author: Kuhn, C. J.

text:
    GARLAND v. MICHIGAN CENTRAL RAILROAD CO.
    Negligence — Railroad Crossings — Automobiles.
    In' an action by an. automobile owner to recover for personal injuries received in a collision with defendant’s train at a crossing, judgment affirmed by a divided court.
    Error to Bay; Collins, J.
    Submitted January 18, 1917.
    (Docket No. 32.)
    Decided June 1, 1917.
    Rehearing denied September 28, 1917.
    Case by Emma Garland against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed by a divided court.

      George M. Humphrey and Cooley & Hewitt (Humphrey, Grant & Humphrey, of counsel), for appellant.

      He Foe, Hall & Converse, for appellee.
   Kuhn, C. J.

This is an action brought by the plaintiff for injuries sustained by her on the evening of the 29th of June, 1912, while driving her automobile on Salzburg avenue, in West Bay City, over the crossing of the defendant railroad company, her automobile colliding with the Detroit-Bay City passenger train, it being claimed, as a result of the negligence of the defendant in its operation. The plaintiff at the time of the accident was a woman nearly 52 years of age who had lived in Bay City all her life. On the day in question she had driven her car, in which were four other ladies, to Saginaw to shop. In the evening, after having had their dinner in Saginaw, the party returned to Bay City. At about 9 :15 they arrived at Salzburg avenue, the main business street of one of the outlying districts of Bay City, and approached the scene of the accident. Salzburg avenue runs approximately east and west and is crossed by four sets of tracks, running approximately north, and south, at an angle of about 66 degrees 30 minutes. The two tracks at the west belong to the defendant company, and the two tracks to the east to the Grand Trunk Railway Company, and it was upon the most westerly track of all, the first track in the direction from which the plaintiff was approaching, that the train in question was running. West of the intersection of the track and the avenue, on the south side of the avenue, there is a one-story brick structure about 20 feet high known as Youngs planing mill, extending for about 250 feet west along the avenue. To the west of that and extending for something over 100 feet is a two-story building known as the sawmill, west of which is a yard used for the piling of lumber and containing a few small buildings.' Coming up to the edge of the avenue, but not crossing it, and running parallel with and right along the easterly side of the planing mill, is - a sidetrack, the center of which is 8 feet east of the building and 25 feet west of the center of the main track, or 20 feet 4 inches between the nearest rails. Upon this side track within a few feet of the avenue stood a flat car loaded with lumber. The actual width of this car is not shown, but the average width of similar cars is about 83/2 feet. Just to the north of the crossing of this track with the avenue South Chilsen street, which runs north and south, intersects Salzburg avenue. On the north side of Salzburg avenue to the west of its intersection with the track there are simply dwelling houses, and just west of the crossing on the north side stands the gatehouse from which gates to protect the crossing are operated.

It is the plaintiff’s claim that as she reached the sawmill she was driving the car slowly, and she testified as to what occurred as follows:

“A. All the way coming the women were singing,; having a good time, and I was running my car very slowly and enjoying the singing, and when we struck the pavement I said, ‘Now, girls, no more noise, because I see the mill is making a noise running nights, and here is this railroad track; I must be guarded for a train; I must look out for the train/ I_had been over that crossing before a great many times, and when I said that to the people in the car there was no more talking or singing or noise in the car after that whatever. As I came up to the crossing and before I had seen any trains I did not hear any sound of any train. I had heard no whistle or bell.
“Q. As you approached this crossing from the west is there any place after you reach Salzburg avenue that you can look toward the south and see an approaching train?
“A. No, sir.
“Q. How far away from that crossing or how far away from Salzburg avenue would you say you had to be in order to see a train to the south?
“A. Well, I never took any particular notice coming up there; I always came up there on my guard, and I never noticed. I have never noticed as to whether you can, when you get anywhere near Salzburg avenue.
“Q. In driving along on Salzburg avenue beside the mill can you look south and see a train when beside the mill?
“A. Not very far, I. know that. As I came up to the crossing that night I did look at the safety gates. They were up, and the safety gates did not lower at any time that night before the train came.
“Q. Now as you drove up to this crossing state what you did with reference to listening for a train.
“A. Why, I threw; — put my car under perfect control with both feet and hands, and was listening very intently for the noise of the train. The mill made a great deal of noise, and I would look out to view the track and look to see if the gates were coming down, and I remember distinctly to see if there was a train, and then I turned my head to look at the gates, and the gate did not come, and I looked again and I saw the train. At the time I saw the train the gates had not lowered then.
“Q. Where were you with reference to the corner of the mill, if you know, or as you looked up' toward the train what was there between you and the train, if anything?
“A. Why the mill was between me and the — the corner of the mill and the car that was up there. There was a car loaded, a loaded car there.
“Q. How long had you been familiar with that crossing; for some time?
“A. Near since the road was laid, I think. I have lived in Bay City all my life. I have gone over that crossing in the nighttime a great many times, and in the daytime, and have seen other trains pass over the crossing.
“Q. You may tell the jury whether or not in all the years that you have been familiar with that crossing you have ever seen a train approach it or pass over it f at the rate of speed at which this train was approaching this night?
“A. I never saw a train never that came that was coming at the rate of speed that was coming that I spied that moment. I had been up at that crossing in the nighttime before when this passenger train came in with Mr. Garland a great many times, both with a horse and automobile, and up to the time of this accident I had never been at that crossing either in the daytime or nighttime when a train came through when the safety gates were not lowered. I know of no rule or regulation of any kind with reference to what hours the gates were operated. I always supposed when the gates were put there there was a man to take care of those gates night and day, as long as a train went over a track. As I approached the crossing on this night I did not know the gateman had gone away.
“Q. Did you hear any sound -of the approaching train before it came in sight?
A. No, sir.
“Q. What was the first knowledge you had the train was coming?
“A. When I turned my head from looking at the gates I saw the train coming with such terrific force; that is the first I heard that the train was coming.
“Q. Just tell the jury as best you can what you did or just what happened so far as you ca remember when you looked up and saw that train.
“A. When I looked up and saw that train the first thing that came to me was the folks that were behind me, I was to save them, and I instinctively turned to get away from the train that was coming on to me, knowing that I didn’t have time to cross it. I turned to the north. After I had done that and started to make the turn I remember nothing more.
“Q. When you first saw the train and attempted to turn, state whether or not you turned your car as quickly or as far as you could.
“A. I must have, because I did not have time to think of anything only simply the thought that came at the moment, to save what I had.”

It appeared that the automobile proceeded down the track ahead of the train until it passed over the pavement and was about on the north sidewalk back of the gatehouse, when it was overtaken by the train, hit and whirled end for end off from the track to the west against a telegraph pole north of the north sidewalk on Salzburg avenue. The plaintiff sustained severe and permanent injuries, the extent of which is not questioned upon this record.

The plaintiff on the trial relied upon but two acts of negligence on the part of the defendant as grounds of liability, failure to ring the bell as required by statute, and running the train at an excessive rate of speed. At the close of the plaintiff’s proofs, and again at the close of the case, a motion for a directed verdict was made by defendant’s counsel because of the alleged contributory negligence on the part of the plaintiff, which were denied. The jury brought in a verdict for the plaintiff in the sum of $8,000. There are 57 assignments of error which relate to the admission of evidence, to the action of the court in overruling.the motions for a directed verdict, and alleged error in the charge and refusal to give certain of the defendant’s requests to charge.

The first real contention of counsel for the defendant seems to be that the great weight of the evidence supports the defendant’s claim that the bell was rung and that no jury question upon that subject is presented. It is claimed that, as both the engineer and fireman testified that the bell was ringing, this cannot be disputed by the negative testimony of plaintiff’s witnesses. It appears that in all 14 witnesses were called who were present and heard or saw the accident. Two men who were at the crossing and witnessed the accident testified that they did not hear the bell ring. Six witnesses who were present at the place of the accident and were in a position to have heard it if it had rung testified that they did not hear it. The question of negative and affirmative testimony has recently had the attention of this court in Cinadar v. Railway Co., 193 Mich. 38 (159 N. W. 312), where Justice Stone in writing the opinion reviews the cases upon the subject. We think that here, as in that case, the question of whether the signal was given was a question for the jury, who, in determining it, are to take all the facts and circumstances into consideration.

■ It is the further claim of the defendant that, as a matter of law, there is absolutely no evidence worthy of credence that the speed of the train over this crossing was so excessive as to justify an inference of negligence; that the great weight of the evidence conclusively demonstrates, that the speed over this crossing was entirely reasonable and proper, and that there is no evidence upon which negligence can be predicated. An ordinance of the city of Bay City, offered in evidence, limited the rate of speed of trains in the business section of the city to 8 miles per hour and 15 miles per hour in all other sections of the city. The plaintiff contended that the accident occurred in the business section of the city, and the court submitted that question to the jury under a charge to which no exception was taken. Five disinterested witnesses testified for the plaintiff as to the speed of the train, and the lowest estimate given by any is 25 miles per hour. Opposed to this was the testimony of three of the train crew who estimated the speed of the train as from 6 to 10 miles per hour, and one passenger who was riding in the smoking car estimated the speed as 15 miles per hour. We do not think it profitable to review the testimony of these witnesses, but we are of the opinion that there was sufficient evidence of the speed of the train to warrant the submission of the question to the jury. In fact, if the jury found that the accident happened within the business section of the city, they would have been justified in finding defendant guilty of negligence under the testimony of its own witnesses.

The next question, and the one upon which counsel for appellant seem to place the greatest reliance and which is argued at great length in the briefs, is the question of the alleged contributory negligence of the plaintiff. It is urged that we should determine that under the facts the plaintiff is guilty of contributory negligence as matter of law, and the case of Sanford v. Railway Co., 190 Mich. 390 (157 N. W. 38), is strongly relied upon. Counsel for the plaintiff contend that this situation is governed by the ruling of this court in Rouse v. Blair, 185 Mich. 632 (152 N. W. 204), where it was said:

“This court has recognized various exceptions to this general rule of requiring the traveler to stop before making the crossing, when the view is obstructed.”

Should we, as a matter of law, determine that under the circumstances of this case the plaintiff is guilty of contributory negligence? We have repeatedly stated that before such a conclusion can be arrived at all reasonable minds should reach the same conclusion, that under all the circumstances the plaintiff’s contributory negligence should bar recovery. See Beach v. City of St. Joseph, 192 Mich. 296 (158 N. W. 1045), and cases therein cited. The plaintiff approached this crossing in the nighttime, when distances are of necessity deceiving and objects indistinct. The gates which she assumed were for her protection were up, but she nevertheless looked and listened and prepared to stop her car if necessity required. As she approached the track, just how near she could not tell, this train suddenly appeared out of the darkness. Whether she then acted as a reasonably prudent person would have under the circumstances, it seems to us, is a question which it is only proper for a jury to determine. She says she thought instinctively only of the safety of those in the car, saying:

“I did not have time to think of anything only simply the thought that came at the moment, to save what I had.”

She had a right to expect of the defendant’s train that it would be operated in a lawful manner, and while she had no right to rely wholly on the performance by the defendant of its legal duty, and therefore avoid all caution for her own safety, she did have a right to assume that such duty would be performed. She stated that she had often crossed the crossing at this time of night, and that the gates had always been operated until after this train had passed. Mr. Heath, who had always lived in the vicinity, and who had been familiar with this crossing, stated that it was the practice of the watchman to wait for that train to go through before leaving the gates, and he said:

“As near as I can remember I never seen the train going through without the watchman lowering the gates.”

The engineer of the train stated that, according to his experience, the gates were usually down, and supposed that they were down on that night. The gate-man disputed this testimony, but on cross-examination he testified:

“Q. Now, it is a fact, is it, when that passenger train was late and it came 9 o’clock, you did not always leave on the minute?
“A. Oh, one or two minutes, or sometimes three. I did not confine it to two or three minutes after 9 o’clock. Sometimes I stayed longer than that to take care of the crossing, but not very often. But I have done it. I did that off and on at times during all of the years I worked there. People that went by there at different times might come up a little after 9 o’clock and still find me at the gates, and that is the way I had been doing my work all the time that I had been there. That night I had gone away before the train came in.”

The failure to lower the gates was not relied upon by the plaintiff as negligence on the part of the defendant, but we are of the opinion that it may very properly be considered as affecting the plaintiff’s contributory negligence. In Beagle v. Railroad Co., 184 Mich. 17, at page 24 (150 N. W. 345, 347), Chief Justice Brooke, in writing the majority opinion, quoted from the case of Ellis v. Railroad, 169 Mass. 600 (48 N. E. 839), where the rule is thus stated:

“While the raising of the gates justified the plaintiff in attempting to cross when he did, and while that fact, and the facts that no whistle was sounded and no bell was rung, are to be taken into consideration on the question of how much he must himself look and observe as he makes his way across, these circumstances do not excuse him from looking and listening, and taking thought for his own safety. He cannot rely wholly.upon them, and cannot recover without showing more as to his own conduct than that he so relied. * * * We are of opinion that, as matter of law, there was no evidence from which it could be found that the plaintiff himself exercised due care, and the verdict for the defendant was rightly ordered.”

Judge Taft, in a case which arose in this State, Blount v. Railway Co., 61 Fed. 375 (9 C. C. A. 526), stated the rule as follows:

“It is undoubtedly true that the failure to lower the gates modifies the otherwise imperative duty of travelers, when they reach a railway crossing, to look and listen, and. the presence of such a fact in the case generally makes the question of contributory negligence one for the jury, when otherwise the court would be required to give a peremptory instruction for the defendant.”

Judge Denison in the case of Erie R. Co. v. Schultz, 183 Fed. 673 (106 C. C. A. 23), said:

“In this court it has been distinctly recognized that the open gate is in the nature of an invitation to cross, and that the presence of such a fact in the case generally makes the question of contributory negligence one for the jury. * * * In spite of the fact that, as we think, the traveler, crossing under circumstances like those shown by this record, is not bound absolutely and at all events to look both ways on the very instant when he comes clear of the obstructions, still his failure to use his eyes and ears might, under some circumstances, be so clearly not the conduct of a prudent man that a verdict would be directed against him. But in the present case this question was rightfully left to the jury.”

See, also, Rademacher v. Railway Co., 158 Mich. 552 (123 N. W. 45); Imus v. Railroad Co., 172 Mich. 292 (137 N. W. 682).

It is the Well-recognized rule of law that the plaintiff could not rely entirely upon the stationary gates to insure her of a safe passage, but is required to make an independent observation before attempting to cross. This, when considering the evidence in the light most favorable to the plaintiff’s, case, it must be said that she did.

We are of the opinion that the decision in the Sanford Case, supra, is not necessarily controlling of the situation presented by this record. There are many facts which distinguish it from the case at bar. The accident occurred in that case in the daytime, when the plaintiff had every opportunity to judge as to the distance of the train, the speed at which it was operated, his distance from the track, and his ability to stop his machine. It involved no application of the emergency rule, and it appears that the plaintiff there approached the track without seeing the train as soon as he should and at a rate of speed that he could not stop when he did. The record does disclose in the Sanford Case that there had been a watchman at the crossing, but it did not appear that Mr. Sanford placed any reliance on the absence of the flagman. He says he discovered that there was no flagman in the flagman’s shanty, which was right in front of him, but he had no knowledge or opinion as to whether he ought to have been at the crossing at that time, never having passed over it before at that time of the day. There was nobody there to beckon him to come over the crossing. Mrs. Garland actually saw the open gates indicating a safe crossing, and it can be said, as was said in Beach v. City of St. Joseph, supra:

“It could be well contended that the gates, which the record discloses were easily seen, being open, was clearly an invitation to one approaching to cross, an assurance that the way was safe.”

We are of the opinion that under all the circumstances of this case it should not be said as a matter of law that the plaintiff was guilty of contributory negligence, but that the court ruled properly in submitting that question, under proper instructions, to the jury.

Being of the opinion that the negligence of the defendant and the question of the contributory negligence of the plaintiff were submitted to the jury under proper instructions of the court, we are constrained to hold that the judgment of the lower court should be, and is hereby, affirmed.

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

Steere, J. I think this is controlled by Sanford v. Railway, swpra, and should be reversed.

Ostrander, Brooke, and Fellows, JJ., concurred with Steere, J.


source: Caselaw Access Project

license: Public Domain

text:
    CORBY v. THOMPSON.
    1. Public Lands — Patents—Statutes—Construction.
    The act of congress of April 17, 1828 (4 U. S. S'tat. chap. 28), confirming certain land claims in the Territory of Michigan, was a direct legislative grant of such lands, the claims to which had been approved and recommended by the commissioners, and no patent was necessary to pass title, although a patent might subsequently be issued.
    2. Adverse Possession — Quieting Title — Evidence—Sufficiency,
    On a bill to quiet title evidence held, sufficient to show adverse possession by plaintiffs of the land.
    3. Same.
    Eyidence held, sufficient to show that plaintiffs’ possession of a certain portion of lands into possession of which plaintiffs’ and defendants’ ancestors had entered in common was of such character as to impart information and give notice to plaintiffs’ cotenants in common that adverse possession was intended to be asserted against defendants.

      4. Same.
    A bill to quiet title to lands, based upon adverse possession, wbicb alleged adverse possession without also alleging that such possession was exclusive was sufficient.
    Appeal from Wayne; Chester, J., presiding.
    Submitted January 12, 1917.
    (Docket No. 121.)
    Decided June 1, 1917.
    Rehearing denied September 28, 1917.
    Bill by Abbie Corby and others, against Adele Campau Thompson and others to quiet title to land. From a decree for plaintiffs, defendants, appeal.
    Affirmed.

      Arthur E. Schreiter (Munro & Powell, of counsel), for plaintiffs.

      Daniel J. Campau and Moore & Moore, for defendants.

      On presumption'of ouster of one tenant in common from long continued possession of another, see note in 10 L. R. A. (N. S.) 185.

   Kuhn, C. J.

This bill is filed by the plaintiffs to quiet the title of certain land situated in the township of Gratiot, Wayne county, Mich., known as private claim No. 11. The testimony establishes that one Joseph Pomerville, who was born in 1756 and died in 1796, at one time occupied the land which is now the subject-matter of this litigation. It appears that he left six children, and some years after his death commissioners were appointed by the Federal government to investigate and ascertain whether his heirs should be given this land. In 1828, the land was surveyed, and the commissioners reported in favor of a gift to the heirs. In the same year, the Federal congress passed an act (4 U. S. Stat. chap. 28) which contained, in part, the following provisions:

“An act to confirm certain claims to lands in the Territory of Michigan.
“Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the claims purporting to be confirmed, or recommended for confirmation, by the commissioners appointed to carry into effect the ‘Act to revive the powers of the commissioners for ascertaining and deciding on claims to lands in, and for settling the claims to lands at, Green Bay and Prairie du Chien, in the Territory of Michigan/ passed on the eleventh day of May, one thousand eight hundred and twenty, which' are contained in volumes 2, 4, and 5, be, and the same are, confirmed.
“Sec. 2. And be it further enacted, That the claims purporting to be confirmed, or recommended for confirmation, by the commissioners appointed to carry into effect ‘An act to revive and continue in force certain acts for the adjustment of land claims in the territory of Michigan/ passed the twenty-first of February, one thousand eight hundred and twenty-three, which are contained in volumes 1, 3, 6, 8, and 9, of said reports, be, and the same are hereby, confirmed.
“Sec. 8. And be it further enacted, That the Secretary of the Treasury, under the direction of the President of the United States, be, and he is hereby, authorized and required, as soon as may be, to adopt such measures as may be necessary, to give full effect to the reports of the commissioners which are enumerated in the first and second sections of this act: Provided, That this act shall not be so construed as to prejudice the rights of third persons, or to impose any obligation, on the part of the United States, to make payment, or give other lands, to any claimant who may be deprived of his possessions by operation of law; nor shall the confirmations made by this act beso construed as to extend further than to a relinquishment, by the United States, of all interest in, and to, said lands, nor to any lands occupied by the United States for military purposes.
“Sec. 4. And be it further enacted, That it shall be the duty of the register of the land office at Detroit, to issue patent certificates, in the forms usual in similar cases, to claimants whose claims are confirmed by this act, upon which certificates, if legally and properly obtained, patents shall be granted by the commissioner of the general land office.” (Italics ours.)

It appeared that no patent was, however, issued to this land until August 12, 1914 — after this suit was brought — when a patent was issued to the “heirs of Joseph Pomerville and to their heirs and assigns forever.”

One Joseph Campau, prior to 1843, purchased from different heirs of Joseph Pomerville, by different deeds, a total of an undivided eleven-fifteenth interest in the whole land. Daniel Corby, previous to that date purchased from another heir of Joseph Pomerville an undivided one-fifth interest in the whole land. The defendant heirs of Joseph Pomerville are the owners of the remaining one-fifteenth interest. It is the claim of the plaintiffs, and alleged in their bill, that in 1843 Joseph Campau and Daniel Corby had a division of their interest in private claim 11; that a line was drawn through the center of the farm; that Daniel Corby took the south half and Joseph Campau the north half; that a fence was built on the line; and that it had been the boundary line between the part of the private claim claimed by Corby and • that part claimed and occupied by Joseph Campau and his heirs from that date unto this. On August 10, 1843, Daniel Corby conveyed the south part of private claim 11 and the north part of private claim 10, by warranty deed, to his son, Michael Timothy Corby, and on October 12, 1857, Daniel Corby, as guardian of Michael T. Corby, a minor, conveyed the south 65 acres of private claim 11 to David Cuddy by guardian’s deed, in pursuance of an order of the probate court of Wayne county. David Cuddy on October 19,1857, quitclaimed the same land to Stephen Corby, who, in 1879, mortgaged it as his own, and upon his death the south half of private claim 11 was inventoried as part of his estate and was assigned to his heirs-at-law.

It is plaintiffs’ contention that since 1843 Daniel Corby and his heirs, by mesne conveyances and by inheritance, have been in the actual, visible, adverse, notorious, continuous, exclusive and hostile possession of the south half, of private claim 11, and have cultivated it, paid taxes upon it, built fences upon it, and claimed to own it, as against all others who might claim any interest therein. The defendant Adele Campau Thompson claims an undivided eleven-fifteenth interest in said private claim 11, basing her claim upon the title derived by Joseph Campau from the heirs of Joseph Pomerville. It further appears that on June 9, 1910, Mrs. Thompson conveyed to Alfred Lucking and William Robbins by warranty deed a parcel of land described by metes and bounds containing 71.78 acres:

“Land in the township of Gratiot, county of Wayne and State of Michigan, described as a piece or parcel of land lying between the north line of P. C. 11 and fences on the south line of the property,” etc.

The decree of the lower court gave the plaintiffs:

“The south 67.64 acres of private claim No. 11, being that portion of the private claim set off to Daniel Corby and occupied by him and his heirs since August 1, 1843.”

All the defendants appeal and here contend that the plaintiffs cannot increase or enlarge their undivided one-fifth interest by adverse possession because of the following reasons, as stated in counsel’s brief:

“(1) The legal title to the whole of private claim 11 was in the Federal government until after this suit was brought, and the complainants could not acquire a title against the government by adverse possession.
“(2) Daniel Corby having confessedly and knowingly entered into possession of the property as a tenant in common could not, under the facts in this case, acquire a title against his cotenants by adverse possession.
“(3) There is no evidence of adverse possession.”

Counsel urge the well-recognized rule of law that no one can acquire title to government land by adverse possession, no matter how long that possession has continued. No dispute need be had with reference to the general proposition thus stated. We have set forth, supra, parts of the act of congress of date April 17, 1828, which in our opinion by direct legislative act confirmed in the heirs of Joseph Pomerville the land which had been surveyed by the government and with reference to which the commissioners had reported favorably to a gift to these heirs. Of the power of congress to grant domain by direct legislation there can be no dispute, and, where this is done, no patent is necessary to pass the title, although a patent might be. subsequently issued by the government, for the reasons stated in Whitney v. Morrow, 112 U. S. 693 (5 Sup. Ct. 333), where that court said:

“If, by a legislative declaration, a specific tract is confirmed to any one, his title is not strengthened by a subsequent patent from the government. That instrument may be of great service to him in proving his title, if contested, and the extent of his land, especially when proof of its boundaries would otherwise rest in the uncertain recollection of witnesses. It would thus be an instrument of quiet and security to him, but it could not add to the validity and completeness of the title confirmed by the act of' congress. Langdeau v. Hanes, 21 Wall. (88 U. S.) 521; Ryan v. Carter, 93 U. S. 78; Tripp v. Spring, 5 Sawyer (U. S.) 209, 216 [Fed. Cas. No. 14,180].”

An examination of this record is convincing that there is abundant evidence of adverse possession on the part of the plaintiffs in this suit. The occupation of the land by the plaintiffs, the payment of the taxes, the transfer by warranty deeds, the leasing, inventorying and listing of this property as their own, were outward acts of exclusive ownership of an unequivocal character, overt, and notorious. David Trombly who lived on private claim 389, adjoining private claim 11, and who was 75 years of age, testified that he had lived theré since 1841 and that the Corbys occupied the south part of the claim as long as he could remember; that he was an assessing officer of the township; that the Corbys paid the taxes on the south part of the claim; and that the rest of the private claim was assessed to the Campaus. He also testified: “There was a line fence there as far back as I can remember.” The Corbys personally occupied the land until about 1875, when it was rented by them from time to time by leases to Charles and Peter Madelein, who occupied it for twenty-four years. Thomas W. Corby testified:

“There was a fence made there, but it was not all made by us. Mr. Campau’s tenant made part of it. There was about 40 rods of Mr. Campau’s portion. Mr. Daniel J. Campau, father of this gentleman, drove down in back and looked down the line, and he ordered his men to go and cut new timber and put a fence there, and they did.”

We are of the opinion that the rule that one co-tenant cannot acquire title by adverse possession against the other cotenants has no application here. Granting that the ancestors of the parties hereto entered into possession of this land as tenants in common, we think that the character of the possession of the plaintiffs was of such a nature as to impart information and to give notice to the cotenants that adverse possession and actual disseisin were intended to be asserted against them. The rule contended for, that one cotenant cannot obtain title by adverse possession against another cotenant, is not one of such general application that there can be no ouster of his co-tenant by a tenant in common. It is true, as stated by Mr. Freeman in his work on Cotenancy and Partition (section 221), that;

“From the peculiar and intimate connection existing between tenants in common of real estate, the proof of an ouster, by one or another of them, ought to be of the most satisfactory nature.”

In the early case of Campau v. Campau, 44 Mich. 31 (5 N. W. 1062), it was said:

“The actual possession of a tenant in common will not be presumed as adverse to that of his cotenants, and his constructive possession in like manner will be limited to his interest as tenant in common. The possession of one tenant in common, unless under a claim of exclusive right, will not affect the rights of the cotenants. Such exclusive claim and denial of their rights should be clear and unambiguous and brought home to the knowledge of the cotenants either by express notice, or by implication. And if the latter, all doubt growing out of the nature and character thereof should be against an ouster. The presumption should be that the tenant in possession respects and recognizes the rights of his cotenants, until the contrary clearly appearsthat the possession is rightful, and not to the exclusion of others having equal rights.”

The continuous possession of a cotenant may, however, be of such -a hostile character as to convert it into an ouster. With reference to this, Mr. Freeman says (section 242), quoting from decisions:

“If one tenant in common has been in possession a great number of years, without any accounting to his fellow commoners, this is proper evidence from which the jury may infer an adverse possession. In some instances, such possession has been regarded as raising a presumption of law which the jury are not at liberty to resist. An exclusive possession under a claim of title for 40 years, while the other cotenants resided in the same county and failed to assert any claim to their property, warrants the presumption of an actual ouster.”

We find support for this conclusion in the decisions of our own court in Fuller v. Swensherg, 106 Mich. 305 (64 N. W. 463, 58 Am. St. Rep. 481), where it was said:

“Many of the authorities hold that an entry under a conveyance which purports to convey the entirety is equivalent to an express declaration on the part of the grantee that he enters claiming the whole to himself, and is such a disseisin as sets the statute in motion in favor of the grantee. Freem. Coten. § 224; 11 Am. & Eng. Enc. Law, p. 1114. Other authorities hold that the statute does not begin to run until the co-tenant has had notice or knowledge of the ouster. 3 Shars. & B. Lead. Cas. Real Prop. p. 121. But it is not necessary that actual notice be shown or brought home to the cotenant. It is said in Packard v. Johnson, 57 Cal. 180, that plaintiff was ousted from the point of time when he became aware of such claim, or (at the very least) from the time when, as a prudent man, reasonably attentive to his own interests, he ought to have known that his cotenant asserted an exclusive right to the land. Whichever rule is adopted, the full statutory period has run against complainants, for it must be conceded that before the expiration of the 15 years a prudent man, reasonably attentive to his own interests, ought to have discovered that defendants’ grantors had asserted an exclusive right to this parcel-of land.”

See, also, Brigham v. Reau, 139 Mich. 256 (102 N. W. 845); Payment v. Murphy, 141 Mich. 626 (104 N. W. 1111). In Dubois v. Campau, 28 Mich. 304, Justice Campbell said;

“The object of statutes of limitation would be defeated if a tenant in possession could be compelled to go back indefinitely and prove anything anterior to his uniform and exclusive possession during the statutory period. The law presumes that in that time evidence will probably be lost, or at least may be so, and that a party who has been entirely inactive during that period should have all the risk and burden thrown upon himself of proving what will overcome the defendant’s right by possession.”

In the case before us, the plaintiffs have been in exclusive possession of this land for a period upwards of 70 years. In fact, the division line between the two parts of the private claim seems to have been recognized by the defendant Mrs. Thompson by the deed to Lucking and Robbins. We think all the defendants herein should be held to the rule that,' as prudent persons reasonably attentive to their interests, they ought to have discovered that the plaintiffs and their grantors had asserted an exclusive right to this part of the land.

The point' is also made that the bill does not allege exclusive possession. It did, however, allege “adverse possession,” which in order to be adverse must contain all the elements, including exclusive possession, that go to make title by adverse possession. These, as we have said, are satisfactorily proven by the facts in this case.

The decree of the lower court should be, and hereby is, affirmed, with costs to the plaintiffs.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    PEOPLE v. EATON.
    1. Criminal Law — Homicide—Evidence—Exclusion of Evidence —Harmless Ereok.
    In a criminal prosecution of a father for manslaughter of his child, alleged to have been due to a course of ill treatment and to malnutrition by defendant and his second wife, where the defendant’s mother had testified that at the time she became a member of the family, which was six or seven years before the child’s death, the child was not strong and. had a great deal of trouble with her stomach and vomited often, the exclusion of the answer to a further question as to what the child had eaten which made her sick was harmless error, where the witness was allowed to testify fully as to the child’s condition at that time.

      2. Same — Evidence—Admissibility.
    The admission of evidence of a neighbor as to hearing the cries of a child being whipped in defendant’s home was proper, where the trial court stated that the testimony would be stricken out unless it was connected with defendant, that testimony as to what the mother did was immaterial, that the charge was that the defendant by his cruel conduct was responsible for the child’s death and that it would be idle to charge him with acts that were committed by some one else.
    3. Same — Evidence—Expert Witnesses — Harmless Error.
    Where an expert medical witness for the people stated on cross-examination that the child did not have pyemia, the exclusion of the answer to a further question as to how pyemia manifested itself, although improper, was harmless error, under the circumstances of the case, it not appearing that there had been a miscarriage of justice.
    Error to recorder’s court of Detroit; Connolly, J.
    Submitted April 13, 1917.
    (Docket No. 161.)
    Decided June 1, 1917.
    Arthur B. Eaton was convicted of manslaughter and sentenced to imprisonment for not less than six years nor more than 15 years in the State prison at Jackson.
    Affirmed.

      Thomas Dalton, for appellant.

      Alexander J. Groesbeek, Attorney General, Charles H. Jasnowski, Prosecuting Attorney, and Harry B. Keidan, Assistant Prosecuting Attorney, for the people.
   Kuhn, C. J.

Respondent was convicted under an information containing three counts charging him and his second wife, Lottie C. Eaton, with the crime of manslaughter. The defendant was born in Plainwell, Mich., and prior to his removal with his family to Detroit he had resided there, at Onaway and Three Rivers. He had been married twice, and had two children, Ethel and Sylvia, by his first wife, who died in 1908. He was married the second time in August, 1912, and came to Detroit to make his home in the spring of 1913. He lived on Perry street for a time, and in January, 191.4, he moved to 895 Fisher avenue, where he resided at the time this complaint was made against him. It was the claim of the people that because of malnutrition and a course of ill-treatment the child Ethel was reduced to such a weak physical condition that in January, 1915, at the request of the Children’s Aid Society, she was sent to Harper Hospital. Dr. Robert Moehlig, the house physician of the hospital, who made a physical examination of her the day after she was admitted, testified as to her condition as follows:

“She was in an extremely emaciated condition, with the skin drawn over her bones, with no subcutaneous fat. There were about three or four abscesses on her head. Her hair was very scanty, and there was a sore on the left ear. On the inside the right eye was discolored, red. The right eyelid was black and blue. The nose was bleeding. The two central upper teeth were broken off. She had a bruise on her neck on the right side. She had an abscess on her right and left shoulder and between the two scapulas. She had subcutaneous hemorrhages from the ensiform cartilage. She had an ascess on both hips. Her left arm was practically one abscess, and the index finger of the left hand was infected; she had an abscess on her right elbow, and there were two wounds on the interior surface of the tibia about six inches long. When she would cry out with pain, the skin of the face would go in folds, because there was no subcutaneous fat. By extremely emaciated I mean that the nutrition was very poor; that she had no fat at all, practically no fat. These marks on her legs, were caused, I should judge, by a sharp instrument. They were cuts. By subcutaneous hemorrhages I mean beneath the skin. The abscesses. I have described might have been caused by lying on a hard object, like a floor or bath tub. She remained in the hospital from January the 8th until February the 28th. She was under my observation all of that time. There was a record, kept of her condition every day by the nurses. '
“Q. What was the matter with the girl?
“A. Malnutrition, starvation, that was the primary cause. There was an examination made of her blood by the Wassermann test. She was examined by myself, Dr. Haas, and Dr. Freund, and we pronounced her nontubercular.”

She died on February 28th, and an autopsy was performed by Dr. Albert French, the county physician, who testified with reference thereto, as follows:

“I determined the cause of death to be from malnutrition. Malnutrition is due to insufficient assimilation and nutrition. The symptoms of malnutrition are loss of weight, anemia, extreme .weakness and exhaustion. All these existed in this case. The appearance of the body was markedly emaciated. It was in a wasted condition with the skin pale, the skin drawn tightly over the bones, the ribs were easily seen. I would say that was from insufficient nourishment. The cheek bones were Very prominent, due to lack of fat. The eyes were sunken. The size of the organs was below normal. I found no evidence of disease other than malnutrition or insufficient feeding. The mucous membranes had practically no color. In making a post mortem examination the body is opened, and all of the organs are gone over very carefully before they are taken out and examined separately. The' post mortem agreed with the diagnosis at the hospital.”

The assignments of error relate entirely to the rulings of the court on the admission and rejection of evidence. While the witness Abigail Eaton, the mother of the defendant, was upon the stand she was interrogated concerning the condition of the child while she was living with her immediately after the death of the defendant’s first wife, and stated that at the time she was not a very strong child and had a great deal of trouble with her stomach and vomited often. The question was thereupon asked, “What was it she had eaten that would make her sick?” and the answer was excluded. We are not of the opinion that the exclusion of the answer to this question could possibly have prejudiced the respondent. It occurred six or seven years before and the witness was allowed to testify fully as to her condition at that time.

The witness Catherine A. Sidney, who was a neighbor while the defendant lived on Fisher avenue, testified that she heard the cries of a child being whipped in the Eaton home, and the testimony was objected to because the people failed to connect the defendant with the ill treatment. With reference to this testimony the court, having previously stated that he would strike it out unless it was connected with the defendant, at its conclusion said:

“Part of it ought to stand, but there are some parts of the testimony with reference to what the mother did that this witness has given here that are entirely immaterial to this issue. The claim is made that the defendant by his cruel conduct, neglect, etc., is responsible, as I understand it, for the death of the child. It would be idle to charge him with acts that were committed by somebody else.”

We therefore find no merit in this assignment of error.

Other assignments of error relate to the restriction of the cross-examination of Dr. Moehlig. He was asked whether or not in his opinion the girl had pyemia, and an attempt was made to interrogate him with reference to this disease. He was asked the question, “How does pyemia manifest itself?” and the answer was excluded. The doctor had stated that she did not have pyemia and that he had made an examination to determine that. The cross-examination of the physician, in our opinion, was improperly limited .by the trial judge, and, having offered himself as an expert witness, full scope should have been given counsel to test the accuracy of the knowledge and diagnosis of the witness, who had qualified as an expert. We cannot say, however, that under the circumstances, of this case it was made to affirmatively appear that the limiting of the cross-examination of this, witness, resulted in a miscarriage of justice and therefore refuse to reverse the case on that ground.

An examination of the record shows that on the trial of this case the rights, of the respondent were fully safeguarded by the learned trial judge. The conviction by the jury is therefore affirmed.

Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Fellows, J., did not sit.


text:
      In re WARRING’S ESTATE. McGINNIS v. McCARN.
    1. Appeal and Error — Evidence—Assignments' op Error.
    That the verdict is against the weight of the evidence will not be considered on appeal, no motion for a new trial having been made nor assignments of error properly raising the question presented.
    2. Trial — Conduct op Court — Appeal and Error.
    Upon the claim that the court showed irritation and unduly admonished counsel in the trial of a will contest so that he became confused and was unable to properly present his clients’ claims to the jury, record examined and held, not to establish prejudicial error.
    3. Wills — Instructions—Evidence.
    An instruction that, if testatrix, while in good health, contracted for a monument substantially as she had previously provided for in the will, it was an important factor in determining the validity of the will and tended to support it, was not prejudicial error as tending to attach too much Importance to this transaction.
    4. Same.
    An instruction that evidence regarding such contract was admitted solely to aid the jury in determining whether testatrix understood what she was doing or whether she was unduly influenced in mating the will, and not as bearing on the validity of the contract, was proper.
    5. Same — Gifts—Instructions.
    An instruction that the validity of a gift from testatrix in her lifetime to her daughter is not in issue in the case was proper.
    6. Appeal and Error — Court Rules — Waiver.
    Assignments of error not discussed in appellants’ brief are treated as waived under Supreme Court Rule No. 40.
    Error to Wayne; Gage, J., presiding.
    Submitted April 4, 1917.
    (Docket No. 31.)
    Decided June 1, 1917.
    Kate Warring McGinnis presented for probate the last will and testament of Annie Warring, deceased. The will was allowed in the probate court, and Georgia A. McCarn and others appealed to the circuit court. Judgment for proponent, contestants bring error.
    Affirmed.
    P. K. Owens, for appellants.

      Thomas L. Dalton (James S> Doyle, of counsel), for appellee.
   Kuhn, C. J.

This is a contest over the will of Annie Warring, deceased. She was a resident of the city of Detroit and for many years there conducted a railroad boarding house which she cared for herself. During the last seven years of her life, her daughter, Mrs. Kate McGinnis, who is named as executrix in the will, and also one of the legatees therein, assisted her in the boarding house business and, when her mother was not able to attend to the business because of her last illness, was in charge of it. Mrs. Warring had 18 children, 10 of whom were alive at her death, and 7 appear as contestants in this litigation. The will in question, made on the 14th day of February, 1913, was as follows, omitting its formal parts:

“First. I will and direct that all my just debts and funeral expenses be paid in full.
“Second. Whereas my daughter, Kate Warring Mc-Ginnis, has worked for me in my home during the past seven years, in consideration of the service rendered by her in pursuance of an express agreement with her I have paid to my said daughter and hold her receipt for the sum of fifteen hundred dollars, in full satisfaction of my indebtedness to her for said services.
“Third. I will and direct that the amount of two hundred dollars due at my death on my insurance in the Brotherhood of Locomotive Firemen, Ladies’ Auxiliary, shall be paid to my daughter, Kate Warring Mc-Ginnis, hereinafter appointed executor, to be used by her in paying for my funeral expenses.
“Fourth. I will and direct that my executor, hereinafter named, shall expend a sum not exceeding one thousand dollars to purchase and erect a monument in my lot in Holy Cross Cemetery. I also will and direct that my said executor shall have the graves in Mt. Elliott Cemetery fixed up and a small marker placed at my mother’s grave.
“Fifth. All the rest, residue and remainder of my estate of whatsoever kind and wherever situated, I give, devise and bequeath to my children, Georgiana McCarn, William Warring, Mary Cavanaugh, Kate Warring McGinnis, Walter Warring, Loretta Dodds, Edward Warring, Elizabeth Daley, Martha Burns and Josephine Hollister, their heirs and assigns forever, to be divided equally, share and share alike.
“Sixthly. I hereby appoint my daughter, Kate Warring McGinnis, of Detroit, Wayne county, Michigan, executrix of this my.last will and testament.”

The will was contested on the ground that the deceased was mentally incompetent at the time she executed the will, and that she was unduly influenced in making it by her daughter, Mrs. McGinnis. The jury, however, found against these contentions and sustained the will. The case is brought here by writ of error, and 54 assignments are set forth in the record. Considerable difficulty is had in determining what- the real questions in issue are, because of the failure of appellants’ counsel to observe in the preparation of his brief the requirements of Supreme Court Rule No. 40.

It is urged in the brief that the verdict is against the weight of the evidence, and the testimony upon the disputed questions of fact is reviewed at some length. No motion for a new trial was made, nor are there any assignments of error which properly raise this question, and therefore it is not before us.

The trial, which was strongly contested, was marked by frequent colloquy between the eourt and counsel. The court at times showed irritation at the insistence of counsel, and, while this is to be regretted, it is matter of common knowledge to the profession that lawyers, in their zeal to properly represent their clients’ interests, sometimes unduly press matters after the court has ruled and as a result are perhaps unnecessarily severely admonished by the court. It is the claim of counsel that, as a result of the court’s action, he became confused and disturbed and was unable to properly represent the contestants’ case to the- jury. We have carefully examined the matters complained of and are not impressed that the contestants’ case was prejudiced by the action of the court in admonishing counsel and making his rulings.

The court admitted evidence showing that the deceased had negotiated with agents of a firm selling monuments, and that she actually bargained and contracted for a monument such as is provided for in her will. With reference thereto, the court charged:

“I charge you that, if you find by the evidence that [when] the testatrix was in good health, she declared her intentions to dispose of a portion of her property by investing in a monument substantially in the manner it is disposed of in the will, and that she contracted and bargained for a monument as provided in the will, that is an important fact to be considered in determining the validity of this will and as tending to support it.”

Fault is found with this because it is claimed that the instruction threw the weight of the opinion of the court "against the contestants in favor of the proponent, and the case of Blackwood v. Brown, 32 Mich. 104, and cases cited therein are relied upon. While it is true that in these cases the court did criticize trial judges in instructing the jury as to the weight or importance to be attached to any particular part of the testimony, we do not feel prepared to say that in this case the instruction complained of can be said to have been prejudicial error. The jury did have a right to consider this testimony as bearing upon whether or not the will in question was the will of the deceased, and in effect the jury were so told by this instruction.

The following excerpts from the charge are also criticized:

“Now the question of the validity of the contract between this man making the contract and Mrs. Warring, that was signed by Mrs. Kate McGinnis, to be determined somewhere else and not here, if there is to be any contest over it this is not the place. The evidence was admitted here so as to aid you in determining whether this testatrix understood what she was doing at the time, or whether she was laboring under any undue influence when she made this will and entered into the provisions of the will * * *
“As to the $1,500 that has been testified to as given to Kate McGinnis, that has no place here, and in the administration of the estate, if it is to be gotten away from her, the administrator will have to sue her for it and make her pay it back.”

We think there, was no error in these instructions of the court. If Mrs. McGinnis is not entitled to the $1,500 which was paid her, as the court said, suit should be brought against her to recover it. The issue here was will or no will, which was determined by the jury against the contestants’ claim.

Other assignments of error not mentioned in the brief for appellants will be treated as waived. Supreme Court Rule No. 40; Ferguson v. Wilson, 122 Mich. 97 (80 N. W. 1006, 80 Am. St. Rep. 548); Carmer v. Hubbard, 123 Mich. 333 (82 N. W. 64); People v. Cole, 139 Mich. 312 (102 N. W. 856); Nissly v. Railway Co., 168 Mich. 678 (131 N. W. 145, 135 N. W. 268, Am. & Eng. Ann. Cas. 1913C, 719); Smith v. Construction Co., 175 Mich. 600 (141 N. W. 635); Walsh v. Railway Co., 185 Mich. 177 (151 N. W. 754). Those therein mentioned and not herein discussed we find without merit.

Being of the opinion that the issue involved was fairly presented to the jury under proper instructions, and finding no prejudicial error in the record, we affirm the judgment.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    LA FRANCE v. CULLEN.
    1. Sales — Contracts—Instructions.
    In an action of replevin to recover a piece of furniture sold under a contract providing for the retention of title in the seller until full payment of .the purchase price, where defendant received a card containing printed matter providing for her possibly securing the goods by a drawing without paying for them at the time of signing the contract, an instruction that if the jury should find the defendant held the goods also under such printed arrangement plaintiff could not recover, was proper.
    2. Contracts — Gambling Contracts — Statutes.
    An agreement between the seller and purchaser of furniture whereby the furniture might be secured by the purchaser by a drawing to be held by members of a furniture club at less than the purchase price, constitutes a gambling contract under 3 Comp. Laws, § 9931 (3 Comp. Laws 19Í5, § 15050).
    3. Same — Consideration—Partial Illegality.
    If any part of the consideration of a contract is illegal the whole consideration is void.
    Error to Bay; Sharpe, J., presiding.
    Submitted April 5, 1917.
    (Docket No. 43.)
    Decided June 1, 1917.
    Replevin in justice’s court by Peter La France against Delia Cullen. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      James Donnelly, for appellant.

      Stoddard & McMillan, for appellee.
   Kuhn, C. J.

The plaintiff brought an action of replevin, in the justice’s court to recover a buffet from the defendant. In that court he was successful in his contention, and on appeal to the circuit court, where the case was tried before a jury, a verdict was rendered for the defendant, and the property ordered returned.

The plaintiff is the proprietor of a furniture store in the city of' Bay City, Mich., and on November 14, 1912, entered into a contract with the defendant whereby the defendant purchased the buffet under a lease or installment contract for the sum of $37. Five dollars was paid down at the time of the purchase, and the buffet was delivered to the defendant’s home by employees of the plaintiff. The contract entered into between the parties was written, and stated that the transaction was a lease with the title remaining in the plaintiff until the buffet was fully paid for. At the same time the defendant was given a card upon which were to be credited the weekly payments made by her, and on the back of the card appeared the following :

“We agree to sell to holder of this contract any of the articles herein listed for $15.00 in advance at the rate of 25 cents or more weekly. As a special advantage to customer holding this contract we will place a $15.00 article for less than cost every week in each section to advertise the business, and the party who receives this $15.00 article will be given a clear receipt regardless of what amount they have paid. Recipients of advertising articles will be selected by the management to advertise the business, this method being used instead of paying out thousands of dollars for catalogues. No money can be lost during the life of this contract, as amount paid is held to holder’s credit, and can be applied on any $15.00 article. No orders are accepted on articles for less than $15.00, no money refunded on discontinued or lapsed contracts, but customers wishing at any time to pay the balance due on their contract to $15.00 in one payment will be allowed a discount of 10 per cent. If customer fails to make payment regularly, said customer forfeits benefits for time back in payments, or otherwise by special agreement with our collector. No lottery methods of any kind enter into this contract, and we do not authorize agents to make statements or arrangements, verbal or written, either to add, change, erase, infer or specify terms contrary to this contract, and contract holder agrees not to enter into arrangements with agent, contrary to contract; any such arrangements will not be recognized by us.
“As evidence that I have read and fully agree to the terms of this contract, I make my first payment.”

Some dispute arose about a damage to the buffet, which it is claimed the plaintiff agreed to repair, but the defendant continued to make payments until the sum of $33 had been paid, when she refused to pay any more, and thereupon this litigation was instituted.

The principal assignment of error and the one upon which this case turns relates to whether or not the court erred in admitting the testimony with reference to what was printed upon the card which was delivered to the defendant at the time she made the purchase of the buffet in question. It is the contention of the appellant that what was printed upon the back of the card and what was said to the defendant with reference thereto was severable from the contract upon which plaintiff now bases his right to recover, and was an entirely different and separate transaction. The learned trial judge instructed the jury with reference to this claim as follows:

“The law requires that plaintiff to maintain his suit must have made demand, and there must have been a refusal on her part to deliver the possession back to him. It is the claim of defendant that, even if you find that fact in favor of the plaintiff, if you find that the demand was made, that still the plaintiff in this case is not entitled to recover. The defendant claims that at the time this contract, as it is termed here, was entered into, that the same time another agreement was entered into, an agreement in writing printed on a card; that was delivered to Mrs. Cullen, and it is claimed by defendant that that was. made a part of this contract. The plaintiff denies that. Now it is for you to say whether or not that was true. If you find that it was true, if you find that the arrangement that Mrs. Cullen held this property under was not only that in the written contract or lease which she signed, but also in the card providing for a drawing and her getting, perhaps, this property, without fully paying for it as provided in this card, then I say to you that the plaintiff in this case cannot recover in this suit, because that is an illegal contract as provided for in our law.”

We are of the opinion that under the circumstances of this case the trial judge was correct in submitting the question to the jury in the way that he did. The defendant testified that she would not have purchased the buffet, which she claims she did not need, if it had not been for the inducement that was offered her to enter into this club arrangement through which she hoped that she “might be lucky and get a cheap piece of furniture.” She further testified:

“Mr. La France sent for me to come over that he had a club he wanted me to join; so he said, ‘You can have any piece of furniture in the store you want’; so I thought it over, and he showed me this, buffet; so I thought if' joining the club that if I would be lucky to draw the right number that would give me a cheap buffet. About the club, there was so many members in the club, I don’t just remember, and there was to be a drawing taken place each week to some of these members, so he told me where there was a drawing to take place, and I went to this place, but there wasn’t any drawing, to this place, but Mr. Bloch, that was his agent for the club, brought an envelope over to the house, and I drawed one ticket, but he kept the ticket himself. * * * I was told by Mr. La France, maybe about a week after that, that there would be a drawing. He told me every week there would be a drawing. It might have been two weeks after that, as near as I can say, when Mr. Bloch came with the ticket that I spoke of. Mr. La France said that I would have to do no more on my contract in case I drew a lucky number; the buffet would be mine. Mr. La France gave me the card the day I paid him the $5.”

It, is also clear to us that the contract or agreement on the back of the card was illegal and amounted to a gambling contract under section 14856, 5 How. Stat. [2d Ed.] (3 Comp. Laws 1915, § 15050). This statute had the consideration of this court in People v. McPhee, 139 Mich. 687 (103 N. W. 174, 69 L. R. A. 505, 5 Am. & Eng. Ann. Cas. 835), where Justice Ostrander, writing the opinion, said, with reference to a similar scheme, the purpose of which was to increase the business, although there was no chance for the members of the club to sustain a loss:

“It cannot be denied that the respondent sought to, and presumably did, increase his business by a device or scheme, the feature of which, so far as securing patrons and customers was concerned, was the chance to obtain $20 worth of clothing for some sum of money less than $20. It was calculated to, and did, appeal to_ the gambling propensity of men, was within the mischief at which the legislation is aimed, was within the terms of the statute, and, in our opinion, a disposition of property by way of lottery.”.

It is also the established law in this State that, if any part of the consideration of a contract is illegal, the whole consideration is void. See McNamara v. Gargett, 68 Mich. 454 (36 N. W. 218, 13 Am. St. Rep. 355). The jury, by their verdict, must have found that one of the inducements which led the defendant to enter into the lease was that the plaintiff explained the card arrangement and the drawing to her, and that she might perhaps get this piece of furniture for less than the contract price. The charge of the court fully covered the questions at issue and submitted them to the jury with proper instructions as to the law.

Finding no error, we affirm the judgment of the court below.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    AMERICAN STEEL & WIRE CO. v. DEDRICK.
    1. Chattel Mortgages — Bulk Sales Law — Statutes.
    A chattel mortgage on a stock of goods is not a sale, transfer or assignment in bulk within the bulk sales act (2 Comp. Laws 1915, § 6346 et seg.).

    2. Same — Bill op Sale — Intent op Parties.
    An instrument, purporting to be a bill of sale of a stock of goods, providing that in consideration of the sale and delivery of designated personal property the second party agrees to allow the first party as a credit on his indebtedness to the second party a sum equal to that realized from , a sale of-such property by such second party, less necessary expenses of taking, caring for, keeping, and selling the same, and stating that the indebtedness is in the form of a certain note which the first party agrees to pay and further providing that any excess of collateral upon the note shall be applicable upon any other note held by such second party against the first party, must be construed as a chattel mortgage, especially where the parties place such construction upon the instrument.
    3. Appeal and Error — Review.
    A garnishee defendant who fails to appeal from the judgment of the trial court finding that he has in his possession a certáin sum of money for which he is liable cannot, on appeal, complain of the judgment.

      Error to Cass; Des Voignes, J.
    Submitted April 9, 1917.
    (Docket No. 96.)
    Decided June 1, 1917.
    Garnishment proceedings by the American Steel & Wire Company against John Dedrick as garnishee defendant of Fred Dedrick. Judgment for plaintiff for less than amount claimed. Plaintiff brings error.
    Affirmed.

      Walter C. Jones, for appellant.

      Otis Huff, for appellee.
   Kuhn, C. J.

On September 15, 1915, the plaintiff recovered a judgment against the principal defendant in the sum of $396.64 damages and $30.05 costs. On January 26, 1916, plaintiff filed an affidavit of garnishment, claiming the amount of its judgment and costs, with interest, as due to it, and alleged that John Dedrick, the garnishee defendant, had taken the stock of goods of the principal defendant without complying with Act No. 223 of the Public Acts of 1905 (2 Comp. Laws 1915, §§ 6346-6348), known as the “sales in bulk law.” The garnishee defendant filed a written disclosure, claiming that he had no money or effects in his possession belonging to the principal defendant. It appears, that Fred Dedrick was in the hardware business in Marcellus some time during the year 1914, and that about that time he secured from his father, the garnishee defendant, the sum of $1,450; that he became involved later on in some financial trouble by reason of an official position which he held, and it became necessary for him to raise some more money, and his father gave him $2,600. At that time, on or about the 3d of June, 1914, the loan was secured by a bill of sale, which on the same date was recorded in the office of the township clerk. Fred Dedrick remained in possession of the stock and went on with the business until the garnishee defendant foreclosed the bill of sale in October, 1915. The stock was taken by a deputy sheriff and sold on October 12th at public sale to the garnishee defendant for the sum of $3,500.

The real question which is here presented is whether the bill of sale given by the principal, defendant to the garnishee defendant, and the transfer of the property covered by it, constituted a violation of the so-called “sales in bulk law.” The bill of sale in question contained among its provisions the following:

“In consideration of the sale and delivery of the above-described personal property, said second party hereby agrees to allow said first party, as a credit on his indebtedness to the second party, a sum equal to the amount realized from the sale of said personal property by said second party, less the necessary expenses of taking, caring for, keeping, and selling the same. It is agreed that, the indebtedness of the party of the first part to said John Dedrick is as represented by one promissory note, to wit, one note of $2,600, dated March 26,1914, due March 26,1915, upon which said note there is unpaid and owing by the party of the first part to the party of the second part, at the date hereof, the sum of $2,600, which said sum, less the net amount realized by sale of property, as herein provided, said first party hereby agrees to pay. Any excess of collateral upon this note shall be applicable to any other note or claim held by said second party against the undersigned.”

While it is inartificial in construction, a reading of this instrument is convincing that it was given as security, and was intended as a chattel mortgage, and was so construed by all the parties in interest. Possession of the stock was not taken at the time the bill of sale was given, and the principal defendant remained in possession and conducted the business for upward of 16 months after that time. Although no power of sale was given in the instrument itself, an attempt was made to foreclose it as a chattel mortgage, and the property was sold at public auction. Having been treated as a chattel mortgage, it should be now so construed. Cooper v. Brock, 41 Mich. 488 (2 N. W. 660). In Hannah & Hogg v. Richter Brewing Co., 149 Mich. 220 (112 N. W. 713, 12 L. R. A. [N. S.] 178, 119 Am. St. Rep. 674, 12 Am. & Eng. Ann. Cas. 344), this court held that the giving of a chattel mortgage is not a sale, transfer, or assignment in bulk within the meaning of the “sales in bulk law.” Being of the opinion that this bill of sale should be treated as a chattel mortgage, it follows that the giving of it did not bring the transaction within the provisions of said law.

The trial judge, upon a computation which he made of the state of account between the parties, found that the garnishee defendant had in his possession the sum of $250, that he was liable for, and a judgment was entered in favor of the plaintiff and against the garnish ee defendant in that sum. Complaint is made by counsel for the garnishee defendant as to this action of the trial court; but, he not having appealed, no relief can be given him here.

The judgment of the trial court must therefore be, and is hereby, affirmed.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    ARMSTRONG v. BACKUS.
    Husband and Wife — Agency—Liabiiaty—Question foe Jury.
    A wife is not liable for debts contracted by tbe husband for tbe repair of her automobile in tbe absence of an affirmative showing that she authorized tbe husband to contract on ber account.

    Error to Wayne; Mayne, J., presiding.
    Submitted April 5, 1917.
    (Docket No. 54.)
    Decided June 1, 1917.
    Assumpsit in justice’s court by Geprge Armstrong, doing business as the Cass Avenue Electric Garage, against Ada T. Backus for services rendered. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Albert McClatchey, for appellant.

      McPherson, Bunn & Mann (Raymond B. Cooper, of counsel), for appellee.

      On proof of husband's agency for wife by evidence of similar acts by husband, see note in 17 L. R. A. (N. S.) 223.

   Kuhn, C. J.

The plaintiff operated a garage on Cass avenue in the city of Detroit, and specialized in the storage for hire and general care of electric automobiles. The defendant, a married woman, was the owner of an electric automobile which had been presented to her by her husband as a birthday gift. This car was first brought to the garage by the defendant some time in 1915. From that time on every item of expensé for the upkeep, repair, storage, and care connected with the maintenance of said car was contracted for by the defendant’s husband, Henry N. Backus, on Ms own account. The plaintiff testified that he thought the car belonged to Mr. Backus, and charged everything he did with reference to the car to him, and rendered every bill for the two years that the' car was in his garage to him, including the bill in dispute in this case. This controversy arose over a secondhand battery furnished by the plaintiff which it is the claim of Mr. Backus proved unsatisfactory, and he refused to pay for it. The plaintiff commenced suit against Mr. Backus and garnished the Cass Avenue garage, which he had sold, for the purpose of tying up the car. When the disclosure was filed showing that the car belonged to Mrs. Backus, the plaintiff discontinued the suit against Mr. Backus and commenced the present litigation. After the plaintiff rested his case, a motion was made by the defendant’s counsel for a directed verdict for the reason that there was no evidence of any kind or nature to connect the defendant with the bill here involved. The trial judge submitted the case to the jury on the theory that they might be warranted, under all the circumstances of the case, in finding that Mr. Backus had been acting as agent for his wife in the transaction. The jury found for the plaintiff, and the sole question here presented is whether or not, under the undisputed evidence, the trial court should have directed a verdict for the defendant.

, The defendant testified that she never contracted with the plaintiff nor authorized any person to contract on her account, which testimony seems to be uncontradicted. It conclusively appears from the plaintiff’s testimony that he dealt entirely with Mr. Backus. Supposing that it was his car, he charged the account to him, and subsequently started suit against him to collect the claim. It seems to be the well-settled law in this State that the wife is not liable for bills contracted by her husband for repairs and improvements to her property, unless it is affirmatively shown that the wife authorized the husband to contract on her account. The law is thus stated in Fechheimer v. Peirce, 70 Mich. 440 (38 N. W. 325), by Justice CAMPBELL:

“We think there was nothing to "go to the jury against defendant. It is the law of this State that a married woman can make no obligation except on account of her own property, and that any one seeking to hold her must make out an affirmative case. It is also well settled that there can be no presumption of a husband’s authority to act for his wife, and that a person seeking to hold her for acts done by another must show affirmatively full authority to bind her. See Willard v. Magoon, 30 Mich. 273; Newcomb v. Andrews, 41 Mich. 518 (2 N. W. 672); Morrison v. Berry, 42 Mich. 389 (4 N. W. 731, 36 Am. Rep. 446); Holmes v. Bronson, 43 Mich. 562 (6 N. W. 89); Kenton Ins. Co. v. McClellan, 43 Mich. 564 (6 N. W. 88). * * *
“In the absence of any proof that there were any understood contract relations between her and plaintiff or Amberg, the jury had no right to draw any presumptions against her. Neither could they disregard her own uncontradicted testimony.”

See, also, Gero v. Abbott, 157 Mich. 573 (122 N. W. 307). In this case Justice Ostrander, writing the majority opinion, said:

“It seems to me that the testimony, all of which appears in the bill of exceptions, tends to establish one fact, which is that defendant’s husband purchased from the plaintiff an automobile in his own behalf upon his own credit. There was no testimony tending to prove that in purchasing the automobile he was acting as agent for his wife. The fact that he told the vendor he proposed to give the automobile to his wife as a present lias no probative force in establishing agency. The fact that at the request of the husband a statement was made on a billhead used by plaintiff, reading, ‘Mrs. S. G. Abbott * * * to Benjamin Gero, Dr.,’ etc., is not significant of agency, in view of the further fact that the bill was receipted by the plaintiff. The fact that the wife, to the vendor’s knowledge, knew of the 'transaction, is, in view of other testimony, conclusive of the other fact that plaintiff sold the machine to the husband, and not to the wife, and not to the husband for the wife.”

It is our conclusion that the triad judge erred in submitting the question to the jury under the facts of this case.

The judgment is reversed, and no new trial granted, with costs to the appellant.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    GEER v. FINN.
    1. Receivers — Pendente Lite — Accounting—Discretion oe Court.
    In a suit for an accounting, appointment of a receiver pemdente lite and to enjoin the collection by defendant of money on outstanding land contracts on portions of certain real estate purchased, subdivided and improved, where title was taken to the land in defendant’s name and the latter claimed that he was the owner of the property and entitled to all the profits arising from the purchase of the land and that a partnership and equal division of profits applied only to the construction of houses upon the land, and the trial court found that plaintiff and defendant were joint owners of all the property, land and houses, and were tenants in common of the land, there was no abuse of discretion in authorizing the appointment of a receiver pendente lite.

    2. Same.
    The expenses of a receivership should be borne by defendant where a tenant in common of land purchased for purposes of subdivision, improvement and resale is compelled to file a bill for an accounting, appointment of a receiver pendente lite and to enjoin tbe collection by tbe other tenant of installments on land contracts and appropriation of them to bis own use, and" the court finds tbe equities are witb plaintiff.
    Cross-appeals from Wayne; Collingwood, J., presiding.
    Submitted April 11, 1917.
    (Docket No. 70.)
    Decided June 1, 1917.
    Bill by Harrison Geer against Matthew Finn for the appointment of a receiver pendente lite and for ah accounting. From a decree awarding compensation to the receiver, both parties appeal.
    Modified.

      Geer, Williams, Martin & Butler, for plaintiff.

      Selling & Brand, for defendant.
    The bill of complaint in this case was filed on February 11, 1914, against the defendant Matthew Finn and other nominal defendants, and prayed for an accounting, the appointment of a receiver pendente lite, and for an injunction restraining said Matthew Finn and his agents from collecting any money on outstanding land contracts specified in the said bill of complaint. Pursuant to an order to show cause, on February 14, 1914, William H. Hockaday was, by an order of the court, appointed receiver pendente lite, and a restraining order was issued as prayed for in the bill. Mr. Hockaday filed a- bond in pursuance of the order and entered upon the duties of a receiver thereunder.
    The bill filed was one for a partition, and the dispute between the parties arose out of the purchases of certain real estate described as outlots Nos. 17 and 18 in the township of Grosse Pointe, Wayne county, Mich. It is the claim.of the plaintiff that, in buying this property and subdividing it into lots, laying out the streets, constructing the sewers and sidewalks, and building houses on some of the lots, the parties were jointly interested as equal partners. It was the contention of the defendant that Mr. Geer had loaned him one-half the initial cost of the purchase of these two outlots, and that he took the entire title thereto in his own name as security for the money thus advanced, and that the partnership and equal division of profits applied only to the construction of the houses upon the lots, and the profits arising from the purchase of the land themselves, belonged to Mr. Finn alone. The case was heard in due course of time upon its merits, and the trial judge, by his decree determined that Mr. Geer and Mr. Finn were joint owners of all the property, land, and houses, and were tenants in common of the land, each owning an undivided one-half interest, and that the improvements on the lots were made by them as tenants in common. The matter was referred by the court to a circuit court commissioner to determine the amount or amounts due. After the report of the commissioner was filed Mr. Geer filed a petition for a division and distribution of the funds in the hands of the receiver and for his removal. The receiver filed an answer, and upon the 23d of October, 1916, the circuit judge allowed the account and determined that the amount asked for by the receiver, $1,000, for his expenses as such, was a reasonable amount, and it should be borne equally by each of the parties to the action. It was from this order that appeals were taken by both parties, the plaintiff claiming that the receiver is entitled to no compensation, or, if to any, that such compensation should be paid by the defendant, Mr. Finn, and it is Mr. Finn’s contention tnat the order appointing the receiver was improvident and unnecessary, but that the amount asked for by the receiver was reasonable, and that it should be paid by the plaintiff.
   Kuhn, C. J.

(after stating the facts). We are not of the opinion that-the appointment of the receiver by the learned trial judge who made the order was an abuse of discretion. It was the defendant’s claim that he was the owner of the property and was proceeding to collect the installments on the contracts and appropriating them to his sole use. This claim was found unjustified by the trial court upon the hearing of the case upon its merits, and the contention of the plaintiff that the property in question was owned by the parties as tenants in common was fully sustained. No question is made but that the receiver took possession of the property, and performed the services that he did in good faith, acting under the order of the court. Counsel for the defendant contend that the allowance made by the court for his services was reasonable, in view of the services performed. The only question which, in our opinion, it is necessary to decide here, is to determine who, under the circumstances, should pay for the expenses of the receivership.

The rule governing has been thus stated in 34 Cyc. p. 864:

“Receivership expenses, in the absence of statute, should in all cases, as between the parties, be adjudged upon equitable principles.”

It appearing that the plaintiff herein was compelled to file his bill to obtain his rights in the matter, and the court having found that the equities were with him and that the allegations in his bill were sustained by the proofs, we are of the opinion that under such circumstances the expenses of this receivership should in equity and justice be borne by the defendant. The decree determined that the defendant was in the wrong, and the plaintiff should not now be made to bear the burden of paying the receiver’s fees, when, by the defendant’s unlawful action, it was made necessary to have a receiver appointed. We think that the order of the lower court should be modified, so as to compel the payment of the expenses of the receivership by the defendant Mr. Finn.

A decree will be entered, making the modification suggested, with costs to the plaintiff.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    PERRY v. WOODWARD BOWLING ALLEY CO.
    1. Master and Servant — Workmen’s Compensation Law — Evidence — Burden op Proop.
    In proceedings under the workmen’s compensation act for compensation for the death of an employee, the burden of furnishing evidence from which a fair inference can be drawn that the death resulted from the injury, is on claimant.

    2. Same.
    Evidence held, insufficient to sustain the burden.of proof on claimant to show that the death of deceased, a pin setter in a bowling alley, was due to the fracture of his thigh bone caused by a flying pin.
    Certiorari to Industrial Accident Board.
    Submitted April 9, 1917.
    (Docket No. 109.)
    Decided June 1, 1917.
    Mary E. Perry presented her claim against the Woodward Bowling Alley Company and another for the accidental death of her son in defendant’s employ. From an order awarding compensation, defendant and the Ocean Accident & Guarantee Company, insurer, bring certiorari.
    Reversed, and award vacated.

      Florian, Moore & Wilson, for appellants.

      Mclnerney & Bechtold, for appellee.

      On application and effect of workmen’s compensation acts generally, see comprehensive note in L. R. A. 1916A, 23.

   Kuhn, C. J.

This is certiorari to review an award for compensation made by the industrial accident board of Michigan in favor of the applicant and against the respondents. The applicant is the mother of Charles Perry, deceased, who on the '3d day of February, 1914, was employed by the Woodward Bowling Alley Company of Detroit as a pin setter. On that date he was hit upon the thigh by a flying pin, which broke the femur, or thigh bone, and was taken to Grace Hospital. He was discharged from the hospital with the bone not entirely healed, and went to Rochester, N. Y., the home of his mother. There he went into the Municipal Hospital on Labor Day, 1914, where he died, on September 13, 1914. On February 25, 1914, the deceased entered into an agreement in regard to compensation, which agreement was to the effect that the injured was to receive $5 per week. At the time of the injury he had been getting $10 per week. After his death, and on September 17, 1915, the applicant made application for adjustment of her claim to the industrial accident board, and on the 18th of October, 1915, the claim was arbitrated and an award made, granting the applicant $2.50 per week for the period of 268 2/7 weeks from September 13, 1914. Upon appeal to the full board this award was affirmed. The findings of fact of the board are as follows:

“The board finds that Chas. Perry was employed by the Woodward Bowling Alley Company on February '3,1914, and received an injury arising out of and in the course of his employment on the above date, and died as a result of said injury on September. 13, 1914. The board further finds that Mary E. Perry, mother of the deceased, was partially dependent upon Charles Perry, deceased, at the time of the accident.”

Respondents contend that there are two questions for this court to determine, to wit: Was the injured’s death the result of his accident? If so, was the amount of compensation awarded the correct one?

In the interpretation of the workmen’s compensation law we held, in McCoy v. Michigan Screw Co., 180 Mich. 454 (147 N. W. 572, L. R. A. 1916A, 323), that:

“The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose ‘out of and in the course of his employment’ rests upon the claimant.”

The applicant and two physicians, who examined claimant’s decedent at the time he was confined in the hospital at Rochester, were the only witnesses sworn in support of this claim. Dr. Wickens testified with reference to his examination, and upon being interrogated as to the cause of the death said:

“I didn’t examine him to see what was the matter with him. I just examined his leg, and from my examination I couldn’t say what was the cause of his death. I wasn’t competent from my examination to express any opinion, because I examined nothing particular, but his leg, and that I did carefully.”

Dr. Cornman, who made an X-ray picture of the fractured bone at the request of Dr. Wickens, testified as to what the X-ray picture disclosed as follows:

“Q. Doctor, was there anything in your examination, digital, ocular, or X-ray, which would lead you to believe that this man’s death was a result of the fracture which you examined?
“A. I don’t hardly think so.”

The claimant testified with reference to her last visit to the hospital and said:

“The last day I saw him the nurse said he didn’t feel like sitting up. He wanted to talk to me, and as he turned on his pillow I saw a large sheet of cotton, it alarmed me, and I said: ‘What has happened?’ And the attendant said he was out of the room, and he didn’t know Charles couldn’t use his limb, and he wanted to get up, and fell. There was a large cut on his head, about four inches. The undertaker wanted to know why it hadn’t been sewed up. That was the last day I saw him alive. The next morning he was dead.
“Q. Whereabouts on the head?
“A. Just over the eye, and running back toward and over the ear.
“Q. This happened one night, and in the morning, about 24 hours later, he was dead?
“A. Yes.”

A careful study of this record results in the conclusion that there was no evidence produced to warrant the finding of fact made by the board that the deceased died as a result of the injury which he sustained on February 3, 1914. In fact, the testimony of the physicians negatives any such inference. The record does disclose that the deceased sustained an injury, and during his disability received compensation; but it is! further incumbent upon the claimant to show, by competent evidence from which fair inference could be drawn, that his death resulted from the injury. This the claimant hasi failed to do, and compensation for the death must therefore be denied.

The industrial accident board erred in awarding the compensation, and its-determination must be, and is hereby, reversed and set aside.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ.,. concurred.


text:
    OTTO v. MANISTEE & NORTHEASTERN RAILROAD CO.
    Carriers — Delivery—Damages—Claims—Time eor Filing.
    There is a delivery of a car of potatoes so as to require the filing of a claim for damages within four months thereafter where a consignee receives the potatoes under a joint account arrangement, whereby the consignor and consignee are to divide the profits and loss, and he takes possession of them, upon their arrival in a damaged condition, and puts the unfrozen potatoes in a car ordered from the railroad company in order that they may be salable.

    Error to Leelanau; Mayne, J.
    Submitted April 3, 1917.
    (Docket No. 15.)
    Decided June 1, 1917.
    Assumpsit by August J. Otto against the Manistee & Northeastern Railroad Company for breach of a contract to deliver certain goods. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Hall, Gillard & Temple, for appellant.

      Wilson & Johnson (Farm C. Gilbert, of counsel), for appellee.

      On validity of stipulation in carriers’ contract requiring notice of loss within specified time as applied to loss due to carriers’ negligence, see note in 17 L. R. A. (N. S.) 628.

   Kuhn, C. J.

On or about January 19, 1912, the defendant, at plaintiffs request, placed for loading at his warehouse at Provemont, Mich., a refrigerator car known as “A. R. L. 4972,” and 734 bushelsi of potatoes were loaded into the car'to be shipped to Pittsburg, Pa. It is the claim of the plaintiff that when they were loaded they were of No. 1 quality and were not frosted. The proofs show that the car in question was shipped from Provemont on the defendant’s'line January>22, 1912, and arrived at Pittsburg, its destination, on January 30, 1912, and was immediately inspected by the consignee. The plaintiff testified that at the time in question it took from four to six days for a car of potatoes, to go from Provemont to Pittsburg, and that the average running time was five days. It is therefore asserted that the car should have arrived at Pittsburg on January 27th, so that a delay of three days is claimed, which is the negligence upon which the plaintiff relies. It is further claimed that on the 22d day of January the weather that! this car experienced kept getting colder and colder, until about the 30th of January the weather was 10 degrees below zero; that when the car was opened by.the consignee it was fqund that the potatoes were badly frozen on the bottom, ends, and sides of the car, causing a total loss of , 177- bushels and 39 pounds.

Plaintiff claims that the consignee, in order to make the loss, on the car ¡as, Jight as possible, caused another car to be placed next\ the car containing the potatoes, so that those not damaged might be sorted out and kept from those that had been damaged. The car in question was moved under a straight bill of lading issued by the defendant. The third paragraph of section 3 of the conditions printed upon the back of the bill of lading was as follows:

“Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery, or at the point of origin, within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made, the carrier shall not be liable.”

On February 9, 1914, the interstate commerce commission made an order allowing the filing of all loss and damage claims that accrued within two years prior to February 9, 1914, which were filed with the carrier on or before April 1, 1914. The claim in this case was filed March 17, 1914. At the close of plaintiff’s proofs counsel for the defendant moved the court to direct a verdict for the following reasons:

“First. That the defendant is not liable for the freezing of these potatoes caused by any delay in their transportation.
“Second. That the claim for damages was not filed by Mr. Otto within four months from the delivery of the potatoes as the bill of lading requires. These potatoes were delivered at Pittsburg on the 30th or 31st of January, 1912. The claim for these potatoes was not filed until March, 1914, so that no claim was filed within the time. That, of course, is undisputed.”

The trial court granted the motion,'and directed a verdict for the defendant, basing his decision entirely upon the .first ground of the motion. Whether this action of the trial court was proper is the question which is before us for review.

The trial court based his conclusion upon the decision of this court in the'case of Lardie v. Railroad Co., 192 Mich. 77 (158 N. W. 31). Counsel for the appellant seek to distinguish the situation here presented from the facts'in that case. It is, however, unnecessary for us to enter upon a discussion of this' phase of the case, for in our opinion the trial judge' might properly have directed a verdict on the second ground of the motion. It appears from the testimony of Harry Keally, taken by deposition at Pittsburg, that the car of potatoes was delivered to his firm on a joint account deal by which both parties divided; the profits or a loss, if any. He testified that he took possession of the car immediately upon its arrival, and found that the potatoes were badly frozen on( the bottom, sides, and ends of the car. There can be no question'that the plaintiff, through his representative, assumed full control of the potatoes on the 30th of January. It is true that he did not see fit to remove all the potatoes from the car, but ordered another car from the railroad company, and with reference to this he said:

“We then had the rajlroad company place an empty refrigerator car in the rear, and had several men take the good potatoes from car 4972 and transfer them into the empty car placed in the rear. We did this to put the potatoes in a salable condition.”

He had as much control of the potatoes as if he had removed them and placed them in a warehouse, instead of another car. We see no escape from the conclusion that the claim accrued from the time of the delivery of the potatoes, which was on January 30, 1912. Under the terms, of; the bill of lading, the time of the filing of claims runs from “delivery of the property.” It must be said, therefore, that the claim does not come within the terms of the order of'the interstate commerce commission. That applies to claims “accruing within two years prior to the date of this report,” which was February 9, 1914. This claim accrued January 30, 1912, which was more than the two years prior to the date of the report of the interstate commerce commission.

This conclusion makes it also unnecessary to consider the other question raised by counsel for appellee,, wherein it is claimed that the railroad company was not bound to consider the order of the interstate commerce commission, because a bill of lading provision of this character cannot be waived by the carrier.

The verdict having been properly directed, the judgment of the lower court is hereby affirmed.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.