text:
    MURPHY v. PERE MARQUETTE RAILROAD CO.
    1. Carriers — Negligence—Boarding Moving Train.
    A passenger who alights at a station for exercise and on the announcement being made that the train is about to start, attempts to board the car which has commenced to move and is increasing in speed, especially if he is incumbered by an umbrella or other impedimenta and has been given ample opportunity to re-enter the train, is chargeable with contributory negligence barring the recovery of his estate for the negligent hilling.

    2. Same — Contributory Negligence — Railroads.
    Boarding a moving train is at least prima facie evidence of contributory negligence.
    Error to Berrien; Bridgman, J.
    Submitted October 6, 1914.
    (Docket No. 6.)
    Decided December 19, 1914.
    Case by Catherine M. Murphy, administratrix of the estate of Alexander Murphy, deceased, against the Pere Marquette Railroad Company for the negligent killing of decedent. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Parker, Shields & Brown (Gore & Harvey, S. L. Merriam, and John C. Bills, of counsel), for appellant.

      O’Hara & O’Hara, for appellee.

       As to the negligence of a passenger in getting on or off a moving train, see notes in 21 L. R. A. 358; 24 L. R. A. 711, and 22 L. R. A. (N. S.) 741.

   Stone, J.

This action was brought by the administratrix of his estate to recover damages resulting from the death of Alexander L. Murphy on July 23, 1910, caused by the alleged negligence of the defendant. The declaration alleges that plaintiff's intestate became a passenger on one of defendant’s trains, having purchased a ticket from Chicago, Ilk, to Bangor, Mich.; that it was the duty of the defendant to keep its depots, with their platforms, along such railroad between Chicago and Bangor in safe condition, and to safely carry said Murphy to his destination. It is alleged that Murphy, upon arrival of the train, left it at Benton Harbor, an intermediate station, for a few minutes’ rest and invigoration, and that while there it was defendant’s duty to keep its station platform in safe condition for passengers in getting on and off the cars at said station. That disregarding this duty, and while the plaintiff’s intestate was on its station platform, it—

“Carelessly and negligently allowed and permitted a large baggage or express truck to be and remain upon said platform, within a few inches from the edge thereof, adjacent to the track of said defendant upon which the said passenger train was remaining aforesaid, and near to and within a few inches of the coaches of said train.
“Plaintiff further says that when the conductor of said passenger train announced that the train was ready to depart, plaintiff’s intestate, being all the time in the exercise of due care and caution on his part, and not knowing of the dangerous proximity of said truck to the said train, attempted to board said train from said platform, got hold of the handlebars or railing on the steps leading to the platform of one of the coaches of said passenger train, with perhaps not more than one foot upon said coach steps, when the said train started, and by reason of the said truck standing where it did, the said truck in some manner, not fully known, caught plaintiff’s intestate and brushed him off the said car steps, hurling him to the ground between the said station platform and the track of the defendant’s said railroad, and onto the said railroad track, and several of the cars of said defendant’s train passed over his body, and then and there on said'day killed him.”

At the- trial it appeared that plaintiff’s decedent, as a passenger, took defendant’s train at Chicago on the day in question, and rode as far as Benton Harbor, Mich. The train was composed of an engine, tender, and seven or eight cars. It made two stops at Benton Harbor, the first about three car lengths from the depot, to coal, and the other at the depot. Murphy alighted at the first stop, and walked towards the depot. After the train pulled ahead to the depot, it stood there some five or six minutes. The length of the depot building, known as the Union Depot, was 135 feet. The express and baggage rooms were located at the west end of the depot. The whole length of the cement platform along the tracks was 305 feet. The conductor registered his train as arriving at Benton Harbor at 5:20 p. m. When the train stopped at the station he shouted, “All aboard,” and after he had registered his train, he came out on the platform and again shouted, “All aboard,” and then proceeded to the engine which stood near Fifth street at the easterly end of the platform. He remained near the cab of the engine while the engineer read a train order to him. He then looked at his train to see if all passengers had gotten onto the train. Everything appearing clear, he gave the engineer the signal to proceed by raising his hand, and stepped onto the front end of the first coach. After the train started Murphy was seen running from the depot some 75' feet in a diagonal direction, and along with the train about a coach length, attempting to board the train. At the time deceased attempted to get on the train, it was going somewhere between 4 and 7 miles an hour. A number of witnesses testified that at this time deceased had an umbrella in his right hand, or under his right arm, and a small paper in his left hand. Other witnesses testified that they did not see deceased have an umbrella, or paper, but their testimony was of a negative character, and it must be said that the great weight of the affirmative testimony was as first above stated. An express truck stood on the platform near the easterly end thereof, towards Fifth street. Its exact distance from the edge of the platform or track was a disputed question. One of plaintiff’s principal witnesses testified: “The last I saw of Dr. Murphy he was on the run, and the train was moving.”

Another of plaintiff’s witnesses testified:

“I seen Dr. Murphy as soon as they hollered, 'All aboard;’ I seen him start for the train. He ran; the train was going about four miles an hour, or anyway, as fast as a man will walk. * * * He took hold of the train with his left hand, and the train was going easterly. He reached with both hands and only got one, and catching with that hand rather threw him this way. * * * When I first saw him I was standing in front of the depot, and he started from the south end. Where he had been I do not know, and the train was pulling out, and he started to run, and he wanted to board the train, and as he got hold of the grab, the handlebar, he struck the truck, the American Express truck, standing right beside the train. The platform was a concrete stone platform. The truck was right alongside the train, and as he tried to board that train he struck his hip against that truck, and that knocked his feet out from under him, and he went headlong down between the truck and the train.”

Whether deceased got one foot upon the step of the car or was running beside the train, with his hand on the handrail when he hit the truck, was a question about which the testimony differed.

Another witness for the plaintiff testified:

“When the accident occurred I was about 20 feet from the main entrance. I was to the east of the main entrance. I was sitting on the curb. * * * I was looking northeast; they call it north there. I was looking toward the track. I saw the conductor going towards the engine; the engine was very near on Fifth street. It was not across the street, but facing Fifth street. Mr. Murphy, he ran diagonally from this window. I didn’t notice Mr. Murphy at the window. * * * Mr. Murphy came on a trot diagonally across here, and I sat here, and the first coach that passed he tried to get on; the people were standing on the platform and the train was going so slow that he missed the next coach; instead of catching the next coach he catched the hind end of the third coach; that is the coach he tried to catch at the head.
“Q. How did he catch it?
“A. He reached his left hand up like that and pulled himself, with his foot upon the platform, upon the step. As he did that the truck pushed him between the cars, in between two, I should say the two coaches, and that doubled him up in such a way the steps hit him in the back, I should say right there some place [indicating], and there was about 12 inches between the step and the earth, I should call it about that, and the step rolled him out, and the train kept on going, and it throwed him back under the next coach wheel.”

The plaintiff’s intestate was killed instantly. He was 36 years of age, weighed about 130 pounds, and was active and in good health.

At the close of the plaintiff’s testimony, and again at the close of all the testimony, counsel for defendant moved the court to direct a verdict for defendant for the following reasons:

“1. Because it is undisputed upon all the testimony that the contributory negligence of the deceased is conclusively established.
“2. Because reasonable minds cannot differ that the deceased was negligent in attempting to get on the moving train, and such minds cannot differ that such negligence contributed to his injury and death.
“3. Because no negligence whatever is shown on the part of the defendant, or any of its employees.
“4. Because there is no proof that the defendant neglected any duty it owed the plaintiff in the premises.
“5. The plaintiff cannot complain that the truck was left at the end of the platform, opposite the baggage car, while the train was at rest; the train being at rest and no part of the truck being where passengers could collide with it while getting on the train when the train was at rest; the truck could not possibly interfere with a passenger rightfully and properly attempting to get aboard such train.
“6. The platform of the defendant being absolutely safe for the deceased to have entered any of the coaches while the train was at rest, the truck could not have been made to cut any figure in the case, except by the negligence of the deceased, and such negligence bars a recovery.”

The motions were overruled, and exceptions duly taken.

The trial resulted in a verdict and judgment for the plaintiff.

The above-quoted points, and others, were urged upon a motion for a new trial, which was denied, and the denial duly excepted to by defendant, and the questions are now before ,us upon proper assignments of error.

A careful reading of this record has impressed us with the claim of the defendant that, under all of the testimony in the case, the plaintiff’s intestate was guilty of such negligence in attempting to board a moving train as to bar a recovery. Wé think that it is undisputed upon all of the testimony that the contributory negligence of the deceased was conclusively shown. By the overwhelming weight of the evidence, it appears that deceased was handicapped and at a disadvantage by having an umbrella under his right arm; there had been ample notice, time, and opportunity given to board the train while at rest, and an ample and clear platform provided upon which to reach the train while standing at the station. One who under such circumstances attempts to board a moving train, which, as in this case, was rapidly picking up speed, is guilty of contributory negligence as matter of law; especially is this so when the undisputed evidence shows that the person had ample time and a reasonably safe ingress to the train while it stood at the station. The act of deceased was so palpably reckless as to be inexcusable. He was guilty of contributory negligence in attempting to board a moving train as he did, and no fault of the defendant or its employees, short of gross or wanton carelessness, could excuse him from the results of such negligence. It has always been regarded as negligence for a passenger to attempt to enter a car in a running train. Blair v. Railroad Co., 60 Mich. 124 (26 N. W. 855).

In Lake Shore, etc., R. Co. v. Bangs, 47 Mich. 470 (11 N. W. 276), where a passenger jumped from a moving train, Justice Campbell said:

“We have reluctantly felt ourselves compelled to hold that in our judgment such conduct is beyond any question negligence, and that the jury should have been so instructed. The fact that many persons take the risk of leaving cars in motion does not make them any the less risks which they have no right to lay at the door of the railroad companies. No company can use effectively coercive powers to keep passengers from doing such things. All persons of sound mind must be held responsible for knowledge of the usual risks of such traveling. Every one is supposed to know that a fall beside a moving train is very likely to bring some part of the body or limbs in danger of being crushed. Every one is supposed to know that in jumping from a vehicle running six miles an hour, or much less, he stands a good many chances of falling, or being unable to fully control his movements, and that falling near a train is always dangerous. No doubt every one who tries such an experiment persuades himself that he will escape, but it is impossible to suppose any one of common sense does not know that there is danger. * * *
“If it was negligent to do as Bangs did, the rule of the law deprives him of any redress, because there is here no doubt that it was the immediate occasion of the mischief. The case is a very hard one, and he probably did what some others might have done in his place. But the courts cannot allow hard cases to change the rules that they are compelled to administer.”

See Werbowlsky v. Railway Co., 86 Mich. 236 (48 N. W. 1097, 24 Am. St. Rep. 120); Jacob v. Railroad Co., 105 Mich. 450 (63 N. W. 502).

The opinion in the last-cited case is worthy of ’examination, as it distinguishes the case from McCaslin v. Railway Co., 93 Mich. 553 (53 N. W. 724), and Cousins v. Railway Co., 96 Mich. 386 (56 N. W. 14), cited by plaintiffs counsel in the instant case. In the Cousins Case, Justice Montgomery said:

“The law upon the subject ought no longer to be in doubt. It is undoubtedly prima facie negligent for a passenger to alight from or board a moving train, but it is not in all cases negligence per se to attempt to do so. If one is, by the wrongful act of the carrier, placed in a position where, under a sudden impulse to save himself from serious inconvenience, he attempts to alight from a moving train, where the danger is not imminent, and where persons of ordinary care and caution would make the attempt, it is not necessarily negligent.”

We understand the doctrine of the last-cited case to be that, on first view, or on the face of the act, it is negligent for a passenger to attempt to alight from or board a moving train, but there may be attending circumstances, like a wrongful act of the carrier, or where the danger is not imminent or the like, where it would not necessarily be negligent. We have examined the record in vain to find any such attending circumstances here. The train had been standing at the station five or six minutes, the signals for starting the train were ample and timely, no fault on the part of the carrier is claimed at this point, and it does appear that deceased was simply loitering about the station, at a time when he should have been upon the train. Burden v. Railway Co., 104 Mich. 101 (62 N. W. 173); Michigan Central R. Co. v. Coleman, 28 Mich. 440; Foley v. Railway Co., 179 Mich. 586 (146 N. W. 186).

Many more of our own cases might be cited in support of the genera] doctrine here stated. See Smith v. Accident Ass’n, 104 Mich. 634 (62 N. W. 990). We see nothing in the circumstances which could change the general rule, or excuse the act.

In St. Louis, etc., R. Co. v. Dewees, 153 Fed. 56, 82 C. C. A. 190, Van Devanter, C. J., used the following appropriate language:

“It is undoubtedly true that cases are not lightly to be withdrawn from the jury, and that ordinarily negligence is so far a question of fact that it should be submitted to and determined by them, but it is equally true that when the evidence and the inferences to be reasonably drawn from it are undisputed, or are of such conclusive character that the exercise of a sound judicial discretion would permit the court to give effect to but one verdict, the case may and should be withdrawn from the jury, and a verdict directed for the plaintiff or the defendant, as the one or the other may be proper.”

We have examined the authorities cited from other States. In Browne v. Railroad Co., 108 N. C. 34 (12 S. E. 958), the conductor of a train had ordered a passenger to go to a coach and get in, and then signaled the engineer to start the train without waiting to see whether the passenger had gotton on. It was held that the company was not liable for the injuries received by the passenger in trying to get on the car in motion, where the train had already been stopped a reasonable time, and the passenger had wilfully delayed to get on it, and that in order to avoid the imputation of contributory negligence in so boarding the moving train, the passenger must show that he did so without manifest risk to himself, or that the train did not stop long enough for him to board it while it was stationary. The court said:

“The general rule is that passengers who are injured while attempting to get on or off a moving train, cannot recover for the injury. Phillips v. Railroad Co., 49 N. Y. 177; Beach, Railway Law, § 987.
“And of course this, like all other general rules, is subject to some exceptions. Where a train is stopped at a station, and, after passengers, are told to go aboard, it is suddenly started before they have had time to do so, and when, without unreasonable delay they are trying to get upon it, if a passenger who is in the act of getting upon the platform is injured by the sudden jerk of starting, without signal, the court may submit the question of negligence to the jury, but the company is under no obligation to delay the departure of the train beyond the usual time because a passenger has purposely or negligently deferred getting on it till the last moment, though he had abundant time to do so while it was standing still.”

In Hunter, Adm’r, v. Railroad Co., 112 N. Y. 371 (19 N. E. 820, 2 L. R. A. 832, 8 Am. St. Rep. 752), the New York court of appeals held that endeavoring to board a train moving at the rate of six miles an hour is an act of such danger as to prevent any recovery from the railroad company for the death of the person attempting it, even though the train was about to pass the station where it was advertised to stop, and where he was waiting for it, without stopping, and the conductor called to him to jump on if he was going. In that case Peckham, J., delivered the opinion of the court, and reviews the New York cases, quoting the language of Andrews, J., in Solomon v. Railway Co., 103 N. Y. 437 (9 N. E. 430, 57 Am. Rep. 760), as follows:

“ ‘Negligence, no doubt, is usually a question of fact, of which the jury must inquire, but the inference of negligence in a given case may be so clear and convincing that the judge may direct a verdict. The conclusion that it is prima facie dangerous, to alight from a moving train is founded on our general knowledge and common experience, and it is akin to the conclusion, now generally accepted, that it is in law a dangerous, and therefore a negligent, act, unless explained and justified .by special circumstances, to attempt to cross a railroad track without looking for approaching trains. In boarding a moving train there is generally less excuse than in alighting from one. The party attempting it is not often under the same stress of circumstances as frequently happens in the former case, tie may be compelled to wait for another train, but this is an inconvenience merely, which does not justify exposing himself to hazard. * * * If men will take such hazards, they must bear the consequences of their own rashness; and it is no just reason for' visiting the consequences upon another that his negligence co-operated in producing the result.’ ”

Judge Peekham continues:

“We think that the facts in this case are so overwhelming in their nature that no reasonable judgment can be formed as to the act of the deceased in attempting to jump upon this moving train other than that it was dangerous and reckless, and that the injury resulting therefrom was contributed to by him.
“We do not regard it as of the slighest importance, under the circumstances of this case, that the conductor of the train notified the deceased to jump on. That notification certainly cannot be interpreted to mean more than that the train would not stop or go slower than it was then going, and that if the deceased wanted to take it he must jump on at that moment. That does not alter the highly dangerous nature of the act itself. The deceased was in absolute safety at the time the direction was given. It created no emergency which called for the exercise of immediate judgment in the choice between the two dangers. It was a simple question of possible inconvenience, * * * and it afforded not the slightest justification or excuse for attempting to board a train moving at that rate of speed, and when he did it, he did it at his own risk.
“We think the plaintiff, upon this state of facts, should have been nonsuited.”

This case was before the court of appeals again, and is found reported in Hunter v. Railroad Co., 126 N. Y. 18 (26 N. E. 958, 12 L. R. A. 429). A new trial had been had in which the plaintiff had recovered on some new evidence that the speed of the train was between one and two miles an hour. The court said:

“Of these witnesses, two had previously testified to a speed of four, to six miles an hour, and the other had not testified upon that subject.
“In.view of the doubt justly resting upon the character and correctness of this evidence, we might very properly say that it was open to the court to take as the fact concerning the speed of the train the evidence given by the other witnesses in the case for both parties, which placed it at about six miles an hour. But we shall, for the purposes of the case, assume that the evidence as now given left it a question * * * as to how fast the train was moving past the station. We will accept that rate of speed deemed by the plaintiffs as most favorable to their contention, and still we must hold that the plaintiffs were not entitled to a recovery on their case. The conclusion was irresistible from the facts that the conduct of plaintiffs’ intestate was negligent, and that his act contributed to his injuries and death.”

In Missouri Pacific R. Co. v. Railroad Co. (Laboy, Intervener), the circuit court for the eastern district of Louisiana, 36 Fed. 879, the intervener sought to recover of the Texas & Pacific Railroad Company damages for injuries received while attempting to board the defendant’s train, operated by receivers of said road.- The master reported adversely to the claim, and thfe intervener excepted. Pardee, J., said:

“The evidence establishes, as the master reports, that the intervener received the injuries of which he complains in attempting to get on the passenger train of the Texas & Pacific Railway Company while the same was in motion, and before it stopped at a regular station on the line; that in so getting on the train he was' neither advised nor compelled by the agents of the company, and that the intervener’s said attempt contributed directly to his injuries. It is the settled jurisprudence of Louisiana, whose laws control as to the responsibility in this case, that no person can recover damages for injuries received where he has himself contributed to the negligence which caused the injury. See Knight v. Railroad Co., 23 La. Ann. 462, and cases there cited.
“Attempting to mount a moving railroad train without the advice and direction of the railroad’s agénts is negligence, according to all respectable authorities, text-books, and adjudged cases. See Shearman, R. Neg. § 288; Hutch. Carr. § 641; 2 Ror. R. R. 1111.”

In Tobin v. Railroad Co., 211 Pa. 457 (60 Atl. 999), the per curiam opinion is so short that we quote the same:

“The plaintiff, was injured at a station where the tracks of the defendant’s road were elevated to avoid crossing a city street at grade. The station platform was 13 feet wide and 340 feet long, and extended to the side of the street. Across the end of the platform above the street there was a fence 3% feet high for the protection of passengers. A train reached the station when the plaintiff was on the street below, and when he was at the top of the stairs which led from the street to the platform, it was standing, or, if started, it was moving so slowly that he did not observe its motion. He walked slowly across the platform and got on the first step of the car, which was then in motion. Before he mounted the second step, his back was struck by the end of the fence, which was 7 inches from the side of the car and about 22 feet from the place where he got on the step.
“No conclusion could have been reached from the plaintiff’s testimony that would have relieved him from the imputation of negligence. There was nothing in the circumstances to make the case an exception to the rule that it is negligence per se to step on a moving train. Nor can it be'said that the plaintiff escaped the risk which he assumed, and was after-wards injured by some negligent act of the railroad company. He was never safely on the train, nor in a position in which his body did not extend at least 7 inches beyond the side of the car during the time he was carried forward 22 feet to the fence. No negligence of the company was shown. There was no sudden start or jar of the car as the plaintiff was getting on, and there was nothing of an unusual character in the construction of the station platform or fence.”

The judgment for defendant was affirmed. See Elliott on Railroads, § 1642; San Antonio, etc., R. Co. v. Trigo, 49 Tex. Civ. App. 523 (101 S. W. 254).

The following cases are cited by plaintiff’s counsel:

In Irvin v. Railway Co., 81 Kan. 649 (106 Pac. 1063, 26 L. R. A. [N. S.] 739), it was held that it was not negligence per se to get on or off a moving train; that, generally, whether it is negligence or not is a question for the jury. In that case the question of contributory negligence was especially pleaded and relied upon as a defense. There was a general verdict for the plaintiff upon all the issues presented, and the court held upon appeal that it was too late to raise the question then. The parties were concluded by the verdict. Two persons got upon the rear step of the rear car, and the plaintiff, being upon the lower step, was prevented from getting upon the other step by reason of the obstacle presented by the other passenger, and he was injured by striking against a truck upon the platform. It was held that the case presented a question for the jury.

In an earlier Kansas case, that of Atchison, etc., R. Co. v. Holloway, 71 Kan. 1 (80 Pac. 31, 114 Am. St. Rep. 462), the person had entered the station and purchased a ticket intending to take a passenger train soon to arrive, and the case holds that such a party acquired the status of a passenger, and it became the duty of the railroad to exercise reasonable care to provide him a safe approach to the.train, and reasonable time and opportunity to get aboard; that the running of a freight train between the station and the passenger train, thus blocking the access of passengers to the passenger train during the time it stopped at the station, was negligence as to the awaiting passenger, who suffered injury by reason of insufficient opportunity to get aboard. That an attempt of a passenger to board a moving train, although attended with some danger, is not, under all circumstances, contributory negligence. It was held that if the speed of the train and the difficulties in the way of boarding it are so obviously dangerous that a person of ordinary prudence would not attempt to get on the train, a passenger who makes the attempt and is injured is guilty of such contributory negligence as would bar a recovery.

In this case, the injured passenger, a strong, able-bodied man, accustomed to getting on and off cars, attempted to board a train moving at the rate of four miles an hour, which he was waiting to take, and which he had not been afforded a reasonable opportunity to get on while it was at rest. The day was clear, and the ground where he made the attempt was smooth. Held, that it cannot be said, as matter of law, that the attempt was so obviously dangerous as to constitute contributory negligence, and that whether there was such negligence was a proper question to leave to the jury. The court said:

“It is the duty of a passenger to be reasonably alert and prompt in boarding a train, but, considering that the freight train concealed the incoming passenger train and blocked the passage from the station to it we cannot say that Holloway was not reasonably prompt and diligent in his efforts to get on board the cars. The stop of the passenger train was very brief —altogether too much so, considering the surrounding circumstances.”

The court quotes the following rule from Thompson on Negligence, § 2995:

“ ‘It cannot be affirmed that a person is guilty of contributory negligence as matter of law from the mere fact that he attempts to board a railroad train while it is in motion. If the train does not stop at the proper stopping place for a sufficient length of time to enable the passenger to get on before it starts, and the passenger, thus coerced by the. negligence of the company, attempts to. board the train while it is slowly moving, and is injured in the attempt, contributory negligence will not be imputed to him, but ' he will be allowed to recover damages.’ ”

The court also cited Johnson v. Railroad Co., 70 Pa. 357.

It is said in that case that the train had started before the passengers had had sufficient time to get on board, and the plaintiff incumbered with a valise and a number of packages, missed his footing and his arm was crushed by the wheels of the car. It was urged that it should have been declared, as a matter of law, that he was negligent. The court said:

“The fact appears to be clear that a reasonable time for the transfer was not given, and that the plaintiff, with all his effort to make haste, was unable to make the connection in consequence of this want of time. Now, though the train was distinctly in motion, so that a bystander, cool and unconcerned, could see it visibly running on the track, are we to say as a matter of law binding on the jury, that a passenger having a right to go on the train, and seeing himself about to be left improperly by the wayside, is guilty of culpable legal negligence if he should essay to reach his destination, no matter how slow the motion in running might be, or how little danger was apparent to him? He may be guilty of negligence, but of this the jury should judge under the circumstances.”

In Wooten v. Railroad Co., 79 Miss. 26 (29 South. 61), the defendant, a railway company, had tickets for an excursion, but none were on sale in the town where the decedent lived. Decedent, wishing to go, arranged to have tickets from the next station brought to him by the baggagemaster on the excursion train. As soon as the train arrived he took the tickets, signed them as required by the company, and attempted to board the train, which was already moving slowly, and was hurled against a baggage truck, thrown under the cars and killed. His wife, niece, and granddaughter had been helped on board by a friend, and had no time to get their seats before the train started. Held, that the question of decedent’s contributory negligence should have been submitted to the jury. The court said:

“Mr. Wooten’s situation was even more urgent than that of an ordinary passenger. He had arranged for tickets to be brought to him there. They were sent by the company. They were useless until he signed them, which he did as soon as he could, but the train actually started before his family were comfortably seated; before they could get their basket of fruit into the car. Under these circumstances * * * the jury should have been allowed * * * to pass on the question of negligence.”

In Illinois Central R. Co. v. Glover (Ky.), 71 S. W. 630, the question of whether a passenger who got off his train at an intermediate station and undertook, under the direction of the conductor, to board it again while moving, was guilty of contributory negligence was held to be a question for the jury. The court said:

“While there is some conflict in the authorities, the later cases sustain the rule that, where a passenger gets off his train at an intermediate station, and then undertakes to board it, while moving slowly, by the direction of the conductor or servant in charge, he is not per se guilty of negligence; but it is a question for the jury whether, considering the speed of the train, the direction he received, and other circumstances, he exercised proper care.”

Mills v. Railway Co., 94 Tex. 242 (59 S. W. 874, 55 L. R. A. 497). In that case there was evidence that the defendant failed to perform its duties which it owed to the plaintiff. It was claimed that the passenger had been denied the opportunity to get a ticket, and it appeared that by reason of the absence of the ticket agent he was unable to reach the train until it commenced to move. Under those circumstances it was held that it was not negligence per se to attempt to go upon a slowly moving train.

We think that it appears that the cases cited by plaintiff’s counsel are exceptional cases, and do not change the general rule.

It may be said that the cases are uniform in holding that boarding a moving train is at least prima\ facie negligence, and. that in the instant case the plaintiff offered no testimony which showed, or tended to show, any justification or excuse on the part of the deceased. Under the facts in the case and the law applicable thereto, the trial court should have withdrawn the case from the jury, and directed a verdict for the defendant, on the ground of the contributory negligence of plaintiff’s decedent.

This conclusion renders it unnecessary to consider the other assignments of error.

For the error pointed out, the judgment of the circuit court is reversed, and no new trial granted

McAlvay, C. J., and Brooke, Kuhn, Ostrander, Moore, and Steere, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    CROSBY v. CITY OF GREENVILLE.
    1. Adverse Possession — Evidence—Streets.
    Evidence in a suit to quiet title to a city street reviewed on appeal and held, to sustain the decree and finding of the circuit judge that complainant had failed to establish his claim of adverse possession.
    2. Same — Highways and Streets — Cities—Distinctions.
    There is a distinction between obtaining title by adverse possession as against an individual and gaining rights to part of a city street, as against the municipality, and it has been said to arise from the fact that the abutting property owner has the right against all the world, even including municipal corporations, to occupy" and úse the street in any reasonable way he may wish, so long as he does not interfere with public travel thereon; he must go so far in order to acquire adverse title as to do acts which in themselves constitute a warning to the public that he is exceeding his right as an abutting owner, and actually claims the property as his own,

    3. Same — Use of Street.
    The owner of land which abuts on a public way may exercise jurisdiction over it in any reasonable way he wishes so long as he does not interfere with the public easement or obstruct travel over it.
    4. Same — Elements.
    Possession, in order to ripen into a title to land, must be actual, continuous, visible, notorious, distinct and hostile to that of the real owner. The acts must be such as, if seen by the proprietor, would clearly apprise him that the party doing the acts claims ownership of the property.
    5. Same.
    To constitute adverse possession it is necessary to show that the acts of ownership were of such character as to openly and publicly indicate an assumed control or use of them such as is inconsistent with the owner’s claim to the premises in question.
    6. Same — Statutes.
    The policy of permitting title to be acquired to streets and highways by adverse possession is of doubtful expediency and has been changed by Act No. 46, Pub. Acts 1907.
    7. ' Same — Dedication—Acceptance.
    It is not essential that every part of a highway in length or width should be worked, improved, and traveled, in order to show the intent of the public to accept a dedication.
    8. Same — Plat—Streets.
    Having platted certain lands and adjoining streets without express words of dedication, the owners may be bound by a dedication if the public indicates its intention to accept the proposal by using and improving them.
    9. Same — Estoppel.
    Where complainant who claimed title to part of a city street by adverse possession had deeded premises bounded on the avenue as described in the deeds of conveyance, and his grantors had in the same manner recognized its existence, he was estopped from claiming any part of the street as shown by the dedicated plat: those who purchased lots on the street thereby became vested with an interest in the street upon which their lots abut, and had a right to insist that it be kept open.
    10. Dedication — Acceptance—Stbeets.
    The right to make a common law dedication for street purposes is not abridged by the statutory regulation specifying the ways in which property shall be dedicated to the public. It is not necessary that any formal action be taken by the city or municipality: user and improving the street or way or any part thereof are sufficient.
    Appeal from Montcalm; Davis, J.
    Submitted October 8, 1914.
    (Docket No. 19.)
    Decided December 19, 1914.
    Bill by James S. Crosby against the city of Green-ville to quiet title to real property. From a decree for defendants, complainant appeals.
    Modified and affirmed.

      N. O. Griswold, for complainant.

      Charles L. Rarden (C. B. Rarden, of counsel), for defendants.

       For the rights acquired as against • the public by adverse possession of highway or city street, see note in 18 L. R. A. 146.
      Upon the question whether public user is an acceptance of a dedicated highway, see note in 18 L. R. A. 510.

   Stone, J.

In this cause the bill of complaint was filed to obtain a decree to quiet the title of complainant in and to that portion of Franklin avenue, so called, lying east of the west 43 feet thereof, and extending from Montcalm street north 173 feet, in the city of Greenville. The bill alleges that on or about January 17, 1853, John Green, Manning Rutan, Morton Shearer, James B. Chamberlain, Abel French, George Loucks, Joseph Hart, Stephen Minard, and Stephen Rossman made and executed a certain plat of the village (now city) of Greenville, and caused the same to be recorded in the office of the register of deeds of that county. It is further claimed, and seems to be conceded, that there were no words of dedication used in any portion of said plat as executed by said proprietors, and the surveyor who surveyed the same, but that the streets, lanes, alleys, and public grounds of said village were described in said plat by giving the length, breadth, and points of termini, and were simply called by a name assigned them as streets, but there were no other words of dedication.

The complainant claims to own and hold the above-described premises by adverse possession. The defendant the city of Greenville answered admitting the plat substantially as alleged in the bill of complaint, but claiming that there had been an acceptance of the offer of dedication contained in the said plat, and claiming that the city had taken possession of said Franklin avenue and had expended public money in the improvement thereof, at least as to the west portion thereof, and claiming that it was lawfully entitled to hold and use the same as a public street in the city of Greenville. The other defendants in the case, Ambrose J. Ecker, Frank Wickham, and Elizabeth Wick-ham, were not made defendants originally, but upon petition were admitted as defendants, and they filed answers substantially the same as that interposed by the city of Greenville. These defendants claim to own, or to be interested in, the piece of property fronting on Montcalm street and lying east of the east line of Franklin avenue.

The record discloses the following descriptions of certain streets as contained in said plat, which plat is not fully set out in the record. The portion affecting Franklin avenue is as follows:

“(5) Description of Franklin Street: Commencing on the south line of said section nine, 26% rods west of the southeast corner of section nine, and 'running thence north four rods wide, 94 rods to the center of Montcalm street hereinafter described.”
“(14) Montcalm Street: Commencing on the east line of section number nine, 120 rods and 22 links on the north line of Grove street and running thence west 4 rods wide about 88 rods; thence west 15 degrees north about 74 rods to the southwest corner of lot number 76.”
“(16) Franklin Avenue: Commencing on Montcalm street at the north end of the west line of Franklin street and extending east eight rods wide; thence running north 8 rods wide to Loucks & Company’s millpond.”

The locus in quo is shown by the annexed diagram, known as “Exhibit D” in the record:

The record discloses some concessions and admissions of counsel which are pertinent and significant as to the extent of the controversy in this case. Upon proceeding to take the testimony in open court, counsel for defendants said:

“I appear for the city and the old office lot, Eckers and the Wickhams. Now, so far as the city of Green-ville is concerned, I would say that if Mr. Griswold concedes that line, drawn here by Mr. Anderson as the northern limit of Franklin, to be the north line or the end of Franklin avenue, so far as the city is concerned we will accept that as so, with one exception: That it cannot and does not affect the rights of the Wickhams as abutting property owners.”

In the brief of counsel for complainant we find the following;

“The defendants concede to the complainant all north of their dotted line across Franklin avenue, as shown in Exhibit D. The complainant does not claim the west 43 feet of Franklin avenue south of that dotted line. Consequently the land in dispute is 90 feet east and west by 113 feet north and south, located in an angle of the two streets as used and occupied.”

Taking counsel at their word, we think that the controversy is confined to the territory last above described, to wit, 90 feet east and west by 113 feet north and south, being the east 90 feet in width and 113 feet in length of Franklin avenue north of Montcalm street.

We have read the entire record with much care and are of the opinion that the circuit judge reached the correct conclusion in decreeing the property in question to be a legal public street and highway, and the right to possession thereof and title thereto to be in the city of Greenville for street and highway purposes, and in dismissing the complainant’s bill of complaint.

We are of opinion that the complainant has not sustained the burden of proof in this case necessary to show adverse possession of the premises in question. We should bear in mind that there is a broad distinction between obtaining title of land by adverse possession as against an individual, and gaining title to a portion of a city street as against a municipality. It has been said that this distinction lies in the fact that abutting property owners have the right against the world, and even against municipalities, to occupy and use the street in any reasonable way they wish so long as they do not interfere with the public travel thereon. In order to gain title by adverse possession to a portion of a public way, the occupancy must be such, as to warn the public that the occupant is going beyond his right as an abutting owner and is actually claiming the property as his own. It should be stated here that, under the evidence, the two buildings which were erected by the complainant, within the limits of what is claimed to be Franklin avenue, stand north of the premises which it is conceded by complainant’s counsel are involved in this litigation; that is, north of the point 113 feet north of Montcalm street. We are therefore not concerned as to the character or permanence of those buildings, as they are not within the territory with which we are dealing.

The record shows that, during the time the complainant claims to have been in possession of the premises involved, he was the owner of a strip of land adjoining to, and lying east of, the eastern boundary of Franklin avenue. We think that the owners of the land abutting on a public way may have the lawful right to use and exercise jurisdiction over it in any reasonable way they wish, so long as they do not interfere with the public easement, or obstruct the travel over the same. Thus it conclusively follows that acts upon and uses of a public way, which might well be evidence of a claim of title if individual property was concerned, may be no notice at all to the public that a title is claimed in a street or way.

Counsel have discussed authorities in other States, but we need not go outside of our own decisions to establish the principle as to occupancy which we have just referred to, and to show that the occupancy of the premises in question in this case was not such as to ripen into title by adverse possession. Possession, in order to ripen into a title to land, must be actual, continuous, visible, notorious, distinct, and hostile to that of the real owner. Smeberg v. Cunningham, 96 Mich. 378 (56 N. W. 73, 35 Am. St. Rep. 613), and cases there cited.

Acts of possession, in order to constitute adverse possession, must be such as, if seen by the party whose claim is sought to be divested, would clearly apprise him that the party doing the acts claimed the ownership of the property. Chabert v. Russell, 109 Mich. 571 (67 N. W. 902).

To constitute adverse possession it is necessary to show that the acts of ownership are of such character as to openly and publicly indicate an assumed control or use such as is consistent with the character of the premises in question. Whitaker v. Shooting Club, 102 Mich. 454 (60 N. W. 983); Murray v. Hudson, 65 Mich. 670 (32 N. W. 889). The character of the possession necessary to constitute adverse possession as against the public is well illustrated in the language of this court in Smeberg v. Cunningham, supra; City of Mt. Clemens v. Sanitarium Co., 127 Mich. 115 (86 N. W. 537). And bearing specifically upon the question as to public ways, see Village of Grandville v. Jenison, 84 Mich. 54 (47 N. W. 600); Marble v. Price, 54 Mich. 466 (20 N. W. 531); Village of Red Jacket v. Pinton, 126 Mich. 197 (85 N. W. 567). In the last-cited case it is said:

“When one seeks to obtain land against the public by adverse possession of a part of a street, he should make out a clear case, and the possession should be of such a character, and under such circumstances, as to warrant the conclusion that the municipal authorities must be held chargeable with notice of the adverse possession and with acquiescence therein.”

This court has said that the propriety of permitting title to be obtained in this way to a public highway is of more than doubtful expediency and is not common in other jurisdictions, although it has been sanctioned here when it has been clearly established. The policy of the State has now been changed by legislative enactment. See Act No. 46 of the Public Acts of 1907. This legislation, however, has no application here:

We find from the evidence in this case that, soon after the recording of the plat in question, which we should treat at least as an offer to dedicate the premises in question to public use, the then village authorities of Greenville proceeded to expend public money upon the west portion of the street in question and to use the same as a street. It has been repeatedly held that it is not essential that every part of the highway, in length or width, should be worked and traveled in order to show the intention of the public to accept the entire highway. Neal v. Gilmore, 141 Mich. 519 (104 N. W. 609); Nye v. Clark, 55 Mich. 599 (22 N. W. 57); White v. Smith, 37 Mich. 291; also, the authorities cited. This rule applies as well to common-law dedications, or dedications in pais, as to statutory dedications.

We think we have already said enough to dispose of the case, but it might be added that the record shows such a recognition on the part of the complainant and his grantors of the existence of Franklin avenue as being eight rods in width, as to estop them from claiming any part thereof. It appears that by repeated conveyances the complainant and his grantors have deeded premises bounding the same upon this avenue, thereby recognizing its existence. The purchasers of lots at once become vested with an interest appurtenant to the streets, including the rights of abutting owners in the streets upon which their lots abut, and they have a right to insist that the streets shall be kept open. This court, in Plumer v. Johnston, 63 Mich. 165, at page 173 (29 N. W. 687), said:

“It is also well established, with respect to a purchaser of lots described as bounded on a street, that the vendor is estopped from shutting it up so as to prevent his vendee from making use of it for his own accommodation in the enjoyment of his purchase. * * * The doctrine is well established that the grantee of a lot bounded upon a street or other highway takes to the center of such street, subject only to the public easement, unless something appears upon the plat, or in the terms of the conveyance, excluding the title from passing under a boundary so described.”

See Riedinger v. Railway Co., 62 Mich. 29-45 (28 N. W. 775).

The rights of an abutting owner in a city street are well settled in this State. Smeberg v. Cunningham, supra.

Whatever the irregularities were about the claimed dedication here, it is very evident that the intention to dedicate was present, and the attempt was made by the making and filing of the plat in question, and those who made the dedication and their successors under this record seem to have recognized and confirmed the dedication of this avenue by conveying the abutting lots with special reference thereto as a public way; and no one of them or their successors ever afterwards assumed jurisdiction or control of any of the lands comprehended within said avenue, or attempted to convey away any part of it, until we come to the conduct of this complainant.

The right to make a common-law dedication is not abridged by the statutory regulations providing for dedication of certain specific ways. People v. Beaubien, 2 Doug. (Mich.) 256-270; Baker v. Johnston, 21 Mich. 319, 340; Village of Grandville v. Jenison, supra. The language of this court in Michigan Central R. Co. v. Bay City, 129 Mich. 264-268 (88 N. W. 638), is appropriate.

As to what will constitute a sufficient acceptance of an offer to dedicate, it is settled in this State that it is not necessary that any formal action be taken by a municipality in order to constitute an acceptance of the highway or street, but making improvements and repairs and user thereof, or any portion thereof, are amply sufficient to constitute acceptance.

Under the concession of counsel, to which we have alluded, we think the decree in this case should be modified so as to embrace 113 feet in length, instead of 173 feet, and 90 feet in width, instead of 89 feet, as described in the decree. With this modification the decree of the circuit court will be affirmed, with costs to defendants.

McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Ostrander, J.

text:
    CRAWLEY v. STUDEBAKER CORPORATION.
    1. Master and Servant — Cancellation oe Release — Fraud.
    Plaintiff accepted $42.50 from his employer and gave a receipt in full for personal injuries and damages sustained, the amount of the payment representing the time which plaintiff had lost. He claimed that he did not read the release or know what it contained, that he signed it in reliance upon the advice of the physician employed by defendant in such cases, who told him that his injuries were not permanent. The trial court directed a verdict for defendant for the reason that the amount received had not been tendered back. Held, that no fraud was practiced in obtaining the release, which was plainly stated in unequivocal terms, and that the receipt and release was conclusive against plaintiff’s right of recovery.
    2. Same — Negligence.

      Held, also, as matter of law, that defendant’s negligence was not made out and that the rules of assumption of risk and contributory negligence barred his recovery.
    3. Appeal and Error — Review—Directed Verdict.
    On appeal from a directed verdict based on one ground, the parties did not, by stipulating that all the questions included in the motion of defendant might be considered in the Supreme Court, impose a duty on the court to examine all the points presented in the motion to direct a verdict; if the reason given by tbe trial court was insufficient, but tbe judge reached a correct conclusion for other reasons, the court would affirm the judgment.
    Error to Wayne; Hosmer, J.
    Submitted October 8, 1914.
    (Docket No. 22.)
    Decided December 19, 1914.
    Case by Harry E. Crawley against the Studebaker Corporation for personal injuries. Judgment for defendant on a directed verdict; plaintiff brings error.
    Affirmed.

      Frederic T. Harward, for appellant.

      George F. & Peter J. Monaghan, for appellee.
   Ostrander, J.

The testimony given by plaintiff was to the effect that before beginning suit he knew, and told his attorney, that he had signed a receipt which he had not read; that it might have been a receipt in full, and, if it was, it was not binding, because in that case a fraud had been perpetrated, 'the physician having misrepresented his (plaintiff’s) condition; that he did not seek to learn what was the form of the receipt, and did not tender to defendant the money which he received when the receipt was given. The declaration was read to him, and he knew what it contained upon the subject. The declaration contains the following:

‘•'That because of his injuries aforesaid he was directed by one Bockus, manager of said plant No. 4 of said defendant, to see and consult Dr. Walter G. Paterson, of the city of Detroit, who was one of the physicians and surgeons of the said defendant, who treated said plaintiff on séveral occasions, and who represented to said plaintiff that he was not injured internally or permanently, which he relied upon and hoped and believed at the time; that some time after said treatment by said Paterson he put in his time which he had lost by reason of said injuries to said defendant at, to wit, seventy ($70.00) dollars, for 14 days’ work lost time, at five ($5.00) dollars a day, which was the amount he received from said defendant, and said defendant offered to pay him forty-two 50/100 ($42.50) dollars for his said lost time, which said plaintiff accepted, and received said money on or about the 23d day of December, 1911, and he signed a receipt for the same, but did not examine it closely; that if said receipt was made in full for his said injuries and action aforesaid, he hereby avers and charges that it was signed by mistake, and was also a fraud upon him because of the statements and representations of the said Dr. Walter G. Paterson, said physician and surgeon of said defendant, concerning his physical conditions, and should have no binding effect upon him, and is null and void.”

A verdict was directed for defendant when plaintiff’s proofs were concluded, upon the ground that plaintiff was bound, before bringing his suit, to tender to defendant a sum of money paid to him, and for which he receipted in the following form:

“Receipt and Release.
“Dec. 19, 1911.
“Received from the Studebaker Corporation the sum of $42.50, which I, being of full age, acknowledge to be in full accord and satisfaction of the disputed claim growing out of the bodily injury sustained by me on or about September 27, 1911, for which bodily injury I claim the said Studebaker Corporation to be legally liable, which liability is expressly denied; and in consideration of the said sum to be paid, I hereby remise, release, and forever discharge the said Studebaker Corporation, its heirs, administrators, and assigns, from any and all actions, causes of action, claims, and demands for or upon or by reason of any damage, loss, injury, or suffering which before has been or which thereafter may be sustained by me in consequence of such accident and injury.
“Witness my hand and seal the day and date first above written.
“Harry E. Crawley.
“Witnessed by Robert E. O’Brien.
“Robert E. O’Brien.”

Error is specifically assigned upon this ruling. When the bill of exceptions was settled, the trial judge added to his certificate the following:

“While I have not considered favorably or unfavorably any of the grounds raised by counsel for defendant in its motion for direction of a verdict, other than the matter of tender, by stipulation of counsel for both sides, in order that all matters raised in the motion of defendant may be considered in the event of appeal, I direct a verdict upon each and all of the grounds raised by defendant in its motion for direction.”

Upon this errors are not specifically assigned. The stipulation referred to is:

“It is hereby stipulated and agreed by and between counsel for the respective parties in the above mentioned cause that inasmuch as the lower court only passed upon the question of tender, and inasmuch as the testimony on plaintiff’s side of this .case is contained in this record, that all the questions included in defendant’s motion for the direction of a verdict may be considered by the Supreme Court, the same as if they had been passed on by the lower court.”

The motion for a directed verdict was based upon the grounds that there had been accord and satisfaction : that defendant’s negligence was not proven; that plaintiff accepted the risk of the injury, and was himself guilty of negligence contributing thereto, as well as the ground that no tender had been made.

With respect to the error specially assigned, it is contended by the appellant that he made 'a case relieving him from the duty of tendering to defendant the money it had paid to him in settlement. He cites and relies upon Mullen v. Old Colony Railroad, 127 Mass. 86 (34 Am. Rep. 349), Stewart v. Railroad Co., 141 Ind. 55 (40 N. E. 67), Bliss v. Railroad Co., 160 Mass. 447 (36 N. E. 65, 39 Am. St. Rep. 504), Butler v. Railroad Co., 88 Ga. 594 (15 S. E. 668), in which cases the principle applied is that, as with respect to a disputed or unliquidated demand, an accord is matter of

contract, preceding or accompanying satisfaction, if the contract is not made and the money paid and received pursuant thereto, but the money is paid and received on some other account, it need not be tendered back before bringing suit upon the demand. In Mullen v. Old Colony Railroad, supra, the court, referring to the rule that tender of the sum received must precede suit, if it is claimed the accord was fraudulently brought about, said:

“The principle * * * applies to those cases only where that which was received, and which must be returned, was the consideration of the contract or settlement which the receiver intended to make, and understood that he was making, and which he seeks to avoid by reason of fraudulent practices of the other party which led him to agree to its terms. It does not apply to cases where a party holds out that he gives the consideration for one thing, and by fraud, obtains an agreement that it was given for another thing.
“In the case at bar, if the evidence for the plaintiff was true, he signed the paper, which purports to show a settlement of his claim, believing it to be a totally different paper from what it, in fact, was. Signing in that belief, in consequence of the fraudulent representations of the defendant, he is not bound by it, because he never made the agreement which the paper indicates. He is not attempting to avoid a contract which he has made, but is showing that he did not make the contract which he apparently made. If this fact is established, it establishes the further fact that he did not receive the money, which was paid him when the paper was signed, in consideration of the settlement of his claim; for the only ground on which the effect of the paper is destroyed is that it was not his intelligent act, but was fraudulently procured by the artifice of the defendant, who knew that he had not made the settlement and had not received a consideration for a settlement.”

The court, in Butler v. Railroad Co., 88 Ga. 594, 598, 599 (15 S. E. 668), states and applies the rule in the following:

“It is quite true that if the plaintiff had made any settlement or entered into any accord touching the injury complained of in his declaration, and now sought to open the same on the ground of fraud, he would have to tender back any money which had been paid to him in consequence or by way of execution of the settlement or accord. East Tennessee, etc., R. Co. v. Hayes, 83 Ga. 558 [10 S. E. 350]. The reason is that to attack a contract on the ground of fraud involves an admission that such a contract was made, and also an election to rescind it; and the rule of rescission always is that the opposite party must be placed in statu quo. But where the plaintiff, instead of attacking a contract for fraud, merely attacks a writing which purports to embody such a contract, and alleges that his signature to the writing was appended without knowledge of its contents and under the belief that he was signing another document, he neither admits that the contract was made nor seeks to rescind it. His grievance is not that he was induced by fraud to enter into a contract, but that a fraudulent advantage was taken of him by procuring his signature to a writing, which purports to set forth a contract into which he never entered. On his theory, the money he received was no fruit of such a contract, and. could not have been, because none such was ever made. The money, as he contends, was paid him as wages which he claimed then, and still claims, as due hirn under a previous and wholly different contract. Taking all he says as true, he has received nothing which he ought not to have had independently of any agreement, fraudulent or not fraudulent, touching his claim for damages on account of the personal injury sued for, and he denies distinctly that the contract set forth in the writing was ever made. Mullen v. Railroad Co., 127 Mass. 86 [34 Am. Rep. 349]. The true question is, therefore, not whether he could be heard without tendering back the money, but whether, as a rule of evidence, he is estopped from'controverting the truth of the contents of the writing. That he is an illiterate person is apparent from the fact that he subscribed the instrument by making his mark, his name being written by some one else. He testifies that he cannot read, and that the document was not read over to him, and that he thought he was signing an ordinary pay roll. In the course of his testimony he details the circumstances which led up to the payment, and, while he does not explain fully why he thought he was signing an ordinary pay roll, the facts which he mentions are strongly suggestive of misrepresentation on the part of one or more agents of the company, together with erroneous inferences made by his own mind, as the true explanation. .It may be that, under the authorities, he did not show the alleged fraud by sufficient evidence, but this is a very different matter from tendering back the money as a condition precedent to having the charge of fraud submitted to the jury on such evidence as there was.”

In this State a similar proposition has received some attention in O’Neil v. Iron Co., 63 Mich. 690 (30 N. W. 688); Henderson v. McRae, 148 Mich. 324 (111 N. W. 1057); Proctor v. Hobart M. Cable Co., 145 Mich. 503 (108 N. W. 992); and in other cases.

But there is no room for the application of the doctrine in the case at bar, because the evidence that plaintiff and defendant did reach an agreement' with respect to compensation for plaintiff’s injuries is very clear. He was injured, and did not work for 14 days. He was earning $5 a day. He lost, in this way, $70. He returned to work, supposing, as he says, that his injury was not continuing; at least, was not permanent. The claim agent of defendant saw him and inquired how he got hurt and said:

“ ‘The thing that hurt you the worst is the time you lost.’ I said, T did not know; the company had always treated me all right.’ And he said, ‘Well,’ he said, T am going to take this up to No. 1 plant and see that you get your wages for the time you were off.’ I said, ‘All right.’ He represented himself to be assistant claim agent of the Studebaker.”

Later on, on plaintiff’s application, the subject was resumed, and plaintiff was informed by the same agent:

“He said the company would not let him give me all the wages; it amounted to $70; he would give me $42.50 of it, so I took it.”

Trué, plaintiff testifies that he understood this was for lost wages, and that he was not told that it was for a release of all claims for his injury; that he did not read the paper — release—which he signed, and it was not read to him. But no fraud was practiced, and none is alleged, in procuring the written release. Plaintiff is intelligent and can read. The release is plainly printed, and its-terms are not doubtful. Moreover, as has been stated, plaintiff did not then suppose that his injury was serious. He had returned to work and was earning wages, and his apparent damages were his lost time. It is clear that plaintiff understood the effect of what he was doing, some evidence of which is found in the declaration. The trial court could not have permitted a finding opposed to this conclusion to stand.

The stipulation of counsel and the pro forma ruling of the trial court upon other points relied upon by appellee at the trial impose no duty upon this court to examine those points, beyond this, that if the reason given by the trial court for directing a verdict was a bad reason, and it appeared, nevertheless, that the ruling was a correct one, the judgment would be affirmed. The cause has been briefed and argued as if all of the grounds urged for a directed verdict were open to our consideration. It may therefore be said, with propriety, that we were impressed at the hearing, and an examination of the record has convinced us, that the defendant’s negligence was not made out, and that plaintiff’s injury was the result of his own want of care; the risk of the particular injury being voluntarily and intelligently assumed by him.

The judgment is affirmed.

Brooke, Stone, Bird, Moore, and Steebe, JJ., concurred with Ostrander, J. McAlvay, C. J., and Kuhn, J., concurred in the result.


text:
    PATTERSON v. HOGSTEIN.
    1. Summary Proceedings — Circuit Court Commissioner — Summons — Complaint—Date—Time—Venue.
    Summons of a circuit court commissioner in a suit to dispossess the vendee of land, who was in default in his payments, was not invalid, although dated on the day after the complainant verified the complaint. Nor was the proceeding insufficient because the complaint was made and sworn to in another county than that in which the land lay.
    2. Vendor and Purchaser — Notice oe Forfeiture — Election.
    The proceeding before the circuit court commissioner was not prematurely commenced because the summons was issued on the same day that a second notice of forfeiture was served, though afterwards, complainant having served a prior notice from which a part‘of the land was omitted.
    Error to Muskegon; Sullivan, J.
    Submitted October 9, 1914.
    (Docket No. 46.)
    Decided December 19, 1914.
    Summary proceedings by Emma F. Patterson and another against William F. Hogstein for the possession of real property. Judgment for complainants in both courts. Defendant brings error.
    Affirmed.

      Turner & Turner, for appellant.

      Walter I. Lillie, for appellees.
   Ostrander, J.

The relations of complainants and defendant are respectively those of vendor and vendee in an executory contract for the purchase and sale of certain premises; defendant being in possession. The vendee defaulted, and the vendors elected to forfeit and determine the contract relations and to repossess the premises. Written notice to this effect was given defendant and was followed by proceédings before a circuit court commissioner to recover possession. The commissioner, and later the circuit court on appeal, made an order for restitution of the premises, determining and stating the extent of defendant’s default —the sum due and unpaid on the contract. The complaint was prepared and was signed and verified in Ottawa county and was transmitted by mail to the circuit court commissioner in Muskegon county, who issued the summons two days after the complaint was verified. The complaint was made on the same day that the last notice of forfeiture and to quit was served on defendant. This was February 2, 1914. The notice was served in the morning and the complaint was made afterwards. An earlier notice, which failed to describe a portion of the land, but which declared the contract under which the premises were held forfeited, was served on defendant June 26, 1913.

No testimony was offered by defendant, who rested in the court below and in this court upon the propositions: .

(1) That the circuit court commissioner did not acquire jurisdiction because summons was not issued on the day the complaint was verified; (2) the complaint was a nullity because verified in Ottawa county while the lan'd sought to be recovered is in Muskegon county; (3) the complaint was made too soon, because defendant was entitled to the day on which the last notice was given to comply therewith and vacate the premises.

We are referred to no authority sustaining either proposition, and no good reason is given, and we know of none, for regarding them as meritorious. Complainants elected in June, 1913, to declare the contract forfeited. Out of abundant caution, notice of this election was repeated. Defendant owes a sum of money, by reason of which and complainants’ election he is wrongfully in possession of the premises.

The judgment saves all of his rights, and is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    MOREHOUSE v. SHEPARD.
    1. Brokers — Services Rendered — Commissions — Value — Damages.
    Under a contract to pay a farmer well If he sold the farm belonging to defendants, his neighbors, for whom the plaintiff later found a purchaser, the measure of his compensation was the fair value of plaintiff’s services, not the customary commission of a broker for obtaining a buyer of the farm; although the testimony showing the usual rates of brokers was competent as evidence of value and might properly be considered by the jury, in determining what his services were worth.
    2. Same — Evidence.
    Where the jury, in an action of assumpsit for services rendered by a farmer in selling a farm, returned a verdict for less than the amount of commission claimed by the plaintiff, but defendants did not offer to prove that the services performed were worth a less amount than the plaintiff recovered, judgment should not -be reversed, although the court had, at the trial, indicated that the measure of damages that plaintiff urged was the correct measure.
    Error to Van Burén; Des Voignes, J.
    Submitted October 13, 1914.
    (Docket No. 93.)
    Decided December 19, 1914.
    Rehearing denied April 28, 1915.

      Assumpsit by Frank D. Morehouse against Horace T. Shepard and another for services performed. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Thomas J. Cavanaugh, for appellants.

      David Anderson, for appellee.
   Ostrander, J.

Plaintiff, a farmer, claims that the defendants, also farmers, and neighbors of plaintiff, desired to sell their farm, and said to him, each of them, in substance, “If you can sell it, I will pay you for it,” “I will pay you, and pay you well, for selling the farm;” that he undertook to sell it. He claims,' further, that he found and produced a person who bought the farm and paid for it the sum of $9,000, and that he should be paid as a commission 5 per cent, on this sum. He declared upon the common counts in assumpsit, and gave as particulars of his demand the following:

“To commission on sale of real estate, $9,000 at 5 per cent...........................$450 00
“Said commission to be at the usual rate at Paw Paw, Mich., and said 5 per cent, being said rate as claimed by plaintiff.”

Defendants denied making any contract with plaintiff, and denied that plaintiff sold or found a purchaser for the farm on their account, and asserted that plaintiff’s interest and conduct with respect to the sale arose out of the fact that he wished his brother-in-law, the purchaser, to locate near him. Included in this was a claim that plaintiff, in talking with the intending purchaser, depreciated the value of the farm, calling attention to its run-down condition as affecting the price which should be paid for it. Issue having been joined and the cause tried, a verdict was returned in plaintiff’s favor for $250, and judgment was entered accordingly.

The issues were simple, were plainly for a jury, and, while a considerable number of exceptions were taken and made the foundation for an assignment of errors, we think they are without merit and, with a single exception, that they require no discussion. Plaintiff introduced testimony tending to prove the defendants’ offer and his efforts pursuant thereto, known to defendants, to find a purchaser for the farm. That the farm was sold for $9,000 to a person produced by plaintiff is not disputed. As to the value of his services, plaintiff showed, over objection and exception, the usual commission charged and received by real estate agents and brokers in Paw Paw, and the court instructed the jury that if they reached the question of damages, they should, in determining the amount of them, “be governed by the usual compensation to be paid in Paw Paw for services of this kind —Paw Paw and vicinity.” Error is assigned upon this instruction. In this connection and a subject of assigned error, the court said:

“It is no objection to plaintiff’s right to recover that he has not regularly been in the business of real estate agent. Any person, no matter what his business, has the right to accept employment as agent for another in the sale of real estate. If defendants in fact employed Mr. Morehouse as their agent in the matter claimed by him, they would be as much bound to pay him as if they had made the same contract with a person whose only business was to act as a real estate agent.”

Concerning this, appellants say in their brief, in part:

“If the plaintiff was at the time engaged in the real estate business, there would be no doubt but the defendants would be obliged to take notice of- a custom existing among real estate brokers, but that is not the question with which we are dealing. The plaintiff was not engaged in the real estate business. Then the contract, as related by the’plaintiff himself, would, it seems, negative any intent on the part of the defendant to pay a commission, or any intent on the part of the plaintiff to ask a commission such as persons engaged in the real estate business would expect.
“The parties were farmers, neighbors as it were, and, admitting the making of the contract in the language of the plaintiff, can it be said as a matter of law that the defendant meant more, or that the plaintiff expected more, than to be paid well for the time expended in-producing a customer?
“We believe the proper way to measure plaintiff’s compensation would have been for him to show the amount of time spent in endeavoring to and in procuring a customer, and then to show the value of those services.”

Plaintiff did show, rather generally, what he had done, in his effort to prove that he was the efficient cause of making the sale.

We are of opinion that counsel for appellants is right in his contention to this extent: That upon the measure of damages the question was, What was the fair value of the services rendered by the plaintiff? In determining the fair value of the services, it was not error to consider what real estate men in the neighborhood customarily charged, but it was error to make the customary charge of real estate men the governing factor. . It is not unusual for a neighbor to perform for a neighbor, for hire, special services out of the line and scope of his usual employment. A woman will sometimes, with skill, nurse her neighbor who is sick, or her neighbor’s child, with the mutual understanding that she shall be well paid for what she does. In such a case, the usual wages of a trained nurse ought not to be the measure of her pay, for various obvious reasons, one of which is that the parties did not contract with reference to any such standard of wages.

Can it be said that the error was not prejudicial? Presumptively it was prejudicial. The verdict indicates that the jury considered that reasonable pay for plaintiff’s services was a sum less than 5 per cent, of the selling price of the farm. In the face of the court’s instruction, they returned a verdict for $200 less than the instrúction called for. Defendants introduced no testimony upon the subject. They say in the brief that because the court, in ruling that testimony of the usual commission was competent, said:

“I am afraid that any other measure of damages than that suggested by counsel for the plaintiff would lead us into a field of exploration that would never dnd. Either he is right upon that proposition or he has no standing in court”—

defendants were thereby precluded from offering any testimony as to the value of the services of the plaintiff, except the testimony of witnesses concerning the prevailing custom among real estate brokers. It is probable that the court would have excluded any testimony offered by defendants upon the subject of the reasonable value of plaintiff’s services. • But counsel should have offered, if in good faith he could have done so, to prove that they were worth some sum less than plaintiff claimed. If he had, and has, no testimony tending to prove, the contract being established, that the services were reasonably worth less than $250, there ought to be no new trial.

The judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


author: Bird, J.

text:
    JOHN D. GRUBER CO. v. MONTCALM CIRCUIT JUDGE.
    1. Attachment — Motions—Dissolution—Waiver of Defects.
    To dissolve a writ of attachment for delay in issuing after the affidavit was executed and for defects in the description of the real estate levied upon, a motion for the dissolution of the writ is the correct practice; hut it should be made before the defendant enters his appearance and pleads to the merits, or defects appearing on the face of the proceedings will be waived.
    2. Same — Statutes—Dissolution.
    Section 10595, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13400), relates to proceedings to dissolve if the facts alleged in plaintiff’s affidavit are to be contested; under this section the application may be made at any time; it in no way affects a motion to dissolve for defects that appear on the face of the writ or proceedings.
    3. Same — Description—Inventory.
    Although the property is described as situated in a village named, without stating the county or State, the omission may be considered as sufficiently obviated by the recital contained in the officer’s certificate showing the county and State in which the levy was made.
    Mandamus by the John D. Gruber Company against Frank D. M. Davis, judge of the Ionia circuit court, to require the respondent to vacate an order quashing an attachment levy.
    Submitted October 12, 1914.
    (Calendar No. 26,366.)
    Writ granted December 19, 1914.

      Foss O. Eldred, for relator.

      George E. Nichols (Glenn D. Mathews, of counsel), for respondent.
   Bird, J.

The relator commenced an attachment suit against Dale A. Smith and Clarence Smith, and caused the same to be levied upon their lands lying in the county of Ionia. .The ground alleged in the affidavit for the issuance of the writ was that defendants were nonresidents of the State. The defendants subsequently appeared by counsel and filed their plea to the merits, and the case was noticed for trial. After the case was at issue and ready for trial, defendants filed a motion to quash the attachment for the reasons:

(1) That more than the statutory time had intervened between the making of the affidavit and the issuance of the writ; (2) that the description of the premises in the certificate of levy and inventory was too uncertain and indefinite.

Upon a hearing of this motion, the respondent quashed the attachment levy, giving as his reason for so doing:

“That the said attachment levy in said cause is invalid, and that said plaintiff has not a good and legal cause for suing out said writ.”

The order further provided that:

“It further appearing that said defendants have-appeared in said cause, and the court having jurisdiction of the parties by reason thereof, therefore it is ordered that said suit stand as if personal service had been had.”

It also appeared by the return of respondent that the attachment levy was quashed by reason of the defect in the affidavit pointed out by defendants in their motion. The relator asks this court for a writ of mandamus to compel the respondent to set aside the order and reinstate the attachment levy. Relator’s argument impliedly admits that the objection would have been well taken if it had been raised seasonably, but he insists that after the defendants appeared, filed their plea, and the case had been noticed for trial, the defect was thereby waived. The question, therefore, presented for our consideration is whether, under such, circumstances, the defendants have waived their right to make this objection.

It is proper practice in this State to bring to the attention of the trial court by a motion to quash such defects as are apparent upon the face of an affidavit for attachment. Roelofson v. Hatch, 3 Mich. 278.

But in order to make the motion effective it must be made before the defendant enters his general appearance and pleads to the merits; if delayed until after that time, the defect will be deemed to have been waived. 1 Green’s Michigan Practice, § 427; 1 Stevens’ Michigan Practice, § 17; Crane v. Hardy, 1 Mich. 56; Manhard v. Schott, 37 Mich. 234; Payment v. Church, 38 Mich. 776; Bryant v. Hendee, 40 Mich. 543; Dailey v. Kennedy, 64 Mich. 208 (31 N. W. 125); Gunn Hardware Co. v. Denison, 83 Mich. 40 (46 N. W. 940); Graham v. Cass Circuit Judge, 108 Mich. 425 (66 N. W. 348).

Counsel for respondent cites the case of Hyde v. Nelson, 11 Mich. 353, in support of his contention that there was no waiver. That case is not in point; it has reference to applications for a dissolution of attachment proceedings under the statute. 3 Comp. Laws, § 10595 (5 How. Stat. [2d Ed.] §13400). If it is desired to contest the truth of the grounds alleged in the affidavit for the issuance of the writ, resort must be had to this statute. Bower v. Town, 12 Mich. 230. And inasmuch as there are no restrictions in the foregoing statute as to when a petition for dissolution may be filed, it is held in Hyde v. Nelson, supra, that an application may be made and granted after the defendant has appeared and pleaded to the merits, and in a later case it is held that a petition to dissolve may be granted even after judgment.’ Gore v. Ray, 73 Mich. 385 (41 N. W. 329). But this rule does not apply where the defect in the affidavit is seasonably brought to the attention of the court by a motion to quash, as was done in the instant case. Our conclusion is that the defendants waived their right to take advantage of the defects in the affidavit by entering a general appearance and filing their plea to the merits.

2. It is said the description of the premises in the inventory is too vague and uncertain to establish a lien upon the property. The inventory is in the following form: .

“State of Michigan,
“County of Ionia — ss.;
“By virtue of the annexed writ of attachment, wherein the John D. Gruber Company, a foreign corporation is plaintiff, and Dale A. Smith and Clarence R. Smith are defendants, I have this day seized certain lands, tenements, goods, chattels, moneys, and effects, of which the following is an inventory made by me, viz.:
“Inventory. All that certain piece and parcel of land known and described as follows: The south twenty-five (25) feet lot No. sixty (60) of the original plat of the village of Portland, same being the building now occupied by H. F. Caswell. Four thousand five hundred dollars ($4,500.00).
“Dated this 10th day of January, A. D. 1913.
“Glenn R. Van Geisen,
“Deputy Sheriff of Ionia County.”

The specific objection is that the county and State are omitted. If we look only to the description, there appears to be some force in the objection, but when it is read in connection with the officer’s certificate which accompanied the inventory, it becomes reasonably certain that “the village of Portland” referred to is located in Ionia county and State of Michigan. It appears from the certificate that the inventory was made by a deputy sheriff of Ionia county, and that such official action took place in Ionia county and State of Michigan. This sufficiently identifies the county and State. Russell v. Sweezey, 22 Mich. 235; Smith v. Brown, 34 Mich. 454; Slater v. Breese, 36 Mich. 77.

We are of the opinion that the order setting aside the attachment levy should be vacated, and the writ will issue as prayed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


text:
    KENNEDY v. FORD.
    1. Summary Proceedings — Appeal and Error — Assignments.
    In summary proceedings for the possession of real property the appellant who had asked the court to charge that the jury should find a verdict for complainant and determine the amount due under the land contract which complainant claimed that the respondent had forfeited and that respondent had surrendered the premises, was not in a position to urge on error the defense that respondent had tendered the amount due and sought to proceed with the contract and that such tender deprived complainant of the right to commence a suit to dispossess the vendee.
    2. Same — Rights After Default — Forfeiture.
    Where complainant in proceedings before the circuit court . commissioner claimed that the respondent had defaulted and acquiesced in the forfeiture of his contract interest but later recovered possession of the land by threats and show of force, whereupon the vendor in said contract instituted summary proceedings, the 'jury finding that respondent abandoned the property and forfeited all rights under the contract, by surrendering possession to the vendor, the vendee could not reinstate his contract interest by forcibly dispossessing the complainant.

      3. Same — Method op Surrender — Parol Acts.
    Ths contention of the complainant did not rest upon or involve the alleged claim that rights under a contract for the purchase of land cannot he surrendered by parol.
    4. Same — Trial.
    And while the charge was contradictory in that it stated complainant’s claim improperly, and in that the court incorrectly instructed the jury that even if they found defendant had not surrendered his rights they should find a verdict for the amount due upon the contract, the errors prejudiced only complainant who did not appeal.
    5. Same — Evidence—Conclusions.
    It was not erroneous for the court to strike out the answer of one of the witnesses to the interrogatory, “Did you ever surrender possession of the premises to -?” which involved a mixed question of fact and law, and when it had been shown by evidence in detail what the parties did and said.
    Error to Cass; Des Voignes, J.
    Submitted October 16, 1914.
    (Docket No. 121.)
    Decided December 19, 1914.
    Forcible detainer proceedings by Josephine R. Kennedy against James H. Ford for the possession of farm lands. Judgment for complainant, who appealed to the circuit court and recovered unconditional judgment of restitution. Defendant brings error.
    Affirmed.

      Clarence M. Lyle, for appellant.
    Asa K. Hayden and Chester E. Cone, for appellee.
    In 1906 the land was owned by Julia E. Hepworth, who in March of that year contracted, in writing, with the defendant to sell the land to him for $20 an acre, the purchase price, $650, to be paid in installments, the last one falling due March 20, 1909, with interest. It was agreed that when one-half the purchase price was paid a deed of the land should be given and the land thereupon be mortgaged to secure a note of defendant for the remainder. Defendant, the vendee, was given possession of the premises, both by the terms of the contract and in fact. It was mutually covenanted that in case of the default of the vendee the vendor might declare the contract void, forfeit all payments theretofore made, and thereupon the land and appurtenances should revert to the vendor, who might consider and treat the vendee as a tenant holding over without permission, take immediate possession of the premises, and remove the vendee therefrom, or, at her option, the vendor might enforce the contract liability of the vendee.
    Defendant owned premises adjoining the parcel in question, and he cleaned up and cultivated some 10 or 12 acres of the land. Defendant, at various times, the last being September 8, 1911, made payments aggregating $350, which were indorsed on the contract. Some time in the latter part of the year 1912 the defendant was notified that he owed $471.77 on the contract, and he talked with the attorney of the vendor, telling him finally that he would get the money in about three weeks and pay. A paper was served on the defendant, vendee, February 7, 1913, which, after reciting the date of the contract and other things, notified defendant that the vendor—
    “Has and does declare said contract void and declares 'her election to retain previous payments and improvements as stipulated damages for nonperformance of said contract.”
    By warranty deed, dated February 7, 1913, the vendor conveyed the land to complainant. To her defendant tendered the sum of $525 March 29, 1913. It was refused. Alleging in her complaint that defendant held the premises by force, unlawfully, and against her right, and that she was entitled to possession, complainant instituted, in April, 1913, before a circuit court commissioner, an action to recover possession of the premises, the regularity of the proceeding not being in any way now questioned by defendant, and she had judgment for restitution of the premises, but the commissioner recited in the judgment that there was due on the contract $481.59. This was May 3, 1913, on which day defendant tendered complainant $505, asking for a deed of the premises. The tender was refused. Complainant appealed from the judgment rendered by the commissioner, and in the circuit court again had judgment for restitution, but the júry found, upon an issue submitted by the court, that before suit was begun defendant had acquiesced in the claimed forfeiture, and surrendered and abandoned the premises.
    The court instructed the jury in part, and in doing so stated the issue as the court regarded it, as follows:
    “And in a nutshell, gentlemen, if you find that the plaintiff in this case secured possession of these premises of the defendant in the manner claimed by her, that is, that he relinquished them to her and by his act and conduct gave her peaceable possession, then 1 charge you as a matter of law that the defendant in this case has no further rights under the terms of this contract; in other words, that the plaintiff would be entitled to a verdict at your hands of guilty —and that will carry with your verdict the right of plaintiff to secure restitution to the lands and premises in question.
    “If upon the other hand, gentlemen, you find that he did not relinquish his contract and possession— give possession over to the complainant or her grantor in this case in the manner claimed by them — then the form of your verdict will still be guilty, but you will find that in that case your verdict will be guilty and assess the damages against the defendant in this case at the' sum of $481.20. So, gentlemen, you will return one of two verdicts in this case. But it will depend whether or not, and your finding of the fact in this case whether or not, it shall be simply your verdict, ‘We. find the defendant guilty/ or whether, ‘We find the defendant guilty and require him to pay the sum of $481.20.’ In the last instance, if you find that verdict, it will be upon the assumption that he never at any time relinquished his contract or surrendered possession to the premises in question.”
    The court also said to the jury:
    “Now, gentlemen, there is only one question that I am going to submit to you in this case. The other questions have become one entirely of law. The question that I shall submit to you for your determination is, as the court believes, one of fact entirely, and that is this: Did the defendant surrender possession of
    these premises and relinquish his right to the contract?”
    In his brief, and in the following order, appellant states his points to be:

      First, that the tender of March 29, 1913, deprived complainant of -the right to maintain this suit; second, that the interest of a contract purchaser in land cannot be surrendered by parol; third, that in any event the sum due upon the contract should have been stated in the verdict and judgment; and, fourth, that the charge was contradictory and, as the case was submitted to the jury, certain testimony should not have been excluded.
   Ostrander, J.

(after stating the facts). I do not find that appellant’s first point was made in the trial court. Indeed, the court was requested to instruct the jury to render a verdict of guilty and to determine that there was due complainant, by virtue of the contract, $481.20, which was the amount agreed to be due. As to the second point, the appellee does not claim that the vendee’s interest was surrendered by parol, and does contend that what he did amounted to an abandonment of the premises, surrender thereof to the owner, and acquiescence in the claimed and asserted forfeiture of his rights; that thereafter he interfered with complainant’s acts as, possessor of the premises in a threatening manner and excluded complainant by threats and a show of force.

Defendant seems to have wholly misapprehended the complainant’s theory and the ruling, of the trial judge. Complainant does not claim to be entitled to possession of the premises in consequence of the nonpayment of a sum of money. She denies that the parties have any contract, relations. If she is right, it is not because defendant attempted to divest himself of his interest in the land by parol. The contract provides for a forfeiture of the vendee’s rights, at the election of the vendor. The vendor elected to forfeit. It is obvious that thereafter the vendee might have acquiesced, surrendered his possession to the vendor, and thereby lost all right in the premises, or, he might have refused to do so. If he had refused, and suit'to recover possession had been begun and successfully prosecuted, then by virtue of the statute (3 Comp. Laws, §§ 11168, 11177) he would still have the right to pay the sum found to be due on the contract and double the costs awarded to complainant, and in this way save his interest in the land. A jury has found that the vendee acquiesced in the forfeiture and surrendered possession to the vendor. If he did, he should not have retaken and retained possession by force. He could not, in this way, reinstate the original contract relations of the parties and by virtue of them claim the benefit of the statute right to discharge his contract obligation after judgment. There was testimony supporting the verdict of the jury, and there was no motion for a new trial.

The charge of the court was contradictory, both in the recital of the contention of complainant and in advising the jury that if they found no surrender of possession by the vendee, they should still find defendant guilty and find the amount due on the contract. The instruction is explained by the attitude of defendant as indicated in the requests to charge, and the wrong recital may be charged to inadvertence. Defendant could not be, and was not, prejudiced by either.

It is alleged as error that the court struck out the answer of defendant to the question, “Did you ever surrender possession to Josephine R. Kennedy?” What the parties did and said was laid before the jury. Whether there was a surrender was at least a mixed question of fact and law. No fault is found with the charge in this behalf, and the court was not in error in the ruling complained about.

Reversible error not being made to appear, the judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.