EJECTMENT. Plaintiffs bring error. Reversed

Spaulding & Cranson, for plaintiffs in error.

Brown & Leaton, for defendants in error.

COOLEY, J. This is an action of ejectment. The plaintiffs. are heirs at law of John Jeffery, deceased, and claim the land. under a deed to their ancestor from the defendant Elizabeth Hursh. This deed bears date November 23, 1872. The record in error does not show whether Elizabeth Hursh ever gave possession to John Jeffery, but it is admitted that the other defendants are now in possession claiming to hold under her, and that all the defendants hold or claim adversely to the plaintiffs.

What foundation there is for the adverse claim of defendants does not appear, as none of them on the trial made any attempt to show title in Hursh, as a justification for their holding. The only facts we have respecting the original claim of title are that in 1872 Hursh was owner and conveyed to plaintiff's ancestor, and when suit is brought she is found in possession, claiming title but not explaining it. The defendants, however, did show that a sale of the land was made for delinquent taxes of 1877; that one Dusenbury became the purchaser and received the Auditor-General's deed, and they rely upon this as an outstanding and paramount title in a third person, to defeat the action.

Presumptively, while this tax title was accruing Hursh was remaining in possession in subordination to her own conveyance. Bloomer v. Henderson 8 Mich. 395; Humphrey. v. Hurd 29 Mich. 44. If it had appeared that she had been suffered to remain in possession as apparent owner, and that the other defendants had bona fide acquired rights under her, relying upon appearances, the case might be different (Bennett v. Robinson 27 Mich. 26) but nothing of the kind is shown, and no explanations are made. The question then seems to be, whether one in possession of land and neglecting to pay the taxes upon it, can rely upon a title derived from

a sale for such taxes to defeat her own conveyance which she has not perfected by a delivery of possession.

The case does not raise the question whether the mere fact of possession while the taxes remain unpaid, will disqualify the possessor from acquiring or relying upon a tax title. We may, therefore, concede for the purposes of this case, that when there is a bona fide controversy respecting a title, and one of the claimants is in possession, he owes no duty to the other to keep the taxes paid, and may therefore strengthen his claim by procuring tax titles. Coxe v. Gibson 27 Penn. St. 160; Blackwood v. Van Vleit 30 Mich. 118. There is no showing here which puts the defendants or either of them in a position that would permit them to raise that question, and we pass it without further notice. It is plain that if they cannot rely for their defense on a title purchased by themselves, they cannot make use of one purchased by another.

In the court below the jury were instructed to return a verdict for the defendants. The record does not show that the point above mentioned was considered by the court, and it probably was not. Apparently the sole question raised and discussed was, whether the assessment roll which constituted the basis for the tax title, was not void for defects appearing on its face. Nevertheless, the point is in the case, and we cannot affirm the judgment without holding that the defendants were at liberty to rely upon the tax title. they are not, the validity of the title in Dusenbury is an abstract question, and is too important to be considered and passed upon when the party chiefly concerned is not before

*the court.

If

The judgment must be reversed with costs and a new trial ordered.

The other Justices concurred.

Liability of master for servant's negligence in driving - Res gesta-Judicial notice as to frequent use of street.

Where a boy who had driven against a foot passenger on the street im-
mediately stopped his horse and came back and said he did not mean
to, the fact was held to be as much a part of the res gesto as an excla-
mation would be if made at the moment of the accident.

Where a servant, while on an errand for his master, drove against a foot
passenger, it was held that the plaintiff in an action for the injury
had the burden of showing that the servant was not engaged in the
course of his employment, but was driving around for pleasure.
A master is liable for an injury done by his servant in the course of his
employment, where the latter acted carelessly and recklessly and in
negligent disregard of his master's instructions, but not if the injury
was wanton, willful and intentional. Recklessness is only a high

degree of negligence, and the master's responsibility is not affected by
the degree.

It is not necessarily negligence to walk in the traveled part of a city street if it is not shown that it is usually so occupied with teams as to make foot travel imprudent.

A court cannot take take judicial notice as to how much a particular city street is used.

Error to Lenawee. Submitted October 29. Decided November 10.

CASE.

Defendant brings error. Affirmed.

Hadley & Goff for plaintiff in error.

Millard & Bean for defendant in error.

COOLEY, J. Newsom sued Cleveland to recover for an injury received by plaintiff in being run over by a horse of defendant, driven by a boy, who, it was alleged, was at the time in defendant's employ. The evidence tended to show that the plaintiff was walking along in the public highway, when the boy drove up behind him in a sleigh, and called out to another boy, "Shall I run over him?" or perhaps, as one

witness says, "Will I run over him?" and before plaintiff could get out of the way, he was struck by one of the thills to the sleigh and injured. Plaintiff testified that he had not heard the vehicle coming until the boy called out. After the plaintiff was struck, the boy stopped the horse and came back and said he did not mean to do it. Proof of this last fact was objected to, but received. The evidence that the boy was in the employment of the defendant at the time was from witnesses who testified that he was on an errand to a cooper shop to get butter tubs for defendant, but whether he was on the direct route to or from the shop was not shown.

1. There was no error in receiving in evidence the statement of the boy that he did not mean to run over the plaintiff. It was made immediately after the collision, and as nearly as possible at the same time. It was as much a part of the res gesta as would have been an exclamation at the very instant the plaintiff was struck. Hyatt v. Adams 16 Mich. 180; People v. Pitcher 15 Mich. 397; Lambert v. People 29 Mich. 71.

2. The evidence that the boy was acting in his employment at the time was ample. It is suggested that he might have been driving about for his own pleasure, away from the road to the cooper's shop, but the court or the jury could not assume this without evidence. The proofs showed an employment and an act done or being done in the course of the employment; and if the defense proposed to raise any question of his having departed from the employment for his own pleasure or on his own business, it was necessary that they take the burden of showing the fact.

3. The defense insisted that the evidence showed that the injury was purposely inflicted; and the defendant himself was examined as a witness to show that he took pains to give the boy such directions as if obeyed would have precluded any such occurrence. The defense then requested the court to charge that the liability of the master does not ensue when the servant has intentionally or recklessly stepped aside from his employment to commit a tort, which the master neither directed in fact, nor could be supposed, from the nature of

the employment, to have authorized or expected the servant to do. This instruction the judge refused to give, but instructed the jury instead that if the boy "drove in a careless and reckless manner, he would be acting within the scope of his master's employment; but that if he wantonly, wilfully and intentionally run over the plaintiff, he would not be acting within the scope of his master's authority. But if he carelessly, unintentionally and accidentally run over the plaintiff, then the plaintiff should recover."

This instruction was all the defendant could reasonably ask. It stated the law correctly and fairly. If it was a case of intentional injury, defendant was not responsible. If it was a case of negligent disregard of the master's instructions whereby the injury occurred, the defendant was responsible. Recklessness is only a high degree of negligence, and the degree has nothing to do with the master's responsibility.

4. The defense requested instructions that defendant was not liable if the plaintiff was guilty of any degree of contributory negligence. The judge gave instructions somewhat different from those requested, but we do not think the case called for them. There was no evidence of contributory negligence. The plaintiff was walking in the public highway; and unless this of itself was negligence, his right of. action was undoubted. It is true the highway was a city street; but it was not shown that it was commonly so occupied with teams as to make foot travel imprudent. We cannot take judicial notice how much a particular city street is used. Many public ways in the country are as much used as some city streets.

We find no error in the record and the judgment must be affirmed with costs.

The other Justices concurred.