and charges, and the same was entered upon the books of the county treasurer and the auditor general's office, and it appears and has at all times since appeared therefrom that said tax was fully paid. Subsequent taxes have all been seasonably paid.

In 1885 an undivided half interest in the land was bid in to the state at the annual tax sale for that year, and, not being redeemed, was held as state tax land until November 7, 1899, when the auditor general, acting under section 139 of the tax law (Act No. 169, Pub. Acts 1899), canceled the sale, for the reason that the law of 1885 was not retroactive, and therefore would not support such sale. He thereafter included an undivided half of these lands in the petition for the foreclosure of tax liens of 1899 and prior years (see section 139), and a decree was duly entered without objection, and it was again bid in to the state at the annual tax sale held in May, 1902, and on June 9, 1902, it was sold to William O'Connor, trustee, who, in due season, received a deed from the auditor general therefor, as is usual in such cases. Some time afterward the statutory notice was served by O'Connor, trustee, upon the persons entitled thereto, and after waiting considerably more than the statutory period an action of ejectment was commenced by him to recover these lands.

The bill in this case was filed to restrain the prosecution of the ejectment case, to quiet the title, to require O'Connor to execute and deliver a deed, and for general relief. Answers were filed by both O'Connor and the auditor general, the latter of whom, while admitting the foregoing facts, justifies his omission to cancel the tax, upon the ground that he had no such authority, when applied to, more than six months having elapsed after the filing of proof of service of the statutory notice with the clerk. Defendant O'Connor appealed from a decree against him. The record shows that the auditor general's petition asserted a lien based upon a readvertised tax. A decree followed, and sale was made and confirmed.

506 This is a collateral suit which can only be made to prevail by attacking the validity of the decree. The record shows to our satisfaction that the decree was an unjust one, for the tax had been paid, but we can only so determine by trying a question of fact that might have been tried in that case, and of which that decree was conclusive. This we cannot do, such decree not being subject to collateral attack: See Kneeland v. Wood, 117 Mich. 174, 75 N. W. 461; Peninsular Sav.

Bank v. Ward, 118 Mich. 87, 76 N. W. 161, 79 N. W. 911; Wilkin v. Keith, 121 Mich. 66, 79 N. W. 887; Haven v. Owen, 121 Mich. 51, 80 Am. St. Rep. 477, 79 N. W. 938; Gates v. Johnson, 121 Mich. 663, 80 N. W. 709; Blondin v. Griffin, 133 Mich. 647, 95 N. W. 739; Rumsey v. Griffin, 138 Mich. 413, 101 N. W. 511; Hoffman v. Flint Land Co., 144 Mich. 564, 108 N. W. 356.

We held in Hayward v. O'Connor, 145 Mich. 52, 108 N. W. 366, that "when the owner of land has notice-no matter how he obtains that notice that his land has been sold for taxes, he must, if he desires to have the sale set aside by the circuit court, take proceedings within one year.

Notwithstanding the hardship of this case, we cannot set aside this sale without overruling the settled law of the state. It is clear, however, that the auditor general, if applied to seasonably, should have canceled this sale; but such application was not made, if made at all, until the period of six months after proof of the service of the statutory notice had elapsed. In view, however, of the decision in the cases of Jakobowski v. Auditor General, 144 Mich. 46 107 N. W. 722, and O'Connor v. Carpenter, 144 Mich. 240, 107 N. W. 913, we cannot say that section 143 (Act No. 128, Pub. Acts 1901) precludes cancellation after the expiration of six months.

Without passing upon the question of whether complainants may yet obtain relief, through cancellation, we will reverse the decree, and dismiss the bill without costs to either party, of either court, and without prejudice to other remedies which complainant may choose to seek.

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

A Judgment without jurisdiction is void, and may be denied or contested in any proceeding, direct or collateral: Thornily v. Prentice, 121 Iowa, 89, 100 Am. St. Rep. 317; Waldron v. Harvey, 54 W. Va. 608, 102 Am. St. Rep. 959. But when a court acquires jurisdiction, its judgment, however erroneous, is not subject to collateral attack: Fraaman v. Fraaman, 64 Neb. 472, 97 Am. St. Rep. 650; Spencer v. Spencer, 31 Ind. App. 321, 99 Am. St. Rep. 260. As to what is a collateral attack, see the note to Morrill v. Morrill, 23 Am. St. Rep. 104.

A Decree for the Sale of Land for Taxes, fair upon its face, cannot be collaterally attacked by showing that, subsequently to its entry, a blank therein was filled, so as to show the amount decreed against the land: Haven v. Owen, 121 Mich. 51, 80 Am. St. Rep. 477.

HUNT v. UNITED STATES ACCIDENT ASSOCIATION. [146 Mich. 521, 109 N. W. 1042.]

INSURANCE, ACCIDENT-Voluntary Exposure to Danger.A policy of accident insurance exempting from liability for injuries resulting from "voluntary or unnecessary exposure to danger," means eases in which there is a realization that an accident will in all probability result, and an injury follow, from the action about to be taken, and the danger of injury must be obvious. (p. 656.)

INSURANCE, ACCIDENT-Voluntary Exposure to Danger— Indoor Baseball.-An insured, under an accident policy exempting the insurer from liability for injuries resulting from "voluntary and unnecessary exposure to danger," is entitled to recover for a broken ankle caused by putting out his foot to prevent his running against a wall while playing indoor baseball. (p. 657.)

M. J. Schaberg, for the appellant.

T. A. E. Weadock, for the appellee.

521 GRANT, J. Plaintiff, thirty-six years of age, was engaged in playing a game of indoor baseball in the gymnasium of the Young Men's Christian Association. The floor was smooth and slippery. The game is played with a soft ball, about twice the size of an ordinary ball. Plaintiff was batting, and, having struck the ball, ran to first base, twenty feet from the home plate. The side wall of the gymnasium was between six and ten feet beyond the first base. The pitcher caught the ball; tossed it at plaintiff, and touched him, before he could reach the first base. He ran beyond the base, and put out his foot and hand against the wall, which he 522 had been in the habit of doing, to stop himself. His ankle was broken. He had a policy in the defendant company. In his application plaintiff agreed that the benefits under the policy "shall not extend to or cover. . . . voluntary or unnecessary exposure to danger." The court directed a verdict for the defendant, holding that the accident was the result of an involuntary and unnecessary exposure to danger. He based his direction upon the following testimony, given by plaintiff upon cross-examination:

"Q. Now, you were running so hard that you could not stop yourself until you ran against the wall; that was the fact, was it? A. Well, I would not say as to that.

"Q. Why didn't you stop, if that was not a fact? A. Oh, I was feeling good. I felt like running.

"Q. Felt like running against the wall? A. Not necessarily.

"Q. Well, you saw the wall, didn't you? A. Yes. "Q. You knew you were thirty-five feet away from it, where you stood? A. Well, sir, in that neighborhood, I suppose.

"Q. You were running so hard that you could not stop yourself until you ran into the wall? A. Oh, I might, if I had tried.

"Q. Why didn't you? A. I don't know why I didn't. It wasn't necessary.

"Q. What's that? A. I don't know why I didn't. I didn't, though.

"Q. You didn't think it was necessary to stop when you were running, to prevent your running against the wall, to prevent yourself running against the wall? A. I was not running very hard.

"Q. Why did you run into the wall, if you were not running very hard? A. Oh, that was just the way I had of stopping.

"Q. What? A. That was just the way of stopping, was all. "Q. The wall stopped you? A. Yes.

"Q. You didn't stop at all? You didn't stop yourself at all? You ran right into the wall? 523 A. You might put it that way; yes.

"Q. Well, that is the fact, isn't it? A. I didn't stop until I struck the wall.”

That negligence which would defeat a plaintiff in an action for damages on account of the negligence of a defendant finds no place as a defense in the law of insurance against accidents. Such contracts must be shorn of much of their value if ordinary contributory negligence could be interposed as a defense. Thoughtless and inconsiderate acts are some of the very things which these policies are designed to cover. One might easily ascertain whether his gun was loaded before he undertook to clean it. The hunter, in going through the brush, or getting over a fence, or rowing in his boat, should be careful to handle his gun so as to prevent accident. One climbing a ladder should see that the rounds were sound and securely fastened. Ordinary prudence would require these precautions, but hundreds of accidents happen because they are not taken. The term "voluntary exposure to danger" means a realization that an accident will in all probability result, and an injury follow, from the action about to be taken. The danger of injury must be obvious. That point has been decided in this court in Johnston v. London & Acc. Co., 115

Mich, 86, 69 Am. St. Rep. 549, 72 N. W. 1115, 40 L. R. A. 440, where we said: "The term 'voluntary exposure to unnecessary danger,' as used in an accident policy exempting the insurer from liability for injuries caused by such exposure, means a conscious or intentional exposure, involving gross or wanton negligence on the part of the insured."

This is the well-established rule: Fidelity & Casualty Co. v. Sittig, 181 Ill. 111, 54 N. E. 903, 48 L. R. A. 359; United States Mut. Accident Assn. v. Hubbell, 56 Ohio St. 516, 47 N. E. 544, 40 L. R. A. 453; Rustin v. Standard etc. Ins. Co., 58 Neb. 792, 76 Am. St. Rep. 136, 79 N. W. 712, 524 46 L. R. A. 253; Fidelity & Casualty Co. v. Chambers, 93 Va. 138, 24 S. E. 896, 40 L. R. A. 432; Manufacturers' Accident Indemnity Co. v. Dorgan, 58 Fed. 945, 7 C. C. A. 581, 22 L. R. A. 620; Burkhard v. Travelers' Ins. Co., 102 Pa. 262, 48 Am. Rep. 205; Champlin v. Railway P. Assur. Co., 6 Lans. (N. Y.) 71; Follis v. United States Accident Assn., 94 Iowa, 435, 58 Am. St. Rep. 408, 62 N. W. 807, 28 L. R. A. 78; Schneider v. Provident L. Ins. Co., 24 Wis. 28, 1 Am. Rep. 157.

Plaintiff did not anticipate injury from doing what he had done before, and what others have repeatedly done. There was no obvious danger of injury. Granting that he might have stopped, we cannot say that there would not have been as much danger in trying to stop upon a slippery floor as in running against the wall. A jury would be justified in finding that the plaintiff had no anticipation of an accident, and did not realize that there was any danger. Even if he were careless, and might have avoided running against the wall, but in doing so did not realize any danger, he was entitled to recover. The learned circuit judge was in error in directing a verdict for the defendant.

Judgment reversed, and new trial ordered.

Carpenter, C. J., and McAlvay, Blair and Moore, JJ., concurred.

The Words "Voluntary Exposure to Unnecessary Danger," when employed in an insurance contract, relate to dangers of a substantial character which the insured recognizes and to which he nevertheless consciously and purposely exposes himself, intending at the time to assume the risk of the danger: Travelers' Ins. Co. v. Clark, 109 Ky. 350, 95 Am. St. Rep. 374, and see the cases cited in the cross-reference note thereto. It is a voluntary exposure to unnecessary danger to engage in riding a steeplechase: Smith v. Aetna Life Ins. Co., 185 Mass. 74, 102 Am. St. Rep. 326.

Am. St. Rep., Vol. 117—42