text:
    RUDDOCK v. DETROIT LIFE INSURANCE CO.
    1. Insurance — Rife Insurance — Risks Assumed — Military Sertvice Not Covered — Public Policy.
    The provision in a life insurance policy that military or naval service in time of war without a written permit therefor issued by the company was a risk not assumed, held, not contrary to public policy.
    2. Same — Voluntary or Involuntary Military Service — No Distinction in Contract.
    Nor will the courts differentiate between voluntary and involuntary military service, where no such distinction was made in the policy.
    3. Same — Contract — Construction Most Strongly Against Maker.
    The contract of insurance. having been prepared by v the company, if it is capable of two interpretations, the one-most favorable to the insured should be adopted.
    4. Same — “Military Service” — What Constitutes.
    One has entered “military service” when he has passed the examination, taken the oath, been enrolled as a soldier, and become subject to the orders of the military branch, of the government.
    5. Same — Construction of Policy.
    Where an application for an insurance policy provided that military or naval service in time of war was a risk not to be assumed, and the policy provided that “military and naval service in time of war shall be construed to include-work as a civilian in any capacity whatever in connection with actual warfare,” death of insured from pneumonia while in training at a military camp after being inducted into military service held, a risk not covered by the policy, although he was not engaged in actual warfare before the-enemy.
    6. Same — Notice Insufficient Where Permit Required.
    Where the policy provided that death of insured while in the military or naval service without a written permit issued by the insurer was a risk not assumed, mere notice by insured to insurer that he had entered military service would not be sufficient to render Insurer liable for his death thereafter. •
    7. Same — Waiver—Estoppel.
    Where the policy was payable to insured’s estate, and on notice of his death insurer furnished blank proofs and suggested that an administrator be appointed before it had any notice or knowledge that insured died while in military service, it cannot be contended that such action would estop it from making the defense that it was not liable because insured had failed to secure a written permit as provided in the policy.
    8. Same — Waiver oe Forfeiture Basis of Estoppel.
    The doctrine of waiver and estoppel has largely been applied in cases where the insurance companies have relied on forfeitures, and the courts have held that, if the companies have led the other party, to his prejudice, to his expense, to understand that such forfeitures would not be insisted upon, then the companies would be estopped from asserting such defenses.
    9. Same — Waiver and Estoppel Insufficient to Create Liability.
    But the doctrine of waiver and estoppel cannot be applied so as to create a liability not created by the contract, or to create a liability contrary to the express provisions of the contract which the parties made.
    10. Pleading — Amendments—Discretion of Court — Statutes.
    Under 3 Comp. Laws 1915, § 12478, it was within the discretion of the trial court to permit defendant to amend its pleading by adding a notice under the plea of the general issue.
    Error to Calhoun; North (Walter H.), J.
    Submitted January 22, 1920.
    (Docket No. 21.)
    Decided April 10, 1920.
    Assumpsit by James A. Ruddock, administrator of the estate of Charles H. Ruddock, deceased, against the Detroit Life Insuránce Company on a policy of insurance. Judgment for defendant non obstante veredicto. Plaintiff brings error.
    Affirmed.

      /. M. Hatch & Son, for appellant.

      F. II. Watson, for appellee.
    Plaintiff’s decedent was his son, nearly 27 years of age and unmarried. On September 2, 1917, deceased made application to the defendant for a policy of insurance in the sum of $2,000 and paid the regular premiums for one year. His application contained the following:
    “I hereby certify that I have read all statements and answers in this application, and agree, on behalf of myself and of any person who shall have or claim any interest in any contract issued hereunder: * * *
    “(6) That military or naval service in time of war is not a risk assumed under any policy hereunder applied for, and if I shall enter or be engaged in such service (except in time of peace) without a written permit therefor issued by the company, no claim shall exist under any policy issued hereunder except for the net’ reserve held against it.”
    He passed the medical examination and defendant issued its policy No. 18072 effective October 4th, payable to decedent’s estate. The policy contained the following:
    “This policy and the applications therefor, a full and true copy of which is hereto attached, shall constitute the entire contract between the parties hereto. It is unrestricted as to travel, residence, or occupation and shall be incontestable after one year from date, except for non-payment of premium, and except for naval or military service in time of war, without a permit, which are risks not assumed by the company, provided that, in case of the death of the insured while engaged in such service, without a permit, the amount payable hereunder shall be the reserve on the policy at date of death. Military and naval service in time of war shall be construed to include work as a civilian in any capacity whatever in connection with actual warfare.”
    On July 26, 1918, he was inducted into the military service of the United States under the provisions of the act of congress of May 18, 1917 (40 U. S. Stat. p. 76). On October 9th, he died at Camp Custer of pneumonia. The policy of insurance contained a clause giving the insured thirty days’ grace in which to pay the annual premiums. The usual notice that such premium was due was sent out, and came to plaintiff’s knowledge. He wrote defendant notifying it of his son’s death and inquired as to the steps necessary to collect the insurance. The company informed him that as the insurance was made payable to the estate of his son it would be necessary to have an administrator appointed. Blanks for proof of loss were enclosed with the suggestion that they could be completed as soon as the administrator was appointed. At this time defendant had no knowledge or notice that deceased had been inducted into the service, or that he died when in such service. Upon receipt of the blank plaintiff wrote defendant as to filling it out, stating that his son died in some hospital at Camp Custer and asking if more definite information as to the place of his death would be required. Defendant replied that it would be sufficient to state that the son died in the hospital at Camp Custer and stated that if he could supply the name of the attending physician to do so, otherwise to state in the blank that he could not give the information. On December 1st, defendant acknowledged receipt of plaintiff’s proof of claim and on December 6th wrote him calling attention to the provision of the policy above quoted and denied liability.
    This action was brought to recover the amount of the policy less one year’s premium due at the time of decedent’s death. Both parties asked for a directed verdict. The trial judge, in order to have opportunity to more fully examine and consider the questions, reserved decision on defendant’s motion and directed a verdict for the plaintiff. After considering the questions reserved he filed an opinion directing judgment for the defendant notwithstanding the verdict.
    The grounds upon which the plaintiff asked for a directed verdict, and they are largely the grounds upon which reversal is sought in this court, are as follows:

      “First. For the reason that the entry of plaintiff’s intestate into the military service was involuntary and not his act, but the act of the Government for which he was. in no way responsible in any greater degree than for an act of God.

      “Second. For the reason that the entry of plaintiff’s intestate into the military service being involuntary on his part and by compulsion of the Government, it thereby suspended any contract plaintiff’s intestate was under to defendant company to notify them of his induction into the service.

      “Third. For the reason that the plaintiff’s intestate had not at the time of his death entered into active military service, but had entered into only such military service as was permitted under the terms of his policy.

      “Fourth. For the reason that plaintiff’s intestate, under the terms of his policy, had until November 4, 1918, to give notice of his entry into the military service and that his death was the act of God and excused him from giving such notice.

      “Fifth. For the reason that the defendant company have required plaintiff to furnish proofs of death after notice to them that plaintiff’s intestate died at Camp Custer and therefore waived and are estopped from making any defense under that provision of said policy covering the notice to the company of entry into the military service.

      “Sixth. That by pleading the general issue knowing all the facts, they waived any such defense such as they are now making and that they thereby waived those provisions of the policy which they are now seeking to enforce.”
   Fellows, J.

(after stating the facts). We shall consider the questions raised in their order.

1 and 2. If the clause of this contract of insurance, which is involved in this action, is not contrary to public policy we perceive no good reason for holding it to be invalid. What its construction should be we shall consider under another head. The diligence of counsel has brought to our attention but one case where the question of public policy was involved. With the limit of time at our disposal we have found but one other.

In the case of Duckworth v. Scottish Widows Fund Life Assurance Society, 33 Times Law Rep. 430, this was the only question involved. The society had issued its policy of insurance in the sum of £50,000 upon the life of one Duckworth; such policy contained a clause that if the assured “shall enter into or engage in any military service except in Great Britain or Ireland * * * without the license of the directors previously obtained, then * * * this policy shall be void.” It was urged that the clause was contrary to public policy in that it tended to induce Duckworth not to serve his country as a soldier. The contention was overruled. We quote from the report of the case:

“His Lordship (Mr. Justice Coleridge) did not think that the law could reorganize the business of insurance companies. Business was business, and to enforce on insurance companies, a law that they should make no distinction between the risk of staying at home and that of fighting abroad, on the ground of public policy,_ was, in his opinion, to ride the horse of public policy too hard. To refrain from making the distinction might involve them in ruin. Therefore, he did not think there was anything contrary to public policy in this insurance policy.”

In a very recent case before the supreme court of Arkansas (Miller v. Bankers’ Life Ass'n [Ark.], 212 S. W. 310) the provisions of the policy were quite similar to the ones in the instant case. It was. urged that such provisions tended to prevent voluntary enlistments and induced resistance to the draft laws and was therefore contrary to public policy. But the court said:

“We do not think the argument is well founded. An insurance company has the right to select the particular risks it -is willing to assume, and there is no public policy against a contract of this sort exempting the insurance company, in advance, from liability for death of the insured while in the .military or naval service of the government. The’ stipulation does not provide for a forfeiture of the policy, but merely for an exemption from liability under certain circumstances and conditions. It holds out no inducements to the assured to refrain from enlistment in his country’s service, and does not constitute, in any sense, an agreement not to enlist or to evade the draft law.”

! Other cases having more or less bearing on this question will be considered later but these two cases are the only ones we have been able to find which are directly in point.

It must be borne in mind that the solvency of insurance companies is maintained by the collection of their premiums; that risks differ, and that a rate adequate for one condition may not be adequate for another; and, eliminating the question of the power of the State to prescribe a standard form of contracts of insurance and otherwise regulate such corporations (questions not here involved), may contract with the insured upon the terms under which it shall be bound. Both the parties to this contract knew when it was entered into that a state of war existed; both knew that deceased was of draft age, that he was a single man in good health as his medical examination showed, and both knew he was subject to be called by our Government to do military service. With this, knowledge, possessed by both,, this contract" of insurance was entered into. The Government to which both owed allegiance had the right to call the deceased to the service. We are unable to perceive that public policy prevented them from contracting that if that event took place defendant should not be bound if death occurred while in such service unless a permit was given and an additional fee or premium paid. The parties did not differentiate between voluntary and involuntary service, between service performed under enlistment and service performed under the draft law and we cannot without making a contract for them read such differentiation into the policy.

3. Cases involving this question are not as numerous as one might expect, nor has much attention been given it by text writers. The use of different, language in the policies considered in the cases has led to varying results as the language has varied; and in most of the cases the courts have limited their discussion and consideration to the precise language of the policy before them. In the cases the rule is recognized that the contract of insurance having been prepared by the company, if it is capable of two interpretations, the one most favorable to the insured should be adopted. We shall consider some of the cases which by "analogy may be thought to apply.

We are not impressed that Cohen v. Insurance Co., 50 N. Y. 610, and Sands v. Insurance Co., 50 N. Y. 626, cited by the plaintiff, are controlling here. These cases involve the same question and were handed down together. In both cases the facts are substantially these: Prior to the war of the rebellion the insurance companies, both of the State of New York, had issued policies of life insurance to residents of the southern States. The premiums had been paid until the beginning of the war; during its continuance they were not paid; after the war the premiums were tendered or offered; the insured in each case was a non-combatant. It was held in both eases that during the war trading with the enemy was prohibited, that the insured could not be required to do an unlawful thing, i. e., pay money to a citizen of the enemy country, and that the contract of insurance was not forfeited but was suspended during the war. The opinions by Justices Allen and Peckham- are able ones, but this is likewise true of the opinion of Justice Carpenter in Worthington v. Insurance Co., 41 Conn. 372, where an exactly opposite conclusion was reached on the same state of facts. And in Dillard v. Insurance Co., 44 Ga. 119, the supreme court of Georgia reached the same conclusion as did the Connecticut court. We need not further pursue the cases where the situation was the same as in these cases as they are not applicable to the instant case.

In the case of Welts v. Insurance Co., 48 N. Y. 34, the language of the policy was:

“* * * or shall, without such previous consent thus endorsed, enter into any military or naval service whatsoever (the militia not in actual service ex? cepted), the said policy shall be void, null and of no effect.”

The insured while acting as superintendent in the construction of a railroad bridge for military purposes located some 30 miles behind the Union lines, and more than that distance from the confederate army, was killed by robbers in no way connected with either army. He was not an enlisted man and held no office of a military character. It was held that the company was liable. The learned commissioner (Leon-, ard) who wrote the opinion seemed to lay stress on the fact that he was not an enlisted man; he says:

“I am not much experienced in military affairs; but it is generally understood that there is a record of the entry of both officers and privates into the military service.”

And in further considering the term “military service,” he said:

“The general understanding of the term includes such persons only as are liable to do duty in the field as combatants.”

The case must be regarded as holding that one who has not enlisted or been drafted, who is a non-combatant, and is not liable to be called upon to perform service in the field was not in “military service” within the meaning of the policy. It does not determine that the converse of the proposition would be true unless it may be inferentially.

A cursory examination of Mutual Benefit Life Ins. Co. v. Wise, 34 Md. 582, might lead to the impression that the court held as matter of law that a chaplain was not engaged in military service, but a more careful examination of the case will demonstrate that due to the uncertainty of the proof the question was held to be a question for the jury. However, the United States Supreme. Court in United States v. La Towrette, 151 U. S. 572 (14 Sup. Ct. Rep. 422), held that a post chaplain was engaged in military service within the meaning of the act of July 15, 1870 (16 U. S. Stat. P. 315).

In LaRue v. Insurance Co., 68 Kan. 539 (75 Pac. 494), the policy contained the following clause:

“Military or Naval Service. — The insured under this policy is permitted to serve in the militia or in the military or naval force of the United States in time of peace without prejudice to his policy; and he may so serve in time of war by giving the company notice in writing, and paying an extra premium therefor, not to exceed three per cent, per annum upon the amount insured. But should such notice not be given and the extra premium for war hazard not be paid at the time the risk is incurred, the company will be liable for the reserve only on this policy, computed according to the actuaries’ table of mortality and four per cent, interest.”

The insured was a soldier, with his regiment in the Philippine Islands. He was killed at the village of Loculan in the island of Mindanao by a blow from a bolo in the hands- of an insurrecto. Upon the trial the plaintiff offered to prove that at the village of Loculan there was no armed resistance against the forces of the United States, the insured had been sent there with his company after active service for a rest; that the guards had only empty guns and that there was no disturbance of any kind on that island. The trial judge, holding that the courts would take judicial notice that a state of insurrection existed, declined the offered proof and permitted recovery only for the amount of the reserve. This action was affirmed.

Let us now examine the cases growing out of the late war. In Coxe v. Assurance Corp., 2 K. B. Div. 629 (1916), the action was brought on a policy of accident insurance which contained a condition that defendant did not insure against death “directly or indirectly caused by, arising from, or traceable to *' * * war.” The insured, Captain Ewing, an officér, in the reserve of officers, was engaged in guarding the South Eastern Railway in and about Folkestone -Junction. In the performance of this duty he was struck by an engine and killed. The finding of the arbitrator that the insurance company was not liable was sustained.

In the case of Redd v. Insurance Co., 200 Mo. App. 383 (207 S. W. 74), the insured died of pneumonia at-a training camp. The application for insurance contained the following clause:

“That active service in the army or navy, in time of war, shall invalidate said contract of insurance, unless a permit for such service shall have been applied for in writing and indorsed upon the policy by the company, and such extra premium paid therefor upon notification as the then rules of the company may provide.”

And the following appeared in the policy upon which the action was brought:

“In case of death from service in war without permission from the company, the full reserve for this policy at the time of such death only will be paid.”

In the majority opinion it is said:

“Defendant does not seem to draw any distinction between service in the army and ‘active’’ service therein. We believe that one has entered the service of the army when he has passed the examinations, taken the oath, been enrolled, and has subjected himself to the orders of the military. See Welts v. Insurance Co., 48 N. Y. 34 (8 Am. Rep. 518). It is therefore apparent that insured had entered service in the army at the time of his death. However, we believe that there is a distinction between service in the army and ‘active’ service therein.”

The court then considers the word “active” found in the application and the term “service in war” and laying particular stress on the word “active” and considering “active service” as service before the enemy held that the plaintiff was entitled to recover.

In the case of Kelly v. Insurance Co., 169 Wis. 274 (172 N. W. 152, 4 A. L. R. 845), the application contained the following:

“Military or Naval Service or Work in Connection with Warfare. If the insured shall, within two years from date of this policy, engage in any military or naval service, or in any work as a civilian in any capacity whatsoever in connection with actual warfare, and shall die within two years of the date of this policy as a result, directly or indirectly, of engaging in such service or work, the liability of the company under this policy shall be limited to the return of the premiums paid, without interest.”

The insured, an enlisted man, was engaged in supervising the construction and operation of sawmills in France more than a hundred miles from the zone of actual warfare. While going from one mill to another oil a motorcycle, the motorcycle skidded, throwing him against a tree, resulting in his death. In the preliminary statement, Mr. Justice Rosenberry, who wrote for the court, says:

“It is admitted that at the time of his death the insured was engaged in the military service of the’ United States. The crucial question is, Did the insured die as a result, directly or indirectly, of engaging in the military service?”

He then proceeds to discuss the peculiar language of the clause as applied to the facts of the case, holding that the cause of the death was as common to civil as to military life, and says:

“The policy does not say that recovery shijll be limited to the return of premiums paid if death shall occur while the insured is engaged in the service or work .described, but the limitation applies only to death which occurs, ‘as a result directly or indirectly of engaging in such service.’ ”

—and holds that the company is liable under the policy then under consideration.

In Miller v. Bankers’ Life Ass’n, supra, the language was quite similar to the clause in the policy here. The provision was as follows:

■ “It is expressly provided that death while in' the service in the army or navy of the government in time of war is not a risk covered at any time during the continuance or reinstatement of this; policy for any greater sum than the amounts actually paid to the company thereon. * * *
“This policy shall'be incontestable two years from ■its date except for nonpayment of premium calls, or death while engaged in or caused by violation of the law or while in the service of the army or navy of any government, which is not a risk covered at any time during the continuance or reinstatement of this policy for any greater sum than the amounts actually paid to the association thereon.”

The insured had died from pneumonia at Camp Beauregard, La., after his induction into the service. V/e have already quoted from this case and will not quote further. It was held that under the terms of the policy the defendant was not liable, the insured at the time of his death being in the service in the army; and that the clause quoted exempted the defendant from liability under the facts which were substantially identical with those in the case at bar. The case is not distinguishable from the one wé are considering.

An examination of the authorities is convincing that one has entered “military service” when he has passed the examination, taken the oath, been enrolled as a soldier, and becomes subject to the orders of the military branch of the Government. This, we think, is clearly the common understanding of that term. He then gives up for the time being the occupation of a civilian, and takes up the tasks of a soldier. He may no longer come and go as he pleases. He is constantly subject to the orders of his superiors. If he violates the articles of war he is tried by court martial, a military court. His status is then fixed. He is as clearly in the military service when in training as when before the enemy. Wé think the parties, to this contract so understood the term, as “military service” in times of peace did not suspend the contract or relieve defendant of liability. The parties had the right to draw the line where liability would cease in time of war. They drew it at the point where the insured entered “military service,” when he was inducted into that service. Unless we interpolate the word “active” or otherwise change the language of the contract we must hold that the defendant was not liable under the terms of the contract. We recognize the rule that if two reasonable interpretations of the contract are permissible we should adopt the one most favorable to the insured, the contract having been prepared by the insurer. This rule is a salutary one and we have no disposition to weaken its force. We should, however, be careful to guard against its misapplication. It is not applicable where it is necessary to read something into the contract that the parties have not put there in order to make it susceptible of a double construction. We are constrained to hold that defendant was not, under the policy, required to pay upon the death of deceased, which occurred after he was inducted into the military service of his country during a time of war and while he was still in such service.

The language found in the policy, “military and naval service in time of war shall be construed to include work as a civilian in any capacity whatever in connection with actual warfare,” cannot aid the plaintiff; on the contrary it indicates that “military service” as applied to a soldier does include service not connected with aetual warfare before the enemy. This language tends to strengthen rather than weaken the defendant’s contention, and does not impress us as in any way sustaining the plaintiff’s contention or as militating against the conclusion we have reached.

4. Counsel overlooks the fact that the terms of the policy require that a “written permit” be issued by the company. Nothing is said in the policy about giving notice by insured of his entry into military service. What the contract requires is that the company shall give its written consent that it will be liable when insured is engaged in military service in time of war before such liability shall attach. We infer that such addition to its liability would be accompanied by an additional fee or premiums. It was so stated at the argument.-'

5. But it is insisted that the doctrine of waiver and estoppel should avail the plaintiff; and it is here insisted for the first time that the case should at least have been submitted to the jury on this question. The argument is made that plaintiff has been put to expense in procuring the appointment of an adminis-. trator and in making, out the proof of loss, and that this was done at the suggestion of defendant, and it is urged that for this reason it has waived the defense here asserted and is estopped from making this claim. Waiver as applied to this class of cases is bottomed on the doctrine of estoppel. New York Cent. Ins. Co. v. Watson, 23 Mich. 486; Moloney v. Insurance Co., 168 Mich. 269; Sweeney v. Insurance Co., 199 Mich. 584. It is quite doubtful that plaintiff’s case, if it is one where waiver and estoppel may be invoked, is within the cases where the doctrine has been applied. Defendant sent the blanks for proof of loss and made the suggestion that an administrator be appointed before it had any notice or knowledge that the insured was in the military service of his country at the time of his death. It surely should not be estopped by these acts from making a defense of which it then had no knowledge or notice. But in the view we take of the case we think it unnecessary to pursue this line of thought further or to consider whether any subsequent acts amounted to a waiver as we are clearly of the opinion that the case is not one where the doctrine of waiver and estoppel may be invoked.

The cases where the doctrine of waiver, of estoppel, has been applied have largely been cases where the insurance companies have relied on a forfeiture of the contract, upon breaches of the warranties and conditions to work such forfeitures; and in many such cases this court and other courts of last resort have held that if the companies have led the other party, to his prejudice, to his expense, to understand that such forfeitures, such breaches of warranties and conditions would not be insisted upon, then the companies would be estopped from asserting such defenses. But here the defendant makes no claim of forfeiture of the contract; on the contrary it is insisting upon the contract itself and insisting that by its terms it did not insure the deceased when engaged in military services in time of war. To apply the doctrine of estoppel and waiver here would make this contract of insurance cover a loss it never covered by its terms, to create a liability not created by the contract and never assumed by the defendant under the terms of the policy. In other words, by invoking the doctrine of estoppel and waiver it is sought to bring into existence a contract not made by the parties, to create a liability contrary to the express provisions of the contract the parties did make.' The supreme court of Wisconsin in the case of McCoy v. Relief Ass’n, 92 Wis. 577 (66 N. W. 697, 47 L. R. A. 681), had this precise question before it. By the terms of the policy the company was not liable where the death occurred by suicide. The insured committed suicide. But it was insisted that the company by its acts was estopped from asserting such defense to the action. The answer to such contention was there so well stated that we adopt it as applicable to the instant case. Speaking through Mr. Justice Marshall, the court there said:

“On this branch of the case much learning is displayed, and the general subject of waiver and estoppel in cases of forfeitures by breaches of conditions in contracts of insurance is ably discussed in respondent’s brief in support of the contention that appellant is estopped from insisting upon a forfeiture in this case; but we are unable to see how the settled rules under which it is held that a forfeiture or condition of forfeiture may be waived applies here. What is insisted upon is not really the waiver of a forfeiture, or an equitable estoppel against insisting upon a condition of the policy, the violation of which would otherwise work a forfeiture. It is a misuse of the term to so speak of the loss of benefits under the certificate in question. What is here sought is not to prevent a forfeiture, but to make a new contract; to radically change the terms of the certificate so as to cover death by suicide, when by its terms that is expressly ex-eluded from the contract. We do not understand that the doctrine of estoppel or waiver goes that far. After a loss accrues, an insurance company may, by its conduct, waive a forfeiture; or by some act before such loss it may induce the insured to do or not to, do some act contrary to the stipulations of the policy, and thereby be estopped from setting up such violations as a forfeiture; but such conduct, though in conflict with the terms of the contract of insurance and with the knowledge of the insured and relied upon by him, will not have the effect to broaden out such contract so as to cover additional objects of insurance or causes of loss.”

6. It was clearly within the discretion of the trial court to permit defendant to amend its pleadings by adding a notice under the plea of the general issue. Section 12478, 3 Comp. Laws 1915; Sweeney v. Insurance Co., supra.

The judgment will be affirmed.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    MORGAN v. HOEY.
    1. Courts — Jurisdiction—Conflict of Jurisdiction.
    Where the circuit, court of one county has obtained jurisdiction of the parties and the subject-matter, the circuit ■ court of another county could not take jurisdiction of the same parties and the same subject-matter while the first suit was pending and undetermined; and on defendant’s special appearance, his motion to dismiss upon said grounds should be granted.

      2. Same — Waiver of Jurisdictional Irregularity — Judicature Act.
    The practice in effect prior to the enactment of the judicature act, viz., that jurisdictional irregularities are waived hy a general appearance, held,, not changed hy 3 Comp. Laws 1915, § 12456.
    3. Same — Jurisdictional Irregularity Waived by General Appearance,
    Where a similar case for the same cause of action was pending between the same parties in another circuit when plaintiff began the action in the case at bar, but four days later he filed a discontinuance in the former action, and thereafter defendant entered his general appearance and demanded a hill of particulars, his motion to dismiss, made some 30 days after the discontinuance of the former action, was properly denied; the jurisdictional irregularity having been waived by his general appearance.
    Error to Bay; Houghton (Samuel G.), J.
    Submitted January 15, 1920.
    (Docket No. 16.)
    Decided April 10, 1920.
    Assumpsit by Bernard W. Morgan against William T. Hoey for breach of a contract of employment. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      I. S. Canfield, for appellant.

      Frank S. Pratt, for appellee.
    This action was commenced by plaintiff against defendant for breach of an alleged contract of hiring. The summons was issued and served on August 16, 1918. Defendant, by counsel, filed notice of retainer on August 28th, and on August 31st a demand for a bill of particulars was filed. -September 12th a bill of particulars was filed. On September 23d defendant made a motion to dismiss. The motion to dismiss is based upon the fact that on June 14. 1918, plaintiff herein, brought suit for the same cause of action against defendant herein in the circuit court for the county of Alpena; that said suit in the Alpena circuit was at issue, pending, and undisposed of at the time the action in the case at bar was commenced in the Bay circuit. The court denied the motion, saying:
    “On August 16, 1918, plaintiff began this suit in thé Bay circuit court by serving summons on defendant on said day. Prior to that date plaintiff had begun a similar suit against defendant for the same cause of action in the circuit court at Alpena, Michigan. On the 20th of August plaintiff filed a discontinuance in the Alpena circuit and paid or offered to pay the costs to be taxed therein in connection therewith. On the 27th of August, 1918, defendant entered his appearance in said cause in the Bay circuit court by his attorney, Mr. I. S. Canfield. On the 29th of August plaintiff’s declaration was served on defendant, and on the 31st of August defendant demanded from plaintiff a bill of particulars, which was served and filed about the 12th of September and on September 21st motion was made by defendant to quash and discontinue this cause, chiefly for the reason that the Bay circuit court did not have jurisdiction of the subject-matter at the time of issuing of the summons because of the suit pending in the Alpena circuit at the time the summons was issued.
    “There is no dispute under the law and practice in this State but that a plaintiff may at any time upon notice to defendant or his attorney and on payment of costs, discontinue his suit, except in cases where recoupment or set-off have been asserted by the defendant, which was not the case in this matter.
    “Soon after the commencement of this suit in the Bay circuit and several days after the discontinuance of the suit at Alpena, defendant entered a general appearance in the suit in the Bay circuit court and some_ time thereafter made a motion to dismiss the suit instituted in the Bay circuit for want of jurisdiction.
    “In short, we find plaintiff discontinuing his suit in Alpena, as he had a right to do, defendant joining issue in the Bay circuit'thereafter, and then filing a motion to dismiss the suit in the Bay circuit on the ground that a suit involving the same subject was pending in another circuit.
    “Either circuit would have jurisdiction of the parties and subject-matter. Had the suit, not been discontinued in the Alpena circuit the Bay circuit would have been compelled to dismiss the suit instituted therein after suit was begun.-
    “The promptness from which’ the suit was discontinued in the Alpena circuit, payment or offer to pay all taxable costs, and the arguments of counsel on the hearing, make it clear to the court that the instituting of the suit in the Bay circuit was not vexatious or intended to annoy the defendant, but was done in good faith, and within his personal rights, and to require him to discontinue the only suit left, the one in Bay, for the reasons maintained by defendant, that the summons was issued four days too soon, thereby requiring plaintiff to institute another suit, and no substantial rights of defendant being affected in the least, it would seem to be unreasonable to grant the motion and require such proceeding, which would tend to a multiplicity of suits and would be contrary to law and good practice. The motion therefore will be denied. Wales v. Jones, 1 Mich. 254; Pew v. Yoare, 12 Mich. 16; Breckon v. Ottaiva Circuit Judge, 109 Mich. 615.”
    The case went to trial thereafter, resulting in a verdict for the plaintiff in the sum of $623.01. On motion for new trial, the same was denied, upon condition that plaintiff remit the sum of $137.50 from said verdict,- which remittitur was thereafter filed and judgment rendered. Defendant now reviews said judgment in this court by writ of error.
   Brooke, J.

(after stating the facts). The first and principal error relied upon by the defendant on this appeal is the denial of defendant’s motion to dismiss the case in the Bay circuit, by reason of the fact that a similar case for the same cause of action was pending between the same parties in the Alpena circuit on the day that the summons was issued in the case at bar. It is asserted by counsel that the circuit.court for the county of Alpena, having obtained jurisdiction of the parties and the subject-matter, the circuit court' for the county of Bay could not take jurisdiction of the same parties and. the same subject-matter while the suit first commenced was pending and undetermined in the circuit court for the county of Alpena, citing Maclean v. Wayne Circuit Judge, 52 Mich. 257; Barnum Wire & Iron Works v. Speed, 59 Mich. 272; Shields v. Riopelle, 63 Mich. 458; Speed v. Common Council of Detroit, 98 Mich. 360 (22 L. R. A. 842) ; Wells v. Montcalm Circuit Judge, 141 Mich. 58 (113 Am. St. Rep. 520) ; In re Carney’s Estate, 199 Mich. 663.

There would seem to be no doubt that on the day the summons was filed and served in the case at bar (August 16, 1918), the Bay circuit was without jurisdiction to entertain the action. However, on the 20th day of August, thereafter, plaintiff filed a discontinuance of his suit in the Alpena circuit and paid, or offered to pay, the taxable costs in connection therewith, and on August 27, 1918, defendant entered his general appearance in the case at bar. Plaintiff's declaration having been filed on August 29th, defendant, on August 31st, demanded a bill of particulars which was thereafter filed and served on September 12th. The motion to dismiss was not made until September 21st — some 30 days after the discontinuance of the action in the Alpena circuit and long after defendant had appeared generally and demanded a bill of particulars.

Defendant relies upon the provisions of section 12456 of the Compiled Laws of 1915 and Circuit Court Rule No. 31, § 6, which provides:

“A motion attacking a pleading must be filed and served within fifteen days after the receipt of the pleading attacked, and not afterwards,” * * *

—and it is said that the motion to dismiss should have been granted because, on the day the summons was issued in the Bay circuit, the court was without jurisdiction. Counsel says:

“For obvious reasons, plaintiff must rest his right to commence his suit in the Bay circuit court, upon the conditions that existed when he issued process and had it served upon the defendant, not afterwards.”

Had defendant appeared specially and moved to dismiss upon the grounds stated, we are of the opinion that the motion should have been granted; but we do not think that it was the legislative intent, as indicated by the enactment of section 12456, supra,, to change the principle of the practice which had theretofore existed, which was that jurisdictional irregularities are waived by a general appearance. See 1 Green’s Michigan Practice (3d Ed.), page 378, and cases cited.

Several errors are assigned upon the admission of testimony and the charge of the court. These we have examined and find them to be without merit, except one, relative to the amount recovered, which was cured by the reduction of the judgment on the motion for new trial. The record discloses a sharply contested question of fact which was disposed of by the jury favorably to plaintiff’s contention under a charge which, taken as a whole, was eminently fair.

The judgment is affirmed.

Moore, C. J., and Steere, Fellows,' Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    DUBE v. NORTHWESTERN COOPERAGE & LUMBER CO.
    1. Negiigence — Owner’s Durr to Licensee.
    The owner of premises owes to a licensee the duty to warn him of any existing dangers known or discoverable in the exercise of reasonable care, and unknown to said licensee.

      2. Same — Invitee—Licensee—Directed Verdict.
    Where plaintiff’s decedent was accidentally killed while on defendant’s grounds, and there was no fact or circumstance contributing to decedent’s injury in connection with the visible obstruction to the path unknown to decedent which was known or which, on the evidence, should have been known to defendant’s agents, whether decedent was an invitee or a licensee is unimportant, and the trial judge properly directed a verdict for defendant.
    On duty of owner of land which licensees are accustomed to cross, to guard against injuries in consequence of changes in the conditions, see notes in 13 L. R. A. (N. S.) 1126, and 39 L. R. A. (N. S.) 217.
    Error to Delta; Flannigan. (Richard C.), J.
    Submitted January 20, 1920.
    (Docket No. 9.)
    Decided April 10, 1920.
    Case by Peter C. Dube, Sr., administrator of the estate of Joseph Desrochers, deceased, against the Northwestern Cooperage & Lumber Company for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Henry R. Dotsch (Judd Yelland, of counsel), for appellant.

      G. R. Empson, for appellee.
   Brooke, J.

Plaintiff’s decedent received, on the premises of defendant, injuries from which he later died. This suit was brought to recover damages growing out of the death of plaintiff’s decedent and is predicated on the alleged actionable negligence of the defendant. At the close of the plaintiff’s case, a motion was made for a directed verdict, upon several grounds. This motion was granted. Later, upon denying a motion for a new trial, the court delivered the following-opinion :

“The defendant is a corporation engaged in the manufacture of lumber and other forest products at Gladstone, Delta county. It owns an extensive mill and lumber yard which is surrounded by a board fence-eight feet high with two strands of wire running along-, the top, further extending its height about eighteen inches. It maintains, several entrances to the yard at which are placed gates and signs, warning against-trespassing on the premises. Its product is shipped out by rail and boat. Its shipments by boat are made over a dock on Little Bay de Noc, owned by the. defendant. The boats which take out in part the product of the mills, are loaded by members of the Longshoremen’s Union and not by employees of the defendant. •To reach the dock which is north of and adjacent to-the mill yard, it is necessary for the men occupied in loading boats to pass through the mill yard.
“A railroad track, which is connected with the Soo Line Railway, enters the defendant’s yard through a gate, called the ‘switch gate,’ in the fence on the south boundary of the yard. While this track is laid on a reverse curve, its general direction from the switch gate to its terminus in the yard near the dock is northwest. Also connected with the Soo Line Railway is another short spur track which enters the yard at the switch gate. Connected with the main yard track is another track which runs northerly and also terminates in the yard. It is with the main yard track, or rather with a path said to run near to and westerly of it, we are principally concerned.
“Through a gate, known as the main gate, in the fence on the south boundary of the yard and west of the switch gate, a road which connects with the streets of Gladstone, enters the yard and extending northerly, crosses the main yard track. After crossing the track, the road continues on in a northerly direction to a point, when it turns west and runs to or near the upper end of the main yard track. From a point on the graveled road, about midway between its intersection with the railway track and the main gate, another road (called the barn road, from the circumstance that it passes between two barns), extends northerly to the dock. The first of these roads is graded and grav-. eled. The second is graded but not graveled. Both are suitable for use and in daily use by pedestrians and vehicles.
“No attempt is made to state exactly the location, course and distance of these tracks and roads, or their location relative to each other. To an understanding of the question presented, that will be unnecessary. It will be sufficient to state that the roads mentioned are the ways constructed and maintained by the defendant for all persons engaged in loading or unloading boats, or otherwise having occasion to go to or from the docks; and that proceeding on either the gravel or the barn road, one is absolutely safe from any and all dangers arising in the loading or unloading of cars on, or in any other use of the main yard, or of any of the tracks mentioned, except at the point where the gravel road crosses the track and with that point we are not here concerned. It further appears that for a person residing in the east end of Gladstone where the defendant [decedent] resided, the distance to be traveled in going to or returning from the dock is materially shorter by way of the switch gate and main yard track, than by way of the main gate and from thence by the gravel or barn road.
“The defendant’s servants loaded a flat car with green hemlock plank, twenty feet long, six inches wide and two inches thick. The car was then delivered to the Soo Line for transportation and delivery at a point on the Michigan Central railway. The car was loaded in conformity with the loading rules of the Soo Line and other roads as well, but the Soo Line inspector thought- the load needed adjustment to be acceptable to the Michigan Central railway, and returned it to the defendant for such readjustment. A part of the lumber was loaded further towards one end of the car than the remainder and while the inspector found no danger of the load breaking out sideways, he thought a part of it might slip' further towards the end.
' “The main yard track, as has been said, is laid on a reverse curve. At some points on the track, the curve is more acute than, at others. The outer rail on these curves is raised somewhat higher, varying according to the degree of the curve, than the inner rail, which conforms, however, to the usual and necessary practice in railroad construction and operation.
“When the car was returned, it was spotted on a curve, the outer rail of which was 2 y% inches higher than the inner rail. As a result, one side of the car was 2% inches higher than the other. Assuming the height of the car to be four feet and of the load to be ten feet above the car, which is approximately correct, the elevation of one side of the car 2% inches above the other, brought the center of the load at the top, between eleven and twelve inches west of the center of the track and towards the path in question, which was on the west side of the car.
“Although on a load of lumber of the size, kind and quality on this car, but three stakes are required by the loading rules of the railroads, when the car was originally loaded and sent out and when it was returned, it was equipped with four stakes on each side. These stakes were set in an iron bracket or pocket on the car and at the top each stake was wired across the load to the stake on the opposite side.
“The car being returned and standing on the track, a foreman of the defendant directed two of its servants, Sullivan and Spencer, to take out the old and put in new and larger stakes and to take off the lumber and re-load so as to make the ends square from the floor of the car up.
“To receive the lumber as it was removed from the car, the defendant's servants brought up and located on the west side of the car, a wagon, which had a platform from five and one-half to six feet wide, they removed the wires which bound the stakes across the top of the load, took out the old four and installed three new stakes and proceeded to unload; Sullivan on the car removing the lumber, and Spencer on the wagon receiving it. ‘We got off part of the load/ Sullivan said, ‘maybe fifteen or twenty pieces of lumber, somewhere along there; and I was stooping down to pick up another piece. I saw the load commence to come apart and I hollered and jumped off on the opposite side of the car, and the man on the wagon jumped off and the load went over to the west, breaking all three stakes on that side of the car/
“At this time, a boat lay at the dock to take out a cargo of lumber from the defendant’s mill.
“The plaintiff’s intestate was a member of the Longshoremen’s Union and he with other members of the union was employed, as there was occasion, in loading and unloading boats which landed at Masonville, Wells, Rapid River and at Gladstone docks, including the defendant’s dock. On the day of the accident, he entered the defendant’s yard at the switch gate and walked along the west side of the main yard track to the dock, where he arranged for the loading of the boat by members of his union, and returning over the same route to notify the members of his union the boat was ready for its load, he stopped and engaged in conversation with the men or one of them, engaged in unloading the car. While he stood there on the west side of the wagon, the accident happened. He was hit by the lumber, or by one of the broken stakes, and injured so that he shortly died.
“The mills of the defendant have been in operation over fifteen years. Made no doubt by the workmen of the defendant passing back and forth about the loading and unloading of the cars and other affairs of the plant, by the railroad employees in the switching of cars and by others who walked that way, there is a well marked path commencing a short distance from the switch gate and running on the west side and within four feet of the west rail of the main yard track to the turn-off to the dock, except that opposite the foreman’s office, near which the accident happened, the path is from fifteen to seventeen feet west of the track.
“The average number of boats loaded at the defendant’s dock in each season of navigation, is not definitely fixed by the testimony. The only testimony on the subject is that of the plaintiff’s witness, Bedard, who said they had four or five boats last summer, that he believed in ‘some’ summers they have had more than ten and added there 'was occasion to be on the defendant’s grounds ‘only once in a while.’ Respecting the average number of men required in the loading of a boat, or how many hours or days were required in such loading, the testimony is silent.
“How often or in what numbers therefore does not' appear, but it does appear, definitely that as there was occasion, some of the longshoremen went to and from the dock by way of the main entrance and the gravel or barn road, and others by way of the switch gate and the path alongside the railroad track; and1 it further appears definitely that in going to and from the dock during a period of about fifteen years, the decedent, not always, but generally walked on the path and through the switch gate.
“With the exception of some of the longshoremen, it does not appear that other persons having business at the dock, or with the boats, or the employees of the boats, or any person or persons whosoever, other than the employees of the defendant and of the railroad company, and according to one witness, an occasional child carrying a lunch to its father, ever used the switch gate entrance or the path, and they, the longshoremen, did not, of course, enter the yard during the winter months, and as it may be inferred, but infrequently during the season of navigation. The testimony will support the further inference that to the extent longshoremen used the switch gate entrance and the path as a way to and from the dock, the defendant’s agents in charge of the plant on the.ground, had knowledge.
“At the close of the proofs, the defendant moved for a directed verdict in its favor on the ground that there was no evidence of the violation of any duty, the defendant owed the decedent; that the deceased had not been invited to the place of the accident, was not there on any business connected with the defendant, but for his own convenience; that he was a trespasser ; and if not he was at most a licensee to whom the defendant owed no duty other than to refrain from doing him wilful injury; and that in any event, he was guilty of contributory negligence such as would bar a recovery. The verdict was directed on the ground, so far as it was announced at the time, that there was no evidence tending to show the decedent an invitee; that giving the case the most favorable aspect the plaintiff could claim for it, his decedent was a licensee to whom the defendant owed no duty except not to wilfully injure him, of a violation of which duty there was no evidence. The case is now before the court on a motion for a new trial on the ground stated in various ways, that the court erred in directing the verdict. The question now is not whether the reason stated by the court at the time was sufficient reason for directing the verdict, but whether, on a review of the whole case, the result was or was not correct.
“From Gladstone or elsewhere, there was no road, street or alley leading to the switch gate. To enter the yard through that gate, it was necessary to cross the Soo Line yards and walk on the Soo Line track to its connection with the defendant’s track at the switch gate. Passing through the switch gate and, at least for a short distance beyond, it was the practice, if not necessary, to walk on the tracks. The tracks in the yard and the space occupied by the so-called path, was necessarily and plainly devoted to the business of loading, unloading and the switching of cars. That in the loading and unloading of cars, carrying heavy and bulky material, and in their movement about the tracks by the switch engines, accidents were likely to happen to the injury of persons in the pathway, was plainly evident to everyone. To warn an experienced longshoreman the path was a place of danger, nothing further than his observation of the uses to which the track was put was necessary.
“To accommodate the purposes of the defendant for which the track was constructed, and in which it was in constant use, it was impossible to fence the longshoremen out and it was equally impossible to set aside as a way for them the space occupied by the path. That space was in daily use by the servants of the defendant in loading and unloading and by the servants of the railway company in switching cars.
“It must have been equally evident to the longshoreman from his observation of the activities of the defendant on and in the vicinity of the track and path, and from the general surroundings that the defendant neither assented to, or acquiesced in the use of the path as a way for anyone other than its own servants and the servants of the railway in the orderly and usual conduct of its affairs. It posted generously and conspicuously warnings against trespassing. It graded, graveled, planked and maintained one road;, it graded and maintained another and much shorter road, which were known to be the ways provided by it for persons going through its. yard to the docks;' it commonly brought directly to the notice of the longshoremen that the path was not set aside as a way for him, by blocking it with its. loading wagons; and it was so blocked at the time of the accident as plainly appears by the photographs, Exhibits D and N, introduced by the plaintiff to show the location of the car and wagon and the surroundings at the time of the accident. Before the deceased reached the car, his observations must have taught him that for that occasion, at least, his license, if he had any, to proceed on the path, was withdrawn and had he then turned out to the barn road, which was nearby, he would not have been hurt.'
_ “To facilitate, no doubt, the rapid movement of engines and cars in and out of the yard, it appears to have been the practice, generally, to leave the switch gate open. That was a reasonable practice. The object of leaving the gate open must have been apparent to all persons acquainted with the business there carried on and the manner in which it was carried on. That the- switch gate was commonly left open may not be seized upon as evidence tending to show an invitation to use it, or of acquiescence in its use, as an entrance by persons on foot.
“The distance to be covered in going to or returning from the dock by way of the switch gate and path, by persons living in the east end of the town, is much shorter than by way of the main entrance and the-gravel or barn road. For that reason and that reason alone, the decedent and other longshoremen who lived, at the east end, commonly went and returned by way of the switch gate and path. Without exception, every witness who testified on the subject, said he went that way because it was shorter.
“In this case, as in Winnie v. Railway Co., 160 Mich. 334, it is impossible to conceive how the defendant could have more effectively warned — a man of mature years, with more than fifteen years’ experience-as a longshoreman, that the path in question was a. place of danger, that he was warned by his observation, of the uses to which it and the track adjoining it were put; and what is said in Clark v. Railroad Co., 113 Mich. 24 (67 Am. St. Rep. 442), may be said of this case, that there is no evidence indicating an invitation or license, unless it be found in the fact that the defendant has taken no steps to prevent the longshoremen from walking in the path.
“Plaintiff’s counsel have cited a number of cases, involving injury to children, and to adults on depot ground and in other public or gttasi-publie places. Those cases are readily distinguishable from this. The facts of this case bring it within the doctrine of Winnie v. Railway Co., supra; Clark v. Railroad Co., supra; and Risbridger v. Railroad Co., 188 Mich. 672.
“The decedent was invited or at least licensed by the defendant to pass through its yard on his way to and from the dock, but such invitation or license was limited to the ways provided by- the defendant and the decedent could not, therefore, without the risk of being held to be a trespasser, proceed outside the limits of his invitation or license. Hutchinson v. Cleveland-Cliffs Iron Co., 141 Mich. 346; Woods v. White Star Line, 160 Mich. 540 (27 L. R. A. [N. S.] 992).
“The fact that the decedent was engaged at the time in an- occupation advantageous to the defendant did not serve to enlarge his privilege. The rule which classifies as a trespasser one who goes beyond his invitation or license, extends to employees of the proprietor and to the employees of others engaged at the time in a business or occupation advantageous to the proprietor, as well as to other persons. Hutchinson v. Cleveland-Cliffs Iron Co., supra, and see Winnie v. Railway Co. and Risbridger v. Railroad Co., supra, where the persons injured were employees of the defendants and entitled as such to enter upon the premises, but not over the ways they attempted.
“The plaintiff introduced on the trial a writing whereby the existence of certain facts was stipulated and agreed by counsel for the respective parties, among them that the decedent returning from the dock for the purpose of notifying other members of his union the boat was ready for loading:
“ ‘Passed through the yard of the said defendant company and stood by the carload of lumber which had been returned as 'hereinbefore set forth, -and engaged in conversation with the men who were readjusting said load. Within a short time, not exceeding two minutes after he arrived at the car, the stakes on said ear broke near the lower end, one of which fell and struck the said Joseph Desrochers. upon the head, resulting in his death within a short time thereafter.’
“For the purpose of showing the length of time the decedent stood at the place of the accident before the lumber fell, the witnesses were interrogated. Sullivan, who was on the car, said the decedent ‘hollered up’ to him, ‘passing the time of day’ and then ‘he started to talk with the fellow on the_ wagon’ and continued standing there at least two minutes before the accident. Another witness, JBoulme, called by the plaintiff, who was working on a platform ‘back of the planer’ about seventy-five feet away from' the place of the accident, estimated the time that elapsed after the deceased passed around the end of the car and before the lumber fell, at half a minute. Spencer, who was on the wagon, for reasons not explained, was not called by either side.
“The facts are settled as well by the testimony of the witnesses as by the written stipulation of the parties, first, that the decedent stopped, second, that he engaged in conversation with the defendant’s servants or one of them, and third, that while he stood there, and not while he was walking in the path, the accident happened.
“If evidence may be found in this case, tending to show the decedent was licensed to walk in the path, it is certain no evidence will be found tending to show the deceased was licensed to make use of the path or other land beside the railway for the transaction of his business or social affairs with, the servants of the defendant. There is no evidence that at any other time the decedent made use of the premises for that purpose and there is no evidence that any other1 member of the Longshoremen’s Union, or other person or persons, made use of the premises for such purpose, or for any purpose other than to walk to and from the dock. It will be superfluous to add the defendant cannot be held to have consented to or acquiesced in, a use of its premises to which, so far as the testimony informs us, it had never been put previous to the moment of the accident. To hold the defendant to have impliedly granted the decedent a license to enter its premises and there stop, visit and transact his social or business affairs with its servants, that practice must appear to have been indulged in openly and for some time; when the practice is not shown to have been indulged the claim of an implied license to follow it is wholly without foundation.
“No doubt, cases have arisen where the license was found to be more or less elastic in scope, where its edges were not definitely marked. In such cases, the question commonly is whether the licensee was within the limits of his license. Here the entire evidence directed to the proof of a license, limited the privilege, if any was granted, to the switch gate entrance and not to spaces on either side of the path, but strictly to the path, and even more strictly, to walking on the path. Where, as in this case, the limit and scope of the alleged license is definitely fixed, the question is not how far outside the limits of his license the licensee has gone measured by feet and inches, or by hours or minutes or fractions thereof, but whether he was outside or inside those limits. If the decedent was licensed to walk in the path, the utmost of the duty towards him, the defendant owed, was to see that without reasonable notice to him, the path was not rendered more dangerous to walk in. It certainly did not owe the decedent the duty to see the lumber did not fall while he stood there visiting with its servants. Whether his pause beside the car was two minutes, one-half minute or even less, had he instead exercised the sole privilege, it is possible under the evidence to claim was his, viz., to walk in the path, and had gone on about his affairs, he would not have been injured. Assuming the decedent was licensed to walk in the path, he had the option to continue under the protection of his license or to stop and become a trespasser. Having elected to stop, his administrator should not be heard to .complain if his decedent is held to the consequence of his voluntary choice. Kinney v. Onsted, 113 Mich. 96 (38 L. R. A. 665) ; 29 Cyc. p. 456.
“The negligence of the defendant claimed on the trial as well as on this motion was: In attempting to readjust the load with the car standing in a curve, one side of which was higher than the other; and in the use of unsound stakes and insufficient stakes, wherefore the path was rendered more dangerous without notice thereof to the decedent.
“It is not claimed the track was improperly constructed; or that the lumber was not being unloaded in the usual and customary way, or was being unloaded in an improper way, but at an improper place. It will be conceded the defendant as against the decedent, assuming he was a licensee, had the right to unload and reload Its car in the usual and customary way of doing that work, and for that purpose to spot the car at any point on its track, even though the place happened to be a curve, the outside rail of which was higher than the inside. To admit the plaintiff’s contention that the place of unloading was objectionable because one rail was higher than the other would be to hold the defendant prohibited from using any part of the track for that purpose. The entire track was on a curve. It would have been difficult, it may be presumed, to have found a spot on it where one rail was not, to some extent, higher than the other. The defendant was under no obligation to depart from its usual and customary method of conducting its business for the better protection of a licensee. Nor is the installation of three instead of four stakes, or the size of the stakes, any evidence of negligence. It is uncontradicted that on a load of lumber of the size and character of the load in question but three stakes, which may be three by four or four by five inches in size, is required by the loading rules of the railroads; nor is it claimed these stakes should have been wired across the top to the stake on the opposite side, while the lumber was being unloaded; nor is the manner in which the defendant’s servants handled the lumber in his effort to unload it questioned.
“That it is considered necessary or is the custom or practice to maintain stakes on the side of the car while unloading lumber therefrom, to prevent the lumber from spreading and falling off whether the car is standing on a sharp curve or not, was not shown. If, notwithstanding the silence of the evidence on that subject, the necessity for such stakes must be' presumed, then the sole act of the defendant’s servants in connection with the readjustment of the load, which is fairly open to investigation respects their use of unsound stakes. One of the stakes was sound, another when broken showed slight dry rot and cross-grain but when whole would appear to be ‘a pretty good stake.’ The third shows dry rot at the place where it broke, which was at or near where it rested in the car bracket.
“These stakes were selected and inserted by the witness, Sullivan. He knew one was sound. He had a right to believe the second was sound because until broken, it did not show its infirmity. He knew the third showed dry rot at or near the place it entered the car bracket. He did not appreciate, however, that the stakes were necessary to prevent the load falling over, because, as he said, the load exerted no pressure on the stakes he took out, or on the stakes he put in. fie knew as every man of common sense and experience would know, that if the load, consisting of green and heavy hemlock planks, suddenly fell over against the stakes while unwired at the top, they would break and let the lumber to the ground, whether the stakes were sound or unsound. So plainly, to know the condition of the stakes rendered the path more dangerous to persons rightfully walking or standing in it, the servants of the defendant must have known and appreciated the load was likely to spread and fall. They knew the lumber was not lapped and they knew the top of the load leaned towards the path some eleven or twelve inches from the perpendicular. But one of them placed himself on the load in a place of danger if the load fell, which he would not have done, and the other continued on the wagon in a place of greater danger which he would not have done, did they know and appreciate the load was likely to fall. That it is the practice to lap lumber when loaded on railroad cars, or that this lumber was improperly loaded because not lapped, nobody said and nobody claims. On the contrary, that it is common and proper to so load appears from the fact that this car was held to be properly loaded according to the loading rules of the Soo and other railroads. If there was anything in the appearance of the load other than that the car listed 21/2 inches on one side more than the other, to charge the servants of the defendant with knowledge it was likely to spread and fall, it has not been pointed out. If the question had been submitted to them, the jury might have found, and had they done so, there was, we will say, sufficient evidence to support the finding, that because of the condition of the stakes and that the listing of the car, the defendant’s servants should have known, but they would not be warranted in finding they certainly did know and appreciate the lumber would or was likely to fall.
“It has often been held in this State that the duty which the proprietor owes to one rightfully on his premises under a license,' express or implied, is to refrain from knowingly, wilfully or wantonly injuring him. This rule, it is said, has been modified by Morrison v. Carpenter, 179 Mich. 207 (Ann. Cas. 1915D, 319). That was a case where a dangerous opening was made across the way over which the person injured had a license to travel, without notice thereof to him. The opening across the way of that case was from 16 to 17 feet long, seven or eight feet wide and from 23 to 25 feet deep. A case more plainly showing the rendition of a way more dangerous by the act of the proprietor, or of those acting through or under it, knowingly and wilfully committed, would be exceedingly difficult to find. The rule which,, to entitle him to recover, obligates a licensee, to show an injury as the result of some wilful negligence of his licensor was not departed from in that case. The doctrine of that case is summed up in these words :
“ ‘We think the rule may be stated that, after granting license to use the premises, the owner cannot lawfully, by his affirmative action, change the premises so as to make them more dangerous without notifying the licensee of that fact, or warning him of the added danger.’
“Affirmative action means action with consciousness that the thing which the proprietor is about to do, will, or at least is calculated to, render the way more dangerous.
“The rule contended for by the plaintiff not only would make the defendant liable for the act of its servants in knowingly and with full appreciation of its probable consequences to a licensee without notice thereof, placing a dangerous obstruction in a way, or digging a trench across it or placing a thing in the vicinity of the way with appreciation that it will, or may fall and injure persons rightfully thereon, but also for any act committed or omitted by the servant, which unexpectedly turns out to render the way more dangerous, but which did not appeal to his experience and judgment as at all likely to do so, provided a jury can be found to say his judgment, although in the best of good faith and good intentions exercised, was under that of the average person of ordinary intelligence and prudence; and such rule would have the further effect, practically in action in their behalf founded on any negligence to remove all distinction between licensees, invitees and persons traveling the highways. (Whether that is an end devoutly to be wished or not, we have not yet arrived at it in Michigan.)
“The'motion to direct the verdict, having been properly granted as it is thought, the motion for a new trial is denied.”

Plaintiff now reviews the case in this court under nine assignments of error which, however, may be treated together as they all go to the propriety of the court’s action in directing a verdict for defendant. Plaintiff’s counsel devote some 21 pages of their brief to a somewhat vitriolic criticism of the judge’s opinion. They say:

“We seriously challenge nearly all of the statements contained in this statement by the trial judge.”

Other assertions follow, much less temperate, and in the orderly, administration of the law, scarcely to be excused. These unusual assertions by counsel have led us to examine the testimony with more than ordinary care and to compare it with the opinion of the trial court for the purpose of determining whether the criticism of counsel for plaintiff may be said to be in any degree justified. While it is true that in stating the facts, the learned circuit judge used his own language, placing the matter testified to in narrative form, we fail to find any such, variation in substance as counsel claim exists. Verbal inaccuracies frequently appear, but had the court quoted the testimony of the witnesses in hsec verba, the conclusions to be based thereon would be identical with those logically based upon the statement as made.

It will be noted from an examination of the opinion that the learned trial judge treated plaintiffs decedent neither as a trespasser nor an invitee, but as a licensee. This holding is criticized by counsel for appellant, who assert that although plaintiff’s decedent was not an employee of defendant, his work in loading the boats with defendant’s product was indirectly for defendant’s interest and, therefore, under authority of 29 Cyc. p. 454, and cases cited, the relation of •decedent to defendant was that of invitee. The exact distinction between a licensee and an invitee cannot readily, or, perhaps, always certainly, be made; but inasmuch as this court has quite recently held (Peklenk v. Isle Royale Copper Co., 170 Mich. 299) that the owner of premises owed to a licensee the duty “to warn the tenants of any existing dangers known to them or discoverable in the exercise of reasonable care,” it would seem unimportant, in the case at bar, to accurately define the status of plaintiff’s decedent. Assuming, then, that the duty rested upon defendant to notify plaintiff’s decedent of the changed conditions in the path and that defendant had actually invited decedent to use that path in going to and from the dock, where his duty called him, let us examine the situation. Of course, the existence of the truck in the center of the path by the side of the car was, in itself, an advertisement to decedent of a changed condition. No warning of that fact to decedent was necessary, nor could it have availed him more than the casual exercise of a sense of sight. By the same means, decedent was advised of the fact that the heavily loaded car was standing upon a curve and was in the process of unloading.

What fact, then, known to defendant’s agents and unknown to plaintiff’s decedent, should the agents have communicated to him? Should they have advised him that the load was standing on the curve and that at any moment the outside tier of plank might drop over? The testimony negatives the fact that defendant’s agents believed there was any such danger, for both of them were in places of much greater danger, in case of accident, than that occupied by decedent. Should they have known that such an accident was likely to occur, and, therefore, have warned decedent? The contrary appears to be conclusively established upon the record. Sullivan, defendant’s agent, removed the stakes from the side of the load which fell and replaced them with new ones without difficulty, there being no lateral pressure upon them. We conclude, therefore, that there was no fact or circumstance contributing to decedent’s injury in connection with the visible obstruction to the path, unknown to decedent, which was known or which, on the evidence, should have been known to defendant’s agents.

This conclusion disposes of plaintiff’s case under the most favorable view that can be taken of the testimony and renders unnecessary a discussion of the interesting question raised by the fact that decedent, in the use of the path, stopped for social or other purposes from thirty seconds to two minutes to visit with defendant’s agents, instead of pursuing his way in safety.

This highly regrettable accident is one which, in our opinion, entails no legal liability upon defendant.

The judgment is affirmed.

.Moore, C. J., and Steere, Fellows, Stone, Clark) Bird, and Sharpe, JJ., concurred.


author: Beooke, J.

text:
    WRIGHT v. DWIGHT.
    1. Pleading — Action—Trover — Conversion — Plea of General Issue a Waiver of Defective Pleading.
    Where the declaration, in an action for the unlawful conversion of an automobile, was entitled “a plea of trover,” and contained a full statement of the case from plaintiff’s point of view, charging that the plaintiff was legally entitled to the possession of the car, that the defendant had wrongfully secured the possession of it, and had unlawfully converted the same to his own use, and defendant pleaded the general issue only, not questioning the propriety of the pleading, he caiinot now contend that, the action of trover having been abolished by the judicature act (3 Comp. Daws 1915, § 12350" a verdict should have been directed in his favor.
    2. Same — Amendment—Trespass on the Case.
    The trial court correctly held that the action, as shown by , the declaration, was an action of trespass on the case for conversion, and that the word “trover,” inadvertently used, might be stricken out by an amendment.
    3. Conversion — Tender of Amount Due Before Bringing Action for Conversion.

      Held, that, under the plaintiff's, theory, all the demand and tender necessary or possible, considering the conduct of the defendant in immediately driving away when plaintiff attempted to make a tender of the amount he claimed to be due, was made.
    4. Same — Title of Property — Notice.
    Where defendant, an automobile dealer, claimed that a verdict in his favor should have been directed because the undisputed evidence showed that the title to the car in question was in a certain bank with which he did business, his claim is without merit, since the general public, in dealing with automobile dealers, cannot have, or be charged with, notice of their arrangements with their bankers.
    5. Same — Trial—Instructions—Damages—Appeal and Error.
    The charge of the trial court that, if the jury should find for the plairftiff, the measure of his damages "would be the value of the car less the sum of $100 and the Government tax, held, as favorable as defendant could properly demand.
    6. New Trial — Weight oe Evidence.
    In view of the fact that the trial judge declined to set aside the verdict upon the ground that it was against the great weight of the testimony, the Supreme Court will decline to disturb the judgment, although it is possible, or even probable, that were it determining the facts, a different result might be reached.
    Error to Kent; McDonald (John S.), J.
    Submitted January 23, 1920.
    (Docket No. 32.)
    Decided April 10, 1920.
    Case by Clyde Wright against Stanley A. Dwight for the unlawful conversion of an automobile. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      .Don E. Minor (G. A. Wolf, of counsel), for appellant.

      John M. Dunham,, for appellee.
    In the spring of 1917, plaintiff purchased from defendant, an automobile dealer, an “Allen” car. This car he made some payments upon, and on July 21, 1917, he exchanged the “Allen” car with defendant for a new “Dort” car, under a written contract, by the terms, of which plaintiff agreed to pay in difference the sum of $425 at the rate of $20 per month. Plaintiff used the “Dort” car the balance of the year 1917, and perhaps a little in the early months of 1918.
    White not working regularly for defendant, plaintiff had an arrangement with defendant, by the terms of which he was to receive commissions on all cars sold by him for defendant. It is conceded by defendant that some sales were made under this arrangement but there is a dispute between the parties as to the number of them and the amount of the commissions earned by plaintiff thereon.
    Plaintiff made the monthly payments on the “Dort” car until about January, 1918. This car seems to have been in defendant’s garage most of the time, and certainly was there in February, March, and April, 1918. It is the claim of plaintiff that late in April or early in May, 1918, he made a contract with defendant by the terms of which he -surrendered to defendant the “Dort” car and received from defendant a new “Crow-Elkhart” car, plaintiff agreeing to pay, as difference, the sum of $100 and the Federal war tax on the “Crow-Elkhart” car. Defendant had then lately secured the agency for the “Crow-Elkhart” car in his vicinity.
    Plaintiff and defendant went to Elkhart, Indiana, where defendant secured two new “Crow-Elkhart” cars, which were driven by them to the city of Grand Eapids, where they arrived very late Saturday night, May 4th. The cars were left in defendant’s garage and the next morning plaintiff went to the garage, in defendant’s absence, and, against the protest of the man in charge, drove one of the new “Crow-Elkhart” cars away. The next day, plaintiff was called to Camp Custer to enter the military service under the draft act. He left the “Crow-Elkhart” car, on his departure, in a garage which he had provided for that purpose and locked the same.
    Defendant interviewed plaintiff’s wife that day and demanded the car, declaring that plaintiff had no right to it, and, indeed, practically charging plaintiff with having stolen the car. Plaintiff’s wife having refused to deliver the car t'o defendant, defendant broke open the garage in which it was stored, took possession of it and has retained possession thereof and converted it to his own use.

      It is. in evidence that plaintiff’s wife undertook to make settlement with defendant on the day following the recaption, but that defendant refused to discuss the matter, claiming that plaintiff had no interest in the “Crow-Elkhart” car. Plaintiff, himself, on the 25th of May, being in Grand Rapids on a furlough, attempted to make a tender of what he claimed to be due to defendant, but defendant refused to listen to any proposition of any kind and immediately drove away, thus making a legal tender, if one was in fact contemplated by plaintiff, futile.
    It was defendant’s claim that plaintiff, being unable to continue his payments on the “Dort” car, had surrendered the same voluntarily to defendant, and that no contract such as was claimed by plaintiff was ever made between the parties, touching the “CrowElkhart” car. This action followed, and resulted in a verdict for the plaintiff in the sum of $845.
   Beooke, J.

(after stating the facts). The first eleven assignments of error argued by appellant refer to admission or exclusion of testimony. We are of the opinion that no prejudicial error is disclosed under these assignments.

The twelfth assignment is based upon the refusal of the court to grant defendant’s motion for a directed verdict, upon the following grounds:

“1. That the action was trover and could not be maintained under the judicature act of 1915 (3 Comp. Laws 1915, § 12350).
“2. That no lawful demand had been made upon defendant for the car in question before suit was brought.
“3. That from the undisputed evidence, the title to the' car was not in plaintiff at the time suit was • brought.
“4. That at the time this action was brought, the . undisputed evidence showed the title of the car to be in the Ellis bank.
“5. That there had been no lawful tender made, nor had there been payment into court of the balance due upon the car.”

We are of the opinion that this motion was properly refused for reasons hereinafter stated.

The thirteenth assignment is based upon the refusal of the court to charge as requested. The fourteenth is based upon the refusal of the court to grant a new trial and the fifteenth to the charge as given. The last four, assignments will be discussed together.

The declaration was entitled, “a plea of trover,” and contained a full statement of the case from plaintiffs point of view, charging that the plaintiff was legally entitled to the possession of the car; that the defendant had wrongfully secured the possession of it and had unlawfully converted the same to his own use. To this, declaration, defendant interposed a plea of the general issue only.

It is now defendant’s claim that the action of-trover, being abolished by the judicature act of 1915 (3 Comp. Laws 1915, § 12350); a verdict should have been directed in his favor. The court held that the action, as shown by the declaration, was an action of trespass on the case for conversion. He further held that while the word “trover” was inadvertently used, it might be stricken out by an amendment. We are of the opinion that in so holding the learned circuit judge was right. Defendant was fully advised by the declaration of plaintiff’s claims and chose to meet them by a plea of the general issue instead of seasonably questioning the propriety of the pleading.

Touching the claim that no demand or tender of payment.was made before the commencement of the suit, we are of the opinion that, under the plaintiff’s theory, all the demand and tender necessary or possible (considering the conduct of the defendant) was made.

' The contention of the defendant that a verdict should have been directed because the undisputed evidence showed the title to the car in question to have been in the Ellis bank is, we think, without merit. Under some arrangement between defendant and the bank, defendant was permitted to have possession of the machine in question for the purposes of sale. The general public, in dealing with automobile dealers, cannot have, nor be charged with, notice of the arrangements the dealers make with their bankers.

The court instructed the jury that if they found plaintiff was entitled to recover, the measure of his damage would be the value of the “Crow-Elkhart” car, less, the sum of $100 and the Government tax, evidence as to the amount of which was rather unsatisfactory, but which was fixed by the court in the charge at the sum of $50. This, we think, was as favorable an instruction on this question as defendant could properly demand. 4 Sutherland on Damages (4th Ed.), §§ 1111, 1136.

Counsel for defendant, in his brief and in his oral argument before this court, vigorously asserts that the judgment in this case operates, and, if affirmed, will continue to operate, as a gross miscarriage of justice. It is pointed out that the trial occurred shortly after the return of the plaintiff from participation in the war and at a time when the public appreciation of and sympathy for our returned soldiers was running high, and it is alleged that this feeling finds expression in the verdict of the jury. We may say, in passing upon this question, that the contract claimed by plaintiff is, certainly, a very unusual one. It is, however, supported by substantial testimony and the jury believed his claims.- It is worthy of note, too, that the learned circuit judge declined to set aside the verdict upon the ground that it was against the great weight of the testimony. While it is possible, perhaps even probable, if this court were determining the facts, a-different result might be reached, we do not think, in the light of the view taken of the testimony by the circuit judge, we should disturb the verdict.

The judgment is affirmed.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.