text:
    FLINT LAND CO. v. FOCHTMAN.
    ■Quieting Title^Cloud — Bill—Sufficiency.
    A bill to quiet title by the holder of a tax deed against the original owner and his mortgagee examined on demurrer and held to show a cloud in respect to the claims of the mortgage.
    Appeal from Emmet; Shepherd, J.
    Submitted April 4, 1905.
    (Docket No. 1.)
    Decided June 6, 1905.
    Bill by the Flint Land Company, Limited, against Ger-hard Fochtman and Frank Fochtman to quiet title to land. From an order sustaining a demurrer to the bill, complainant appeals.
    Reversed.

      McFarlan & Wilson, for complainant.

      Halstead & Halstead, for defendants.
   McAlvay, J.

The bill of complaint in this case is filed for the purpose of quieting title, and to remove cloud and perfect the record title of complainant. The complainant claims title under a State tax deed for the taxes for the year 1896, paying taxes also for 1897, 1898, and 1899 to secure deed. Defendants are the owners of an undischarged mortgage given by the owner of the original title. Notice under the tax law was duly given to the ■owner of the oi'iginal title, and to these defendants as mortgagees, and none of them within the statutory six months tendered or paid the amount requisite to be entitled to a reconveyance of the land, and complainant •claims that all the proceedings to perfect title have been xegular, and it is now the owner in fee simple of the lands in question, which are unoccupied wild lands. Afterwards -the owner of the original title disclaimed title to the land, hut these defendants refuse to disclaim or quitclaim their interest therein, and complainant in its bill of complaint alleges that defendants maintain that they have title or interest thereto. No suit or proceeding has been commenced by defendants to try title to said land. Defendants demurred to the bill of complaint. The reasons set forth in the demurrer amount to a charge that the bill does not. show any cloud upon complainant’s title, or any cause for equitable relief.

The allegations of the complainant in its bill are:

“ That George L. H. Mann has disclaimed all right, title, and interest in and to said land, but Gerhard Fochtman and Frank Fochtman do not acknowledge the fee-simple title of your orator to said land; and your orator states and charges that .it has sought to perfect its record title to said land by obtaining a disclaimer from said defendants [naming them], or a quitclaim deed, and that said above-named persons have neglected and refused to sign any disclaimer or quitclaim deed of said land, and maintain that they have title thereto, which claim is a cloud upon the title of your orator.”

There is also a further allegation in the said bill of complaint—

“That said mortgage * * * is a cloud upon the title of your orator, and tends to depreciate the value thereof, and your orator is unable to sell said land for an adequate price owing to said mortgage.”

The contention of defendants is that under the provisions of the present tax law the purchaser from the State receives a fee-simple title, and that defendants’ mortgage-is not an apparent cloud upon the title of complainant as. the purchaser from the State; that the bill of complaint does not set forth the nature of the hostile claim; that a bill will not lie to remove a mere verbal claim of title. It. is not claimed by complainant that the defendants’ claim is other than under the mortgage in question as set up in the bill of complaint, and as to this it is admitted by the-defendants that the allegations in that regard are sufficiently specific. From an order sustaining the demurrer' and dismissing the bill of complaint, complainant appeals to this court.

The demurrer under the practice admits all the allegations of the bill of complaint. The validity of the tax deed, and the absolute title in fee in the complainant to the premises, is therefore not in dispute. The claim of the defendants is that from the face of the bill it appears that there is no cloud upon the title of complainant, and no case is stated to warrant a court of equity in entertaining'jurisdiction. The only contention of defendants in the case is that the absolute title in complainant by virtue of the tax deed and proceedings under it so operate to wipe out all outstanding titles, both legal and equitable, that there is no cloud whatever left upon such title. In cases of bills filed to quiet title and remove cloud therefrom, the court, in determining whether a bill of complaint states a sufficient case for relief, must go further than an examination as to whether complainant sets up a good title. To connect a defendant with the case, and to determine whether a case is made out by the bill against him, an examination must be made as to allegations of claims made by him under his title or claimed title. Whether a complainant’s title is derived from the general government or the State is of no consequence if the bill of complaint shows his title good. In this case complainant alleges that defendants do not acknowledge its fee-simple title; that a disclaimer or quitclaim has been requested from them and refused, and they maintain that they have title thereto, which is a cloud upon complainant’s title; that this cloud tends to 'depreciate the value of the premises, and complainant, by reason thereof, is unable to sell said land for an adequate price. Defendants’ demurrer admits the truth of these allegations. We think the allegations are sufficient, and therefore that the bill, if true, states a sufficient case to entitle complainant to relief. By disclaimer either before or after the bill of complaint was filed, defendants could have relieved themselves from all costs and annoyance. They have seen fit to take a course admitting the charge that they are making some kind of a claim under their mortgage to these premises, and that they refuse to disclaim.

The order sustaining the demurrer is reversed, with costs of both courts. The case will be remanded to the circuit court, and defendants be given the usual time under the rules in which to plead, answer, or disclaim.

Moore, C. J., and Grant, Montgomery, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    SWING v. WESTON LUMBER CO.
    Foreign Corporations — Noncohpliance With State Law — Right to do Business — Insurance.
    A foreign mutual insurance company, which has not been authorized to do business in this State as provided by statute - (§ 5157, 2 Comp. Laws), cannot maintain a suit to collect assessments due on a policy issued by one of its agents in another State on request of an insurance broker of this State who was unable to place the whole line in his own authorized companies. Section 10467, 3 Comp. Laws.
    Error to Schoolcraft; Steere, J.
    Submitted April 5, 1905.
    (Docket No. 14.)
    Decided June 6, 1905.
    Assumpsit by James B. Swing, trustee for the creditors and policy holders of the Union Mutual Fire-Insurance Company of Cincinnati, Ohio (dissolved), against the Weston Lumber Company for an assessment. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Virgil I. Hixson and Patterson A. Reece, for appellant.

      O. W. Dunton, for appellee.
   McAlvay, J.

The plaintiff, trustee of the Union Mutual Fire-Insurance Company of Cincinnati (dissolved), brought an action against the defendant, a Michigan corporation, for the amount of an assessment, in accordance with a decree of the Supreme Court of Ohio in winding up said insolvent insurance company. The said Union Mutual Fire-Insurance Company was duly organized under the laws of the State of Ohio, and was never licensed to do business in Michigan. The defendant is a Michigan corporation, and the insurance was upon defendant’s lumber and other property at Manistique, in this State, under a policy dated August 30, 1889, and a renewal thereof, and was carried until December 19, 1890, for the sum of $5,000. The amount of the assessment sued for was the sum of $537.48. The substantial defense set up under the plea was that the said insurance company was a foreign corporation not authorized to transact business in the State of Michigan, and that the insurance policies were issued in direct violation of the laws of Michigan — said insurance company not having complied with the statutes of this State relative to foreign insurance companies doing business therein —and that said contracts of insurance were at variance with and contrary to the settled policy of this State.

The case was tried before the court without a jury, and, written findings of fact and conclusions of law having been requested, the same were made and filed as follows:

“ Facts.
“ Plaintiff sues as trustee for the creditors and policy holders of the Union Mutual Fire-Insurance Company of Cincinnati, Ohio, seeking to collect from defendant, which was a former policy holder in said company, its share of assessment made by the order of the supreme court of Ohio to liquidate said insurance company’s liabilities.
“The Weston Lumber Company, defendant herein, is, and was during all the time covered by the transactions under consideration, a Michigan corporation, located at Manistique, where it has a sawmill, and was engaged in logging in that vicinity, and manufacturing lumber at its mill.
“ In the latter part of the summer of 1889 defendant desired to increase the amount of insurance carried upon lumber accumulated in its yards, and made application to a local agency conducted by a banking institution of the town for a considerable addition to the line of its insurance already held in that agency. Not being able to write in one risk in its own companies the amount of additional insurance desired, the local agency, through W. C. Marsh, an employe of the bank, who attended to its insurance business, placed twelve different policies with outside agencies. Part of this line of insurance was sent to George R. Lewis & Co., an agency of Minneapolis, Minnesota, through'which concern the $5,000 insurance involved in this case was placed with the said Union Mutual Fire-Insurance Company of Cincinnati, Ohio.
“ This insurance was written August 30, 1889, and was carried until December 19, 1890, when the policy was returned to the plaintiff, and canceled by him, shortly after he took charge as trustee.
“ Aside from this transaction, there is no evidence that the said insurance company in any manner solicited or issued insurance within this State, or did any act in connection with such business which is in violation of the statutes of Michigan.
“ It appears undisputed in this case that the Union Mutual Fire-Insurance Company of Cincinnati, Ohio, was a mutual fire-insurance company, incorporated under the laws of Ohio, May 27, 1887, and was doing business as such during the years 1889 and 1890. It also appears that the laws of the State of Ohio in force during the years 1888, 1889, and 1890 pertaining to mutual fire-insurance companies were as set out in plaintiff’s declaration in this case.
“It is shown by the undisputed testimony in this case that the supreme court of the State of Ohio made a decree of assessment against the policy holders of the fire-insurance company, of which this plaintiff is the trustee for the creditors, and that such decree is still in force and effect, defining the liability and percentages of assessments for the respective periods of time during which unpaid liabilities of said insurance company were incurred.
“ According to such decree, defendant’s proportion of said assessment, in order to pay its just proportion of the unpaid losses and expenses incurred by said insurance company during the time defendant held its policy, amounts to $537.48.
“ It is stipulated by counsel for the respective parties in this case, with the same force and effect, and validity as if the same had been established on the trial of the case by competent evidence, that the said Union Mutual Fire-Insurance Company of Cincinnati, Ohio, is a corporation organized under the laws of the State of Ohio, and that said insurance company has never complied with any of the requirements of the several statutes of the State of Michigan obligated upon insurance companies of other States seeking to transact business in the State of Michigan.
‘ ‘ The files, records, and exhibits in this case are hereby made a part of these findings.
“Conclusions of Law.
“ There is no evidence in this case to establish the claim that this action is barred by the statute of limitations.
“ The decree of assessment made by the supreme court of Ohio would be binding upon the defendant, and conclusive in this case, notwithstanding the fact that the defendant was not served with summons in this action,5 provided recovery be not barred for other reasons.
“Whether or not the witness Marsh was legally the agent of defendant in securing the insurance in question would be matter for serious consideration if the case turned upon that point. He was an employé of the local insurance agency which had secured a line of insurance from the defendant. The defendant thereafter, on its part, merely applied to this agency in its home town for an increase of insurance, which the agency accepted, and proceeded to place as best it could; turning that which it could not care for itself over to other agencies.
“The selection of this particular insurance company in which to place a portion of the risk was evidently made in the usual course of business, either by the local agent at Manistique, or George E. Lewis & Co., of Minneapolis, Minnesota; and the details of the application, obtaining the policy, agreeing on the policy, etc., were worked out in the usual course of business by the insurance agency, although accepted and ratified by the defendant. But so far as the defendant was concerned, its application for insurance was made and this business was done with the home office, at Manistique, with which it was in the habit of doing business. The conditions are not to be considered exactly the same as if this defendant had specially selected an outside insurance company in another State as the one with which it particularly desired to do business, and, having done so, had directly applied by correspondence to such company for insurance; but, for the disposition of this case, we may assume that Marsh acted as agent of defendant in securing the insurance, and so come directly to the leading contention presented, involving the validity of this contract under the laws of Michigan. It is admitted that the Union Mutual Fire-Insurance Company of Cincinnati, Ohio, never had complied with any of the requirements of the several statutes of this State obligated upon insurance companies of other States who seek to transact business in Michigan. Section 5157 of the Compiled Laws of 1897 provides:
“ ‘ It shall he unlawful for any person or persons, as agent, solicitor, surveyor, broker, or in any other capacity, to transact or to aid in any manner, directly or indirectly, in transacting or soliciting within this State any insurance business for any person, persons, firm or copartnership, who are nonresidents of this State, or for any fire or inland navigation insurance company or association, not incorporated by the laws of this State, or to act for or in behalf of any person or persons, firm or corporation, as agent, broker or in any other capacity, to procure, or assist to procure, a fire or inland marine policy or policies of insurance on property situated in this State, for any nonresident person, persons, firm or copartnership, or in any company or association without this State, whether incorporated or not, without procuring or receiving from the commissioner of insurance the certificate of authority provided for in section 23 of an act * * *.’
“And section 10467 of the Compiled Laws of 1897 provides that:
“ ‘When, by the laws of this State, any act is forbidden to be done by any corporation, or by any association of individuals, without express authority by law, and such act shall have been done by a foreign corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of, or made or entered into in consideration of such act.' " •
“These provisions of our statute, and others of like nature, have been before our Supreme Court from time to time, and interpreted with no uncertain sound.
“ A full and able discussion of the subject is found in the case of Seamans v. Temple Co., 105 Mich. 400 (28 L. R. A. 430), and other cases there cited. Numerous decisions along the same line are found in other States, in one of which, decided in Pennsylvania, plaintiff himself was a party. Swing v. Munson, 191 Pa. St. 583 (58 L. R. A. 223).
“Plaintiff admits the force of these decisions, but seeks to distinguish the case at bar on the ground that the foreign insurance company he represents did not have any agent, broker, inspector, or other representative in the State of Michigan, nor solicit, directly or indirectly, this insurance or any other insurance within the State, and did not in fact transact any business within the State of Michigan in violation of its statutes.
“ While we recognize some difference in the facts shown in these respective cases from those established in the case at bar, we are unable to recognize any distinction in the principles of law involved, in view of the well-settled policy of our legislature, and decisions dealing with foreign insurance companies. We are not confronted with the question of whether or not this is a valid’ contract under the laws for the State of Ohio. It may be valid in Ohio, and void in Michigan, under our statutes. Regulating the business of insurance, even to the exclusion of foreign insurance companies from taking any risks in the State under any conditions, has been held constitutional. While this may be held to be an Ohio contract, nevertheless we cannot escape from the fact that it was a contract to insure within the State of Michigan property of a citizen of the State, and was taking an insurance risk in this State.
“ In the case of People v. Howard, 50 Mich. 248, it is said:
“‘The clearly expressed intention of that act was to entirely prevent unauthorized companies from taking any risks in this State. This was and has been for some time the settled policy of the State, as expressed by legislation, and for the protection of the citizens of the State, and companies submitting to our laws and paying the State taxes. The statute is intended to be prohibitory in its character. The policy is wise, and, as such, should be enforced.’
‘ ‘ The conclusion of the court is that the contract of insurance under consideration is unlawful and invalid, and there can be no recovery for any assessment upon the policies issued to defendant pursuant to such contract.
“Judgment will be entered accordingly.
“ J. H. Steebe,
Circuit Judge.”

Errors are assigned upon the refusal of the court to find the facts according to certain requests of the plaintiff, and also upon the conclusions of law. The facts as found by the court are supported by the evidence disclosed in the record. It is for this court to determine whether the court erred in his conclusions of law from the facts found. We do not think he did. His conclusions of law are supported by the facts as found by him, and his decision conforms with the frequent utterances of this court as to the settled policy of this State in cases where the statutes in question have been interpreted. In the case of Seamans v. Temple Co., 105 Mich. 400 (28 L. R. A. 430), this court, approving previous decisions, held upon the very question raised and involved in this case, as follows:

“ Counsel for plaintiff contend that the insurance company has not done business in this State, but that the contract is one made in Wisconsin, to be performed there, and that it is therefore valid, and that, being so, the plaintiff may sue and recover upon it in the courts of this State, under the rule of comity between States. This rule applies to corporations as well as to natural persons. 2 How. Stat. § 8135. But the right of a foreign corporation to sue in our courts is limited — First, by statute (section 8136); and, second, by the general rule that the doctrine of State comity will not be applied in behalf of a foreign corporation seeking to recover upon a claim or contract expressly prohibited by law, or one which is clearly at variance with the settled policy of the State. Thompson v. Waters, 25 Mich. 214; Christian Union v. Yount, 101 U. S. 356. It is the policy of this State to limit the business of insurance to such corporations, domestic and foreign, as shall be authorized by the commissioner of insurance to do business after compliance with certain regulations and conditions prescribed by law. * * *
“If it be conceded that the contract was made in Wisconsin, and that the premiums and loss, if any, are payable there, it is as much in contravention of the policy of this State as though it had been made and was to be per ■ formed here. It cannot be supposed that the statutes cited were intended merely to prevent the act of making the contract in this State. The object is to protect the citizens of this State against irresponsible companies, and to prevent insurance by unauthorized companies upon property in this State. American Insurance Co. v. Stoy, 41 Mich. 401; Hartford Fire-Ins. Co. v. Raymond, 70 Mich. 501. The argument of counsel for plaintiff is substantially this:
“ ‘We know that the laws of Michigan are designed to prevent our insuring Michigan property, but we have done so in a way that does not contravene the letter of the Michigan statute. We have made our contract through the mail, and we have committed no violation of the Michigan statute, because we have done nothing upon Michigan soil. We have evaded your law, and obtained a contract which you have sought to prohibit, and now we ask you to enforce it for us under the doctrine of State comity.’
“Under such circumstances, the courts of the State are not open to the offending company, and the rule of State comity cannot be invoked in its behalf.”

The contention in this case is the same as in the case above cited. It is true in that case the court found that within the State the insurance company had solicited the insurance, but in answer to the arguments there advanced the court very properly decided the case upon the broader ground. The reasoning in that case is adopted in the case at bar, and controls it. To hold otherwise would operate to nullify the clear intent of the legislature, to disregard former decisions of this court, and disturb the settled policy of the State.

The judgment of the circuit court is affirmed.

Carpenter, Grant, Montgomery, and Hooker, JJ., concurred.


text:
    BOUCHER v. TREMBLEY.
    1. Taxation — Tax Purchaser — 1Title—Period oe Redemption.
    Title to property conveyed by tax deed by the State to a purchaser of the State bid is not absolute and does not vest until the expiration of the six months in which, under notice, the original owner can redeem. Act No. 229, Pub. Acts 1897.
    2. Same — Conveyance by Original Owner — Merger of Tax Title.
    Where, during the period of redemption, the holder of a tax deed accepts quitclaim deeds from the owners of the original title, his tax lien merges in the record title and he takes the property subject to all the equities existing against the original title.
    3. Ejectment — Claim for Improvements.
    Defendants in ejectment, who have not been in possession for six years nor occupied in good faith under color of title, cannot maintain a claim for improvements under section 10995, 3 Comp. Laws.
    4. Same — Occupancy—Good Faith — Homestead—Tacking.
    Where defendant and her deceased husband in good faith claimed a strip of land adjoining their homestead entry, as a part of it, and placed their homestead buildings and improvements thereon, her possession after his death was not tacked to his but was a single occupancy entitling her to sustain a claim for the buildings and improvements under the statute on being defeated in ejectment.
    5. Same — Judgment—Form.
    That a judgment in ejectment for defendant’s improvements is in form in favor of all the defendants, when in fact only one of them has any claim, is not an error prejudicial to plaintiff.
    Case made from Chippewa; Steere, J.
    Submitted April 7, 1905.
    (Docket No. 40.)
    Decided June 6, 1905.
    Ejectment by Carrie Boucher against Amille Trembley and others. There was judgment for plaintiff with an allowance to defendants for improvements, and on plaintiff’s exceptions a case was made for this court.
    Affirmed.

      W. A. Ooutts, for appellant.

      harming & McMahon, for appellees.
   McAlvay, J.

Plaintiff sued defendants in ejectment to recover possession of a certain fractional piece of land. Plaintiff claims title in fee and the right to possession of the land in dispute by virtue of a certain tax (feed from the State to her grantor, Janie R. ^Macdonnell, dated July 27, 1903, and certain quitclaim deeds from all the heirs of the owner of the original title, made subsequent to the date of the tax deed. Defendants by their plea gave notice of title by adverse possession, and also under the statute claimed compensation for improvements. Defendant Amille Trembley is the widow of Pierre Trembley, deceased. Defendant Romie Trembley is the son of the said deceased, and defendant Lizzie Trembley is the wife of Romie Trembley. These defendants have no record title, and had not been in possession a sufficient length of time to claim ownership, by adverse holding. The case was tried by the court without a jury, who found the facts, making all files and exhibits in the case as part thereof. The conclusions of law upon the findings of fact are as follows:

“The plaintiff has proved title in this case, and is entitled to recover. Her tax title does not cut off defendants’ claim for improvements. Defendants have occupied the tract in question for more than six years, and in good faith increased its value by the improvements mentioned, so are entitled to compensation therefor under the provisions of our statute upon that subject.
“ The clerk will enter a judgment in ejectment that the plaintiff recover the premises described in her declaration, and that defendants be allowed compensation for improvements in the sum of $775.”

A judgment was thereafter entered in accordance with such findings. Plaintiff proposed amendments to such findings of fact and conclusions of law, which were presented to the court and refused. Plaintiff excepted to such refusal, and has assigned error thereon and upon the findings of fact and conclusions of law of the court. The case is before this court upon a case made.

The principal error relied upon is that the court erred in holding that the plaintiff’s tax title did not cut off defendants’ right to claim for improvements under the statute. All deeds under which plaintiff claimed title were exhibits in the case, and made part of the findings of fact. They were, properly executed and acknowledged, and were received in evidence without objection. For the purposes of this case, the validity of the tax deed which plaintiff held is not questioned. The State tax deed was dated July 27,1903, and was for taxes for the years 1886,1887, and 1888, bidin by the State in May, 1902. The deeds from the owners of the original title were all made subsequent to the tax deed. Plaintiff’s contention is that, in taking to herself these conveyances of the parties in interest in this land who were entitled to six months’ notice under the tax law, she was simply doing that which the law provided she might do in order to entitle her to the possession of the land. Defendants contend that by such conveyance to her the tax title thereby merged into the- original title and was wiped out, and that she stood in relation to these defendants the same as the original owners or parties in interest. The determination of this contention will depend entirely upon the construction which may be given to the tax law, relative to the title conveyed by the State to the purchaser under a tax deed, and when the title so acquired becomes absolute in such purchaser.

The provision of the tax law relative to the tax deed, and the title it gives a purchaser, is as follows (1 Comp. Laws, § 3895):

“On presentation of such certificate of sale to the auditor general or his deputy, after the expiration of the time provided by law for the redemption of land sold as aforesaid, the auditor general or his deputy shall execute and deliver to the purchaser, his heirs or assigns, a deed of the land therein described, unless the sale thereof shall have been redeemed or annulled as by law provided, which deed shall be entitled to record in the office of the register of deeds of the proper county, in the same manner and with like effect as other deeds duly witnessed, acknowledged and certified. Such deeds shall convey an absolute title to the land sold, and be conclusive evidence of title, in fee, in the grantee, subject, however, to all taxes assessed and levied on such lands subsequent to the taxes for which the same was bid off.”

And, relative to deeds for State bids (1 Comp. Laws, § 3907):

“ Upon making payment as above such purchaser shall be entitled to and receive a certificate and a deed conveying all the right, title and interest of the State to such tax lands acquired or accrued by virtue of the original sale or sales to the State. All the provisions of law relative to deeds executed by the auditor general on the surrender of certificates of sale made by the several county treasurers shall be applicable in making deeds for such purchases.”

The tax law has a further provision relative to notice to be given before any writ of assistance or other process for the possession of land the title to which has been obtained under and in pursuance of any tax sale: That such notice of six months, by personal or substituted service, must be given to the parties entitled thereto, designating them. The statute gives the form of notice necessary, which, among other things, states that the party has title to the land under tax deed issued therefor, and that such person is entitled to a reconveyance thereof, at any time within six months after service, upon the payment of the amount paid upon such purchase, together with 100 per cent., and all fees and costs, and $5 for each description. If the terms of this notice are complied with, a reconveyance must be made; or before such notice has been given, at anytime after the deed has issued, the proper parties may make such payment, and thereby the tax title becomes void, and the owner of such tax title must quitclaim his interest.

There is one further statutory provision to be considered. 1 Comp. Laws, § 3961, provides that:

“ No purchaser under any tax sale hereafter made, or of any State tax land, or any State bid hereafter sold, shall enter into possession of the land so purchased until six months after he has given notice to the party or parties in interest, as provided for in the. preceding sections, unless he shall have acquired from said parties their title thereto, under conveyance from said party'or parties of his or their interest in said land.”

This court, in Adkin v. Pillen, 136 Mich. 682, had these provisions of the tax law under consideration. The question as to who was the owner of certain real estate was the material question in that case. Plaintiff in that case had been prosecuted by defendant for malicious injury to a dwelling house, had been acquitted, and then brought this suit for malicious prosecution. The facts were that this plaintiff was the husband of the original owner of the property upon which defendant held a tax title under the present tax law. The statutory notice had been given to the owner. A few days before the expiration of the six months, plaintiff went upon the premises and removed the doors and windows from the dwelling house. Defendant made complaint, and plaintiff was arrested, tried, and ac- ' quitted. A judgment in this malicious prosecution case was obtained against defendant, who appealed to this court. The sole question before the court was as to his ownership of the property under the tax title. The court, after quoting 1 Comp. Laws, § 3895, hereinbefore quoted, said:

“Notwithstanding the fact that the State had acquired the absolute ownership of this land, and notwithstanding the language above quoted, the title acquired by defendant was, by Act No. 229 of the Public Acts of 1897, subject to redemption for a period of six months; and during this time defendant was not entitled to possession of the land.”

The court said further:

“ It is equally clear that we are bound to hold that, by Act No. 229 of the Public Acts of 1897, said title acquired under section 72 (Act No. 206, Public Acts 1893 [1 Comp. Laws, § 3895]) did not become absolute — and this is true whether that title had or had not become absolute in the State before sale — until the period for redemption had expired. Until the expiration of this period, during which the original owner has the sole right of possession and the right to redeem from outstanding tax titles, such owner, and not the owner of said tax titles, which may or may not become absolute, is the owner of the property.”

It has therefore been determined by this court that, notwithstanding the language of the statute, the title to the property conveyed by the State is not absolute, and does not vest until the expiration of the time in which, under notice, the original owner may redeem. Under this decision we cannot avoid the conclusion that a conveyance from the original owner, who during this period of redemption is held to be the owner of the property, and who is not, until due notice and the expiration of the time for redemption, divested of his title, of necessity merges the tax title into the original title so obtained. Consequently in this case the plaintiff took the title to the property in dispute subject to the equity of these defendants to claim for improvements, and the court did not err in holding that such right was not cut off by plaintiff’s tax title.

The court found that defendants had no record title, and had not been in possession a sufficient length of time to claim ownership under adverse holding. The statute under which defendants in ejectment may claim for buildings and improvements (3 Comp. Laws, § 10995) reads as follows:

“Whenever in any action of ejectment the plaintiff * * * shall recover * * * the defendant or defendants shall be allowed compensation * * * for buildings and improvements on the premises recovered, erected or made by him or them, by any person through whom he or they claim title, to the extent that such buildings and improvements shall increase the present value of said premises: Provided, The defendant or defendants, or the person through whom he or they claim title, shall have been in the actual, peaceable occupation of the premises recovered, for six years before the commencement of the action; or, Provided, The same shall have been so occupied for a less time than six years under a color of title and in good faith.”

Defendant Romie Trembley had not been in the occupancy of the premises for six years, and was found by the-court not to have occupied under color of title and in good faith. Defendant Lizzie Trembley is his wife, living with him in a little house on these premises. Her rights, therefore, in the premises, are no greater than her husband’s, and neither, under the statute, can claim anything for improvements. Defendant Amille Trembley is the widow of Pierre Trembley, who died April 9, 1901. This suit was commenced in January, 1904. Pierre Trembley made his homestead entry in December, 1889, and received his United States patent November 21, 1890. The court found that in 1889 he, thinking this land was part of his homestead, took possession of it, and built a log house and barn upon it, and made the usual clearing; that his homestead entry joined this land.

‘ ‘ He and his family have lived upon this disputed strip, occupying it as a homestead, until his death in 1901, and the widow with some of her family has been there until the present time. All Pierre Trembley’s buildings and curtilege improvements are, and always have been, on. this strip, and not on his homestead.”

Defendant Amille Trembley occupied, with her husband,, these premises as her homestead, and still continues such occupancy. Had his title ripened, this would have become-part of their homestead. These improvements were made partly during his lifetime, but largely by the building of a good house since his death. Her occupancy has been continuous, and of the same character as her husband’s. It has not been tacked onto his, but has been co-existent with it. To determine that his death deprived her of all rights to make claim for these improvements constituting the homestead would be harsh and inequitable, and the claim is not supported by authority.

The further claim is made that the judgment allowing-improvements to the defendants generally is not supported by the facts found. In form, the judgment allowing improvementsis in favor of all the defendants. This was error, but the error is not one upon which it is necessary or proper to reverse the case. Whitney v. Hyde, 91 Mich. 13. It is not prejudicial to the plaintiff. The payment of the amount allowed would be. a complete protection to her. We find no reversible error in the record. The judgment is affirmed.

Carpenter, Grant, Montgomery, and Hooker. JJ., concurred.


author: Moore, C. J.

text:
    VANDER VELDE v. VILLAGE OF LEROY.
    1. Highways and Streets — Defective Sidewalk — Prior Aooi-dents — Evidence.
    Plaintiff, in an action for injury from a defective sidewalk, may not show that others had previously fallen off the walk at the place where plaintiff was injured; a barrier having been erected after they fell, and having been there when plaintiff was hurt.
    2. Same — Contributory Negligence — Question for Jury.
    Where the testimony of plaintiff, in an action for injuries from a defective sidewalk, shows that he was familiar with the walk and had used it almost daily, and that there was another street which he could have used, the question of his contributory negligence is for the jury.
    3. Damages — Remote and Proximate Consequences.
    Where plaintiff, after being injured by a defective sidewalk, was again injured by the slipping of the crutch he was required to use, he cannot recover therefor as a proximate result of the first injury.
    Error to Osceola; McAlvay, J.
    Submitted April 11, 1905.
    (Docket No. 51.)
    Decided June 6, 1905.

      Case by Leonard P. Vander Velde against the village of- Leroy for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      D. E. McIntyre and C. H. Rose, for appellant.

      Charles A. Withey ( J. E. Richardson, of counsel), for appellee.
   Moore, C. J.

This is an action to recover for an injury alleged to have been sustained by the plaintiff on account of a defective sidewalk. He recovered a judgment of $150. The case is brought here by writ of error.

The first group of assignments of error relates to the admission of testimony that others had fallen off the walk, prior to the injury, at the place where the plaintiff was injured. Counsel say this testimony was admissible under Smith v. Township of Sherwood, 62 Mich. 159; Lombar v. Village of East Tawas, 86 Mich. 20; Retan v. Railway Co., 94 Mich. 154; Moore v. City of Kalamazoo, 109 Mich. 178. We do not think so. The record discloses that, after the witnesses whose testimony was allowed had slipped on the walk, a barrier had been erected, and was there when the plaintiff was hurt. The testimony should not have been allowed.

The next group of errors relates to the claim that a verdict should have' been directed in favor of defendant because it appears that plaintiff was injured because he slipped and fell on the walk, and not because of stepping on the edge of the walk and falling off because of the lack of a proper railing. The testimony upon this point was not so conclusive that the judge could dispose of it as a matter of law. See Bernard v. Pittsburg Coal Co., 137 Mich. 279.

The next group of assignments of error requiring attention grows out of the charge of the court to the jury that the plaintiff was not guilty of contributory negligence. It is said, in .support of the charge, that there is no evidence in the case that plaintiff was in any manner negligent, or that he was not in the exercise of due care; counsel citing, in support of the charge of, the court, Baker v. City of Grand Rapids, 111 Mich. 447, and Vergin v. City of Saginaw, 125 Mich. 502, and Styles v. Village of. Decatur, 131 Mich. 448. These cases hardly support the claim made for them, but, on the contrary, they hold that the question of contributory negligence in each of those cases was one for the jury. In the case at bar the plaintiff’s own testimony shows he was familiar with the walk and had used it almost daily, and also that there was another street over which he could have traveled in going to his home. Under these circumstances, we think it should have been left to the jury to say whether plaintiff was in the exercise of ordinary care at the time of the injury.

A portion of the charge of the judge reads as follows:

“ There is another feature in this case upon which the court feels it his duty to charge /ou. The plaintiff admits the second injury, or another dislocation after the first injury. His crutch slipped on the porch of his house, and his ankle was injured, and either wholly or partially dislocated. The testimony of the physician is undisputed, and he told you that he must be careful of his foot and leg, and must give it rest. This does not necessarily imply that he must stay in bed or in a chair, or stay at home, but does mean that he must be careful and reasonable in his conduct and in use of his injured limb; that he should conduct himself in relation to that member as a reasonable man would under like circumstances. If he did that, and you are satisfied by preponderance of the proof that it was not carelessness on his part to go about with the aid of crutches, and to go from the house to the dray and back again, and that he was reasonably careful in that regard, why, notwithstanding the fact that he received the other hurt, I charge you that it would not prevent him from receiving full compensation for the entire disability and the expense attending him. If, however, you find that the second injury was the result of his own carelessness, or from overzeal or anxiety to be about and attending to his business, and that he disregarded the instructions of his physician to be careful of the injured member and give it proper rest, then he is not entitled to any damage which arose to him on account of his second injury.”

The second injury was clearly outside of the case declared upon. The jury should have been instructed that no damage should be allowed because of it.

Judgment is reversed, and new trial ordered.

Carpenter, Montgomery, Ostrander, and Hooker, JJ., concurred. .


text:
    POTTER v. PERE MARQUETTE RAILROAD CO.

    1. Railroads — Crossing Accident — Negligence—Contributory Negligence — Questions for Jury — Evidence.
    In an action against a railroad company for the negligent killing of a person at «a highway crossing, evidence examined, and held, insufficient to show that deceased did not listen as he approached the crossing.
    2. Same.
    Plaintiff’s intestate having been killed by a backing train while crossing the tracks on a bicycle very slowly, the questions whether the defendant was negligent, or the deceased was guilty of contributory negligence, were questions for the jury.
    Error to Kent; Wolcott, J.
    Submitted May 3, 1905.
    (Docket No. 134.)
    Decided June 6, 1905.
    Case by Stella M. Potter, administratrix of the estate of Henry Potter, deceased, against the Pere Marquette Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Frederick W. Stevens (Charles McPherson, of counsel), for appellant.

      John W. Powers, for appellee.

      Rehearing denied September 21, 1905.

   Moore, C. J.

The following statement is taken from the brief of counsel for defendant:

“ At Grand Rapids, Michigan, Fifth, Sixth, and Seventh streets run east and west; Fifth street being the most southerly, and Seventh street the most northerly, of the three streets. These three streets are crossed at right angles by the tracks of the Grand Rapids & Indiana Railroad Company and of the Pere Marquette Railroad Company. At Sixth-street the center of the Pere Marquette main track is 32 feet east of the center of the Grand Rapids & Indiana main track. Both main tracks are used by the two companies jointly; all north-bound trains going over the east or Pere Marquette track, and all south-bound trains going over the west or Grand Rapids & Indiana track. At the Sixth-street crossing there is one side track east of the main tracks and one side track west of the main tracks. Crossing gates are maintained at the Sixth-street crossing, and are operated by a gateman from a tower situated between the main tracks just north of Sixth street.
“On the morning of July 4, 1903, plaintiff’s intestate was crossing defendant’s track at Sixth street on a bicycle, when he was struck by a freight car which was being pushed across Sixth street by one of defendant’s locomotives, and sustained injuries which resulted in his death a few hours later. It was a bright, clear morning, and the accident occurred about nine o’clock. As he approached defendant’s track one of defendant’s freight trains was moving south across Sixth street on the west main track. The rear end of that train had just crossed Sixth street when he was struck by the car moving north on the east main track. As he approached defendant’s track the crossing gates were up, and they remained up until after the accident. The locomotive and cars by which he was struck were moving at the rate of 15 to 20 miles per hour —a rate of speed greater than that permitted by the ordinances of the city — and the bell on the locomotive was not ringing, as required by the ordinances of the city.
“ As Mr. Potter approached defendant’s track from the east on Sixth street, his view of cars approaching Sixth street on defendant’s track from the south was entirely obstructed by lumber piles and a warehouse until he was 29 feet east of the east rail of the track upon which he was struck. When he was 29 feet east of the east rail of the track upon which he was struck, by looking over a platform 4 feet high and 7£ feet wide, between the warehouse and the box car standing on the side track west of it, he could see the east rail of the main track upon which the car by which he was struck was approaching 120 feet south of the center of Sixth street, and he could see the west end of the box car approaching on that track 147 feet south of the center of Sixth street. While he was traveling along Sixth street from a point 29 feet east of the east rail of the main track to a point 21 feet east of the east rail of the main track, or a space of 8 feet, he could look over a platform between the warehouse and the box car on the side track and see defendant’s main track south of Sixth street, except that portion of the main track of which his view was obstructed by the box car. The box car on the side track stood with its north end even with the north edge of the sidewalk on the south side of Sixth street, and about 26 feet south of the center of Sixth street. From a point 7.3 feet east of the east rail of the main track he could see a box car on the main track 140 feet south of the center of Sixth street. From a point 6.3 feet east of the east rail of the main track he could see a box car on the main track 300 feet south of the center of Sixth street. From a point 5.3 feet east of the east rail of the main track his view of cars approaching on that track from the south was entirely unobstructed. Before Mr. Potter could get a complete view of the main track, he would have to be 2 feet west of the west rail of the side track; considering that the box car extends 2 feet over the rail, or 5.3 feet east of the main track. A man on a bicycle would not get a view of the main track to the south of Sixth street until the front wheel of his bicycle was 2 feet from the main track. * * *
“At the request of the defendant the jury returned with their verdict the following special findings of fact:
“1. Did plaintiff’s intestate, Henry Potter, look to see if there was a train of cars approaching from the south before riding upon the track where he was struck and killed?
“A. No.
“2. Did plaintiff’s intestate listen to learn if there was a train approaching from the south before riding upon the track where he was struck and killed ?
“A. Yes.
“3. Did plaintiff’s intestate rely entirely upon the fact that the safety gates were up, as an assurance that he could cross defendant’s track in safety ?
“A. Yes.
“ 4. Did plaintiff’s intestate either stop to look or listen to learn if there was a train or cars approaching on defendant’s track from the south at any time after he was within seventy-five feet of the place where he was struck ?
“A. Yes.
“5. If plaintiff’s intestate had looked for a train approaching from the south before riding upon defendant’s ' track, could he have seen the approaching cars in time to have avoided the accident ?
“A. No.”

The judgment was in favor of plaintiff. Counsel say:

“ The assignments of error upon which defendant relies relate solely to the right of plaintiff’s intestate to rely entirely upon the fact that the safety gates were up, as an assurance that he could cross defendant’s track in safety. * * *
“The special finding of the jury that plaintiff’s intestate listened to learn if there was a train approaching before riding upon defendant’s track is inconsistent with their other special finding that he relied entirely upon the safety gates as an assurance of safety, and is not supported by a scintilla of evidence.”

They ask the court to render a judgment here in favor of defendant on the special findings.

Counsel argue at great length for the following proposition :

“ The maintenance of gates, gongs, or other devices at street crossings to warn travelers of approaching trains does not excuse travelers from exercising ordinary care for their own safety, and it is negligence, as a matter of law, for a traveler to rely entirely upon open gates, or the absence of any other customary warning, as an assurance that he can cross in safety. It is the duty of the railroad company to lower the gates upon the approach of a train, but the traveler must not rely entirely upon the performance of this duty by the servant of the railroad company;” citing authorities.

In our view of the case, it is not necessary to enter upon a discussion of that proposition. In response to a question put to the counsel upon the oral argument, asking if the answers to special interrogatories 2 and 4 did not modify the answer to special interrogatory 3, counsel frankly replied they did, if there was any evidence upon which to base them, but insisted there was no such evidence. We do not feel so clear about there being no evidence upon which to base these answers as does counsel. Several witnesses testify that, if plaintiff had looked, he could not have seen the train in time to have avoided the accident. The witnesses could not very well testify whether the plaintiff listened for the train. They could only describe his manner and what he did, his surroundings and what occurred. No one testified he did not listen, but it is said that five of plaintiff’s witnesses who were at Seventh street heard the whistle at Fifth street, and that they were twice as far from the locomotive as was plaintiff’s intestate. It should not be forgotten that Mr. Potter was approaching from the east on his wheel, and when this train was at Fifth street he was probably in the neighborhood of 150 feet from the place of the accident, and not only could not see to the south, but his ability to hear was lessened by the large lumber piles intercepting the sound, while the witnesses had a clear, open space. This.does not demonstrate he was not listening. See Kimball v. Friend’s Adm’r, 95 Va. 125.

The evidence discloses plaintiff was riding his wheel very slowly — not faster than a man would walk. One of the witnesses testified in part as follows:

“ When I first saw the gates they were up, and they remained up all the time. Mr. Potter was looking a little downward, with his face straight ahead of him, without turning to look to either side. He appeared to be looking kind of down, ahead of him, at the ground right in front of his wheel. The conductor and brakeman were on top of the car which struck him. Standing up. They were about in the center of the car. I heard some one call to Mr. Potter. When they called to Mr. Potter it seemed as though he looked up, and the train hit him. They called to him twice. He did not appear to hear them the first time they called. When they called the first time, his front wheel was right on the east rail of the main track, and when they called the second time he was right in the center of the main track. When the whistle blew, the box cars were just about on Fifth street. The engine whistled three times. The engine was about on Fifth street when it ceased to whistle. I heard the whistle before I saw Mr. Potter. The whistle sounded three short, sharp whistles, such as are ordinarily given for a crossing. I don’t think Mr. Potter could have stepped off and saved himself if he heard the conductor when he called to him the first time.”

We think, in view of this and other testimony, it cannot be said there was no case for a jury.

Judgment is affirmed.

Carpenter, McAlvay, Blair, and Hooker, JJ., concurred.


text:
    CO-OPERATIVE TELEPHONE CO. v. KATUS.
    1. Contracts — Mutuality — Telephone Lease — Statute op Frauds — Signing.
    An agreement to rent a telephone for a term of three years at a stipulated rental is within the statute of frauds and not being signed by the telephone company is unenforceable by it for want of mutuality.
    2. Same — Dependent Provisions.
    Where a subscription to the capital stock of a telephone company contained, as required by its by-laws, an agreement to lease a telephone for three years, and it appeared that the lease was an essential part of the subscription, and the subscription would not have been accepted without it, the provisions are dependent, and the lease being unenforceable for want of mutuality the subscription is likewise unenforceable.
    Error to Wayne; Mandell, J.
    Submitted May 4, 1905.
    (Docket No. 143.)
    Decided June 6, 1905.

      Assumpsit by the Oo-Operative Telephone Company against Peter Katus on an agreement for the purchase of certain shares of stock. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed, and judgment entered for defendant.

      James F. Hill (James Swan, of counsel), for appellant.

      Jasper O. Gates (Louis J. Bosenberg, of counsel), for appellee. •
   McAlvay, J.

Plaintiff, a Michigan corporation, sued defendant in assumpsit to recover upon two certain contracts in writing signed by defendant. Under the general issue, defendant gave notice that the contracts were void for want of mutuality, and that the defendant was induced to enter into said contracts by certain false representations of plaintiff, upon which defendant relied. The trial court instructed a verdict for plaintiff for the amount claimed. Defendant appeals, and assigns error upon such instruction of the court, and upon the refusal of the court to instruct a verdict for defendant and to give certain requests to charge.

The contracts are identical in form, except that one includes an agreement to rent a business telephone for the period of three years, and the other a residence telephone for the same period. The following is a copy of one of the contracts:

“Residence Telephone.
‘ ‘ I do hereby subscribe for one fifty dollar share of the capital stock of the Co-Operative Telephone Company of Detroit, to be paid for in monthly installments of ten dollars each as called in by the board of directors of said company; with the understanding that I am to be paid interest at current savings bank rates upon all moneys so paid in by me until said company shall actually commence the construction of its plant, and thereafter at the rate of 5 i per annum until its telephone exchange shall be actually opened for business.
“ This agreement is subject to the provisions of sections 2 and 3 of article 1, and of section 1 of article 3 of the bylaws of said company, copies of which sections are printed on this agreement.
“And I do further agree that I will rent one residence telephone of said company for the period of three years, from the time when the said exchange shall be so opened for business, at the rate of $24 per year, payable quarterly.
“Dated this 29th day of January, 1902.
“(Sgd.) Peter Katus.
“Article 1.
“Sec. 2. Every subscription to each share of the stock of the company shall also embody a contract for the rental of at least one telephone at the current rate for the term of at least three years.”

Section 3, relative to depositing all certificates of stock with city controller, is not material to this case.

Article 3, § 1, relative to issue and transfer of certificates of stock, is not material to this case.

The principal assignment of error relied upon by defendant is the refusal of the court to instruct a verdict for defendant, for the reason that the contracts are void under the statute of frauds for want of mutuality. It will be noted that the contract is made subject to the provisions of section 2 of article 1 of plaintiff’s by-laws, which section is printed upon the contract, and is as follows:

“Every subscription to each share of the stock of the company shall also embody a contract for the rental of at least one telephone at the current rate for the term of at least three years.”

Each of these contracts embodies such an agreement for the rent of a telephone for three years at the annual rental therein specified. These contracts are not signed by the plaintiff. By the requirement of plaintiff this agreement is made an essential part of the subscription for the stock, and the evidence in the case shows without dispute that defendant made this contract for the purpose of securing a telephone, and that no contract for subscription of stock would have been accepted without it. It is clear that the agreement to rent a telephone for the term of three years at the stipulated rental is within the statute of frauds, and cannot be enforced for want of mutuality, for the reason that it is not signed by the plaintiff, and could not be enforced against it. Wilkinson v. Heavenrich, 58 Mich. 574.

The clause in the contract which contains the subscription of defendant for one share of stock cannot be said to be a separate and independent agreement upon which defendant may be held liable, notwithstanding the clear invalidity of the contract already pointed out. This contract must be considered in its entirety. It is in terms as drawn and required by the plaintiff. Its invalidity goes to the whole contract, and neither party could enforce it, or any part of it, against the other.

For the reasons above stated, a verdict should have been directed by the trial judge in favor of defendant. As this disposes of the case, there is no necessity for considering the other errors assigned, or ordering a new trial.

The judgment of the circuit court is reversed, and a judgment entered in this court in favor of defendant.

Moore, C. J., and Carpenter, Blair, and Hooker, JJ., concurred.


author: Per Curiam.

text:
    HAMMOND v. WAYNE CIRCUIT JUDGE.
    Executors and Administrators — Order Allowing Claims — Appeal — Right op Coadministrator.
    One of two administrators may appeal from an order allowing claims though.' his coadministrator withholds his consent. Section 9386, 3 Comp. Laws.
    Mandamus by Edward P. Hammond, by bis next friend, to compel Robert E. Frazer, circuit judge of Wayne county, to dismiss an appeal taken by one of two administrators without the consent of the other.
    Submitted February 14, 1905.
    (Calendar No. 20,934.)
    Writ denied June 6, 1905.

      Thomas A. E. Weadock, for relator.

      Brennan, Donnelly & Van De Mark, for respondent.
   Per Curiam.

Under statute (3 Comp. Laws, § 9386) one of two administrators may appeal from order allowing claims, although his coadministrator withholds his consent to such appeal.

Mandamus denied.


author:
Hooker, J. Moore, C. J.
      Grant, J.

text:
    BREEZE v. MacKINNON MANUFACTURING CO.
    1. Master and Servant — Injuries to Servant — Unsafe Place to Work — Assumption of Risk.
    A servant working on a boiler which lay on a railroad switch track in the master’s yard, where switching was done daily, assumed the risk of being injured by a train. Moore, C. J., and Ostrander, J., dissenting.
    2. Same — Independent Contractors — Liability.
    A manufacturer, through whose works a railroad switch track is built, is not responsible for injuries to his servants arising from the negligence of the railway operatives in switching cars thereon, he having no control over their operations. Moore, C. J., and Ostrander, J., dissenting.
    3. Railroads — Injury to Person on Track — Negligence—Contributory Negligence — Question for Jury.
    Where a laborer working in a mill yard was killed by being pinched by the cars of a railroad company engaged in switching in the yard, evidence in a suit to recover for his death examined, and held, that the questions of the negligence of the railroad operatives and of the contributory negligence of deceased were for the jury. Grant, J.,- dissenting.
    Error to Bay; Shepard, J.
    Submitted January 5, 1905.
    (Docket No. 17.)
    Decided June 8, 1905.
    Case by Martha Breeze, administratrix of the estate of William Breeze, deceased, against the MacKinnon Manufacturing Company and the Michigan Central Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendants bring error.
    Reversed as to defendant manufacturing company and affirmed as to defendant railroad company.

      Simonson, CHllett & Clark, for appellant MacKinnon Manufacturing Co.

      E. A. Cooley (O. E. Butterfield, of counsel), for appellant railroad company.

      Edward E. Anneke (M. L. Courtright, of counsel), for appellee.
   Hooker, J.

The defendant MacKinnon Manufacturing Company set plaintiff’s husband at work upon a boiler which lay across the end of a railroad switch in its yard, upon which switching was done daily. It was obvious to •the plaintiff’s intestate that there was danger from the backing in of cars, and he talked to his co-laborer about it. He knew of and understood the danger as well as the defendants did, and chose to accept the situation. Under such circumstances the employer cannot be held liable upon the ground merely of a failure to furnish a safe place to work. The case is within the rule of Middaugh v. Mitchell, 120 Mich. 581. It is not reasonable to suppose that the parties contemplated that the employer would change the usual habit of business in the yard, or that the employer would, either personally or through agents employed for the purpose, keep watch of the trains, and give warning to the plaintiff of their approach. Such a claim 'is so at variance with the common experience as to make it untenable. There is no proof in the case from which it ■can be inferred. Again, at the time he was hurt the plaintiff’s intestate was not at work upon the boiler, but was passing between it and a car three or four feet away. Be-' ing struck by a switch train, this car struck him down, just as it would have done, had' not the boiler been there, ■or had he not intended to resume work upon it.

It is said that the MacKinnon Bros, are responsible for the negligence of the railroad company. This is upon the ground that they were its agents, because switching cars in its yard. This claim cannot be sustained. The MacKinnon Company had no supervision or control of the rrailroad company or its men. The company was an independent contractor, responsible for its own negligence. .1 Thompson on Negligence, §§ 621, 646.

W e see no escape from the conclusion that the MacKinnon Company is not justly chargeable with any fault, unless it be that the work should not have been done upon the track, and of that the intestate was aware as well as it, and, by not declining to do it there, he accepted the situation and the danger. A verdict of not guilty should have been directed as to the MacKinnon Company.

With the railroad company the question is different. There is testimony in the case tending to show that the trainmen knew that this work was going on, and that they gave no signal of the approach of the train, and used no care to prevent the collision between the stationary car and the boiler. There was therefore a question of fact as to their negligence. There was no assumption of risk of the railroad’s negligence as between plaintiff and the railroad company, as there was between him and his employers. The question of contributory negligence is one which was for the jury. There was proof from which it might have been found, but it was not conclusively shown, for the situation was one which was not free from dispute, and minds might well differ as to the degree of care which it demanded.

The judgment should be reversed as to the MacKinnon Company, and affirmed against the railroad company.

Carpenter, McAlvay, Blair, and Montgomery, JJ., concurred.

Moore, C. J.

From a judgment in favor of plaintiff, each of the defendants has appealed. Each states that the only error relied upon is the failure of the judge to direct a verdict in its favor. Counsel for the railroad company say in their brief:

“Under all the circumstances, if judgment cannot be entered for defendant the Michigan Central Railroad Company, or both defendants, we ask that the judgment of the lower court be affirmed, as we do not wish a reversal and another trial in the circuit court.”

Counsel for the other defendant take the same position in relation to that company.

William Breeze was in the employ of the MacKinnon Manufacturing Company, who are machinists and boiler makers; having a large plant on Water street, in Bay City. Defendant railroad company has a track on this street, which runs north and south, and a spur about 100 feet long extends from this track south upon the property of the MacKinnon Company, and, after making the connecting curve, runs almost parallel with the track on Water street. This spur is used by the MacKinnon Company exclusively in its business. This spur runs between the main track and the buildings of the MacKinnon Company. In the latter part of April, 1903, the MacKinnon Company received an old boiler to be cut up for scrap, and unloaded it lengthwise on this spur track, and about 15 feet north from the bumping post. The deceased was on May 5th set at work cutting upon this boiler, and worked a few hours on six different days; working a total of 20-2 hours prior to May láth. On that day he had worked 3 hours, and, just before the accident in which he received injuries which resulted in his death, went to the office building to get some wedges, where he was directed to go for them. On the day previous a flat car was delivered on this spur to the MacKinnon Company, and was loaded with a large new boiler, 6 feet high and 20 feet long. Deceased helped to load it. In the forenoon of the day of the accident the railroad company delivered upon this spur a car loaded with scrap iron and two old boilers. This spur passed over the sidewalk, and, to leave it clear when the second car was brought in, the car upon which the new boiler was loaded was pushed farther down the spur, and to within a few feet of where the old boiler was.

Counsel for plaintiff state the situation as follows:

“ This spur was then occupied as follows: First, by the old boiler, eighteen feet long, lying lengthwise of the track, about fifteen feet from the bumping post; next, the car on which the new boiler had been loaded; and, next, the flat car loaded with scrap iron and two old boilers. With the cars in this position, an engine of the defendant railroad company backed onto this spur track, about 3:05 in the afternoon of May 14th, for the purpose of taking out the car on which the new boiler was loaded.
“In the meantime the deceased had come out of the boiler shop with the wedges, and walked down on the east side of the spur track at the side of these cars to the old boiler. He stepped in between it and the cars just as the engine was coupling onto them to pull them out.
“The cars were.struck with such force that they were driven against the front or north end of the old boiler, and deceased was caught between it and the end of the car and crushed, from which injuries he subsequently died.”

It is their claim that deceased was not notified by either of the defendants of the coming of this engine, and that the proper and usual signals of its coming were not given. Both defendants claim that a verdict should have been directed in favor of both of them, first, on the ground of contributory negligence; and, second, because the accident which caused the death of Mr. Breeze was among the assumed risks of his employment.

If it is true, as claimed by plaintiff, that it was only occasionally that an engine was run upon this track, and then only when directed by the MacKinnon Company, and if it is also true that this was done upon this occasion without giving any warning of the approach of the engine, then we cannot say, as a matter of law, that the doctrine of contributory negligence or that of assumed risk made a defense. As to both of these defenses a question of fact existed, which was for the jury. See 4 Thompson on Negligence, §§ 4647, 4648; Swoboda v. Ward, 40 Mich. 420.

Three other defenses are urged upon the part of the railroad company:

First. That there was no common duty between the railroad company and the MacKinnon Company; that, while the latter might be under obligations to furnish its employés with a safe place to work, as the deceased was not an employé of the railroad company, nor employed upon its premises, it was under no duty to provide him a safe place to work.

Second. It is said that the servants of the railroad company in charge of the train were for the time being the servants of the MacKinnon Company, and therefore the fellow-servants of Mr. Breeze, and even if the negligent acts of the trainmen caused the death of deceased, the plaintiff cannot recover.

Third. That the relation of the railroad company to Breeze was not the same as its relation to the general public, but was similar to its duties to its own employes, and that no such negligence on the part of the railroad company has been shown as would make it liable.

In relation to the defenses urged on the part of the railroad peculiar to itself, the MacKinnon Company replies that the railroad company at no time during the trial urged immunity on its behalf, in the absence of similar immunity for the MacKinnon Company. It also insists that if there was no common duty, and therefore no joint liability, it, and not the railroad company, is the one in whose favor a verdict should be directed. The MacKinnon Company also insists that what it did or failed to do was not the proximate cause of the injury, but the running of the engine at the particular time, and the making the coupling in the particular way it was made, was the proximate cause.

It would profit no one to discuss these various defenses in detail. We have examined them with great care in connection with the testimony, which was in many respects contradictory. We must content ourselves with saying that, as a result of this examination, we are satisfied that we cannot enter a judgment in this court for either of the defendants.

Judgment should be affirmed.

Ostrander, J., concurred.

Grant, J.

(dissenting). Upon spur tracks running from the defendant railroad company’s main track to the plant of the defendant MacKinnon Manufacturing Company, and to the plant of' the Industrial Works, cars are daily being switched in and out. Some three weeks prior to the accident the MacKinnon Manufacturing Company had unloaded a marine boiler lengthwise on its spur track, the south end of the boiler being a short distance from the bumper. The reason given for placing it on the track is lack of room in its yards. A new boiler had been loaded upon a flat car a day before the accident, ready for shipment, and the defendant manufacturing company had ordered the railroad company to take it out that day. Meanwhile, on the morning of the day of the accident, a flat car had been placed directly in front of this car, and was loaded with two old boilers and some scrap iron, which was to be unloaded at the manufacturing company’s plant. The witnesses do not agree as to the extent to which this boiler had been dismantled at the time of the accident. It is undisputed that its top had been removed, so that the highest part left was the top of the fire box, between five and six feet from the ground. Various employes had been at work for some time in cutting this boiler to pieces. They did not work continuously, but only when there was not other more important work for them to do. Mr. Breeze had been in the employ of the manufacturing company for almost a year, and had worked upon this boiler for six different days, ranging from a half hour to nine hours at a time each day. Mr. Breeze and his helper, named Casper, were upon the day of the accident working on top of the boiler. They had no occasion to be at either end of the boiler, except as they climbed up or came down from the work. The south end of the car on which was the new boiler was from 3 to 3i feet from the end of the old boiler. About 3 o’clock p. m. the engine of the defendant railroad company backed onto the spur of the MacKinnon Manufacturing Company to take out the two flat cars. About seven or eight minutes before the accident Mr. Breeze left the old boiler and went to the boiler shop to get some wedges. He returned with them, and, evidently without looking or listening, stepped in between the bull nose or coupling of the car and the boiler, with his back towards the car and his face towards the boiler; intending to climb up to the top to continue his work. Just at that moment the engine and tender backed down to couple onto the two flat cars; the force being sufficient to drive the bull nose against the body of Mr. Breeze, striking his hips and crushing him so that he died a few hours afterwards.

The declaration alleges the duty of the MacKinnon Manufacturing Company to furnish a place reasonably safe and free from danger in which to work, and to place this old engine upon which Mr. Breeze was required to work in such a place that he could work on the same without danger of being struck or run into by the engines and cars of the railroad company; also the duty of the railroad company to keep its side track and switch free and unincumbered for the passage of engines and cars thereon, and not allow said boiler to be unloaded and remain on said side track on which Breeze was required to work. It then alleges the neglect in wrongfully, etc., unloading this boiler and placing it on this side track or switch. It further alleges that the defendant knew or should have known that said cars and engine would come together with such force that the cars would be driven against said boiler, and that any one working thereon would be liable to be severely injured, that the railroad company drove its engine against the cars so on said side track in a careless and negligent manner, and neglected to ascertain whether any one was working on said boiler before attempting to couple onto said cars, and neglected to place any planks or blocks under the wheels of the car next to said boiler, so as to prevent the car being driven against the boiler, and that both defendants neglected to give any signal or warning of the approach of said engine and cars.

As Mr. Breeze came out of the boiler shop, the engine, and tender attached, was either backing down upon the spur track, or was standing still upon it. In either event it was in plain sight. It was coming in for the sole purpose of taking out the two cars.- The track as it crosses the side track to the plant of the manufacturing company curves slightly to the west. The engine was backing down while Mr. Breeze was walking on the east side of the track, and evidently made the coupling just as Mr. Breeze had placed himself in front of the bull nose.

At the close of the proofs both defendants requested the court to direct a verdict of no cause of action. This was refused, and the case submitted to the jury, who rendered a verdict against both defendants.

The plaintiff’s brief is directed almost exclusively to the. liability of the defendant the MacKinnon Manufacturing Company, and mainly upon the ground that that company, through its proper officers, knew the distance between the boiler and the car, and the danger when making a coupling; that- the coupling was to be made that afternoon in accordance with its order; and that it should therefore have given warning to Mr. Breeze either that the coupling was liable to happen at any moment, or to have watched and given him notice when the coupling was actually to take place. To this it is replied on behalf of both defendants that Mr. Breeze was entirely familiar with the danger; that he knew the boiler was loaded for transportation (he having helped load it), and was liable to be taken out at any moment; that cars were constantly being moved in and out upon the track, and any warning would have related only to things which he knew as well as any one; that, knowing all these things and the danger, he entered upon the work without protest, and therefore assumed the risk. In this respect I concur m the opinion of my Brother Hooker. The only risk to be assumed was the risk arising exactly from what happened. There was no danger from any other source than the backing of the engine to make a coupling. Whether there is logic in holding that that risk was assumed by Mr. Breeze as to his employer, but not as to the railroad company, it is unnecessary, in my view of the case, to determine. There is no evidence of negligence on the part of the railroad company in making the coupling. There is no evidence of careless handling or too great speed. The only negligence possibly chargeable to it, in my judgment, is the failure to ascertain that Mr. Breeze was between the boiler and the car before making the coupling, and to notify him. The cars did not rebound any farther than is usual. All, at all conversant with coupling cars, know that they must come together with considerable force, and that, in coupling, the stationary car or cars are necessarily driven back to a greater or less distance. This is true even of passenger cars. Very slight precaution on the part of Mr. Breeze, taking no perceptible time, would have disclosed to him that the engine was approaching. If he did not see it as he came from the boiler shop, he could have seen it, had he turned around to look when opposite the first flat car, or, before entering between the car and the boiler, he could have, by stepping to the east a few feet, seen it, or he could have called to his helper, Casper, who was on the other side of the track, and at the back end, to ascertain if the engine was backing up. Casper did call to him, but the call was nearly simultaneous with the coupling. That he knew of the danger is apparent from the testimony of plaintiff’s principal witness, Casper, who testified :

“ This morning that he [Breeze] was hurt they came in with that other flat car, with the scrap iron on, and as soon as they came in they pushed the car with the new boiler on up close to the old boiler. This was on the day that Breeze and I were working on top of the old boiler, and Breeze said to me: ‘ Look out! They may run into the old boiler and hurt us.’ He said: ‘We must get out of the way, so we won’t get hurt.’ ‘Lookout! That may run into the old boiler and hurt us.’ He spoke that to me, and I spoke to him. I knew there was some danger of them running into the old boiler. I knew there was nothing there between to prevent the car striking the old boiler. I knew there was nothing under the wheel. Breeze said we must get out of the way, so we would not get hurt.”

It is the universal rule that when one is about to enter upon a railroad track, where he knows that trains or engines are liable to pass at any moment, it is his duty to look and listen. I think this rule applies with equal force to this case. Mr. Breeze knew that the engine might come any moment to couple to the two cars and pull them out. A heavy engine, weighing about 90 tons, and its tender, were approaching within 100 feet. It seems to me apparent that, had he listened, he could have heard. However that may be, a few steps would have placed him in position to see. It was unnecessary to climb upon the boiler at the north end. Some of plaintiff’s witnesses admit that it was feasible to climb up at the south end, though somewhat more difficult. When the deceased and others commenced work upon the boiler, they took wooden horses and placed planks upon them for work upon the sides and near the top. Casper says that when they got through with work upon the sides they laid the horses aside, and that they were lying there the day of the accident. The record discloses that the defendant had many of these horses, and any workman was at liberty to get them when and for what work he chose; and there is no testimony that one was not available, or that they could not have had one by asking for it. Why did they not keep one at the side of the boiler ? No reason is given. Furthermore, it is apparent that material could have been placed at the side of the boiler, upon which the workmen could step to the top. No one directed the workmen to climb upon the boiler in the way they did. The deceased and other employés went this way simply because it was more convenient. Where there are two or more ways of doing a thing, one of which is dangerous and the others are not, it is no excuse to take the most convenient way because the others are somewhat more difficult. To me it seems clear that the deceased assumed all the risk' of taking the hazardous and more convenient way.

I think the court should have directed a verdict for the railroad company for another reason. There is evidence showing that the trainmen, as they were moving to and fro on the main track and side tracks, saw workmen at work on top of this boiler. If there is any evidence that the trainmen saw or knew or had reason to knpw that the employes of the MacKinnon Manufacturing Company were entering upon this dangerous place to get up and down from the boiler, or for any other purpose, it has escaped my attention.

The court, in his instruction, said to the jury:

“He [Breeze] may possibly have assumed that, working as he was there on top of the boiler, the railroadmen, in doing their work, could see him there, and know his condition, and therefore would be bound to exercise care.”

There was little, if any, danger in working upon the top of the boiler. It rested upon a solid foundation, and even if, in coupling, a car should be driven back so as to strike the boiler, the danger to those upon the top would be comparatively slight. If Mr. Breeze had been on top, there would have been no accident. Can it be inferred that the trainmen, because they saw one or two men at various times upon the top of the boiler, knew or should have known that Breeze and his fellow workmen had selected a positively dangerous way, instead of one entirely safe ? Had not the trainmen the right to assume the contrary ? How could they know but that there was a way of climbing up the east side of the boiler, which was entirely hidden from their view, and safe ? Shall these trainmen and the defendant railroad company be charged with knowledge when’ there is no proof of knowledge ?

The sole basis upon which the railroad company can be held liable is that it had either actual or constructive knowledge of the custom of those working upon the boiler to go in between it and the car in front, and in this dangerous place climb to their work. I find no evidence of such knowledge upon the record. Distressing as this accident is, and as all such accidents are, I am unable to find any legal basis for sustaining the judgment.

For the above reasons, I think the judgment should be reversed as to both defendants, and no new trial ordered.