author: Bird, J.

text:
    ANNIS v. REISER & CO.
    1. Pleading — Declaration — Amendment — Assumpsit — Tort —Fraud and Deceit.
    Where the declaration, in an action to recover the amount paid for a promissory note alleged to have been fraudulently sold to plaintiff by defendants was drawn on the theory of a rescission of the contract, but failed because no tender of the note had been made, the trial court was not in'error in allowing an amendment to the declaration changing the theory to an action for damages for the fraud and deceit, since both declarations depended upon substantially the same state of facts, and under 3 Comp. Laws 1915, § 12350, plaintiff had the right to elect his form of action.
    2. Fraud — Parties—Proof—Directed Verdict.
    Where an action for fraud and deceit was against defendants husband and wife, but there was no proof that the wife had anything to do with the transaction, or that she received any benefit therefrom, although she was in a position to know something of the matter had she given it attention, the trial court was in error in refusing to direct a verdict in her behalf.
    3. New Trial — Denial of Motion.

      Held, that the motion for a new trial was properly denied.
    Error to Wayne; Brown (William B.), J., presiding.
    Submitted October 23, 1919.
    (Docket No. 42.)
    Decided April 10, 1920.
    Rehearing denied June 17, 1920.
    Case by Levi C. Annis against Reiser & Company, Jerome Probst and Sarah E. Probst for fraud and deceit in the sale of a promissory note. Judgment for plaintiff. Defendants Probst bring error.
    Affirmed as to defendant Jerome and' reversed as to defendant Sarah E.

      Robert M. Brotonson (Frederick S. Baker, of counsel), for appellants.

      Arthur P. Hicks {Carey, Armstrong & Burgess and Weadock & McDowell, of counsel), for appellee.
   Bird, J.

On September 2, 1913, one ,H. H. Loving, of Detroit, gave his promissory note, with certain collateral, to Reiser & Company for $1,500, payable on or before 30 days from date. Reiser & Company indorsed the note and defendant Jerome Probst, stockholder and manager of the company, sold it before maturity to plaintiff for $1,375. The note was: not paid when due and this suit was. begun by plaintiff to recover what he paid for the note and interest thereon. During the trial the plaintiff discontinued against Reiser & Company, and the jury later returned a verdict against Jerome Probst and Sarah E. Probst for the full amount of the claim. Both of these defendants assign error in this court.

1.' Counsel’s first point is that the trial court was in error in refusing to direct a verdict for defendants. This is based upon the claim and argument of defendants that the declaration was first drawn on the theory of rescission of a fraudulent contract and that the case proceeded on that theory up' to the time that an objection was interposed on the trial that plaintiff had never tendered back the property which he bought, which was a necessary requisite if he desired to rescind and recover the purchase price; that thereupon plaintiff’s counsel tendered the note and collateral to defendants in open court, but they refused to receive them, and the trial court held that the tender came too late to avail in the present action; that defendants’ counsel moved to dismiss the action and plaintiff’s counsel moved to amend the declaration; that the motion to amend the declaration was granted and the case then proceeded on the theory of damages for fraud and deceit and was submitted to the jury and a recovery had upon that theory. This is urged as error upon the part of the trial court.

In the amended declaration the note and collateral agreement were set forth and it was averred that defendant Jerome Probst, acting for Reiser & Company, sold the note to plaintiff for' $1,375; that plaintiff was induced to, and did, purchase and pay for the note, relying on certain representations made by Probst as to the value of the note and collateral. The representations were set out in full and these were followed by an averment that the representations were false and that Probst knew they were false when he made them, and that both note and collateral were worthless at the time plaintiff purchased them.

To further show the fraud of Jerome Probst and to connect Sarah E. Probst with it, it was.averred that in 1911 Probst and his wife, acting with another, organized the company of Reiser & Company, with a capital stock of $10,000. That only 50 shares of the stock had been sold, 48 of which were owned by the said Sarah E. Probst, one by Jerome Probst and one by a man named Kinnison; that said company had never made an annual report to the secretary of State, and that its corporate powers were suspended at the time said note was sold. It is further averred that the object of defendants Probst in organizing the company was to conceal and cover up their personal assets, and to defraud plaintiff and people with whom they might have dealings.

Granting that the allegations of the declaration as originally drawn were on the theory of rescission^ it was afterwards amended to conform to the theory of damages. Had plaintiff persisted in his claim of right to recover under the theory of rescission and no amendment been made, undoubtedly defendants would have been entitled to a directed verdict, but as there was no rescission and the declaration was amended and proof made thereunder we see no reason for a directed verdict on this, account. The thing sought to be recovered was the same after amendment as before, and both declarations depended upon substantially the same state of fact's. It is true that the case outlined in the amended declaration, is one of tort, but after setting forth the facts which constituted the basis of his claim he elected to recover in assumpsit as he had a right to do under section 12350, 3 Comp. Laws 1915. This section expressly provides that in such actions the law will imply a promise upon the part of the defendant. We think no error was committed by the trial court in permitting the amendment and admitting the proofs.

2. Complaint is made because the court refused to direct a verdict in behalf of Sarah E. Probst, the contention ot her counsel being that by neither allegations in the declaration nor by proof has she been connected with the transaction. Plaintiff’s counsel have replied to this, contention and pointed out several reasons in support of the action of the trial court in submitting the question of her liability to the jury. We have examined these reasons with considerable care, and have also read the record bearing on this phase of the case. After doing so, we are unable to agree with plaintiff’s view. There is no proof that she knew anything about the sale of the note and collaterals to plaintiff, no proof that she had anything to do with the transaction or received any direct benefit therefrom. There is- no proof that she had any other purpose than' a good one in becoming a member of the corporation of Reiser & Company, or that she knew anything about the business transactions of the company. She testified that she left her business matters almost wholly to her husband, that she knew nothing about the business matters of the corporation, that she knew nothing about the transaction which is the subject of this suit, and that she did not even know she was being sued until she was subpoenaed by plaintiff to appear and testify at the trial. If she is to be held liable in an action of this character there should be some direct evidence connecting her with the transaction, or some facts shown from which such an inference could be reasonably drawn. It should not rest upon mere suspicion nor upon the fact that she happened to be in a position where she might have known something about the matters in controversy had she chosen to give them attention. Fraser v. Passage, 63 Mich. 551; Krementz v. Howard, 109 Mich. 466.

We agree with her* counsel that the trial court should have granted the motion to direct a verdict in her behalf.

3. We have examined the other assignments, including those based upon the refusal of the trial court to grant a new trial, but we are not impressed that they are well taken, except as herein indicated.

The judgment against Jerome Probst will be affirmed. The judgment against Sarah E. Probst will be reversed. Sarah E. Probst will recover her costs to be taxed against the plaintiff. Plaintiff will recover his costs against the defendant Jerome Probst.

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

Justice Kuhn took no part in this decision.


source: Caselaw Access Project

license: Public Domain

text:
    CLOSSER v. HANSON LAND CO.
    1. Taxation — Redemption—Notice Upon Heirs.
    Since service of notice upon the heirs to redeem land from tax sales, where the person entitled to such notice is dead, is only permitted Ay the statute (1 Comp. Laws 1915, § 4138), when there is no executor or administrator of such deceased person’s estate, in order to constitute a valid service upon the heirs, the return should show that there was no executor or administrator upon whom service could he had.
    For authorities passing on the question as to who are entitled to notice to redeem from tax sale, see comprehensive note in 44 L. R. A. (N. S.) 666.

      2. Same — Notice by Registered Letter — Return—Sufficiency.
    Where service upon nonresident heirs was attempted to be made by the sheriff by registered letter, but the testimony does not show either the return receipt of the postmaster or of the parties to whom the letter was addressed, there was no showing of a valid service under the statute (1 Comp. Laws 1915, § 4138).
    3. Same — Equity—Descriptions Assessed as One Parcel — Dividing Tax — Redemption.
    Although tax titles upon plaintiff’s lands are held void because of insufficient notice to redeem, he will nevertheless be required, by a court of equity, as a condition to relief from the cloud upon his title occasioned thereby, to pay to defendant all taxes paid by the latter inuring to plaintiff’s benefit, including those paid upon lands not owned by him, where all were assessed as one parcel.
    Appeal from Mackinac; Shepherd (Frank), J.
    Submitted October 10, 1919.
    (Docket No. 31.)
    Decided April 10, 1920.
    Bill by Dayton W..Closser against the Hanson Land Company to remove a cloud upon the title to land. From the decree rendered, both parties appeal.
    Affirmed.

      Dayton W. Closser, in pro. per.

      George L. Alexander, for defendant.
   Bird, J.

Plaintiff is the grantee in the last recorded deed in the regular chain of title of the' west one-half of the southwest one-fourth, the southeast one-fourth of the southwest one-fourth, the southwest one-fourth of the southeast one-fourth. of section 8, township 42 north, range 6 west, Mackinac county, Michigan. The bill in this cause is filed to remove a cloud, occasioned by certain tax titles originally bought by John J. Race at the tax sales of May, 1902, and May, 1903, and now held by the defendant. After the hearing the trial court decided that all the tax titles held by the defendant were void, some of them for the reason that the decrees were rendered prematurely and that the .sales were void because an insufficient amount was paid. Also that no legal notice had been served, so as to set in motion the six months’ time for redemption. But the court required the plaintiff, as a condition of relief, to pay the amount paid for the tax titles by Bace originally and all subsequent taxes upon the entire south half of section 8, with interest at 5% per annum. Both parties have appealed.

The defendant is the grantee of the tax title purchaser of these lands. The company insists that the chancellor was wrong in holding that the proofs do not show a valid service of the notice to redeem.

The lands were delinquent for the years 1902 and 1903. At this time they were owned by John Berry. John J. Race purchased the titles and assigned them to the Wisconsin Chair Company. The chair company gave the notice to redeem. When they did so John Berry was dead. The sheriff, in whose hands the notices were placed, made and filed the following return:

“I do hereby certify and return that after careful inquiry made by me, I learned that the owners of the land therein described are Sager Berry and Harry Roy Berry and, upon the best information obtainable, that Sager Berry’s postoffice address is 232 West Congress street, Chicago, Illinois, and that Harry Roy Berry’s postoffice address is 180 State street, Chicago, Illinois, and I further certify that the last grantee under the last recorded deed on said lands is John Berry and that John Berry is now dead, and that said Sager Berry and Harry Boy Berry are his sons and sole heirs of said John Berry. I further certify and return that I have made repeated efforts since June; 1, 1908, to make service upon said Sager Berry and Harry Roy Berry, at their respective postoffice addresses, by registered mail, as provided by the statute in such cases made and provided and in each instance the letter was registered and returned undelivered. I further certify and return that I have made further inquiry to ascertain if the said Sager Berry and said Harry Roy Berry had any other postoffice address, but after said careful inquiry, have been unable to find the postoffice address, except as herein stated, of said Sager Berry and Harry Roy Berry or the whereabouts of said Sager Berry afid said Harry Roy Berry.
“Dated: Sept. .11, 1908.
“Jas. G. McCliltoch, '
“Sheriff Mackinac County, Mich.
“My fees, $2.30, paid.
“Filed Sept. 30, 1908.”

The points made against the validity of the service are:

(а) That the return does not show that service was made upon Berry’s administrator, nor does it show that there was no administrator.

(б) The return does not show service upon the heirs.

a. The statutory requirement as to service of notice to redeem provides:

“* * * That if any person entitled to notice as hereinbefore provided is dead, or if his estate shall be under control of a trustee or guardian, then and in such case notice as hereinbefore provided may be served upon the executor or administrator of said deceased person, or upon his heirs, if there be no executor or administrator, or upon the trustee or guardian of any incompetent person, with like effect as if served upon the grantee, mortgagee or assignee.” 1 Comp. Laws 1915, § 4138.

It seems to be clear from this provision that in the event the grantee in the last recorded deed is dead that notice shall be'served on his administrator. If there be no administrator then it may be served on his heirs. This leads us to the conclusion that if valid service is to be made on the heirs, the return should show that there was no administrator of the estate because it is only when there is no administrator that the statute permits a valid service to be made upon the heirs.

5. The law points out with considerable exactness what shall be done in case the parties entitled to notice reside outside of the State. The material part of the statute in question reads:

“* * * Provided further, That if the person or persons entitled to such notice, or any of them, shall be non-residents of this State, if from the said record aforesaid, or from inquiry, the .sheriff can obtain the postoffice address of such person or persons or if said addresses be known to him, he shall either send to such non-resident person or persons a copy of said notice by registered letter, and return the receipt or receipts of the postmaster received for said letter or letters with his return to the county clerk’s office.” * * * 1 Comp. Laws 1915, § 4138.

The testimony does not show either tne return receipt of the postmaster, or of the party to whom it was addressed. One witness testified that on one occasion when he examined the files in the county clerk’s office he saw among them an envelope addressed to one or the other of the heirs (he could not remember which one), and across the envelope it was marked “registered;” also the word “refused.” Aside from^this bit of proof it would be just as consistent to infer from the return that nondelivery was due to the fact that they were not found as to the fact that the letter had been refused by them. If the notice in a registered form was tendered to the Berrys, or either of them, in Chicago by the postoffice authorities and refused by them, there was a way of showing it which would have been not only competent but convincing. As the testimony stood the fact of service by the postoffice authorities rested in conjecture. The finding of the chancellor that the defendant did not show a valid service of the notice to redeem is approved by this court.

Plaintiff in his complaint says that, having come into a court of equity, he is willing to do equity; but that inasmuch as the tax titles held by the defendant have been held to be null and void, he should not be required to pay anything for taxes or for tax titles on the four “forties” in the south one-half of said section 8 that he does not own. The lower court, in its decree, charged the plaintiff only for taxes on lands assessed and sold as one description, of which lands' the plaintiff does own one government description.

In Loud v. O’Brien, 167 Mich. 206, this court held that an owner of land which is subject to a tax title covering other descriptions, all assessed as one parcel, cannot compel the holder thereof to accept less than the entire tax and penalty provided by the statute, in redemption. The contentions now urged by counsel for plaintiff seem to be answered and decided by the decision of this court in McQuillan v. Ayer, 189 Mich. 566, where it is said:

“Defendant is in a court of equity asking affirmative relief against complainant. In our opinion, the maxim, ‘He who seeks equity must do equity/ is here applicable. There can be no doubt that the payment of the taxes by complainant and her grantors from the year 1887 down inured to the benefit of the estate now owned by the defendant. The fact that those taxes were paid by the complainant and her grantors, not as cotenant, but in reliance upon void tax titles, does not, in our opinion, affect the' equities. In the case of Sanborn Co. v. Alston, 153 Mich. 456, this court said:
“‘The name given to the title acquired by the tax purchaser under the provisions of the law is immaterial. Whether we call the title absolute or conditional, he has a title which it is his right to protect by payment of subsequent taxes, and, when the original owner demands a reconveyance from him, he ought in justice and equity to be compelled to pay those taxes which the purchaser has been compelled to pay, or otherwise lose his title or lien * * * It is also held that, where a party pays the taxes in good faith, claiming title, but having none, he is entitled to a reimbursement, out of the land. Kemp v. Cossart, 47 Ark. 62 (14 S. W. 465); Goodnow v. Moulton, 51 Iowa, 555 (2 N. W. 395).'”

We are therefore of the opinion that all taxes paid by the defendant and its predecessors in title, which inure to the benefit of plaintiff’s estate must be paid by the plaintiff under this holding of the court. This, it appears, was the view of the chancellor who heard the case. The decree is affirmed, without costs to either party.

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

Justice Kuhn took no part in this decision.


author: Steere, J.

text:
    WEBB ACADEMY v. CITY OF GRAND RAPIDS.
    1. Taxation — Exemptions—Educational Institutions — Use op Property.
    Exemption, from taxation under the statute (1 Comp. Laws 1915, § 4001) does not follow from the mere fact of-ownership of land by an educational institution, incorporated under 2 Comp. Laws 1915, §§ 10642-10657, but is based on, and only applies to, ownership combined with occupation for the purposes of its incorporation.
    2. Same — Evidence—Question op Law.
    Whether any or all of the real estate such institutions may own is, in contemplation of the statute, so occupied, is mainly a question of law, where the facts are substantially undisputed.
    3. Same — Limiting Amount op Land Used por Educational Purposes — Statute.
    There is no authority- in the statute authorizing the assessors to find, or put a specific limit on, the amount of real estate belonging to incorporated educational and scientific institutions entitled to exemption, provided the same is in fact and good faith solely occupied and appropriately used for the purposes for which they were incorporated.

      As to whether a school which is also used for residential purposes by proprietor and family, or other persons connected with the school “exclusively” used for school purposes, within statutory exemption, see note, 21 L. R. A. (N. S.) 171.
    On exemption of property used for a private school, see note . in 21 L. R. A. (N. S.) 164.

      4. Same — Exemptions—Educational Purposes — Occasional Use fob Other Purposes — Effect.
    An' .educational institution, exempt from taxation under the statute, would not lose its exemption because part of the building used for school purposes was incidentally used by its president and general manager as a residence, a small part of the less than two acres of ground was cultivated as a family garden, and occasionally parties have paid for storage of their automobiles in the barn upon the premises.
    5. Same — Burden of Proof.
    The burden of proof is upon the party claiming exemption.
    6. Same — Construction of Statutes — Intent.
    While statutes exempting from taxation are to be strictly construed, they should not be so construed as to defeat the legislative intent.
    7. Same.
    The rule for strict construction is not so rigidly adhered to in construing exemptions for educational purposes as those applicable to more strictly commercial or business enterprises.
    8. Same — Partial Exemptions — Illegal Assessment — Injunction.
    Where the facts are substantially undisputed, and it is conceded by defendants that plaintiff is an educational institution entitled to some exemption under the statute, the action of the assessors in spreading the tax over the whole premises as a unit and deducting therefrom the amount allowed as exemption is illegal and void, there being no authority in law for a partial exemption, and the collection of such tax was properly restrained by the court below.
    Appeal from superior court of Grand Rapids; Dun-ham (Major L.), J.
    Submitted October 14, 1919.
    (Docket No. 38.)
    Decided April 10, 1920.
    Bill by the Webb Academy against the city of Grand Rapids and others to set aside an assessment for taxes. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Shelby B. Sehurtz, for plaintiff.

      Ganson Taggart, for defendants,
   Steere, J.

Plaintiff is an educational institution located in the city of Grand Rapids, incorporated as the “Webb Academy” in 1912 under Act No. 89, Laws 1855 (2 Comp. Laws 1915, §§ 10642-10657). Its capital stock is given in its articles of association as $10,-000, its stated corporate character and purpose as an academy and institution of learning being “to prepare students for colleges and universities; to furnish regular and special courses in the academic grades; and such purposes as may be incident to academic educational institutions.”

Since the time of its incorporation the academy has owned and occupied for the purpose for which it was incorporated a property known as the “Old Fisher Homestead,” located in a residential district over a mile east of the central business portion of the city. The property lies on Eastern avenue, is less than two acres in area (substantially one and eight-tenths), is somewhat irregular in shape with a large brick building centrally located upon it and a barn at the rear. It was formerly owned and occupied by a man of means named Fisher, who owned much property in the locality and selected it as a site for his home, building upon it a brick residence of ample proportions and otherwise appropriately improving the premises for that purpose. After His death it became tenemental property and so continued until shortly before it was acquired by plaintiff for its educational purposes. It is described as an attractive spot ornamented with shrubbery, vines, a winding driveway, etc., with a number of large oaks, elms and other trees upon the grounds, or “campus.” The building has been renovated, equipped and adapted to plaintiffs work, being supplied with a general equipment for school purposes, such as blackboards, maps, globes,'tables, desks and other school furniture. It contains various adequate rooms used for office, library, recitations, etc., a session room 35x16 feet, seating 35 pupils, a hall 11 feet wide of the same length, etc.

The premises are stated to be worth upwards of $12,000. They were exempted from taxation by the assessing authorities after plaintiff acquired them until 1918, in which year an assessment appears on the roll against them, stated in defendants’ answer to be •as follows:

“Fisher’s Subdivision of part of lot 12, block 3, Fisher’s Second Addition.
“Webb Academy. — Lot 32 (except the north 280.69 feet of the east 100 feet).
“Valuation of real estate in dollars, $6,700.
“The cash value as fixed by the board of review— value of real estate in dollars, $4,000.
“The said assessment is spread over the whole premises as a unit.”

It is stated in the opinion of the trial judge that a blue print attached to defendants’ answer giving what

purports to have been done by the board of assessors shows in part as follows:

“Exemptions.
150 feet frontage on Eastern avenue, at $25 per ft. .$3,750
.47 of an acre in rear, at $1,500 per acre.......... 700
All buildings ................................... 2,550
Total exemptions ........;..................$7,000
Assessment.
108.68 ft. frontage on Eastern ave., at $25 per ft.. $2,700 15 ft. frontage on Hollister ave., at $20 per ft.... 300
2/3 of an acre in rear, at $1,500 per acre........ 1,000
Total assessment ...........................$4,000”

And also stated in the opinion that counsel for defendants said in argument—

“that this exemption was made for the reason that it was acknowledged by the defendants, that the plaintiff was engaged in conducting its school or academy in full compliance with the purpose stated in its articles of incorporation, and that the exemption of $7,000 was a just and fair exemption to plaintiff from taxation under the circumstances of the case.”

The following recitals in the decree granting permanent injunction against enforcement of such assessment are apparently undisputed and clearly established by the evidence.

“Plaintiff is an educational and scientific institution, duly incorporated * * * subject to visitation by the school authorities of the State, pursuant to law. The stock is all held by instructors in the school (with the exception of a single share); these instructors devote practically all their time to teaching in the school. No dividends have* ever been declared on the stocky
“That the work the academy has done and is doing constitutes it a general educational institution, under the laws of the State. This work is of the same character as that done in the public schools, and in preparatory academies. Plaintiff is not a business college or other like special school.
“That plaintiff owns in fee simple the following described lands and premises located in said city of Grand Rapids, to wit: Lot 32 (except the north 280.68 feet of the east 100 feet) of Fisher’s subdivision of part of lot 12, block 3, Fisher’s Second Addition to said city, according to the recorded plat thereof, with the buildings and other property thereon. The same is all embraced within one inclosure, and is a single consecutive piece, less in extent than the original platted lot.
“That such real estate was purchased in the spring of 1912, solely for school purposes, and has ever since its said purchase been so used by plaintiff (an educational and scientific institution incorporated as aforesaid under the laws of this State).”

Defendants’ contention as stated in counsel’s brief is:

“First. That exemption from taxation under the statute does not automatically and of necessity follow ownership of real estate by a school but only to such part thereof as is occupied solely for school purposes.
“Second. That the amount of land entitled to exemption is by law committed to the assessors and on appeal, to the city commission as a board of review, and their finding is binding on the court, in the absence of fraud or clear abuse of such discretion.”

The statutory provision under which exemption of these premises was recognized by defendants in previous years and is now claimed by plaintiff is, so far as applicable to this controversy, as follows:

“The following real property shall be exempt from taxation: * * *

“Fourth. Such real estate as shall be owned and occupied by library, benevolent, charitable, educational and scientific institutions incorporated under the laws of this State, with the buildings and other property thereon while occupied by them solely for the purposes for which.they were incorporated.” * * * 1 Comp. Laws 1915, § 4001.

We find no occasion to question the substance of defendants’ first proposition. Exemption does not follow from the mere fact of ownership by one of the institutions named, but is based on and only applies to ownership' combined with occupation for the purposes of its incorporation.

On the second proposition, we find nothing in the statute authorizing the assessors to find, or put a specific limit on, the amount of real estate belonging to incorporated educational and scientific institutions entitled to exemption, provided the same is in fact and good faith solely occupied and (it may be inferentially added) appropriately used for the purposes for which they were incorporated. Whether any or all of the real estate such institutions may own is in contemplation of the statute so occupied may be, and apparently is, in the instant case, mainly a question of law as applied to the substantially undisputed facts. Plaintiff’s bill asks equitable relief on the ground that the premises in question were as a matter of law under the statute and material facts clearly shown and practically undisputed, exempt from taxation, and the levy .without legal force, which gives equity jurisdiction to entertain the case and review the proceeding. A concurring opinion by Chief Justice Cooley in Albany & Boston Mining Co. v. Auditor General, 37 Mich. 391, recognizes and plainly expresses the rule upon that subject as follows:

, “I also agree in what has been many times said by the supreme court of Illinois; that equity will not interfere to restrain the collection of the public revenue for mere irregularities. Either it should appear that the property is exempt' from taxation, or that the levy is without legal power, or that the persons imposing it were unauthorized or that they have proceeded fraudulently.”

A suggestion of inconsistency or uncertainty runs through the record in the particular that the city authorities under substantially the same state of material facts exempted this property from taxation in previous years, recognized it as partly entitled to exemption in 1918 in making and reviewing the assessment, even to picking out what part of the lot should be taxed, and what should not, but finally spread the assessment over the whole premises as a unit, at a reduced valuation on the basis of a portion being exempt as shown by the excerpt from the blue print attached to defendants’ answer and defendants’ own evidence.

William Crewe, one of the assessors of the city, called by defendants, testified that the board of assessors looked over the property, saying in part as follows:

“In making the assessment we took into consideration the fact that a school was being conducted there * * * and placed the assessment at what we considered was just and equitable, allowing them for necessary building and ground for school purposes. * * *
“Q. Now in your best judgment you gave full allowance for the use of the property for school purposes, so far as you could determine?
“A. That was the judgment of the board. An appeal from our decision was taken to the city commission sitting as a board of review and they altered the assessment by making a larger allowance.
“Q. I show you here a copy of a plat attached to the answer filed in this case, and ask you whattthat represents.
“A. That represents a further reduction on the land; they allowed them 50 feet more than what the judgment of the board of assessors was. * * *
After we were given our instructions from the commission acting as a board of review, we then figured the assessment based on the allowance they ordered us to make, so that the assessment as it now stands is that fixed by the committee (or board of review.”

William E. Tallmadge, a city commissioner and member of the board of review, called by defendants, testified that they also looked at the property, saying:

“We figured in our visit there that all that would be required for school purposes would be the 150 feet wide and the depth back' to the fence, back to their line, and that is shown to be 238 feet approximately. * * *
“Q. Arriving at that estimate you say you considered that this space that is outlined here, of 150x238, of the entire tract, would be sufficient to take for school purposes? , '■
“A. Absolutely, and suggested that to the assessors with this exemption. I had nothing to do with the making of the figures that are on the bottom of this éxhibit. The total land values must have been figured out by the assessors.- I might have seen them but am not sure. We instructed the assessors to fix the valuation with the consideration that 150x238 be exempt.”

Christian Gallmeyer, another member, of the board of review called by defendant, testified among other things:

“My personal idea was that if that was a school it might probably be entitled to a little more room than the assessors had decided, and to be liberal with them we would give them 50 feet more. That is, we figured the exemption as it was and added 50 feet additional. * * * We concluded to exempt 50 feet more than the assessors had done. * * * Instead of giving 100 feet we thought we would give 150.”

Of the educational character of the Webb Academy it appears that William E. Webb, a teacher who has been engaged in educational work for approximately 25 years, is its president and general manager, and may be said to have been its founder. Previous to its incorporation he had conducted a private school in Grand Rapids for a number of years, at first in other quarters and later in the building upon the premises in question, which he leased for that purpose. On fkpril 3, 1912, he with four, others incorporated the institution and purchased the property, upon which there is yet a mortgage. The institution makes the required reports and complies with all legal obligations of an institution so incorporated, adopts as a basis the curriculum of the public schools, has a complete academic course of four years, upon conclusion of which diplomas are granted. Its certificates of credit are recognized in other institutions of learning. Its graduates are admitted upon their diplomas without ■entrance examinations to various colleges and have successfully continued their education in the University of Michigan, Albion College, Kalamazoo and Ypsilanti Normals and other institutions. It does special work in tutoring and advancing by personal attention pupils deprived of early educational advantages and prepares those capable and so desiring for entering higher institutions. The trial judge finds upon that subject and states of certain of its instructors as follows :

“It includes a course of study which is the same as high schools of this city, and in addition thereto many pupils are attending for the purpose of being coached in some particular studies; pupils who have failed in the various schools of this city and need special work, also attend this academy; some of such work is conducted in the evenings in this building. * * * His (Webb’s) wife is also one of the principal teachers therein. Miss DeGraff has been a teacher therein since the school was incorporated; Mr. George, father of Mrs. Webb, is also a lecturer and instructor therein; these four have been teachers constantly in this academy since its incorporation and some of them were teachers in this school building upon these premises before its incorporation.”

It is strenuously contended for defendants that under the undisputed facts plaintiff’s property is not occupied and used solely for the purposes of its incorporation, because Mr. and Mrs. Webb make their home in this building, her father, Mr. George, sometimes being a member of the family also, and she has at times kept help. It also is shown that a small portion of these grounds has been used for a garden and upon occasions parties have paid for storage of their automobiles in'the .barn upon the premises. This is not denied, but in that connection it is shown the barn is and has continuously been in possession of and used by plaintiff for storage purposes of the school, and some of its pupils while in attendance at school are permitted to shelter their bicycles and motorcycles there without charge; that the storage for which rental is paid has been but occasional, not exclusive, and the charge small; that none of the property has ever been leased to exclusive use by others, but on the contrary has all been constantly in possession and control of plaintiff, in general use by it, as occasion arose, for school purposes. The only help kept by Mrs. Webb was a student living and working there for her board. Plaintiff kept no janitor. Mr. Webb looked after and did that class of work, attending to the grounds, heating of the building, etc. The following from the court’s findings is fully sustained by the record:

“The incidental use of the school building as a residence as in the case at bar, is in the interest of and for the purpose of properly maintaining and conducting plaintiff’s academy for the very object and purpose for which plaintiff was incorporated. * * * The school grounds and school building, all of the recitation rooms are kept in order by Mr. and Mrs. Webb; they are there in the early morning to have the rooms heated and prepared for its students when the school shall open; they do some of their instructing of pupils, in the evening; they are there for that purpose; they are there during vacation times for the purpose of keeping and putting said building in condition for the opening of this academy at its next term.”

Defendants’ claim that the right to exemption was negatived by reason of gardening done upon the premises does not impress us as seriously formidable. There was a small family garden spot at one side of the lot utilized in the customary way, which did not interfere with the use of the grounds by the pupils during the school year, nor they with it. Inspired by the war garden drive which swept over the country, Mr. Webb was. that year moved to such patriotic efforts at gardening that the garden on plaintiff’s property was enlarged to the extent of a strip 30x60 feet; apparently devoted largely to corn, as assessor Crewe, who in an effort to ascertain the facts, visited the premises in vacation and saw no signs of a school going on there, states of what he did discover: “Inside of the Webb premises I saw no fence, nothing but a cornfield.” Whatever might be said of the accuracy of his observations, his idea that cornfields are to be found on the rear of urban lots did not come from. Kansas. Neither did Mr. Callmeyer’s idea that “if there was a school it might probably be entitled” to 50 feet more room than the assessors allowed, indicate a very thorough investigation of what use the premises were devoted to. It is in truth undisputed that those entire premises were used by the pupils for recreation games and other school purposes in the manner and as school grounds are customarily used. They were almost entirely sodded, recitations were sometimes heard under the trees in pleasant weather and were helpful in nature studies. The smaller pupils played their games amongst the trees, and the older ones their athletic games in the more open part. A tennis court, baseball and football grounds were maintained within the possibilities of the ground and a football team was developed to a point where it played match games with other schools.

We can discover no sound legal support for defendants’ partial exemption of these premises under the undisputed facts. There is no middle ground under defendants’ own contention. The buildings and a part of the specified grounds nearest to them were exempted because occupied and used by plaintiff for educational purposes, while the rest of this single lot of less than two acres was taxed, either on the theory that, though used, it was not needed for educational purposes, or the assumption that it was not in fact occupied for such purpose. It is shown beyond dispute that the Old. Fisher Homestead was long ago set apart and thereafter held and used as a distinct property with a single defined boundary, was built upon centrally, improved, ornamented, owned and occupied as an entirety either for residential or educational purposes. That plaintiff was in full possession and control of the premises, and maintained an academy there, is not questioned. The essence of defendants’ contention is that the property was nevertheless not exempt within the requirements of the statute because not solely occupied arid-used by plaintiff for educational purposes. The only contrary claimed use or occupation of possible significance relates to the buildings, which at the time of the assessment were reckoned by the assessing officers as exempt. It is now urged that exemption from taxation was destroyed by the fact that Mr. Webb lived with his family in the school building and neighbors, had on a few occasions for limited periods paid Webb $3.50 per month for permission to shelter their automobiles in the barn.

As. bearing upon the occasional rental of extra storage room in the barn, it is said in 1 Cooley on Taxation (3d Ed.), p. 350:

“If the exemption is only of property used for school purposes, it will not apply to property held merely for revenue, * * * but school property will not lose its exemption by being leased in vacation, neither will church property by a merely incidental and occasional use for schools or by occasional renting for entertainments.”

Acceptable to the often quoted utterance in the ordinance of 1787 that “Knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged,” even the anticipatory Constitution of 1835 provided: “The legislature shall encourage, by all suitable means, the promotion of intellectual, scientific and agricultural improvement,” and a constitutional mandate of like import has since been carried through all the changes of our Constitution, supporting much appropriate legislation to that end. It may be conceded that exemption of the premises in prior years is not controlling, that the burden is upon the party claiming exemption, and as a general rule statutes exempting from taxation are to be strictly construed, which “is not, however, to be extended so far as to defeat the legislative intent.” 1 Cooley on Taxation (3d Ed.), p. 362. And it has been said that the rule is not so rigidly adhered to in construing exemptions for educational purposes as those applicable to more strictly commercial or business enterprises. (Foot-notes, 21 L. R. A. [N. S.] 165).

The early case of Detroit Young Men’s Society v. Mayor, etc., of Detroit, 3 Mich. 172, is cited by defendants’ counsel as the case first dealing with this feature of the statute and sustaining its method of taxing the premises in question as a whole on a reduced basis, because but a portion of it was used for educational purposes. The then form of the statute exempted—

“The personal property of all library, benevolent, charitable and scientific institutions incorporated within this State, and such real estate belonging to such institutions as shall actually be occupied by them for the purposes for which they were incorporated.” Act No. 86, Laws 1853, § 5, subd. 8.

There plaintiff was incorporated under an act of 1836 “for the purpose of moral and intellectual improvement” and was by its incorporation authorized “to establish and superintend a library.”- It owned and occupied the upper part of the building called “The Young Men’s Hall,” and the lot on which it was located in the business section on Jefferson avenue in the city of Detroit. The lower or first story of the building was finished into two stores for rental purposes. These with the basement below them were leased and occupied by their tenants for business purposes, as were also two offices in the second story. The library and lecture hall of the society, which it actually had possession of and occupied for the purposes of its incorporation, were all above the first floor. The building covered the whole of the lot on Jefferson avenue. Recognizing its right to exemption of that part of its real estate which it actually occupied, the court held that under such conditions of divided possession' of an income-paying business property the exemption to which the owner was entitled might be worked out by spreading the legal description of the property upon the roll for taxation and excluding in the estimate of its value that portion actually occupied by plaintiff for the purposes of its incorporation. No such situation is presented here.

The nearest analogous in essentials of any decision in this jurisdiction is Detroit Home & Day School v. City of Detroit, 76 Mich. 521 (6 L. R. A. 97). That school was incorporated under the same act as the Webb Academy. It owned real estate in the city of •Detroit with buildings thereon which it occupied for the purposes for which it was incorporated, conducting thereon a seminary with such courses of study and discipline as are usual in academies. As its name indicates it maintained both a day, and home or boarding school, the fees for board and tuition being $250 a ,erm in “the home department.” The institution was maintained by “tuition and board fees.” The claim, for exemption of its realty from taxation was sustained, Justice Campbell writing the controlling opinion. Quoting the familiar passage from the ordinance cf 1787, now embodied in our Constitution, it is said:

“Exemption from taxation is the only form of encouragement that our laws provide. That they have always provided, and they have not required tuition to be free, even in our public institutions, most, if not all, of which, except in favored circumstances, derive considerable revenue from pupils. The advantage of multiplying the facilities of learning has been rightly regarded as worth to any decent community very much more than can be counted, in money. The only condition imposed on the exemption is that the land exempted shall be ‘occupied for the purposes for which they were incorporated/ * *■ *
“The language of the legislature in exempting from taxation is as much entitled to obedience as that imposing taxation.. This law has been in force for a very long time, and has never been amended, except to enlarge the scope of the exemption. Its purpose, as expressed, does not appear ambiguous, and in the continued application of it has not impressed any legislature as too liberal.”

It is urged for plaintiff this decision is conclusive in its favor.

It is pointed out for the defense that subsequent to that decision the words “educational” and “solely” have been added to the applicable provision of the exemption law, and that in Parsons Business College v. City of Kalamazoo, 166 Mich. 305 (33 L. R. A. [N. S.] 921), a corporation organized under the same act and conducting a school on its own premises with the principal occupying a portion of the building as a family residence, was held not entitled to the exemption. In that case the court as a secondary reason makes reference to the word “solely” as narrowing the scope of the exemption, as applied to an entire story of the building being used for a residence and the fact that a large portion of the valuable realty claimed exempt was vacant and held for an advance in value, but the primary controlling reason given for denying the relief asked was'that the so-called business college was not in pursuit or purpose of the class contemplated by-the exempting legislation, did not in any way measure up to the standard it had “set up and claimed for itself,” was organized and conducted for a special purpose with short courses, the longest not exceeding a year, while the act under which it was incorporated forbids granting diplomas on a course of study less than two years; and that it was shown by the record to have been incorporated under the act “to avoid taxation, and not to obtain recognition as a general educational institution.” It is also said that Detroit Home & Day School v. City of Detroit, supra, furnishes the standard by which to measure such applicants for exemption, and by comparison pointed out that the so-called college with its short special business courses wholly fails to meet thé requirements for institutions of learning contemplated by either the exemption law or the act under which it was incorporated; for which reasons the court held it “cannot be called a general educational institution,” nor be found to occupy and use its real estate for the purposes for which it was incorporated.

As to the use of the building for a residence, it was shown undisputed and found by the trial court that all persons residing upon the premises were connected with the institution in some capacity of service necessary and incidental to their school work therein. Such a situation was not found to militate against exemption in'the Detroit Home & Day School Case, and the weight of authority sustains the conclusion of the learned trial judge that the added words in the act as applied to the instant case did not destroy the exemption. Of which he says:

“That has been the holding in many respectable courts of last resort where the statutes of that State used the words ‘exclusively’ and ‘solely,’ and in States where the statute used the word ‘necessarily,’ and in other States where the statute used the word ‘exclusively:’”

Citing various sustaining authorities from other States under similar statutory wording, several of which are referred to in the foot-notes to the leading case of State, ex rel. Spillers, v. Johnston, 21 L. R. A. (N. S.) 171 (214 Mo. 656, 113 S. W. 1083), where it is said upon this subject:

“In accordance with State, ex rel. Spillers, v. Johnston, it has been almost uniformly held that the statutory exemption from taxation of property used exclusively for school or educational purposes is not destroyed by the fact that the proprietors, teachers, or other persons connected with the school reside in the building, when such residence therein is merely incidental to the use of the building as a school, and is not made the primary object of the persons interested.”

In the Johnston Case the word “exclusively” is used in the exempting act, as in various other cited cases. “Exclusive” and “sole” are recognized by lexicographers as synonymous. Century Dictionary.-

In Bishop, etc., of St. John’s Cathedral v. County Treasurer, 29 Colo. 143 (68 Pac. 272), exemption was claimed and sustained for an Episcopal school building and site (consisting of over seven lots in a single inclosure) known as Matthews* Hall. The bishop of the diocese was the chief instructor and resided in the building with his family, his wife assisting in looking after the school. It was a day school and the attendance small. The students lived elsewhere and attended there only for recitations and lectures. The statute of that State exempted from taxation “lots, with the buildings thereon, if said buildings are used solely and exclusively * * * for schools,” etc. The court there said in part:

“The words ‘solely’ and ‘exclusively’ employed in the provisions of the law under consideration are words of limitation which in their ordinary sense strictly limit the subjects to which they refer, but their purport and meaning in this instance must be ascertained from the intent of the people and the legislature in exempting from taxation property used for educational purposes. In providing for these exemptions, the object was to foster educational institutions .by relieving their property, within prescribed limits, from the burden of taxation. This being the end to be attained, the meaning of the law must be ascertained by a construction within its spirit, purpose and policy not opposed to its letter. In brief — a construction consonant with the spirit which prompted the adoption of the provisions in question, and which will give them full effect. * * * The fundamental object of the law was to exempt property used for school purposes from taxation. To carry out this design, the uses permissible must necessarily embrace all which are proper and appropriate to effect the objects of the institution claiming the benefits of the exemption. (Citing numerous decisions.)
“So that a use incident to the main purpose for which the property is held is not one which falls within the prohibitions contemplated by the law. Tested by these considerations, the occupation of the premises by the bishop and his family does not render the property subject to taxation. He is there as an instructor; a school cannot be conducted without teachers and the mere fact that the bishop resides on the premises with his family is but an incident to the main purpose which requires his presence.”

Among other cases cited is Yale University v. Town of New Haven, 71 Conn. 316 (42 Atl. 87, 43 L. R. A. 490), an exhaustive and carefully considered case, dealing thoroughly with the subject, historically and otherwise, it being said in conclusion of the exemption act under consideration:

“This statute was intended to serve a great public use in pursuance of a most beneficial public policy, and the construction to be given such a statute requires that the intent shall not be defeated either by clear evasion or undue restriction.”

We note that the learned trial judge who heard this case made a studious and thorough review of the questions involved with examination and citation of many authorities from various jurisdictions relating to the subject of exemptions. We find no occasion to disturb the conclusion which he reached.

The decree is affirmed, with costs to plaintiff.

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

Justice Kuhn took no part in this decision.


author: Stbere, J.

text:
    VINCENT v. CITY OF DETROIT.
    Negligence — Personal Injuries — Defective Highway^ — Notice— Contributory Negligence.
    In an action against the city of Detroit and the street railway company for personal injuries received by plaintiff tripping and' falling while attempting to cross a. public street while defendants were engaged in repairing the street car track thereon, where it is undisputed that at the time of the accident it was a bright clear day, and that plaintiff had in mind the danger of what she was doing, she was guilty of contributory negligence precluding recovery.
    Error to Wayne; Codd (George P.), J.
    Submitted October 22, 1919.
    (Docket No. 99.)
    Decided April 10, 1920.
    Case by Catherine Vincent against the city of Detroit and the Detroit United Railway for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed.

      Guy A. Miller, for appellant.

      Thomas P. Penniman (Clarence E. Wilcox, corporation counsel, of counsel), for appellee city.

      Corliss, Leete & Moody (William E. Tarsney, of counsel), for appellee railway.
   Stbere, J.

On November 3, 1916, plaintiff fell and sustained serious injuries to her right foot and ankle, while attempting to cross State street on the west side of Woodward avenue in the city of Detroit, where repairs of a street car track were then in progress and the paving torn up for that purpose. Imputing her accident and resulting injuries to the negligence of defendants in putting and leaving the street at that point in an unsafe condition for public travel without proper warning or barriers, she brought this action to recover damages for. the injuries so sustained. From a directed verdict and judgment for defendants the case has been removed to this court on numerous assignments of error directed to rulings of the court upon the admissibility of testimony, refusal to give plaintiff’s requests to charge and the charge as given in directing a verdict for defendants, all centering in substance to whether there was testimony in the case to carry the questions of defendants’ negligence and her freedom from negligence to the jury.

Much of the evidence is undisputed. Woodward avenue extends north and south centrally through the city of Detroit, while State street extending east anjd west crosses it in the down town business portion of the city. Bach street has a double street car line upon it. Their intersection is a business location where travel and traffic are congested by passing pedestrians, motor vehicles and street cars on both thoroughfares, particularly in what are called “rush hours,” one or more traffic officers being customarily stationed there to control and direct.

That the work in progress upon the streets at the time of the accident was necessary is not disputed. By the franchise agreement between the municipality and company, when it became necessary to make such repairs the excavating and preparation for laying the tracks was done by the city while the repair and replacing of the tracks themselves was done by the street railway company. When this accident occurred the work had been in progress some time, extending from the east curb, on Woodward avenue westerly along State street. The city had taken up the old north track and excavated a trench in the pavement where it was removed from, of sufficient depth for an adequate foundation, then filled it with concrete to within 14 inches of the level of-the street, leaving a depression or trench of that depth with a level concrete bottom and about 7 feet wide on which to relay the track. In this work the concrete usually set in from 7 to 11 days, after which the tracks could be put in. It was customary in such work for the city to place planks over the crossings and driveways where the tracks were so torn up to “take care of” or accommodate travel. The usual course was followed at this crossing and it had been in that condition for about 10 days before the accident and until about 7 o’clock that morning when the street car company took over the work, removed the planking at the crossing and proceeded to lay the track, a crew first temporarily placing the ties crosswise in the bottom of the trench and the rails lengthwise along them. The rails had not yet been lined up and spiked, but this work had progressed past the west crossing on Woodward avenue at the time plaintiff was injured and the men were at work putting down the ties and rails further west in the same block. The top of the rails on the ties came about level with the pavement and pedestrians traveling the west walk of Woodward avenue continued to pass that way as before, stepping on the ties or bottom of the trench and on or over the rails, without apparent difficulty or accident until plaintiff tripped and fell. The traffic officer who arrived there at 7:30 stated it was a bright clear day, and estimated that about 1,000 people had crossed over there that morning, the majority going south. He saw plaintiff walking with another lady at average speed as they started to cross and noticed her fall forward, her foot apparently catching on the top of the rail and tripping her. There were no cars going east or west on State street at the time. He was about 20 feet away and went to her assistance. She told him her limb pained her very much and he helped her across State street to Sigel’s.

Plaintiff was a single woman over 50 years of age, in good health, then working in Siegel’s store at the southeast corner of State street and Woodward avenue, where she had been employed for 9 years. She had lived in Detroit all her life, and was familiar with conditions of traffic and travel in that congested section where she was employed, and had seen the street being torn up and excavated where this work was going on for some days. She came down town that morning to her work as usual from her home on Townsend street in company with a Mrs. Moran (also called Miss McGovern), who lived at the same place and also worked at Siegel’s. As was customary, they rode down on a Sherman street car which they left at the Chamber of Commerce building on Griswold street, a block west of Woodward, and walked the short distance east on State street to Woodward, then turned south to cross State street to Siegel’s where they were due at 8:30. They could, and plaintiff frequently did, go to the south side of State street at the Griswold crossing which-'had not been disturbed, but happened to take the north side that morning. Plaintiff testified that they were walking “pretty fast — ordinarily fast,” that as they proceeded to cross State street at Woodward she observed the excavation and saw the ties in the bottom and rails upon them, noticed they did not look as though they were spiked, that lots of people were crossing and Mrs. Moran stepped ahead, though she did not watch her as she was paying attention to what she herself was doing; that she knew it was always dangerous where such work was going on, and had that in mind, starting to cross the trench with full understanding of the danger; that she stepped down on a tie and as she was about to step over the rail she heard a rumbling* of wheels to the east like a street car, saying, “it excited me and I gazed up and got my foot caught and lost my balance and fell,” that “the best she could'tell” she caught her “toe on the top of the rail.” The evidence shows the top of the rail was about on a level with the pavement and six inches above the tie it rested on, that being the height of a rail.

The trial court in directing a verdict for defendants designated plaintiff’s fall as “an unfortunate accident for which neither of the defendants would be liable” under the undisputed evidence, reviewed to some extent the claims of the respective parties and said in part:

“Such public work is, of course, a necessity and in all cases more or less inconvenience to the public themselves and the public must realize and do realize that they have to inconvenience themselves by reason of public work going ahead. It is impossible to in all instances make a place where such work is going on, of the same character of safety as if no work were going on at all, and I do not believe that as a matter of law such a thing, can be expected.
“With reference to the contention that plaintiff was guilty of contributory negligence, the fact of going over this crossing is not necessarily negligence. A thousand people had gone over this place, which fact might have a tendency to show that the place was in a reasonably safe condition for public travel; but that is rather aside the question. The .person going over it is not negligent per se. However, they must take into consideration the fact of it being more or less a place of danger and must use the extra care required under circumstances of that sort. In this case the undisputed testimony of the plaintiff and her witnesses is to the effect that this accident was caused by either catching her foot or tripping over the rail which was there and which I cannot find was negligent condition in view of the work which they were compelled to do there. She knew the ties and rails were there and she attempted to step over them. In doing so she caught her foot or tripped over the rail. It is my judgment under the circumstances that I have no right to leave the. question of negligence to you.”

The court also held that proper notice of claim as required prior to an action for damages had not been given the city; that served being misleading in stating a different proximate cause than was declared upon and indicated by plaintiff’s evidence, the notice alleging that she was “led to believe it was reasonably safe” for her to cross, as she was carefully and prudently proceeding to do when the accident for which she claimed damages resulted from her “right foot becoming wedged and caught in a crevice of the pavement,” with no claim then made of any diverting sound or circumstance. Her explanation of the variance and omissions in her claim is failure of her former attorney to properly interrogate her on the subject. If, as the court held, plaintiff as a matter of law failed to establish her own freedom from negligence, the question of notice which is argued at length in counsel’s briefs becomes unimportant beyond its possible bearing upon her present version of the accident. It is, however, strenuously insisted in her behalf that in any event her negligence was made a question of fact for the jury by her testimony that a sound of car wheels diverted her attention at the time she fell. Numerous cases are cited to the proposition that a person is not necessarily negligent in traveling over a highway or sidewalk because of knowledge that it is defective, if the party with such knowledge exercises such care and caution as a reasonably prudent and careful person would and should exercise in view of the known dangers. In that connection it has been held that if the injured person does not have the defect in mind at the time, or on approaching the locality attention is diverted to other matters to its immediate exclusion, the bare fact of previous knowledge of the defective condition of the way does not conclusively preclude recovery.

In the cases cited by plaintiff’s counsel upon those contentions the controlling facts and circumstances involved will be found materially at variance with those in the instant case. In many of them the accident occurred in the nighttime. Of that class are Belyea v. City of Port Huron, 136 Mich. 504; Comiskie v. City of Ypsilanti, 116 Mich. 321; Styles v. Village of Decatur, 131 Mich. 443; Barnes v. West Bay City, 138 Mich. 93; Sherman v. Consumers Power Co., 199 Mich. 543. In cases where it has been held disturbing and diverting sounds or circumstances raised a question for the jury, the recognized issue apparently was whether thereby recollection or realization of the known defect and danger about to be entered upon temporarily and unavoidably escaped the traveler’s field of consciousness. In the instant case plaintiff was by her own testimony in the line of the trench ■with full knowledge from immediate observation of the conditions and dangers surrounding her. She was familiar with the locality and the sounds and sights of traffic at that corner. With her knowledge of traffic on Detroit streets she presumably knew that the trench where she was protected her from passing street cars or automobiles, and the sound of rumbling car wheels to the east on Woodward avenue carried no menace of a car coming where she was. So far as rendering her temporarily oblivious of conditions at that crossing and the trench over which she was passing, she testified in part as follows:

“And there was nothing in that day but that you were just as cautious as any other day?
“A. I certainly was.
“Q. In fact, you knew that there was construction work going on there?
“A. I did. * * *
“Q. Was there anything that diverted your mind before you put your foot into the excavation?
“A. No, sir, no more than I was going to my work, that is all
“Q. You had your mind on the fact that you were going into the excavation?
“A. Yes.
“Q. And the diversion when it occurred — it occurred after you got into the excavation?
“A. It certainly did. * * *
“Q. Isn’t it a fact that you under-estimated the height of the rail?
“A. Yes.
“Q. That is what caused you to fall?
“A. Yes.”

It is undisputed that this repair work in progress was necessary and carried on in the usual way, that as soon as the excavation and concreting were completed by the city at that point it was covered with a temporary walk while the concrete foundation for the track was setting, and that when in condition for track laying to begin it was necessarily uncovered to do the work which was in progress along that trench at the time of the accident. No notice or warning would have furnished the plaintiff any information that she did not possess. She had seen the trench being excavated and the work as it progressed from day to day, knew how to and frequently did go to her place of employment by an equally short route which entirely avoided it, observed as she approached the crossing that morning what was being done and what had been done, and the exact condition at the place she attempted to cross. It was not to her a way of necessity nor a case where to proceed was the only alternative. She testified it was a bright clear morning, that they were not working “right at that place,” but were at work in the same block near the Chamber of Commerce, and she observed that while the ties and rails had been placed, the work of putting in the track was not finished. Of this crossing, its condition and dangers she testified on cross-examination:

“I could not help but see it if I was not blind. I had it in mind when I started to cross.
“Q. There was nothing that attracted your attention until you got to the- excavation you have described?
“A. Yes; I knew it was in bad condition. I had that in mind.
“Q. And you knew you had to pass there—
“A. I knew I had to pass or go in danger if I went outside.
“Q. You had that dangerous condition in mind at the crossing?
“A. Yes.
“Q. And that is true at the moment of the accident?
“A. Yes. * * *
“Q. You knew you had to be extremely careful in going across there?
“A. Yes, anybody would know that.”

Just how dangerous it was to a person taking time to pass carefully over it might be questioned, but knowing as she states that it was dangerous, with its condition in mind and sight at the time, she proceeded on her way and chose to risk it. In Black v. City of Manistee, 107 Mich. 60, it is said:

“Where a person actually sees the danger before the accident, there is as great reason for him to avoid it as there is for the municipality to provide against it beforehand.”

Plaintiff’s allegation in her declaration that she was free from negligence is not supported by her evidence. We conclude that this case is controlled in principle by Black v. City of Manistee, supra; Grandorf v. Railway Co., 113 Mich. 496; Irion v. City of Saginaw, 120 Mich. 295; Cloney v. City of Kalamazoo, 124 Mich. 655.

The judgment is affirmed.

Moore, C. J„ and Brooke, Fellows. Stone, Bird, and Sharpe, JJ., concurred.

Justice Kuhn took no part in this decision.