the said intersection of said highway and said interurban right of way, as aforesaid, in reasonable repair, and in a condition reasonably safe and fit for public travel; that, disregarding said duty, the defendants on said August 21, 1913, permitted said temporary way to become out of repair and in a condition unsafe and unfit for public travel, and permitted a large hole, to wit, 3 feet in diameter and 2 feet deep, to remain along the line of said temporary roadway at a point 300 feet north of said intersection of said highway with said interurban railway, and 20 feet west of said interurban railway, and within the right of way of said interurban railway, and particularly that the defendant township of Byron, failing in its duty, negligently and carelessly constructed said temporary roadway around said intersection in such manner that the same was unsafe and unfit for public travel, and permitted the same to remain in such condition; and that plaintiff, using said temporary way with due care on his part, on said date received certain injuries for which recovery is sought. To this declaration defendant township of Byron interposed a demurrer in the following terms:

"(1) It is not alleged or shown by said declaration that the plaintiff sustained bodily injury or other damage upon any public highway or street within the corporate limits or jurisdiction of the said township of Byron.

"(2) It is not alleged or shown by said declaration that the construction of the temporary road referred to in said declaration was made by or under the municipal authorities of the said township of Byron.

"(3) The said township of Byron had no lawful municipal authority to construct the temporary road for the purposes for which it was alleged that said temporary road was constructed."

The court having sustained the demurrer, a request was filed by counsel for plaintiff that reasons be given by the trial court for sustaining the demurrer. The

learned circuit judge thereupon filed the following rea

son:

"I do not believe that a township is liable under the statute for injuries sustained outside the established portion of the highway."

Plaintiff in this court now reviews the order sustaining the demurrer.

BROOKE, C. J. (after stating the facts). Plaintiff claims that the township became liable for injuries sustained by him upon this temporary highway, which he claims is a public highway within the meaning of the statute, for two reasons:

(1) Because it was connected with a public highway in such a way as to become part of it, the opening and terminus being the public highway.

(2) Because it was held out to the public as a public highway, and the public were invited and induced to use it as a public highway.

Many authorities are cited by plaintiff, alleged by him to support his contention. With reference to those cited from this State, it is sufficient to say that the question, though presented in the recent case of Hayden v. Township of Bangor, 182 Mich. 601 (148 N. W. 691), was undetermined, for the reason that plaintiff's recovery was there held to be barred upon the ground of contributory negligence. We have frequently held that the liability of municipalities for injuries upon highways is purely statutory, is in derogation of the common law, and cannot be enlarged by construction. See Miller v. City of Detroit, 156 Mich. 630 (121 N. W. 490, 132 Am. St. Rep. 537, 16 Am. & Eng. Ann. Cas. 832), and cases cited. The statute under which plaintiff seeks to recover limits recovery to bodily injuries sustained

"upon any of the public highways or streets in this State, by reason of neglect to keep such public high

ways or streets, and all bridges, sidewalks, crosswalks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel." 2 How. Stat. (2d Ed.) § 2462.

Public highways can be established in two methods only under the law of this State: (1) By proceedings instituted by the commissioner of highways of a township upon written application of freeholders and notice to landowners to be affected, appraisement of damages, and the making of a proper record in the office of the township clerk. 2 How. Stat. (2d Ed.) §§ 2174 to 2179. These proceedings must conform strictly to 'statute, or they are void. Price v. Stagray, 68 Mich. 17 (35 N. W. 815); Dixon v. Commissioner of Highways, 75 Mich. 225 (42 N. W. 814). By the second method public highways may be established by user. 2 How. Stat. (2d Ed.) § 2193. It is clear that at the point where plaintiff was injured the defendant township of Byron had not established a "public highway" within the meaning of that term as used in the statute upon which liability is predicated. We are of opinion that one who travels outside of the limits of a legally established highway must be held to do so at his peril, so far as his statutory remedy against the township is concerned, even though the municipality has, without legal authority, either alone or in conjunction with others, constructed a temporary way for his accommodation.

The judgment is affirmed.

PERSON, KUHN, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.

CLARK v. NORTH AMERICAN UNION.

1. INSURANCE-FRATERNAL BENEFICIARY ASSOCIATIONS-EVIDENCE -TRIAL-DIRECTING VERDICT.

Where the testimony of defendant's examining physician showed, on cross-examination, at the trial of an action on a benefit certificate, although he had stated affirmatively in his direct examination that decedent answered a question in her application relating to pregnancy by "No," that he did not 'recollect definitely actually asking the question, the trial court did not err in submitting the issue of decedent's alleged fraud to the jury.

2. SAME-NEW TRIAL-WEIGHT OF EVIDENCE.

Held, also, on motion for a new trial, that the verdict was not so opposed to the weight of the evidence as to require the court to grant a new trial.

Error to Muskegon; Barton, J. Submitted October 13, 1915. (Docket No. 80.) Decided December 22, 1915.

Assumpsit by Fred A. Clark against the North American Union on a benefit certificate. Judgment for plaintiff. Defendant brings error. Affirmed.

Cross, Vanderwerp, Foote & Ross (Clarence V. Donovan, of counsel), for appellant.

Turner & Turner, for appellee.

BROOKE, C. J. For a statement of the facts involved in this case reference is made to Clark v. North American Union, 179 Mich. 131 (146 N. W. 336), where it will be found reported. We there held that the evidence of the examining physician as to the asking and answering of a controlling question was such as to present an issue for the determination of the jury. The case has now been tried a second time, and, the ques

tions of fact having been determined by the jury in favor of the plaintiff, defendant has removed the case to this court for review.

The examining physician was again placed upon the stand by the defendant, and an elaborate examination and cross-examination ensued. The evidence upon the first trial will be found set forth, in part, in the earlier opinion. We quote briefly from the evidence upon the second trial.

Upon direct examination:

"Q. Do you have a very distinct recollection of that examination?

"A. No. * *

"Q. I suppose you have a great many examinations to make, and blanks of this kind to fill out, and can't carry them all vividly in your mind.

"A. No.

"Q. But let me ask you this: Is it your practice to write down dates and answers and everything of that sort truthfully and in accordance with the fact? "A. Yes, sir. **

"Q. Let me ask you, Doctor, in making out this certificate, did you intentionally make any misstatement of any kind?

"A. No, sir.

"Q. Or write down anything different from what you understood the fact to be?

"A. No, sir.

"Q. But at this date you can't recall, I suppose, the asking of specific questions or the return of specific answers?

"A. It isn't customary to keep records of those things, because that is a record, and the physician can't remember five years very well, distinctly.

"A. (To the Court.) Now, your honor, this paper was-is a paper that I examined the deceased, and every question there was asked upon honor, except those of minor importance, and whatever the answer was on this blank is true, and that is all I can say.

* * *

"The Court: Look at that blank.

"Mr. Cross: Here is the question I speak of.