text:
    VAN SYCKLE v. THOMPSON.
    Compromise and Settlement — Fraud—Evidence.
    In a suit to vacate a compromise of complainant’s interest in an estate of her grandfather, on the ground that she was defrauded or mistaken as to the value of the interest which she was entitled to, evidence that her solicitors had, previously to the compromise, advised her in relation to her rights, and the extent of decedent’s estate, refuted her claim of ignorance and of fraud practiced by defendants.
    Appeal from Macomb; Tappan, J.
    Submitted November 12, 1912.
    (Docket No. 95.)
    Decided July 9, 1913.
    Bill by Hattie Bristol Van .Syckle against William Thompson and another for the cancellation of a deed and contract of settlement. From a decree for defendants, complainant appeals.
    Affirmed.

      Stewart & Jacobs and John A. Weeks, for complainant.

      Henry B. Graves, for defendants.
   Moore, J.

In April, 1889, Joel Thompson died in the village of Romeo, Mich., leaving as heirs the complainant, a granddaughter, the defendant William Thompson and Noah Thompson, his sons, and his widow, Sarah R. Thompson. The mother of complainant was a daughter of Joel Thompson, and died in August, 1880. Joel Thompson executed to the complainant (then Hattie Bristol) a deed of lots 7 and 8 of Hartung’s addition to said village of Romeo, which deed bears date December 22, 1884. Joel Thompson on the 13th day of June, 1888, executed his last will bequeathing his entire estate to the defendant William Thompson, subject to the life use of the personal property in the widow, Sarah R. Thompson, and also subject to the care and support of Noah Thompson, brother of William Thompson., At the time the deed to the complainant was executed the deed was placed with one J. L. Starkweather in escrow, to be delivered to her upon the death of her grandmother, Sarah R. Thompson. The grandmother died July 17, 1904. The complainant was bom in 1880. After her grandmother’s death, she was informed by the defendant that one J. L. Starkweather held the deed in question. On October 3, 1904, she, accompanied by her husband, went to the office of Mr. Starkweather in Romeo to secure the deed. Mr. Starkweather read the deed to her, but did not deliver the same. An effort was then made by Mr. Starkweather to obtain a quitclaim deed from the defendants to the complainant of any interest they might have in said property. The deed to the complainant comprised the homestead of the said Joel and Sarah Thompson. Through mistake this deed was not signed by Mrs. Thompson. The defendant William Thompson, learning of this fact, denied the validity of the deed, and began proceedings to set the same aside, claiming title to the property therein described as the residuary legatee under the said will of his father. Mr. Starkweather was employed in that litigation, and to carry it on, a mortgage was made on the Romeo property to one Chamberlain. Later Mr. Starkweather employed Canfield & Erskine to assist in the litigation. An answer was prepared and filed in the case by Mr. Canfield. Later negotiations were had for a settlement, which resulted in the complainant giving to Mr. Thompson a quitclaim deed to the Romeo property and to all property owned by the grandfather of complainant, and her signing a contract relinquishing all claims to his estate and settling the litigation. This bill of complaint is filed to obtain a cancellation of this deed and contract, and to establish complainant’s right to a share in her grandfather’s estate.

The trial judge filed a written opinion, from which we quote as follows:

“The ground upon which decree is asked is the claim that fraud was practiced upon complainant by the defendants Thompson, and their solicitor Hosner, in securing the said deed and contract from her, and the fact that she so settled the matters named in the contract while ignorant of her rights in the property involved and was ignorant of its extent and value. * * * One of the chief reasons upon which fraud is based is the claim that, when complainant executed the deed and contract in question, she was ignorant of the fact that she might, as a result of the litigation settled, obtain a one-third share of her grandfather’s estate, and that she was ignorant of the extent and true value thereof. It is my conclusion that an extended finding upon the issues thus raised .is unnecessary. Complainant’s claim that she was ignorant of her rights in the estate and óf the value and extent thereof is not supported by the proofs. The proofs show that she was fully advised by her solicitor, Mr. Canfield, as to her rights upon settlement, and he repeatedly advised her as to care and caution in the settlement of these rights, as well as to the extent of her claim. The correspondence between complainant and Starkweather shows that she was again fully advised as to her rights, and also as to the amount of the property involved. All of this information was given complainant long before she executed the deed and contract of settlement which she now seeks to set aside. At the time of settlement the former suit was undetermined, and there was -nothing to indicate whether her claims to this property, as set forth in her cross-bill, filed in the former suit would be sustained. Her mortgage given on part of the property involved to Chamberlain for $500 was assumed by Thompson. He also assumed the payment of the costs of litigation and the payment of her solicitors and the sum of $200 in addition, a total of $400. In view of the pendency of this unsettled litigation, the payments made by Thompson by way of settlement, and the information she received from her solicitors as to the matter of settlement and the extent of the property, it cannot be said that either actual fraud was practiced upon complainant by the Thompsons or Hosner, or any of them, nor was there constructive fraud on account of a discrepancy between the actual value of the property and the amount she received therefor. Complainant was competent to understand, and did understand, the nature of the transactions involved and is bound by the settlement openly entered into by and between her and the defendants herein.”

The case is brought here by appeal.

It is urged with much earnestness that the decree is wrong, that facts were withheld from complainant, and that she did not know that her grandfather left any estate except the real estate which it was attempted to deed to her. She and her husband so testify. The oral proof offered by the defendants contradicts most emphatically that offered on the part of the complainant. The oral proof taken as an entirety is an illustration of how unreliable the human memory is when affected by self interest. There was an interview in Detroit to talk over a settlement at which the attorneys for the respective parties were present. The complainant was accompanied by her husband. At this time she was upwards of 25 years old. She had received letters from which we make excerpts:

“Mt. Clemens, Mich., August 28, ’05.
“Haeeiette Van Syckle,
“Battle Creek, Michigan.
“Dear Madam:
“We are after Willie Thompson good and hard. Mr. Canfield and Mr. Erskine and I went over all the probate records and record in register’s office and I can say to you confidentially that if the deed is set aside which they swear is worth $1,800, we shall claim you was left out of the will and by this error in homestead deed or faulty delivery, we ask for the original $1,500 again we also shall offer that you are entitled to one-third of the estate of $7,000, $2,833.33 and interest on this sum from 1890 over 15 years. We will ask him to contribute all as he purchased all other rights and interest under the will and he is the surety on the bond of Wm. L. Dicken, the executor. * * *
“I am respectfully,
“J. L. Staekweathee.”
“[Letter head of J. L. Starkweather, Attorney, Romeo, Michigan.]
“October 26, 1905.
“Mes. Haeeiette B. Van Syckle,
“Battle Creek, Michigan.
“Dear Madam:
“I received your letter some few weeks ago. I was in hopes to be able when I answered your letter to name a day when your case would be tried. I was at Mt. Clemens on Monday and Mr. Erskine informed me that Judge Knight had not filed any answer to our cross-bill. I was in Detroit yesterday and saw Mr. Canfield and he is quite anxious to take the matter up. I learned that the Judge and most of the attorneys are away hunting. I have made two trips to Ann Arbor to see Wm. L. Dicken but so far have not been able to find him at home. I wished your uncle would run down and see him at Ann Arbor or accidentally call upon Will Thompson, the complainant and ascertain if he is willing and ready to turn over the $3,000 of Joel .Thompson’s estate. I am of the impression that he will send a messenger to settle with you personally rather than go on with this suit. * * *”
“[Letter head of J. L. Starkweather, Attorney, Romeo, Mich.]
“Romeo, Michigan,
“November 3d, 1910.
“Mrs. Harriet Bristol, now Van Syckle,
“261 East Van Burén Street,
“Battle Creek, Mich.
“Dear Madam:
“I have just received your letter of Nov. 1st, and I have made a copy of the same and sent to Hon. F. H. Canfield at Detroit, and requested him to write to you at once what he thought best to do. I would say that it woud be a proper thing for a settlement to be made in the matter either in court or at Mr. Canfield’s office at Detroit. If settled in court and the deed should be set aside, you then would have one-third of Joel Thompson’s estate, which would be between $2,500 to $3,000. When they understand that they have got to pay this money, if their own bill is granted, they will come to a settlement that we may name. * * *”

This letter was signed by Mr. Starkweather.

The complainant says she was warned against Mr. Starkweather by the defendants; they stating he was dishonest and unreliable, and for that reason placed no reliance upon his statements. We now quote another letter:

“November 22d, 1905.
“Mrs. Harriett Van Syckle,
“261 East Van Burén Street,
“Battle Creek, Michigan.
“Dear Madame:
“I have yours of the 21st inst., with copy of Mrs. Thompson’s letter. I think the true reason why your uncle makes an offer of settlement is that he is afraid of the result of the case if it is tried, and that he has probably been advised by his counsel that his title to the property in Romeo is very doubtful. The indications to me are that they fear that the court will sustain your claim.
“You will recall that I said to you when you were in my office some time ago that if the court should decide that your deed to the Romeo property was not valid, it would open the door for you to claim the share in all the property which your grandfather left, which your mother would have been entitled to if she were now living. I based my opinion upon the statute of the State, wliich provides that where a child or grandchild would be entitled to an equal proportion o'f the property with the other heirs.
“I always favor the settlement of matters of this kind, upon proper and just grounds. I do not think that the offer which your uncle has made you is a proper offer, and I do not think it ought to be accepted. I think it would be much better for him and for you if he really wants to make a just settlement, to meet at my office where the whole matter can be talked over and fairly considered. If this is done, there ought not to be much trouble in arriving at a just settlement. You ought not to consent to negotiate^with him, unless Mr. Erskine or myself, or both of us are present, and I think you should write your uncle to that effect.
“Yours truly,
“F. H. Canfield.”

An interview was had in Detroit, but no settlement was reached. Later the defendants went to Battle Creek with their attorney, and were accompanied by the complainant and her husband to the office of a lawyer at Battle Creek. There is the widest conflict in the testimony as to what occurred. A settlement was discussed, but none was reached. Later a second visit was made to Battle Creek, where a settlement was discussed. Finally the quitclaim deed and contract which are the subject of this controversy were made. In the deed the property is described as follows:

“Forever all that certain pieces or parcels of land, situated in the village of Romeo, in Macomb county, and State of Michigan, known and described as follows: Lots seven and eight of Tillson’s and Harthung’s addition to the village of Romeo, Macomb county, Michigan, and also the following described property situated and being in the township of Ray, Macomb county, Michigan, known and identified as the lands owned by Joel Thompson, deceased, at the time of his death and located in sections 8 and 9 in said township of Ray, Macomb county, Mich., and left by will executed by said Joel Thompson, on the 13th day of June one thousand eight hundred eighty eight, to said Willie Thompson.”

The written contract contains the following language :

"Whereas suit has been started and is now pending by said Willie Thompson vs. Hattie Van Syckle, et al., to quiet title of said Willie Thompson to property in the village of Romeo known as lots seven and eight of Tillson’s and Harthung’s addition to the village of Romeo, Michigan, and, whereas the said Hattie Van Syckle in said suit makes claim to an interest in property above described and also makes claim as an heir at law of Joel Thompson deceased, to an interest in his estate: Now, therefore, for the purpose of disposing of the suit now pending in the Macomb county circuit court as above mentioned, so far as the said Hattie Van Syckle is concerned, and for the purpose of releasing her said interest in lots seven and eight of Tillson’s and Harthung’s addition to the village of Romeo, Michigan, and for the purpose of releasing any and every claim she may have at the present time_ or might have at some future time to any part or portion of the estate of Joel Thompson, deceased, she, the said Hattie Van Syckle, for and in consideration of the sum of four hundred dollars ($400.00) releases, assigns and turns over to the said Willie Thompson any and all right, title and interest she may now have or might have at some future time in and to the estate of the said Joel Thompson, deceased.”

This deed and contract were drawn by the attorney of the complainant, and she says both were read to her, but that she did not understand them. We are not surprised, in view of what we have quoted from the letters and deed and contract, that the trial judge reached the conclusion he did.

The decree is affirmed.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    WINEBERG v. PORTER.
    Sales — Fraud.
    Where plaintiff purchased a horse which he knew was sick, for slightly more than half its value if it had been in good health, and defendants did nothing to deceive or defraud him, the court did not err to plaintiff’s prejudice in refusing to charge, in an action to recover back the purchase price after its death, that, if the horse was incurably sick at the time of purchase, plaintiff could recover: it was not incorrect to limit his right of recovery to the issues of fraud and whether he acted on his own judgment.

    Error to Chippewa; Oren, J.
    Submitted November 13, 1912.
    (Docket No. 24.)
    Decided July 9, 1913.
    Assumpsit in justice’s court by Samuel Wineberg against George Porter and Harry Gemmel to recover back the purchase price paid for a horse. From a judgment for plaintiff, defendants appealed to the circuit court. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      F. T. McDonald, for appellant.

      John W. Shine, for appellees.

       On the question of the liability of a vendor of diseased live stock, in the absence of express warranty, see note in 29 L. R. A. (N. S.) 202.

   Moore, J.

This was an action of assumpsit brought by plaintiff to recover back money paid to defendants by plaintiff for the purchase price of a sick horse. The case was commenced in justice’s court, where a judgment was rendered in favor of the defendants. The case was appealed to the circuit court, where it was tried by a jury, which returned a verdict in favor of defendants. The case is brought here by writ of error.

The questions for our consideration grew out of the refusal of the court to give two requests to charge offered by the plaintiff and to his charge as given. The requests to charge are as follows:

“(1) You are instructed that if you find, by a preponderance of the evidence, that the horse which plaintiff purchased of defendants was, at the time of the sale, suffering from a fatal disease, or combination of diseases, which culminated in the animal’s death, the plaintiff would be entitled to recover the purchase price paid defendants for the horse, and for expenses for medicine and care in attempting to cure the animal, and for necessary expenses incurred for burial of the same, and cleaning plaintiff’s barn of the diseased matter caused by the horse’s illness and death. And if you so find, your verdict should be for the plaintiff.
“(2) You are also instructed that, where the seller of property makes a misrepresentation respecting the property he is selling, and the buyer is actually defrauded in the purchase of the same by the misrepresentation, it does not matter whether the seller was innocent of any intentional' fraud or misrepresentation, the buyer would be entitled to recover of the seller the amount paid for the property. And if you should find in this case that the horse in question was represented by the defendants, or either of them, at the time of the sale to have merely a cold in the head, and that, as a matter of fact, it was suffering from a complication of diseases, the plaintiff would be entitled to recover, even though the defendants made the representations innocently and without any intentional fraud.”

The parts of the charge to which exceptions are taken are as follows:

“With respect to this claim of the plaintiff I would say to you that I don’t think he would be entitled to recover in this case unless he has been able to prove, and prove to your satisfaction, that he was induced to make this purchase by reason of actual fraud, actual false and fraudulent representations made by the defendants to him, whereby he was deceived into making this purchase. * * *
“Now I would say to you, gentlemen, that you must find in this case, in order to entitle the plaintiff to recover, that this was a case of actual deception practiced upon him upon the part of the defendants, and it must appear to you that he acted upon these alleged deceptive or false statements. If the plaintiff, in making the purchase, acted upon his own judgment, upon his own idea that he would be able to effect a cure of that horse, and made the purchase knowing, as it is admitted he did know, that the horse was sick, that he did not himself do what he had an opportunity to do, call in a veterinary to determine the actual condition, but relied solely upon his own judgment, his own expectations that he might be able to effect a cure, then it could not be said that he had been deceived by these representations. And, as I have just stated, unless you find that it wg,s a case of actual deception, that this man was actually deceived to his undoing in this case, he could not be held entitled to recover. * * *
“Now, if you find in this case that such were the facts, that this man knew the condition of the horse beforehand, and bought merely for the purpose of speculation, and of intending to take his chances upon his ability to cure and thereby secure to himself a valuable horse, you should find in the defendants’ behalf, as I don’t think a recovery could properly be predicated upon a state of facts such as I have last detailed.
“Plaintiff’s counsel has asked me to charge in effect, that as long as this horse was afflicted with an incurable disease at the time of the purchase, that that fact would render the purchase void, and would entitle the plaintiff to recovery. I do not believe that such is the law in this case, gentlemen of the jury. I think that if this plaintiff, knowing the condition, and not being deceived in any respect by any acts or representations, or any references upon the part of the defendants, bought, with his eyes open, speculating, taking his chances upon his ability to cure the horse, the purchase was absolute and could not be rescinded.”

The record discloses that the plaintiff was a man of mature years and had considerable experience in buying and selling horses. The defendants, for about two months, had been in the habit of buying horses in Chicago and selling them in northern Michigan. Shortly before the transaction whi'ch gave rise to this litigation, they bought 12 horses and put them in the stable of the Fountain House at Sault Ste. Marie, and offered them for sale. Among them was a mare for which they paid $130 in Chicago. The plaintiff says they offered to sell, him this horse for $150. This horse was taken sick. The plaintiff testified as follows :

“He [Mr. Gemmel] showed me the same horse he showed me on the 12th, and I says, T will buy that horse providing you will sell it cheap enough.’ First, on the 12th of March he wanted $150 for the horse, and the next time he came down to $100. It was a chestnut mare.
“Q. What was said and done between you?
“A. Well, I says, T won’t give you $100; I will give you $75, because I have no horse to work.’ ‘Why,’ he says, T won’t take $75, too little,’ and finally I hung around there, and he talked and talked until he closed at $82.50 for the horse, and I had $22.50 in my pocket, and I says, ‘Come into the bank, and I will give you the balance of the money;’ so I went into the bank and drew $60 more and give him. I don’t know where •Porter was during this time. I never saw him at all. He was around tending to the horses or something. He didn’t come near and hear the bargain. The horse was right there in the stall.
“Q. What was said, if anything, by Mr. Gemmel, about the horse having a cold?
“A. First, when I stopped to see the horse, that was on the 14th day of March, the horse had some cracked corn and some hay in the manger, and I says, ‘What is the matter, the horse don’t eat?’ ‘Why,’ he says, ‘he has a heavy cold in his head, but if he gets into a new barn and gets a few bran mashes he will be all right;’ and I bought on the condition that he had a cold in his head, and I bought the horse and took him home.
“Q. What did you do with him?
“A. Put him in the barn, and put three blankets on him, first thing, and I went in the house and got some hot water, and took some bran and gave him a hot mash — poured it into the box in the manger, and the mare would not look at it.”

Later in the day he took the mare out on the street and she got down on the ice and in the snow and slush. After he got her home he called a veterinary and she got steadily worse, dying March 18th. She was purchased March 14th. Plaintiff claims the mare had something more than a cold when he bought her, and that she was fatally ill, and because of that he should have the purchase money back.

It is the claim of defendants that they paid $180 for this mare in Chicago; that they offered her for sale for $150 at Sault Ste. Marie before she became sick, and that after she took cold she was sold to plaintiff as a sick horse for $82.50, he knowing as much about her condition as they did. On the cross-examination,, the plaintiff stated, among other things:

“Q. You say now that when you first saw him, on. the 12th, he asked you $150?
“A. Yes, sir.
“Q. Now, you knew $150 was too much, did you?
“A. Why, I didn’t know nothing about it.
“Q. Well, after buying the horse when Mr. Gemmel. suggested to you some way you ought to treat the horse, didn’t you tell them that you knew more about a horse than they did ?
“A. I didn’t tell them no such thing, that I knew more about a horse than they did.
“Q. What did you say?
“A. I says, for a bluff, that I knew more about horses than they did. I told you that in justice’s court.
“Q. But didn’t you tell him at the time that he sold you the horse?
“A. No, sir.
“Q. When did you tell him that the first time?
“A. Oh, I don’t know. I think Mr. Porter was in my store one day.
“Q. You didn’t tell him over at the barn when they were undertaking to tell you how to treat the horse?
“A. No, sir; only they told me to take him home .and give him a few hot bran mashes; that is the only reason I bought the mare, and it would be all right.
“Q. Didn’t you say that you had been in a stable that had 150 horses—
“A. I said it same as I said that bluff.
“Q. When did' you say that?
“A. On the 12th day of March.
“Q. That was while you were at the barn, was it?
“A. Yes, sir.
“Q. Well, what were they saying to you then, that "they gave you a bluff?
“A. Didn’t say nothing; just talking about horses; Lavines was in there, and just chewing the rag — didn’t "talk nothing about buying horses, or anything of that kind.
“Q. How did you come to tell these defendants that .you knew more about horses than they did?
“A. I don’t remember telling the defendant. • I was talking to quite a few of them, that was in the barn chewing the rag, but didn’t tell the defendants any more than the rest.
“Q. Do you mean to say that you told the whole •crowd that you knew more than they did ?
“A. Yes, I divided the whole crowd with it.
“Q. You say you were only bluffing?
“A. Yes, sir.
“Q. What did you expect to gain by bluffing?
“A. Didn’t expect to gain nothing, only I gave him "the bluff.
“Q. What for?
“A. Oh, I don’t know, only I just cut in that way.”

One witness testified, among other things, as follows :

“A. Well, he offered him $75, and Mr. Gemmel wanted $100, and at last he says, T will tell you what I will do with you. If you want the mare I will let you have her for $90;’ and Mr. Wineberg says, T will tell you what I will do. I will give you $80;’ and at last Mr. Gemmel says, T will take $85, being as it is a cash deal, and we have a lot of horses on hand.’ And then I saw there was only $5 difference between them, and I says, ‘Split the difference, you fellows / and so they did split the $5 between them. Then I says, ‘Split the difference and make it $82.50/ and they did. Wineberg said, ‘Well, all right, $2.50 don’t cut much figure either way.’ He didn’t say anything at that time, but at the time he made the offer of $80, he said, T will give you $80, and I don’t give a damn if she dies tomorrow, I will take chances on her.’ ”

The record is clear that plaintiff bought a horse that, if well, wóuld have been worth $150 or more. When he bought he knew it was sick. The defendants told him it had a cold. He did not pursue the inquiry further. There is nothing to indicate that defendants withheld anything from him about which they were asked, nor is there anything to challenge their good faith in the transaction. Under the facts disclosed by this record the court did not err in his charge or in his refusal to give the requests to charge.

Judgment is affirmed.

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


text:
    WALKER v. SCHULTZ.
    Error to Ingham; Wiest, J.
    Submitted November 19, 1912.
    (Docket No. 114.)
    Decided July 9, 1913.
    Ejectment by Jennie B. Walker against Eva May Schultz. Judgment for défendant, and plaintiff brings error.
    Reversed, and new trial ordered.

      Charles H. Chase (Edwin H. Lyon, of counsel), for appellant.

      Raudabaugh & Person, for appellee.
   Moore, J.

This action, brought to this court by-writ of error, is one of ejectment to recover 17 lots of the Charles Kudner subdivision, etc., in the city of Lansing, Mich. Plaintiff claims to be the owner in fee. The subject-matter- in this suit is involved as a part of the subject-matter of a suit brought here on appeal from the circuit court for the county of Ingham, in chancery, entitled Jennie B. Walker, et al. v. Eva May Schultz, et al. Plaintiff, believing that she could not successfully prosecute, her claim and try her title in chancery as against defendant, who was in possession and claimed the right of possession, brought this ejectment suit. An opinion was handed down in the chancery case in May. Walker v. Schultz, 175 Mich. 280 (141 N. W. 543). A reference to that opinion will make any further statement of facts unnecessary. It is controlling of this case.

Judgment is reversed, and new trial ordered.

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


author: McAlvay, J.

text:
    WALLACE v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Carriers — Baggage—Storage—Reasonable Time.
    A passenger, bringing action for loss of her baggage by fire, is entitled to show that she did not have a reasonable opportunity, after arriving at her destination, to procure it, and, without averments as to the particular facts in her declaration, which contains the general averment that plaintiff did not have a reasonable opportunity, may show that she attempted to get it, and was informed by the baggage man that he could not then attend to it, and that he closed and locked the station before she could find a conveyance to deliver the baggage.
    2. Same — Insurer of Baggage — Reasonable Time.
    The strict rule of liability for baggage of passengers continues after arrival of the passenger at his destination and until the lapse of a reasonable time thereafter: what is a reasonable time is a question of fact for the jury if there is any dispute about the facts..
    3. Same — Act of God — Lightning—Burden of Proof.
    Since the contention of a carrier that loss of plaintiff’s baggage by fire was occasioned by lightning is an affirmative defense, the court properly denied a new trial on the question of the weight of evidence, upon conflicting testimony that Would support a finding for either party.
    Error to Kent; McDonald, J.
    Submitted November 11, 1912.
    (Docket No. 23.)
    Decided July 9, 1913.
    Case by Veva C. Wallace against the Detroit, Grand Haven & Milwaukee Railway Company for the destruction of plaintiffs baggage. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Harrison Geer, for appellant.

      Lombard, Hext & Washburn, for appellee.

       As to the termination of a carrier’s liability for baggage, see note in 3 L. R. A. (N. S.) 183. And upon the liability for baggage after reaching destination of passenger, see notes in 36 L. R. A. 781 and 38 L. R. A. (N. S.) 383.

   McAlvay, J.

This is a suit brought by plaintiff in her own behalf and as assignee of her husband, to recover, in an action of trespass on the case, compensation from defendant transportation company for baggage belonging to them which, while in its depot at a station named Ada, was consumed by fire at about 1:30 o’clock on the morning of August 23, 1910. The property for which recovery was sought consisted of a trunk, two suit cases, and the contents thereof.

Upon the day in question plaintiff, her husband, and daughter, who had lived at the village of Saranac, Mich., for some time, were changing their residence from that place to Peru, Ind., where they intended to make their future home, and they desired before leaving to visit a brother of plaintiffs husband at Ada, Mich. On the afternoon of August 22,1910, Mr. Wallace, the husband of plaintiff, intending to take passage upon defendant’s train, purchased from defendant’s agent at Saranac three tickets for Ada. He checked for that point a trunk and two suit cases as baggage, and received the checks therefor. They took passage from Saranac upon a passenger train of defendant due at Ada about 4:30 p. m., which, on the day in question, did not arrive there until after 6 o’clock. There is a dispute as to the exact time. The testimony varies between 6:15 and 6:45 p. m. The station is at or near a small village on the defendant’s road, and at this time was open only from 6 a. m. to 7 p. m. It was in sole charge of the agent of defendant, one Mr. McLeod, who was acquainted with plaintiff and her husband. There was no dray line at this depot nor other public means for the conveyance of baggage away from it. Upon the arrival of the train, plaintiff and her husband went at once into the waiting room of the depot, in company with the station agent. There is a dispute as to what occurred.

Plaintiff and her husband claim that the checks were produced and presented to the agent for the purpose of claiming the baggage, whereupon defendant’s agent said he could not bother with the baggage at that time because he was in a hurry to get his supper and to return for the next train from the west. Defendant’s agent denied that this conversation occurred. It was claimed and testified to by plaintiff and her husband that the agent then requested Mr. Wallace to assist him in putting the trunk into the waiting room of the depot, and that he did so. Thé two suit cases were put into the ticket office by the agent; there being no baggage room in the depot.

After this, Mr. and Mrs. Wallace and their daughter, with the agent, McLeod, started for the house of William Wallace, about 40 rods from the depot by the road, but only about 15 rods on a direct line, where the plaintiff at once asked Mr. Wallace if she could get a conveyance to bring their baggage from the depot. He said it was impossible to do so until after supper as all the horses were out. Some time elapsed before the supper was ready, and the agent was obliged to return to the depot before supper in order to meet the train due from the west at about 7 o’clock. After the departure of that train he closed the depot for the night and returned to the house about the time they were finishing their supper. Plaintiff’s husband testified that the agent said, “that the station was closed for the night, and that he did not have to go back.” About the hour of 1:30 in the morning fire broke out in this depot, and, as stated, it was consumed with its contents.

The case was tried before the circuit court for Kent county. At the close of the testimony, defendant moved for a directed verdict, on the ground that the relation of carrier had ceased as to this baggage, and that defendant was a warehouseman liable only for negligence. This motion was denied, and the case was submitted to the jury, which rendered a verdict for the amount claimed by plaintiff, upon which judgment was duly entered.

Defendant has brought the case to this court for review, and the errors assigned and relied upon by defendant are:

First. Upon permitting plaintiff to answer the following question:
“Q. What was said with reference to the baggage at that time?”
Second. That the trial judge erred in refusing to charge the jury that the relation of carrier to this baggage had ceased, and that the defendant was a warehouseman, liable only for negligence.
Third. Upon the refusal of the court to grant á new trial on the ground that the verdict was against the weight of the evidence.

These errors assigned will be considered in the order ■presented by appellant:

First. The objection to this question was on the ground that this testimony was not within the allegations of the declaration. The declaration alleged, among other things, that it was the duty of defendant to safely keep said baggage in said station for such reasonable time as would afford a reasonable opportunity to plaintiff to procure it; that plaintiff had no reasonable opportunity to secure and remove this baggage, placed in the depot before it was destroyed by fire.

The theory of plaintiff was, and the testimony offered by her tended to show, that when these parties arrived at the station at Ada, this baggage was taken out of the baggage car and placed upon the platform; that she, in company with her husband and the station agent, went into the station, presented the three checks for this baggage, saying in the agent’s presence, “Here are the checks;” that the agent declared he had no time to bother with the baggage, as he must get to his supper and return in time for the train from the west; and that he then asked plaintiff’s husband to assist him in carrying the trunk into the station, which was done, and the two suit cases were placed in the ticket office by the agent; that the agent at once went with these parties to the house of Mr. Wallace’s brother for supper, where this agent boarded; that before supper was ready this agent returned to the depot to meet the train from the west; that after this train had gone he locked up the depot for the night and returned to get his supper, arriving at his boarding place when the plaintiff and her husband were finishing their meal. This testimony was offered by plaintiff as a circumstance tending to show the fact that she had no reasonable opportunity to get this baggage.

The rule is well settled that matters of evidence need not be pleaded. This is not an action for damages caused by the negligent acts of defendant’s agents, and the rule in such cases that the specific acts of negligence relied upon for recovery must be pleaded does not apply. In our opinion it was material and admissible, and no error was committed by the trial court in permitting plaintiff to answer this question.

Second. Appellant next contends that defendant was in possession of the baggage in question as a warehouseman and not as a common carrier at the time of the fire. The law is well settled that the strict rule of liability of a common carrier of passengers for their baggage continues, after the arrival at the destination of the passenger, until the lapse of a reasonable time for delivery; and after such time has elapsed that the liability of such common carrier is that of a warehouseman. 3 Am. & Eng. Enc. Law (2d Ed.), p. 564, and cases cited. The Am. & Eng. Enc. Law (2d Ed.), vol. 3, p. 565, says:

“The troublesome question in this connection is as to what constitutes such reasonable time, and must be determined from all the circumstances of the case, such as the character of the station, the facilities there for receiving baggage, and the opportunities afforded by the carrier for delivering baggage when called for.”

The law is also well settled by the weight of authority that, where there arises a dispute upon the facts, the question of reasonable time, is one of fact to be submitted to the jury. 3 Am. & Eng. Enc. Law (2d Ed.), p. 565, notes and cases cited. The facts in this case are in dispute. Testimony on the part of plaintiff was introduced tending to show the facts just stated in the preceding paragraph, and, further, that she was told at the depot that there was no public dray or means to get this baggage away from the depot; that she and her husband desired to take it away, and that they went to his brother’s where they asked for and sought a conveyance, but could not get it until later; that afterwards defendant’s agent locked up the depot for the night, and the fire occurred shortly after midnight. Some of the testimony of plaintiff upon this contention was disputed by defendant’s agent. We are satisfied that under the circumstances the action of the learned circuit judge in submitting this question of reasonable time to the jury was not erroneous, and was as favorable to appellant as could be demanded or expected. The jury has found as a fact that plaintiff and her husband were not afforded a reasonable time and opportunity in which to secure and remove this baggage, thereby determining the status of defendant towards these goods at the time they were destroyed by fire as that of a common carrier.

There remains but one question for consideration, and that is whether the court was in error in refusing to set aside the verdict of the jury on the ground that it was contrary to the clear weight of the evidence in the case. Stated in another way, appellant’s contention is that the weight of the evidence was overwhelming that the fire which destroyed these goods was caused by the act of God, namely, lightning. Appellant admits that the trial court correctly charged the jury upon the law of this question. It is admitted by both parties that if the fire which destroyed these goods was caused by lightning the plaintiff cannot recover.

. The contention that these damages were so caused is a mater of affirmative defense, the burden of proof to establish which being upon the defendant, and, like the affirmative of any issue of fact, it is required to be established by a preponderance of the evidence.

This assignment of error places upon the court the necessity of a thorough and careful examination of all the evidence in the case bearing upon it. Such examination discloses a condition of contradictory testimony, a statement and analysis of which would be of no 'benefit to the profession. This was admittedly a question of fact for the jury, which, under proper instructions, was submitted to and acted upon by it. Our conclusion is that its determination was not against the weight of the evidence, and that the court was not in error in denying the motion for a new trial.

The judgment of the circuit court is affirmed.

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


author: Bird, J.

text:
    FULLER v. DETROIT UNITED RAILWAY.
    2. Street Railways — Place of Alighting — Negligence—Streets.
    In selecting a place for passengers to alight, a street railway is bound to exercise reasonable care to stop the car at a safe place, and is liable if a passenger is required to alight at a point in a street where a sufficient defect or depression exists to render it unsafe

    2. Same.
    But a worn place in the pavement, not over three inches in depth and twelve inches in area, in which plaintiff fell, spraining her ankle, was not such a dangerous place as to charge defendant with liability for stopping the car and requiring plaintiff to alight at a point about one pace distant.
    Error to Wayne; Hosmer, J.
    Submitted November 21, 1912.
    (Docket No. 151.)
    Decided July 9, 1913.
    Case by Jessie Fuller against the Detroit United Railway for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Sloman & Sloman, for appellant.

      Corliss, Leete & Joslyn (Frederic T. Harward, of counsel), for appellee.

         The question of the liability of a street railway company for stopping car at improper place for passenger to alight is treated in a note in 16 L. R. A. (N. S.) 467.

   Bird, J.

The plaintiff began this suit to recover damages for injuries suffered .by her in consequence of the failure of the defendant to provide a safe place for her to alight from a car on which she was riding on the afternoon of November 4, 1909, in the city of Detroit. She was a passenger on a Trumbull avenue car, and when it made its regular stop at the corner of Congress street and Woodward avenue she passed out of the car and down the' steps to the pavement. In taking the first step away from the car toward the curb, she stepped with her right foot into a depression in the pavement and in so doing struck her foot against the corner of .a manhole cover, turning her ankle and causing a severe sprain. The area of the depression was 12 inches by 12 inches and its maximum depth was 3 inches. When the testimony was completed, it was the opinion of the trial court that plaintiff had made no case for the consideration of a jury, and it therefore directed a verdict for the defendant. The plaintiff assigns error upon the refusal of the trial court to submit to the jury the question as to whether the place was a safe one.

The degree of care to be exercised by a street railway company in selecting a place for its passengers to alight was clearly defined in the case of Spangler v. Traction Co., 152 Mich. 405 (116 N. W. 373), where it was said:

“Ordinarily a passenger, having safely alighted from a street car, becomes at once a traveler upon the highway, and his duty and the duty of others towards him have no relation to the*reciprocal duties which a moment before existed between the carrier and himself. Creamer v. Railway Co., 156 Mass. 320 ([31 N. E. 391] 16 L. R. A. 490 [32 Am. St. Rep. 456]); Bigelow v. Railway Co., 161 Mass. 393 [37 N. E. 367]; Conway v. Railroad Co., 87 Me. 283 [32 Atl. 901]; Id., 90 Me. 199 [38 Atl. 110]; Platt v. Railroad Co., 2 Hun (N. Y.), 124. But as a general rule it is the duty of the street-railroad carrier to at least exercise proper care to see that the place of alighting is safe — not to stop a car for alighting passengers at a place known to be unsafe.”

There would seem to be little doubt that the defect complained of in this case was situate near enough to defendant’s track to make it an alighting place and to render the defendant liable if it can be said that the place was an unsafe one.

The important question, therefore, arises as to whether the place where plaintiff was invited to alight was a safe one. It is a well-known fact most pavements have more or less depression worn into them by the passing traffic, and it is equally well known that they cannot be kept as even and smooth as a sidewalk by reason of the use which is made of them. Pavements are not especially designed for the use of pedestrians, and, when they are used by them, it must be done with these differences in mind. Many pavements with such depressions are in daily use in our cities by pedestrians and vehicles with no thought of their being unsafe, and they are not unsafe to one who is in the exercise of ordinary care. The place where the car stopped was not, in our opinion, an unsafe place for the landing of passengers.

As the case was disposed of by the trial court in conformity with this view, the judgment will be affirmed.

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


text:
      In re SHANAHAN'S ESTATE. SHANAHAN v. MERRICK.
    1. Evidence — Admissions—Execution.
    Admissions claimed to have been made by the executors and proponents of a will, who, with others, were legatees under it, are inadmissible to prove undue influence.

      2. Same — Undue Influence — Wills.
    Evidence, helé, to be insufficient to require submission to the jury of alleged undue influence.
    Error to St. Clair; Beach, J.
    Submitted October 16, 1912.
    (Docket No. 34.)
    Decided July 9, 1913.
    Edmund Shanahan presented for probate the will of Maurrice C. Shanahan, deceased. From an order admitting the instrument to probate, Margaret Merrick and others, contestants, appealed to the circuit court, where the will was sustained. Contestants bring error.
    Affirmed.

      Frank R. Schell (Lincoln Avery, of counsel), for appellants.

      Walsh & Walsh, for appellees.
   Moore, J.

This is a will contest. The testator, Maurrice C. Shanahan, executed the will in question November 22, 1904, and died April 15, 1909. The will was allowed in the probate court. An appeal was taken. The case was tried by a jury which found in favor of the will. The case is brought here by writ of error.

We quote from the brief of appellant:

“By the terms of the proposed will the widow has the use and income of the estate during her life. After her death the son Michael is to pay to James Shanahan, Catherine Carroll, Edmund Shanahan, and Ellen Spencer $500 each, and is to erect a monument on the grave of testator, at a cost of $800, and pay funeral bills, doctor bills, and indebtedness, and the residue of the estate is given to Michael Shanahan. The testator left no indebtedness, and there were no doctor bills. Margaret Merrick and Mary Shanahan, Jr., usually called Molly, daughters of testator, and the son, John, who has not been heard from in 39 years, by express terms of the proposed will were to receive nothing. The ages and residences of the children are as follows: Catherine Carroll, 56 years old, lives in Columbus township, about four miles from testator’s home; Mary Shanahan,. Jr., the unmarried daughter, is 54 years old and lives with Robeson’s at Port Huron. Edmund Shanahan is 52 years old, and lives about half a mile from testator’s home. James Shanahan is 50 years old, and lives at Lambs, about two miles from testator’s home. Ellen Spencer, sometimes called Nellie, is 34 years old, and was home winters since her marriage. * * * Michael Shanahan is 43 years old, and lived on the farm with testator * * * after he was married until the summer of 1905, when he built a house right beside James at Lambs, where he still resides. James was married 20 years ago, and prior to that time he lived at home and worked at home summers and worked in the woods winters.”

The estate left by Mr. Shanahan is variously estimated to be worth from $4,000 to $6,000, so that it is evident that no large sum will come to the residuary legatee.

The following appears near the close of appellant’s brief:

“It needs no comment that contestants are not fighting so much for the value of the property involved as they áre fighting for principle, and to prevent the consummation of a great wrong.”

Counsel for contestants preferred 67 written requests to charge. These were not given as prepared, but the trial judge sought to cover such of them as were germane in a general charge, covering something more than seven printed pages. He instructed the jury, in effect, that testator was, as a general proposition relating to his mental condition to do business, of sound mind. He also charged them that there was no evidence of undue influence. He left to them one question. We quote from the charge sufficient to show what that was:

“Ninth. But the contestants present this other question, and that question is here for your full, fair, deliberate consideration. They allege that there was existing in the mind of Maurrice C. Shanahan, at the date and before the making of the November, 1904, will, a state of feeling against Margaret, which is only explained, as they claim, as the contestants claim, by what they claim to have been facts as to the existence in Maurrice C. Shanahan’s mind of a delusion as to statements and acts of Margaret Merrick towards himself. Now, this claim is sharply defined, and is the only issue to be presented to you and for yoúr consideration. The claim made in this respect by the contestants is that the testimony indicates that at the time of the making of the will, and before, there was an intense feeling on the part of Maurrice C. Shanahan toward Margaret. The claim is. that that feeling is not accounted for by any testimony here disclosing the relations of the parties, except on the basis that these claimed unfounded feelings existed and were operating in the mind of Maurrice C. Shanahan as to statements made by Margaret, and which had no foundation in fact. That is the claim. Now, as I say, this proposition calls for your careful consideration of all testimony bearing upon this alleged feeling and the alleged statements claimed to have been made by Maurrice- C. Shanahan. It is claimed by contestants that the evidence of Ed Shanahan indicates that this feeling existed in its claimed intensity in October preceding the making of this will. You have heard this testimony detailed to you, the statements drawn from Edmund Shanahan as to what Maurrice stated in relation to Margaret and Molly, and the reason why he would not include them in the provisions of the will.
“Tenth. It is the claim of the proponents at that - date there was no explanation and no reason existing for that state of feeling, except the general relations between Maurrice C. Shanahan and his daughter Margaret, going back from that time through all the fámily history, and that that feeling had originated and been perpetuated by the attitude of the daughter towards the father. On the part of the contestants testimony was introduced of claimed statements made by Maurrice C. Shanahan in 1905 and 1906, following the making of the 1904 will. Now the proposition by the contestants which you are to consider in this regard is this: That these statments made during the following years after the making of the 1904 will relate back and explain the feeling expressed to Edmund Shanahan in 1904; that they give — those statements give — the reason for the feeling existing at and before the making of the will. Now I say' to you gentlemen, that right there is the crucial point for your consideration in this case.
“Eleventh. I may say, as preliminary to that, that it is urged here, and is a matter of fact, that these statements claimed to have been made by Maurrice C. Shanahan in 1905 and 1906, or subsequent, rest upon the testimony of interested parties in this litigation. That fact you are to take into consideration in determining, for instance, what weight and credit you will give upon the question as to whether those statements were made as they were detailed before you here in the testimony of these witnesses. The matter of interest in a witness is always a matter for consideration by the jury in determining what weight or credit they will give to any statement made by such witness on the stand.
“Twelfth. Now, as I say to you, the crucial question in this case is whether these statements were made as detailed by these witnesses; whether they were made by Maurrice C. Shanahan containing practically the subject of what these witnesses detailed upon the stand as to what they claim existed in Maurrice C. Shanahan’s mind in relation to Margaret. Then if you find, as a iriatter of fact, that they were made substantially as detailed, then the next question naturally would be, do they relate back and explain the condition of mind of Maurrice C. Shanahan in 1904, when he made his will. Have they, any connection with the condition of his mind at that time and the statements made to Edmund Shanahan.
“Thirteenth. There is no direct testimony in this ease that they so related, but the court has deemed it sufficient to go to you from the fact that it is claimed that some of these statements were made in the summer of 1905, some months after the making of the will.
“Fourteenth. Now if you should find, as a matter of fact, that these statements do reláte back and explain the condition of mind in 1904 at the time of the making of the will of Maurrice C. Shanahan, then the question remains, and is the sharp, decisive question in the case.
“Fifteenth. Did that state of mind exist and prevail to the extent that Maurrice C. Shanahan was insanely deluded upon that question; deluded to the extent that he could not be reasoned with as to whether the facts which he stated were true or untrue? Did he firmly believe them, and were they without foundation in fact? And I may say to you that it is conceded here as a fact in this case that, if those statements were made, they had no foundation in fact.*
“Sixteenth. But the critical question there is, Did they exist in his mind and actuate his conduct in the making of the will, overshadowing all other questions of differences between himself and Margaret, and actuated and dictated the provisions of the will which disinherited her? And did they exist in that intensity so his mind was perverted by this delusion in relation to these unfounded charges, that they prevailed over every other consideration, and drove him, in that deluded state of mind, to exclude Margaret from his will? In other words, was he a monomaniac on the subject of Margaret’s attacks upon him? Did he believe that she had so attacked him; that she had so insulted him; that she had so misbehaved towards him; did he firmly believe it, and did it exist to that extent that he was a monomaniac upon that subject? If you so find, gentlemen of the jury, that fact in itself, in its entirety — that state of mind — would avoid this will, and your verdict should be that this is not the true will of Maurrice C. Shanahan. But if they did not exist to that extent that they completely dominated his mind in making these provisions in excluding Margaret, if other reasons existed in his mind dating back through all the family history that influenced him, if the relation of this father ánd this daughter had been such that there always prevailed in his mind a disagreement on his part towards her, or feeling towards her, no matter whether founded or unfounded in fact, if it existed in his mind, not to the extent of a delusion, then he had the right and the mental capacity to make this will as he made it.”

He then explained to them the legal definition of r monomania, or a delusion of this character.

The important question in the case is whether the court erred in not submitting the question of undue influence to the jury. We have read the long brief of counsel with a good deal of care, and looked in vain for the citation of some competent evidence indicating that the will of the testator was overcome by the will of somebody else. We have also searched the long record with the same result. See Leffingwell v. Bettinghouse, 151 Mich. 513 (115 N. W. 731); Clark v. Ulrich, 153 Mich. 695 (117 N. W. 329); In re Provin's Estate, 161 Mich. 28, (125 N. W. 743); In re Shepard's Estate, 161 Mich. 441 (126 N. W. 640); In re Du Bois' Estate, 164 Mich. 8 (128 N. W. 1092).

It is the claim of contestants that the statements of Michael and Edmund Shanahan should have been received as bearing upon the question of undue influence. We quote from the brief:

“Edmund Shanahan is named as one of the executors in the will. He signed the petition for probate of the will. He is a proponent thereof. * * * The statements and declarations of a proponent of a will are admissible in evidence. In re Loree’s Estate, 158 Mich. 372 (122 N. W. 623); In re Hewitt’s Estate, 161 Mich. 536 (126 N. W. 848, 21 Am. & Eng. Ann. Cas. 47).
“(A) Michael, being named in the will as one of the executors thereof with Edmund, was in duty bound to present it for probate. The statute expressly so provides. Section 9275, 3 Comp. Laws. Hence in law Michael was a proponent of the will as much as Edmund. See Chatterton’s Probate Law, §§ 360-362.
“(B) Mike could not evade this law, nor take advantage of that rule of evidence by not signing the petition to probate that will, and leaving it to be signed by Edmund alone.
“(C) It is not the petition alone for probate of a will, but the statute which makes it the duty of executors nominated in the will to probate it, that gives those persons the character of proponent."

A reference to the cases cited will show they are distinguishable. Michael and Edmund Shanahan did not cease to be legatees any of the time. There were also other legatees. The authorities are against the contention of contestants. See O’Connor v. Madison, 98 Mich. 183 (57 N. W. 105); In re Estate of Lefevre, 102 Mich. 568 (61 N. W. 3); Roberts v. Bidwell, 136 Mich. 191 (98 N. W. 1000); In re Ganun’s Estate, 174 Mich. 286 (140 N. W. 561).

The other questions presented by counsel have been considered, but we do not deem it necessary to discuss them. The ease was carefully tried, and we find no reversible error.

The judgment is affirmed.

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


text:
    GEORGE v. ROLLINS.
    1. Equity — Jurisdiction—Value or Amount in Controversy.
    Where the fact that the amount in controversy does not appear, from averments' of the bill, to exceed $100, the proper practice is not to demur, since the defect is not fatal, but to raise the jurisdictional question by plea or answer, although it may be raised at the hearing, if it should appear from pleadings and proofs that the value or amount does not equal the required minimum.
    2. Same — Adequate Remedy at Law — Contracts—Trade Names.
    Complainant’s bill, alleging that he sold a fur business to defendants, to be conducted by a corporation to be formed thereafter, under the name of “The House of George,” which was a valuable trade name, that it was stipulated in the contract of sale that complainant should be entitled, on 60 days’ notice, to require defendants to cease using the said name, that he had served notice but defendants refused to comply with the contract, and, for the purpose of evading the conditions of the agreement, had conspired together to form a corporation to use the name aforesaid, sufficiently averred facts entitling complainant to relief in equity, and was not demurrable for failure to show that the value in controversy was $100 or upwards, or for the reason that there was an adequate remedy at law.
    3. Contracts — Trade Names — Injunction.
    Where complainant made a sale of his retail fur business, under contract to discontinue the.use of his name on request and 60 days’ notice, defendants were not entitled to dissolve the original corporation doing business under complainant’s name, and organize another to continue the business and adopt the name: the attempted evasion of the terms of the agreement was fraudulent and should be enjoined.
    Appeal from Wayne; Hosmer, J.
    Submitted January 13, 1913.
    (Docket No. 76.)
    Decided July 9, 1913.
    Bill by Edwin S. George against Fred H. Rollins and others to restrain the use of a trade name. From an order overruling, a demurrer, defendants appeal.
    Affirmed.

      Lucking, Emmons & Helfman, for complainant.

      Allan P. Cox, for defendants.
   McAlvay, J.

Defendants have appealed from an order of the circuit court for the county of Wayne, in chancery, overruling their demurrer to complainant’s bill of complaint.

Complainant, in his bill as amended, alleged under oath that prior to December 7, 1909, he had been engaged for some years in business in the city of Detroit and had, by his integrity, industry, and ability, acquired a standing and reputation in business and with the general public which is a valuable asset to him; that among other enterprises he had successfully conducted a retail business under the name of “The House of George,” which was unincorporated, and his sole and individual business; that on the date above named complainant entered into a written contract with the defendants Fred H. Rollins and Josephine Cohen, whereby he sold to them and they purchased said fur business, partly for cash and the balance in deferred payments, to be secured by their shares of the capital stock in the corporation, which was to be formed and to be known as “The House of George” so long as complainant should retain his interest therein, and for a period of 10 years thereafter, subject to complainant’s right—

“To demand in writing that the corporation shall so change its name as to eliminate therefrom the name ‘George’ within sixty days after the date of such notice, whereupon it is agreed that by appropriate action the name of said corporation shall be so changed.”

The contract referred to is too long to quote in full in this opinion, and the only part of it material is that which relates to the right reserved by complainant upon notice to require the elimination of the name “George” from the business of the corporation.

Complainant alleges that the corporation was formed contemporaneously with the execution of the contract, and that on June 28, 1911, at a meeting of all the stockholders, the contract was ratified, confirmed, and adopted by the corporation, and it agreed to fully carry out its terms; that soon thereafter defendants Rollins and Cohen, above named, paid complainant in full for his entire interest, and' he retired from the business; that since July 1,1911, he has been annoyed, almost daily, by receiving letters, invoices, bills, statements of account, and general correspondence, all pertaining to this fur business, conducted under the said corporate name of “The House of George,” and great confusion has resulted therefrom; that the name “George” has no special connection with the fur business, but it is valuable thereto solely because of the reputation built up in such business by complainant; that on August 1, 1911, he gave defendants written notice, as provided in the contract between the parties, to eliminate the name “George” from the business and corporate name, but that defendants have refused so to do. Complainant charges, on information and belief, that defendants Fred H. Rollins and Josephine Cohen, conspiring together for the purpose of evading the provisions of said contract, for the purpose of continuing the use of the name “George” in said business, and of defrauding him and the public in continuing the same business, have caused the said corporation, The House of George, to be dissolved and a new corporation to be organized having the same name and the same total amount of stock, of which the two defendants above named own all but three shares; that the other three shares are held by Lillian Rollins, sister of defendant Rollins, Jeannette R. Cohen, sister of defendant Josephine Cohen, and George Harland; that these three persons have no real interest in the corporation, but are mere dummies for defendants Rollins and Cohen; that all of said actions and doings are in violation of the contract, and in derogation of the rights of complainant, and will cause complainant great loss and irreparable damage, remediable only in a court of equity.

The prayer of the bill of complaint, besides the ordinary prayer asking for an answer, prays for a temporary injunction against them from further proceeding with the organization of the corporation to be known as “The House of George,” or from doing any other thing in any wise connected therewith, and from conducting or operating the said retail fur business in the city of Detroit, or elsewhere, under the name of “The House of George,” or using the name “George” in connection with said fur business, or conducting it in any manner other than set forth in said contract; and that defendants, and each of them, be decreed to specifically perform the provisions of the contract; that a subpoena and injunction issue, and for general relief. A temporary injunction was issued upon filing the bill. Defendants appeared and demurred to the bill of complaint for the following reasons:

(1) Because it fails to show that there is a sufficient amount of money involved to give the court jurisdiction; (2) because there is no equity in the bill of complaint; (3) because the complainant has a complete and adequate remedy at law; (4) because it shows that defendants Fred H. Rollins and Josephine Cohen have fully performed the contract.

The appellants have included in the record the temporary injunction, the motion to dissolve the same, and affidavits in support of said motion. This motion has not been argued, therefore this portion of the record will be treated as surplusage. The demurrer of defendants admits as true all of the allegations of the bill of complaint which are well pleaded. The second and fourth grounds for demurrer do not require consideration.

The first contention relied upon by defendants in their demurrer is the statutory provision relative to the jurisdiction of circuit courts in chancery. This court has held that the statute does not make the allegation of the amount in dispute jurisdictional; and, where the fact that the amount in dispute does not exceed $100 is not shown by the bill, the remedy of the defendant is not to demur, but to raise the jurisdictional question by plea or answer, though he may insist on the objection at the hearing, where it appears from the pleadings or proofs that the value in controversy is below the statutory amount. The court said:

“In the present case there was nothing in the bill to show what the amount in controversy was. The defendant did not plead the inadequacy of the amount in controversy. Hence there was nothing to warrant a dismissal under the terms of the statute, and the court should not have made such an order, upon that ground, until the proofs showed such inadequacy.” Brassington v. Waldron, 143 Mich. 364, 365 (107 N. W. 100), and cases cited.

" The bill of complaint under oath alleges that the violation of the terms of the contract as charged will cause him great loss and irreparable damage. It also sets forth an invasion and injury of his contract rights, his name, business reputation and standing; that defendants are deliberately violating their contract obligation. The violation of the contract obligations is admitted by the demurrer. The court will not assume that this controversy to protect the rights of complainant in the enjoyment of his property above designated does not involve more than the sum of $100. Property rights are involved in this litigation, which the court will assume to be valuable, and the invasion of such rights is sought to be prevented by injunction.

The contention that complainant has a complete and adequate remedy at law cannot be maintained. This is a controversy where an award of damages would not be adequate, and the bill states an equitable cause of action. It charges a deliberate violation of contract obligations; it shows confusion and misunderstanding, annoyance by the continued use of his name, brought about by the defendants, and an undertaking to avoid a solemn agreement by the subterfuge of organizing another corporation of the same name, which they have contracted not to use. This contract complainant has a right to specifically enforce, which enforcement is only possible in a court of equity. These propositions are so fundamental, and have been so often sustained by this court, that citation of decisions is not necessary. Defendants urge that the bill of complaint shows that defendants Rollins and Cohen have fully performed the contract on their part. It is presumed that this is because the purchase price of the property mentioned in the contract has been paid. The fact is overlooked that the contract contained the agreement relied upon by complainant that upon notice given the name “George” should be eliminated from the name of the corporation, which answers the argument.

The further claim is made that the new corporation, did not assume the obligation of the contract and is not bound thereby; that it appears without dispute that the first corporation by dissolution consummated the performance of the contract and ipso facto the name “George” was discontinued by it; that it is dead and all of its contract relations died with it. The bill avers, and the argument of defendants admits, that the first corporation ratified this contract and agreed to perform the same; that the organization of the new corporation is clearly fraudulent and for the purpose of avoiding the obligation of the contract. Courts do not uphold such transactions. Complainant is seeking to enjoin the perpetration of a gross fraud upon him. He has stated a cause for equitable relief. Assuming that what he charges is true, he is entitled to the relief prayed. This argument of defendants is specious, and does not meet the issue presented.

The decree of the circuit court is affirmed, with costs.

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


text:
    HILL v. ABRAM SMITH & SON.
    Pleading — Evidence—Contributory Negligence — Incompetency.
    Proof that plaintiff, in a personal injury action, was mentally defective or incompetent, is inadmissible unless the declaration contains averments sufficient to apprise defendant, his employer, of the claimed condition, although the testimony is offered to negative contributory negligence, and not as a basis for damages.
    Error to St. Clair; Tappan, J.
    Submitted January 8, 1913.
    (Docket No. 34.)
    Decided July 9, 1913.
    Case by Peter Hill against Abram Smith & Son, a corporation, for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Dwyer & Dwyer and C. L. Benedict, for appellant.
    L. W. Goodenough and Irvin Long, for appellee.
   McAlvay, J.

This is an action brought by plaintiff against defendant, a Michigan corporation, to recover damages for injuries received while employed in and about defendant’s sawmill, charged to have been caused by the negligence of defendant. The case was tried before a jury and submitted under a charge of the court. The jury returned a verdict of no cause of action. Plaintiff by writ of error asks for a reversal.

The facts are that defendant, in connection with its business of repairing vessels, operated a small steam sawmill in the village of Algonac, St. Clair county, Mich. This mill is 50 feet long and 35 feet wide and stands on piles above the ground, and in the floor between the tracks of the log carriage is an opening about six inches wide in which the circular saw revolves when ripping lumber. Underneath the saw is an inclined wooden apron upon which the sawdust falls through the opening and is thrown into the center of a pit below it. The saw hangs in this opening, and just below the floor there are joists or timbers about ten inches apart on each side of the saw. From the bottom of the pit to the under side of the joists is about six feet. The height of the piles on which the mill rests is something over three feet. The space under this mill is only inclosed on the south side by the boarding of the mill extending to the ground, and on the north side for about one-half its length by the engine room. The east and west ends are entirely open.

Plaintiff was hired by defendant to wheel sawdust from this pit with a wheelbarrow, using a shovel to handle the sawdust. He began work February 21, 1910, in the morning, and worked that day and worked full time until noon on the 23d'without any mishap. He was employed as a common laborer. His claim is that on that day he was told that the mill would not operate in the afternoon. Later he ascertained that the mill was running and returned to his work. He claims that he met the defendant’s manager and was told by him to go to work and remove the sawdust from the top of the pile. This is disputed by the manager. He began work again and had removed one wheelbarrow load of sawdust. He returned for a second load, and, in shoveling this sawdust, in some manner his shovel came into contact with the revolving saw, which dragged his hand against it and seriously injured it.

The failure of duty charged in the declaration upon which negligence is predicated is in not furnishing a safe place in which to work, and not instructing plaintiff as to the dangers of the employment.

Plaintiff at the time was a mature man 40 years of age. Upon the trial of the case, in his opening statement, counsel for plaintiff stated, among other things:

“Now, Mr. Hill is not a bright man, nor is he what you might call an ordinary bright man.”

An objection was interposed on the part of defendant, upon the ground that no foundation had been laid in the declaration, nor any notice given of a claim of mental deficiency in the plaintiff, and therefore the statement would be improper because no evidence could be introduced to support it. Plaintiff’s counsel said:

“We are not claiming at this time that we are entitled to recover by reason of this person being an incompetent person, but are claiming that mental incompetency can be shown on the trial to negative contributory negligence.”

The court sustained the objection and an exception was taken. Later the same question arose on the examination of a sister of plaintiff, when the following question was asked by his counsel:

“Q. As to whether or not he (plaintiff) is weak, mentally.”

Objection was made that this was irrelevant and immaterial for the reason that this testimony was inadmissible under the declaration. The court said:

“Do you put this in as a basis of recovery of damages, because he is weak-minded?”

Plaintiff’s counsel said that he did not, but that it negatives contributory negligence and any assumption of risk. The objection was sustained and the plaintiff excepted. A motion for a new trial was made, on the ground that the court was in error in excluding this evidence. This motion was denied. The errors assigned in this case present only the one question as to whether the court was in error in making the rulings above stated.

In the plaintiff’s brief it appears that reliance is' placed upon the decisions of this court in several cases, notably Swoboda v. Ward, 40 Mich. 420, 425, to the effect that, in order to show lack of contributory negligence, the age, intelligence, and experience of the plaintiff may be shown, and the jury from such evidence may determine as to whether the danger was understood and appreciated by the injured person, and the argument is made that evidence of his mental weakness is admissible for the same purpose.

Where the declaration in a case alleges the fact that the person injured was a child, testimony as to the age of the child is admissible as bearing upon its ability to comprehend the danger to which it has been exposed; but appellant cites no authority to sustain his contention that, without setting up such claim in the declaration, where an adult brings suit, such proof is admissible. In fact, we are cited to no authority directly in point in this case. The exact question is one of first intention before this court, but in several cases where the same principle is involved this court has indicated the necessity of including in the declaration an averment of facts sufficient to make the proof relevant and material.

Steiler v. Hart, 65 Mich. 644 (32 N. W. 875), was a case brought for injuries to a boy 14 years old who operated a stamping machine, where evidence was admitted to show that working upon such a machine made him dizzy. In the opinion reversing the case this court said:

“The court erred in admitting this testimony. No complaint of this kind is set forth in the declaration, and the effect produced upon the plaintiff is not suggested to have had any relation to the accident as the producing cause. It did not tend to prove the perilous nature of the machine, but rather to show that it incapacitated the witness to work upon it, and no claim is made that defendants were notified of the fact that plaintiff was made dizzy by working on the machine, and fell far short of showing that the natural effect of the machine was to make any one dizzy who worked upon it. * * * There was no allegation in the declaration which would authorize the introduction of this testimony.”

In the later case, Lindsay v. Railway Co., 141 Mich. 204 (104 N. W. 656), an action was brought by an incompetent person, by his next friend, in a case of trespass vi et armis for injuries received for assault and battery upon him by a conductor of defendant company, in forcibly putting him from a car. The declaration was a simple declaration in trespass vi et armis. The court said:

“It was not competent under this declaration to claim or prove damages for aggravation of a mental disorder, and, if plaintiff claimed damages for negligence of the conductor in failing to discern his infirmity, the declaration was not such as to support such claim. * * * It has been held in several cases that such proof is not admissible, and that such damages are not recoverable unless alleged in the declaration” — citing Thurstin v. Luce, 61 Mich. 298 (28 N. W. 103); Wilkinson v. Spring Works, 73 Mich. 409 (41 N. W. 490); Hunter v. Village of Durand, 137 Mich. 53 (100 N. W. 191); Phippen v. Railway Co., 110 Mich. 351 (68 N. W. 216).

In our opinion the court was correct in holding in the instant case that:

“The defendant under the declaration filed had a right to assume that the plaintiff came into court as an adult of ordinary intelligence. An adult in charge of machinery is presumed to possess ordinary intelligence and capacity, and when parties come into court claiming that the defendant is negligent for placing an incompetent person in charge of dangerous machinery, or that the servant is excused from negligence because he is mentally incompetent, plaintiff claiming these rights because of incompetency is in duty bound to apprise the defendant of such claims in his declaration.”

The evidence was inadmissible under the declaration in the case. The court was not in error in excluding it, or in refusing to grant a new trial.

The judgment of the circuit court is affirmed.

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


text:
    COGSWELL v. CITY OF ESCANABA.
    Municipal Cobporations — Bills and Notes — Voting Machines.
    Defendant city purchased certain voting machines pursuant to Act No. 217, Pub, Acts 1905 (1 How. Stat. [2d Ed.] §§421-425), and issued a certificate of indebtedness, after using the voting machines at an election and finding that they were satisfactory. Interest was paid on the certificate to the assignee or indorsee and the voting machines were retained without objection by the city and used at two elections, and it appeared from the record that the vendor supplied a carton or box to place inside the booth, as required by subsequent statutory enactment. No official action was shown by the city as a basis of defense. Held, that the holder of the certificate of indebtedness was entitled to recover, notwithstanding the claim that the issuance of the certificate of indebtedness inereásed the municipal debt beyond the lawful maximum.
    Error to Delta; Flannigan, J.
    Submitted January 27, 1913.
    (Docket No. 103.)
    Decided July 9, 1913.
    Assumpsit by Edwin H. Cogswell against the city of Escanaba for an installment of interest upon a certificate of indebtedness. Judgment for plaintiff upon a verdict directed by the court. Defendant brings error.
    Affirmed.

      A. H. Ryall and F. D. Mead, for appellant.

      H. J. Rushton and Fellows & Chandler, for appellee.
   Moore, J.

This suit was brought to recover an installment of $98 interest on a certificate of indebtedness for the sum of $2,450, delivered to the Abbott Voting Machine Company by the defendant on the 23d day of April, 1907. This certificate was issued in payment of the purchase price of voting machines, pursuant to Act No. 217, Pub. Acts 1905 (1 How. Stat. [2d Ed.] §§ 421-425). The defendant in this suit pleaded the general issue and gave notice, among other things, that the consideration of the contract for the purchase of said voting mtchines, upon which this certificate was issued, had failed because said voting machines were not reliable and did not permit a secret ballot in all cases as required by law; that they were unreliable and untrustworthy; that Act No. 217 of the Public Acts of 1905, under which the contract was made and entered, was unconstitutional; that the plaintiff was not an innocent purchaser of said contract before maturity and was not a bona fide owner of said contract; that the contract was invalid and could not be recovered upon because the indebtedness of the city of Escanaba was thereby increased beyond the statutory limit and because said contract was made in violation of the charter of the city of Escanaba, being chapter 88, 1 Comp. Laws, and the amendments thereto; that no appropriation was made, by ordinance or otherwise, of the amount necessary to pay said certificate in the month of September, 1906, or at any other time.

After the téstimony was all in the plaintiff moved for a directed verdict for these reasons:

(1) That the certificate of indebtedness was a negotiable instrument under the negotiable instrument act, and that the plaintiff having acquired the same before it was due, for value, was the holder thereof in due course and entitled to recover.
(2) It appearing that the certificate was complete and regular upon its face and that the plaintiff, without notice of any infirmity, if there was any, acquired the same before it was due and before its having been dishonored, and for value acquired the same in good faith, and is therefore the holder in due course and entitled to recover the amount due on said certificate.

The trial judge was of the opinion that the case was on all fours with the case of Darling v. City of Manistee, 166 Mich. 35 (131 N. W. 450), and directed a verdict in favor of the’ plaintiff. The case is brought here by writ of error.

Considerable space is devoted in the briefs to a discussion of the negotiable instrument law, so called. Discussion is also given to the provisions of Act No. 287, Pub. Acts 1907, and the construction thereof. We do not deem it necessary to discuss whether the instrument sued upon is governed by the negotiable instrument act or not. Nor do we need to discuss the provisions of Act No. 287, Pub. Acts 1907, as that act was not approved until June 27, 1907, while the transaction in the case at bar was entered into April 23, 1907.

There are certain features of the case about which there is no dispute. At the April election, 1907, the city of Escanaba used the Abbott voting machines. Following this election the city issued the bond or certificate sued upon. The city on that date placed an order for seven Abbott voting machines, which order was accepted. The following language occurs in the order:

“Upon the following conditions, and not otherwise: That the Abbott Voting Machine Company guarantee each Abbott voting machine to be of perfect material and workmanship; that each machine will, at all elections, keep an absolutely correct record of a vote from each voter voting at the election, and that the number of votes as to each office being voted for shall exactly equal the number of voters as shown by the total register on the machine to have voted; that said company will keep said machines in repair and replace or repair any part or parts which may require repairing or replacing on such machines for a period of ten years from this date without charge to the city of Escanaba; said Abbott Voting Machine Company having furnished competent instructors at the first election, April 1, 1907, without charge to the city of Escanaba.
“The machines having complied with the above-mentioned conditions at the election held April 1,1907, the city of Escanaba hereby agrees to issue and deliver to the said Abbott Voting Machine Company, its certificate of indebtedness for the sum of three hundred and fifty dollars for each voting machine, and payable at the time above specified.”

The record shows that on May 18, 1907, the plaintiff loaned the Abbott Voting Machine Company $2,000, taking its note therefor and the certificate sued upon, duly indorsed as collateral security.

Counsel for the appellee make this statement in their brief which is borne out by the record:

“It should be further stated that the city of Escanaba retained said machines, never raising any complaint, issued the bond (or certificate of indebtedness, by whatever name it may be called) sued upon; that the execution of said bond is admitted by the pleadings; that said bond was hypothecated to the plaintiff for a loan of $2,000 on the 18th of May, 1907; that one year’s interest was paid to him; that the city continued to use the voting machines for two elections after the passage of the act of T907, after the decision in the Helme Case, and after the repeal of the unconstitutional provision in the act of 1907, and after the carton or box had been furnished to place on the inside of the curtain pursuant to the act of the special session of 1907. In fact, that no protest or claim of defense was ever made by the defendant city, acting officially.”

We think the trial judge was quite right in holding that Darling v. City of Manistee, supra, was controlling.

Judgment is affirmed.

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


text:
    RICHARDSON v. DETROIT UNITED RAILWAY.
    Negligence — Street Railways — Personal Injuries — Contributory Negligence.
    It was not, as a matter of law, contributory negligence for plaintiff to cross a street ear track on which no car was approaching, where plaintiff looked, at a point 17% feet from the track, and observed a car on the intersecting street that she knew ordinarily did not turn on the street which she was atempting to cross, but proceeded, usually, in the direction it was taking along the intersecting track: and where plaintiff did not look again, being struck by the car as it turned onto the wye.
    Error to Wayne; Murphy, J.
    Submitted January 15, 1913.
    (Docket No. 109.)
    Decided July 9, 1913.
    Case by Ruth Richardson against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Joslyn (A. B. Hall, of counsel), for appellant.

      Ernest A. O'Brien and Edward L. Dwight, for appellee.
   Bird, J.

The plaintiff resided on Helen street, near Jefferson avenue, in the city of Detroit. In the early evening of January 28,1910, she left her home in company with her husband, daughter, sister, and a Mr. Hamburger to attend a social function. They proceeded south on the east side of Helen street until they reached Jefferson avenue. Just before turning west to cross Helen street, the plaintiff looked toward the east on Jefferson avenue, and observed near the middle of the block a west-bound Trumbull avenue car. Having knowledge that the Trumbull avenue cars turned north on Mt. Elliott avenue, several blocks west, they started across Helen street in single file on account of the snow and slush, the plaintiff being in the rear. Before plaintiff could clear defendant’s track on Helen street, she was struck by the car (which had, contrary to its custom, turned in on Helen street), and was seriously injured. Upon cross-examination the plaintiff testified as follows:

“Q. From the time you left the sidewalk you never looked for the car?
“A. Why should I, I just crossed the track.
“Q. Just say yes or no.
“A. No, sir; I didn’t, certainly not.
“Q. From the time you left the sidewalk until you got to the car track you never looked again for the car?
“A. Why, no.
“Q. And after you had passed over the track you claim to have been struck?
“A. Yes, sir; I certainly was.”

The defendant at the close of plaintiff’s case requested the trial court to direct a verdict in its behalf because the testimony showed that the plaintiff was as a matter of law guilty of contributory negligence in failing to look again before going upon the track. This request was denied, and the questions as to her negligence and the negligence of the defendant were submitted to the jury, and she was given a verdict. The defendant now makes the same contention in this court, and assigns error on the refusal of the trial court to grant its request.

The question presented is whether plaintiff, standing on the corner of Helen and Jefferson, seeing the car approaching, with a knowledge of its custom, acted differently in attempting to cross the street than an ordinarily prudent person would have acted under like circumstances. The plaintiff had lived in that vicinity for several years, and was acquainted with the running of the cars. She knew that the Fort street cars went north on Helen street, and that the Trumbull avenue cars went north on Mt. Elliott avenue; therefore on the evening in question, when she saw that the approaching car was a Trumbull avenue car, she concluded it would do the usual thing, and not interfere with their crossing Helen street. The thought has been suggested whether her situation should not be considered the same as though she had looked and had seen no car approaching on the track she was about to cross. A reasonably prudent person is not ordinarily concerned about avoiding a car which he sees on a track which he does not intend to cross. The car in question was on Jefferson avenue. If it adhered to its custom, it would remain on Jefferson avenue. Plaintiff had no thought of crossing Jefferson avenue, they why should she give it further thought? The sudden turning in on Helen street was evidently as much of a surprise' to the motorman and conductor as it was to plaintiff, as the record shows the car backed onto Jefferson after the accident, and went along on its accustomed course. Under these circumstances, we are asked to hold that the plaintiff, who, when 17% feet from the track she was about to cross, looked and saw no car approaching thereon, was guilty of contributory negligence as. a matter of law for failing to look again before going upon the track. A situation may arise where we would feel it our duty to so hold, but we do not feel that we should do so under the circumstances presented by this record. But it is strenuously argued by defendant that this case is ruled by Manos v. Railway, 168 Mich. 155 (130 N. W. 664). In that case the plaintiff saw the car approaching on the track she was about to cross. In this case the plaintiff saw a car approaching on a track she did not intend to cross. This case is also likened unto the case of Clark v. Railway, 168 Mich. 457 (134 N. W. 463). The facts there involved were that plaintiff alighted from a west-bound car, and went around the rear of it, and attempted to cross the east-bound track without looking, when her vision was unobstructed. The facts in these cases are dissimilar.

The question of the plaintiff’s negligence was, to say the least, a question about which reasonable minds might and do differ. It therefore was a question to be solved by the jury rather than by the court.

The judgment of the trial court is affirmed.

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