it is alleged the vehicle collided.

We are all agreed that the testimony introduced on the part of the plaintiff made a proper case for the jury. It may be inferred from her testimony that the employes of defendant in charge of the train in question did not give the statutory signals as said train approached the crossing, and that plaintiff and her husband stopped, looked, and listened before attempting to cross defendant’s track.

The serious question in the case is raised by defendant’s third ground for reversal. Is the verdict so clearly against the weight and preponderance of the testimony that it is our duty to overrule the decision of the trial judge, who said he was “satisfied the verdict is not against the weight of the evidence ?” The right of this court to overrule that decision is challenged by plaintiff’s counsel. It is urged by him that such an “interpretation of this statute [3 Comp. Laws, § 10504] would overthrow a fundamental and established theory of the purpose and scope of the Supreme Court.” It is to be assumed that by this is meant that to set aside the verdict of a jury on the ground that the same is against the weight of the evidence is an invasion of the constitutional provision securing trial by jury. This contention, in our judgment, would be unanswerable, if this court did anything more than to set aside the verdict. If, for instance, this court shóuld undertake to enter a verdict contrary to the finding of the jury, or if it should refuse to submit the case to the decision of another jury, it would assume to decide facts which the Constitution of the State says shall be decided by a jury. This court, however, does not, under the statute in question, undertake to do anything more than the judge presiding in the trial court, has done for generations. Before this statute was enacted, this court, on repeated occasions, decided that it had no power to review such decisions of the trial judge. Hake v. Buell, 50 Mich. 89 (14 N. W. 710); Nelson v. Mining Co., 65 Mich. 288 (32 N. W. 438); Detroit Tug & Wrecking Co. v. Wayne Circuit Judge, 75 Mich. 360, 371 (42 N. W. 968), and cases there cited; Moore v. Daiber, 92 Mich. 402 (52 N. W. 742); Brassel v. Railway Co., 101 Mich., at page 13 (59 N. W. 426). The statute gives that power, and this court would disregard an obvious duty if it did not, in a proper case, exercise it. In exercising it, we are bound to recognize the principles which have always governed trial courts in determining whether or not verdicts should be set aside. We are also bound to bring to the support of the decision of the trial judge all reasonable presumptions which arise from his superior opportunity to determine the credibility of witnesses. When, however, in accordance with these principles, it is apparent from the record, notwithstanding every reasonable presumption in support of his decision, that the trial judge erred in refusing to set aside the verdict on the ground that it is against the weight of the testimony, the duty of this court to overrule that decision is manifest. Whipple v. Railroad Co., 130 Mich. 460 (90 N. W. 287); Baldwin v. Railway Co., 128 Mich. 417 (87 N. W. 380); Cole v. Railway, ante, 122 (92 N. W. 935).

With this understanding of our power and duty, let us consider the testimony in this case. The only witness whose testimony supports plaintiff’s claim of the manner in which her injury occurred is the plaintiff herself. It is claimed that a Mr. Henry Hunt, whose testimony was introduced by the plaintiff, gave testimony tending to support her theory; but a careful examination of the record compels us'to reach another conclusion. Mr. Hunt testifies that, just before the train crossed Davenport street, he saw a vehicle standing close by the track, and that, after the train had gone, he did not see this vehicle. This testimony seems to us colorless. On the other hand, Mr. and Mrs. Samuel Pigeon, who lived on Davenport street, west of the Michigan Central crossing, testified that they saw the team drawing the vehicle in which plaintiff was riding running away before they reached defendant’s tracks, and that some of the articles in the wagon were thrown therefrom west of said crossing. Mr. Duff Pigeon, a brother of Samuel Pigeon, and who resided with him, testified that, as he came out of the house, he noticed something across the road, which proved to be a basket of quilts and bags thrown from the wagon of plaintiff’s husband; that he was then told of the injury to plaintiff and her husband, and immediately went on east, and found them where they were thrown from the vehicle. John A. Eooker, a neighbor of the Pigeons, testified that, after hearing of the injury to plaintiff and her husband, he went where they were lying, and helped to put them into the wagon which carried them to the hospital; that he afterwards returned along Davenport street, and picked up the articles thrown from the wagon during the runaway ; that he found some of these articles west of the Michigan Central crossing. Matilda Patterson, with whom the last witness boarded, and who also lived on Davenport street, west of the Michigan Central crossing, testified that the articles thrown from plaintiff’s wagon were stored in her house, and were found west of the Michigan Central crossing. Sadie Beuthin testified that she was visiting her mother, who lived on Davenport street, a short distance (it could not have exceeded 300 feet) east of the Michigan Central crossing; that, after the train which it is claimed collided with the vehicle in which plaintiff was riding crossed Davenport street, she got ready and started to visit a friend who lived hear the Johnson-street bridge, which is located about 1,200 feet east of said Michigan Central crossing; that, when she got near the bridge, a team of horses running away passed her; that she visited her friend, and then went to the place where plaintiff and her husband lay in the road; and that she reached that place about 30 minutes after the train had crossed Davenport street. The conductor, fireman, and engineer on defendant’s train .which it is alleged collided with plaintiff’s vehicle all testified that no such collision occurred. The testimony of plaintiff proves that articles like those found west of the Michigan Central crossing were in the vehicle, and that they were lost on this occasion.

While there are inaccuracies and discrepancies in the testimony of some of defendant’s witnesses which justly subject their testimony to criticism, it cannot be doubted that a runaway -commencing west of the Michigan Central track occurred about the time of plaintiff’s injury. Indeed, so convincing is this testimony that plaintiff’s counsel concedes that such a runaway occurred, but he insists that that was a different runaway from the one in which plaintiff received her injury. He asks us to believe, and it is to be presumed that he asked the jury to believe, and that they did believe, that the runaway commencing west of the Michigan Central track, evidenced by these articles scattered along the street, which led up to the place where plaintiff and her husband were lying, was not the runaway which led to plaintiff’s injury. He asks too much. To believe this, without any testimony tending to prove it, is too great a tax on our credulity, or, as we believe, on the credulity of any fair-minded person. Plaintiff’s counsel also insists that there is nothing in the testimony of Sadie Beuthin inconsistent with his client’s theory; “that she had no. clock in the house, and that all her references to time were the purest kind of guesswork.” We agree that her estimate of time is entitled to very little credit; but if, after hearing the train pass, she walked the distance she states before the runaway team overtook her, the inference that the team crossed the railroad track after the train passed is almost irresistible. That a jury should credit the testimony of an interested party, contradicted by this multitude of witnesses, and by the facts which it is conceded their testimony proves, naturally shocks the ordinary, fair-minded person. It is not to be presumed that another jury will reach the same conclusion.

Judgment reversed, and a new trial ordered.

Hooker, C. J., Moore and Grant, JJ., concurred. Montgomery, J., did not sit.


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    AUDITOR GENERAL v. HUGHITT.
    1. Taxation — Alteration op Roll — Fraud.
    Where a supervisor fraudulently changed and reduced the valuation of certain-lands on his assessment roll after the roll had been reviewed and completed, the entire tax roll was void.

      2. Same — Construction op Statute.
    1 Comp. Laws, § 3899, providing that, if any fraud affects the amount of one tax only, the tax shall be sustained so far as the same is legal and just, does not apply to the fraudulent reduction of an assessment, since such reduction affects every taxpayer.
    Appeal from Iron; Stone, J.
    Submitted January 14, 1903.
    (Docket No. 106.)
    Decided February 17, 1903.
    Petition by Eoscoe D. Dix, auditor general, for the sale of lands delinquent for the taxes of 1898: On objections filed by Amos J. Hughitt and others. From a decree declaring the taxes void in part only, respondents appeal.
    Eeversed.
    The respondents are the owners of lands situated in the township of Iron Eiver, Iron county. After the assessment roll had been made, reviewed, and completed, the supervisor (one Thomas H. Flannagan) corruptly and fraudulently changed and altered the valuations of certain lands in sections 17 and 21 in said township by reducing the valuation fixed by the board of review in the sum of $34,000. The assessment for the taxes for said year was made on such fraudulent valuation. The land whose value was reduced belonged to the Metropolitan Lumber Company. .The total value of the real and personal property, after such fraudulent changes, was $281,025. The court below held the tax void to the amount of one-tenth thereof.

      Charles H. Watson, Prosecuting Attorney, for petitioner.

      •Isaac W. Byers (Cook & Pelham, of counsel), for respondents.
   Grant, J.

(after stating the facts). The respondents insist that the entire tax roll is void because of the fraud, while the petitioner insists that the damage done to the respondents by the fraud can be separated, and the proper tax ascertained. The petitioner, in his brief, states his position as follows:

“The result was that the assessment roll was infected by an irregularity in matter of substance, which prejudiced the property rights of the defendants in the proportion which $34,000 bears to $281,025, the total footing of the roll.”

In support of this claim he cites Merrill v. Auditor General, 24 Mich. 170; White v. Township of Millbrook, 60 Mich. 532 (27 N. W. 674); Solomon v. Township of Oscoda, 77 Mich. 365 (43 N. W. 990); Auditor General v. Jenkinson, 90 Mich. 523 (51 N. W. 643). It is claimed, also, that the rule is recognized in Auditor General v. Prescott, 94 Mich. 190 (53 N. W. 1058); Auditor General v. Sparrow, 116 Mich. 574 (74 N. W. 881); and Auditor General v. Iron Co., 123 Mich. 521 (82 N. W. 260).

Prior to the passage of Act No. 206, Pub. Acts 1893, the provisions of the tax laws covering cases like the present read as follows:

“If any such illegality, omission, or fraud affects the amount of the tax only, the tax shall be sustained so far as the same is just and legal.”

The clause in the present act (section 76) reads as follows:

“If any such illegality, omission, or fraud affects the amount of one tax only, the tax shall be sustained so far as the same is legal and just.”

The same section authorizes such tax to be set aside when fraudulently assessed. Th'e most of the cases above cited arose under the former acts.

Every taxpayer in the township is prejudiced, except the one whose valuation was reduced. The tax roll is a forgery. It is not the roll made by the supervisor, reviewed by the board of review, and placed in the hands of the treasurer for collection. As we said in Weston v. Monroe, 84 Mich. 341 (47 N. W. 446): “Its legal identity is destroyed. It is not the roll authorized by law. ” A forged assessment roll possesses no more validity than does a forged note. Such tax rolls have been. held void even where the changes were made in good faith, and where the parties had not been injured. Ferton v. Feller, 33 Mich. 199; Weston v. Monroe, supra. All the taxpayers of the township, except the Metropolitan Lumber Company, are prejudiced by this action, and must remain prejudiced, notwithstanding those who contest may get a reduction of one-tenth of their taxes._ If the rejected portion thereof is to be reassessed the following year, the taxpayers will again be called upon to pay their proportions thereof. There is no provision of the law by which the injustice can be remedied except by holding the entire tax void. It cannot be remedied the following year by adding the amount thus fraudulently stricken from the roll to the assessment roll then to be made. All that the assessor could do the following, year would be to assess this same property at its proper cash value. If the entire one-tenth of the present tax were set aside, there would be a deficiency to that amount in the revenue of that year. It must be raised the following year, and must be spread over the entire property of the township. If this property were assessed at its cash value the following year, the deficit of the year before would be spread over the entire township, and he in whose interest the fraud is perpetrated would go scot-free from paying a large part of what would be his proper proportion, while the other taxpayers of the township would pay much more than their proper share. The decision of the court below, if sustained, would enable such taxpayer to profit by the fraud, and to escape paying his proper share of the public burden. Only by setting the entire tax aside can the fraud be remedied, and all taxpayers placed upon an equality. We think it was the intention of the legislature to make these fraudulent tax rolls absolutely void. The entire tax must be held vitiated by the fraud, within the principle established in Weston v. Monroe; Ferton v. Feller; Auditor General v. Iron Co.; Auditor General v. Sparrow, supra.

Decree reversed, and decree entered in this court for the respondents.

The other Justices concurred.


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    VARTY v. MESSMORE.
    1. Trial — Evidence—Contents of Papers.
    A case will not be reversed for permitting a witness to state the contents of certain papers, where it appears that the court did not intend to rule that the contents -were admissible, and immediately struck out that part of the testimony on the suggestion of counsel.
    2. New Trial — Misconduct of Counsel.
    It is only in a very clear case of misstatement of facts by counsel to the jury, which cannot be corrected, that the court will set aside the verdict.
    Error to Sanilac; Beach, J.
    Submitted January 16, 1903.
    (Docket No. 59.)
    Decided February 17, 1903.

      Assumpsit by Henry Varty against Charles L. Mess-more for money had and received. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      F. E. Burning and W. H. Burgess, for appellant.

      F. S. Viets (E. C. Babcock, of counsel), for appellee.
   Montgomery, J.

The defendant is a banker, and the plaintiff for several years was a depositor of defendant. The parties also had other dealings. The plaintiff brought an action to recover a balance claimed to be due him. Before entering upon the trial, the bills of particulars were examined, and the parties agreed upon all the items except three: One item of $200, — a note given by Samuel Callaghan to defendant, which the plaintiff claims to have purchased, and left with the defendant for collection; an item of a credit to plaintiff of $100 paid defendant March 26, 1891, by one Charles Snay; and an item of $196.65 charged to plaintiff by defendant for the payment of a real-estate mortgage given by John Callaghan to defendant, and claimed to have been discharged by him on plaintiff’s order. The case was tried by a jury, and verdict found in favor of the plaintiff for $377.77. The defendant brings error,' and we consider such points as are made in the defendant’s brief.

The first error assigned is that the court erred in permitting the witness Yakes to testify and give the contents of certain attachment papers. An examination of the record convinces us that at no time did the court intend to rule that the contents of these papers were admissible, and immediately struck out the evidence of their contents, at the suggestion of the defendant. There was no error in this connection.

It is next assigned as error that the court refused the defendant’s motion for a new trial. This motion is based upon two grounds: First, that the testimony did not warrant the verdict found; and, second, misconduct of the jury. We have examined the testimony with considerable care, and we are not able to say that the verdict was so manifestly against the weight of the evidence as to have justified the court in setting aside the verdict. It is true, defendant’s counsel furnish us with various computations claimed to show that upon no theory should the verdict against the defendant have been quite as large as it is; but these figures are based upon assumptions as to interest charges which are not quite apparent to us, and we think the variance is not sufficient to justify us in disturbing the verdict.

Complaint was also made in the motion for a new trial of the alleged misconduct'of counsel in arguing the case to the jury. We think there was no such misconduct as justifies us in setting aside the verdict. It was claimed the testimony was misstated; but there is nothing to indicate that there was any intentional misstatement of facts by the counsel. It is only in a very clear case of a misstatement, which is not open to correction, that the court would interfere fo vacate a verdict.

Some errors are assigned upon the refusal of the court to give the defendant’s requests; but a careful examination of the charge shows that every right of the defendant was fully protected by the instructions given, and that in all essentials the instructions were unusually clear, and directed to the case with which the jury had to deal. If the defendant has suffered any injustice in this case, it results from this: That, in a case in which there was sharp conflict in the testimony, the jury accepted the testimony on behalf of the plaintiff, rather than that on behalf of the defendant. The circuit judge, who saw the witnesses, was of the opinion that the plaintiff’s verdict should stand. We do not think the case so clear as to justify us in overruling this decision, and the judgment will be affirmed, with costs.

The other Justices concurred.


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    ROULO v. MINOT.
    1. Elevators — Injury to Passenger — Negligence—Contributory Negligence — Questions eor Jury.
    Plaintiff entered an elevator, and asked to be let off at the office of a tenant which was on the twelfth floor, but plaintiff did not know on which floor the office was located. All the passengers had left when the ninth floor was reached, where the elevator was stopped, and the doors opened, to let on a passenger, whom plaintiff did not see. Plaintiff, thinking the elevator had stopped to let him.off, started to alight, and was caught and injured by the elevator starting at the same time. The conductor began closing the doors as the elevator started. Held, that whether the conductor was guilty of negligence, and plaintiff of contributory negligence, were questions for the jury.
    2. Same — Open Doors.
    Under ordinary circumstances, an open door and a stationary elevator constitute an invitation to all persons to enter or leave at will.
    Error to Wayne; Hosmer, J.
    Submitted January 7, 1903.
    (Docket No. 12.)
    Decided March 5, 1903.
    Case by Gilbert C. Roulo against Laurence Minot and others for personal injuries. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Edwin F. Conely and Orla B. Taylor, for appellants.

      John T. Nichols and Alexander H. Sibley, for appellee.
   Montgomery, J.

Plaintiff sues to recover damages for injuries received while attempting to leave one of the elevators in defendants’ building. The case was submitted to a jury under instructions which are not complained of, and a verdict given for the plaintiff. The only question on this appeal is whether there is any evidence to support this finding. In considering this question, the testimony of the plaintiff must be taken as true, and shows the facts as follows: Plaintiff, who had never been in the elevator before, entered the elevator, and asked to be let off at the office of the Detroit, Romeo, Rochester & Lake Orion Railway. He did not know upon what floor the office was situated, and the elevator conductor did not inform him. As a matter of fact, the office was on the twelfth floor. When the elevator started, several persons were in it, but all had left except plaintiff before the ninth floor was reached. The elevator was provided with two doors on the same side of the car, which were operated simultaneously by the conductor, who stood between them, with his back to the car and passengers. Upon reaching the ninth floor, the elevator was stopped, and the doors were opened. There being no other person in the elevator, the plaintiff concluded that was the floor at which he was to get out, and that the elevator had stopped for him, and he started to leave the car. At this time the doors of the elevator ■were open, and the elevator stationary. Just as he was stepping out, the elevator started, and at the same time the conductor began to close the doors. Plaintiff was caught by the door of the entrance through which he was attempting to pass, and, before the elevator could be stopped, he was crushed against the overhead framework, and his back broken.

The manner in which the elevator was operated is, briefly, this: The conductor stands between the two doors, facing the ball. With his right hand he operates a wheel which causes the elevator to move up or down, depending on the way it is turned. With his left hand he opens and closes the two doors. He does both of these things at about one and the same time. It appears by the testimony of the conductor that the stop at the ninth floor was made in response to a signal, and for the purpose of taking on a passenger. The plaintiff testified, however, that he did not see this passenger enter the car, nor see him at all until after he was caught in the door as above described, while the conductor testifies that there was nothing to prevent the plaintiff’s seeing the other passenger (Mr. Ronald). The plaintiff’s statement is by no means incredible, as Ronald testifies he did not see plaintiff until he (Ronald) got into the elevator; and as plaintiff was facing one door, and Ronald entered at the other, his •statement is reasonable.

The sole question is whether, under this state of facts, the case should have been withdrawn from the jury. The circuit judge instructed the jury as to the defendants’ duty as follows:

“ It is, of course, incumbent upon the person in charge of the elevator to use that ordinary degree of care which a person under like circumstances would use in closing the door and in starting the elevator; and I think you may properly find, if you see fit, from the case, that it was his duty to close the door, in this instance, before starting the car. But in view of what was said by the plaintiff, between the plaintiff and the conductor, at his entrance in the elevator, I am not prepared to say that you should find this; and you may, perhaps, gentlemen of the jury, as legitimately find that, under the circumstances of the case, the conductor had no reason to believe that he was to leave the car, and therefore acquit the conductor of negligence. I think what the duty was, and what was required of both parties at that point, presents a question for you,' rather than a question for the court.”

And, as to the care required of plaintiff under the circumstances, the court said to the jury:

“If you believe from the evidence that the plaintiff in this case, on or about the 5th of January, 1901, was rightfully in the elevator in the possession of and operated by the defendants in their building, for the purpose of being carried thereby from one floor of the building to another, and if you further believe from the evidence that while the plaintiff was so in such elevator, and in the exercise of reasonable and ordinary care on his part, the said elevator was stopped at one of the floors, and while said elevator was thus stationary, and the door thereof was open, the plaintiff, without negligence on his part, and with all convenient speed, attempted to get out, and before he could do so the servant of the defendants in charge of the elevator negligently and carelessly closed the door upon him, and suddenly started the elevator, by reason whereof plaintiff was injured, then the plaintiff would be entitled to a verdict at your hands. But I say to you with reference to that, gentlemen of the jury, that, considering the colloquy between the plaintiff and the conductor, you may consider the question of attempting to leave that car without warning to the conductor. I do not say that his attempt, as I said before, would in itself be evidence from which I could say to you that an attempt to leave was negligence; but I think it is a question for you, gentlemen of the jury, and for you to determine, where the negligence, if you find negligence, occurred at that point.”

We think these instructions fairly presented the issues for the jury. Under ordinary circumstances, an open door and a stationary elevator constitute an invitation to all persons desiring to do so to enter or leave at will. An attempt to start the elevator without taking the precaution of closing the door might very well, in the absence of any fact which amounted to an assurance that no one expected to either enter or alight, be held negligence. And whether this duty of attention to the plaintiff was excused by the colloquy between the plaintiff and the conductor was, at the most, a question for the jury. And so whether, in view of this talk had between the plaintiff and the conductor on entering the car, the plaintiff was guilty of negligence in attempting to leave without first, in words, acquainting the conductor with his purpose, or whether he had the right to assume that the car would not be started until the door was closed, was likewise a question for the jury.

The judgment will be affirmed, with costs.

Hooker, C. J., Moore and Grant, JJ., concurred. Carpenter, J., did not sit.