Comp. Laws 1915, § 5496). It was determined in that case that the term "railroad" was broad enough to include street railways.

In our opinion, it must be said that it was the intent of congress by the act in question to include street railways that were engaged in interstate commerce, and therefore, if it can be said that the plaintiff was engaged in interstate commerce at the time of the accident, his action should have been brought under the Federal act. See South Covington, etc., R. Co. v. Finan's Adm'x, 153 Ky. 340 (155 S. W. 742); Kiser v. Railway Co., 188 Mo. App. 169 (175 S. W. 98).

It is the contention of plaintiff that even if it should be held that the defendant, in the operation of its street railway, was under the Federal act, plaintiff was not at the time of the accident engaged in interstate commerce and was not, therefore, subject to the provisions of that act. With this contention we cannot agree. In the instant case the street car upon which the plaintiff was employed was an instrumentality clearly engaged in interstate commerce, and the case comes within the test laid down in Shanks v. Railroad Co., 239 U. S. 556 (36 Sup. Ct. 188, L. R. A. 1916C, 797), where it is stated that the question is:

"Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?"

The car upon which the plaintiff was employed went from one State into the other, and the plaintiff being employed thereon, the case is clearly within the test above set forth, and it must, therefore, be said that he was engaged in interstate commerce. See, also, North Carolina R. Co. v. Zachary, 232 U. S. 248 (34 Sup. Ct. 305, Ann. Cas. 1914C, 159); Spokane, etc., R. Co. v. Campbell, 241 U. S. 497 (36 Sup. Ct.

683); Western Oil Refining Co. v. Lipscomb, 244 U. S. 346 (37 Sup. Ct. 623); South Covington, etc., R. Co. v. City of Covington, 235 U. S. 537 (35 Sup. Ct. 158, L. R. A. 1915F, 799); Moliter v. Railroad Co., 180 Mo. App. 84 (168 S. W. 250).

It is next contended by counsel for plaintiff that, while under the State law the defenses of negligence of fellow-servant, contributory negligence, and assumption of risk were not open to defendant, nevertheless there was no prejudicial error committed in submitting the case on the theory that the case was not subject to the Federal act, because, under the facts in this case, the defendant was not deprived of making any defense that it could have made under the Federal act, and it is therefore contended that even if it should be held that the plaintiff was subject to the Federal act, the judgment should be affirmed. With this contention we cannot agree, because, under the Federal act, the question of plaintiff's contributory negligence might properly be submitted to the jury as affecting the question of damages, and we are impressed that, under the facts of this case, the question was one of fact, and would necessarily be submitted to the jury.

2. With reference to the agreement in regard to compensation, which it is claimed the plaintiff signed following the accident, we are of the opinion that it should not be held as a bar to this action. In accepting these compensation checks, plaintiff testified that he did not know, and was not told, what they were for, and that he assumed that they were probably club money, as he had worked on a railroad in the old country where a fund was provided by the employees for such contingencies. At the time that the so-called release agreement was signed, the defendant had not elected to come under the workmen's compensation act, and the agreement, therefore, was not

binding upon the plaintiff at the time it was executed. See Bernard v. Traction Co., 188 Mich. 504. The court, at the request of the defendant, charged the jury that if they found that the agreement in regard to compensation was a mutual agreement and the parties understood each other, or if the plaintiff afterwards ratified the agreement by his action and intent to release the defendant, the plaintiff would be bound by it, and it would be an absolute release. This was as favorable an instruction as the defendant was entitled to. Plaintiff's testimony tended to show that his signature to the instrument was obtained by false and fraudulent representations, and even if it purported to be a release or could be construed to be a release if entered into fairly and understandingly, in our opinion the jury was warranted, under the testimony and the charge of the court, in finding that it was not binding upon the plaintiff.

3. Neither are we of the opinion that, because of the claim that it was not understood by the plaintiff that the amounts received were in settlement of the disputed liability, it follows as a matter of law that a return of the money was necessary. The question was in dispute and should be submitted to the jury. See Brown v. Railroad Co., 183 Mich. 574.

Under the declaration filed in this cause, the court should have granted the motion made by the defendant that the plaintiff had not made out a case, as he had elected to stand on his common-law action, it appearing that the parties to the action were both subject to the Federal employers' liability act.

For these reasons the judgment must be reversed and a new trial granted.

OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, FELLOWS, and STONE, JJ., concurred.

KANE v. DETROIT LIFE INSURANCE CO.

1. TRIAL-DIRECTED VERDICT QUESTIONS FOR JURY-WAIVER. The presentation to the court of requests to charge negatived any intent on the part of counsel to waive the right of his client to have the jury pass on the questions of fact involved, although he had expressed the opinion that the court should direct a verdict.

2. INSURANCE-SOLICITOR AGENT OF INSURER-STATUTES.

Under section 9305, 2 Comp. Laws 1915, the person soliciting an application for insurance must be regarded as the agent of the company and not of the assured, in any controversy arising between them.

3. SAME-FALSE STATEMENTS-FRAUDULENT INTENT SILENCE. Retention of insurance policies by assured for seven months with application attached containing false statement that he had never been rejected by any other company, held, to be persuasive proof of fraudulent intent, assured having remained silent.

4. SAME-NOTICE-ESTOPPEL.

If the insurance company, through its officers, had actual knowledge of the fact that assured had been rejected by another company, a false statement in the application that he had never been rejected would become immaterial.

5. SAME-FALSE STATEMENTS-CONNIVANCE OF AGENT.

An insurance company is not bound by statements contained in an application, when not only the agent, but the assured, knows they are untrue, and calculated to deceive, and the application is to be forwarded to the company as the basis of its action.

6. SAME NOTICE-QUESTION FOR JURY.

In an action on insurance policies, defended on the ground of false statements in the application by assured, disputed testimony as to actual knowledge by the company, through its officers, that the statements were false, held, to present a question for the jury.

Error to Wayne; Davis, J., presiding. Submitted

October 16, 1918. (Docket No. 75.) Decided December 27, 1918.

Assumpsit by Sam Kane and another against the Detroit Life Insurance Company on certain policies of insurance. Judgment for plaintiffs on a directed verdict. Defendant brings error. Reversed.

Frank H. Watson (M. J. Cavanaugh, of counsel), for appellant.

Drook & Kaufman (Fred H. Aldrich, of counsel), for appellees.

KUHN, J. In this action it is sought to recover on two policies of insurance issued by the defendant upon the life of one Isrel Kane on November 26, 1915. In the application for insurance the applicant certified that he had read all the statements and answers in the application and agreed, on the part of himself and any person who may claim under the policy, that all the statements and answers so made, and all that may be made to the medical examiner in continuation of the application, are full, complete and true and are representations made as inducements to the issuing of the policy. He was subsequently examined by the company's medical examiner, and upon the strength of the application and this examination the two policies here in suit were issued. The plaintiffs are the sons of the insured and beneficiaries under these policies. The defendant filed a plea of the general issue, to which notice was attached to the effect that false and fraudulent statements were made to it in the application of insured and false and fraudulent statements were made in the statements to the medical examiner, referring to the following question and answer which occurred in the application:

"Has your application for life insurance ever been