take cash or note in settlement for the premium. There is nothing to show that any one expected that the policy would be delivered until it should be settled for in one of these ways, and there is no evidence that warrants the belief that anybody expected that the policy would be delivered or become binding, and that the agent Houghton would trust the assured for the premium without payment by cash or note and delivery of the policy. The fact that the applicant called at the insurance office ostensibly to make settlement by note for the policy, and, upon being informed that he could not do so without seeing Mr. Houghton, with whom his negotiations were pending, went away, indicates no waiver, nor was it such an offer of payment as to make the policy operative. He afterwards saw Houghton several times, who repeatedly asked him to settle, but he put him off for one reason or another. There is no evidence in the case justifying an inference that there was any agreement that the agent would deliver the policy until it was settled for, or that it should be operative meantime. Much authority is cited on the subject of a forfeiture that is inapplicable.

3, 4, 5. Exclusion of Testimony. Upon this record the rulings on the admission of testimony complained of cannot affect the result. Whether this premium was charged by the company against the agent or not, it conclusively appears that neither party expected delivery of the policy until settled for. The agent had a right to protect himself by a settlement before permitting the policy to become operative. Moreover, there is nothing that indicates that the statements alleged to have been mailed or sent to Houghton were more than memoranda of policies, sent to him for delivery, showing the amount of premiums upon them. The exclusion of proof that Houghton had given a bond to the company was proper, as that fact would not prove whether the company had accepted Houghton's promise for the premium. Neither was it of any importance whether the policy was returned by reason of threats. The case would be no different had it not been surrendered;

for, measured by the express terms of both application and policy, the delivery was not such a delivery as the contract required, and was a fraud on the insurance company by the parties obtaining and the agent permitting it. Upon the undisputed proof in this cause there was no alternative but to direct a verdict for the defendant. Judgment affirmed.

MONTGOMERY, C. J., and MOORE, MCALVAY, and BLAIR, JJ., concurred.

REESE v. DETROIT UNITED RAILWAY.

1. CARRIERS STREET RAILWAYS NEGLIGENCE - STARTING AND STOPPING CARS.

That while plaintiff was proceeding from her seat in defendant's car to the door, the conductor signaled for the car to start and the jerk threw and injured plaintiff, presents a question of fact for the jury in an action for negligent injuries.

2. EVIDENCE-MASTER AND SERVANT-HEARSAY-ADMISSIONS. No error is committed in such action by the admission of testimony as a part of the res gesta that the conductor stated he thought the plaintiff was off the car, where the conductor testified on direct and cross-examination as a witness for the defendant to the same fact.

3. TRIAL-ARGUMENT Of Counsel.

Incorrect statements of the law made by the plaintiff's attorney in argument were cured by the prompt action of the trial judge.

Error to Wayne; Mandell, J. Submitted December 13, 1909. (Docket No. 138.) Decided February 3, 1910.

Case by Henrietta I. Reese against the Detroit United Railway for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error. Affirmed.

Corliss, Leete & Joslyn (Benjamin S. Pagel, of counsel), for appellant.

Lucking, Emmons & Helfman, for appellee.

MOORE, J. The plaintiff recovered a judgment for injuries received by her while a passenger on one of the cars of defendant company. The case is brought here by writ of error.

As the car pro

The car on which plaintiff became a passenger had three entrances, one at the rear, one in the middle of the righthand side, and the third at the front. The seats ran at right angles to the sides of the car so that passengers when seated faced the motorman. The aisle ran along the righthand side from the rear to the front door. Mrs. Reese and her friends occupied a seat about opposite the middle door, with Mrs. Reese sitting at the end of the seat farthest from the door; her daughter sat at her right side and her friend Mrs. Claxton next to the daughter. Another woman occupied the remaining space of the seat. ceeded down town, numerous passengers were picked up along the route, and by the time the car got to Broadway, the street on which plaintiff is alleged to have been injured, all the seats were occupied, and many people were standing in the aisle. The conductor gave the signal to stop and the car was brought to a standstill at the intersection of two streets. The conductor stood on the rear platform just outside the rear door. Several people alighted from the steps at the rear platform. The conductor looked along the outside of the car to the steps opposite the middle door and seeing no one on the steps or about to step from the aisle of the car, signaled the motorman to go ahead. The car was started immediately, and it is the claim of plaintiff that while she was still going toward the door to alight she was thrown forward and badly hurt,

and that there was negligence on the part of the employés of defendant in starting the car before she had an opportunity to alight.

Appellant's grounds for appeal are stated by counsel as follows:

"(1) That a verdict should have been directed in behalf of the defendant and appellant at the trial of the said

cause.

"(2) If defendant's negligence was a question for the jury, error was committed in allowing testimony to be introduced which was incompetent and immaterial.

"(3) That error occurred in the charge of the court.

(4) That error occurred in the argument of counsel for plaintiff and appellee."

We will take up these claims in the order presented.

1. Did the court err in declining to direct a verdict for defendant? The conductor was a witness. He testified there were 40 to 60 passengers on the car.

"Q. Tell what took place.

'A. I got the signal, I got the signal to stop, and gave my motorman the bell to stop. I was standing on the back platform, right you may say in the doorway, so the passengers could go either side out of the door or in behind me on the platform. Three or four got off at the rear platform and I looked at the side door to see if any one was getting off there. There was no one and I gave the bell to go ahead, and I don't know whether a gentleman or lady hollered 'Wait a minuite,' and I had not let loose of the bell rope, and I gave him a bell to stop, and he stopped, and then I walked right inside to see what was the trouble in there, and I would not say whether this lady or that lady said to me, 'It is a wonder you would not wait until we get off,' and I said, 'I supposed you were all off,' and she said, 'No,' and I don't know whether I made the remark about getting off or not, but some one said, 'Go ahead, we will go on down town.'

"Q. When you referred to getting off, to whom did you refer?

"A. I was talking to those two ladies at the time, so it would practically be to them.

"Q. Did your car stop when you gave the signal to stop the second time?

"A. It did.

"Q. How far had it gone between the two stops? "A. I would not imagine it had gone over six feet." On the cross-examination he testified, in part, as follows: "Q. As I understand you, there is no dispute but what your car stopped at John R. street.

"A. It did.

"Q. You say some people got off the back platform? "A. They did.

"Q. You thought every one was off?

"A. Yes, sir.

"Q. You looked along the outside of the car?

"A. Yes, sir.

"Q. You did not look inside?

"A. No, sir.

"Q. You supposed every one was off and you rang up for the motorman to go ahead?

"A. Yes, sir.

"Q. And you discovered these people were not off? "A. I discovered by some one hollering, 'Wait a minute.'

"Q. You looked inside the car?

"A. Yes, sir.

"Q. See this lady standing up by the door?

"A. Yes, sir.

"Q. You say the plaintiff was thrown back in the seat? "A. I don't know whether she was thrown back.

"Q. She was back there when you got there? "A. When I got there she was there.

"Q. There is no doubt about any of these facts in any way?

"A. No, not exactly."

There was other testimony to the effect that when the car was stopped plaintiff at once arose and started toward the door; that while she was standing and awaiting her turn to step down upon the steps the car was suddenly started and she was thrown forward and hurt. This state of facts presented a case for the jury. See Finn v. Railway Co., 86 Mich. 74 (48 N. W. 696); Kirchner v. Railway, 91 Mich. 400 (51 N. W. 1059); Selby v. Railway,