author: Moore, J.

text:
    BROWN v. BOUSCHOR.
    • 1. Master and Servant — Workmen’s Compensation Act — Find- . inos of Industrial Accident Board — Conclusiveness.
    The findings of the industrial accident board, in tbe absence of fraud, are conclusive, if there is evidence to support them.
    2. Same — Evidence—Sufficiency.
    Testimony that plaintiff’s decedent, when injured, was an employee rather than an independent contractor, and that he was injured while in the course of his employment, held, sufficient to sustain the findings of the board.
    S. Same — Insurance—Liability of Insurer.
    Where the compensation insurer of a lumber company accepted, by an indorsement on the policy, as within its terms, without any restriction, the employees of a subcontractor of said lumber company, and said subcontractor returned his entire pay roll, including employees not employed on said subcontract, and paid premiums thereon, his policy of insurance covered all of his employees, although the lumber company and the insurer were not aware that he had employees other than those employed on said subcontract.
    Independent contractors and employees of subcontractors as employees within the meaning of workmen’s compensation acts, see notes in L. R. A. I916A, pp. 118 and 247, L. R. A. 1917D, 148, and L. R. A. 1918F, 206.
    Certiorari to Industrial Accident Board.
    Submitted October 14, 1919.
    (Docket No. 35.)
    Decided December 22, 1919.
    Rehearing denied April 10, 1920.
    Caroline Brown presented her claim for compensation against George W. Bouschor and the Consolidated Lumber Company for the accidental death of her husband in defendant Bouschor’s employ. From an order awarding compensation, the Lumbermen’s Mutual Casualty Company, insurer, brings certiorari.
    Affirmed.

      Nichols & Nichols (A. R. Locke and J. T. Haviland, of counsel), for appellant.

      Gottfrid S. Johnson, for appellee Brown.

      Virgil I. Hixson, for appellee Bouschor.
   Moore, J.

This is certiorari to review an award made by the industrial accident board, upon the application of Mrs. Brown, growing out of the death of her husband while he was, as she claims, in the employ of the defendant Bouschor. Following the accident to Mr. Brown and his death as the result thereof, a settlement was made under a misapprehension of facts, which proceedings are not important as related to the vital questions in this case, and while we have carefully read all that is said in the record and briefs upon this phase of the case, we shall not refer to it except incidentally.

Caroline Brown, widow of William Brown, on July 10, 1918, filed an application with the industrial accident board asking for compensation as a dependent and made George W. Bouschor, the Consolidated Lumber Company, the London Guarantee & Accident Company, Limited, and the appellant, respondents, and asked for compensation on account of the death of her husband, William Brown, caused by the injury said to have resulted through the accident on the 18th day of December, 1917. The appellant denied liability, claiming that Mr. Brown, when injured, was working as an independent contractor; that he was not injured while employed by any of the parties to the proceeding; that he was not in the employ of the Consolidated Lumber Company when injured, and did not receive the injury arising out of and in the scope of his employment. An arbitration was had upon such petition and an award made in which it was decided that the London Guarantee & Accident Company and the Consolidated Lumber Company were not liable, but that George W. Bouschor and this appellant were liable to the claimant in the sum of $2,940, which should be paid at the rate of $10 per week, and $88 to Andrew Nelson, the attending physician. The appellant appealed to the industrial accident board for review and urged the same defenses it urged before the arbitration committee, and claimed that the industrial accident board was without jurisdiction in the matter as to the Lumbermen’s Mutual Casualty Company, for the reason that the said company had never had its certificate of insurance covering the said George W. Bouschor approved by the industrial' accident board, and that unless a certificate was filed in accordance with the rules of the board it had no jurisdiction over the company or the subject-matter; and that the industrial accident board had no jurisdiction to construe the terms and conditions of an insurance contract between the insurance company and employer; and that the finding of the weekly wages of $20 per week was not supported by the evidence, as well as the finding that the appellant was liable for the medical services of Dr. Nelson. The industrial accident board affirmed the award of the arbitration committee.

We quote from the brief of counsel:

“(1) Did the industrial accident board have jurisdiction over the parties and subject-matter?
“The first question to be determined is whether the industrial accident board had any jurisdiction in this case at all. By rule and statute, three things are necessary to give the board jurisdiction over all parties, viz., the employer and employee and any insurance company of the employer, they are:
“(a) The employer’s written notice to the board that he has elected to come under the act with the statement of the method of payment of compensation that he desires to adopt or has adopted.
“(b) The certificate from the insurance company that it has taken over the risk.
“(c) The approval of the industrial accident board.
“These things are essential and jurisdictional, and in no other way can the board know that the employer is complying with the act and until that is done and the approval of the board indorsed and made a part of the record, the employer is not under the act and the board has no jurisdiction over him or his employees. Bernard v. Traction Co., 188 Mich. 504; Shevchenko v. Railway, 189 Mich. 421; Bendykson v. Evangelistic Committee, 195 Mich. 490.”

An examination of these cases will show they are readily distinguishable. In each of them the employers’ determination to come under the act had not been approved by the industrial accident board when the injury for which compensation was asked occurred. In this case on the 20th of May, 1916, Mr. Bouschor filed with the industrial accident board his written acceptance as an employer, stating that his method of providing payment was through the London Guarantee & Accident Company. This acceptance was duly approved by the board May 20, 1916, while the accident to Mr. Brown occurred on the 18th day of December, 1917.

It is the further claim that Mr. Brown was not an employee but was an independent contractor. It is also claimed'that it is not clearly shown that he was hurt while in the course of his employment. There is testimony tending to sustain the contention of the claimant in both of these respects. We have repeatedly held that the findings of fact made by the industrial accident board are, in the absence of fraud, conclusive, if there is evidence to support them: Section 12, part 3, compensation law (2 Comp. Laws 1915, § 5465); Meyers v. Railroad Co., 199 Mich. 134; Homan v. Power Co., 200 Mich. 206; Jacobs v. Glasser & Hoffman, 200 Mich. 473; Nagy v. Solvay Process Co., 201 Mich. 158; Perdew v. Nufer Cedar Co., 201 Mich. 520; Wilson v. Furniture Co., 201 Mich. 531; Malone v. Railway, 202 Mich. 136; Gabriel v. Construction Co., 206 Mich. 471; Shaffer v. D’Arcy Spring Co., 206 Mich. 483. There was evidence that Mr. Brown was an employee and that he was hurt in the course of his employment.

The meritorious question about which there can be serious controversy is whether the insurance undertaking of the appellant, the Lumbermen’s Mutual Casualty Company, covered William Brown at the time he received his injury which later resulted in his death. The defendant Bouschor was a subcontractor under the Consolidated Lumber Company. His contract with that company required him to carry liability insurance so that if any injury occurred to his employees the Consolidated Lumber Company should not suffer any loss, because of said injury. Mr. Bouschor was not only a subcontractor as above indicated but he-carried on lumbering operations of his own in which he employed men. After entering upon his contract with the Consolidated Lumber Company he obtained liability insurance from various sources, but for reasons which it is not necessary to detail now he found himself without liability insurance. The Consolidated Lumber Company had insurance in the Lumbermen’s Mutual Casualty Company.

Mr. Bouschor testified in part:

“Q. Now I note this, Mr. Bouschor, that you state ‘Method of providing for compensation adopted by the undersigned, Consolidated Lumber Company and Lumbermen’s Mutual Casualty Company.’ Did you think that the Consolidated Lumber Company could be your insurer in that case?
“A. Yes.
“Q. You thought they would guarantee your insurance?
“A. Yes, I figured I had to have insurance and when the insurance company withdrew from me, I went to them.
“Q. You went to the Consolidated Lumber Company?
“A. Yes, sir.
“Q. Are they a local lumber company here?
“A. Yes.
“Q. Of some considerable size?
“A. Yes.
“Q. Is it true, Mr. Bouschor, that you have dealt with them, on and off for years, selling your products to them or working for them?
“A. Yes, sir, for years.
“Q. When you wanted insurance, you after having a little trouble about getting it went to the Consolidated Lumber Company?
“A. Why, yes, their contract with me as a jobber states that I shall carry insurance and they claimed that they could carry the insurance you know.
“Q. For you?
“A. Yes, for me.
“Q. And you went to them about it?
“A. Of course I went to them when the other company withdrew and I wanted them to carry my insurance and they said they could and would carry it.
“Q. The Consolidated Lumber Company?
“A. Yes, sir.
“Q. On their policy?
“A. Yes.
“Q. Now, is this correct, Mr. Bouschor, that when you went to them they and you agreed that they would have their policy fixed so that it would insure you, too?
“A. Yes, sir.
“Q. Was it your understanding that they had a policy with some insurance company?
“A. Yes, sir.
“Q. Lumbermen’s Mutual Casualty Company?
“A. Yes, sir.
“Q. And so, from about the 5th of June, 1917, it was your understanding that the Lumbermen’s Mutual Casualty Company covered your employees, was it?
“A. No, from February 8, 1917.
“Q. Well, I notice, Mr. Bouschor, that on this Exhibit I, it is dated the 16th day of April, • 1917, was it your understanding that you were covered before that date?
“A. Yes, that was when it was.
“Q. That was when you signed the papers?
“A. Yes, sir.”

The result of the conversation between Mr. Bouschor and the manager of the Consolidated Lumber Company was that there was indorsed on the policy which the lumber company had, the following:

“The policy to which this indorsement is attached in so far as said policy applies to the classification of 'Logging operations, including loading and unloading logs on and from cars, river driving, sorting and booming except at sawmill’ is hereby extended in all its terms and conditions to include George W. Bouschor as an assured thereunder. * * *
“Subject in all other respects to all the agreements, general conditions, special conditions and warranties of this policy:
“This indorsement when signed by an executive officer of the company and attached to policy No. 214,-444, issued to the Consolidated Lumber Company of Manistique, Michigan, shall be valid and shall form part of said policy.
“Dated at Manistique, Michigan, December 31, 1916.
“Lumbermen’s Mutual Casualty Company,
“Jas. S. Kemper, Manager.”

Following this indorsement a letter was sent reading in part as follows:

“Industrial Accident Board,
“Lansing, Michigan.
“Gentlemen:
“Consolidated Lumber Company.
“We hand you herewith Employer’s Written Acceptance, executed by the following logging contractors who are subcontractors for the Consolidated Lumber Company of Manistique, Michigan, whose Workmen’s Compensation Insurance we are carrying under our policies No. 214443 and No. 214444: Peter Golden, Fred LaBombard, Ray Graves, Paul Knuth, G. W. Bouschor and Frank Jones.
“Yours very truly,
“Lumbermen’s Mutual Casualty Company,
“Jas. S. Kemper, Manager.”

Inclosed with that letter was the following:

“Employer’s Written Acceptance.
“Act No. 10, Public Acts, Extra Session 1912. “Industrial Accident Board,
“Lansing, Mich.
“Take notice that the undersigned employer of labor in Michigan accepts the provisions of Act No. 10 of the Public Acts, Extra Session 1912.
“Number of employees — 25.
“Location of place of employment — Manistique and vicinity.
“Nature of employment — logging contractor.
“Method of providing for compensation adopted by the undersigned — Consolidated Lumber Company and Lumbermen’s Mutual Casualty Company.
“Dated at Manistique, Michigan, this sixteenth day of April, 1917.
“G. W. Bouschor.”

Upon that acceptance appears a stamp “Received June 5th, 1917. Industrial Accident Board, Lansing, Michigan,” and that paper is also stamped duplicate, but it bears no approval stamp.

The claim of the insurance company is tersely stated by counsel as follows:

“So we have this situation: The indorsement was made upon the policy of the Consolidated Lumber Company and the Lumbermen’s Mutual Casualty Company accepted its provisions because it understood, and had a right to understand, as provided in the contract between the Consolidated Lumber Company and Bouschor, that it was providing a method of compensation for the employees of Bouschor while engaged in any of the employments enumerated 'upon this operation,’ and ‘this operation’ is found to mean the making into various merchantable products called for by the specifications included in the agreement all of the merchantable timber and other forest products standing, lying and being upon certain described lands, as above stated, and when the pay roll came to the Consolidated Lumber Company with Brown’s name thereon, it had a right to believe and did believe that his work had reference to the operations upon the premises so described, and when the report reached the casualty company that Bouschor had paid $2,515.74 to his employees, it understood, and had a right to understand, that it was the employees ‘in this operation’ or those men who were working on the premises described and not an employee working for Brown ten miles from there as an independent contractor upon an entirely different job.
“In the very outset we must get away from the proposition that there is any attempt to modify, alter, extend or limit the terms of the contract, but that testimony is admissible to show how and why the contract was entered into and what were the facts upon which the consideration as to both parties was based. In other words, the intent of the parties in making it.
“An examination of the authorities warrants us in stating that under these conditions the court may and ought to examine the testimony referred to for the purpose of determining what was the intent of the parties for, as stated in many cases, that intent must govern when not in absolute conflict with the unambiguous, plain and clear terms of the writing.” Counsel cite many authorities.

The testimony is persuasive that the manager of the Consolidated Lumber Company and the insurance company did not know that Mr. Bouschor had other employees than those employed by. him as subcontractor. They made no inquiries in that respect. If they had they undoubtedly would have learned that a very substantial proportion of his employees were not at work upon the subcontracts he had with the Consolidated Lumber Company, and among them was William Brown when he was hurt.

The evidence is clear that Mr. Bousehor was seeking insurance that would cover all his liability as an employer of labor and that he supposed he had obtained such insurance by the indorsement made upon the policy as before stated. From that time he returned to the lumber company monthly his entire pay roll, including all his employees on all his work, and paid the insurance premium on all of these men to the Consolidated Lumber Company, which in turn forwarded the premiums to the insurance company, which company retained the premiums and it was not until the hearing before the industrial accident board was well under way that an attempt was made to tender back these premiums to Mr. Bouschor, who refused to receive them. There is nothing ambiguous in the language used in the indorsement made by the insurance company upon the policy. Had it desired to limit the insurance so it would cover only such employees of Mr. Bouschor as were engaged in the work he was doing for the Consolidated Lumber Company it would have been easy to have so stated in the writing.

In the employer’s liability law is the following:

“Every contract for the insurance of the compensation herein provided for, or against liability therefor, shall be deemed to be made subject to the provisions of this act, and provisions thereof inconsistent with this act shall be void.” * * * 2 Comp. Laws 1915, § 5475.

In Utter v. Insurance Co., 65 Mich. 545, Justice Morse, speaking for the court, said:

“When a stipulation or exception to a policy of insurance, emanating from the insurers, is capable of two meanings, the one is to be adopted which is the most favorable to the insured. 1 May on Insurance, §§ 174, 175; 1 Wood on Insurance (2d Ed.), §§ 60, 62; Allen v. Insurance Co., 85 N. Y. 473.”

In the case of Grand Rapids Electric Light & Power Co. v. Casualty Co., 111 Mich. 148, Chief Justice LONG, speaking for the court, said:

“In Anderson v. Fitzgerald, 4 H. L. Cas. 484, in speaking of the policy in that case, it was said:
“ ‘It ought to be framed with such deliberate care that no form of expression by which, on the one hand, the party assured can be caught, or by which, on the other, the company can be cheated, shall be found upon the face of it.’
“In National Bank v. Insurance Co., 95 U. S. 673, speaking of the policy in that case and the rule here stated, the court said:
“ ‘The company cannot justly complain of such a rule. Its attorneys, officers, or agents prepared the policy for the purpose, we shall assume, both of protecting the company against fraud, and of securing the rights of the assured under a valid contract of insurance. It is its language which the court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself.’
“We think the court below was correct in its interpretation of the policy, and the judgment must be affirmed.”

In Turner v. Casualty Co., 112 Mich. 425 (38 L. R. A. 529), Chief Justice Long, speaking for the court, said:

“If this language in the policy is ambiguous and susceptible of two constructions, then the question must be solved in favor of the insured; for it is well settled in this State that where a stipulation or exception to a policy, emanating from the insurer, is capable of two meanings, the one is to be adopted which is the most favorable to the insured; that it ought to be framed with such deliberate care that no form of expression by which, on the one hand, the party insured can be caught, or by which, on the other, the company can be cheated, should be found on the face of it. Utter v. Insurance Co., 65 Mich. 545 (8 Am. St. Rep. 913); Grand Rapids Electric Light & Power Co. v. Casualty Co., 111 Mich. 148.”

In the instant case Mr. Bouschor made no misrepresentations. He was not asked to disclose anything that he did not disclose. He desired liability insurance that would protect him under the employers’ liability law, as to all his employees. He supposed he was getting that kind of insurance and he paid premiums upon that basis. We think it too late now for the insurance company to avail itself of the defense it is urging.

The award is affirmed with costs.

Bird, C. j., and Sharpe, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    BURDICK v. GRAND TRUNK RAILWAY SYSTEM.
    Master and Servant — Workmen’s Compensation Act — Dependents — Husband and Wipe Living Apart.
    Testimony that decedent left his wife about 22 months before his death, and that during that time he did not live with her or contribute to her support, although he occasionally visited her, field, to sustain the finding of the industrial accident board that she was not a dependent within the meaning of the workmen’s compensation act.
    The question as to who are dependents within the meaning oí the workmen’s compensation acts is discussed in notes- in L. R. A. 1918A, pp. 121 and 248, L. R. A. 1917D, 157, and L. R. A. 1918F, 484.
    Certiorari to Industrial Accident Board.
    Submitted October 17, 1919.
    (Docket No. 66.)
    Decided December 22, 1919.
    Beatrice B. Burdick presented her claim for compensation against the Grand Trunk Railway System for the accidental death of her husband in defendant’^ employ. From an order denying compensation, plaintiff brings certiorari.
    Affirmed.

      Edward Daskam (Philip A. McHugh, of counsel), for appellant.

      W. K. Williams, for appellee.
   Brooke, J.

Certiorari to the industrial accident board. Claimant’s husband met with an accident on June 5,1918, in the course of his employment, resulting in his death while on the way to the hospital. A claim for the injury was seasonably made by claimant, after hearing which the committee on arbitration made an award denying compensation upon the ground that applicant was not a dependent upon George W. Burdick, the deceased, at the time of his death. Upon appeal to the full board further testimony was taken, after consideration of which an award was made by the board affirming the award made by the committee on arbitration. Claimant gave evidence tending to show that her husband left her on August 28, 1916, about 22 months prior to his decease; that from that time although he visited her occasionally up to July 4, 1917, he contributed nothing towards her support. She testified :

“When he came to-see me he would live at my expense and go away without leaving me any money. I have been making my own living by keeping roomers at 17 Wyandotte street, Walkerville, Ont.”

She further testified:

“Q. He left you on the 28th of August, 1916?
“A. Yes.
“Q. Up until that time had he supported you?
“A. Yes.
“Q. After the 28th day of August, 1916, Mr. Bur-dick never contributed toward your support?
“A. No.
“Q. Not a penny?
“A. No.
“Q. Where did he live, in Windsor or Walkerville, during the time he lived there after he left you?
“A. He lived at Windemere road for a month. I do not know the number.
“Q. When did you see Mr. Burdick next after he left you in August, 1916?
“A. Well, I saw him on the street. He said he didn’t see me. I saw him around Christmas. I saw him before that when he was on the police force.
“Q. But you didn’t see him to speak to him?
“A. No.
“Q. And he wasn’t at your home?
“A. No.
“Q. When was the first time that Mr. Burdick came to your home after he left you in the spring?
“A. In May, 1917.
“Q. Are you sure about the month?
“A. I think it was in May, I wouldn’t say positive.
“Q. How long was he there when he came to see you in May?
“A. He came Saturday evening and stayed until Sunday evening.
“Q. Was he living at Walkerville at that time?
“A. No, he was in Detroit, .working for the Grand Trunk Railway.
“Q. When was he at your home again after in May?
“A. He came the next Saturday.
“Q. How long did he stay?
“A. He stayed until Monday morning.
“Q. And when was he there again?
“A. I don’t know how often he was there. The last time he came was the 4th of July, I think, I know it was a holiday.
“Q. You said it was July 4th in your testimony?
“A. It was around the 4th that he came or went there.
“Q. This time in July, 1917, was the last time that Mr. Burdick was at your home?
“A. Yes.
“Q. And you did not visit him at his place of residence in Detroit?
“A. No.
“Q. Where was he living in Detroit, do you know of your own knowledge?
“A. At 355 or 357 Chene street.
“Q. He sent you no money from July, 1917, up to the time he was killed?
“A. No.
“Q. Had you had some trouble when he left you in August, 1916?
“A. No, only I was sick.
“Q. He just picked up and left?
“A. Yes, loaded down with liquor.
“Q. You mean he was intoxicated?
“A. Yes, otherwise he wouldn’t have done what he did.
“Q. How old a man was Mr. Burdick, do you know?
“A. He was — he told me himself he was forty-seven; and his sister said he was a year younger. The way he tells it he would be forty-eight last October.
“Q. You never came over here to live with Mr. Burdick?
“A. No, I didn’t.”

No other testimony as to dependency was offered.

It is contended on behalf of the applicant that giving a fair construction to this testimony applicant was living with her husband at the time of his death within the meaning of the act and therefore entitled to the statutory conclusive presumption of dependency. This contention is based upon the assertion that there was a mere suspension of marital relations for an understood period of time, that is until her husband was financially able to establish a home in Detroit. This position is evidently predicated upon the following testimony given by claimant:

“When he wanted me to come over; he couldn’t do much yet, if I would come he would get a house on Jefferson avenue. He said he was going to get $75.00 a month, and start paying for it. I told him if he would go and take a pledge for life, I would go—
“Q. It is a fact, as this affidavit was sworn to, that he has not contributed to your support or lived with you since July, 1917, up to the time of his death?
“A. No. He did not, but I am certainly dependent upon him just the same, thinking every day, when he told me he would come back, I was expecting he would come. Then I had to sell the furniture, a piece at a time, to pay the rent.
“Q. Let’s get this right on the record. Since July, 1917, you say he has not contributed to your support or lived with you as man and wife?
“A. Since a year ago last summer; that is the last time I seen him.
“Q. July, 1917?
“A. Until I seen him dead. Still, it was his intention to do so.”

So far from indicating an agreement between claimant and her husband that they should live separately for a definite time or until he could establish a home in Detroit for her, we think this testimony shows merely that the husband was dissipated and that the claimant was indigent. Taking the claimant’s testimony as a whole and giving it the greatest probative force possible, we are yet constrained, in the light of our own decisions, to agree with the conclusion reached by the board. See Finn v. Railway, 190 Mich. 112 (L. R. A. 1916C, 1142); Roberts v. Whaley, 192 Mich. 133; Ludwig v. Foundry Co., 194 Mich. 613; Kalcic v. Newport Mining Co., 197 Mich. 364.

The award of the industrial accident board will stand affirmed.

Bird,C. J., and Sharpe, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


author: Steere, J.

text:
    ORTNER v. ZENITH CARBURETOR CO.
    Master and Servant — Workmen’s Compensation Act — Cancer— Finding oe Industrial Accident Board — Evidence—Sufficiency.
    On certiorari to review an award of compensation by the industrial accident board to plaintiff for disability from a cancer claimed to be caused by an injury to his hand nearly three years before, while in defendant’s employ, and for which settlement had been made in full, where there is no testimony amounting to legal evidence that the cancer, which is in another part of his body, is attributable to the injury to plaintiff’s hand, the award will be set aside.
    On what constitutes an “accident” or "personal injury” within the meaning of the workmen’s compensation acts, see notes in L. R. A. 1916A, 29, 227; L. R. A. 1917D, 103, and L. R. A. 1918F, 867.
    Certiorari to Industrial Accident Board.
    Submitted October 10, 1919.
    (Docket No. 27.)
    Decided December 22, 1919.
    Paul Ortner presented his claim for compensation against the Zenith Carburetor Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Standard Accident Insurance Company, insurer, bring certiorari.
    Reversed, and order set aside.

      Keena, Lightner, Oxtoby & Hanley, for appellants.

      Henry Wwnseh and Edward F. Wunsch, for appellee.
   Steere, J.

For some time before October 16, 1915, plaintiff was employed by defendant Zenith Carburetor Company in Detroit, his work consisting mostly of grinding carburetors. His compensation was approximately $17.35 per week. On the morning of that date the third finger of his left hand was crushed in a drill at which he was working. It is undisputed that this injury arose out of and in the course of his employment. The carburetor company was operating under the workmen’s compensation law, carrying insurance with the defendant Standard Accident Insurance Company. Report was duly made of the accident to the State industrial accident board and proceedings had in accordance with statutory requirements and prescribed regulations of the board. An agreement was entered into between the parties for compensation, which was approved by the board and parties so notified. That adjustment, made with the approval of the board, was carried out by weekly payments, with medical and hospital attendance provided plaintiff until he resumed his employment. Blood poisoning, or infection of the wound, had resulted from the injury and he “complained of general soreness in different joints of his body” for some time. He returned to his former employment in April, 1916, and on the 28th of that month signed a final receipt “in settlement of compensation under the Michigan workmen’s, compensation law, for all injuries received by me on or about the 16th of October, 1915, while in the employ of the Zenith Carburetor Company.” This receipt was filed with the industrial accident board as required by its practice, together with a final report of the accident.

At the time plaintiff returned to work he had, as described by the physician who attended him, “an anchylosed distal joint of the third left finger and a deformity of the distal of the fourth or little finger.” This may have affected his skill or ability to perform certain work, but he was given employment by' the carburetor company of a character somewhat similar to that in which he was employed before his injury at the same wages and remained in its employ for two years.

So far as shown by any records of the industrial accident board the rights of the parties in relation to that accident had been fully settled and adjudicated, payment made in full and final settlement receipt filed with the board by May 3, 1916. Nothing further occurred and no further claim was made to the board in regard to the matter until October 14, 1918, when a petition was filed in plaintiff’s behalf for the board to reopen his case. In due course of proceedings defendants answered and a hearing on said petition was set for November 19, 1918, at. which time no one appeared in behalf of plaintiff and an order was entered by the board dismissing the petition.

■ On January 22, 1919, plaintiff filed a second petition asking for a rehearing, which defendants also 'answered. Following the practice in such cases the parties took whatever testimony of witnesses they desired and the same was returned to the board, followed by a hearing thereon. Upon such hearing, and against objection of defendants, the industrial accident board, on May 6,1919, entered an order granting plaintiff’s petition and required that defendants then pay plaintiff compensation at the rate of $6.61 per week, “as provided in the agreement approved December 3, 1915, from May 6, 1918, the date on which he stopped working for said respondent, to May 6,1919, a period of 52 weeks, there being due and payable on the latter date the sum of three hundred and forty-three and 72-100 dollars ($343.72), and subsequent to May 6, 1919, that he be paid the same weekly compensation during the period of his total disability,” etc.

No findings were made by the board beyond the statement in its order “that said applicant has been totally disabled as a result of the accidental personal injury he sustained on October 16, 1915, since May 6, 1918, when he stopped work for respondent, up to the present time.”

Plaintiff’s witnesses were himself and three physicians, Dr. Stockwell, who attended him during his disability after the accident of October, 1915, until he resumed work; Dr. Webber, whom plaintiff consulted the latter part of May, 1918, and was treated by for some time, and Dr. Sigel, to whom plaintiff went after Dr. Webber said he could not do anything further for him and advised him to consult another physician.

It was shown by undisputed testimony of the physicians that plaintiff’s physical disability after he stopped work in May, 1918, was due to a cancer which had recently developed in his private parts and rapidly progressed until at the time of hearing he was pronounced by them fatally afflicted.

The assignments of error contained in defendants’ petition for writ of certiorari involve the following contentions:

“First. Under the law there was no jurisdiction in the industrial accident board to reopen this matter (which had been finally determined in May, 1916) upon applicant’s petition filed in January, 1919.
“Second. Upon this record there is no evidence tending to support the order complained of in finding that the applicant’s disability in 1918 was the result of accidental injuries received by him in the course of his employment by the Zenith Carburetor Company.”

Of the second it is to be noted that all three of the physicians who professionally attended plaintiff and were called by him as witnesses agreed that cancer, with which he was afflicted during and after May, 1918, is a germ disease resulting from “streptococcus infection,” which none of them claimed resulted from or had any direct connection with the injury to his hand in 1915. But Dr. Webber in answer to questions of plaintiff’s counsel was favorable to the theory that plaintiff’s reduced vitality and run down physical condition imputable to his accident in 1915 would, as he expressed it, “prevent him from having a cure to those parts down there and consequently the prolonged irritation would result in a cancerous infection,” thereby purporting to trace a causal connection between the injury to the hand in 1915 and what he'describes as a “streptococcus infection underneath the foreskin” (in 1918), the development of which into a cancer “comes from irritation, continued irritation,” and “especially where it is connected with the mucous membrane, grows fairly rapidly.”

As to when he became afflicted with a cancer, plaintiff testified that the first time he had any trouble in his private parts was when he went to see Dr. Webber in May, 1918, which he subsequently modified by the statement that a sore first manifested itself there in November, 1917, and began to swell in February or March, 1918, paining him more or less since Christmas, and his condition became such that he had to quit work on May 4, 1918; but went back on the 14th or 15th and worked two days more when he could not stand it any longer and went to see Dr. Webber on May 18th, at which time he was in very bad physical condition. He then told the doctor that some one in the boarding house was playing a joke on him by placing something on the sheets in his bed which got upon his private parts, starting an irritation and swelling, and, as Dr. Webber states he understood it, “was not laid up or, that is, he, did not have any) trouble ,for any length of time.”

Dr. Sigel, who first saw plaintiff January 2, 1919, testified that he was then emaciated and suffering from cancer or “carcinoma of the penis” which had developed very rapidly since that time; that he could not tell how long the disease was in progress for “a cancer cell may lie dormant sometimes for a year. It is simply a misplaced cell, and then some irritation causes it to grow very rapidly all of a sudden, which is very likely the case here.”

Dr. Stockwell, who attended plaintiff following the accidental injury in 1915 until he resumed work, testified that he was sent to him for examination in October, 1918, and was at that time suffering with what the doctor diagnosed as a cancer which “showed it had existed for some little time from general appearances.” Asked whether the cancer resulted from plaintiff’s injury for which he had attended him he replied: “I would testify positively that the cancer was not caused by the injury.”

Dr. Webber, from whose testimony alone it is claimed a causal connection is inferable, testified, in direct examination, as follows:

“I thought possibly it was a gonorrheal infection, but I found it was not; it was streptococcus infection. I treated him along for a short time with the usual remedies, the injections and the serum treatments, the vaccine treatments, and he did not seem to progress favorably; he was a little bit emaciated, and I thought he better consult somebody else.
“Q. How serious was that infection on the penis?
“A. Well, it was quite a serious one. The extension at that time was the full length practically of the penis.
“Q. What was the man’s general condition of health, was he in a weakened, run-down condition of health?
“A. He was very emaciated.
“Q. Taking into consideration, Dr. Webber, that this man suffered an injury of the finger and the left hand which resulted in October, 1915, in a serious case of blood poisoning and general infection throughout the hand and the arm, for which he was treated by Dr. Stockwell in the hospital and in his office for a period of six months, and taking also into consideration that the man had had no other illness of any sort other-than this blood poisoning between October, 1915, and the time you saw him in May, 1918, would you say that this slight infection of the penis was — or this infection of the penis was sufficient to run down that man’s health to the point at which he was when you saw him?
“A. I would say that his emaciated condition was the result of possibly that infection that he had at that time. It prevented him from recuperating and building up his general system, so that he was in a condition unfit for work. I would not say, though, that this infection of the penis was the result of his injury at that time, or that the extension of the inflammation of the penis at that time was the result of his injury; but I would say that his emaciated condition could result from his being run down and not having sufficient recuperative powers to build himself up. Consequently, this infection of the penis, as the result of his being run down, prevented him from possibly getting well.
“Q. Would you say that that emaciated condition could very logically follow a serious case of blood poisoning such as this man had?
“A. Why, certainly.
“Q. Some two years previous?
“A. Why, certainly.
“Q. Taking into consideration, doctor, that this man had no infection such as you have mentioned of the penis at the time of that blood poisoning, will you state whether or not it is your opinion very likely that this emaciated condition was the direct result of the blood poisoning?
“A. Why, certainly.” * * *

On cross-examination he was asked and answered:

“Q. The first time you saw the applicant, Mr. Ortner, was in May, 1918?
“A. Yes, some time the latter part of May.
“Q. At that time he had quite a serious infection which extended the full length of the penis?
“A. Yes, sir. * * *
“Q. Did it occur to you that it was a cancer, doctor?
‘A. Not at that time, no, sir.
“Q. It did not?
“A. No, sir; in fact, I don’t think it was a cancer at that time.
“Q. When you informed him along in July that you could do nothing further for him and were trying to get rid of him, as it were, were you then of the opinion that it was a cancer?
“A. Well, I suspected there was something of that nature, I told Paul that the only thing that would help him anyway would be to have an operation. * * *
“Q. Assuming that this infection existed for six weeks or two months, was that not sufficient to reduce his vitality to the extent which you found it in May, 1918?
“A. No, I don’t think so.
“Q. You don’t think it was?
“A. No, sir.
“Q. You would not say it was not, though, doctor?
"A. Well, I' would not swear. Yes, I would. I would say it would not reduce his vitality sufficiently. *5*
“Q. But you are sure of one thing, are you, doctor, that this cancer did not result from that infection that he had some two and a half years ago?
“A. Oh, no.
“Q. It did not result from that?
A. No, sir. I did not say it had anything to do with it.
“Q. But all you want us to understand is that perhaps when he went to see you in May, 1918, he was somewhat emaciated as the result of his injury some two years preceding that time?
“A. Yes, sir.”

So far as Dr. Webber or the other physicians attempt to explain the nature and cause of cancer, admittedly the disease with which plaintiff was suffering in 1918, and by reason of which he became incapacitated and quit work in May, 1918, they show it to have been of local origin from a streptococcus or bacterial infection under the foreskin, roused to malignant activity and rapid growth by misplacement and “continued irritation,” none of which is given any causative relation or imputed to the healed industrial injury to his hand, two and a half years before. Whether such a disease germ so planted and roused to malignant growth by misplacement and constant irritation is in its nature recognized by the medical profession as best developed or best resisted by otherwise healthy condition or superior vitality we are not advised beyond Dr. Webber’s pathologic theory that plaintiff’s “little bit” and “very” emaciated condition could have resulted from his recuperative powers having been impairea as the result of the former injury to his hand, which possibly prevented him from “getting well” of the subsequent cancer; although asserting he “did not say” the infection of his hand two and a half years, before “had anything to do with it.” There is no evidence, or even theory, that the infecting germ, from which the cancer causing plaintiff’s subsequent incapacity resulted, found lodgment where it developed by reason of or in the course of his employment, nor that the irritation which his physicians name as an essential element to its growth was attributable to his former injury or employment.

This record affords no testimony to facts or theory amounting to legal evidence that the cancer by which plaintiff was incapacitated in 1918 is attributable to the accident to his hand in 1915.

The award is therefore set aside.

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


text:
    DIEBEL v. SPITZLEY & WIDENMAN CONSTRUCTION CO.
    1. Master and Servant — Workmen’s Compensation Act — Parties — Waiver.
    Where defendant insurance company took the initiative in regard to the accidental death of an employee of either a construction company or its president (the actual employer being somewhat in confusion) by filing a report of the accident with the industrial accident board, and thereafter, without protest or explanation, assumed to represent them in arbitration proceedings, and whenever occasion arose, accepting the award of compensation by the arbitration committee against it and the construction company, without appeal, any possible objection which defendant might have had as to parties as affecting its liability, helé, to have been waived.
    2. Same — Rehearing—Jurisdiction of Industrial Accident Board.
    Where no appeal was taken from a final order of the industrial accident board, in proceedings under the workmen’s compensation act, said board is without jurisdiction to' grant a rehearing therein
    Certiorari to Industrial Accident Board.
    Submitted October 30, 1919.
    (Docket No. 82.)
    Decided December 22, 1919.
    Henry Diebel, personally, and as guardian of Eunice and Clara Diebel, presented his claim for compensation against the Spitzley & Widenman Construction Company for the accidental death of his son in defendant’s employ. On petition of the Chicago Bonding & Insurance Company, and another, insurers, to be relieved from further payments under an award. From an order denying the petition, defendants bring certiorari.
    Affirmed.

      Frederick J. Ward, for appellants.

      Kerr & Lacey, for defendant construction company.

      Vincent M. Brennan, for appellee.
   Steere, J.

This case comes here by certiorari to the industrial accident board for review of an order made by it on January 29, 1919, denying a petition by defendant Chicago Bonding & Insurance Company to be relieved from making further payments of compensation in the case, ordering accrued compensation paid to the amount of $184.50, and continuance of payment of $4.50 a week in accordance with an award made by a committee of arbitration on September 20, 1916. The case is somewhat peculiar in an indicated confusion of parties and misunderstanding of facts which seems to run even to the names of the parties and manner of spelling the same. One T. W. Widen-man (variously spelled) is not personally a party to the proceeding but figures conspicuously in it.

On February 29, 1916, Leon (or Leland) Diebel, a young single man about 20 years of age, was killed in the course of his employment by a concededly industrial accident, and left him surviving the plaintiffs, respectively his father Henry, two minor sisters Eunice and Clara, the father being personally a party to this proceeding and as guardian for his minor daughters. The case was first brought to the attention of the industrial accident board by the report of an accidental death to one Leland Diebel received from A. D. Kehoe, adjuster of defendant Prudential Casualty Company. That report named T. W. Widenman as employer, the place and date where the accident occurred as 890 Burlingame avenue, February 29, 1916, with answers to other questions in the form furnished by the industrial accident board not material to detail, and was signed by T. W. Widenman as employer. On March 23, 1916, the industrial accident board received a letter from W. D. Allen, adjuster of the Prudential Casualty Co., referring to a report inclosed “of accident to Leland Diebel, an employee of T. W. Widenman,” stating that payment of necessary expenses in connection with the funeral had been refused by the boy’s father and there was reason to believe a claim of dependency would be made in behalf of two younger sisters of deceased, which the company was awaiting developments in because unable to obtain necessary information as to the different employers, for whom deceased worked during the year and inability of the family to furnish information as to contributions made by deceased towards their support. On March 24, 1916, the industrial accident board sent the report to the Prudential Casualty Company in Detroit for completion, as to the daily wages of deceased. On April 6, 1916, the board received a letter from V. M. Brennan, attorney, of Detroit, stating he had been retained by Henry Diebel for himself and as guardian of his two minor daughters, that deceased was when killed in the employ of the “Spitzley & Widenman Construction Company,” and in a letter dated April 15th the board had named “T. W. Widenman Construction Company” as the employer, while Mr. Allen in his letter to the board referred to deceased as employed by “T. W. Widenman”; that there was a concern located in the Farwell building in Detroit under the name of “Spitzley & Widen-man Construction Company” and the writer was anxious to learn whether the concern under that ñame had filed acceptance of the compensation act with the board. This was followed by other correspondence, and on May 2, 1916, a notice to T. W. Widenman as employer was filed by Henry Diebel, “per V. M. B.” ; in accordance with the prescribed form, naming as respondents “the Spitzley & Widenman Construction Company, a Michigan corporation, and Prudential Casualty Company, a corporation,” and stating “the postoifice address of respondents is as follows: Spitzley Company, Farwell building, Detroit, Michigan, Prudential Casualty Company, Majestic building, Detroit, Michigan.”

No agreement as to compensation having been reached the matter was set for arbitration on September 20, 1916, at which time Zalic B. Clago was appointed arbitrator for the three applicants and Arthur L. Aiken for the Prudential Casualty Company at the instance of the respective parties, the appointment of Aiken being made pursuant to a written notice, dated September 13, 1916, to the industrial accident board as follows:

“You are hereby notified that Arthur L. Aiken whose postoffice address is 1442 Majestic building, has been chosen a member of the. committee of arbitration in the above entitled matter by the undersigned.
“Prudential Casualty Co., Respondent,
“Per A. D. Kehoe.”

The arbitration resulted in an award in favor of applicants in the sum of $4.50 per week for a period of 300 weeks from February 29, 1916. True copies of this award were sent to Vincent M. Brennan, attorney, Henry Diebel, Spitzley & Widenman Construction Company, at their Detroit address, one being also sent to the Prudential Casualty Company, 1330 Majestic building, Detroit, Michigan, and another to its home address at Indianapolis, Indiana. No appeal was taken from this award, and the payments were regularly made thereafter for over two years by the Prudential Casualty Company, and its successor, the defendant Chicago Bonding & Insurance Company, receipts being given therefor by Henry Diebel and filed with the board, the last covering the 111th week being filed April 2, 1918.

On October 4, 1916, the industrial accident board wrote to the Prudential Casualty Company asking for a.final report of the accident, to which reply was made by A. D. Kehoe, its adjuster, inclosing the supplemental report as per request and stating, among other things, “This matter will not be contested further as it has evidently been settled satisfactorily to all parties concerned.” This final report, dated October 9, 1916, gave the name of the employer as “Spitzley & Widenman Construction Company” and was signed by “T. W. Widenman, position — general superintendent.” He was also president of that company, which, on July 12, 1915, had filed with the board its written acceptanee of the provisions of the workmen’s compensation law, signed by him as its president. He was also a witness at the hearing before the committee of arbitration on September 20, 1916, and produced the time books showing when Leon Diebel started to work, his rate of wages and number of hours employed. His explanation of the fact that about three weeks after the award was made against the Spitzley & Widenman Construction Company and Prudential Casualty Company he signed a final report of the accident as the construction company’s superintendent, giving the name of said company as the employer, is that the question of employment seemed to have been settled when he appeared in the room before the arbitration committee and he subsequently signed the typewritten final report in behalf of the company, "not appreciating the significance and as a matter of formality.”

The records of the industrial accident board show that the Southern Surety Company was insurer of the Spitzley & Widenman Construction Company, whose acceptance was approved by the board July 17, 1915; that on February 9, 1916, the Prudential Casualty Company filed a certificate, dated February 1, 19.16, stating T. W. Widenman was insured by it under the workmen’s compensation act; that his personal acceptance of the provisions of the law, also dated February 1, 1916, first reached the office of the board March 6, 1916, and was approved by the board March 20, 1916.

The petitioner, defendant Chicago Bonding & Insurance Company, which some time later took over and became the successor of the Prudential Casualty Company, continued payment of compensation pursuant to the award until after, as alleged in the petition, claimant Henry Diebel as administrator of Leon Diebel’s estate brought a common-law action in the circuit court of Wayne county against T. W. Widenman to recover damages for the death of said Leon, charging that he was then in the employ of Widenman who had not at that time filed his election to come under the compensation law, which led to discovery on investigation that the Prudential Casualty Company never was insurer of the Spitzley & Widenman Construction Company. Payments thereafter were discontinued and in September, 1918, a judgment was taken in the circuit court of Wayne county under applicable provisions of the compensation law for installments in default, followed by this petition to the board for relief; which is in effect an application for a rehearing, as no claim for review of the award was filed within the prescribed time therefor and the decision of the committee which was filed stood as the decision of the industrial accident board, under section 8, part 3, of the act (2 Comp. Laws 1915, § 5461).

The major key of defendants’ reason for relief seems to sound in. equity, asserting “that the entire proceedings from the very outset, that is. from the hearing before the arbitration committee down to the time of stopping of compensation, was in error and a mistake on the part of all parties concerned,” which it is urged the court can and in justice should correct. It is also urged as a legal proposition that the committee of arbitration which made the award had no jurisdiction over the Prudential Casualty Company, because, as we gather from the argument, it was not in fact surety for the defendant construction company and, therefore, as to it, not under the jurisdiction of the workmen’s compensation law or its administrative board; which it was the duty of the board or its committee to ascertain before proceeding to determine the rights of the parties; while it is submitted as—

“very evident that this committee did not make the proper inquiry or investigation; if they did the very first thing they would have discovered would have been that the proper insurance company was not named in that award. This arbitration committee is presumed to determine these matters on a fair and impartial basis and if they find the claim is not made against the proper employer or proper insurance company it is their duty to so report it, and any other action on their part would not be in accordance with their duty and powers and would therefore be illegal.”

If anyone knew who was young Diebel’s employer at the time of his death, and whether the Prudential Casualty Company was insurer for the Spitzley & Widen-man Construction Company, it would seem Widenman and those two companies, or their proper officials, had that knowledge. We are not cited to any provision of the statute or rule of law imposing upon the arbitration committee or accident board the duty of investigating under the presumption those before them as respondents did not know, and must be advised by them in that particular. The Prudential Casualty Company took upon itself the initiative in regard to this accident under the compensation law, by filing report of it with the board as required in such cases. It thereafter without notice to the contrary, protest or explanation, assumed to represent either Widenman or the construction company as an insurer, whenever occasion arose in the matter. It filed two inconsistent reports, the first naming Widenman and the second the Spitzley & Widenman Company as employer. It at first negotiated unsuccessfully to adjust the matter of compensation with plaintiffs. When it, as insurer, and the construction company were together proceeded against for compensation under the law it raised no question as to form of the proceeding or proper parties and joined actively in the arbitration, selecting one of the three arbitrators to represent it, as the law permits a respondent to do. It thereafter advised the accident board there would be no farther contest as the matter was evidently settled satisfactorily to all concerned and filed no claim for review. '

Whatever mistake or misunderstanding there may have been on the part of defendants cannot be imputed to plaintiffs or urged as mutual, for on first participation plaintiffs’ counsel wrote the board that his client’s son was killed “while in the employ of the Spitzley & Widenman Construction Company,” and having decided to proceed against the construction and Prudential companies, so proceeded from the beginning and entitled the papers he filed and served as a claim against them, which was consistently pressed and maintained to final award.

For disposition of this writ it is not deemed necessary to pursue suggested theories or conjectures in explanation or imputation of the causes or motives which may have resulted in the situation from which relief is now asked. We do not disagree with the conclusion and finding of the industrial accident board that the Prudential Casualty Company could and did waive possible objections as to parties, and conceded plaintiffs’ claim that it was jointly liable with the construction company.

Aside from that aspect of the case we conclude that, the injured party being dead, the award was clearly a final order and, as before suggested, this petition is in its legal import but an application for a rehearing which when filed, the accident board lacked jurisdiction to entertain under the recent holding of this court upon that subject in Pocs v. Buick Motor Co., ante, 591.

The order of the industrial accident board herein will stand affirmed.

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


author: Fellows, J.

text:
    COLLINS v. THE ALBERT A. ALBRECHT CO.
    1. Master and Servant — Workmen’s Compensation Act — Discretion ox Board to Extend Time eor Appeal on Proper Showing.
    A showing that, through some oversight, no copy of the award of the committee on arbitration, in proceedings under the workmen’s compensation act, was sent to defendants’ attorneys, although it is a well-known and established custom of the board promptly to send one to the parties, to the insurance company carrying the risk, and to the attorneys for the parties, that as soon as defendants’ attorneys learned of the award they promptly applied for an extension of time in which to perfect an appeal, held, sufficient to invoke the discretion of the board, under part 3, § 8, of said act, upon sufficient cause shown, to grant such extension, and the board was in error in holding that it was without discretion in the matter.
    2. Same — Custom ox Board — Right to Relv on — Question eor Board.
    As to whether defendants had the right to rely upon said custom of the board and assume that when they received notice of the award their attorneys also received the same notice, and would properly protect their rights, held, primarily a question for the board.
    Certiorari to Industrial Accident Board.
    Submitted October 17, 1919.
    (Docket No. 69.)
    Decided December 23, 1919.
    Alex. Collins presented his claim for compensation against The Albert A. Albrecht Company for injuries received in defendant’s employ. From an order denying a petition for an extension of time to perfect an appeal from an order awarding compensation, defendant and the General Accident, Fire & Life Assurance Corporation, Limited, insurers, bring certiorari.
    Reversed, and order vacated.

      Kerr & Lacey, for appellants.

      Douglas, Daman, Barbour & Rogers, for appellee.
   Fellows, J.

On December 10, 1918, Deputy Commissioner Ora E. Reaves, acting as a committee of arbitration, other arbitrators being waived, heard the testimony offered by the parties upon applicant’s claim. He did not at this time announce or make his finding or award or fix a definite date when he would do so. On December 12th he made an award in favor of applicant. It is a well known and established custom of the board, and a commendable one, to promptly send to the parties, to the insurance company carrying the risk, and to the attorneys for the parties, true copies of the award. In this case through some oversight no copy of the award was sent to defendants’ attorneys and they did not learn of the award until January 8, 1919. They then promptly filed "a petition for an extension of the time in which to appeal the case. The board declined to exercise its discretion in the matter. It is somewhat doubtful from the findings filed whether this result was reached upon the theory that the board had no power or upon the theory that no facts were stated upon which the board could act. In its ultimate findings the board found:

“(a) That under the conditions of this case it has no power to grant an extension of time to the respondents during which they might appeal.
“(b) That if the industrial accident board had the power in this case it would exercise its discretion to grant an extension of time, and if it believed it had the power to grant an extension of time it would do so.”

In its opinion, however, there is some language indicative of the view that no facts had been presented authorizing it to act. We are, therefore, not confronted with the question of whether, upon the admitted facts, the board has abused its discretion or whether it should or should not grant such application. What we shall here say should not be regarded as any intimation on that subject as it is not before us. We are solely considering the question of the power of the board; and in view of the ambiguity contained in the findings shall consider its power generally and upon the facts in the instant case.

Section 8, part 3, of the act (2 Comp. Laws 1915, § 5461), provides:

“The committee of arbitration shall make such inquiries and investigations as it shall deem necessary.. The hearings of the committee 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 a 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.”

This court had this provision of the act before it in Brunette v. Mining Co., 197 Mich. 301, and Kalucki v. Foundry Co., 200 Mich. 604. In both cases this court held that the board had the power, the discretion, to grant an extension of time. In the Brunette Case, we held that the discretion of the board had not been abused, while in the Kalucki Case we pointed out that the provision did not give the board the arbitrary power to extend the time fixed by the statute.

We think the facts set up in the petition are sufficient to authorize the board to exercise its discretion. What that action should be, we do not intimate. Parties, insurance companies, and attorneys having business before the board are familiar with the practices and customs of the board. The universal custom of the board was to notify not only the parties, including the insurance companies, but also the attorneys appearing in the case. When the employer and its insurance company received notice of this, or any other award, they knew that,, under the custom of the board, their attorneys should also receive the same notice they did. Perfecting the appeal was a matter for the attorneys. It is not an infrequent occurrence that business men turn over to their attorneys all details in the conduct of litigation; and we cannot say, and it is not before us to say, that respondents here did not have the right to rely upon this custom of the board and assume, and have a right to assume, that when they received notice of the award their attorneys also received the same notice and would properly protect their rights. Primarily this question was for the board. Sufficient facts were before the board to authorize it to act upon, to use its discretion; this it declined to do, holding that it had no power, no discretion, in the matter. In this the board was in error. Respondents were entitled to a determination of the question based on the discretion of the board. This they have not had. For this reason the order of the board will be vacated and the case remanded for further proceedings not inconsistent with this opinion.

Bird, C. J., and Sharpe, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.


text:
    KENT COUNTY v. KRAKOWSKI.
    1. Principal and Surety — Bonds—Right of Injured Party to • Sue in Own Name.
    The bond of a public officer to faithfully perform the duties of his office is made for the benefit of any and all to whom he owes an official duty, and it is no longer required that actions upon such bonds be brought in the name of the obligee for the use and benefit of the party claimed to have been injured. 3 Comp. Laws 1915, § 12353.
    2. Evidence — Admissions—Confession—Admissibility.
    In an action against a defaulting public official and his surety jointly on his official bond, proof of his oral admissions to the prosecuting attorney of his defalcations and a written confession were admissible so far as he was concerned, where substantial facts beyond mere conclusions of law were included.
    3. Same — Admissibility Against Surety.
    Such admissions, being admissible against the principal, cannot be excluded, and, being admitted as against him, will generally be considered against the surety.
    4. Principal and Surety — Bonds—Clerk; of Court — Liability— Proof.
    While no recovery could be had upon the bond of a defaulting court clerk unless it was shown that the money was paid to him pursuant to some mandate of the court, it is not necessary .to show that the order was reduced to writing or recorded in the court journal.
    5. Same — Court Records — Neglect of Clerk — Secondary Evidence — Admissibility.
    While it is the general rule that an order of a court of record cannot be proved in a collateral proceedin'! otherwise than by a journal entry, yet the neglect of the clerk of the court to make the proper entries in regard to money passing through his hands would not bar other available evidence upon the subject, in an action against him and his surety on his official bond.
    Error to Kent; Brown (William B.), J.
    Submitted June 5, 1919.
    (Docket No. 45.)
    Decided December 22, 1919.
    Rehearing denied April 10, 1920.

      Assumpsit by the county of Kent against Alexander E. Krakowski, principal, and the Southern Surety Company, surety, on a bond. Judgment for plaintiff. Defendant surety company brings error.
    Affirmed.

      Jewell & Smith (John P. McCammon, of counsel), for appellant.

      Fred P. Geib and Cornelius Hoffius, for appellee.
   Steere, J.

This is a companion case with City of Grand Rapids v. Krakowski, ante, 483, in the particular that defendants and bond sued upon are the same, and reference may be made to that case for a general statement of the situation so far as relates to Krakowski’s official position, duties and delinquencies, the nature of the bond involved and the defendant insurance company’s relations with him as his surety. Krakowski held the office of clerk of the superior court of the city of Grand Rapids from January 1, 1912, to December 27, 1917, at which time discovered and admitted defalcations resulted in his removal from office and subsequent litigation to recover from him and his surety for such defalcations.

In connection with his oral confessions to the prosecuting attorney he wrote and signed the following:

“I, Alexander E. Krakowski, do hereby make the following confession:
“As clerk of superior court, about four years ago, I began taking money, consisting of fines and costs paid in to superior court, and converting them to my own personal use. The amount taken to the best of my knowledge is about $8,000.00, in addition to about $1,600.00 taken this year and not turned over to the county treasurer. That I also for the past 2% years did not turn over fees from civil cases, to the city treasurer.
“The money was used in purchasing a house and lot on land contract and furnishing the house — and spending freely.
(Signed) “Alex. E. Krakowski.
“Dated Dec. 27. 1917.”

This action was brought by Kent county to recover from Krakowski and the defendant insurance company, which furnished and signed his official bond, the sums of money which in his official capacity as clerk of the superior court came into his hands for fines, costs and estreated bail in criminal cases, and was not by him paid over to the county treasurer as required by law. The case was tried in the Kent county circuit court before a jury, resulting in a verdict in plaintiff’s favor for the sum of $8,913.30. The active defense was by the defendant surety company which urged many defenses both against the pleadings and proofs, among which were that the bond, even though good as a common-law obligation, did not comply with the statute and therefore action upon it could only be brought in the name of the obligee, for itself or the use and benefit of a party claimed to be injured; that Krakowski as clerk of the superior court of Grand Rapids was accountable only to the city, and any relations he bore to Kent county were but ex officio, not covered by his bond, and his surety therefore not liable for nonperformance of his duties in that relation; that no recovery could be had under the common counts, and there could be no recovery on the single special count because it counted upon several successive bonds and different terms of office. Numerous objections were interposed during the progress of the trial to the proofs offered and admitted to establish the many items of shortage included in the charge. In connection with a motion to strike out all testimony objected to and claimed incompetent defendant moved for a directed verdict both at the close of plaintiff’s testimony and at the conclusion of all the testimony, on numerous grounds, and particularly because the record furnished no competent proof of any order or orders by the court directing payment to Krakowski of any money charged against him in plaintiffs bill of particulars.

A bill of particulars was furnished defendant by plaintiff including a long list of claimed items of defalcations during Krakowski’s term of office with case, numbers, etc., to proving which much of the time of the protracted trial was devoted. A motion for a new trial was subsequently made in which the various items of defalcation submitted to the jury were classified into groups, and the sufficiency of proof in relation to each group was argued before the court, under objections made and preserved, briefly as follows: Those sought to be proved by admission of the docket Krakowski kept as clerk, showing fines and costs paid to him without proof of any record of an order of court in relation thereto; certain items which should have been stricken out because they were withdrawn on the trial or no proof of payment to the clerk was made; those in relation to which the court record contained nothing to prove an order of the court beyond a payment to the clerk, and where no attempt or offer was made to prove an order, probation cards, docket or journal entries or anything of like nature. The motion was lengthy, and contained some 30 claimed grounds why it should be granted.

The court filed a written opinion reviewing the motion, in which it found that amongst the many items submitted to the jury and apparently included in the verdict there were certain specified items aggregating $408.35, not supported by competent proof sufficient to justify their submission, and the verdict was excessive to that amount. Overruling defendant’s other contentions, the court denied its motion for a new trial on condition that plaintiff remit from the judgment the excess so found, which was done. Defendant duly filed abundant exceptions to the order of the court denying said motion, and brings the case to this court for review on bill of exceptions containing 124 assignments of error, many of which we regard as either disposed of in the previous case involving the same bond, or not of a nature demanding discussion.

The superior court of Grand Rapids is a court of record with a seal, having within territorial limits of the city like general powers and concurrent jurisdiction with the circuit court of Kent county, with original and exclusive jurisdiction of all prosecutions in behalf of the State for crimes and offenses arising under State laws committed within the corporate limits of the city, except those cognizable by the police and justice’s courts. While other litigation arises and is entertained in that court, its exclusive jurisdiction within the city of criminal cases triable in a court of record results in much of its time being occupied in entertaining and disposing of criminal cases under the State law by trial or otherwise, as to which the powers and duties of the court and its officers are the same as in the circuit courts of the State generally and controlled by the same State laws. Without further detail, it is sufficient upon that subject to cite the act creating said court, found in 3 Comp. Laws 1915, § 14682 et seg., and Attorney General v. Renihan, 184 Mich. 273.

Neither is it necessary to now quote from, or discuss the form of and conditions in the bond involved, which is the same passed upon in City of Grand Rapids v. Krakowski, supra, where it is reviewed and construed. Its conditions for the faithful performance of the duties of his office embraced the duty imposed upon him as clerk of the court which he served, as it would the clerk of any circuit court, to pay over to the county treasurer within 20 days after its receipt any money received by him in his official capacity under order of the court, or pursuant to statute, on account of any recognizance, fine, penalty or forfeiture in criminal cases brought under the State law in that court. Sections 13431-13433, 3 Comp. Laws 1915.

Such bond of a public officer to faithfully perform the duties of his office is made for the benefit of any and all to whom he owes an official duty, and it is no longer required that actions upon such bonds be brought in the name of the obligee for the use and benefit of the party claimed to have been injured. Section 12353, 3 Comp. Laws 1915, with certain qualifications not relevant here, requires that:

“Every action shall be prosecuted in the name of the real party in interest, * * * Provided, That any person to whom a cause of action shall accrue upon the bond of any public officer, required to give bond to the people of this State, may prosecute a suit for recovery on said bond in his own name: Provided, further, That actions upon any bond, contract or undertaking lawfully made with any officer of this State, or of any county, township, school district, city or village, or to enforce any liability or any duty enjoined by law to said officer, shall be brought in the corporate name of the body for whose benefit such contract was made, or such liability or duty enjoined.”

Error is urged upon the court allowing proof of Krakowski’s oral admissions to the prosecuting attorney of his defalcations and written confession above quoted, which it is said were “directed to a conclusion of law,” evidential of no facts upon which liability could be based, and necessarily prejudicial to the defense. Krakowski was a joint defendant in the case represented on the record by the same counsel as the surety company. His admissions included substantial incriminating facts beyond mere conclusions of law and were certainly admissible so far as he was concerned.

“Where the principal and surety are sued jointly, the admission of the principal being competent against himself cannot be excluded, and being admitted as against him, will generally be considered against the sureties.” Stearns on Suretyship (2d Ed.), p. 300; citing Magner v. Knowles, 67 Ill. 325; Amherst Bank v. Root, 2 Metc. (Mass.) 522.

On the trial it appeared that Judge William J. Stuart, judge of the superior court during the period under consideration, was deceased. The records of the court were found incomplete in the great majority of cases in the particular that no direct orders had been entered in the journal and signed by the judge pronouncing sentence and directing respondent to pay fines, etc. Defendant’s counsel made seasonable objections in various forms to substantially the entire line of evidence pursued by plaintiff, under the general propositions that no liability could arise for any money which came into Krakow’ski’s hands except it was received under order of the court, and that an order of a court of record cannot be proved in a collateral proceeding otherwise than by a journal entry, of which they say:

“No attempt was made on the part of plaintiff to show that the judgments which formed the foundation of its claim were ever in existence and destroyed so that secondary evidence was admissible to prove them,”
—to which statement plaintiff’s counsel reply that it produced and offered in evidence all available court records and a written order signed by the judge requiring the defendant to pay fine and costs was produced in many cases, but where such could not be found secondary evidence was produced.

Early in the trial of the case counsel for plaintiff broadly made the claim that under his statutory duties any money received by Krakowski as a public official was public money as to him, and the law obligated him in the performance of an official duty to care for and pay it over to those lawfully entitled to it, in default of which he and his. bondsmen were liable; but on intimation from the court of an impression that the bare fact the clerk received the money without any evidence it came into his hands by some order of the court would not be adequate for recovery against the surety, plaintiffs counsel stated their position to be that there was a court order in each case but because entered on certain cards by the judge some of them appeared to be lost, and:

—“we are entitled .at least to go to the jury on the question of whether there was a court order originally. We have introduced the docket showing that there was a criminal case against the respondent and that some action was. had in court concerning it and that money was paid in to the clerk for some purpose. We claim it would not have been paid to the clerk unless there was a court order. That the fact that there was such a case pending and money paid in makes a prima facie casé, and the surety company must show as a defense that it was a mere private matter.”

It was shown that Krakowski kept some of the court records in loose leaf form, or by a card system. In explanation of the orders entered upon cards, it was shown to have been a practice followed by Judge Stuart in State criminal cases disposed of under the probation law, and by his successor, to use what are called “probation cards,” containing the original order as pronounced to the respondent placed on probation, or a copy thereof, imposing costs and a weekly payment to a certain amount to be paid to the court through its probation officer, who paid it in as received to the judge or clerk of the court, taking receipt therefor and keeping an account in that connection. Of this Mr. Hyde, the court’s probation officer, testified:

“All the money that he (Krakowski) signed for here was paid over to him by me, and was money that I had collected from men on probation under order of Judge Stuart. Exhibit 5 which you show me contains copies of the original cards that the probationer is given at the time he is placed on probation. The cards contain an order, signed by Judge Stuart, with reference to the probationer, and that card is the basis for the account that I keep and for the moneys that I collect. * * * The judge signs the card that the probationer gets. The probationer carries it with him. * * * I have some cards on which I copied off the original cards, but they differ from the cards kept by the superior court. Both my record and the court’s record are taken from the original which is signed by the judge and which the probationer has.”

Preparatory to this case the Kent county board of auditors engaged a public accountant to go over all available records bearing upon Krakowski’s shortage to the county, and plaintiff’s bill of particulars was. prepared from the results of his research, which started by listing the State criminal cases on the court docket and following each case out in detail through all available books and records of the court, and its officers, in quest of any written evidence of money received or paid out by the clerk in connection with the case. The various books and documents used by the accountant and relied upon by plaintiff were produced in evidence.

The scope of the detailed inquiry, purpose and nature of the available evidence produced is well summarized by the trial court as follows:

“Plaintiff caused to be produced in court and offered in evidence various books of record kept by the officers of the court, most of them having been kept by defendant Krakowski or under his direction. These books included the docket and journal of the court, the clerk’s blotter, the clerk’s cash book, the clerk’s ledger, the clerk’s receipt stubs, books of account kept by the probation officer of the court, Mr. J. E. Hyde, a large number of probation cards, so-called, containing the original order, or a copy of the original order, made with reference to persons put on probation, and a large number of canceled checks showing payment by William J. Stuart, former judge of said court, to said clerk of various amounts designated upon said checks as costs, or fines, in certain cases named upon said check. These books and documents were offered, and were received by the court, for the purpose of establishing the total amount of moneys received by defendant Krakowski as clerk during his said term of office, which he was required, under the laws of the State, to turn over to the county of Kent. No items were claimed by the plaintiff to be recoverable by it except fines, costs and estreated bail which the jury should find from the evidence had been paid to the clerk of the court in cases handled during said clerk’s term of office in which the people of the State of Michigan were proceeding against a respondent under the criminal laws of the State. Testimony was also offered by plaintiff showing the total amount paid by defendant Krakowski to the county treasurer during Krakowski’s several terms of office on account of such items and such sums were credited to him.”

The trial court in submitting the case plainly instructed the jury that no recovery could be had upon any item of plaintiff’s claim unless it was shown that the money was paid to the clerk pursuant to some mandate of the court, but held that under the circumstances of the case it was not imperative for recovery that it be proven the order was reduced to writing, or recorded in the court journal, saying in explanation that while it was for the jury to determine from the admitted testimony whether or not each item claimed was paid to the clerk under an order of the court, yet:

“If a respondent were before this court at the present time and the court should, upon a plea of guilty of that respondent, say to him, ‘You are fined $100 fine and $10 costs, and upon your failure^ to pay that sum immediately, you will be confined in the Kent county jail for ninety days,’ and if the respondent should step up immediately to the clerk and pay him $110, the full amount of the fine and costs imposed, he would be discharged. * * * Under the verbal, spoken order of the court, if the money was paid to the clerk, it would be paid officially and it would be as essentially and finally the money of the county as though the respondent were required to wait until the next day and have a written order duly placed upon the journal and signed by the court.” Also,—
"If there are any items in this case which are supported by no testimony as to an order of the court or the payment of the money other than the mere bare or naked fact that a credit or charge is made upon the cash book of the clerk, then that is not sufficient to charge the bonding company with liability for such item. There must be other and additional testimony tending to show and establish the order of the court that the money should be paid, in addition to the mere fact that certain money was paid, before you can find the bonding company liable for such amount or item.”

On the theory that the admitted evidence was competent to raise an issue of fact for the jury upon whether the items in question were received pursuant to an order of the court, it may be said that the charge of the court in explaining the nature of the case, the principles of law involved, and the duty of the jury, was fair, clear and ample.

Only such items received by Krakowski were permitted, or claimed by plaintiff, as were in some manner shown connected with or based on an actual criminal case under the State law found entered upon the court docket, at some time entertained and acted upon by the court while he was clerk and in charge of its records; and each item was sustained by some written proof, mostly in his handwriting, indicating that it had been received by him as clerk of the court and the official character of the transaction, sufficient for a fair inference or presumption that it was paid and received as public money pursuant to some order of the court, which it was the duty of the clerk under the statute to pay to the county treasurer.

In 10 Enc. of Evidence, p. 730, it is stated as a general proposition: “The official records of the clerk of a court are competent evidence of his acts,” and at page 780, “when the record has not been extended or made up, the minutes and docket entries and files of the case are admissible to prove the proceedings of the court.” To like effect, in the early case of Lowry v. Cady, 4 Vt. 504, recognizing that docket minutes, etc., were not the best or proper evidence where a judgment or order was of record, and should not be received unless there was special and good reason for “dispensing with the usual and appropriate evidence,” the court said: “In this case, as the judgment was not recorded, the court was justified in receiving other evidence of the same than an exemplified copy.” In Cooper v. People, 28 Colo. 87 (63 Pac. 314), it was held that books kept by the clerk, though not expressly authorized by statute, are prima facie evidence of moneys officially received by him as thereby indicated, binding both upon him and his sureties.

While the general rule of evidence contended for by defendant is not to be questioned in its proper application, the manifest, impelling reason for dispensing with a technical demand for “the usual and most appropriate evidence” in the instant case is that defendant Krakowski, whose duty it was to make the proper record which would furnish such evidence, failed to do so. It would be a strange rule of evidence which under such circumstances protected a defaulting clerk of a court of record and his surety, and rewarded his neglect to properly enter the proceedings of the court upon its records, by blocking all other available evidence upon the subject because the records he should have made but did not, and which would have been the best evidence, are not in existence.

Any want of certainty in the proofs is manifestly attributable to his neglect of duty, which ought ^otto operate to protect him and his surety where other evidence, direct or inferential, is available. The rulings upon admission of testimony complained of are not inimical to a fair interpretation and application of recognized rules of evidence.

The following reflections by Justice Campbell in the early case of People v. Treadway, 17 Mich. 480 (involving an action against a defaulting county clerk and his surety), are not inappropriate here:

“If such an officer is to be regarded as acting unofficially whenever he violates his duty, it is not easy to see what object there can be in requiring official bonds. They are not meant to be mere formalities, and they can only be made to secure against the consequences of some sort of misdoings. Their object is to obtain indemnity against the use of an official position for wrong purposes, and that which is done under color of office, and which would obtain no credit except from its appearing to be a regular official act, is within the protection of the bond, and must be made good by those who signed it.”

The judgment will stand affirmed. j

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

The late Justice Ostrander took no part in this decision.