text:
    ATKINSON v. AKIN.
    1. Fraudulent Conveyances — Possession of Trustee — Rights of Execution Creditors — Statutes.
    Under 3 Comp. Laws, § 9224 (3 Comp. Laws 1915, § 12898), the rights of bona fide purchasers are acquired by execution creditors of a debtor where he holds the legal title to property which his wife claimed to have paid for and allowed a conveyance to be made to him, and he deeds the property to his son and his son’s wife for the purpose of a reconveyance by them to the mother, such creditors making and perfecting levies upon the property before the latter deed is recorded and without knowledge of its existence, and whatever rights the wife has are inferior to the rights of such creditors.
    2. Frauds, Statute of — Land Contracts — Oral Contracts— When Valid.
    An oral contract for the purchase of real estate, followed by taking possession of the premises and making improvements, is valid and enforceable.

      3. Vendor and Purchaser — Possession of Purchaser — Constructive Notice.
    The possession of a contract purchaser is constructive notice of his rights to all, including creditors of the vendor, and there can be no innocent Iona fide purchaser against him so long as he remains in open, uninterrupted, and exclusive possession of the premises.
    4. Fraudulent Conveyances — Consideration—Bill in Aid of Execution.
    On a bill in aid of execution by creditors to set aside a deed to land given by a debtor to his son and son’s wife, the contention that the deed was without consideration because the grantees paid nothing to the grantor was untenable where the father had himself paid nothing for the land and held legal title to the land simply as security for a loan made by the mother to the son.
    5. Appeal and Error — Introduction of Evidence — Practice. Under the judicature act, Act No. 314, Pub. Acts 1915, chap.
    17, § 5 (3 Comp. Laws 1915, § 12493), the authority of the court in chancery cases over the introduction of evidence is greater than under the old practice, and the court is required to rule authoritatively upon all objections, and parties cannot, as a matter of right, continue a line of evidence against sustained objections.
    6. Same — Evidence Admitted over Objection — Presumptions.
    It will be presumed on appeal in an equity case that evidence admitted over objection at variance with the bill was disregarded where no opinion of the trial court appears in the record.
    7. Same — Pleadings—Presumptions.
    It will be presumed that all allegations in an answer in an equity case deemed important are stated, where the printed pleadings are abbreviated and the record does not contain the answer in full.
    8. Same — Scope of Review.
    On a bill in aid of execution by creditors to set aside a deed to land given by a debtor to his son and son’s wife as in fraud of creditors, on appeal, the case being heard . de novo, plaintiffs are entitled to have their objection to testimony relating to possession of the land by the son on the ground that the answer does not allege possession preserved in the record, although the result in the trial court was favorable to them, for, with the testimony eliminated, the case might assume a different aspect.
    9. Fraudulent Conveyances — Judgment Creditors — Bill in Aid of Execution — Pleadings—Possession.
    The matter of possession of land is presented on a bill in aid of execution by judgment creditors to set aside a deed by the debtor as in fraud of creditors, where no positive allegation of possession is made in the answer by defendants, grantees of debtor, but ownership of the premises is repeatedly asserted and it is stated that the land, as the result of improvements, is worth a certain sum.
    10. Appeal and Error — Amendments—Pleading.
    The Supreme Court may permit the amendment of pleadings to conform with the testimony in a chancery case where the subject is related and has been fully gone into and there is no claim of surprise.
    Appeal from Oceana; Sullivan, J.
    Submitted June 8, 1917.
    (Docket No. 15.)
    Decided July 26, 1917.
    Bill by Robert C. Atkinson and others against John C. Akin and others in aid of execution. From a decree for plaintiffs, defendants appeal.
    Reversed in part.

      A. S. Hinds, for plaintiffs.

      F. E. Wetmore, for defendants.

      On the question of taking possession of real property as part performance to satisfy the statute of frauds, see comprehensive note in 3 L. R. A. (N. S.) 790.

   Steere, J.

Plaintiffs filed this judgment creditor’s bill in aid of execution, on March 22, 1916, to set aside a deed given by defendant John C. Akin and his wife, Nettie, to their son, Claude L. Akin, and his wife, Rena, dated July 6, 1914, recorded June 8, 1915, covering block 125 and the south 10 feet of block 124 in the village of Shelby, in Oceana county, and a farm of 120 acres located in Elbridge township, in said county.

Plaintiffs had recovered against said John C. Akin three judgments amounting to over $2,000, and, being unable to otherwise collect the same, levied alias executions on this property, two November 9, 1915, and one on January 18, 1916.

Defendants Claude Akin and wife disclaim any interest in the village property which was conveyed by them to the mother, Nettie Akin, stating that the father, John, conveyed it to them for the purpose of conveying it to the mother, which they did.

The records of deeds of Oceana county show that the judgment debtor, John Akin, had held title to the Shelby village property since 1901, and it was shown without dispute that he had been in actual possession of it from 1901 until September 15,1915, during which time the title stood in his name. The record also shows that John C. Akin received a deed in November, 1904, conveying to him, without qualifications, title to the Elbridge township farm, which stood of record in his name until he conveyed it to his son and wife in July, 1914. They, however, had been in possession of this property claiming ownership during all the time he held title to it.

The substance of plaintiffs’ lengthy bill of complaint is that the indebtedness of John Akin, represented by the judgments under which they claim execution liens upon this real property, was incurred while he held title to it, and credit was extended to him on the strength of his ownership; that he subsequently conveyed it to his son, Claude, and wife without consideration and to defraud his creditors; that he shortly thereafter disposed of or sequestered what personal property he owned and went west, to Montana, where he took up a homestead; that the members of his family who thus acquired title to his property confederated with him to that end, and are not innocent parties; that executions previously issued against him upon those judgments were returned unsatisfied, and appropriate aid of the court is asked to enforce these levies.

Defendant John Akin suffered himself to be defaulted and'was not present or represented by counsel at the hearing. The other defendants appeared and made answer, claiming in their answer and at the hearing to have paid for and been the equitable and actual owners of the property during all the time John Akin held the legal title; that it was purchased and paid for by them in the first instance, although he took title thereto in his own name; deny that he has or ever had any money invested, interest or ownership in the property; deny all knowledge of or responsibility for any indebtedness of his; and contend that the deeds from him to them were given to and received by them in good faith as the rightful owners, to place the legal title where it belonged.

The trial court granted in full the relief asked by plaintiffs, setting aside as to their levies the deed of July 6, 1914, from John Akin to his son, Claude, and wife, and their deed of January 3,191(5, to the mother, Nettie A. Akin, of the village property.

As to the Shelby village property we see no escape from the conclusions reached by the trial court. Defendant Nettie Akin’s claim is that she paid for this property, which was conveyed to her husband with her knowledge and consent. His tastes and activities ran to horses and their uses for livery, breeding, and trafficking purposes, in which he was more optimistic than successful. After the purchase of this property, upon which there was a barn, or sales stable, he held title to, and had possession of it, ostensibly as owner, using it in his business until he deeded it to his son and wife, who claim no interest in it, and went west. His wife, who testified that “he has tried all the ways he could to make money with horses and failed,” was engaged while he possessed this property in the dressmaking business, with apparently better success. Although, with comparatively short intermissions, she stood by him.faithfully and condoned his shortcomings, litigation over property she successfully claimed to own which his creditors sought to realize from, and her charges against him in a short-lived divorce case which she began and withdrew, together with contradictory statements and qualified admissions, make plain that she knew of his financial delinquencies, and that he was obtaining credit on the strength of his ownership of this property. No other reason is shown why title to it should have been taken and kept in his name if it was bought by and belonged to her. Her deed to the property, of which they are not shown to have known, was not recorded until after plaintiff’s execution levies were made and perfected. The execution plaintiffs have all rights of bona fide purchasers under section 9224, 3 Comp. Laws (3 Comp. Laws 1915, § 12898), and whatever rights she has in the premises by virtue of her deed are subordinated to the prior recorded lien their levy established. Lachett v. McInerney, 185 Mich. 413 (152 N. W. 86).

The facts as to the Elbridge township land present a different situation. Claude Akin took possession of it May, 1904, before it was deeded to his father in November, 1904, having with the assistance of his mother contracted to buy it from the prior owner at an agreed price of $850. He was then a young man, unmarried, had accumulated $150 in money, and owned a team. Just prior to the purchase of this land he was planning to buy 40 acres near the village of Shelby, when his uncle, who lived near this tract, called attention to it and told him it could be bought cheap. He looked it over, discussed the matter with his people at home, and decided to buy it if he could. His mother encouraged him and offered to assist. The land was purchased and the $850 paid the seller, Claude furnishing the $150 which he had, and his mother the balance. A portion of the tract was swampy, and a portion of it good agricultural land. It was wild and unimproved, stripped of its valuable timber, had upon it some old, dilapidated buildings of little value, formerly used in lumbering operations; the principal ones consisting of an uninhabitable shanty and a camp barn built of logs. Being unable to occupy the buildings, owing to their condition, he at first camped upon the land and commenced a clearing preparatory to putting in some crops that year, which he did. He thereafter continued to reside upon this place up to the time of the trial, in exclusive possession under claim of ownership, working upon and improving it. At the time of the trial he had over 60 acres under cultivation, a comfortable house, good barn, fences, and other improvements, and had developed it into a valuable, improved farm said to be worth in the neighborhood of $3,000. When he married he took his wife to the home which he had prepared, and the testimony is undisputed that from the time he first went upon this land, over 13 years before the trial, he has lived there continuously, with the exception of part of one winter before he was married, making and calling it his home, steadily working upon and improving it as his own property, in open, notorious, and exclusive possession with his wife under claim of ownership. He was so in possession of it when his father’s indebtedness accrued to plaintiffs, and when their executions were levied upon the land he had paid for it in full according to his contract, and with his wife held title to it of record.

The only disturbing element in this transaction upon which plaintiff relies is that shortly after the land was purchased in 1904 and Claude had moved upon it, where he was at work clearing it, his father, John Akin, took the deed of it from the vendor in his own name. It is claimed that this was done and acquiesced in on the father’s initiative, to secure the mother for money she had advanced to help pay for the place. It is shown in that connection that the father himself paid nothing, never lived upon or used the land, did not clear, cultivate, or plant any of it, made no improvements upon it, and claimed no interest in or share of the crops raised by Claude, who, independent of his father, worked faithfully during the succeeding years developing and paying for the farm, making the last payment to his mother in June, 1914, shortly thereafter receiving his deed, made and dated July 6, 1914.

It is undisputed that Mrs. Akin had received some money from her father’s estate and was successful in her dressmaking business, contributing liberally at times, if unwisely, to her husband’s business ventures. In also helping her son to purchase this land her confidence was apparently not misplaced; for he not only made a good farm and home of it for himself, but before he was married he paid her $800 of the $700 she had advanced him, and subsequently, with the assistance of his wife, paid the balance. Mrs. Akin testified:

That at the time her husband took the title to the land it was not altogether agreeable to her, and she protested, but their relations were then harmonious, and she had confidence in him. “It was made out, and he [her husband] always had a kind of way about it ■ — he always said that I was his’n, and that mine belonged to him. * * * I didn’t make any serious objections, because I knew and he knew that it was for Claude, and Claude had $150 in it, and he was to pay the rest and have the place. * * * . But he said, ‘Well, what is the difference; Claude will soon have it paid for, and we will give the deed to him.’ ”

The substance of her not entirely satisfactory explanation is that, being a horseman, John always wanted to do the driving whenever there was any opportunity, and as long as he drove satisfactorily she had no serious objection between themselves to his holding the lines in family matters.

That Claude Akin was a bona fide purchaser of this land for $850, under an oral contract with the owner of the title, when he went into possession of it in May, 1904, that there was then part performance and later full performance on his part as a result of which, and in compliance with the contract so far as he is concerned, he ultimately secured a good title of record to the property, is undisputed.

It cannot be questioned that an oral contract for purchase of real estate followed by taking possession of the premises and making improvements is valid and enforceable. Section 9513, 3 Comp. Laws (3 Comp. Laws 1915, § 11979); Bomier v. Caldwell, 8 Mich. 463; Davis v. Strobridge, 44 Mich. 157 (6 N. W. 205); Murphy v. Stever, 47 Mich. 522 (11 N. W. 368); Peckham v. Balch, 49 Mich. 179 (13 N. W. 506); Lloyd v. Hollenback, 98 Mich. 203 (57 N. W. 110); McIntosh v. Hodges, 110 Mich. 319 (68 N. W. 158, 70 N. W. 550); Cowley v. McGregor, 163 Mich. 517 (128 N. W. 739); Beemer v. Hughes, 179 Mich. 110 (146 N. W. 198).

In Corey v. Smalley, 106 Mich. 257 (64 N. W. 13, 58 Am. St. Rep. 474), the law of notice by possession is thus concisely stated, with citation of numerous Michigan cases:

"One who purchases land occupied by another than the grantor is chargeable with notice of the rights of the occupant. Possession of land by a contract purchaser is constructive notice of his rights.”

When plaintiffs perfected their execution levy they had all and only the rights of a bona fide purchaser; but at that time Claude Akin had fulfilled his contract, received his deed, and recorded it. Conceding, which the statute does not provide, that when they extended credit to John Akin on the strength of his record title their rights against this property would be as those of a purchaser under like circumstances, they are in no better position for Claude’s possession as a contract purchaser was from the beginning constructive notice of his rights, and there could be no innocent bona fide purchaser against him so long as he remained in open, uninterrupted, and exclusive possession of the property, managing and controlling it under a claim of ownership.

Plaintiffs seek to test this question by the deed John Akin gave Claude and wife on July 6, 1914, under the claim that it was void for want of consideration, because it is admitted “that Claude Akin and wife never paid John C. Akin anything for this land.” It is equally true on the undisputed evidence in this case that John C. Akin never paid any one anything for this land, never purchased, owned, or had an interest in it, although he held the legal title in his name as security for what his wife had loaned their son until the latter had completed his payments, apparently on the domestic theory that his wife and all she had “was his’n.” This theory seems to find support in plaintiff’s brief, for it is urged that the earnings of the wife belong to the husband; that Mrs. Nettie Akin’s meager patrimony from her father’s estate is shown to have been but $280, while during her long coverture she earned thousands of dollars as a dressmaker, a part of which she loaned to Claude to buy this land. In this aspect of the case might be found some reason for John taking the security in his own name, and if it is correct Claude did pay his father for the deed all he asked and all that his security was held for when he paid his mother with John’s approval and ratification. John had said to his protesting wife, “What is the difference; Claude will soon have it paid for, and we will give the deed to him” — which they did do very soon after the last hundred dollars was paid. And what was the difference so far as Claude was concerned? He did not, and under the circumstances could not, dictate between his father and mother who should hold the security. He paid the balance he owed for the farm as and to whom he had agreed to, and received his deed of it when and as both of them had conceded he would be entitled to it. In the meantime his part performance had validated his oral contract of purchase, and his. continued, open, and exclusive possession was constructive notice to the world of his rights under the contract, and under the facts diseased here we are well satisfied his father and mother might have been compelled to execute a deed to him upon payment of the full amount due and agreed to had they refused. We discover no question of resulting trust under the proofs in this record. Claude’s rights were enforceable against the holder of the record title, and his possession was constructive notice to prospective purchasers or creditors of his father of those rights until he received and recorded his deed, or was dispossessed for nonperformance.

It is further urged in behalf of plaintiffs that all testimony relative to possession of the farm by Claude was erroneously admitted against their objection, timely made to it in the trial court on the ground that the answer-does not allege possession. When testimony was first offered upon the subject, the court overruled plaintiffs’ objection with the remark, “I am going to receive it,” and on subsequent objection ruled that such testimony would stand. Under judicature act, § 5, chap. 17 (3 Comp. Laws 1915, § 12493), the authority of the court over introduction of evidence is greater in chancery cases than under the old practice. The court is now required to rule authoritatively upon all objections, and parties cannot as a matter of right continue a line of evidence against sustained objections. No opinion of the trial court appears in the record, and to what extent, if at all, the court took that testimony into consideration is not clearly disclosed. Inferentially it was disregarded. An amendment might with propriety have been granted, if asked, and time given to plaintiffs if surprise was claimed, but the court’s ruling being favorable to defendant no leave was asked. Apparently both sides had opportunity to go into that subject as fully as they desired, and no denial is or was made of Claude Akin’s continued possession of the farm. The case is heard here de novo, and plaintiffs are entitled to have the objection preserved in the record passed upon here, although the result in the trial court was favorable to them; for with the testimony as to possession eliminated the case might assume a different aspect.

The printed pleadings are somewhat abbreviated, and the record does not contain defendants’ answer in full, although we assume all allegations deemed important are stated. No positive allegation of possession appears, but ownership of the premises is asserted repeatedly with details of circumstances. In paragraph 24 we find, “and Claude L. Akin and Rena C. Akin say that they are owners of the land in the township of Elbridge above described and that the same by reason of improvements made thereon by them is now of the value of $2,000 and upwards,” which at least suggests possession, and no claim is made by plaintiffs of surprise. We are inclined to the view that the matter of possession might properly be considered as before the court under present pleadings in this controversy.

It is, however, within the power of this court to permit amendment of pleadings to conform with the testimony where the subject is related and has been fully gone into with no claim of surprise. Under the circumstances we deem it equitable and proper to disregard this technical objection.

The decree of the court below will be affirmed as to John C. Akin and Nettie A. Akin, and the relief asked as to the Elbridge township farm, owned by Claude L. Akin and Rena C. Akin, denied. Plaintiffs are entitled to costs in full on default against John C. Akin. The three answering defendants combined in their defense and made joint answer. Though successful as to their farm, Claude and Rena Akin participated in conveying from John Akin to Nettie Akin her claimed title to the village property and sought with their own to sustain the same. In this they were unsuccessful. Plaintiffs having also prevailed in part and failed in-part, as have the three answering defendants, no costs will be awarded to either party, except against John C. Akin as above stated.

A decree of this court may be prepared in harmony with this opinion.

Kuhn, C. J., and Stone, Bird, Moore, Brooke, and Fellows, JJ., concurred. Ostrander, J., did not sit.


source: Caselaw Access Project

author: Steere, J. Brooke, J.

license: Public Domain

text:
    BRUNETTE v. QUINCY MINING CO.
    1. Master and Servant — Workmen’s Compensation Act — Construction.
    The workmen’s compensation act does not require the industrial accident board to give notice to the parties of the filing of the award by the committee on arbitration.
    2. Same.
    The workmen’s compensation act does not require that copies of an award by the committee on arbitration be served on the parties by mail or otherwise.
    3. Same — Claim op Review — Time Limited.
    The absolute right of parties in compensation proceedings' to file a claim of review with the industrial accident bpard under Act No. 10, part 3, § 8, Extra Session 1912 (2 Comp. Laws 1915, § 5461), is limited to 7 days from the date of filing of the award by the committee on. arbitration with the board, and the award, upon the expiration of the time limited, then stands as the decision of the board.
    4. Same — Extension op Time.
    When the 7-day period since the filing of an award .by the committee on arbitration with the industrial accident board, within which a claim for review should be filed, has passed, the board may grant an extension of time, in exceptional cases and for some special reason, upon a meritorious application showing, in its judgment, sufficient cause for further delay.
    5. Same.
    Part 3, § 8, of the workmen’s compensation act (2 Comp. Laws 1915, § 5461), only requires a claim for review of the decision of the arbitration to be filed with the industrial accident board within 7 days from the date of filing of the award which can be quickly prepared and transmitted, and assignments of error and grounds for review, which time is required to prepare, are not then required to be stated.
    6. Same — Claim; op Review — Discretion of Board.
    Under the workmen’s compensation act, part 3, § 8, extension of time for filing a claim for review of the award of arbitrators with the industrial accident board on application is a matter of discretion with the board which will not be interfered with unless palpable abuse of such discretion becomes manifest.
    7. Same.
    The discretion of the industrial accident board in refusing to extend the time for filing the claim for review '•of the decision of the arbitrators under part 3, § 8, of the aet, was not abused so as to warrant a disturbance of the act of the board where a copy of the award was mailed to the employer by the board and received two days after such filing and a claim for review was not mailed until six days after receipt of such copy by the employer and was not received by the board until three days later.

      Certiorari to Industrial Accident Board.
    Submitted June 21, 1917.
    (Docket No. 119.)
    Decided July 26, 1917.
    Henry M. Brunette presented his claim against the Quincy Mining Company for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Hcmehette & Lawton, for appellant.

      Charles O. Olivier, for appellee.

      On construction and effect of workmen’s compensation acts, generally, see comprehensive note in L. R. A. 1916A, 23.

   Steere, J.

Section 8, pt. 3, of the workmen’s compensation law (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5461) provides as to claim for review, or appeals from the committee of arbitration to the State industrial accident board:

“The hearings of the committee [of arbitration] shall be held at the locality where the injury occurred, and the decision of the committee shall be filed with the industrial accident board. Unless a claim for review is filed by either party within seven days, the decision shall stand as the decision of the industrial accident board: Provided, That said industrial accident board may, for sufficient cause shown, grant further time in which to claim such review.”

At a hearing before a committee of arbitration upon an application of Henry M. Brunette, plaintiff herein, held at the courthouse in the city of Houghton, on May 10, 1916, in the locality where the injury for which compensation was claimed had occurred, a decision was made in his favor against the Quincy Mining Company, defendant, awarding him compensation for injuries resulting from an industrial accident while in the latter’s employ. The written “Award on Arbitration” made by the committee is marked “Dated and entered this 10th day of May, 1916,” was filed.with the industrial accident board, at Lansing, on May 13, 1916, and on the same day a copy of the award was mailed to defendant which was received by it May 15, 1916. On May 19, 1916, defendant mailed to the industrial accident board its claim for review of the award, which was received and filed on May 22, 1916, 12 days after the award was made and 9 days after it was filed with the board. On May 23, 1916, the secretary of the board advised defendant’s counsel that the time in which to file the claim had expired before it was received, and it would therefore be ineffectual, calling attention, however, to the proviso authorizing the board to extend the time on a proper showing. Defendant thereupon filed a petition, supported by affidavits, showing dates and circumstances in harmony with the foregoing, claiming that it believed from the course followed the 7 days in which to file claim for review should be and was construed by the board as beginning when official notice of the award reached the parties, that it acted in good faith, with due diligence in preparing and forwarding its claim of review, requesting that the same*“be allowed as filed within the time required by the statute, and, if necessary, time be extended in which to allow claim for review to be filed.” This petition was opposed by claimant, and after a hearing before the full board, on September 6, 1916, was denied. Defendant now seeks by certiorari to compel the industrial accident board to allow its claim of review and pass upon the decision of the committee on arbitration, urging that upon the undisputed facts disclosed by this record the 7 days within which its claim for review should have been filed did not begin to run until notice of filing the award was received by it, on May 15th, and that in any event the technical refusal of the board to grant defendant’s petition for a reasonable extension of time, as authorized by the said section 8, was, under the circumstances shown, against the spirit of the act and a palpable abuse of discretion. The return by the industrial accident board is in part as follows:

“Whether the day from which the 7 days begins to run is the day the award is signed by the arbitration committee or the day it is filed with the industrial accident board is immaterial in this case, because the respondent did not file this claim for review until 12 days from the day the award was made, and until 9 days from the day the decision was filed with the board, and it is the opinion of the board that the claim for review was not filed within the time fixed by the statute. * * * While it is clear from the statute that the board has the power, in a proper case, to grant an extension of time upon a sufficient showing, it is the opinion of the board that a showing of diligence should be made, or that a showing that circumstances beyond the control of the respondent prevented the respondent from making this claim for review within the time provided by law; no such showing is made in this case. * * *

“Paragraph 4 of said petition states:

“ ‘That your petitioner was informed on the 10th day of May, 1916, that an award had been made by the arbitration committee in favor of the claimant, but the amount of the award was entirely unknown by the petitioner until notice was officially received, as aforesaid.’ * * *
“The respondent, by its own admissions in this petition on the same day that an award was signed, learned that an award had been made, and that it was adverse to the respondent. On the 15th day of May the respondent received notice from the board by mail that an award had been filed, and notwithstanding the fact that the time for claiming a review was passing, they delayed the filing of any claim for review in this matter until the 22d day of May thereafter, and it is the opinion of' the board that the respondents have not made such a showing as the statute contemplates should be made which would warrant the board in entering an order granting further time within which to claim such review.”

The law does not require the board to give parties notice of filing the award, or require that copies of it be served upon them by mail or otherwise. While its provision for a claim of review might possibly be construed as 7 days from the time of the award, it clearly must at most be construed as 7 days from the time of filing the award with the board. That the absolute right of parties to file such claim then expires is emphasized by the proviso giving the board a discretionary power to extend the time upon a proper showing. When the time fixed by statute expires without any claim of review filed by either party, the award stands as the decision of the industrial accident board. Only in exceptional cases and for some special reason the board may, upon a meritorious application showing in its judgment sufficient cause for further delay, grant an extension of time. The arbitrary right of parties to file a claim of review is limited to 7 days from the date of filing the award.

The act requires that process and procedure in carrying out its provisions shall be summary, as reasonably possible, and the board may make rules for carrying them out, not inconsistent with the act (section 3, pt. 3). Any general rule extending the time to file a claim for review would be inconsistent with the act. We do not discover that any rules have been promulgated by the board touching the questions involved here. The committees of arbitration are required to make investigations and hold their hearings at the locality where the injury occurred, in any part of the State. The office, records, and headquarters of the industrial accident board are kept in the city of Lansing, as the statute requires (section 2, pt. 3), but one of the board, to be designated by it, must act, in person or by deputy; as a member of each committee of arbitration, wherever its hearing is held, and the industrial accident board itself may also hold its hearings on review of awards in Lansing or elsewhere as deemed advisable. This situation naturally gives rise to more or less delay in filing papers and perfecting its records at- its office, giving opportunity for more or less uncertainty and difficulty on the part of those interested in ascertaining just when decisions are made and filed, or important steps taken in pending proceedings, unless fully advised. Apparently the board recognizes this, for, although the statute does not require notice of filing awards and no rules seem to have been promulgated by the board, defendant was promptly, served by mail with a copy of the award, showing when it was filed, in time to have transmitted and filed its claim for review before the 7 days expired. A member of the arbitration committee, of defendant’s selection as the statute authorized, also informed its attorney of the adverse award, though not the amount, on the same day it was made. The act only requires a claim for review to be filed within the 7 days, which can be quickly prepared and transmitted. Assignment of errors and grounds for review which counsel urge take time to prepare are not required by the act to be then stated.

Extension of time on application and showing is plainly made by statute a matter of discretion with the board, which this court may not interfére with unless a palpable abuse of such discretion becomes manifest. So considered, we cannot affirmatively find on the showing made in this case that the refusal of the accident board to affirmatively act under the proviso should be disturbed.

Its order of denial is therefore affirmed.

• Kuhn, C. J., and Stone, Ostrander, Bird, Moore, and Fellows, JJ., concurred with Steere, J.

Brooke, J.

Upon the showing made, I am of opinion that the discretion of the board should have been moved to grant the short extension of time requested.


author: Steeee, J.

text:
    HALLORAN v. MICHIGAN RAILWAY CO.
    1. Trial — Argument of Counsel.
    It is error to allow plaintiff’s counsel, over objection, to comment in his argument on the law of contributory negligence in railroad crossing accident cases in an action for death in a railroad crossing accident where the court has ruled that the question of contributory negligence of deceased is not an issue for the jury and that the only question is that of gross negligence of defendant.
    2. Railroads — Contributory Negligence — Instructions.
    In an action against an interurban railroad to recover for the death of the driver of a wagon at a crossing in a village by one of defendant’s cars, where the view of the driver was obstructed by the depot platform and the rising ground as he approached the crossing, and the court ruled that deceased was guilty of contributory negligence, an instruction that if the jury found that the rate of speed of the car was excessively great as it approached the next crossing and at any point where deceased came into view and ordinary care and prudence and a due regard for human life would require a lesser speed or precautions for the stopping of the car sooner and by the exercise of ordinary care the accident could and should have been prevented, the failure to take such precautions constituted gross negligence, was erroneous.
    3. 'Same — Gross Negligence — Discovered Peril.
    The antecedent negligence of the motorman of an interurban car in going at an excessive speed through a village before he discovers the contributory negligence of the driver of a team at a crossing is not gross negligence, although in connection with it failure to make every reasonable effort to avoid the accident after the concurring and contributing negligence of the driver has been, or ought to have been, discovered, may become such.
    t. Same — Gross Negligence — Evidence—Sufficiency.
    Evidence held, insufficient to raise an issue of fact for the jury as to the gross negligence of defendant.

      5. Same — Contributory Negligence — Question fob Jury — Evidence — Crossing Accidents.
    It was a question for the jury whether deceased was guilty of contributory negligence where the view of deceased as he approached the crossing was obstructed by the station platform and by the rising ground and the evidence was conflicting as to whether he approached the crossing carelessly, without stopping to look and listen, whether proper signals of the approach of the car were given, and, if given, whether they could be heard by one approaching the crossing along the highway, and at what point upon the highway near the crossing a car coming could be first seen as it passed the station, and it further appeared that the road was new, that deceased had never crossed the tracks before and did not know that defendant operated through trains.
    6. Same — Crossing Accidents — Contributory Negligence — Evidence.
    While failure to stop, look, and listen before driving upon an interurban railroad crossing with a wagon. is, as a rule, strong and generally controlling evidence of contributory negligence where injury results, the rule is not imperative in all cases, when the view is obstructed.

    '7. Same — Question for Jury.

      Held, on conflicting evidence, that it was a question for the jury whether the crossing was unusually dangerous.
    8. Same — Negligence—Question eor Jury.
    The negligence of defendant was a question for the jury, where the train, which struck deceased, was a through train going at 70 to 75 miles per hour through a village, and the view on the approach to the crossing was obstructed, in an action against an interurban railroad company to recover for the death of the driver of a wagon at a street crossing.
    9. Same — Negligence—Crossing Accidents.
    The question of the negligence of defendant railroad company in running into and killing the driver of a wagon at a village crossing at which it does not stop does not turn upon the general rate of speed the car made or what its schedule was, but whether, at the particular location, the ear was run at a speed, managed and controlled with that degree of care required in prudent railroad management for the safety of the lives and property of the persons rightfully approaching and traveling over such crossing.
    Error to Kent; Tappan, J., presiding.
    Submitted January 23, 1917.
    (Docket No. 95.)
    Decided July 26, 1917.
    Case by John M. Halloran, administrator of the estate of Albert Brog, deceased, against the Michigan Railway Company for the negligent killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Meckem & Meckem, for appellant.

      McKenna, & Herman, for appellee.

      For authorities passing on the question of duty of traveler to look and listen before crossing the tracks of an electric road. see notes in 15 L. R. A. (N. S.) 254; 23 L. R. A. (N. S.) 1224.

   Steeee, J.

Plaintiff’s intestate, Albert Brog, was struck and instantly killed by one of defendant’s south-bound interurban cars at a highway crossing in the village of Moline, Mich., shortly before 2 o’clock in the afternoon of June 12, 1915, and this action was brought by plaintiff under the instant death act to recover damages resulting to deceased’s estate.

Moline is a small village located a little over 16 miles south of the city of Grand Rapids, through which defendant’s line between Grand Rapids and Kalamazoo runs upon a private right of way, except where it crosses streets and highways. Its cars are operated under electric power conducted to them by a third rail, except in streets, highways, and places not inclosed, where a trolley wire is used.

At the time of the accident this line had been recently completed, and in operation little less than a month. Defendant was then operating daily over the line 35 so-called “trains,” 17 running north and 18 running south, a train consisting of but a single car. Three of these, running daily each way, were fast trains called “fliers” and did not stop at Moline. The car which caused the accident, numbered 800, was a modern type, heavy, interurban passenger car, 68 feet long, 14 feet high, 9 feet 8 inches wide, weighing 73 tons, having a vestibule, day coach, chair car department, smoking room, and baggageroom separated by partitions, with air brakes, gong, whistle, etc. It ran as a flier train, known as No. 68, due to leave Grand Rapids at 1:30 and arrive at Kalamazoo at 2:40 p. m., a run of 49.72 miles. It was in charge of Motorman Kenyon and Conductor Callahan, recognized as competent and experienced men in their line of duty. The car was about three minutes late in passing Moline. The testimony as to its speed at the time of the accident and shortly before is in dispute. Plaintiff claimed and introduced testimony tending 'to show it was running at a speed of from 70 to 75 miles an hour. Kenyon the motorman testified he was going through Moline at 45 or 50 miles an hour, and had been going from 55 to 60 miles.an hour, that he ran 769 feet after striking deceased, and. estimated he had retarded the speed of the car with the emergency brake 10 to 15 miles an hour before he struck him.

Of the environments of the accident it was shown that about 140 feet west of defendant’s track the Grand Rapids & Indiana Railroad runs practically parallel for some distance, and still further west, beyond the Grand Rapids & Indiana track, is the principal street of the village of Moline, extending for about a block north and south, open on the east side to defendant’s railway, and lined on the west side by buildings used for various business purposes facing towards the tracks. In securing its right of way defendant purchased some land in Moline on which was located a two-story frame dwelling house just east of its line which it converted into a station. It stood about 22 feet east of the center of defendant’s track, but not exactly square or parallel with it. A highway runs north and south about 200 feet east of defendant’s railway. Two parallel highways about 480 feet apart running east and west into the village cross it and the railway tracks, one passing north and the other south of defendant’s station, the south one, upon which the accident occurred, being about 186 feet south of the station; 865 feet north along the track from the center of this south highway defendant’s third rail ends, with a cattle guard a short distance south of the end. From the end of the third rail north of the village to a point about 700 feet south of the south crossing where the third rail again begins there is a trolley wire. A side track leaves the main line at a point south of the south highway and runs north across it parallel with the main track, ending at the station building. It is on a level with the main track and of similar construction. The station platform extends out to the main track in front of the building and is elevated a little over 4 feet above the rail. It also extends south along the east of the side track for a distance of about 60 feet beyond the station. The grade of defendant’s track through Moline is level, with the roadbed elevated but a little above the surrounding surface of the ground, while the grade of the Grand Rapids & Indiana track is about 4 feet higher. The south highway is substantially level as it approaches the crossing from the east to within about 95 feet of defendant’s side track, gradually ascending from there to the level of its two tracks, crossing them on a level and descending between them and the Grand Rapids & Indiana track for about 40 feet, then gradually ascending to the Grand Rapids & Indiana track and descending again to the general level after crossing it.

Albert Brog was a farmer about 42 years old, living with his wife and two children on his farm of 60 acres located 4 miles south and east of Moline.' He generally traded at a town named Wayland, farther south on defendant’s line and more convenient to his home, but had occasionally been to Moline, the last time, so far as shown, being the prior January, when he went to receive payment of taxes for his township, of which he was treasurer. Defendant’s road was not then operating, but had been under construction for some time. On the day of the accident he left his home for Moline in a single box lumber wagon, with a spring seat, drawn by his farm team, having some bags of grain in the back of his wagon box. He approached the village from the east along the south highway, and just as he drove upon defendant’s tracks at the crossing flier No. 68, coming from the north, struck and demolished his rig, throwing him a distance of 129 feet, causing instant death.

The issues to which testimony was directed and over which the parties contended under the disputed facts, or by inferences from the undisputed facts, involved counter charges of negligence, including contributory negligence by plaintiff’s decedent and discovered or gross negligence on the part of defendant. The trial court instructed the jury as a matter of law that plaintiff’s decedent was guilty of contributory negligence, and submitted the question of defendant’s gross negligence as an issue of fact for their determination. The trial resulted in a verdict of $5,000 in favor of plaintiff. The questions raised for review were presented and preserved upon the trial by timely objections, motions, and requests, and on motion for a new trial, which was overruled.

Prejudicial error is assigned and urged upon the court permitting plaintiff’s counsel, against objection, to debate to the jury the question of deceased’s contributory negligence, after disposing of it as a matter of law. In summing up the case plaintiff’s counsel said to the jury in part:

“It has come to pass in this State almost that no man can cross a railroad crossing, no matter whether he is afoot pr with a team or an automobile or how he may be, unless he is guilty of what the law calls contributory negligence. It don’t make any difference what he does, how he looks or when he looks or where he stops or whether he goes aheád or whether he turns around; if he does the wrong thing usually it is said that that is contributory negligence in the crossing of a railroad in this State. Unfortunately that has come to be true in this State.”

Objection being made to this line of argument and correction of counsel asked, the court said:

“I don’t see any objection to that statement. It may stand.” '

And counsel was permitted to continue the discussion applying such views to the cáse in hand. The court had ruled that contributory negligence was not an issue for the jury, and the only question of fact to be submitted was defendant’s gross negligence. Counsel’s insistent discussion of the subject, apparently with approval of the court, could serve no purpose but as prejudicial appeal to the jury to disregard the rilling of the court and decide in plaintiff’s favor the question of contributory negligence as an issue of fact. Under the theory upon which.the case was submitted, permitting such argument to the jury against objection was manifest error.

Plaintiff’s declaration does not, in the phraseology adopted, charge that the misconduct complained of was wanton, wilful, reckless or gross, but alleges that defendant’s described conduct of omission and commission was careless and negligent, and, so far as the record discloses, the theory of gross negligence was first advanced, or at least emphasized, by the court on conclusion of plaintiff’s testimony, in overruling defendant’s motion for a directed verdict on the ground that the negligence of plaintiff’s intestate had caused or contributed to the accident, and no actionable negligence on the part of defendant was shown. After argument of the motion the court said:

“I shall refuse to take the case from the jury, and will instruct the jury plaintiff can recover only on showing of conduct amounting to gross negligence.”

Objection to this was then made by defendant on the ground that the declaration was not framed on the theory of a right to recover notwithstanding contributory negligénce of plaintiff’s intestate, and gross negligence was not pleaded. ■ The court stated, however, that the casé would be submitted to the jury on the question of gross negligence only, and the trial proceeded under such ruling.

Counsel for plaintiff state that the ruling as to contributory negligence was “to our surprise,” and the subsequent argument to the jury on that subject, before referred to, “was merely in the nature of a reply to the court’s ruling”; while counsel for defendant intimate similar, but suppressed, emotions on the subject of gross negligence.

Under the views expressed in Weitzel v. Railway, 186 Mich. 7 (152 N. W. 931, 153 N. W. 831), it can well be questioned whether the declaration was sufficient for the theory on which the case was submitted, but, beyond the question of pleading, the theory of antecedent negligence as gross negligence, upon which that question was submitted to the jury, is not tenable. The court charged upon that issue in part as follows:

“If you find from the proofs that the rate of speed of the car was excessively great as it approached the north crossing, and at any point where the deceased came into view, and you also find that ordinary care and prudence and a due regard for human life would require the motorman to run more slowly or take precautions to stop the speed of the car sooner, and that by the exercise of ordinary care in this respect the accident could and should have been prevented by this means, then the failure to take these precautions would amount to gross negligence.”

This instruction relates to a situation where it is found by the court that plaintiff was as a matter of law guilty of contributory negligence. We discover no testimony from which a jury could fairly infer that after discovering deceased was actually in or about to put himself in a place of danger the motorman acted maliciously, wantonly, or in reckless disregard of his duty, or failed to do all that he then could to avert or minimize the accident. If negligent at all, his negligence occurred in assuming the excessive rate of speed before he discovered deceased’s negligence, as the court determined it was. Such antecedent negligence, even though great, is not gross negligence as defined by this court, though in connection with it failure to make every reasonable effort to avoid the accident after the concurring and contributing negligence of the party injured has been, or by reasonable diligence ought to have been discovered, may become such. Richter v. Harper, 95 Mich. 221 (54 N. W. 768); Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); Labarge v. Railroad Co., 134 Mich. 139 (95 N. W. 1073); Putt v. Railway Co., 171 Mich. 216 (137 N. W. 132); Good Roads Construction Co. v. Railway Co., 173 Mich. 1 (138 N. W. 320); Berry v. Railway Co., 173 Mich. 181 (138 N. W. 1038); Vought v. Traction Co., 194 Mich. 343 (160 N. W. 631). Measured by these decisions and others to which they refer, the testimony in this case falls far short of raising any issue of fact for a jury upon the question of defendant’s gross negligence, and this verdict rendered upon that theory cannot be sustained.

We are unable, however, to concur with defendant’s contentions that the undisputed testimony establishes deceased’s contributory negligence as a matter of law, and that plaintiff’s testimony wholly fails in support of his charge that defendant was guilty of negligent conduct. We are of opinion that plaintiff is entitled to have both these issues submitted to the jury under proper instructions.

Upon the question of contributory negligence the testimony is in marked contrast in material particulars. Defendant claimed and introduced testimony tending to show that plaintiff’s decedent approached this crossing carelessly, without stopping to look and listen, and upon seeing the approaching car, while yet in a place of safety some distance east of the side track (which is from 4 to 6 feet east of the main track), recklessly whipped his horses to a run and unsuccessfully endeavored to cross in front of the approaching ear, the motorman testifying he “was coming up that incline about 20 or 25 miles an hour.” On the other hand, plaintiff introduced testimony showing or tending to show that his decedent was driving slowly and carefully along the highway towards the village, watching in every direction, following close behind a buggy which drove over the track in safety ahead of him without any indication of having observed an approaching train; that as he approached the track with his horses upon a walk he first looked north up the track towards the station, then to the south, then to the north again, and as his horses were just going upon the side track the car came in view as it passed the station, and, manifestly taken by surprise, he rose in haste, leaned forward, and struck his horses with the lines, starting them hurriedly forward; that intervening trees, shrubbery, buildings, and particularly defendant’s. station, with the platform projecting in front of it, obscured his view to the north as he drove eastward along the highway until he approximately reached the side track, by reason of which and the incline of the road along which he was driving he was unable to see a car until he was close to the track, when one came in sight as it passed the station running at such speed that it reached him in less than 2% seconds; that he had not been in Moline since the road was in operation, and had never crossed this track; that Moline was a regular station on defendant’s line where all its cars stopped except these “fliers,” and he had no knowledge or reason to expect that a car would pass the station without stopping,- until this car came suddenly in sight from that direction bearing down upon him at a speed of from 70 to 75 miles an hour; that his horses were then just passing over the side track, closely paralleling the main track on the east and nearest the station, which in the emergency, as he saw the situation, might naturally lead him to think that he was upon the main track, and had he been, by whipping up his horses as he did, he would have crossed them safely. Witness Otto Frey, who was driving the buggy which crossed just ahead of deceased, testified that while driving on a slow trot he passed Brog, who was driving still slower, a short distance east of the crossing; that as he approached the crossing he slowed up, looked north, then looked south, then looked north again, heard and saw no car and proceeded to cross; that just about as he was on the main track he saw an interurban car somewhere north of the north crossing beyond the station; that he had not up to that time heard any whistle or car coming, and when he was just about half way between the interurban and Grand Rapids & Indiana tracks he heard the crash of the accident behind him. The testimony is in conflict as to proper signals of the car’s approach being given, where, if given, whether they could be heard south of the station by one approaching the crossing along the highway, and at what point upon the highway near the crossing a car coming from the north could first be seen as it came past the station.

While failure to stop, look, and listen before driving upon, a railway crossing is as a rule strong and generally controlling evidence of contributory negligence where injury results, the rule is not imperative in all cases; In Rouse v. Blair, 185 Mich. 632 (152 N. W. 204), it is said:

“This court has recognized various exceptions to this general rule of requiring the traveler to stop before making the crossing, when the view is obstructed. Guggenheim v. Railway Co., 66 Mich. 150 (33 N. W. 161); Richmond v. Railway Co., 87 Mich. 374 (49 N. W. 621); Breckenfelder v. Railway Co., 79 Mich. 560 (44 N. W. 957); Burnum v. Railway Co., 137 Mich. 580 (100 N. W. 1022); Id., 148 Mich. 370 (111 N. W. 1036); Coffee v. Railroad Co., 139 Mich. 378 (102 N. W. 953); Hintz v. Railroad Co., 140 Mich. 565 (104 N. W. 23); Beck v. Railroad Co., 156 Mich. 252 (120 N. W. 983).”

Under the conflicting testimony upon material facts .we are unable to say, as a conclusion of law, that there was no issue for the jury upon whether deceased might not reasonably believe from the situation as presented to him that he was safe in proceeding to cross, and in what he did conducted himself as a reasonably prudent and cautious man would have done under like circumstances, while expecting, as he had a right to do, that defendant would operate its cars over its line in a lawful manner.

There is testimony in the case that this fast train, behind its scheduled time, running past its station through the village and over closely adjacent crossings, was speeding by at from 70 to 75 miles an hour, while by the location of its station and platform defendant had made it more difficult for one traveling east on the south highway to see a car coming from the north when approaching the crossing, rendering it additionally dangerous in that particular. To what extent, if any, it was an unusually dangerous crossing is a matter upon which the testimony is in sharp conflict and a question of fact. The question of defendant’s negligence does not turn upon the general rate of speed this car made or what its schedule was, but whether at this particular location the car was run at a speed, managed and controlled with that degree of care required in prudent railroad management for the safety of the lives and property of the persons rightfully approaching and traveling over such crossing. In Folkmire v. Railways Co., 157 Mich. 159 (121 N. W. 811, 17 Am. & Eng. Ann. Cas. 979), this court said, referring to decisions where it has been held not negligence to run cars or trains through the country at a high rate of speed:

“These cases do hold that the exigencies of modern travel require rapid transit, and sustain the statement hereinbefore made that a steam car is not necessarily negligently run when a high rate of speed is attained, and that speed alone is not per se negligence. It does not follow that a rate of speed making it impossible to get off from a track in safety after it is possible to discover a car is not a negligent rate of speed, nor that it is not negligent to maintain a highway crossing, exceptionally dangerous, without some provision for preventing such accidents. It is true that the whistle and incessant ringing of the bell, together with the noise accompanying a heavy train on a steam road, has generally been deemed sufficient care without placing flagman or electric bells on the crossings, but there are cases where the contrary has been held.”

References to certain matters thought to indicate issues of fact for determination by a jury in no sense imply or are to be taken as indicating in what manner the jury should decide those issues. We deem it unnecessary to pass upon other questions raised, as we cannot assume they will arise on a retrial of the case.

The judgment is reversed, with costs to defendant, and a new trial granted.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Brooke, and Fellows, JJ., concurred.


author: Steere, J.

text:
    GUTHRIE v. LEELANAU CIRCUIT JUDGE.
    1. Appeal and Error — Extension of Time — Discretion of Court.
    Where counsel for the defendants in an equity case timely advised them of the decree and essentials to perfect the appeal, if desired, held, that there was no abuse of discretion in holding that as to defendants themselves, no sufficient excuse was shown for failure to promptly instruct their counsel, in case an appeal was desired, to have proper steps to that end seasonably taken within the time prescribed by law.
    2. Same — Chancery Appeals — Statutes.
    There is no right to appeal in chancery suits unless created by statute.
    3. Same — Perfecting Record — Extension of Time — Discretion of Court — Rules—Statutes.
    The provision in the judicature act, Act No. 314, Pub. Acts 1915, chap. 50, § 19 (3 Comp. Laws 1915, § 13754), requiring the payment of an appeal fee to the register in chancery within 20 days after filing of the decree is mandatory, and a condition precedent to the extension of time to settle a case for appeal, and such requirement is not affected by Circuit Court Rule No. 66, as such rule states that subject to the “limitations prescribed by statute” and upon such terms and conditions as may be deemed just the court may grant a further and reasonable time for settlement of a bill of exceptions or can and may extend such time when proper.
    Mandamus by Kate Guthrie and another to compel Frederick W. Mayne, circuit judge for Leelanau county, to grant an extension of time to settle a case for appeal.
    Submitted June 19, 1917.
    (Calendar No. 27,881.)
    Writ denied July 26, 1917.

      John J. Tweddle and Parm C. Gilbert, for plaintiffs.

      Dayton & Alway, for defendant.
   Steere, J.

In this proceeding plaintiffs ask a mandatory order requiring the circuit judge of Leelanau county to grant an extension of time to settle a case for appeal in a chancery suit begun against them and others, as defendants, by Levi and Jennie Pheatt, as complainants, in the circuit court of said county, on January 20, 1913, and decided in favor of the latter on June 21, 1916. The bill of complaint in, that suit was filed to set aside certain deeds claimed to be a cloud upon complainants’ title to described lots in the village of Leland. The case was first heard and a decree entered in favor of complainants Pheatt on October 24, 1913, which was seasonably enrolled. No appeal was taken from that decree, but on February 18, 1914, a petition was presented by defendants for leave to file a bill of review on the ground of newly-discovered evidence, and granted over complainants’ objection. Thereafter a stipulation was entered into between, the parties, providing that complainants might file an amended bill.of complaint and “join such additional parties defendant as they may desire.” This was done, and defendants answered the amended bill, to which replication was filed. The case, being again at issue, was duly noticed for the February,. 1915, term of court and brought on for hearing. Little, if any, testimony was then taken, and the case stood over until the May term, 1915, when the introduction of evidence was practically completed; but defendants asked and obtained further time to secure the testimony of a witness named Coda, and the hearing was further continued for that purpose. Coda’s testimony was not procured during the summer, as had been anticipated, and on October 7, 1915, notice of closing proofs and hearing the cause at the October, 1915, term were again served by complainants. Defendants then asked for more time to secure the testimony of Coda and another witness, which was granted by the court, and their depositions were subsequently filed, when the proofs were again closed. As part of the business of the June term, 1916, in Leelanau county, the case was taken up before the trial judge in Traverse City, in the same judicial circuit, by mutual agreement, of counsel for the respective parties, resulting in a decree in favor of complainants, signed June 21, 1916, and filed in Leelanau county July 3, 1916. Counsel for the respective parties were present when the decree was signed, and a stipulation was then entered into between them, waiving notice of proposed presentment and subsequent filing of the decree. On July 11,1916, a claim of appeal was filed by defendants, but the statutory fee on appeal was not then paid, and nothing further was done by defendants until January 29, 1917, when a motion was made asking an extension of time to March 1, 1917, or such other time as the court thought just, in which to prepare and settle said case for review, and the appeal fee was paid March 6, 1917. This motion was heard and denied by the court on March 22, 1917, in an order reviewing the history of the case and embodying in substance as reasons therefore inexcusable delay in perfecting the appeal and failure to pay the statutory fee within the specified time, saying .in part:

“It further appearing to the court from the affidavit of the solicitor for defendants that the defendants did not determine upon ordering a transcript of testimony from the stenographer and of appealing said cause until some time after September 14,1916; * * * that the defendants have materially delayed the final determination of said cause by not securing promptly the testimony of defendant Christopher F. Coda, and have had two hearings in the court and should have promptly determined whether or not they desired to take such cause to the Supreme Court without delay; * * * that said cause has been pending upwards of four years, and that, although the defendants had asked for a bill of review on the grounds of newly-discovered evidence, substantially all the evidence produced at the last hearing of the cause was cumulative to that taken at the first hearing and did not materially add to or strengthen, defendants’ cause; and that the complainants have persistently opposed delays and have been reasonably diligent in trying to secure a final determination of this cause. It further appearing to the court that the statute requiring the payment of $5 clerk fee within 20 days after the filing of the decree is mandatory and, that the court has no jurisdiction to allow an appeal where said clerk’s fee has not been paid within the time limited by the statute.”

The showing made in extenuation of delay in perfecting the appeal indicates that defendants’ counsel timely advised them of the decree and essentials to perfect the appeal, if desired; but we can find no abuse of discretion on the part of the trial court in holding that as to defendants themselves no sufficient excuse was shown for failure.to promptly instruct their counsel, in case an appeal was desired, and have the proper steps to that end seasonably taken within the time prescribed by law.

It is, however, apparently assumed by plaintiffs’ counsel that the controlling reason with the trial court for denying defendants’ motion was failure to deposit the appeal fee with the register in chancery within 20 days after decree was filed, which the court construed as mandatory, and a condition precedent to extension of time, against which counsel contend that, because the maximum limit within which the trial court may extend the time upon cause shown is one year from entering the decree, by inference a payment of the fee on or before an order extending time is made, within the year limit, should be construed as a sufficient compliance within the purpose and intent of the law. There is no right to appeal in chancery suits unless created by statute. Sullivan v. Haug, 82 Mich. 548 (46 N. W. 795, 10 L. R. A. 263). That right is now conferred and governed by the so-called judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12004 et seq.), which became operative January 1, 1916. In section 19, chapter 50 (3 Comp. Laws 1915, § 13754) of that act it is provided:

“Any party desiring to appeal from the order or decree of the circuit court in chancery shall, within twenty days after the entry of such order or decree, file or cause to be filed a claim of appeal in writing, etc., * * * and shall also within the said twenty days pay a fee of five dollars to the clerk: Provided, That, when any order or decree is entered in vacation, the time for taking an appeal shall be computed from the time of the service of notice of such decree as provided by law.”

In this case defendants’ counsel was present when the decree was signed, and notice was waived. The time of taking the appeal would at longest be computed from the time of filing, or entry of, the same with the register. Section 20, chapter 50, of the act confers discretionary authority upon the circuit court or judge at chambers to extend the time for taking or perfecting an appeal upon cause shown, not to exceed one year from entry of the order or decree appealed from. Circuit Court Rule No. 66, framed with reference to the judicature act, provides:

“A party shall have not less than twenty days after entry of judgment or decree for settlement of a bill of exceptions, in actions at law, or of a case containing the evidence for review in the Supreme Court in actions in equity. * * * Subject to the limitations prescribed by statute, and upon such terms and conditions as shall be deemed just, the court may grant such further reasonable time as shall be deemed proper for a settlement of a bill of exceptions or case, and may extend such time when proper. * * *”

The rule makes no direct reference to the statutory, requirement that the fee for appeal shall be paid within the 20 days and does not attempt to authorize its extension. That limitation is prescribed by statute, and the power to grant such further reasonable time as shall be deemed proper for settlement of a case in equity is made subject to statutory limitations. In support of the contention that the time limit for paying the fee for appeal is not jurisdictional, and may be extended by the court in connection with extension of time to otherwise perfect an appeal within the year, counsel for plaintiffs quote the following from Lum v. Fairbanks, 155 Mich. 23 (118 N. W. 578):

“We are of opinion that under the statute of 1907 an appeal is not perfected until the register’s fee is paid, and as the time for perfecting an appeal is limited to. one year from the filing of the decree, and cannot be extended, an appeal is not taken and perfected if the fee is not paid until after the year has elapsed.”

Chancery appeals were then governed by Act No. 340, Pub. Acts 1907, which provided that “in cases not heard or tried in open court” the fee should be paid .upon filing the claim of appeal, but in “suits heard in open court” the fee was not required to be paid until the settled case, or transcript, certified by the trial judge, was filed with the register of the trial court. It is also said in the Lum Case:

“By its terms this act limits the time for perfecting an appeal to one year from the filing of the decree, and requires that the register’s fee be paid when the settled case is filed with the register. It has been held that the requirement of this statute relative to payment of the fee is mandatory. Thompson v. McKay, 154 Mich. 228 (117 N. W. 624). So that, whether we consider the appeal as taken and perfected under 1 Comp. Laws, § 552, or under the statute of 1907, the appeal must be dismissed, unless it should be said that the right to a dismissal has been waived. There has been no waiver; for, although it appears that counsel for appellee have since August last urged counsel for the appellant to expedite the hearing of the case, they did not know, and we think were not required to learn, that a delay of nearly four months occurred because the register’s fee was not paid, and that it was finally paid after the lapse of the time for perfecting the appeal.”

In Thompson v. McKay, supra, involving the same act, it is said:

“The payment of the fee to the register is manda- ‘ tory and jurisdictional. * * * The fee was paid four months after the transcript was presented to the register. This statute was intended to expedite the matter of taking appeals in chancery to this court. * * * There is no question of discretion here. It is a matter of construction.”

We are of opinion that the learned circuit judge both rightly construed the statute and acted within his authorized discretion in disposing óf the motion.

The writ of mandamus petitioned for is therefore denied.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Brooke, and Fellows, JJ., concurred.


author: Moore, . J.

text:
    SEVERANCE v. SEVERANCE.
    Marriage — Common-Law Marriage — Consummation.
    A valid common-law marriage Is created where a man obtains a marriage certificate, shows it to a woman, says it is top late to get a minister and that they will come back later, to which she agrees, takes her to his father’s home, and introduces her' as his wife, tells her that a ceremony is unnecessary, lives with her several years, and they are regarded by those with whom they associate as husband and wife, and there is no legal impediment to a marriage.

      Appeal from Wayne; Mandell, J.
    Submitted June 21, 1917.
    (Docket No. 118.)
    Decided July 26, 1917.
    Bill by Kathryen Severance against George W. Severance and another for the affirmance of a common-law marriage. From a decree for plaintiff defendants appeal.
    Affirmed.

      Robert M. Drysdale, for plaintiff.

      McHugh & Lee, for defendants.

      On effect of statute on validity of common-law marriage, see note in 2 L. R. A. (N. S.) 353; 15 L. R. A. (N. S.) 463; L. R. A. 1915E, 68.

   Moore, . J.

This case is a bill in chancery filed under section 8619, 3 Comp. Laws (section 11456, 4 How. Stat. [2d Ed.], 3 Comp. Laws 1915, § 11395), for the affirmance of a common-law marriage. The statute reads as follows:

“When the validity of any marriage shall be denied or doubted by either of the parties, the other party may file a bill or petition in the manner aforesaid, for affirming the marriage; and upon due proof of the •validity thereof, it shall be declared valid by a decree or sentence of the court; and such decree, unless reversed on appeal, shall be conclusive upon all persons concerned.”

It is the claim of the plaintiff that in 1909 she and defendant Severance contracted a common-law marriage and lived together several years as husband and wife. It is her further claim that when she learned her husband was paying attention to the other defendant that she interviewed Miss Douglas and informed her that Mr. Severance was the husband of plaintiff; that, notwithstanding said notice, later the defendants had a marriage ceremony performed. The case was tried in open court. At the close of the testimony the trial judge expressed himself as follows:

“The testimony of defendant George Severance is not worthy of credence or belief, and that on the evening of January 2, 1909, Kathryen Severance and George W. Severance entered into a present mutual agreement to take each other for husband and wife, and that this agreement was consummated by George Severance taking Kathryen on that night to the home of his own father and mother and introducing her and living there with her as his wife, and that his family accepted her as such, and that defendant’s own mother treated plaintiff as her daughter, and that this relation continued unquestioned for several years until the marriage ceremony of George Severance and Winifred; that after the marriage ceremony of George Severance and Winifred became known to plaintiff, it might be that she did make requests that a ceremony be performed, but this would be only natural in view of the difficulties that had arisen. But the marriage agreement having been made and consummated on January 2, 1909, it became a binding marriage from that time, and whatever might have been said or done by the parties since that time would not have the effect of invalidating the marriage already performed.”

A decree was entered accordingly. The case is brought here by appeal.

It is contended by the appellant that the parties became unduly intimate, and that their relations were illicit, and that plaintiff did not rely upon the common-law marriage. We quote from the summing up of counsel for appellant in his brief:

“The finding of facts of the trial judge is full of commiseration for Kathryen and contempt for George, and overlooks entirely the very important fact that the plaintiff did not rely upon the alleged agreement of January 2, 1909, but on January 3, 1909, the very next day, she insisted upon the performance of a marriage ceremony. iJf
“We agree with counsel for the plaintiff when he states in his brief:
“(1) That in this State a marriage ceremony is not necessary to effect a valid marriage.
“(2). That in this State a valid marriage is effected by a present mutual agreement of marriage consummated by cohabitation as husband and wife.
“(3) That such a marriage is binding upon the parties, and subjects them and others to the obligations thereof, and to legal penalties for a disregard of its obligations.
“But we will qualify his fourth conclusion by saying that the marriage contract will be inferred from the subsequent acts of the parties only when it is not denied by either of them.
“The testimony in this case does not show a present mutual contract of marriage, and neither sympathy for the woman nor contempt for the man can make one.”

We shall not attempt to make a detailed statement of the testimony, which runs through a record of nearly 140 printed pages. We quote briefly from the testimony of the plaintiff:

“A. He said we would get married.
“Q. He said you would?
“A. Yes, sir.
“Q. Did you make arrangements?
“A. Yes, sir. He told me to go to his home Saturday afternoon and meet him there. He was living with a cousin, but I was to meet him at his mother’s home, on Hibbard, 337%. He told me to bring my grip. I went to his home, I don’t know what they told him, but when I got in there they congratulated us on our marriage; his mother and sister congratulated me on our marriage when I arrived there. We had a little dinner there that night. Mr. Severance came home from work, and we' went to Windsor after dinner. He got a marriage certificate in Windsor; I don’t recollect the name of the place, but I could find it, I waited for him in a little vestibule. I stayed inside quite a while. When he came back he said he had a certificate; he showed it to me and gave it to me; he said he found out it was too late to get a preacher. He said we would skip over the next day; those are the words he used. We returned to Detroit. We were very quiet coming over until we reached Detroit, and we were standing on Woodward avenue. It was quite cold waiting for a car, and he was telling me his business affairs, and he said, ‘From now on we are husband and wife’; those are the words he used. That night he said a ceremony was not necessary. He.said, 'Our marriage is as binding as all the ministers in Detroit could make it,’ and I believed him. He said from then on we would be husband and wife, and I believed it, and have ever since. Then he took me to his home, his mother’s and father’s home. I stayed there that night, and his mother was there and father and his sister axid two brothers and sister and husband. I went in their family, and was always accepted as his wife, and they always received me as such. I think he told them that we had been married before.”

Defendant testified in part as follows:

“I recollect the instance leading up to our trip to Windsor. It was in the fall of 1907, I think. We made the trip, to Windsor the 2d day of January. I don’t remember whether 1908 or 1909. It was about seven months prior to the birth .of Dwight. He was bom the 13th of May, 1909. Then we must have made this trip to Windsor in January, 1909. The way we came to make that trip, she told me she was in trouble, and I would have to do something for her. She told me that a month before we went to Windsor. She asked me to marry her at that time.
“Q. Did she ask you to marry her?
“A. Yes, sir; said I would have to marry her. * * *
“Q. What did you do?
“A. We went to Windsor to get married.
“Q. When did you go over there?
“A. The 2d day of January. It was 8 or 9 o’clock in the evening when, we went over there. I got a license at that time. She was on the outside waiting. I gave it to her. I told her it was too late to have the ceremony performed that night; we would have to come back again.
“Q. Did she agree to it?
“A. Yes, sir.”

Following the Windsor visit and the talk, whatever it was, and the parties are not agreed about What it was, the parties went to the home of the parents as husband and wife and lived there for a time.

The record abounds with testimony that the parties lived together for several years, the defendant Severance representing the plaintiff as his wife. She was so regarded by his parents and by those with whom they associated. Mr. Severance took out insurance policies for her benefit, naming her therein as beneficiary and describing her as his wife. A child was born to them. Many letters and postal cards are in evidence, all of them of the character that pass between married people. At the time of the visit to Windsor the parties were young, single people; there was no legal impediment to their marriage. What was done and said, followed by their subsequent conduct, created a valid marriage. See Hutchins v. Kimmell, 31 Mich. 126 (18 Am. Rep. 164), and the many cases cited therein; Peet v. Peet, 52 Mich. 464 (18 N. W. 220); Williams v. Kilburn, 88 Mich. 279 (50 N. W. 293); People v. Loomis, 106 Mich. 250 (64 N. W. 18); Flanagan v. Flanagan, 122 Mich. 386 (81 N. W. 258); Lorimer v. Lorimer, 124 Mich. 631 (83 N. W. 609); Bechtel v. Barton, 147 Mich. 318 (110 N. W. 935).

The decree is affirmed, with costs to plaintiff against defendant Severance.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred.


author: Moore, J.

text:
    TOLEIKIS v. AUSTIN.
    Appeal and Error — Demurrer—Finality of Orders.
    A case is still pending for further proceedings in the lower court and a writ of error is unavailable where an action for false imprisonment is against three defendants jointly, and a demurrer to the declaration is sustained in favor of two of them and overruled as to the third.
    Error to Wayne; Hosmer, J.
    Submitted June 25, 1917.
    (Docket No. 12.)
    Decided July 26, 1917.
    Case by John Toleikis against John L. Austin and others for false imprisonment. From an order sustaining demurrers in part, plaintiff brings error.
    Writ dismissed.

      Proctor K. Owens, for appellant.

      Philip H. Robinson (John L. Austin, of counsel), for appellees.
   Moore, J.

The plaintiff filed his declaration against the defendants, John L. Austin, a justice of the peace of the village of Highland Park, Charles Seymour, chief of police of said village, and Charles Brown, a patrolman of said village. The declaration attempts to set forth a case because of the false imprisonment of the plaintiff and contains two counts. The defendants demurred to said declaration, claiming it did not state a cause of action. Upon the hearing the lower court entered an order sustaining said demurrers as to all of the defendants to the second count of plaintiff’s declaration, and sustaining the demurrers of the defendants Austin and Seymour as to the first count of the declaration, and overruled the demurrer of defendant Brown, the patrolman, to the first count of the declaration. The plaintiff seeks to bring the case here by writ of error.

Defendants assert that a writ of error will not lie in this case; that the province of a writ of error is only to review a final judgment. It is also claimed by the defendants that the declaration does not state a cause of action. •

The case is one against three defendants sued jointly. The demurrer is sustained as to two of them, and overruled as to one of them. This leaves the case still pending for further proceedings in the court below. Under such circumstances the writ of error is not available. Perry v. Church, 107 Mich. 480 (65 N. W. 273), and the cases cited therein; In re Apsey’s Estate, 173 Mich. 426 (138 N. W. 1054).

The case is dismissed, and the record remanded, with costs in favor of defendants.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred.


text:
    ARMSTRONG v. OAKLAND VINEGAR & PICKLE CO.
    1. Master and Servant — Workmen’s Compensation Law — Appeal and Error — Findings oe Industrial Accident Board— Review.
    A finding of the industrial accident board will be reviewed where th'ere is no evidence to sustain it.
    2. Same — Workmen’s Compensation Law — Notice op Injury.
    , The contention that the defense of want of notice of the injury should not be entertained because not urged before the industrial accident board was untenable on certiorari to review ihe action of the board in awarding compensation to an employee where counsel for respondent in answer to questions put by the chairman of the board stated that they denied liability on the ground that they had no notice of claim for compensation or notice of injury as provided by the act.
    3. Same.
    Under the workmen’s compensation act, part 2, § 15 (2 Comp. Laws 1915, § 5445), providing that "no proceedings for compensation for an injury under this act shall be maintained unless a notice of the injury shall have been given to the employer three months after the happening thereof and unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employee, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity,” a notice of injury must be given within three months of the happening of an accident.

    Certiorari to Industrial Accident Board.
    Submitted June 19, 1917.
    (Docket No. 88.)
    Decided July 26, 1917.
    William Armstrong presented his claim against the Oákland Vinegar & Pickle Company for injuries in defendant’s employ. From an order awarding compensation, defendant and the Standard Accident Insurance Company, insurer, bring certiorari.
    Reversed.

      Keena, LigMner, Oxtoby & Hanley, for appellants.

      Otto & Davis (R. L. Crane, of counsel), for appellee.

      On construction and effect of workmen’s compensation acts, generally, see comprehensive note in L. R. A. 1916A, 23.

   Moore, J.

This is certiorari to review the action of the industrial accident board.

William Armstrong was, previous to November 16, 1915, in the employ of the respondent. The parties were under the provisions of the workmen’s compensation act. On May 4,1916, applicant served notice on the employer of a claim for injury under the compensation act, occurring on November 16, 1915, at employer’s factory. On the same day applicant gave written notice to the industrial accident board that the parties had failed to reach an agreement in regard to compensation, and made application for the adjustment of compensation. Thereupon a committee of. arbitration was appointed and a hearing was had. Respondents denied liability: First, Because the appendicitis did not result from an accident; and second, That no notice of the injury had been given to the employer as required by the statute. The arbitration committee found in favor of applicant, and upon a réview thereof by the industrial accident board the award of the committee on arbitration, with a slight modification, was affirmed.

The sole question urged by the respondents here is that the employer did not have that knowledge of the accident which is a prerequisite to the allowance of a claim under sections. 15 to 18 of part 2 of the statute (2 Comp. Laws 1915, §§ 5445-5448). It is admitted that no written notice of this accident was given to the employer until May 4, 1916, more than five months after the occurrence. The provisions of the statute calling for construction read:

“Sec. 15. No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer three months after the happening thereof, and unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employee, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or. mental incapacity.
“Sec. 16. The said notice shall be in writing, and shall state in ordinary language the time, place and cause of the injury; and shall be signed by the person injured, or by a person in his behalf, or, in the event of his death, by his dependents or by a person in their behalf.
“Sec. 17. The notice shall be served upon the employer or an agent thereof. Such service may be made by delivering said notice to the person on whom it is to be served, or leaving it at his residence or place of business, or by sending it by registered mail addressed to the person or corporation on whom it is to be served, at his last known residence or place of business.
“Sec. 18. A notice given under the provisions of this act shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place or cause of the injury unless it is shown that it was the intention to mislead, and the employer, or the insurance company, carrying such risk, or the commissioner of insurance, as the case may be, was in fact misled thereby. Want of such written notice shall not be a bar to proceedings under this act, if it be shown that the employer had notice or knowledge of the injury.”

It is said that as the board returns that the employer had actual knowledge of the accident, we must assume it as a fact in the case. We have often held that if there is any evidence upon which to base a finding of the board, we will not review the finding, but we have never held that, in the absence of any evidence, the finding would not be reviewed.

On the part of the claimant it is urged that the defense of want of notice was not urged below, and should not be entertained. This contention is answered by that part of the record which reads:

“Chairman: Do you deny liabilities?
“Mr. Robinson: Yes, we deny liability on the grounds that the man suffered no accident; that at least none that resulted in his disability complained of.
“Chairman: Is that your only reason?
“Mr. Robinson: That is the only reason for it.
“Chairman: Under the rules we would like to have your reasons for denying liability at this time, all of your reasons. That is in accordance with rule 5, which you are familar with.
“Mr. Robinson: Have you a copy of that rule?
“Chairman: I don’t find anything in the files in your position.
“Mr. Robinson: Well, we deny liability on the ground, to be more specific, that appendicitis is not the result of an accident, and that we had no notice of claim for compensation or notice of injury as provided for by the compensation act. I think that states it in full.”

After claimant was hurt he obtained permission to go home, from the foreman. As to this he testified in part:

"I told him my side hurt me so.
“Q. Tell him you were sick?
“A. No; I told him my side pained me so I had to go home.
“Q. You didn’t tell him about any accident?
“A. No, sir.”

The foreman testified in relation to this as follows;

“Q. Do you remember Mr. Armstrong coming to you about any sickness or pain or anything of that kind along in November last?
“A. Yes, sir.
“Q. What did he say there when he came to you?
“A. Why he simply said that he guessed he would go home; he was sick to his stomach. I told him all right, and put his time down.
“Q. Did he mention having an accident?
“A. No, sir.
“Q. State when was the first you knew of his claiming to have had an accident along about that time.
“A. I didn’t know of any accident until he was home this last time. Some time in May I think it was.”

But it is said the foreman and the general manager both contributed to a fund while claimant was in the hospital and must have known that he was there as the result of an accident. This conduct was consistent with, a desire to help a worthy man who was ill, and ignores the positive testimony of the foreman and the manager that they had no knowledge that he was in the hospital as the result of an accident.

It is said Mr. Premo knew of the accident, and that he is a sort of a foreman, and his knowledge must be attributed to the employer. The record shows beyond any controversy that Mr. Premo was an employee and not a foreman. /

It is strenuously urged that following the accident the claimant was incapacitated from giving the notice, and that after the incapacity was removed the notice was given in time.

The provision of the statute in relation to incapacity applies to the claim for compensation, but does not apply to notice of the injury.

The language of the statute is not ambiguous:

.“No proceedings for * * * an injury under this act shall be maintained unless a notice of the injury shall have been given to the employer three months after the happening thereof.”

It is urged that claimant has a meritorious claim/ that it will be a great hardship to him to deny him compensation, and the statute should be given a practicable construction, counsel citing Simon v. Cathroe Co. (Neb.), 162 N. W. 633. A reference to that case will show it to be different from the instant case. The Nebraska statute (Rev. Stat. 1913, § 3674), provides that:

“A notice of the injury shall have been given to the employer as soon as practicable after the happening thereof.”

The case also shows that both defendants had knowledge of the accident a few days after it occurred.

We have no cases of our own that are on all fours with the instant case. Like provisions, however, have been construed. See Jackson v. Vickers, 5 B. C. C. 432; Pimm v. Clement Talbot, 7 B. C. C. 565; Plumley v. Ewart & Son, 8 B. C. C. 464. Giving notice of the injury is important to the employer as it affords an opportunity for investigation, while the facts are accessible. If it may be argued that the time in which to give notice is insufficient the argument should be addressed to the legislature.

The award must be set aside.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, Brooke, and Fellows, JJ., concurred.