author: Bird, J. Fellows, J.

text:
    BYLE v. GRAND RAPIDS BLOW PIPE & DUST ARRESTER CO.
    1. Master and Servant — Workmen’s Compensation Act — Parties — Actual Parties — Admissions—Estoppel.
    Where an application for compensation for the death, of a son, under the workmen’s compensation act, was filed by the father only, but during the preliminary proceedings thereto it was understood and acknowledged by the insurer that claimant was acting on behalf of himself, his wife, and minor children, all of whom were partial dependents, the industrial accident hoard properly entered an order continuing the weekly payments to the wife and children upon their petition, after the death of the father, under part 2, § 7, of said act, although the original award was entered in the name of the father only; defendant being estopped from now denying what it heretofore admitted to be true.
    2. Same — Certiorari—Pasties—Estoppel.
    On certiorari to review said order, defendant cannot take the position that the claim of the mother and her children was not passed upon in the original proceedings, where it appears that the father was accepted by it as representing all of the dependents.
    3. Same — Appeal—Certiorari—Amount of Award — Estoppel— Review.
    Nor can defendant raise the question of the amount of said award, where it appears that it withdrew its appeal from the award of the arbitration committee to the full board wherein it claimed the amount was too high, and consented to an affirmance of said award.
    Sharpe, Steere, and Fellows, JJ., dissenting.
    Certiorari to Industrial Accident Board.
    Submitted October 30, 1919.
    (Docket No. 67.)
    Decided January 6, 1920.
    Jacob Byle presented Ms claim for compensation against the Grand Rapids Blow Pipe & Dust Arrester Company for the accidental death of his son in defendant’s employ. From an order awarding compensation to Minnie Byle and others, partial dependents of the son, upon the death of the father, defendant and the Fidelity & Casualty Company of New York, insurer, bring certiorari.

      On construction and effect of workmen’s compensation acts generally, see notes in L. R. A. 1916A, 23; L. R. A. 1917D, 89.

      Affirmed.

      Angelí & Turner, for appellants.

      Dilley, Souter & Dilley, for appellees.
   Bird, J.

Certiorari to the industrial accident board. Minnie Byle, the petitioner in the present proceedings, is the mother of Harry Byle, who, on the 8th of November, 1915, met with a fatal accident while in the employ of the Grand Rapids Blow Pipe & Dust Arrester Company. For some time after the death of the said employee, negotiations were carried on between the parents of said Harry Byle and a representative of the Fidelity & Casualty Company of New York, the insurer of said employer, which eventually resulted in the filing of a notice and application of adjustment of the claim on February 2, 1916. This application was signed and filed by Jacob Byle, the father of the deceased. An award was made to the applicant of $4.06 per week for 300 weeks.

After the award was reviewed before the full board the respondents requested leave to withdraw the appeal and an order was entered, affirming the award. Compensation was duly paid by the defendants under this award to Jacob Byle until July 14, 1918; and respondents, being at that time advised of the death of said Jacob Byle, discontinued compensation payments. On October 26, 1918, a petition was filed with the industrial accident board on behalf of Jacob Byle and Minnie Byle, claimants, praying that the award of the committee of arbitration against the respondents be modified so as to include the petitioner, Minnie Byle, and her four minor children, as dependents, and that the respondents be ordered to resume and continue payments on the original award until the 300 weeks’ compensation has been paid. The defendants filed an answer, claiming that the award as entered by the committee of arbitration was correct in finding that Jacob Byle was the sole dependent and denied the right of the petitioner to maintain this proceeding, insisting that the board was without legal authority to make the order prayed for. An order, however, was duly entered by the board on April 4, 1919, in accordance with the prayer of the petitioner.

The appellants now claim, as stated in their brief, that the board erred in said order for the following reasons:

“(1) At the time of the death of the employee, Harry Byle, his father, Jacob Byle, was the only person dependent on the wages of deceased within the provisions of the workmen’s compensation act.
“(2) The industrial accident board was without legal authority to modify the award of the committee of arbitration in the manner set forth in its order of April 4th, 1919.
“(3) If, as a matter of fact, there were other dependents and the board had authority to modify the award in the manner stated, it should have corrected the error in the amount of the original award and fixed the weekly compensation at two dollars and eighty-one cents ($2.81) per week.”

The industrial accident board found that, while neither the wife nor any person on behalf of the children had signed the application, it sufficiently appeared from all the correspondence, proceedings, and testimony that Jacob Byle, in signing this application, was acting for himself and his wife and all of his children, even though he only signed it himself. To show that the respondents recognized Jacob Byle and his wife and all of his children to have been dependent upon the deceased, we quote the following from the correspondence set up by the industrial accident board in its findings:

“* * * On November 30, 1915, the respondent insurance company wrote to Jacob Byle, saying in part:
“ * * the information we desire is upon the question of how much you and your wife were dependent upon the earnings of your son, fatally injured November 8.’
“On December 17, 1915, said insurance company wrote a letter to the industrial accident board, saying in part:
“ * * We have endeavored repeatedly to effect a settlement in this case which will have to be on the basis of compensation to partial dependents as this employee left no total dependents.?
“On January 3, 1915 (1916), said insurance company wrote the industrial accident board, saying in part:
* * the partial dependents who survive him are not entitled to more than $1.50 per week for a period of 800 weeks. In other words, if this employee kept $9.00 out of his $12.00 weekly wage for himself and turned over the balance to his parents, his partial dependents would be entitled to 50 per cent, of that amount, or $1.50 per week.’
“At the same time the Fidelity & Casualty Company wrote a letter, a portion of which is last above quoted, ^ it sent a supplemental report of the accident to the industrial accident board. The following is a true copy of the supplemental report:
“Schedule 3 is at this point quoted in full.
“The foregoing supplemental report shows that at that time the insurance company regarded the father and mother and all of the cnildren as dependents upon Harry Byle, deceased. On January 10th, 1916, the insurance company wrote Mr. Byle, among other things:
«** * * it appears from my investigation' that you, Mrs. Byle, and the rest of the family were not dependent upon your son’s wages to the extent of more than $3 per week.’
“On February 1st, 1916, the insurance company wrote Mr. Byle, in part, as follows:
“ ‘Referring to the conversation between your good self and the writer, as respects the amount due you as partial dependents in a settlement * * * or must advise if this is not acceptable to you and the other partial dependents of Harry Byle, deceased, etc.’ ”

After the award was made the respondents objected to the amount thereof and claimed a review before the full board, as above stated, and filed a brief in which it was said, among other things, as was also set forth in the findings of the industrial accident board:

“The parents, Jacob and Minnie Byle, have made claim for compensation against the respondents for the death of their son, on the ground that at the time of his death, they were partially dependent on his earnings for their maintenance and the support of their home in Grand Rapids, it being claimed that deceased turned over to his. parents his wages of $12 per week and in return, received his board, room, clothing and $1.50 per week spending money. After the expenses of deceased’s maintenance and support had been paid, the parents kept the balance to run the home and support the other members of the family.
“On March 6th, 1916, a committee on arbitration was formed, heard the testimony introduced and awarded compensation for a period of 800 weeks at $4.06. per week, for which award, respondents have appealed to this honorable board on the grounds set forth in the claim of review filed March 9th, 1916, and to which reference is hereby made. * * *
“On the question of the amount it cost deceased’s parents to clothe and support him, as well as showing the extent of their dependency on his wages , and contributions, the testimony is clear and conclusive. * * *
“The weekly sums expended in support and maintenance of deceased, total $3 per week which deducted from the $10.60, average weekly wage, leaves $3.60 per week out of deceased’s earnings upon which the parents and family were dependent.
“This, therefore, would entitle the claimant to 300 weeks’ compensation at $2.80 per week. * * *
“It resolves itself into a question of fact as to precisely what it costs the claimants to support their son. * * * thus leaving $5.60 per week upon which the parents were dependent and entitling them to compensation at $2.80 per week, for 300 weeks.”

The respondents thereafter, however, withdrew their claim for review and the full board, as a matter of course, affirmed the report of the committee of arbitration and the board now says that, if the contest had been carried on to the end, it is very possible that the award would have been amended so as to cover the mother and minor children.

Counsel for claimants now contend — and the industrial accident board sustained the contention — that the respondents, having consistently and repeatedly admitted that Jacob Byle was not the sole claimant and dependent in the case, but that the other claimants were partially dependent upon Harry Byle, deceased, they ought to be estopped from now claiming that the things they have consistently admitted are not true. Mr. H. Dale Souter, who was one of the arbitrators representing the respondent insurance company, testified that in accordance with his understanding, the award was made to the father for the family. The letter of February 1, 1916, an extract of which is set up above, in the findings of the industrial accident board, clearly shows that they at that time recognized that the claimant was making the claim, acting for himself and on behalf of the other dependents. Having made these admissions, and after having treated the claimant as acting for himself and the rest of his family, the respondent should not now be heard to take a different position than that which it assumed before the arbitration committee. We are, therefore, of the opinion that there is no merit in the first contention of the appellants. See Roach v. Kelsey Wheel Co., 200 Mich. 299.

The second claim of counsel is based upon the contention that if the claim of the present petitioner was not presented and passed upon by the committee of arbitration, it cannot be now heard and determined upon a petition of this nature, but it must be heard and determined in accordance with the proceedings prescribed by the workmen’s compensation law, and, as far as the present petitioner’s claim is concerned, the defendants have never had their day in court. This claim, it seems to us, is also answered by what is set forth above, it appearing conclusively that the respondents treated Jacob Byle as a petitioner acting for the present petitioner and the dependent children. It is very apparent that there was no reason, under the circumstances as they arose, for the board to apportion the award. Both the committee of arbitration and the full board, on review, had a right to accept the respondent’s assurances and treat the father as a representative of all of the dependents under the circumstances of this case.

Section 7 of part 2 of the workinen’s compensation law (2 Comp. Laws 1915, § 5437) provides:

«* * * jn cage 0f the death of one such dependent [a person who has been determined to be a dependent as of the date of the accident to the employee] his proportion of such compensation shall be payable to the surviving dependents pro rata. Upon the death of all such dependents compensation shall cease.” * * *

So that, in accordance with this statute, unless all the dependents of Harry Byle were deceased, the appellants having recognized them all as claimants, they were not legally justified in stopping payment of compensation and it was certainly within the power and jurisdiction of the industrial accident board, on petition being made, to order the respondents to continue to make compensation in accordance with the law above set forth.

With reference to the last claim of the appellants’ counsel, it is only necessary to say that no such claim as is now being urged was made before the board on the hearing. It was neither set forth in the answer nor in the supplemental answer nor was it assigned as error in the petition for certiorari. An application for review of the committee’s award on this ground was voluntarily withdrawn by the appellants, who consented to an affirmance of the amount of the award by the board. Appellants are in no position, in view of the foregoing, to urge this question now.

The order of the industrial accident board which is before us for review is hereby affirmed.

Moore, C. J., and Brooke and Stone, JJ., concurred with Bird, J.

Fellows, J.

{dissenting). In Poes v. Buick Motor Co., 207 Mich, 591 (handed down December 22, 1919), we held, that there was no provision either in the law or the rules of the industrial accident board permitting the board to grant rehearings. On the same day we handed down an opinion in Diebel v. Construction Co., 207 Mich. 618, to the same effect. In the latter case it was claimed that compensation was being paid and was required to be paid by the wrong insurance company. In the instant case an award was made by the committee of arbitration on March 6, 1916, to Jacob Byle, as dependent; he was the sole applicant; an appeal was taken from this award but was abandoned, and on May 19, 1916, an order was made by the industrial accident board affirming such award. The proceedings here under review amount to a rehearing and a finding that Jacob Byie was not the sole dependent as found and fixed by the award of March 6, 1916, but that others were also dependent. However equitable it may be to re-open this case and make a new and different award from the one entered some three years before, I do not think it may be done consistent with our holding’s in the cases cited. For this reason I dissent from the conclusion reached by my brothers.

Steere and Sharpe, JJ., concurred with Fellows, J.

Justice Kuhn took no part in this decision.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    BOARD OF EDUCATION OF THE UNION SCHOOL DISTRICT OF THE CITY OF OWOSSO v. GOODRICH.
    1. Statutes — Construction — General Act Inconsistent With Local.
    That a general act will not repeal a special or local inconsistent act on the same subject is not a rule of positive law, but only one of the rules of construction recognized as raising such presumption, refutable and with the limitation that it must yield to an otherwise manifest legislative intent appearing in the language of the act, which is to be construed in the light of its subject-matter and purposes, other existing legislation upon the same subject, the relative times of their enactment, with all circumstances or related matter proper to consider for the purpose of discovering the legislative intent.
    2. Schools and School Districts — Bonded Indebtedness — General School Laws Supercede Local Act.
    The provisions of 2 Comp. Laws 1915, § 5712, authorizing any school district by a majority vote of its qualified electors to bond for an amount not exceeding 10 per cent, of its assessed valuation, held, applicable to tbe Union School District of the City of Owosso, in view of Act No. 368, Laws 1871, creating said district, providing that it should have all the powers and privileges conferred upon school districts by general law in addition to those conferred by the local act, although by said local act its bond limit at that time was fixed at $50,000, which was the same as then provided in the general law.
    3. Statutes — Construction bt Pubiic Officers.
    While not controlling, the practical' construction given to doubtful or obscure laws in their administration by public officers and departments with a duty to perform under them is taken note of by the courts as an aiding element to be given weight in construing such laws, and is sometimes deferred to when not in conflict with the indicated spirit and purpose of the legislature.
    Certiorari to Shiawassee; Collins (Joseph H.), J.
    Submitted January 18, 1920.
    (Calendar No. 28,991.)
    Decided January 28, 1920.
    Mandamus by the board of education of the union school district of Owosso to compel William R. Goodrich, secretary of said board, to give proper notice of a special meeting and election. From an order granting the writ, defendant brings certiorari.
    Affirmed.

      Van R. Pond, for appellant.

      Pulver & Bush, for appellee.
   Steere, J.

The union school district of the city of Owosso was created by Act No. 368, Laws 1871. It succeeded to the rights, duties, liabilities, property and territorial limitations of a former union school district and embraces the present city of Owosso with some outlying contiguous territory. The initial section of the local act creating it provides:

“Section 1. The People of the State of Michigan enact, That the territory now embraced within fractional union school district number one, Owosso and Caledonia, shall constitute a single school district, and shall be known and designated as 'Union school district of the city of Owosso,' and such district shall have all the powers and privileges conferred upon school districts by general law, and, in addition thereto, such powers and privileges as are hereinafter conferred by this act.”

Section 5 of the act provides that the qualified electors of the created district may—

“by a majority vote of those present and voting at any annual meeting, or at any special meeting called for such purposes, raise by tax upon the taxable property in said district such sum or sums as shall be necessary to purchase lots, build school houses and furnish the same, provide apparatus and fuel, establish and maintain a district library, * * * authorize the board of trustees to borrow money, on the bonds of the district, for such terms of years, and at such rate of interest, not exceeding ten per cent, per annum, as the meeting may direct, for the purpose of building school houses and making additions thereto, or for the payment of bonds to become due: Provided, That such indebtedness shall at no time exceed fifty thousand dollars.”

At a regular meeting of the board of education of said district held October 28, 1919, a resolution was adopted calling a special meeting of the electors of the district for the purpose of voting upon the question of borrowing $200,000 on bonds of the district for the purpose of erecting and properly equipping a proposed school building which the board determined was a necessity. To that end the board also by resolution directed its secretary, defendant Goodrich, to prepare a requisite number of printed ballots for said election and give proper notice of time, place and purpose of such meeting as required by law. This defendant declined to do, filing written, reasons for his refusal.with the board, which were in brief that the bonded indebtedness of said district was limited by the local act creating it to $50,000, four-fifths of which amount had already been issued.

Application was then made by the board to the circuit court of Shiawassee county for a writ of mandamus to compel Goodrich to give proper notice of the special meeting and election to be held, as provided by said resolution, on the 6th of November, 1919. An order to show cause was issued and answer filed by defendant. Hearing was duly had upon the issue raised and a peremptory mandamus was issued by the circuit court requiring defendant to comply with the resolution of said board; also providing that as the time set for such special election had passed defendant should comply with any further order or resolution of the board fixing a later election day. Defendant then removed the proceeding to this court for review on certiorari to mandamus.

All resolutions, records and other proceedings necessary to clearly present the question are carefully prepared and in regular legal form. No facts are in dispute and no objection made to the regularity of any steps taken, aside from defendant’s denial of the district’s right to increase its bonded indebtedness beyond the limit specified in the proviso to section 5 of Act No. 368.

It is admitted the present bonded indebtedness of the district amounts to $40,000. Under the proviso in section 5 of the act, further bonded indebtedness would be limited to $10,000 and the single question of law involved is whether or not section 5712, 2 Comp. Laws 1915, operates to enlarge the district’s power to bond as proposed. The trial court was of the opinion that it did under the rulings by this court in Public Schools of Muskegon v. Smith, 173 Mich. 570, and Board of Education of Traverse City v. Straub, 182 Mich. 665.

Defendant relies upon and cites numerous authorities to sustain the proposition that a general affirmative act without expréss words of repeal does not as a rule operate to repeal a special or local act on the same subject even though the two are inconsistent and the terms of the general law are broad enough to include the inconsistent provision embraced in the special act. As to the Muskegon and Traverse City Cases it is urged that the important question there involved was the power of the districts to issue bonds, for which no provision was made in the special acts creating, them, while in the instant case the power is expressly conferred, with a limitation, and the reasoning of the court in those cases, holding that the general school laws gave the districts such right, has no application here.

The rule which defendant invokes to the effect that a general act will not repeal a special or local inconsistent act on the same subject is not a rule of positive law but only one of the rules of construction recognized as raising such presumption, refutable and with the limitation that it must yield to an otherwise manifest legislative intent appearing in the language of the act which is to be construed in the light of its subject-matter and purposes, other existing legislation upon the same subject, the relative times of their enactment, with all. circumstances or related matter which may aid construction and is proper to consider for the purpose of discovering the legislative intent.

It is not without significance that section 5712, 2 Comp. Laws 1915, authorizing any school district by a majority vote of its qualified electors to borrow money and issue bonds therefor to an amount not exceeding ten per cent, of its assessed valuation, is section 1 of chapter 6 of Act No. 164, Pub. Acts 1881, which is a comprehensive general law enacted with the indicated intent to amend, harmonize and recast existing school laws into a uniform system. It is a lengthy enactment, divided into 13 chapters with subtitles, being entitled, “An act to revise and consolidate the laws relating to public instruction and primary schools, and to repeal all statutes and acts contravening the provisions of this act.”

As qualifying the purpose declared in the title, defendant emphasizes section 10 of chapter 13 of the act (2 Comp. Laws 1915, § 5760), which under the sub-title “Penalties and Liabilities” provides:

“All provisions of this act shall apply and be in force in every school district, township, city and village in this State, except such as may be inconsistent with the direct provisions of some special enactment of the legislature.”

Section 1 of chapter 6 (2 Comp. Laws 1915, § 5712) was however radically amended by subsequent legislation, in its present form by Act No. 53, Pub. Acts 1913. In that connection it may be noted that Act No. 146 of the same session amended with similar title and in like manner section 17 of chapter 2 of the same act. As applied to the issue involved in Burton v. Koch, 184 Mich. 250, it was said of the legislative intent as indicated by such method of amendment:

“It is evident that the legislature intended there should be no doubt about the application of the amended law to every school district in the State. Intending to establish uniform qualifications for voters, the legislature by Act No. 146 of the Public Acts of 1913, instead of amending section 10 of chapter 13 by way of proviso or otherwise, amended section 17 of chapter 2 so as to indicate precisely the purpose to be accomplished.”

In the instant case we have not only the legislative intent as indicated by a like method pf amending another section in the same general school law by a separate act, and also the plainly stated legislative intent in Act No. 368, Laws 1871, that the union school district of the city of Owosso should have all powers and privileges conferred upon school districts by general law and, in addition, such as are conferred by the local act itself, in which the powers granted by the general law are first named and made applicable. Following and in addition to them are such powers as are conferred by the local act creating the school district. There is nothing restrictive in the language adopted, which in the connection used fairly contemplates future as well as existing general laws conferring powers, and privileges on school districts. In 1871 the general school law graded the power of district schools to borrow by the number of children in them between the ages of five and twenty years, with a limitation that “no school district shall have an indebtedness to exceed fifty thousand dollars for money thus borrowed” (1 Comp. Laws 1871, § 3726). Section 5 of Act No. 368 conforms to that limit. Whether thereby conferring any additional power or privilege upon the district for the time being is not disclosed. Such may perhaps be surmised, since the population of Owosso city in 1870 was but 2,065, as shown by the official census report of that year, and of the entire county of Shiawassee but 20,858. The city now has a population of approximately 14,000, and the school district an assessed valuation of over $9,000,000, which under the general school law gives a bonding limit of $900,000.

While not controlling, the practical construction given to doubtful or obscure laws in their administration by public officers and departments with a duty to perform under them is taken note of by the courts as an aiding element to be given weight in construing such laws, and is sometimes deferred to when not in conflict with the indicated spirit and purpose of the legislature. We regard as worthy of consideration the opinions of the attorney general upon this subject in reply to inquiries from the State superintendent of public instruction and the superintendent of Jackson public schools, wherein the conclusion is reached that in certain cities whose school districts were limited in their power to borrow by former local acts (a form of legislation now prohibited by our Constitution) they may proceed under the general school law, if the qualified voters so determine, and issue valid bonds pursuant to the terms and within the limits of the general law. Attorney General’s Report of 1913, pp. 277-387.

We cannot agree with defendant’s contention that the reasoning of this court in the Traverse City and Muskegon Cases has no application here because it was there only held that the general law conferred a power not contemplated by the local acts creating the districts, while in this case the power to bond is expressly conferred by the local act, and limited. In those cases, as in this, power is conferred by local act to borrow money within specified limits for purchase of schoolhouse sites, and erection of school buildings, if so determined by a majority of the qualified electors of the district present and voting thereon at a meeting duly held — in those cases by “loan” and in this by “bonds” of the district. A variation in wording rather than meaning which this court held in substance was a distinction without a difference in intent and power conferred. An examination of the briefs and records in each of those cases confirms, as we think the opinions themselves fairly show, that the controlling and most seriously considered question then before the court was the power of the districts to borrow money for the purposes proposed in excess of the limit fixed by their local acts. They having power to borrow, the implied right to issue bonds for the amount borrowed was a natural and logical sequence, within the purview of the general school law upon that subject.

We find no occasion to disagree with the conclusion of the trial court that the situation presented here is in essentials closely analogous to that shown in Board of Education of Traverse City v. Straub, supra, or to disturb its mandate in this proceeding.

The judgment is affirmed.

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


text:
    ABBOTT v. TRAVELERS INSURANCE CO.
    Insurance — Accident Insurance — Evidence—Sufficiency.
    In an action on an accident policy, on the issue as to •whether insured’s death was the result of an accident within the terms of his policy, evidence held, by a divided court, sufficient to take the question to the jury.
    Previous diseased condition as affecting liability for death or injury from accident, see notes in 34 L. R. A. (N. S.) 445; 52 L. R. A. (N. S.) 1203; 6 B. R. C. 530.
    Arterio sclerosis as affecting right to recover under accident policy, see note in 3 A. L. R. 1304.
    Error to Wayne; Lamb (Fred S.), J., presiding.
    Submitted April 22, 1919.
    (Docket No. 39.)
    Reargued January 28, 1920.
    Decided February 27, 1920.
    Assumpsit by Edna S. Abbott against the Travelers Insurance Company, of Hartford, Connecticut, on a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed, by a divided court.

      Vandeveer & Foster, for appellant.

      Walters & Hicks, for appellee.
   Steere, J.

This action was brought by plaintiff as beneficiary named in an accident insurance policy for a maximum of $5,000, with accumulations for advanced premiums, issued by defendant on May 1, 1908, to her husband, William S. Abbott, who during his lifetime was a resident of Detroit, employed for 23 years as an agent and adjuster for a fire insurance company, having supervision of its business in the State of Michigan. His death occurred at his home in Detroit on November 10, 1916.

At the time of his death Abbott was 51 years of age, a heavy set man 5 feet 8 inches tall, and weighed about 210 pounds. On the evening of October 24, 1916, he returned home from his office shortly before 6 o’clock and went upstairs to the bath room to prepare for dinner. On his way down he made a misstep or slipped at the landing of the stairs and fell two steps, striking heavily in a sitting position. His wife and son hearing the fall went to him but he told them to leave him alone, soon arose to his feet and went on down to the dining room without assistance, though' indicating in his walk that he felt the effects of the fall. He took his seat at the table and ate his meal with them, after which he read the evening paper for about an hour, then took a hot bath and went to bed, sleeping until after midnight, when his wife was awakened and found him in pain, apparently in his neck and back to which she applied hot cloths. He remained in bed the next day and slept much of the time. The following day he appeared somewhat stiffened and lame from the effects of his fall but went to his office and attended to some business. He returned home early and his wife found him in bed shortly after one o’clock. The next morning his condition was such that she called their physician, Dr. Simpson, who attended him professionally until he died on November 10, 1916, 17 days after the accident. A post mortem examination was made by Dr. Simpson, of which defendant’s representatives, who had expressed a desire to be present, had no notice, and a subsequent written, request in its behalf for an autopsy under the terms of the policy deceased held was refused by plaintiff. She thereafter presented proofs of loss and claim as beneficiary under the accident policy, said proofs' being accompanied by a verified statement of Dr. Simpson as attending physician, dated November 22, 1916, containing the following:

“5. State immediate cause of death: Portal obstruction.
“6. State predisposing or contributory causes of death, or complications, if any: Cirrhosis of liver, duration over 3Yz years; cholangitis; fall, striking heavily and starting thrombosis of portal vein. * * *
“9. Was there a post mortem examination? If so, by whom? Give findings: Yes, by myself, Dr. Safford and Dr. C. R. Meloy. Gall stones — cholecystitis —cirrhosis of liver — ascites.”

A previous death certificate by Dr. Simpson, of November 12, 1916, filed with the Michigan division of vital statistics, states:

“The cause of death was as follows: Cholecystitis and cholangitis — duration 2 weeks; cirrhosis of liver, duration 3 years .... mos.....dys. Contributory, a fall 2 weeks ago.”

Defendant in reply to plaintiff’s claim and proofs of loss gave notice of denial of liability under the terms of its accident policy issued to deceased, stating as a reason that “death was not the result of bodily injury effected through external, violent and accidental means independently of all other causes.”

This action followed, with pleadings properly framed to present the issues which were tried by jury in the circuit court of Wayne county resulting in a judgment on verdict in favor of plaintiff for the amount of the policy.

Defendant, by plea with notice thereunder and proof upon the trial, claimed as grounds of defense that deceased had violated the warranties in his application under which the policy was issued wherein he asserted that he had no other accident insurance in any company or association and was “in sound condition mentally and physically” when the policy was issued and renewed from year to year; that the beneficiary and representatives of the estate breached by refusal on request the provision in said policy giving defendant, on demand, a right to examine the person insured and opportunity to make an autopsy in case of death, and that death was not caused by an accidental injury independent of all other causes. The court only entertained the last-named defense, which was submitted to the jury as an issue of fact, against defendant’s motion and request for a directed verdict, the jury being told in the court’s charge that was the only one of its defenses upon which defendant relied.

Counsel for defendant strenuously insist that its other defenses were relied upon and proof was made as to them. The record contains a request to charge as to one of those defenses and discloses no withdrawal of the others. Either the record is incomplete or the court was under a misapprehension in that particular, or meant by what was said to rule that the other defenses were not tenable. The statement amounted to an instruction to that effect. Plaintiff’s counsel contend that in any event it was the only defense permissible because the only reason given by defendant on refusing payment when proofs of loss were tendered it, citing Smith v. Insurance Co., 107 Mich. 270 (30 L. R. A. 368); Jacobs v. Insurance Co., 183 Mich. 512. That proposition is contingent on a “knowledge of all the circumstances attending the loss” and its application might well be questioned under the evidence as to some of the defenses insisted upon, but the more serious and distinctly paramount issue here, to which the evidence and efforts of counsel on both sides were chiefly directed, was whether plaintiff’s testimony raised an issue of fact for the jury, or made out a prima facie case upon the essential allegation in its declaration that the insured’s death resulted from an accident independent of all other causes.

Defendant by motion and request at the trial for a directed verdict, motion for a new trial, exceptions, etc., properly preserved for review its assigned errors, particularly emphasizing and urging in the trial court and here that no case was made out by the proofs under the conditions of the policy, that the verdict was without evidential support, was both against the overwhelming weight of evidence and contrary to plaintiff’s own evidence.

The policy in question was purely an accident policy, the premium being $5 per thousand per year, with plaintiff as beneficiary in case of accidental death. The material provisions of the policy to which the evidence and contentions of counsel were directed are that defendant—

“Does hereby insure Wm. S. Abbott against bodily injuries, effected, directly and independently of all other causes through external, violent and accidental means (suicide whether sane or insane, is not covered), as specified in the following schedule: * * *
“If any one of the disabilities enumerated below shall result from such injuries alone, within ninety days from the date of accident, the company will pay the sum specified opposite such disability; or, if such injuries shall, independently and exclusively of all other causes, immediately, wholly and continuously disable and prevent the insured from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability and within 200 weeks from the date of accident, shall result in any one of the disabilities enumerated below, the company will pay the sum specified opposite such disability, and in addition weekly indemnity as provided in Part B, to the date of death, dismemberment or loss of sight.
“For loss of life — the principal sum.”

Members of deceased’s family, friends and acquaintances testified that he was an energetic, hard-working man, apparently in general good health and attentive to his business, which called him from his home much of the time to different parts of the State and necessitated much travel; that he was fond of outdoor exercises and interested in athletics, had regularly attended to his business during the summer previous to his death and up to the time of his last illness, making business trips in July, August, and October, and took no regular vacation that summer except as he visited his family week-ends and over Sunday at Mullet Lake, where they spent the summer, at which times he played tennis, rowed, fished, went in bathing, etc., as was his custom when opportunity presented itself.

It was also shown by plaintiff’s own witnesses that for over three years prior to his death deceased was afflicted with cirrhosis, or hardening of the liver, which Dr. Simpson, the only medical witness produced by plaintiff, said was “an old chronic proposition.” He had so diagnosed Abbott’s condition from objective and subjective symptoms in June, 1916, when attending him professionally for an attack accompanied by severe pains in the region of the gall bladder, at which time his urine was found to contain bile, and the doctor testified the attack was plainly cholangitis, or inflammation of the gall ducts. Of what his subsequent autopsy disclosed in that particular he relates :

“We found the liver small and hard, what in medicine we call cirrhosed liver, which is a hardening of the liver in the region of the gall bladder; that is under the ribs here, next to the liver, of course. The organs were all very much adherent, sticking together, the intestines were sticking to the liver, the gall bladder was stuck to the intestines; there was what we call adhesions all over, all those organs, that were old, thick, heavy adhesions, which is perfect evidence of inflammation existing for a long time, months or years probably. I found the gall bladder. It contained two or three gall stones. It was a thick gall bladder, the walls were thickened as though there had been an involvement there at various times, for some time. * * * The other organs were not noteworthy except the spleen, which is situated on the left side of the abdominal cavity, which was larger than normal.”

Of the attack in June, 1916, when Dr. Simpson was called, plaintiff testified that her husband had spent the night at home and it came upon him early in the morning before he had arisen, preceded by no accident. Neither was a previous severe attack in March, 1918, which came upon him while at home accompanied by acute pains in the right side of his. abdomen, having “a tendency to double him up,” on which occasion he was removed to a hospital where he underwent an operation in which it was discovered that he had cirrhosis, or hardening of the liver, and he was cautioned by the surgeon to live a moderate life thereafter.

Dr. Simpson testified that when called to attend deceased in October he found him in bed, slightly jaundiced, with some fever and extreme tenderness in the upper part of the abdomen near the gall bladder. There were some very small bruises on his back near the hips which did not require any professional care and he turned his attention to the features of the case which did. An examination of his urine disclosed that it contained bile. The extreme tenderness in the region of the gall bladder and his fever grew less for some days after he commenced to treat deceased but the jaundiced condition continued, and on November 5th or 6th a developed distention of the abdomen indicated a collection of fluid there requiring relief by tapping, which the doctor performed on two occasions taking away several quarts of fluid, cloudy with, pus cells each, time, the same being what is known as ascites, or the white part of the blood caused to ooze out through some membrane by an obstruction in the return flow of blood, the pus cells causing the cloudy appearance indicating infection present somewhere. The jaundice had become more apparent over the skin and in the whites of his eyes, and after the 7th or 8th of November the patient grew rapidly weaker until his death, on the 10th, the cause of which the doctor diagnosed and certified on two occasions as before stated.

Four witnesses of the medical profession were sworn and examined at length as experts touching the cause of death — Dr. Simpson being called by plaintiff and Drs. Kennedy, Meloy and Schmidt by defendant. In general their testimony was in harmony upon the symptoms, nature and effect of hardening of the liver, and related maladies which Dr. Simpson had described as connected with the case, cholecystitis being inflammation of the gall bladder and cholangitis of the gall ducts, resulting from infection, while cirrhosis of the liver is described as a chronic, incurable inflammation of that organ with progressive hardening by which changes take place in its structure causing the tissues to become fibrous and non-elastic with a binding effect gradually making it harder and smaller. Dr. Simpson likened the effect to “squeezing a sponge,” having a “tendency, due to the contraction and the crowding, to cut off the supply (of blood) that comes from the portal vein,” which he described as a vein about 3 inches long and about 1/6 of an inch in diameter, deep in the abdomen, carrying the blood from the abdominal organs into the liver. Dr. Kennedy, clinical professor of surgery in the Detroit Medical College and a surgeon of wide experience, said of the disease:

“There is no cure known after a person is suffering an attack of cirrhosis of the liver. It ultimately results in death, and on an average very few persons live longer than three years, very rarely a case will run longer than that. After the disease has once taken hold of the organs, it is progressive and the terminating event is usually ascites and death.”

The conflict in the expert testimony was chiefly over Dr. Simpson’s theory that death resulted in this instance from a traumatic thrombus, or blood clot in the portal vein, caused by the fall deceased experienced “starting thrombosis” of that organ, of which defendant’s three medical witnesses denied the possibility, and the length of time before the cirrhosis and admittedly “infected condition of the bile ducts and gall bladder,” which Dr. Simpson stated deceased had “for years,” would necessarily terminate fatally.

Dr. Meloy, director of laboratories at Grace Hospital, who in his work with morbid anatomy-disease tissues to determine what ailments existed had performed between 550 and 600 autopsies in investigating the cause of death, was present at the autopsy performed by Dr. Simpson, and similarly described the conditions found. He diagnosed the cause of death as cirrhosis of the liver, and testified that while the fact a person is suffering from that disease is sometimes not discovered until revealed by a post mortem, the average length of life for persons found stricken with hardening of the liver is about three years. When asked as to the possibility of a fall having caused thrombus of deceased’s portal vein he replied:

“It is my opinion that there was nothing anatomically, either gross or microscopic, which would indicate anything of that nature. * * * At the time of the autopsy there were no conditions found that would indicate he had received injuries as the result of the fall.”

So far as relates to any facts disclosed by the autopsy illuminating Dr. Simpson’s theory of a thrombus their testimony is not inharmonious. On cross-examination Dr. Simpson was asked and answered of the autopsy:

“Q. You found the diseased condition of the liver, the cirrhosis of the liver, did you not, as you testified?
“A. You mean when I did the post mortem?
“Q. You were of that opinion prior to the post mortem?
“A. Yes, I was of that opinion.
“Q. You found the cholecystitis and the cholangitis, did you not?
“A. Yes.
“Q. You had found those conditions and those conditions were due to natural causes, were they not?
“A. Yes.
“Q. The only thing that you, did not find was the thing you suspected, which was a thrombus, didn’t you?
“A. Yes.
“Q. And that was the important thing that you performed the post mortem for, that is the only thing that you did not find that you thought might exist?
“A. I didn’t go at the post mortem to prove any conceived theory at all, I was after information as to what was the cause.
“Q. You had a preconceived notion that this man died from a thrombus?
“A. Yes.
“Q. What did you want to perform the autopsy for if it was not to find out if he had a thrombus?
“A. To see whether there was any other condition there that causes ascites, namely, any malignant growth, or something of that sort. * * *
“Q. Did you find anything?
“A. There was no malignancy, no.”

His reason given for not ascertaining the condition of the portal vein was that he could not find it owing to the various organs in the region of the gall bladder being bound together by “dense, old adhesions,” and the body had then been embalmed. Dr. Meloy, who saw the conditions, and the other physicians who heard them described, testified that, while perhaps more difficult for those reasons, the portal vein could have been found, dissected out and examined for a traumatic injury with certainty as to whether or not there was a thrombus. Be that as it may, the portal vein was not examined and no thrombus was found as a result of the autopsy. Failing to find by his autopsy any thrombus or injury to the portal vein Dr. Simpson developed his theory as to the cause of death by inference on inference. Inferring there was a thrombus, though stating he was “willing to admit I cannot prove it,” he inferred from the fall and illness of his patient that there was an injury to the portal vein causing the inferred thrombus, which he inferred obstructed the supply of blood to the diseased liver causing ascites and death, admitting on cross-examination that a common, and ultimately inevitable, cause of obstruction of the portal vein is cirrhosis of the liver, with which deceased had been afflicted for over three years, and adhesions such as he found in the region of or around the portal vein. Of his experience and professional knowledge upon the subject he was asked and answered in part as follows:

“Well, did you ever see or hear or read of a case where a thrombus was caused as the result of a personal injury to the portal vein, if so where?
“A. I don’t know as I can cite any injury right now. No, * * *
“Q. Do you know of any authority or medical work who will cite a case of thrombus of the portal vein that is due to an accident?
“A. I have not looked up the authorities at all.”

But passing defendant’s expert testimony and contention that the great weight of evidence was against the verdict upon that issue, plaintiff’s only expert witness, Dr. Simpson, admitted in connection with his theory of a thrombus that the portal vein, which lies deep in the abdomen, is “practically never injured except indirectly,” and “it was not probable that a man in perfect health would have a thrombus of the portal vein resulting from a fall,” assigned a different cause of death in his certificate to the vital statistics division of the State department, and finally in his cross-examination touching the sum of his conclusions as to the cause of death testified as follows:

“Q. Well, doctor, you have apparently come to the conclusion, and are of the opinion, that deceased met his death as the result of a combination of causes?
“A. Yes.
_ “Q. That it was partially due to a diseased condition of the liver, or cholecystitis, or cholangitis, together with the fall which may have produced thrombus, is that true?
“A. Yes. * * * So I cannot say, as I said a moment ago, — I would not say any one of them independently was the cause of death.
“Q. But it was due to a combination of all the conditions which existed?
“A. Yes.”

Accepting this as true we have by plaintiff’s proofs a case where a progressive, incurable ailment, liable at any time to terminate fatally by its own development cutting off its supply of blood from the portal vein, acting together with the accident, in causal connection, caused the death which was, as sometimes expressed, produced “by the sum of the two causes.”

Under the conditions of this limited casualty insurance the burden of proof was upon plaintiff to show that the accidental loss of life charged resulted directly from external, violent and accidental means, Independently of all other causes. Rathman v. Casualty Co., 186 Mich. 115 (L. R. A. 1915E, 980, Ann. Cas. 1917C, 459); National Masonic Accident Ass’n v. Shryoch, 20 C. C. A. 3, 73 Fed. 774. In the last case oited Judge Sanborn summed up the proposition involved in conditional accident policies of this nature, where the claim is for accidental loss of life, and stated what is by weight of authority recognized as, in substance, the established general rule, in part, as follows:

“The burden of proof was upon the defendant in error to establish the facts that William B. Shryock sustained an accident, and that the accident was the sole cause of his death, independently of all other causes. If Shryock suffered such an accident, and his death was caused by that alone, the association agreed by this certificate to pay the promised indemnity. But if he was affected with a disease or bodily infirmity which caused his death, the association was not liable under this certificate, whether he also suffered an accident or not. If he sustained an accident, but at the time it occurred he was suffering from a pre-existing disease or bodily infirmity, and if the accident would not have caused his death if he had not been affected with the disease or infirmity, but he died because the accident aggravated the effects of the disease, or the disease aggravated the effects of the accident, the express contract was that the association should not be liable for the amount of this insurance. The death in such a case would not be the result of the accident alone, but it would be caused partly by the disease and partly by the accident, and the contract exempted the association from liability therefor. These propositions have been so lately discussed and affirmed by this court that we content ourselves with their statement.”

Citing numerous cases, to which may be added Commercial Travelers Mutual Accident Ass’n v. Fulton, 24 C. C. A. 654, 79 Fed. 423; Hubbard v. Accident Ass’n, 98 Fed. 930; Hubbard v. Insurance Co., 98 Fed. 932; National Ass’n of Railway Postal Clerks v. Scott, 83 C. C. A. 652, 155 Fed. 92; Stanton v. Insurance Co., 83 Conn. 708 (78 Atl. 317, 34 L. R. A. [N. S.] 445); Illinois Commercial Men’s Ass’n v. Parks, 103 C. C. A. 286, 179 Fed. 794; Maryland Casualty Co. v. Morrow, 130 C. C. A. 179, 213 Fed. 599 (52 L. R. A. [N. S.] 1213); Ætna Life Ins. Co. v. Bethel, 140 Ky. 609 (131 S. W. 523); Penn v. Insurance Co., 160 N. C. 399 (76 S. E. 262, 42 L. R. A. [N. S.] 597); White v. Insurance Co., 95 Minn. 77 (103 N. W. 735, 884, 5 Ann. Cas. 83); Stokely v. Casualty Co., 193 Ala. 90 (69 South. 64, L. R. A. 1915E, 955); Ward v. Insurance Co., 85 Neb. 471 (123 N. W. 456).

Plaintiff’s counsel contend that the case was properly submitted to the jury under the rule and upon the issue of proximate cause, urging that the provisions of the policy should be construed as meaning that where the death results within 90 days of an accidental injury without which the insured would not have died within the 90 days, even though a contributing ailment without which the accident would not have caused death was involved, the death should be deemed to “result from such injuries alone” within the meaning of the policy, into which such language reads the principle of proximate cause.

This is an action ex contractu. Negligence is not an element of the contract of insurance. In tort cases not arising out of contractual relations of the parties the doctrine of proximate cause as applied to the claimed injury for which damages are sought is invokable by both defendant and plaintiff when different ■contributing causes are claimed on their respective theories as to the paramount, efficient and major or proximate cause, to be determined between two or more causes under the rule of selection applicable in negligence cases. Here the contract of insurance limits the inquiry to a single accidental cause from which alone it must be affirmatively shown that death resulted independently and exclusively of all other causes.

Deceased was a man of long and large experience in the insurance business, necessarily familiar as an adjuster with the general phraseology of policies and their interpretation. He was qualified to contract and better equipped to understand the contract, of insurance under consideration than the average business man. He traveled much in his business. His policy was sufficient to cover the customarily anticipated hazards of accidents while traveling. It was purely accident insurance and cheap compared with regular life insurance as to which he was not an insurable risk. It covered accident which resulted in disabling injury or death of a person afflicted with disease or bodily infirmities which had no causal connection with the accidental death or injury; it covered accidents which caused a nonpre-existing disease which resulted in disability or death, but it plainly excepted accidents to persons afflicted with a pre-existing disease which, co-operating with the accidental injury, caused disability or death, as, a result of the two causes in combination.

Courts cannot recast such contracts for the parties into what might seem a more discreet or fair agreement, but must decide the controversy by the plain terms of the written contract the parties saw fit to make. We find no ambiguity or uncertainty in the explicit provisions of this policy permitting two constructions. If disease was an efficient, co-existing, contributing cause of death, it would be a palpable contradiction of the plain, ordinary meaning of the language used to say death resulted from the accident alone, directly and independently of all other causes. In Binder v. Accident Ass’n, 127 Iowa, 25 (102 N. W. 190), while the rule of construction most favorable to the assured is declared and fully recognized, it is said that nevertheless plain, explicit language cannot be disregarded. Passing upon a policy providing that the death or disability insured against must be “purely accidental and the direct result of an accident, and that the accident was the sole and only cause of the said member’s death,” the court said:

“If it be true, as the jury might have found under the evidence, that the diseased condition of the arteries aggravated the effect of the accident, if there was one, and contributed to the disability occasioned thereby, then, under the express terms of the contract there was no liability on the part of the association.”

The 90-day limitation in the policy is made of general application to “any one” of the enumerated disabilities resulting within that time after the accident from the injuries which it alone causes. In Ætna Life Ins. Co. v. Bethel, supra, following the general clause limiting liability to bodily injuries effected by accidental means “independently of all other causes,” the specifications or enumeration of injuries covered by the policy provides, “If death results solely from such injuries within 90 days the said company will pay the principal sum of five thousand dollars” to the named beneficiary, and it was there held “indispensable to recovery that the evidence should show that the fall 'independently of all other causes’ produced the death of D,r. Bethel.”

In White v. Insurance Co., supra, where a judgment on verdict for plaintiff was reversed because it conclusively appeared the deceased’s death was due in part to diabetes, the injury aggravating the diabetic condition and inducing a “diabetic coma,” the court, although using the term in discussion of the authorities, said:

“The rule of proximate cause, as applied to actions of negligence, cannot be applied in its full scope to contracts of this nature. 1 Cyc. p. 273.”

It is conceded in this class of insurance that if the accidental injury independently and directly produces a fatal, nonpre-existent malady which operates as a resulting agency, the accidental injury as sole initial factor must alone be held the sole lethal cause, which is sometimes referred to in decisions and text books as the proximate, primary or immediate cause. Such adjectives in their popular sense are convenient to emphasize that there is no other legal cause.

“The rules of proximate and remote causes, as understood in the law of negligence, cannot be justly or safely applied under a contractual stipulation that the injury or death must have ‘resulted from the accident independently of all other causes,’ and when an issue of fact is presented whether the person was suffering from a disease which had causal connection with the injury or death. * * * A discussion of proximate and remote causes can be pertinent only when it appears that there have been two or more causes and when a judicial selection must be made as between the different causes, and a choice made of one as the proximate cause,” etc. Penn v. Insurance Co., supra.

It is urged for plaintiff that this case is squarely within and controlled by Skinner v. Accident Ass’n, 190 Mich. 353, wherein a judgment on verdict was sustained on the issue of whether death following an accident resulted independently from injuries caused by the accident, or was contributed to, or caused by, a pre-existing disease. As stated by the trial court plaintiff’s claim and theory were that deceased died “of an ulcer or abscess following and caused by the injury which he received at the time he fell,” while defendant’s theory was that “death was due to a combination of difficulties set up by a cancer and prostatic abscess which resulted in pus absorption and terminal broncho-pneumonia.” An autopsy was held and testimony introduced by the respective sides tending to support their conflicting claims. The existence of a cancer was denied by plaintiff but, if proven, plaintiff’s counsel conceded “that unless the cancer was the result of the accident and the cancer caused the death, that we are not entitled to recover.” The trial court submitted those issues of fact so raised to the jury under a fair charge which cannot be claimed to have left for their determination the technical issue of proximate cause applicable to actions of tort. By direct application of the recognized rule of law to the case the court said:

“If you find from the testimony that whatever abscess there was that caused death was the direct result of the accident, why, unquestionably in that case plaintiff would be entitled to recover, if that was the sole cause; but if the cancer which is claimed by defendant to have existed prior to that time contributed to his death unquestionably, gentlemen, you must find a verdict for defendant, because then it would not be the sole Cause, and any blow he received would not be the sole cause, and he can only recover where the accident was the sole cause.”

Illustrative of the somewhat non-technical, popular sense in which “proximate cause” is sometimes used where the question of sole cause is the controlling issue, this case is cited in 2 Bacon on Life & Acc. Ins. (4th Ed.), § 522, in support of the text that “the fact that the accident precedes a disease causing death, or that the insured was afflicted with some disease not the proximate cause of death, is no defense,” and Jiroch v. Insurance Co., 145 Mich. 375, is also cited to the proposition that “what is the proximate cause is as a rule a question for the jury.” In the Jiroch Case the issue was a question of sole cause. The trjal court squarely charged the jury that if the amputation of plaintiff’s foot was made necessary because the accident which he claimed to have suffered aggravated the effects of a pre-existing disease (diabetes), or the disease aggravated the effects of the accident, “then, in such case, the amputation would not be the result of the accident alone,” and plaintiff could not recover. This court said in sustaining the charge and judgment that the evidence was ample to support the finding of the jury “that the disease which developed subsequent to the accident was attributable to it.”

Upon this record plaintiff’s evidence as applied to the conditions of the policy in question fails to sustain the burden of proof upon the essential allegation that the insured’s death resulted from accidental bodily injuries alone and was effected directly and independently of all other causes through external, violent and accidental means. The judgment should therefore be reversed, with costs to defendant, and a retrial granted.

Brooke, Stone, and Clark, JJ., concurred with Steere, J.

Bird, J. The conclusion reached by Mr. Justice Steere that no issue was presented for the jury in this case is at variance with my opinion. If we exclude the medical testimony and consider only the lay testimony, I think a prima facie case was made for the jury. It appears from the record that Mr. Abbott, the insured, was. 51 years of age, that he weighed 210 pounds, was in robust health, and had been for several years an unusually active business man. The only sickness which the record shows he had suffered in several years was in 1918, when he was ill for a period of three weeks with an ailment of the liver, and again in 1906, when he was incapacitated for one day. His business was that of State agent for a fire insurance company, and he traveled over the State looking after the company’s interest. He was not only attentive to his business but appears to have been a great lover of sports and athletics. The testimony shows that during the last years of his life, when opportunity offered, he fished, rowed boats, played tennis, golf and baseball, waded in trout streams, and on one occasion ran in a fat man’s race at some festivity. These activities in business and pleasure continued right up to the time he met with the accident. When he arrived home on the evening of his injury, he appeared well and happy, as usual. He went upstairs to prepare for dinner. When called, he started down, and by a misstep, fell on the floor of the landing. When found, his back was against a riser and his head against the wall. When offered assistance by members of the family he. complained of his back and begged them to leave him alone. He soon recovered sufficiently to go down to dinner. After dinner he smoked a cigar and read his newspaper, but retired earlier than usual after taking a hot bath. At midnight his wife applied hot cloths to relieve his back and neck. The following day he was confined to his bed, sleeping much of the time. The next day he was sore and stiff, but he dressed and went out. He was home by one o’clock in the afternoon and in bed and did not go out again. As the days passed he grew worse, his complexion became jaundiced, and at the last he was badly bloated. On November 10th he died after having been ill 17 days. There is no dispute about his injury, no dispute about the marks on his body as a result of the fall. When these facts were shown supplemented by his contract with defendant, I am of the opinion that a prima facie case was made without taking into account the medical testimony. Semmons v. Benefit Ass’n, 180 Iowa, 666 (163 N. W. 338). The proof in the present case is much clearer than in the one cited because in the case cited there was some question as to the manner in which the accident happened.

But plaintiff is not obliged to rely on this alone. She went further and showed by Dr. Simpson, the physician who attended him in his last sickness, that, in his opinion, he died from an obstruction in the portal vein. He testified:

“My opinion is that he died from an obstruction of the portal vein, which is a large vein through which all the blood from the intestines and stomach and liver —spleen, I should say, goes directly into the liver. I think that was primarily the obstruction of that vein that caused his death.”

And he further testified that, in his judgment, the injury was what caused that condition. The other physicians at the post mortem agreed with him that death was caused by a thrombus in the portal vein, but two of the doctors disagreed with him as to the thrombus being caused by the injury. Dr. Meloy, however, agreed with Dr. Simpson that that condition could be produced by an injury.

Had the testimony stopped here there certainly could have been no question but what a prima facie case had been made for the jury. If we are right about this, Can that prima facie case be destroyed because Dr. Simpson made some statements inconsistent with portions of his direct testimony? It is not the province of the court to determine what statements shall be accepted as the truth and what shall be rejected; that duty, as we have repeatedly held, rests with the jury. Kelly v. Freedman, 56 Mich. 321; Watson v. Watson, 58 Mich. 507; People v. Hansen, 183 Mich. 565; Parnell v. Pungs, 190 Mich. 638; Burtch v. Child-Hulswit & Co., 207 Mich. 205.

It is said that Mr. Abbott had cirrhosis of the liver, and that this caused or contributed to his death. If it be conceded that he did have cirrhosis of the liver, under the testimony, it does not necessarily follow that he was near his end, or that his malady was fatal. Dr. Kennedy, one of the medical experts, testified that:

“It is true that a man might have cirrhosis of the liver and live ten years, if he had established a good collateral circulation it would have a tendency to relieve ascites, but would not by any means eliminate the poison of the liver which the liver secretes, and as far as death from ascites is concerned, it would tend to lengthen his life. Ascites is a result of cirrhosis of the liver.”

Dr. Carl Meloy, one of the medical experts, agreed with this and said that:

“With the well established collateral circulation a man might die from an entirely different cause at a much later period.”

Dr. Harry B. Schmidt, also one of the experts, testified that:

.“After a man establishes a good collateral circulation he can live indefinitely with it.”

And Dr. Simpson testified that, in his opinion, the patient did not die from cirrhosis of the liver, and it is further shown by the testimony that Mr. Abbott had few, if any, symptoms of a cirrhosed liver.

But it is said that because Dr. Simpson testified, on cross-examination, that death may have resulted partially from a diseased liver and partially from the fall, that under the rules applied by the courts in the construction of policies similar in wording, no recovery can be had. «i

In construing a similar provision as applied to a similar state of facts it was said in Continental Casualty Co. v. Lloyd, 165 Ind. 52 (72 N. E. 824), that:

“When two or more causes contribute to an injury, where there is doubt, or the facts of a character that equally prudent persons would draw different conclusions therefrom, in such cases, which of the contributing causes is the efficient, dominant, proximate cause, is a question to be submitted to the jury.”

In that case the insured received a shock from a fall producing a cerebral hemorrhage. A tumor was found, which the doctor testified would take from six months to two years to form. The court in its further comment said:

“The tumor had impaired the resisting strength of the artery, but had not effected immediate danger to life. It was proper under the evidence for the jury to view the impairment as a condition, and not as a cause, and to find that the fall was the originating, efficient, direct and proximate cause of death; that is, that the fall set in motion a force that progressed upon present existing conditions in natural, usual sequence to effect the fatal result. Twelve bricks are set in a row, eight inches apart. By accident, the first is toppled and falls against number two, which in turn falls against and throws number three, and so on until the number twelve is cast down by number eleven, and inflicts injury. With a proper footing, number twelve might, or might not, have fallen. In such case could it be said that because brick number twelve' had a weak and imperfect footing; such imperfection was the direct, dominant, proximate cause of the injury? Who knows that the artery would not have been ruptured by the fall if it had been in a normal condition? Or who can tell that the insured would not have died from some other cause if the fall had not animated and accelerated the energy of the tumor. In fact, Dr. Ohlmacher testified that the autopsy disclosed in the vital organs of the deceased, in addition to the tumor, ‘some affection of the mitral valve of the heart, some consequent enlargement of the heart, and beginning broncho-pneumonia, a beginning of acute Bright’s disease, and a moderate fatty change in the liver.’
“From these considerations, it seems clear that the jury in its search for the proximate cause of death, had the right to include that even though the fall would not have produced death but for the impaired artery, the tumor at most was a remote, and not a proximate, efficient cause. Fetter v. Casualty Co., 174 Mo. 256 (73 S. W. 592, 61 L. R. A. 459, 97 Am. St. Rep. 560), and Freeman v. Accident Ass’n, 156 Mass. 351 (30 N. E. 1013, 17 L. R. A. 753), are recent and very similar cases.”

In Hall v. Assurance Corp., 16 Ga. App. 66 (85 S. E. 600), the insured was a heavy man having a chronic affection of the kidneys. He slipped and fell while stepping down from the curb, resulting in an injury. He lived only a week. The doctor testified that he might have lived two years but for the accident. In discussing the same question that is before us the court said in part:

“We think the supreme court of Georgia, in accordance with the general proposition stated above, has decided the principle controlling this case, and has announced the doctrine, not only that the disease from which the insured suffered, must have been a substantially contributing cause to the injury, but that liability is not defeated merely because the existing disease aggravated or rendered more serious the consequences of the accident. * * *
“And so in the present case, we think that it should have been left to the jury to determine whether the death of Judge Hall was caused by the fall, although accelerated by the incurable disease from which he suffered, or whether the disease was a contributing cause of the injury from which his death resulted. We think that when the plaintiff shows a bodily injury, which, prima facie, was inflicted through external, violent and accidental means, the insurer, in order to rebut a prima facie right of recovery and to defeat liability must show (and of course he may do this by testimony which comes from the plaintiff’s witnesses) that the injury in question was due in the first instance, either wholly or in part, to the disease from which the insured appears to have suffered. In other words, where as in the present case, it appears that the assured was bruised and wounded by a fall, which was apparently accidental, it is to be presumed, until the contrary appears from the testimony (whether for the plaintiff or defendant of course being immaterial), that the fall was the prime cause of the final result. If there is evidence that the result was caused by an intervening cause, or that such a cause contributed to the result, it is then for a jury to say whether or not the presumption raised by-proof of an injury due to a cause prima facie accidental has been rebutted. Citizens’ Bank of Tifton v. Timmons, 15 Ga. App. 815 (84 S. E. 232). The ascertainment of the proximate cause of death is the real object to be attained in every such case as that now before us. Lawyers, judges and psychologists have groped for centuries and settled on nothing more definite than proximate cause. To say absolutely that a death resulted solely and ex clusively from an injury is to say that it would not have resulted without the injury, and this can never be said except as a matter of mere probability.”

The same holding and substantially the same reasoning will be found in the following cases: Bohaker v. Insurance Co., 215 Mass. 32 (102 N. E. 342, 46 L. R. A. [N. S.] 543); Railway Mail Ass’n v. Harrington, 136 C. C. A. 230, 220 Fed. 622; Fetter v. Casualty Co., 174 Mo. 256 (73 S. W. 592, 61 L. R. A. 459, 97 Am. St. Rep. 560); Moon v. Commercial Travelers, 96 Neb. 65 (146 N. W. 1037, 52 L. R. A. [N. S.] 1203, Ann. Cas. 1916B, 222); Lickleider v. Traveling Men’s Ass’n (Iowa), 166 N. W. 363; Collins v. Casualty Co., 224 Mass. 327 (112 N. E. 634); Fidelity & Casualty Co. v. Meyer, 106 Ark. 91 (152 S. W. 995, 44 L. R. A. [N. S. ] 493).

Applying the construction of these cases, if the question were in doubt as to which of the contributory causes spoken of by Dr. Simpson in his cross-examination was the efficient, dominant, proximate cause, it was a question to be submitted to the jury. This construction would make the policy actually mean more nearly what the purchasers of such policies think they mean when they purchase them. But to say that no recovery can be had under these insuring clauses in any case where a pre-existing disease may have contributed in some slight degree to the result is to make the contract of very little value to the insured.

I am of the opinion that the case was properly submitted to the jury and that the verdict should be affirmed.

Moore, C. J., and Fellows and Sharpe, JJ., concurred with Bird, J.


text:
    ABBOTT v. FIDELITY & CASUALTY CO.
    This case is controlled by Abbott v. Insurance Co., ante, 654.
    Error to Wayne; Lamb (Fred S.), J., presiding.
    Submitted April 22, 1919.
    (Docket No. 48.)
    Re-argued January 28, 1920.
    Decided February 27, 1920.
    Assumpsit by Edna S. Abbott against the Fidelity & Casualty Company of New York on a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed, by a divided court.

      Bishop & Kilpatrick, for appellant.

      Walters & Hicks, for appellee.
   Steere, J.

The material facts in this case are the same as in Abbott v. Insurance Co., ante, 654, handed down herewith. The accident insurance policy sued upon was issued by defendant on May 1, 1911, to plaintiff’s husband, William S. Abbott, naming her as the death beneficiary, agreeing to indemnify her (as stated in plaintiff’s declaration) “against the death of the said William Sherman Abbott resulting directly, independently and exclusively of all other causes, through accidental means within ninety (90) days from the date of receiving said accidental injuries, in the sum o£vfive thousand ($5,000) dollars.”

Defendant pleaded the general issue. The same testimony by Dr. Simpson was used in both cases. The other medical witness (Dr. Safford) did not claim, and testified he was not aware any one claimed, Abbott’s death was the result of this accident exclusively and independently from all other causes. Request by defendant for a directed verdict was denied and the case submitted to the jury under the comparative doctrine of proximate and remote causes, resulting in a verdict and judgment for plaintiff. The controlling questions involved are as in the companion case above referred to and governed by it.

The judgment should be reversed with costs to defendant and a new trial granted.

Brooke, Stone, and Clark, JJ., concurred with Steere, J.

Bird, J. For the reasons stated in Abbott v. Insurance Co., ante, 654, handed down herewith, I think this case should be affirmed.

Moore, C. J., and Fellows and Sharpe, JJ., concurred with Bird, J.


author: Bird, J.

text:
    MISNER v. STANGE.
    Appeal and Error — Time of Perfecting Appeal — Supreme Court Rule.
    Although defendant did not appeal within the 20 days prescribed by 3 Comp. Laws 1915, § 13753, where one of the other parties to the proceeding had perfected an appeal pursuant to the provisions of said statute and the rules of the Supreme Court, defendant had the right to appeal ¡under Supreme Court Rule No. 61.
    Cross-appeals from Ottawa; Cross (Orien S.), J.
    Submitted January 18, 1918.
    (Docket No. 145.)
    Decided December 27, 1918.
    Resubmitted June 26, 1919.
    Former opinion affirmed February 27, 1920.

      Bill by Charles E. Misner against Claus H. Stange, Walter I. Lillie, and Anna Wegner for the foreclosure of certain liens. Defendants Lillie and Wegner filed separate cross-bills asking affirmative relief. From the' decree rendered, defendants Lillie and Wegner appeal.
    Modified, and affirmed.

      Charles E. Misner, in pro. per.

      Leo C. Lillie, for defendant Lillie.

      Charles E. Soule, for defendant Wegner.
   On Rehearing.

Bird, J.

A rehearing was granted in this case on a question of practice affecting the appeal of defendant Lillie. The contention is made that this court was without jurisdiction to grant Mr. Lillie affirmative relief because he did not file his claim of appeal within the 20 days provided by statute. 3 Comp. Laws 1915, § 13754. We were of the opinion on the former hearing that the right to a dismissal had been waived. 203 Mich. 411. It appears by the record that defendant Wegner filed her claim of appeal within the 20 days prescribed by statute. Several days thereafter Mr. Lillie filed his claim of appeal but not until after the 20 days had expired.

It was held by this court in Guthrie v. Leelanau Circuit Judge, 197 Mich. 321, that a failure to pay the appeal fee within 20 days after filing the decree deprived the court of jurisdiction. The question whether a like holding should be made for failure to file the claim of appeal within 20 days has not been before the court, under the present act, except in a case where the court already had jurisdiction. Assuming that the court will, by analogy, hold that a failure to file a claim of appeal within 20 days is jurisdictional, the question is presented in the instant case whether the failure of an appealing party to file a claim of appeal before the 20 days have expired is fatal, where the court has already acquired jurisdiction of the subject-matter by force of a claim of ap'peal seasonably filed by another party.

Defendant Wegner filed a seasonable claim of appeal. Later Mr. Lillie filed a belated claim of appeal. Had this court’s jurisdiction depended on Mr. Lillie’s appeal we would be bound to say, under the authority of the Guthrie Case, that the court was without jurisdiction and his appeal would be dismissed. But it can hardly be claimed that Mr. Lillie’s appeal could be dismissed on jurisdictional grounds, in view of the fact that the court already had jurisdiction of the case by virtue of defendant Wegner’s appeal. May we not, and ought we not, to say that the failure of Mr. Lillie to file his claim of appeal within the 20 days was but an irregularity which could be waived by the opposite party?

In the present case the record for appeal was settled by the parties before the chancellor, transmitted to this court and the case was noticed for hearing in this court. No motion has been made in this court to dismiss the appeal, simply an objection to any affirmative relief being given thereunder. Under these circumstances it ought to be held that the irregularity .was waived. In Lum v. Fairbanks, 155 Mich. 23, in considering an .application to dismiss an appeal, the court said:

• “So that, whether we consider the appeal as taken and perfected under 1 Comp. Laws, § 552, or under the statute of 1907 [Act No. 340], 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,” etc.

This case clearly recognizes the right to a dismissal may be waived.

Again, in Bennett v. Hickey, 110 Mich. 628, it was held that the appellee had waived his right to have the appeal dismissed, the court saying:

“We think, however, that this motion should be denied upon the ground that the right to insist upon the waiver of appeal had in turn been waived by counsel for the appellees, for the reason that counsel did not assert his intention to rely upon the statutory waiver when informed by counsel for appellant that he intended to make the return at once, and that he should not be inconvenienced by the delay, when counsel for the appellees told him that the return had not been made within the time prescribed by statute.”

The principle of waiver was also recognized in Trombly v. Klersy, 139 Mich. 311.

But it is urged that the case of Munroe, Boyce & Co. v. Ward, 207 Mich. 369, is conclusive of the present one. In that case the defendant filed a claim of appeal seasonably. The plaintiff, upon learning that defendant had appealed, also filed its claim of appeal, but not until after the 20 days had expired, and it was held that plaintiff’s appeal could not be considered, citing the Guthrie and other cases. The distinction which has been pointed out herein was not presented to us in that case, neither was there any showing of waiver. Had out* attention been called to the fact that the court already had jurisdiction of the case by force of defendant’s appeal, it is doubtful whether we would have placed our refusal to consider plaintiff’s appeal on jurisdictional grounds. I have no doubt that a correct result on this question was reached in Munroe, Boyce & Co. v. Ward, because of the failure of plaintiff to file its claim of appeal seasonably. While this was but an irregularity no attempt was made to show that the irregularity had been waived. But in the present case the showing is made. It is, therefore, unnecessary to overrule Munroe, Boyce & Co. v. Ward, in order to affirm the present case. If the present case be affirmed, a construction of tEe statutory provision will result in this:

(а) A claim of appeal must be filed by some of the parties to the litigation within 20 days after decree is filed in order to give the court jurisdiction to entertain it.

(б) The failure of an appealing party to file his claim until after 20 days have elapsed, where the court has previously acquired jurisdiction, is an irregularity, which will bar his right to have his case considered unless the same has been waived.

It so clearly appears that the right to insist upon a dismissal of Mr. Lillie’s appeal has been waived, I am of the opinion that the same conclusion should be reached upon the rehearing as was reached on the former hearing.

The decree is modified and affirmed. Defendant Lillie will recover his costs of the rehearing.

Stone, J. In view of Rule No. 61, lately promulgated by this court, I concur in the result.

Steeee, Beooke, Fellows, and Shaepe, JJ., concurred with Stone, J. Mooee, C. J., did not sit.

Justice Kuhn took no part in this decision.