text:
    SMITH v. DETROIT UNITED RAILWAY.
    1. Railroads — Personal Injuries — Negligence—Contributory Negligence — Questions for Jury.
    In an action on the case for personal injuries, it appeared that plaintiff went from her home on a division of defendant’s electric railway to a village on another division of the road; that near the junction of the two, on the division to which she transferred, defendant’s road crossed another railway which crossing was protected by a derailer; that plaintiff was unfamiliar with electric pars and had never been on the last-named division; that on her return in the evening, it being dark and rainy, when the car approached the said junction, the conductor announced the station and immediately left the car; that plaintiff started to alight, as others were doing, and the car suddenly started, throwing her to the ground; that the car, in fact, was stopped for the purpose of setting the derailer. Held, that the questions of defendant’s negligence and plaintiff’s contributory negligence were for the jury.
    2. Evidence — Res Gestas.
    The testimony of an eyewitness as to what occurred, and what other passengers did at the time of the accident, was material as part of the res gestae,.and on the question of plaintiff’s contributory negligence.
    3. Appeal and Error — Evidence—Instructions.
    Whether the admission of evidence was error will not be considered where the charge given took the consideration of such testimony from the jury.
    4. Evidence — Opinion Evidence — Expert Witnesses.
    Permitting doctors, called as expert witnesses, to state whether a cause, which it was alleged existed, would, in their opinion, as medical men, be sufficient to produce a condition which it was claimed resulted from the accident, was not error on the ground that the questions were deficient in not stating the circumstances under which the accident occurred, since the questions asked did not call for opinions on the whole case.
    5. Same — Res Gestas.
    Evidence that plaintiff’s husband, who immediately preceded her in alighting from the car, called out, “Hang on,” as the car started up, just as she was alighting from the lowest step, was admissible as part of the res gestae.
    6. Trial — Instructions—Definitions.
    Definitions of negligence and contributory negligence should be considered in connection with the charge as a whole and the requests of both parties which were given.
    Error to Oakland; Smith, J.
    Submitted July 13, 1908.
    (Docket No. 88.)
    Decided February 2, 1909.
    Case by Jennie I. Smith against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark and James H. Lynch, for appellant.

      Aaron Perry and George W. Caswell, for appellee.
   McAlvay, J.

Plaintiff recovered for personal injuries claimed to have been caused by the negligence of defendant’s agents and servants in operating one of its cars at or near the village of Royal Oak in Oakland county. Plaintiff, her husband, and three small children were passengers upon a car upon defendant’s road, being conveyed, for a distance, over both the Detroit & Pontiac division and the Flint division. On the morning of November 20, 1904, these parties left their home in the village of Birmingham to visit friends, who lived about three miles northeast of Rochester. They went to Royal Oak on the Detroit & Pontiac division, and transferred to the Flint division, and proceeded on that division to their destination. In coming over defendant’s road on the Flint division, near Royal Oak waiting room, and before the transfer is made to the Detroit & Pontiac division, defendant’s road crosses the Detroit, Grand Haven & Milwaukee railway track. At this crossing there is a derailer on each side of the above-named railroad which cannot be crossed until the derailer is set for crossing. In going on the journey in the morning the place of transfer was reached, and transfer was made, before coming to the railroad crossing. Defendant’s cars always stopped at this crossing going both ways, and the derailer was set before going over. This appliance is for the purpose of safety, and any attempt to cross with defendant’s cars without stopping and setting it would result in throwing the car from the track. Plaintiff was not accustomed to electric cars, and had never ridden on the Flint division before this journey. The evening was dark and rainy. On the return trip plaintiff, her husband, and the three children were seated on the last, or next to the last, seat in the rear end of the car. As the car approached the railroad crossing, so both the plaintiff and her husband testify, the conductor opened the door and called out “Royal Oak,” and the car slowed up. When the car stopped, these parties all proceeded to get off; the husband, with two children, ahead, followed by the plaintiff, who carried the baby in her arms. There is evidence to show that another woman followed directly behind plaintiff. The little girl and the husband, who carried the boy, alighted in safety. The plaintiff had reached the bottom step, when her husband called, “Hang on!” The car started suddenly and she was thrown to the ground with the child she held, and received injury. The car was crowded. People were standing inside and on the back platform. The negligence charged is that plaintiff, after the conductor had called out “ Royal Oak,” using due care, was alighting from the car, which had stopped, when defendant’s servants suddenly caused the car to start with a jerk, throwing her down and injuring her. The defense to the action was that plaintiff was guilty of contributory negligence, in that this was not the place for stopping cars to allow passengers to alight, as might easily have been seen by plaintiff had she used diligence; that the stop was necessary to conform with the regulations of the road, and for purposes of preventing accident; that plaintiff was also negligent in attempting to alight after the car had started.

Can we say, under the circumstances of this case, that plaintiff, as a matter of law, was guilty of contributory negligence in attempting to leave the car at this place (a) because it was not the regular place for stopping to allow passengers to alight; (6) because the stop was necessary to conform with the regulations of the road and to prevent accident ? To the first contention we answer that there are several reasons why we cannot. The night was dark and rainy, and there is evidence tending to show that the situation could not be seen by plaintiff. This eliminates defendant’s chief argument under this contention. The mere fact that a passenger alights when a car stops at other than a regular stopping place is not therefore negligence per se. Other factors besides inability to see might, as in the case at bar, operate to relieve the passenger at such a place from negligence in alighting. It is undisputed that the conductor, shortly before the car stopped,, called out “ Royal Oak.” It is in dispute just where the car was when this call was made. It was the last call made before the car stopped, and immediately after calling out he passed rapidly out of the car. Plaintiff, believing that this was Royal Oak where she was to change cars, arose, and, seeing others in the car at the same time doing the same thing, proceeded to leave the car. The same reasoning applies to and answers the other contention that contributory negligence may be charged to plaintiff because this stop was necessary, and to prevent possible accident at the railroad crossing. The question is, What might this announcement and the stopping of the car reasonably signify and indicate to her under all the circumstances ? We must bear in mind that in this call there was nothing to indicate that this was not a regular stopping place, nor was any warning given before the car was started. Our opinion is that it was not error to submit the question of the negligence of defendant to the jury. Wolf v. Railway, 131 Wis. 335, and cases cited; Taber v. Railroad Co., 71 N. Y. 489. Our own decisions, and other authorities, hold that where, after the station is announced, a train overruns a station, or stops before reaching it, allowing passengers to alight at a dangerous place, or the train is moved without warning and injury follows, the question of negligence of the company should go to the jury. Mensing v. Railroad Co., 117 Mich. 606; Cartwright v. Railway Co., 52 Mich. 606; Bridges v. Railway Co., L. R. 7 H. L. 213; Van Horn v. Railroad Co., 38 N. J. Law, 133. The case at bar is not within the case of Minock v. Railway Co., 97 Mich. 425, cited and relied upon by defendant, where on leaving one station the announcement was made, “The next station is Holly,” and the train stopped at a railroad crossing without further announcement, when the plaintiff proceeded to get off, and was injured. It appears in that case, by established custom, that this announcement was always made soon after leaving a station, and afterwards the next station was called when reached. Plaintiff was uncertain as to .this, but the court says:

“The evidence shows that ‘Holly’ was called when reached, and there is really no testimony that others were not, and the jury should not be permitted to assume it.”

The questions of the negligence of defendant and the contributory negligence of plaintiff were both questions upon which the jury should pass, and both questions were submitted to the jury.

'There remains to be determined in the case whether in the trial the court committed any reversible error in passing upon the questions raised upon receiving or rejecting evidence, or in charging the jury upon questions of law. The errors discussed upon these propositions will now be considered in the order above indicated. Of the errors assigned, the first discussed relates to the testimony of the witness Terwilliger, who was a passenger upon this car, concerning what his wife, who accompanied him, did at the time the car stopped. Plaintiff had already testified that other passengers were going out of the car at the time she went out, and that one woman, also going out, was immediately behind her. The testimony of an eyewitness as to what occurred, and what other passengers did, at the time of the accident was material as part of the res gestge, and on the question of plaintiff’s contributory negligence. It is within the reasoning of the rule laid down in Holman v. Railway Co., 114 Mich. 208, and 11 Enc. of Evidence, p. 391 et seq., and notes.

Error is assigned upon the admission of testimony of the same witness on redirect examination relative to the fact that passengers frequently left the cars at this place. This was first brought out by defendant on cross-examination of this witness, and defendant examined its witnesses upon the same subject. The court, at the request of defendant, charged the jury as to the passengers desiring to transfer, who were familiar with the premises leaving the car at this point, as follows:

“ The plaintiff in this case claims that this was the first time that she had ridden over this road, and that she had little or no knowledge of the surroundings of the road or the manner in which it was operated. Under those circumstances it is not material in this case whether or not passengers, desiring to transfer to the Birmingham car, and who were familiar with the premises, sometimes left the car when it stopped for the derailer on the easterly side of the Detroit, Grand Haven & Milwaukee tracks, since the plaintiff had no knowledge of that fact, and for the further reason that the usual and customary place for passengers to transfer from the Flint division of the cars for Birmingham was at a point on Washington avenue.”

Defendant moved to strike out all of the testimony upon this subject. The exception was taken to the denial of this motion but the above request, given later, took the consideration of the testimony from the jury. As to the materiality of the testimony we need not determine. Defendant cannot complain that the action of the court constituted error.

Two physicians were examined as expert witnesses for plaintiff. The first of these witnesses did not attend plaintiff at the time of her injury, but made an examination, in connection with the other physician, March 27, 1905. The record does not show that he was in court and heard the evidence in the case. On direct examination he testified as to her condition at that time. On redirect he was asked:

“Q. State whether the conditions which you found at the time you examined this patient, on the 27th day of March, 1905, were such as would naturally result from a strain or concussion resulting from a fall from a street car, of the patient ?
“A. It could be.”

The other physician who attended plaintiff at the time of her injury was asked:

“Q. State whether or not the conditions which you saw at that time were such as would, naturally result from a fall from a street car, done in such a way as to sprain or strain the back in the vicinity — well I will say back — and the concussion resulting in case the patient should fall upon the back ?
“A. Yes, sir.”

The objection of defendant to these questions is that they were deficient in not stating the circumstances under which the injury was inflicted. The questions asked did not call for the opinion of these witnesses on the whole case. This court has several times decided that questions similar to those asked in this case are proper. In Lacas v. Railway Co., 92 Mich. 417, the court said, in passing upon a question similar to the questions in the case at bar:

“The testimony given in answer to the above-quoted question was proper as showing the character of the cause which might have produced the injury. The question did not, as was the case of Jones v. Village of Portland, 88 Mich. 598 (16 L. R. A. 437), call for the opinion of the witness on the whole case. The extent to which the ruling went was to permit a doctor to state whether a cause, which it was alleged existed, would, in his opinion as a medical man, be sufficient to produce a condition which it was claimed resulted from this cause. The question is ruled by Fay v. Swan, 44 Mich. 544.”

The case at bar is not distinguishable on this point from Lacas v. Railway Co., supra, which was followed in Bush v. Railway Co., 113 Mich. 513. See, also, Boehm v. City of Detroit, 141 Mich. 277. It was not error to allow these questions to be answered.

Error is also assigned in permitting plaintiff’s husband to state what he said to her at the time she was stepping off the car.

“Isays, ‘Hang on!’ I said that to her when the car started, and just as the car started she fell.”

This occurred after the husband had alighted from the car with one child, and while plaintiff was in the act of stepping from the lowest step of the car. As the car started, he cried out to her “Hang on! ” We think it admissible as part of the res gestas. It was an instinctive exclamation, made immediately as the car started, called out by the apprehended danger of an accident to his wife, by reason of the starting of the car. 24 Am. & Eng. Enc. Law (2d Ed.), pp. 685, 686, and authorities cited.

Defendant assigns error upon the refusal of the court to give the ninth and a part of the twelfth requests to charge. The ninth request reads:

“ If the jury find that the conductor did call out ‘ Royal Oak,’ that did not, in itself, notify or inform plaintiff that that particular point was the point at' which transfers should be made to the other line, and that plaintiff had no reason from anything the conductor said to leave the car, and the fact that her husband did so, as I have before said, furnishes no excuse for her conduct. She could have made inquiries of the conductor as to what to do, and, failing to have made inquiries in that regard, she acted at her own peril.”

This request was properly refused. The conductor testified that he called out “Royal Oak.” This is the announcement plaintiff says she heard. There is no dispute that, soon after he made the announcement plaintiff heard, the car stopped, and she, her husband, and others proceeded to leave the car. The conductor had left the car, and there was no possible opportunity to make inquiry of him. It was not applicable to the facts in the case, which were not disputed, and upon which we have decided that the question of the negligence of defendant was for the j ury to determine. The twelfth request was in the alternative. The part not given reads:

“If the jury believe that at the time in question, as claimed by plaintiff, the conductor did not call out, in the hearing of plaintiff, ‘Royal Oak,’ or ‘ Royal Oak, passengers transfer for Birmingham and Pontiac,’ or words to that effect, then the plaintiff cannot recover. If not given, then the following.”

This alternative was given as follows:

“If the jury believe that, just prior to the stopping of the car at the place where plaintiff was injured, the conductor did call out ‘Royal Oak,’ but that the plaintiff undertook to alight from the car at the point in question, then, in determining whether or not the plaintiff was guilty of contributory negligence in so attempting to alight from the car, the jury should take into consideration the place where the cars stop, the absence of lights at that point, the arrangements for lights at the waiting room, the customary manner in which the cars were operated, and all the other facts and circumstances in the case, and if the jury believe that the actions of the plaintiff at that time were not actions of an ordinarily prudent person under the circumstances, taking into account plaintiff’s ignorance of the surroundings, then the plaintiff would be guilty of contributory negligence, and independent of the negligence of the defendant the plaintiff cannot recover.”

The defendant designates these as two paragraphs of one request. They are in fact two distinct requests, based upon two different theories. The first was properly refused as not applicable to the facts in the case.

Défendant’s fourteenth request was not given. It would be of no benefit to repeat it here. It was also in the form of two requests. The reasons herein given for refusing the requests of defendant which we have discussed dispose of the error assigned for refusing to give defendant’s fourteenth request. The requests are similar in character, and the same arguments are relied upon in support of all of them. Both sides submitted requests to charge covering their views of .the case. "We have discussed all the errors assigned upon them. No errors are assigned upon plaintiff’s requests as given, which are in part as follows:

“If you find that the night of the accident was a dark, rainy night, and that for that reason while on the car the plaintiff could not see the situation of the car with reference to the waiting room at Royal Oak, or where it was on the street, and the conductor of the car opened the door and called ‘Royal Oak,’ and soon thereafter the car stopped still, and the plaintiff then believed from such announcement that she had reached the proper place to alight, and no warning was given to delay, or not to get off at that place, and she did not know she was near a railway crossing, and two passengers had preceded her in getting off the car there — that is, if you find these things from the evidence — then I charge you that, under such circumstances, she had a right to assume that sufficient time would be given her to get off the car in safety if she acted with reasonable care and diligence.
“And I charge you further in this case, if you find, in undertaking to get off the car at the place where she did undertake to alight, and was just in the act of stepping off, and had reached a point where it would be difficult, as she was situated, to turn back, that the car started at the very instant she was so acting, then I charge you, as a matter of law, that she would not be guilty of negligence herself in continuing her descent from the car.”

The court gave the following among other requests of defendant:

“All persons using the defendant’s electric car of the Flint division are held chargeable with the knowledge of the manner in which the same is usually operated, even though they may not have had any actual knowledge of the same. * * *
“In determining whether or not defendant was negligent in the manner in which the car was operated, the jury may take into consideration the manner in which the other suburban cars in this section are operated, as far as relates to having no one but the motorman in charge of the car when the conductor proceeds to throw the derailer, and if the defendant used the same precautions which were used on the other roads of like character in this section of the country, then it was not negligent in having the car in control of the motorman alone at such times.
“ If the jury believe that the conductor did call out, at the time and place plaintiff claims, the words ‘Royal Oak,’ and find that the plaintiff did undertake to leave the car at that place, and got upon the step of the car when or after the same had started, and she was thrown to the ground, I charge you that such action upon the part of plaintiff was negligent, and she is deemed to be by law guilty of contributory negligence, and she cannot recover.
“ If the jury believe that at the time the plaintiff got upon the rear platform of the car the car had started, and that as plaintiff attempted to go down upon the lower step, she was so placed in a position of greater danger than she was upon the car platform, then she was guilty of contributory negligence, and she cannot recover.”

The theories upon which plaintiff and defendant relied are outlined in the portions of the charge quoted; and, reading the charge as a whole, all the requests defendant was entitled to were given. The court in the main charge defined negligence and contributory negligence. Defendant has assigned error' upon these definitions. We give the whole paragraph, in which negligence was defined as follows:

“One definition of the word ‘ negligence ’ is this: Negligence consists in a want of that reasonable care which should be exercised by a person of ordinary prudence, under all the existing circumstances, in view of probable injury. Negligence is the failure to observe, for the protection of another’s interest, such care, precaution and vigilance as the circumstances justly demand, and a want of which causes injury. Ordinary care as used in these cases "has relation to the situation and condition of the parties, and varies according to the exigencies which require vigilance and attention. The question of diligence or negligence in these cases always depends upon the circumstances peculiar to each particular case.”

The definition’ of contributory negligence given was:

“Contributory negligence is where one so acts as to contribute by direct consent to, or participation in, the wrong complained of.”

The first sentence of the definition of negligence is the part objected to. Wherein the error lies we are not informed. Judge Cooley, in his work on Torts (3d Ed.), p. 1324, is authority for the correctness of the second sentence of this definition. Moomey v. Peak, 57 Mich. 261, is authority for the definition of contributory negligence. These definitions must be taken in connection with what the court said upon the subject of negligence in his charge, and in the requests of both parties which were given, and, so considering them, we find that the court was not in error.

The charge of the court, to which defendant has raised few objections, fairly submitted the case to the jury.

From a careful examination of the record we find no reversible error.

The judgment is affirmed.

Blair, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MICHIGAN UNITED RAILWAYS CO. v. INGHAM CIRCUIT JUDGE.
    Pleadings — Rules—Demurrer—Time oe Filing.
    Under Circuit Court Rule 10, subd. a, a demurrer to an amended declaration filed more than ten days after the filing of the amended declaration was properly stricken from the files.
    Mandamus by the Michigan United Railways Company to compel Howard Wiest, circuit judge of Ingham county, to vacate an order striking a demurrer.
    Submitted February 5, 1909.
    (Calendar No. 23,241½.)
    Application denied February 6, 1909.

      Sanford W. Ladd, for relator.
   Per Curiam.

On December 26,1907, Charles Daman, as administrator of the estate of Edward S. Daman, deceased, instituted a suit against relator and the city of Lansing to recover the pecuniary damages sustained by the death of said Edward, his son. The cause of action was based upon the concurrent negligence of the two defendants. January 10, 1908, the relator filed its individual plea of the general issue. On February 27, 1908, the city of Lansing filed a like plea. In June, 1908, the cause came on for trial; and, in view of the ruling of the respondent, at the close of the proofs that the city was not liable, and both counts of the declaration being founded on a concurrent liability, the relator could not be held alone, the plaintiff withdrew a juror, and submitted to a nonsuit. No formal order was made, and the case stood as though no trial had been had. July 27, 1908, an amended declaration was filed, including two new counts, alleging the individual liability of the relator alone and at the same time the respondent entered an order allowing such amendment. On the 29th day of December, 1908, relator filed its demurrer to the amended declaration. On January 25, 1909, plaintiff in said suit filed a motion to strike said demurrer from the files. February 8, 1909, respondent granted the motion. February 5, 1909, relator filed in this court his petition for an order to show cause why respondent’s order should not be vacated, and he be required to enter an order reinstating said demurrer. Respondent’s order was based upon Circuit Court Rule 10, subd. a, providing in part that:

‘ ‘ If such amendment is made after plea or demurrer, such plea or demurrer shall stand as the plea or demurrer to the amended declaration, unless the defendant shall, within ten days after receiving such amendment, file another plea or demurrer.”

The rule fully supports the conclusion of the circuit judge; and the application for the order is denied.


author: Grant, J.

text:
    CAILLE BROTHERS CO. v. SAGINAW CIRCUIT JUDGE.
    1. Garnishment — Default Judgments — Setting Aside — Rules.
    Under Circuit Court Rule 12, a motion to set aside a default judgment in garnishment proceedings is properly denied when such motion is made more than six months after such default was regularly entered.
    2. New Trial — Motion—Issues of Fact — Framing.
    Where, on a motion to set aside a judgment in garnishment proceedings, defendant, under sections 10402, 10403, 3 Comp. Laws, is entitled to frame issues of fact to be determined upon such motion, he should make application for the framing of such issues in such manner that plaintiff can prepare to meet them.
    Mandamus by the Caille Brothers Company to compel Chauncey H. Gage, circuit judge of Saginaw county, to file findings of facts and of law.
    Submitted November 17, 1908.
    (Calendar No. 23,120.)
    Reargued December 29, 1908.
    Writ denied March 3, 1909.

      Jonathan Palmer, Jr., and Elhridge E. Bacon ( George W. Weadock and Bussell B. Thayer, of counsel), for relators.

      John A. McKay (Gray & Gray, of counsel), for respondent.
   Grant, J.

After the decision in Bliss v. Caille Brothers Co., 149 Mich. 601, the motion was remanded to he heard before a qualified judge. The motion was duly heard and again denied. The defendants introduced affidavits as the basis of their motion. Counter affidavits were filed and some oral evidence taken. Counsel for the defendants requested a finding of facts and of law. The circuit judge refused to make a specific finding of facts, and the relator petitioned this court for the writ of mandamus to compel him to make such finding. We filed an opinion on November 30, 1908, denying the writ. Shortly after, counsel for relator calling our attention to a decision which we had overlooked, that opinion was withheld, and counsel thereupon made a motion for a rehearing.

Our former opinion was based upon the theory that the statute for finding of facts did not apply to motions for new trials to set aside judgments. That was also the theory of the motion in the court below, of the petition for mandamus presented to this court, and of the original brief filed therein. Counsel in their original brief planted their right to relief upon sections 10260, 10261, 3 Comp. Laws. In a supplemental typewritten brief they cited Stringer v. Dean, 61 Mich. 196, wherein it was held that, upon a motion to set aside a judgment, a party was entitled to frame an issue under sections 10402, 10403, 3 Comp. Laws. That statute reads as follows:

“Whenever a suggestion shall be made upon the record, or in any stage of the proceedings in any cause, which the adverse party shall have a right to controvert, a copy of such suggestion shall be served upon the adverse party or his attorney, in the same manner as other pleadings, and such party may plead thereto, according to the practice of the court, in the same manner, and within the same time, as to a declaration.
“If an issue of fact be joined upon any such suggestion, the same shall be tried, and judgment rendered thereon, as on other issues.”

In writing the former opinion, I overlooked the supplemental brief, probably because of the large number of papers in each of the three cases involving the same state of facts.

The principal suit is based upon joint promissory notes executed by Silas W. Tyler and Fred B. Tyler as copartners. Personal service was had upon Silas. Fred was a nonresident, and certain land was attached belonging to him, the attachment levied, and a proper return made by the sheriff that he had levied upon the land of Fred B. Tyler. Silas appeared and interposed as a defense the statute of limitations and a discharge in bankruptcy, which defense was held to be valid. A copy of the affidavit for attachment, etc., was served upon Fred at his foreign residence. He did not appear. The sequence of the pertinent events is as follows: February 7, 1906, writ of garnishment, returnable February 27th; February 9, 1906, writ personally served; February 28, 1906, default for want of appearance; July 3, 1906, judgment in principal case; September 12, 1906, judgment in garnishment and issue of execution; September 13, 1906, execution levied upon property; November 27, 1906, motion to vacate judgment in garnishment; April 6, 1908, motion argued before respondent; October 5, 1908, motion denied.

The circuit judge returns that the relator did not appear in answer to the writ of garnishment; that the plaintiff recovered judgment against the principal defendant, Fred B. Tyler; that the proceedings in both the garnishment and principal suits were regular on their face. He denied the motion to set aside the judgment because (a) the application was not made within six months after personal service, as required by Circuit Court Rule 12 (131 Mich. xxxv), and therefore came too late; (6) that relator could not impeach the judgment in the principal case by contradicting the record collaterally on motion; (c) that certain correspondence, which passed between counsel for the plaintiff and the relator, did not mislead it into believing that no judgment would be rendered against it.

In refusing to make specific finding of facts and law, the court held that section 10261 (the statute then relied upon by relator) did not apply to motions of this character, but was limited to trial of cases by the court without a jury, and that relator did not present any points of law as provided by Circuit Court Rule 26. The judge in deciding the motion, filed a lengthy opinion setting forth the facts as he viewed them and his conclusion. In that opinion, which was made a part of the petition, it appears that the relator in its affidavit did not deny that it was indebted to the principal defendant, or that it had money, property, or effects in its hands belonging to him, and that it did not appear that the relator would suffer pecuniary loss if the judgment was not set aside. Fred B. Tyler, one of the principal defendants, is not here complaining. For aught that appears upon the record he does not desire to defend the suit, as an opportunity was afforded him to do so. There are two fatal objections to relator’s right to the writ:

1. Circuit Court Rule 12 (131 Mich. xxxv) provides that no default shall be set aside unless the application shall be made within six months after personal service. Where a default was set aside in violation of that rule, it was reversed by this court. Biensteadt v. Clinton Circuit Judge, 142 Mich. 633. That rule applies to judgments against garnishee defendants. Petley v. Wayne Circuit Judge, 124 Mich. 14; Carpenter v. Judge of Superior Court of Grand Rapids, 126 Mich. 8.

2. If Stringer v. Dean, supra, is applicable to this case, the defendant has not complied with the practice there laid down. It made no application to frame issues of fact or of law to be tried by the court. Relator now claims that there were several issues of fact involved in this motion for a new trial. If it desired to raise them and have specific findings thereon, the plaintiffs were entitled to have them defined, so that they might have an opportunity to prepare to meet them.

These two objections being well taken, it becomes unnecessary to discuss any of the other questions raised.

The writ is denied.

Blair, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    CAILLE v. SAGINAW CIRCUIT JUDGE. STEELE v. SAME.
    Garnishment — Default Judgments — Setting Aside — Rules — Motions for New Trial — Framing Issues.
    These cases are ruled by Caille Brothers Co. v. Saginaw Circuit Judge, ante, 480, involving the same facts.
    Mandamus by Adolph Á. Caille and Wilbur W. Steele and A. Arthur Caille to compel Chauncey H. Gage, circuit judge of Saginaw county, to file findings of facts and of law.
    Submitted November 17, 1908.
    (Calendar Nos. 23,118, 23,119.)
    Reargued December 29, 1908.
    Writs denied March 3, 1909.

      Jonathan Palmer, Jr., and Elbridge E. Bacon (George W. Weadock and Bussell B. Thayer, of counsel), for relators.

      John A. McKay {Gray & Gray, of counsel), for respondent.
   Grant, J.

The motions in the above cases are the same as that in Caille Brothers Co. v. Saginaw Circuit Judge, ante, 480, and the same order will be entered, with costs.

Blair, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Moore, J. Hooker, J.

text:
    KALIS v. DETROIT UNITED RAILWAY.
    1. Carriers — Street Railroads — Personal Injuries — Negligence-Contributory Negligence — Questions for Jury.
    In an action for negligently causing the death of plaintiff’s son, there was evidence that the boy boarded a heavily loaded open car and took a position on the inside running board; that later other passengers were permitted to board the car, thereby crowding him into a position of danger; that, on passing another car going in the opposite direction on a parallel track, he was struck and instantly killed; and that the gong on the passing car was not sounded. Held, that the questions of defendant’s negligence and the contributory negligence of plaintiff’s decedent were properly submitted to the jury. Hooker, J., dissenting.
    2. Death — Damages—Infant—Excessive Verdict.
    Where, in an action by a parent for the death of a boy 151-years of age, the recovery was limited to the present worth of what he would have earned above his living expenses during his minority, a verdict for the exact amount he would have thus earned, based on what he was earning at the time of his death, will not be set aside as excessive, on the ground that the jury disregarded the instructions of the court in respect to determining the present worth of such damages; since it is a fair inference that as he became older and stronger and more proficient in his work his earning capacity would be increased.
    3.' Carriers — Street Railroads — Instructions.
    In such action, after the testimony was closed and before the arguments were begun, the trial judge stated that the only question he would submit to the jury was whether plaintiff’s decedent was forced into the position which he occupied at the time of the accident by the crowding of passengers who came upon the car after he boarded it, or whether he voluntarily assumed such position. The arguments were based upon such theory. In the charge, after submitting this theory, the jury were instructed that it was a question for them to decide whether or not the failure to ring the bell of an approaching car, if they should find it was not rung, was an act of negligence. Held, that, in view of the. statement made before the arguments, the instructions given were not consistent with the statement made to counsel.
    Error to Wayne; Brooke, J.
    Submitted October 13, 1908.
    (Docket No. 53.)
    Decided March 3, 1909.
    Case by Mary Kalis, administratrix of the estate of Walter Kalis, deceased, against the Detroit United Railway for the negligent killing of plaintiff’s intestate.. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Clarence P. Milligan, for appellee.

      As to duty of carrier to passengers forced on to platform by crowded condition of car, see note to Lynn v. Southern Pacific Co. (Cal.), 24 L. R. A. 710.
      As to negligence of passenger in riding on platform of street car, see note to Capital Traction Co. v. Brown (App. D. C.), 12 L. R. A. (N. S.) 831.
      As to negligence in riding on running board of street car, see notes to Burns v. Johnstown Pass. R. Co. (Pa.), 2 L. R. A. (N. S.) 1191, and Harding v. Philadelphia Rapid Transit Co. (Pa.), 10 L. R. A. (N. S.) 352.

   Moore, J.

The trial judge in his charge to the jury so nearly covered the questions of fact and law involved in this proceeding that we quote from it as follows:

' “Gentlemen of the jury, in this case, Mary Kalis, as administratrix of the estate of Walter Kalis, deceased, brings suit against the Detroit United Railway, and this suit is brought for the purpose of obtaining damages, resulting to the estate of this boy through his alleged unlawful killing by the defendant. The accident occurred in September, 1906. It appears beyond dispute that this boy on that night, about a quarter to 6, boarded a Baker street car at the corner of Monroe avenue and Woodward in front of the Bagley bust. It appears beyond dispute that the car was full. It was an open car, with a running_ board on each side. It is not disputed that at the time the plaintiff boarded the car, at least the plaintiff’s deceased, that all the seats were filled. The back platform was filled. The outside running board was filled, but that he secured a place upon the inside running board. There is no doubt about that fact. The car proceeded upon its way up Monroe avenue until it came to Farmer street, where it was obliged to stop because another street car crosses there. It was what is known as a compulsory stop. There is some testimony tending to show that at that point other passengers boarded the car. After that stop, the car proceeded upon its way out Monroe avenue, and when at the corner of Farrar street, or near that point, a Brush street car, on its way towards the city hall, passed the car upon which the dead boy was riding. As it passed him, it struck him, striking his head and shoulders, knocking him to the ground, and killing him almost instantly. It is not-disputed that this boy at the time of his death was 15 years and 6 months old. That he was engaged in the manufacturing business in the Detroit Screw Works, I think, and was earning at the time of his death $10 per week or slightly more, on an average about $10 a week, I think the testimony shows. It is not disputed that it cost for his maintenance, board, and clothes $3 a week. So that his estate through his death is the worse «if, practically by the amount of the difference between $10 a week and $3 a week, or about $7 a week, if you believe the testimony.
“It is the plaintiff’s claim that this boy came to his death through the negligence of the defendant company, and not through any negligence of his own. If the plaintiff can substantiate that claim, she is entitled to recover a verdict at your hands. I charge you, in the first place, that it was not negligence for this dead boy to take a position upon the running board, if at the time he got upon the car there was sufficient room for him to get upon the board and maintain an upright- position next to the car. The running board is something like 18£ inches — from the outside edge of the running board to the nearest point of the Brush street car was 18^inches, so that standing next to the stanchion there would be at least two feet between the stanchion of the open car and the nearest point of the Brush street car, a space ample for any man to stand in safety, if the cars were operated in an ordinarily careful and prudent manner. • Therefore it would not be negligence for this boy to take position upon the running board; neither would it be negligence, on the part of this defendant company, to permit him to take a place upon the running board. People have ridden upon the inside and outside running boards of these cars for years. There is no question that the company permits passengers to ride there, and there is no question that passengers habitually, when the cars are otherwise crowded, take their position upon those boards rather than wait for another car. So I charge you there was no negligence either in the company permitting him to stand there nor in his taking the position, if at the time he took the position there was room for him to get his feet upon the platform and maintain an upright position, standing upon the steps; because if he had that opportunity, and could have maintained that position, then it was a place, while dangerous, yet with the exercise of care upon his part, and due operation of the cars on the part of the defendant, would have been safe. It is the plaintiff’s claim that after this boy boarded the car in front of the Bagley bust, and at the stop made at Farmer street, others were permitted by the defendant company to board the car, particularly upon this running hoard upon which he stood, to such numbers that thereafter he was by other persons crowded out from the body of the car into a position which brought his body or some portion of it where %n oncoming Brush street car came and did strike him; and it is urged by the plaintiff that it was an act of negligence on the part of the defendant company, after the inside running board was so loaded with passengers, including the plaintiff’s deceased, to permit others to get upon that running board and crowd the plaintiff’s deceased out and into a place of. danger. I charge you, gentlemen of the jury, if you find that to be a fact, it would be an act of negligence on the part of defendant company. While it is not' negligence for them to permit people to stand upon the running boards of their cars, I charge you it would be a negligent act for them to permit the running board to be so crowded as to allow oncoming passengers to push those, who had a proper place upon the platform, into a place of danger; and that would be a question of fact for your determination. I charge you that it was this dead boy’s duty, if the running board was so crowded at the time he boarded it, that he could not get his feet upon it and maintain himself in an upright posture — it was his duty to have stayed off the car and waited for the next one. He would be guilty of an act of negligence, which would preclude him from recovery, if when he went to the side of the car he found all the space on the running board filled, and be could only secure a ride by reaching around somebody else who had a safe place on board; and, if you find he did that, the mother, as his administratrix, cannot recover. I charge you further, if you find that this young lad, either through carelessness, lack of .attention, or desire to see his companion in front, or for any other reason, voluntarily or involuntarily, or without knowing it, having secured a place of comparative safety, where he could remain upright and escape injury, if he allowed himself to hang out, and was not crowded out by subsequently arriving passengers, his mother cannot recover because that would be such an act of negligence as would preclude his recovery. In other words, gentlemen of the jury, while a passenger has a right to assume a place upon the inside running board of an open car, it imposes upon that passenger the additional duty to maintain himself in safety, and he has got to use such care as would save him from injury, so long as the company is not negligent in its operation of the car.
“There is no testimony in this case that the tracks were in an extraordinary condition, or that the cars were operated in an unusual manner. There is testimony that no bells were rung on either car. I am not prepared to charge you whether that would be an act of negligence or not. The company is bound to exercise due care in the operation of its cars, and it is for you to determine whether the Brush street car approaching, as it did, heavily loaded, the Baker car, passengers standing on the inside, whether the failure to ring a bell, if you find that defendant company did fail to ring a bell on the Brush street car, upon its approach, would be an act of negligence or not. I know of no rule which absolutely commands such action on the part of the railroad company, but-there is a common-law liability upon the defendant, as a common carrier, to operate its cars with due regard for life and limb, not only of those who are passengers upon it, but those who pass in the street; and, if you find that the bell on the approaching Brush street car was not rung, and that that was the approximate cause of this boy’s injury, I charge you that you are at liberty to determine whether or not, in your opinion, that would constitute an act of negligence upon the part of the defendant company. In other words, it is a question for your determination as to that feature. The plaintiff is obliged to sustain the burden of proof in this case. By that I mean to say the plaintiff must produce testimony on disputed questions of fact, which in your mind outweighs the testimony which has been produced on behalf of the defendant as to those disputed questions of fact. If she has done so, she can recover a verdict at your hands. If she has not done so, she cannot. In determining whether or not the plaintiff has sustained the burden of proof, it is proper for you to consider the interest or lack of interest of the witnesses who have been sworn before you, and determine the value that you should give to their testimony. Now, gentlemen, if, applying the rules I have laid down to the testimony you have heard, you should conclude the plaintiff has proven by fair preponderance of the evidence that the deceased came to his death through no negligence of his own, but through the negligent act of this defendant company, under the instructions I have given you, you will then reach the question of damages, and not until then. If you do reach the question of damages, gentlemen, I charge you that the measure of damages is the value of this boy’s life to his estate from the time of his death to the time he was 21 years of age. Now that does not mean, gentlemen of the jury, that if he earned $100 a year, we will say, oyer and above what it cost to keep him for the 5-J- years, that would cover the period of your examination, that you would therefore bring in a verdict for $550, because it is only the present value of his earnings that you are entitled to give him as your verdict. In other words, if the estate would be entitled to $100 a year from today, it would obviously be improper to give $100 today. It would be such a sum as, invested at 5 per cent., would make the $100 from today, and the second year the same, and the third year the same. It is the present value of whatever you find his annual net earnings to be that you will return as your verdict, if you find the plaintiff entitled to recover. Now, gentlemen of the jury, because this plaintiff is the mother of a lad who has been killed unfortunately, and because the defendant is a public service corporation of reputed wealth, are themselves no reason why a verdict should be rendered for the plaintiff in this case. Neither sympathy for these bereaved parents, sorrow for the death of this lad, nor prejudice against this defendant company should have or can have anything to do with your deliberations in this case. You must approach the consideration of the disputed question whollv free from either of those feelings, intent upon weighing the testimony fairly with an earnest desire to reach the exact truth, and determination to do justice after you have learned what that truth is. You will take this case, gentlemen, and consider it fairly, and endeavor to return a fair and honest verdict.
“Mr. Milligan: I would like to have the court instruct the jury as to the duty and care, with reference to passengers, and in reference to the roadbed, and in reference to the operation of cars in general. I also think the court stated there was no evidence as to the condition of the track. I think there were two witnesses who testified on that subject.
“ The Court: No, I have the testimony, and I do not think it is worthy to be considered, Mr. Milligan.
“Mr. Donnelly: If the court please, I think that it should be made clear to the jury, before they leave the court-room, that the plaintiff cannot go to the jury upon two inconsistent theories. The defendant is only required to meet one theory. The testimony has been such that the issue is all confused in this case.
“Mr. Milligan: I think I will object to this line of talk at this time.
Mr. Donnelly: Take your objection, and I will go on. The point I would like to make is, I think the jury should be instructed that unless they believe that extra persons did board the left-hand running board at Farmer street, and did thereby force the plaintiff out from the side of the car, and that he was not able to get back to the side of the car, unless that happened, and they believed it happened, there can be no recovery.
“ The Court: Unless they should find that the failure to ring the bell, if it was not rung, was an act of negligence ? That I have already given them, as plainly as I can.
“Mr. Donnelly: If that is your theory, I did not understand you yesterday. If, as a matter of fact, a man was against the side of the car, I do not see how the ringing of the bell would have anything to do with it, if he was not forced out. It would be contributory negligence surely.
The Court: I think I will let the instructions stand. You may both have an exception. Follow an officer, gentlemen.”

The jury thereupon retired to consider their verdict, and brought in a verdict in favor of the plaintiff in the sum of $2,002, upon which judgment was entered on the 4th day of May, 1908. Afterwards a motion was made for a new trial based principally upon the claim that the court erred in its instructions to the jury. In overruling, this motion the judge said:

“ I have carefully gone over the charge to the jury,, and, while it is not as clear as I think it should have been, I have reached the conclusion that, taken as a whole, the jury could not be misled by it.”

In addition to the foregoing, the following should appear. After the testimony was all in the following occurred :

“Jury excused while motion to direct verdict for defendant is heard.
Mr. Donnelly: Your honor, it appears from the testimony in this case that the plaintiff got on the car at the Campus, and that the car was crowded at that time. Now, that is the claim of the plaintiff, that the car was crowded at that time; that it was not possible to get on the running board and stand in the usual, ordinary way against the side of the car; and that, if he were to get on at all, it was necessary to get on, and hang on like a burr, and project out from the side of the car. To get on a car under circumstances of that kind, and put himself into that position would be so negligent, if the court please, there can be no question but what, if a person should do that, and then be injured, they would have no right to recover.
“The Court (after discussion): I will ask you to stipulate upon the record, if upon a motion for a new trial I should conclude that I should direct a verdict at this time, I may do so.
“Mr. Milligan: All right, sir.
“The Court: In the event that you succeed in obtaining a verdict, I will submit this case to the jury simply upon this question: If this boy at the time he was struck, voluntarily, for any reason known to himself, assumed the position which caused his injury, he cannot recover. If he was forced into that position through the overpressure of passengers permitted upon the car, I will charge the jury for the purposes of this case that that would be negligence on the part of the defendant company, and would entitle him to recover. That is the only question in the case.”

Counsel were told to proceed with the argument, and that they would be given thirty minutes on a side.

Counsel group the errors relied upon by appellant, as follows:

“ (1) It was error for the court to instruct the jury that if they believed that defendant’s employés permitted other passengers to board the car at Farmer street, particularly the left-hand running board, in such numbers that the deceased was crowded out from the body of the car, that they might find that this was negligence on the part of the defendant.
‘ (2) It was error for the court to instruct the jury in effect that even if the deceased was not forced out from the side of the car by the crowd, but voluntarily leaned out from the side of the car, that they might nevertheless still find in favor of the plaintiff, if they believed that the bell on the Brush street car was not rung, and that it was negligence on the part of the defendant’s employés not to ring it.
“(3) It was error for the court not to charge that it would be negligence for a passenger upon an open car, and particularly the deceased, to remain upon the inside running board, if in order to do so it was necessary to reach past other persons upon the running board and hang on, projecting out from the side of the car at arms’ length.
(4) It was error for the court to instruct the jury that if they believed that the bell on the Brush street car was not rung, and that this was negligence, that they might find a verdict in favor of the plaintiff after counsel for the defendant had argued the case to the jury, relying upon the statement of the court to counsel that the only question in the case which would be submitted to the jury was whether the deceased was forced into the position in which he was at the time he was struck through the overpressure of passengers permitted upon the car, or whether he, of his own volition, assumed such position.
“ (5) The verdict of the jury for $2,002 was excessive, and the jury did not follow the instruction of the court to make deduction from the amount to be awarded for present value.”

As to the first three groups of assignments of error, we do not deem it necessary to discuss them at length. It is insisted the court was in error in assuming that the defendant’s employes were able to prevent persons boarding the car at Farmer street, and in the further assumption that they knew that such persons had boarded the car. There was a conflict in the testimony as to the number of passengers, and where they came upon the car, the effect upon the decedent, and what he did. There was testimony tending to show the theory of plaintiff as to how the accident happened, and what caused it to be true. The conductor had charge of the car. It was his duty to know who boarded the car. His testimony indicates that he did know and that he intended to collect fares of those on the inside running board, including the boy, as soon as he reached them in the collection of fares. As to the above assignments of error, we think they are not well taken, and that the charge of the court under the facts disclosed by the record is justified by the following authorities. Saltzman v. Railroad Co., 73 Hun (N. Y.), 567; Lehr v. Railroad Co., 118 N. Y. 556; Geitz v. Railway Co., 72 Wis. 307; Reem v. Railway Co., 77 Minn. 503; Germantown Passenger R. Co. v. Walling, 97 Pa. 55; Pray v. Railway Co., 44 Neb. 167; McGearty v. Railway Co., 15 App. Div. (N. Y.) 2; Cousineau v. Lighting Co., 145 Mich. 314.

As to the verdict being excessive, it is not claimed the judge erred in his charge to the jury, but it is said the jury disregarded the instructions. The record discloses that the boy was 15-| years old at the time of his death, that he earned $10 and upwards a week, while his expenses of living were $3 a week. It is a fair inference that from time tó time as he got older and stronger and more proficient in his work his earning capacity would be increased. Under the facts disclosed by the record, we do not think we would be justified in setting aside the verdict upon the ground that it was excessive. See McDonald v. Steel Co., 140 Mich. 401.

The fourth assignment of error is more troublesome. Before the arguments of counsel were made, the judge had given them to understand that the only question he would submit to the jury was whether the boy was forced into the position in which he was at the time he was hurt by reason of the pressure of passengers who came upon the car after the boy boarded it, or whether he of his own volition assumed such position. Counsel were then directed to proceed with the argument, and were given 80 minutes on a side. In the early part of his charge the judge instructed the jury in accordance with his suggestion to counsel. It is insisted that the latter part of his charge is not consistent with that position, and that the jury were given to understand that, if they believed the bell on the Brush street car was not rung, it would be such negligence as to justify a verdict for plaintiff. Counsel insist that because of what was said by the judge they were misled, and had no opportunity to present their views to the jury upon the question of whether the bell was rung, a disputed point in the case, or what the effect was if it was not rung. This contention of counsel impresses us as being well taken. We think the instructions of the judge to which we have referred were not consistent with the statement made to counsel. See Grand Rapids, etc., R. Co. v. Monroe, 47 Mich. 152.

For the reason stated, judgment is reversed and new trial ordered.

Blair, C. J., and Grant and McAlvay, JJ., concurred with Moore, J.

Hooker, J.

(dissenting). I am of the opinion that the charge given to the jury in this cause was erroneous in the statement that:

“If the jury should find that after the boy boarded the car others were permitted to board the car, particularly upon the running board upon which he stood, to such numbers that thereafter he was by other persons crowded out from the body of the car into a position of danger, * * * it was an act of negligence on the part of the defendant after the inside running board was so loaded with passengers, including the deceased, to permit others to get upon that running board, and crowd plaintiff’s deceased into a place of danger.”

The fault in this is that it imposed a liability upon the defendant to see to it that the boy was not crowded out, although such crowding was not necessarily the result of an overcrowded condition of the running board, nor in fact due to it. The instruction is broad enough to hold the defendant liable for the actual crowding into a place of danger by another person, whether that result was reasonably to be anticipated by the conductor or not. If not, there was no negligence.

There are some difficulties in the way of controlling a large concourse of people who throng upon a street car which is a common thing in this country. It is manifest that a conductor single handed would find it difficult to prevent the common and dangerous practice of hanging on to every available spot upon a car which affords an opportunity for a precarious foothold or grip, a practice which is dangerous and not creditable to the public or authorities. Perhaps the true remedy for this is to hold the company negligent for running cars under a condition of things that its servants are powerless to prevent without more active assistance than the police authorities are generally willing to give, but, if so, such liability should be confined to cases where the injury is shown to be a necessary consequence of such crowding, and not merely coincident with it, where it was not reasonably to be anticipated by the conductor. The instruction was not so limited. I express no opinion on the question of contributory negligence.

The judgment should be reversed, and a new trial ordered.


author: McAlvay, J.

text:
    PARKER v. CASE.
    1. Adverse Possession — Evidence—Summary Proceedings.
    Where, in summary proceedings by complainant as executrix and trustee of her husband’s estate, defendant, under plea of the general issue with notice that he claimed title in himself, gave evidence that in 1873 he purchased the land subject to a mortgage in favor of complainant’s husband, who, in 1876, assigned it to a bank; that said mortgage had never been discharged of record nor any claim made under it; that, in 1880, defendant and his wife gave complainant’s husband a quitclaim deed for “one dollar and other consideration;” that complainant relied upon this deed as her only source of title; that defendant in 1886 asserted his ownership of the premises and denied any claims of complainant’s husband upon it; that complainant’s husband lived for eight years after defendant’s assertion of ownership and took no steps to disturb him; that after this assertion of ownership he built extensive improvements, and cut and sold timber from the land; that the taxes were assessed to, and paid by, defendant; and that he had been in the sole occupancy of the premises since his assertion of ownership. Held, that defendant presented a prima facie showing of title by adverse possession, and that the proceedings should have been dismissed.
    2. Executors and Administrators —Actions —Right to Maintain.
    An executrix and trustee of the estate of the record owner of real property is competent to maintain summary proceedings.
    Error to Clinton; Searl, J.
    Submitted November 12, 1908.
    (Docket No. 124.)
    Decided March 3, 1909.
    Summary proceedings by Lucy D. S. Parker, executrix of the last will and testament of Franklin L. Parker, deceased, against Rufus N. Case for the possession of certain real estate. There was judgment for complainant on a verdict directed by the court, and defendant brings error.
    Reversed, and proceedings dismissed.

      L. B. Gardner, for appellant.

      John M. Parker,- for appellee.
   McAlvay, J.

Summary proceedings under the statute were brought by complainant to obtain possession of a farm occupied by defendant. Defendant pleaded the general issue with notice of title in himself, and the case was tried before a circuit court commissioner of Clinton county. From a judgment in favor of complainant an appeal was taken to the circuit court. It was there tried before a jury, and a verdict was instructed for complainant. The defendant has brought the case here upon a writ of error.

Two principal propositions are presented for consideration. It is urged, first, that the court was in error in refusing to instruct a verdict for defendant on the ground that a case was not made under the statute authorizing summary proceedings; second, that the court erred in instructing a verdict for complainant, and holding that the evidence did not warrant the submission of the question of adverse possession to a jury.

The following facts are undisputed: In 1873 defendant purchased the premises in question, and immediately went into possession with his family, and has resided there continuously since that date. The premises since his purchase have always been assessed to him, and he has paid the taxes. At the time of his purchase complainant’s husband and .decedent, Franklin L. Parker, held a mortgage on this land for about $1,500, which defendant assumed and agreed to pay. This mortgage Mr. Parker assigned in 1876 to the Ann Arbor Savings Bank without defendant’s knowledge. It has never been discharged of record, and the bank has never asked defendant for money or made any claim to him under the mortgage. In-1880 defendant and his wife gave Mr. Parker a quitclaim deed of the premises, which recites a consideration of “one dollar and other consideration.” Complainant, who is executrix and trustee of her husband’s estate, relies upon this deed as her only source of title. In 1886 and 1887 defendant built on these premises an embankment barn with stone foundation on three sides, worth $500 or $600. In 1892 he built a frame house shown by the evidence to be worth from $500 to $700. During his occupancy defendant has also cut and sold considerable timber from the land. Franklin L. Parker died in February, 1894.

In our view of the case, it will be unnecessary to pass upon the first contention, and in not doing so we distinctly state that we make no intimation upon the correctness of the holding of the court. The court in disposing of the case appreciated that defendant might be able on the chancery side to sustain his contention that he had paid the mortgage, and that the quitclaim deed was in fact a mortgage, and, when he directed a verdict for complainant, he did so without prejudice to defendant’s right to file his bill and restrain this proceeding.

We proceed to consider the question of defendant’s adverse possession of the premises. The court held as a matter of law that the proof of the essential elements of adverse possession was not clear and cogent, and did not make out a prima facie case, relying upon Judson v. Duffy, 96 Mich. 255, and cases cited. We think that, in considering whether the court was correct in so holding, it will be necessary only to consider whether the essential element of hostility was prima facie established. That defendant’s possession was open, notorious, actual,, and continuous, is not disputed in this record. His testimony was not competent as to matters which occurred during the lifetime of the other party to the agreement made at the time of the transfer, but the proofs show by other testimony that he disputed Parker’s' title and right to put him off from the land in 1886. It was not necessary for him to continually repeat that to Mr. Parker. We can construe this act in no other way than open, active hostility to Parker’s claim of title. The testimony is that he said:

“This place is mine, and you know that it is mine. You cannot put me off, and you know you can’t.”

Parker lived eight years after this, and took no steps to disturb defendant. The testimony further shows that, shortly after Mr. Parker’s death, defendant told the son who acted as agent for the estate that “he was the owner of the farm, and that he could not get him off.” Defendant testified that some time later he related minutely to this son and agent the terms of this agreement with his father at the time of the giving of the quitclaim deed, that a re-conveyance was to be made when he paid the mortgage and that he has been overreached in that transaction, and that later he again asserted to the son that he was the owner of the farm. The taxes were assessed to and paid by him every year. Defendant, after he asserted his title and right to the farm, built a substantial house. He granted a right of way for a highway and for a drain, and sold gravel from the land. That he made these statements to the son is disputed by him, and other evidence tending to disprove adverse possession was introduced, but the court in considering this question must take the evidence on the part of defendant as true. It is not disputed that defendant has been in the sole occupancy of the premises since he asserted his right in 1886. These proceedings were instituted by notice served July 18, 1906.

Defendant is ?8 years of age. He has suffered from a stroke of paralysis which affects his speech, but his testimony is that his memory has not been impaired. The record does not question his statement in this regard. We think the evidence, of which the foregoing is a very brief abstract, makes out a prima facie case of a hostile possession, the only essential element of his adverse possession in dispute. It was evidence sufficiently clear and cogent to be submitted to a jury. The case of Judson v. Duffy, supra, relied upon by the court, presents no evidence of the character of that in this case. We think the court was in error in instructing a verdict for complainant. We may be inclined to think with the.trial court that in a court of chancery the defendant might be able to show that he was the equitable owner of this land, yet in a forum and action not his choice he presented a valid defense, at least to the extent of making it appear that a question of title is involved. Upon that showing it became the duty pf the trial court to dismiss the proceedings. Butler v. Bertrand, 97 Mich. 59, citing Pendill v. Agricultural Society, 95 Mich. 491; Judson v. Duffy, supra.

Some minor questions in the case are discussed in the briefs. We need only say of one of them that the executrix and trustee of this estate could maintain proceedings of this nature.

The judgment of the circuit court is reversed, with costs of this court, the circuit court, and costs on appeal from the commissioner’s court to defendant. A judgment will be entered in this court dismissing the proceedings for the reason stated.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Hooker, J.

text:
    HORTON v. SALLING.

    1. Taxation — Void Tax Deeds — Subsequent Purchaser.
    Deeds of State tax land issued in violation of sections 62 and 74. Act No. 16, Pub. Acts 1893, are void, and the lien of the State on such land is unimpaired and subject to purchase by one tendering a sufficient amount.
    2. Same — Tax Deeds — Cancellation—Quieting Title.
    The provision of the statute (section 3893, 1 Comp. Laws), relative to setting aside sales after confirmation, was designed to confer and limit, in tax cases, the general discretionary power, lodged in courts of equity to set aside sales, made in the same proceeding, for an inadequate price bid, or other irregularities, and does not affect the authority of courts in general to hear and determine the validity of decrees and sales; and, a sale being absolutely void, complainant, a stranger to the proceedings, is entitled to question the validity of such sale on a bill to quiet title.
    3. Same — State Tax Lands — Fixing Values — Statutes.
    The State has the right to impose any price upon its tax lands; and where, by an act of the legislature which was given immediate effect, the rate of interest charged upon delinquent taxes was increased, it affected sales made thereafter.
    4. Same — Quieting Title — Setting Aside Void Sales — Laches.
    The laches of the owner of the original title is not imputable to complainant, who, within a reasonable time after tendering an amount sufficient to pay the claims of the State, filed a bill to set aside void sales and to quiet title in himself.
    5. Equity — Taxation—Void Sales — Quieting Title — Conditions Precedent — Costs.
    Where complainant is entitled to a decree for the cancellation of void sales of delinquent tax land and a deed from the auditor general on payment of the amount due the State, he should, as a condition precedent to the granting of such decree, be required to pay a sum to the defendants equal to the amount paid for subsequent taxes, with interest; and failure to tender such amount on the filing of the bill is ground for denial of costs in both the trial and appellate courts.
    Appeal from Otsego; Sharpe, J.
    Submitted November 11, 1908.
    (Docket No. 37.)
    Decided March 3, 1909.

      Bill by Charles M. Horton against Ernest N. Sailing, Rasmus Hanson, and Neis Michelson, copartners as Sal-ling, Hanson & Company, and James B. Bradley, auditor general, to quiet title to land. From a decree dismissing the bill, complainant appeals.
    Reversed, and decreé entered for complainant.

      Beilley & MePhee, for complainant.

      George L. Alexander and De Vere Hall, for defendant Salling and others.

      John E. Bird, Attorney General (Charles W. McGill and George L. Hauser, of counsel), for defendant Auditor General.

       Rehearing denied July 15, 1909.

   Hooker, J.

In January, 1893, the State was owner of the premises in dispute, having acquired an absolute title thereto by virtue of its having bid the same in as State tax land for the taxes of 1884, 1886, 1887, 1888, and 1889. At the annual tax sales of that year one Hanson purchased the lands as delinquent for the taxes of 1890, and purchased the State titles, paying therefor such sums as the county treasurer claimed to be a charge thereon, with penalties and interest as computed and claimed by said treasurer on behalf of the State. Deeds were issued and recorded in due season. Hanson afterwards sold and conveyed the premises to Salling, Hanson & Co., defendants in this suit. The complainant is a stranger to the original title. Some claim is made that he took a quitclaim from the owner of the original title in 1906, but, if he received such a deed, it conveyed nothing, as the original title had been divested from .such original owner many years before, and was lodged in the State as herein-before stated. See Horton v. Helmholtz, 149 Mich. 227. Some 12 years or more after Hanson’s purchase, the complainant wrote to the auditor general for a statement of the purchases made by Hanson, and ascertained from him that the amounts paid for the State tax land titles aggregated $32.85, the amount paid for the delinquent purchase $4.12, and that taxes for 1891, 1892, and 1895 had been paid at the county treasurer s office. On September 23, 1905, the auditor general wrote complainant the following letter:

“No. 35860, September 23, 1905.
“Mr. Charles M. Horton,
“ Cheboygan, Michigan.
“Near Sir: Referring to yours of September 16th, enclosing one hundred dollars and applying for the cancellation of sale on the n. e. ¿ of n. e. i sec. 30, 31 n. 1 w. and to repurchasing the description. The reason assigned for such cancellation and repurchase is not such as the auditor general acting under the provisions of the tax law and the decisions of the Supreme Court can entertain. We return herewith the one hundred dollars.
“Very truly yours,
“ James B. Bradley,
“Auditor General.”

It appears to be undisputed that this letter was an answer to a request from complainant to the auditor general to cancel the deeds to Hanson as void, and issue a deed of the premises to complainant, who thereupon filed a bill in this case, which was dismissed after a hearing. Complainant has appealed.

It is complainant’s contention that the deeds issued to Hanson are void for the following reasons: The delinquent tax deed was attacked on the ground that the purchase of the State title occurred at a later time, and therefore the purchase at delinquent sale was in violation of section 62, Act No. 16, Pub. Acts 1893, which provides:

''Provided, That if any parcel sold under the provisions of this section shall also be offered at the same sale as State tax lands, the purchaser must also, at the same time, become the purchaser from the State tax land list, and pay the taxes remaining unpaid thereon, with interest as aforesaid, and must pay all the remaining taxes assessed for the year for which he purchased, with interest thereon. All sales made in contravention of this requirement shall be void.”

The deed of State tax land is said to be void for the reason that the auditor general accepted interest on the State’s claim computed at 6 per cent, instead of at 1 per cent, a month as required by section 74 of said Act No. 16, Pub. Acts 1893. We passed on the latter question in the case of Horton v. Helmholtz, 149 Mich. 227, and must therefore hold that both deeds were void under the statute. Being so, the lien of the State was unimpaired, and the land was subject to purchase by complainant. The deed issued upon the purchase at delinquent sale must fall with the other under the express terms of the statute quoted.

Three defenses are urged to complainant’s claim:

(1) That section 70 (1 Comp. Laws, § 3893) is an obstacle to relief by reason of the provision that “no sale shall be set aside after confirmation, except in cases where the taxes were paid, or the property was exempt from taxation.
(2) That 6 per cent, interest was a proper rate under the law, and therefore the sales were valid.
(3) Laches chargeable to complainant.

1. The provision quoted from section 70 was designed to confer and limit, in tax cases, the general discretionary power, lodged in courts of equity to set aside sales, made in the same proceeding, for an inadequate price bid, or because of irregularities, and was not aimed at the authority of courts in general to hear and determine the validity of decrees and sales. This subject was discussed in the case of Spaulding v. O’Connor, 119 Mich. 45. This sale being absolutely void, complainant might treat it so, and raise the question in ejectment (in a proper case) or by this proceeding. Indeed, not being a party to the tax proceeding, it is at least doubtful if the remedy provided by section 70 was open to him.

2. The second question we must consider settled by Horton v. Helmholtz, supra. The State had a right to impose such a price upon its tax lands as it saw fit. The only State tax lands that it could sell at the May, 1893, sale, were those to which it had acquired title, and, by giving the act immediate effect, it was made possible to obtain the advanced price at the May sales of that year, which could not otherwise have been accomplished.

3. We cannot assent to the claim of laches. There was no privity between complainant and the former owner of the original title. Complainant’s relation was not different from that of any stranger to the title. Hence any laches imputable to such owner did not affect him. He acted with reasonable promptness, and while we are not impressed with his notions of common justice, and cannot commend his willingness to speculate out of the mistake of law- of the county treasurer, for which defendants are not in any way responsible, he had the right to buy this title. We may, however, compel him to do equity. Aztec Copper Co. v. Auditor General, 128 Mich. 615. His course upon the trial indicates a willingness to take the benefit of the defendants’ payment of taxes since the purchase. He not only did not offer to reimburse defendants for them in his bill, but his counsel objected to any proof regarding them. He is entitled to a decree for cancellation and for a deed from the auditor general on payment of his tender of $100 to the auditor general, from which should be refunded to the other defendants all sums paid under and in accordance with 1 Comp. Laws, § 3896, and as a further condition he must also deposit with said auditor general for the other defendants in the cause a sum equal to all taxes paid by defendants or their grantor, with interest, these amounts to be fixed upon the settlement of the decree or by remanding the cause for proof and determinatipn by the circuit court upon the subject, if it cannot be determined from the record or agreed upon by the parties. In view of his failure to tender such taxes, we feel justified in denying complainant costs of either court.

' The decree is reversed, and a decree may be entered in this court in conformity to this opinion.

Montgomery, Ostrander, Moore, and McAlvay, JJ., concurred.