author: Clark, J.

text:
    PRESTON v. MacCRONE & CO.
    1. Fraud — Conspiracy—Sales—Proof—Sufficiency.
    In a suit by the buyer of certain corporate stock to have the sale set aside on the ground of fraudulent conspiracy between the brokerage firm making the sale and another firm from wbicb the stock was secured, evidence of a conversation between plaintiff, who already owned some of the stock, and certain members of the latter firm, a few days before the sale, in wbicb they said, among other things, that they were sure that the price of said' stock would materially advance within a week, and wbicb plaintiff testified be regarded as “joshing” and characterized by too much enthusiasm, held, insufficient to sustain plaintiff’s claim that defendants were engaged in “booming” the price of said stock.
    2. Same — Telegram—Evidence—Admissibility.
    A telegram to plaintiff from a brokerage firm in another City requesting a ten-day option on all of plaintiff’s said stock at $30 a share, which influenced him in his decision to purchase defendants’ stock at $28, which plaintiff claimed was part of the scheme to defraud him, held, inadmissible in the absence of evidence in any way connecting defendants with the sending of the same.
    3. Same — Evidence—Sufficiency.
    Evidence held, insufficient to sustain plaintiff’s claim that defendants were engaged in “booming” said stock.
    4. Brokers — Duty to Act in Good Faith — Failure to Disclose— Fraud.
    It is the duty of a broker in carrying out a commission for a client to act in good faith and with integrity, and not to conceal from plaintiff material facts within its knowledge respecting the transaction.
    5. Fraud — Evidence—Sufficiency—Burden of Proof.
    Plaintiff’s claim of fraud on the part of defendant brokerage company, held, not sustained by the burden of proof.
    6. Same — Brokers—Evidence—Sufficiency.
    Evidence held, insufficient to establish plaintiff’s claim that it was understood between himself and defendant broker’s agent that to fill plaintiff’s order the broker was confined to the purchase of the stock of a certain individual.
    7. Same — Brokers—Breach of Duty — Failure to Disclose.
    In the absence of an agreement between the purchaser and the broker that the latter was to be confined to the purchase of the stock of a certain individual, it would not be a breach of the broker’s duty to fail to disclose to the purchaser the name of the person from whom the stock was purchased.
    8. Same — Sales—Rescission.
    Plaintiff’s refusal to receive said stock, and his indorsement of same in defendant broker’s office, held, not to amount to a rescission of the agreement of purchase so as to relieve plaintiff of liability for the purchase price, but was done to save unnecessary inconvenience of the broker and impairment of its capital.
    9. Same — Equity—Relief—Proof.
    While upon the record in this case plaintiff is not entitled to relief against defendant broker, who is given' a decree under its cross-bill, said decree is without prejudice to such further proceedings by plaintiff against the remaining defendants, or any of them, as may be advised; they not having been sworn or any explanation of their part in the transaction having been given.
    Appeal from Ionia; Davis (Frank D. M.), J.
    Submitted April 22, 1920.
    (Docket No. 38.)
    Decided December 21, 1920.
    Bill by Thad B. Preston against MacCrone & Company and A. W. Wallace, Wesley J. Peoples and Lawrence P. Leonard, copartners as A. W. Wallace & Company, to set aside an alleged fraudulent sale of corporate stock, and to enjoin an action at law. Defendant MacCrone & Company filed a cross-bill asking affirmative relief. From a decree for plaintiff, defendants appeal.
    Reversed, bill dismissed, and decree entered for defendant MacCrone & Company.

      Hawley & Eldred, for plaintiff.

      Jewell & Smith (Cummins & Nichols, of counsel) , for defendant MacCrone & Company.

      Guy A. Miller, for defendant A. W. Wallace & Company.
   Clark, J.

Plaintiff, a banker and manufacturer of considerable experience in stock transactions, a resident of the city of Ionia, on November 12, 1918, and for several months prior thereto, owned about 4,000 shares of the capital stock of the Michigan Copper & Brass Company, a Michigan corporation, having its principal ■ office in Detroit. The capital stock was divided into 100,000 shares of the par value of $10 each. The stock was not listed at any stock exchange. The defendant MacCrone & Company, a corporation, and the defendants Alfred W. Wallace, Wesley J. Peoples, and Lawrence P. Leonard, trading as A. W. Wallace & Company, were stock and investment brokers, having offices in Detroit. On the date aforesaid Mac-Crone & Company owned over 8,000 shares of said stock, and A. W. Wallace & Company were also owners of certain of the shares, the number of which is disputed but claimed by plaintiff, and, we think, admitted by the answer of defendants A. W. Wallace & Company, to be at least 1,000 shares.

On said date plaintiff directed defendant MacCrone & Company, through its agent W. D. Munro, to purchase for him 1,000 shares of said stock at $28 per share, to which was to be added a commission of %, making the cost to plaintiff $28% per share. The purchase was made and reported to plaintiff who on November 18, 1918, forwarded to MacCrone & Company his personal check for $28,125 in payment of the stock and commission. On the following day plaintiff wired MacCrone & Company not to have the certificates changed or the stock transferred until he arrived in Detroit, which he did on November 20, 1918. The stock had already been transferred by the Union Trust Company, the transfer agent, and certificates had been issued in plaintiff’s name. Plaintiff refused to accept the certificates and stopped payment on his check. He indorsed the certificates at the office of MacCrone & Company. Later being requested by attorneys for MacCrone & Company to accept the certificates and to pay for the stock, and being told that if he did not comply suit would be commenced against him, and having notice that MacCrone & Company intended to sell the stock and hold him for any deficiency, plaintiff caused his bill of complaint to be filed, seeking decree that the alleged sale of the stock was fraudulent and void and had been brought about by the fraudulent conspiracy and combination of the defendants, that the check by plaintiff had been obtained by fraud and false pretenses, and that it be surrendered and canceled, and that defendant MacCrone & Company, be restrained from commencing suit against plaintiff for the purchase price of the stock and from selling and disposing of the said stock.

Defendant MacCrone & Company answered and by cross-bill asked that plaintiff be decreed to owe and to pay to it the amount due on the purchase price of the stock. The other defendants answered. A temporary restraining order was made agreeable to the prayer of the bill of complaint, but defendant Mac-Crone & Company was permitted to sell and dispose of said stock which sale “shall in no wise affect the claim of the plaintiff to the relief prayed for in his bill of complaint, nor affect the claim of MacCrone & Company to hold plaintiff liable for any loss that may result on such sale.” A sale of the stock under this order resulted in a loss of $8,964.50. After hearing decree was entered granting to plaintiff the relief prayed in his bill. The defendants have appealed. Plaintiff contends that on the hearing it was established :

“(1) A conspiracy existed between MacCrone & . Company and Wallace & Company for the purpose of selling and unloading one thousand shares of this stock upon the plaintiff at and for the price of $28 per share.
“(2), That MacCrone & Company, through their duly authorized officer and agent, O. C. Timewell, consented to a cancellation of the check in question, and also took and received in their own name for their own use and benefit an assignment and transfer of the certificates of stock in question in this case, and thereby discharged the plaintiff from any further liability of said check, thereby recognizing the unfair method by which the sale of said stock to said plaintiff had been consummated and the voidable nature of said sale and of said check; and that the threats of said MacCrone & Company thereafter to institute proceedings at law to enforce the payment of said check, operated as a fraud upon the rights of said plaintiff.
“(3) That outside of any conspiracy MacCrone & Company was guilty of fraud upon the plaintiff in the transaction in question, entitling and authorizing the plaintiff to refuse to honor the check in question and authorizing and requiring this court to vacate and set aside the sale of said stock and to cancel the said check.”

Conspiracy. In this regard the first element of plaintiff’s claim is that for some time prior to November 12, 1918, Wallace & Company had been engaged in “booming” the said stock in causing by the use of “artificial means and instrumentalities,” the said stock to have a seeming value in excess of its actual value. To support this part of his claim plaintiff related a conversation with defendants Peoples and Wallace, with whom he was acquainted, at the Hotel Statler in Detroit about November 6, 1918:

“He asked me if I had seen what Michigan Copper ■& Brass was doing. I said no. He said that he had bought a little a couple of weeks before at 20% and that now it was 22, 23, or 24. I told him that was fine. He said he was sure that within a week it would be 28. I told him that he always was enthusiastic. He said there was a deal on in which Mr. Durant of the General Motors was talking of buying stock and also E. C. Converse of New York and that he could sell his stock for 30, but would not sell it for less than 35. We talked about 15 minutes and that was the substance of the conversation. He said that he had just seen Mr. Durant at the D. A. C., but not to talk to.”

And of this conversation plaintiff also said “we were j oshing one another about Michigan Copper & Brass.” By this conversation, standing alone, plaintiff’s claim respecting the “booming” of prices could not be sustained. Plaintiff himself regarded it as mere “joshing” and as characterized by too much enthusiasm.

Plaintiff also testified that oh November 8, 1918, he received the following telegram:

“New York, 4:43 p. m., Nov. 8, 1918. “T. B. Preston,
“Sorosis Garment Company,
“Ionia, Michigan.
“May we have ten-day option on your Michigan Copper & Brass at 30; state number of shares.
“Chandler Bros. & Company.”

This telegram was received in evidence upon the statement of counsel for plaintiff:

“Part of the history of the case, if we do not connect it we do not ask anything for it.”

The record fails to show that defendants, or any of them, caused or contributed in causing the telegram to be sent, or that they, or any of them, had any knowledge of it in advance of its being received by plaintiff. But plaintiff seems to have been influenced by it. He refused the option at $30 per share, and the following day by telephone informed defendants Wallace & Company of the telegram and of his refusal to give the. option. It may be, for all the record shows, that some of defendants’ later enthusiasm as to the stock was due to this telegram and plaintiff’s statement regarding it. Plaintiff owned' more of this stock than any of the defendants.

We think the record shows that on November 11, 1918, there was a sale of 100 shares of this stock at $28 per share, and also a sale of 100 shares at $29.50 per share; that when the armistice was signed there was activity in stock markets; that “war” stocks, so-called, went down and that “peace” stocks, so-called, went up, and that Michigan Copper & Brass was a “peace” stock. Considering all of the evidence we think that plaintiff’s claim as to “booming” this stock is not sustained by the record.

The plaintiff claims that the consummation of this alleged conspiracy was his giving on November 12, 1918, an order to purchase 1,000 shares of said stock at $28 per share, which was brought about and induced by the concurring fraud of both of these brokerage concerns. On that day plaintiffs order to purchase the stock was given by telephone to W. D. Munro, salesman of defendant MacCrone & Company, who executed the order by purchase of 1,000 shares of the stock from defendants Wallace & Company. Plaintiff claims that it was represented by Munro that the stock to be purchased belonged to one Weil, a business man of Detroit; that he was buying the stock not for investment but for immediate sale, and he seems to have regarded Wallace & Company as “insiders” as to this stock, and says that had he known they were selling the stock he would not have purchased for the purpose stated or for any purpose, and further asserts that he was misled and deceived in this regard by Munro, and that Munro, as salesman for MacCrone & Company, failed to exercise toward plaintiff good faith, which it was the duty of the broker to do, but on the contrary concealed and misrepresented the identity of the owner of the stock in furtherance of the conspiracy to “unload” upon plaintiff 1,000 shares of the stock owned by Wallace & Company.

Of the telephonic conversation with Munro plaintiff testified:

“He asked me what was doing out there in Michigan Copper. I said ‘nothing.’ He said, ‘there seems to be some little excitement about it.’ I told him that I had a telegram from Chandler Bros., asking for an option on my holdings. I either told him what the telegram was or read it to him; I think I just merely told him.
“Q. So you informed him of the same telegram?
“A. Yes, sir. He said, ‘You know that party I was talking with you about.’ I said, ‘No, who do you mean?’ He said, ‘Weil has 1,000 shares of stock that he wants to sell, but he does not want to throw it on the market because it will break the price; the price Is now about 29 or 29%. I have got a party who will use 500 shares, do you want the other 500?’ I said that I did not want any unless I could use it with some one else, and if I could, I could probably handle 1,000 shares just as well as 500. He said, T can get it for you at 28%.’ I told him that I would see if I could but that he could see if he could get it for 28 and call me back in an hour, and in that time I would tell him whether I could handle it or not. He asked me if the price of 28 would be subject to a commission, and I said ‘Yes, ”

Munro, called by plaintiff for cross-examination, testified:

“Q. Now on the 12th of November, 1918, you called up Preston?
“A. Yes, sir. I wanted to get his order for some stock. I expected his order would consummate in a sale, providing I was able to get the stock at the agreed price.
“Q. At that time you say in your affidavit and admitted in the answer that you did mention Weil’s name?
“A. I did. I mentioned it to Preston.
“Q. What did you mention Weil’s name to Preston for?
“A. Mr. Preston requested to know whose stock I expected to get.
“Q. What did you tell him?
“A. I told him I would endeavor to get Mr. Weil’s.'
“Q. Why did you mention Weil’s name?
“A. Preston and I had talked over Weil as being one of the largest stockholders on many occasions previous to November 12th.
“Q. Did you mention 'Wallace’s name to him?
“A. I didn’t.
“Q. Why not?
“A. I didn’t have any reason to.
“Q. You did mention Weil’s name?
“A. No, Preston made the remark he wanted to know whose stock I expected to get and used those words, ‘That Jew.’ I said, may be possible to get Weil’s stock.
“Q. And the reason you mentioned Weil’s name was because he happened to do that, was it?
“A. I had endeavored to get Mr. Weil the day before and had been informed by a party in our office that Mr. Weil would dispose of his stock at a higher figure.
“Q. Was informed by who?
“A. By a member of our office, MacCrone & Company office.
“Q. You didn’t get any such information from Weil?
“A. I had known from Weil six weeks previous he wanted to dispose of his stock on the first market rise.
“Q. Did you have any object or purpose in mentioning Weil’s name to Preston?
“A. Except he wanted to know if it was ‘that Jew’ stock I had in mind. I replied yes, I was endeavoring to get Weil’s stock.
“Q. Had it occurred to you that maybe it was Weil’s stock that Preston had wanted?
“A. No, sir, never. We talked Michigan Copper & Brass stock.
“Q. Did it not appear to you if he got any stock perhaps it might be Weil’s stock was the one he wanted?
“A. That impression was not given. It was not mentioned that it must be Weil’s stock, and it did not occur to me that perhaps he did not want to purchase anybody else’s stock.
“Q. You didn’t know what reason he had for mentioning Weil’s name?
“A. No, sir; he just having had a previous conversation along that line.
“Q. That was all that occurred to you about it?
“A. Yes, sir.
“Q. Did you ask him if he was particular about the purchase of Weil’s stock?
“A. No, sir.
“Q. Why didn’t you?
“A. I didn’t see there was any necessity for it.
“Q. Why didn’t you say to Preston, do you want me to purchase Weil’s and not purchase “anybody else’s?
“A. I never had that request made to me in my life in my experience in the broker’s business to purchase any particular man’s stock.
“Q. Did it occur to you that possibly Preston might want to purchase this stock, if he purchased at all, for the purpose of making a quick sale?
“A. No, sir; that didn’t occur to me.
“Q. Did he say that was what he wanted?
“A. No, sir, didn’t mention that to me.
“Q. Do you know what it was he asked for an hour’s time to find out ?
“A. No, sir, I don’t; I don’t know why it was he made that request. He didn’t tell me why it was he made that request; he didn’t make any explanation why he wanted that length of time and I didn’t ask any explanation of it.”

Following the talk with Munro plaintiff talked with Wallace & Company, of which plaintiff said:

“I called up Wallace & Company after Munro talked with me the first time and I got A. W. Wallace himself. 1 said to Mr. Wallace, ‘I have just been called up by a house in Detroit’' — I won’t say that I told him who it was — and that they had 1,000 shares of Michigan Copper & Brass that could be bought I thought at 28 and asked him whether he had any place to use it. He said, ‘Sure I got a customer that can use it.’ I asked him what he could get for it and he said, ‘I can get 29% anyway and I think I can get you 30.’ I asked him if he was sure that he could handle it and he said, ‘Sure, it sold for 29% yesterday or the day before; market very active.’ I told him that I did not want this unless he could handle it. I would not take it. He said, ‘Go on and get it.’ ^ He said, ‘All right, I will call you right up if I do get it.’ I told them to see if they could buy it for 28 and if they can get it for that, I will call you right back. I said, ‘All right, that is fine.’ ”

Within the time Munro called plaintiff and said, as plaintiff claims:

“ ‘I have seen that party and have got the stock at 28’ — I won’t say he said he had seen the party or whether he said he talked with him, or had reached him. It was a very short conversation. I don’t recollect that anything further was said. In none of these talks was the names of A. W. Wallace & Company mentioned or the names of anyone else except Weil.”

And Munro testified:

“I confirmed to him for purchase of 1,000 shares of Michigan Copper & Brass Company for him for 28 plus % commission, called him up by telephone and told him that.
“Q. Did you tell him who it was you bought the stock of?
“A. No, sir.
“Q. Didn’t you tell him you bought the stock of that party? * * *
“A. No, sir. I told Preston I had secured 1,000 shares of Michigan Copper & Brass for him at his bid, which was 28 plus commission. ^
“Q. Did you tell him it wasn’t the Weil stock you had bought?
“A. No further mention was made of whose stock it was; it wasn’t asked as to whose stock it was.”

After this talk with Munro plaintiff talked with defendant Wallace and told him of his purchase of the stock. Wallace told him he would see the customer who was to handle it and call plaintiff immediately. Later that day Wallace wired plaintiff: “My client on copper expects definite information tomorrow— will advise you immediately.” Not hearing from Wallace plaintiff saw him two or three days later and was told that the prospective customer had reached no decision. A customer was not found. About November 15th or 16th plaintiff was advised that the stock was worth about $26 per share, and, as we have seen, sent his check to MacCrone & Company on November 18th. Plaintiff said that on November 19th, while visiting with a broker at Grand Rapids, he became suspicious and that it came to him like a flash that he had been “double-crossed” by the defendants. After requesting by wire that the stock should not be transferred to him he came to the office of Mac-Crone & Company and asked to be informed from whom the certificates for 1,000 shares had been purchased and was told by employees at the office that, owing to a. custom of brokers not to divulge names of persons for whom, or to whom, stock sales were made, the information would not be given. Plaintiff learned from the transfer agent that the stock had been purchased by MacCrone & Company from Wallace & Company, and then, as we have said, stopped payment on his check.

While we recognize that it was the duty of Mac-Crone & Company, in carrying out the commission as plaintiff’s broker, to act in good faith and with integrity and not to conceal from plaintiff material facts within its knowledge respecting the transaction, and, having considered the able, briefs of counsel and cases cited respecting fraud, conspiracy, manner and method and character of proof, we think that as to the claim of fraud on the part of MacCrone & Company the plaintiff has not sustained the burden of proof. It is significant that MacCrone & Company, said to have entered into a conspiracy to defraud plaintiff, a customer, in “unloading” upon him 1,000 shares of the stock owned by Wallace & Company, was itself the owner of over 3,000 shares of stock. Plaintiff did not tell Munro that he intended to sell the stock to Wallace & Company, nor is it to be inferred upon this record that Munro, or MacCrone & Company, before purchase and transfer of the stock, had knowledge of such intention. While between plaintiff and Munro there was conversation as to the Weil stock, plaintiff’s statements that the stock to be purchased was to be the Weil stock and that the purchase of Weil stock was reported to him are denied by Munro. That plaintiff told Munro that he was buying for immediate sale is also denied.

By a careful reading of this record we think it is not. established that it was understood and agreed by and between plaintiff and Munro, acting for Mac-Crone & Company, that to fill plaintiff’s order Munro was confined to the purchase of the Weil stock. The conversation as to this stock related to the possibility of purchase of the number of the shares at the price named. And unless plaintiff’s- claim in this respect shall be taken as established by the proofs it would not in this case be a breach of the duty of MacCrone & Company, his broker, to fail to disclose to plaintiff the name of the person from whom the stock had been purchased. See 1 Dos Passos on Stock Brokers and Stock Exchanges (2d Ed.), p. 223; Peckham v. Ketchum, 5 Bosw. (N. Y.) 506.

At the very hour that defendant Wallace was advising plaintiff to buy the stock at 28 and assuring him that defendants Wallace & Company would act as his brokers for immediate sale, ,a “quick turnover,” of the stock, that he should buy that they might sell for him, and that they believed they had a customer who would take the stock at 30, Wallace & Company were selling 1,000 shares of their own stock at 28. And they were selling these 1,000 shares to a broker, MacCrone & Company, knowing that at the very time-plaintiff, being advised by them, was buying 1,00ft shares.

Plaintiff testified:

“My complaint against Wallace & Company is that they made me believe that they had a customer for the stock and crookedly and dishonestly through misrepresentation they went and unloaded that stock on me through Munro.
“Q. They led you to believe they had a customer for it?
“A. Yes, sir; they led me to believe they had a customer for it and they could handle it at thirty dollars a share; then they went and sold it to me at 28 through Munro.”

Defendants comprising the firm of A. W. Wallace & Company were not sworn. We have in the record no explanation for their part of the transaction.

Rescission. Plaintiff contends that when at the office of MacCrone & Company on November 20, 1918, he indorsed the stock certificates which had been issued in his name and for which MacCrone & Company had paid $28,000, a full rescission of the agreement was accomplished. Regardless of the question of whether or not the employees of MacCrone & Company with whom plaintiff talked had authority to rescind, we do not agree with plaintiff’s contention. That was not the mind and understanding of the parties. Rescission then meant to MacCrone & Company a loss of at least $2,125. The indorsement of the certificates was, we think, to save unnecessary inconvenience of the broker and impairment of its capital, and was hot intended to be conclusive of the question of plaintiff’s liability.

It follows that plaintiff is not entitled to relief against MacCrone & Company. Nor upon this record can he be afforded relief against the other defendants.

The decree of the trial court is reversed. Decree will be entered here dismissing the bill of complaint and providing for the surrender and cancellation of plaintiff’s check and for recovery by defendant Mac-Crone & Company against the plaintiff of the sum of $8,964.50 and interest. The decree will be without prejudice to such further proceedings by plaintiff against remaining defendants, or any of them, as may be advised. Defendants will recover costs of both courts.

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


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    DROBNICKI v. PACKARD MOTOR CAR CO.
    Negligence — Personal Injuries — Inability oe Master — Scope of Servant’s Employment.
    In an action against the owner of a motor truck for personal injuries to a boy six years of age, where 'the evidence conclusively shows that at the time of the injury the driver of the truck was on business of his own and not that of his employer, the trial judge properly directed a verdict for the defendant.
    On liability of owner when car is being used by another for his own business or pleasure, see notes in 1 L. R. A. (N. S.) 235; 9 L. R. A. (N. S.) 1033; 14 L. R. A. (N. S.) 216; 21 L. R. A. (N. S.) 93; 26 L. R. A. (N. S.) 382; 33 D. R. A. (N. S.) 79; 37 L. R. A. (N. S.) 834; 47 L. R. A. (N. S.) 662; L. R. A. 1916A, 957.
    Error to Wayne; Codd (George P.), J.
    Submitted June 11, 1920.
    (Docket No. 65.)
    Decided December 21, 1920.
    Case by Kazmier Drobnicki, an infant, by his next friend, against the Packard Motor Car Company- for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Z. L. Lewwndowski, for appellant.

      John B. Coughlin, for appellee.
   Moore, C. J.

On the 20th day of June, 1918, the plaintiff, a child of six years, was standing in the street in front of his home, about five feet away from a motor truck owned by the defendant and in charge of two of its employees. One of the defendant’s employees in charge of the truck at the time in question was the driver, the other was his helper. The driver left his truck for about a minute while he went into the barber shop to' talk to a friend, after which the driver ran out of the barber shop and without looking to the rear of the truck, and without giving any warning backed the truck against the plaintiff, causing severe and permanent injuries to his foot. This suit was brought to recover for those injuries.

The trial judge directed a verdict in favor of the defendant. We quote from his direction:

“However in that connection there arises another point, and that is, that a master is liable for the negligent acts of his servant only when such negligent act is committed by him while on his master’s business, or within the scope of the employment for which he was hired.
“Now, on cross-examination of the driver of this car it developed that the house in front of which he stopped was a place in which there was a room that he was looking at for his own use, and that the place on Milwaukee avenue was several blocks away from the ordinary route to the place to which he claimed he was going on the day and date in question.”

For the reason that he thought thé driver was on his own business and not the business of his master he directed a verdict and judgment in favor of the defendant. The case is brought here by writ of error.

It may be well to recall some of the testimony. The driver was called under the statute; part of his testimony reads:

“Q. Well, where were you going with this truck on this day?
“A. In the morning I was told — the boss told me, he says, ‘Edd, there is no burlap boxes,’ the big boxes we got from this here Mount Elliott plant of the Packard Company. I used to get burlap boxes and take them down to the plant. If they were short we had to get boxes — ‘When you get time get them boxes when you get your yard cléaned up.’ When I got the yard cleaned up I forgot the burlap boxes, in the meantime I had a little time in the afternoon; I finished up; towards evening I happened to think of this place on Mount Elliott and I went out through the rear gate on Harper avenue. In the meantime I went down to my friend’s place; I wanted to see him a few minutes about a room. So I stopped the truck and went in there and talked to the fellow a minute. I came right out, looked behind me, no one was behind me; that was on the boulevard; you cannot drive with the truck on the boulevard and the street wasn’t wide enough for me to turn around; I therefore wanted to back up to Moran avenue so I turned around and looked back; in the meantime I hit this .boy; I don’t know how it happened.
“Q. You were backing up to go to Mount Elliott to. get the burlap boxes, is that it?
“A. Yes, sir.
“Q. Did you see the boy before this happened?
“Á. No, sir.
“Q. Now, you didn’t sound your horn, did you?
“A. If I did you couldn’t' hear it. He was right on top of me. I couldn’t hear the horn, it wasn’t very good.”

On the cross-examination he testified in part:

“Q. Now, on this afternoon when you took this truck out and went over to where the accident happened you took the truck out there at that time without any direction from anybody, didn’t you?
“A. I took the truck to get these boxes. I was told to get these boxes as soon as I cleaned up.
“Q. What did you go over to 899 Milwaukee East for?
“A. I merely asked a friend of mine — I had some business between him.
“Q. Who was the,friend?
“A. Stanley Machiki in regard to a room — I think his name is.
“Q. Where did you see him?
“A. In the barber shop.
“Q. He was in the barber shop?
“A. Yes, sir.
“Q. You went over, to see about getting1 a room for yourself, didn’t you?
“A. Yes, sir.
“Q. Did the foreman know you were gone?
“A. Why, he never did know where I was going. * * *
“Q. Now, the place you drove out there wasn’t in the direction of this Peter Smith Heater Plant, was it?
“A. Peter Smith was on Mount Elliott and Milwaukee, just east of that, or west, I should say, west of Milwaukee off of Mount Elliott.
“Q. How far did you drive on Milwaukee?
“A. About one long block to Moran.
“Q. What is that? .
“A. About one long block.
“Q. Then, did you drive a little short block?
“A. Well, yes, sir; 200 feet to that place.
“Q. You were over there to see about this room?
“A. Yes, sir.
“Q. If you had been going direct to the Peter Smith Plant you wouldn’t have gone down that direction at all, would you?
“A. No, sir.”

There is no suggestion in the record that, in order to do the employer’s work, he had to go the way he did. It is also shown the city did not allow trucks on the boulevard.

We have not overlooked the cases of Stapleton v. Brewing Co., 198 Mich. 170 (L. R. A. 1918A, 916), and Hatter v. Dodge Bros., 202 Mich. 97, but think a reading of the opinions therein will show them distinguishable.

The case is controlled by Brinkman v. Zuckerman, 192 Mich. 624. See, also, 18 R. C. L. p. 798 et seq.; L. R. A. 1916A, 957.

The judgment is affirmed, with costs to the appellee.

Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    PEOPLE v. BRICKER.
    Criminal Law — Intoxicating Liquors — Druggists — Information — Evidence—Variance.
    Where in a prosecution of a druggist for violation of the liquor law (2 Comp. Laws 1915, § 7033), the information charged that the illegal sale was made by defendant’s clerk, and the evidence on the trial showed that the sale was made by defendant personally, the variance was fatal, and the conviction will be set aside.
    Exceptions before judgment from St. Clair; Tappan (Harvey), J.
    Submitted June 17, 1920.
    (Docket No. 81.)
    Decided December 21, 1920.
    Chester E. Bricker was convicted of a violation of the liquor law.
    Reversed and defendant discharged.

      Walsh & Walsh, for appellant.

      Henry Baird, Prosecuting Attorney, for the people.
   Clark, J.

The defendant was prosecuted for an alleged violation of section 3, Act No. 313, Pub. Acts 1887, as amended, being section 5381, 2 Comp. Laws 1897 (2 Comp. Laws 1915, § 7033), which provides in part:

“It shall not be lawful for any druggist, nor for any person whose business consists in whole or in part of the sale of drugs and medicines, directly or indirectly, by himself, his clerk, agent or servant, at any time, to sell,- furnish, give, or deliver, any spirituous, malt, brewed, fermented or vinous liquor, or any mixed liquors, a part of which is spirituous, malt, brewed, fermented or vinous, to a minor, except for medicinal or mechanical purposes, on the written order of the parent or guardian of such minor, nor to any adult person whatever, who is at the time intoxicated, nor to any person in the habit of getting intoxicated.” * •* *

It was charged that a sale of spirituous and intoxicating liquor had been made on April 22, 1917, to a person in the habit of getting intoxicated. Defendant was convicted. No evidence was offered in his behalf. We are asked to set aside the conviction for several reasons, only one of which need be considered. The information charged that the defendant by his clerk, agent and servant sold a quart of whisky to one in the habit of getting intoxicated. The evidence of the people was that the sale had been made by the defendant personally, to which evidence counsel for defendant objected. The objection was overruled. That there was a fatal variance between pleading and proof and that there was no proof that an offense had been committed as charged and that the defendant should, therefore, be discharged, was the substance of a request to charge which was refused.

We think that under the charge as laid admission of testimony of a sale by the defendant himself was erroneous. A mode of committing this offense was charged, namely, a sale by the clerk, and proof of another mode, namely, a sale by defendant himself, was incompetent.

“If an offense be committed in either of various modes, the party charged is entitled to have that mode stated which is proved on the trial; and when one mode is. stated and proof of the commission of the offense by a different mode is offered, such evidence is incompetent by reason of variance.” 1 Wharton’s Criminal Evidence (10th Ed.), p. 279.
“The part of the charge describing the manner of the offense must conform substantially with the evidence introduced to support it. A material variance in descriptive matter is fatal.” 22 Cyc., p. 456.
“In criminal proceedings, the accused is entitled to demand and know the nature and cause of the accusation against him. * * * Such facts must be averred that, if admitted, would constitute the offense and establish the guilt of the accused. The elements of the offense must be so stated that he can know what he is to meet and prepare for his defense. The particular transaction must be so identified that his acquittal or conviction will be a bar to a subsequent prosecution for the same offense.” People v. Quider, 172 Mich., at page 285.

The request to charge should have been given. It follows that the conviction is set aside and the defendant discharged.

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


author: Bird, J.

text:
    DARISH v. SCOTT.
    1. Negligence — Evidence — Negligence Per Se — Question for Jury.
    In an action against the driver of an automobile for causing personal injuries resulting in the death of plaintiff’s decedent, where, under the evidence, it was a question of fact whether defendant was violating the Ordinance of the city of Detroit or 1 Comp. Laws 1915, § 4818, at the time of the accident, and was therefore prima facie guilty of negligence, the trial judge was in error in directing a verdict for the defendant, and the question of his negligence should have been submitted to the jury under proper instructions.
    On the question of speed of automobile as negligence, see notes in 25 L. R. A. (N. S.) 40; 38 L. R. A. (N. S.) 488, 42 L. R. A. (N. S.) 1180; 51 L. R. A. (N. S.) 993.
    On reciprocal duty of driver of automobile and children in street, see note in L. R. A. 1918A, 245.

      2. Same — Contributory Negligence — Contradictory Testimony —Question eoii Jury.
    Where the case turned upon the testimony of one witness, whose testimony upon direct-examination tended to show that the question of decedent's contributory negligence was a question for the jury, but whose cross-examination clearly showed she was guilty of contributory negligence as a matter of law, the question as to which version was the correct one was a question for the jury, under proper instructions.
    Error to Wayne; Webster (Arthur), J.
    Submitted October 5, 1920.
    (Docket No. 12.)
    Decided December 21, 1920.
    Case by Peter Darish, administrator of the estate of Mary Darish, deceased, against Ralph B. Scott and another for the alleged negligent killing of plaintiffs decedent. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      Clarence P. Milligam., for appellant.

      Frank C. Cook and John P. O’Hara, for appellees.
   Bird, J.

On the afternoon of August 31, 1917, defendant Scott was driving his automobile in a westerly direction on Grand River avenue in the city of Detroit. Soon after reaching Woodward avenue the traffic officer gave the Grand River avenue traffic the semaphore to “go,” and defendant started across. When he reached the west curb line of Woodward avenue he slowed his machine almost to a stop on account of the large number of pedestrians passing the intersection. After a short pause the pedestrians separated and opened a lane for him to pass through, whereupon he increased the speed of his car to 8 or 10 miles an hour before reaching the building line of Woodward avenue. The sidewalk on Woodward avenue at that point is 20 feet wide. Just west of the building line he ran into plaintiffs intestate, a young girl nearly 14 years of age, knocking her down and injuring her so seriously that she died a few hours thereafter.

The case was tried upon the theory that defendant Scott drove his car into and through the congested area in a reckless and negligent manner in that the speed of the car was excessive, if measured either by the statute or by the ordinance, and that he did not give sufficient warning of his approach. At the conclusion of plaintiffs testimony a verdict was directed for defendant because the trial court was of the opinion that plaintiff’s intestate was guilty of contributory negligence. Whether the verdict was rightly directed is the principal question which we are asked to consider.

The case turned upon the testimony of one Charles G. Martin, a pedestrian, who was traveling in a southerly direction on Woodward avenue. He appears to have been the only witness who was able to testify as to the movements of the girl just preceding the accident. Appellant relies upon his testimony for a reversal and defendants rely upon it to sustain the judgment. Upon direct-examination he testified that the girl came to the edge of the curb at his right, hesitated a moment and started across, that when about three feet from the curb the car collided with her. Excerpts from his testimony follow:

“I saw him cross the car track with his'machine and I saw him when he got clear of the car tracks, and as he headed into Grand River he stopped after he crossed the west traveled part of Woodward. He was right at the curb line then, that would bring about 20 feet from the point where I was standing. When he got there he did not stop his machine. He just eased his machine down so that his wheels were just turning about a mile an hour, then he started up again to about five; he did not come to any full stop.
“Q. He slowed down, you say. Did he give every indication that he was going to stop?
“A. Yes, he had his car—
“Q. You thought he was going to stop?
“A. Well, I knew he was not going to stop because he just eased his car down. * * *
“Q. He gave every indication that he was going to stop when he was about 20 feet from the point where you sto'od?
“A. Yes, sir. * * *
“Q. Where was the little girl when you first saw her?
“A. When she came right along side of me while I was facing south.
“Q. That is, she came on which side of you, over to this side or the other side?
“A. On the west side of me.
“Q. On the west side of you. Did you see the— you have already testified you saw the machine start up at that time?
“A. Yes, sir.
“Q. Did you see the machine strike the child?
“A. Yes, sir.
“Q. Now, how far was the little girl from the curb when the automobile struck her ?
“A. Oh, the best that I can remember I guess about three feet. So I made a reach for her, the reach of my hand touched her clothes. * * *
“Q. What part of the machine struck her?
“A. The lamp on this here side, the right-hand side. After that I seen her under the hood of the engine. I could not say whether the wheel went oyer her or not, because it was done so quick. * * '* To the best of my knowledge she came from the north. The first I noticed her was when she was along side of me at the curb. *- * *
“Q. The time she stood there, the time she came and stood there, Mr. Martin, did you see the automobile, was it still there?
“A. No, it was right over, it was half way between. He was coming through, as I said before, she stepped ■ up when hq was coming through. He speeded up.
“Q. He speeded up?
“A. As I said before, either speeded or started up there, either way, as you take it, started or speeded, either way.
“Q. She was off the sidewalk when you tried to grab her?
“A. Yes, sir.
“Q. At that time you noticed the machine was then starting up?
“A. Yes, sir.
“Q. That is right, is it not?
“A. My fingers touched her clothes.
“Q. All right. But what the auto was doing when she was standing along side of you, you don’t know positively, is that right?
“A. I don’t know.
“Q. You don’t know. It might have been back there at a stop ?
“A, It might have been.
“Q. When you tried to grab her she was in the street and the machine was then approaching and started ?
“A. Approaching.
“Q. And it was then within what distance of the child at that time?
“A. In what way do you mean, from'the curb?
“Q. How far would it be east of this little girl at that time?
“The Court: At what time?
“Q. At the time you tried to grab her when she was in the street and the machine was approaching.
“A. She was just about, maybe six inches away from the machine, or a foot or so. * * *
“Q. From the time he started up until he struck the girl there was no horn sounded?
“A. No horn sounded, that is what I said before.
“Q. He struck her with a great deal of violence, did he not?
“A. It was a hard blow.
“Q. A hard blow? How fast was he running, in your judgment, when he struck the child?
“A. Well, I would only approximate between 5 and 10, pretty close to 10.
“Q. Close to 10 miles an hour?
“A. Pretty close.
“Q. He was right then at the intersection?
“A. Yes, sir.
“Q. When he started up he was going about 8 or 10 miles, as near as you can figure?
“A. As near as I can figure.”

It is argued by counsel that this testimony is open to the inference that at the time the girl concluded to venture across, the machine was upwards of 20 feet away, going slowly and giving the appearance that it was about to stop, and if this were the situation the girl was not guilty of contributory negligence, as a matter of law, but her negligence was a question of fact for the jury.

Subsequently, on cross-examination, the witness testified as follows:

“I was standing here, and I was looking this way when * * * watching this fellow coming. All of a sudden a little girl came right along side of me here, and she started out. I made a reach for her like this, my fingers touched her clothes, then there was a flash, and she was down.
“I was standing there, waiting for this car to pass. I could see it very distinctly and the car could be seen by anyone else who was standing along there if they were looking. A person looking across here ought to see it if he was watching out.
“Q. You say the first thing you knew this little girl came along side of you?
“A. Yes, sir, and started out.
“Q. Started out in the street?
“A. Yes, sir.
“Q. Where was the machine when this little girl came along beside you and started into the street?
“A. Well, the headlights then were just a little ways past me.
“Q. The headlight was past you?
“A. Yes, sir.
“Q. You mean to say that she ran directly out . into the path of the machine?
“A. Right into the machine; struck it.”

Subsequently the witness modified, to some extent, his testimony given upon direct and cross-examination. He finally concluded by saying that he did not know how far away the car was when the girl stepped into the street.

It is argued by defendant’s counsel that this testimony given upon cross-examination made the girl guilty of contributory negligence, as a matter of law, and that the court was right in directing a verdict in accordance therewith. If it be true that the defendant drove his car through a narrow lane, made by the pedestrians separating, at the rate of 8 to 10 miles an hour, he violated an ordinance of the city of Detroit. If he did not sound his horn in approaching and passing through this lane, he' violated the statute (1 Comp. Laws 1915, § 4818), and, therefore, would be prima, facie guilty of negligence. Westover v. Railway Co., 180 Mich. 373. The question as to whether he did sound his horn, and the question as to whether he drove faster than was reasonable and proper, under the circumstances, were questions for the jury, and the fact that he drove in excess of the ordinance rate at that point was a fact the jury had a right to take into consideration in determining whether he was negligent. Cook v. Johnston, 58 Mich. 437 (55 Am. Rep. 703); Rotter v. Railway, 205 Mich. 212.

But this, of course, would be of no avail to the plaintiff if his intestate was guilty of contributory negligence. We are impressed that both counsel have some basis for their respective contentions. The witness, Martin, first testified that the girl started across just as Scott started to come through the lane. At that time he was moving slowly and was upwards of 20 feet east of her. Keeping in mind the speed at which traffic of this kind ordinarily moves in congested areas in a city, we think it ought not to be said, as a matter of law, that the girl was guilty of contributory negligence in attempting to go across ahead of the car. Had defendant moved with the caution that one ordinarily does, under those circumstances, she would doubtless have cleared the machine in safety. Then, too, it is probable, as suggested by counsel, that the girl’s decision to start across may have been influenced in some degree by the action of two ladies who started across about the time she did, but who saw their danger in time to'return to the curb. If the direct testimony of the witness is to be accepted as the true version of the affair we are satisfied that the negligence of the girl was a question for the jury.

On the other hand, the cross-examination of the witness clearly shows the girl was guilty of contributory negligence, as a matter of law. If the girl ran immediately in front of the machine or ran into the machine, as the witness stated, plaintiff would not be entitled to recover because of her negligence. The question as to which of these versions was the correct one was a question for the jury and not for the court. Abbott v. Insurance Co., 208 Mich. 674, and cases cited. We think the court should have submitted the question of her negligence to the jury under both versions of the testimony, at the same time instructing them as to the rule of law to be applied in the event they found the fact either way. •

In view of this conclusion, the judgment will be vacated and a new trial ordered. The plaintiff will recover costs in this court.

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


text:
    COLLINS v. ALBERT A. ALBRECHT CO.
    1. Master and Servant — Workmen’s Compensation Act — Loss of Eye — What Constitutes.
    Where plaintiff was blind in one eye, and while working as a carpenter received an injury to the other eye, destroying 75 per cent, of its vision, so that he was unable thereafter to work at his occupation of carpenter, he has lost an eye within the meaning of the workmen’s compensation act, although he still has 25 per cent, of vision in the injured eye.
    2. Same — Total Disability — Loss of Eye — Compensation.
    Since the accident in question, standing alone, would not have caused total, but only partial, disability, plaintiff should be awarded the specified amount fixed by the statute for the loss of an eye rather than an award as for total disability. Weaver v. Maxwell Motor Co., 186 Mich. 588.
    On amount recoverable for the loss of an eye under workmen’s compensation act, see notes in L. R. A. 1916A, 136, 254; L. R. A. 1917D, 167.
    Certiorari to Industrial Accident Board.
    Submitted October 21, 1920.
    (Docket No. 39.)
    Decided December 21, 1920.
    Alex. Collins presented his claim for compensation against the Albert A. Albrecht Company for injuries received in defendant’s, employ. From an order awarding compensation, defendant and the General Fire & Life Assurance Corporation, Limited, insurer, bring certiorari.
    Reversed and remanded.

      Kerr & Lacey, for appellants.

      Douglas, Eaman, Barbour & Rogers, for appellee.
   Bird, J.

Plaintiff is a carpenter by trade. Defendant Albrecht Company is a contractor engaged in construction work. While employed by defendant in September, 1917, plaintiff suffered a serious injury to bis right eye, due to a flying nail which came in contact with it. Having some years previously lost the sight of his left eye, he was practically blind for a time. Since his recovery it is found that he has lost 75 per cent, of vision of the injüred eye. Following the injury the defendant insurance company voluntarily paid him a weekly award equal to that specified in the statute for the loss of an eye, and this it continued to do for a period of 99 weeks. It then refused to make further payment, whereupon plaintiff applied for arbitration. This was granted, and, after a hearing, the arbitrators made an award of $10 a week during disability. From this award the defendants appealed and the matter was passed upon and affirmed by the industrial accident board.

It is the contention of defendants that the testimony does not justify this award, that the maximum allowance which could be awarded is $10 a week for 100 weeks, the statutory allowance for the loss of an eye. Counsel further express doubt as to whether any award could be legally made.

Plaintiff’s counsel argue, in support of the award, on the theory that plaintiff has not lost an eye; that he still has 25 per cent, vision in the injured eye, but is incapacitated for work in the employment in which he was engaged. After considering with some care the testimony bearing on the loss of vision of plaintiff’s injured eye we have concluded that plaintiff has lost an eye within the meaning of the compensation law. While the testimony shows that he has yet 25 per cent, vision in the injured eye and can get around the city, reads signs and locate offices in office buildings, it also shows that the remaining vision is insufficient to enable him to work at his trade. This is shown by the testimony of Dr. Waldeck, who testified that he examined plaintiff on December 6, 1918, and found him

“totally blind in his left eye, that his right eye showed a dense, white scar on one side of it. A portion of his iris had been removed by a kind of operation, also an immature cataract was formed. Without glasses he had 20/80 vision, and with glasses he was, with difficulty, able to read a newspaper, and his sight will diminish; he has 25 per cent, vision now.”

He also testified that he would not be able to work on a ladder or scaffold. That as a carpenter he had lost practically the use of his vision.

Having reached the conclusion that plaintiff has lost an eye, within the meaning of the compensation law, the question as to whether he shall receive the specified amount fixed by the statute for the loss of an eye, or an award for total disability, is one that is settled by the case of Weaver v. Maxwell Motor Co., 186 Mich. 588. Upon a like state of facts it was there said:

“In the instant case the loss of the first eye was a partial disability for which, if our workmen’s compensation law had been in existence, the then employer would have been liable, and for which disability the present employer was in no degree the cause. The loss of the second eye, standing by itself, was also a partial disability, and of itself did not occasion the total disability. It required that, in addition to the results of the disability occasioned by the accident of seven years ago, there should be added the results of the partial disability of the recent accident to produce the total disability. The absence of either accident would have left the claimant partially incapacitated. We think it clear the total incapacity cannot be entirely attributed to the last accident. It follows that the compensation should be based upon partial incapacity.”

We think this case must control the present one and that plaintiff should be awarded the statutory allowance for the loss of an eye.

The award made by the industrial accident board will be set aside and the record remanded for further proceedings agreeable to this opinion. No costs will be allowed either party.

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


text:
    WILLIAMS v. MISSOURI VALLEY BRIDGE & IRON CO.
    1. Master and Servant — Workmen’s Compensation Act — Accidental Death — “Caisson Sickness.”
    Where plaintiff’s husband was working underground in a caisson under air pressure, and, on coming to the top of the caisson, entered an air-tight locker from which the air should have been slowly released, gradually reducing the pressure, so that it would be safe for him to come into the open air, hut, through inattention or neglect of the employee in charge, the pressure was reduced too rapidly and dizziness or “caisson sickness” resulted, causing him to fall from a ladder which later resulted in his death, the death was caused by an accident arising out of thé employment, within the meaning of the workmen’s compensation act, for which the master is liable, since the thing which caused his death was not inherent, hut came on suddenly, and was caused by inattention and neglect of a co-employee. Distinguishing Van Gorder v. Packard Motor Car Co., 195 Mich. 588.
    2. Same — Occupational Diseases.
    Nor was the cause of death an occupational disease, which comes on slowly, but the “caisson disease,” which was responsible for tbe accident, developed in a few moments as the result of tbe inattention and neglect of another, which was the unusual thing, the happening, the accident. Distinguishing Adams v. Color Works, 182 Mich. 157.

      Authorities passing on the question of incapacity resulting from industrial or occupational disease, are collated in notes in b. R. A. 1916A, 106; L. R. A. 1917D, 113; L. R. A. 1918F, 872.

      S. Same — Evidence—Sufficiency.
    The showing by plaintiff of her marriage to deceased and support by him, held, sufficient to authorize the award made by the industrial accident board.
    Certiorari to Industrial Accident Board.
    Submitted October 12, 1920.
    (Docket No. 70.)
    Decided December 21, 1920.
    Mary Lee Williams presented her claim for compensation against the Missouri Valley Bridge & Iron Company for the accidental death of her husband in defendant’s employ.' From an order awarding compensation, defendant and the Maryland Casualty Company, insurer, bring certiorari.
    Affirmed.

      Stevens T. Mason, for appellants.

      Emil W. Colombo (John F. Kennedy, of counsel), for appellee.
   Bird, J.

During the year 1919, defendant Missouri Valley Bridge & Iron Company was engaged in constructing a bridge over the River Rouge for the Michigan Central Railroad Company. In constructing the concrete piers it was necessary to use a caisson. Plaintiff’s husband, Claude Williams, was employed by defendant to work in the caisson. At the time of the accident hereinafter referred to the caisson extended between 70 and 80 feet below the surface. At that depth the men in the caisson worked under an air pressure of from 87 to 40 pounds. When a shift was made the men on duty were brought to the top of the caisson by means of a ladder, where they entered an air-tight locker, 12 feet in diameter and 24 feet in height. After the men entered the locker it was closed and the air pressure slowly reduced, usually at the rate of a pound a minute. It was shown that if the air pressure is reduced more rapidly than a pound a minute it is likely to result in what is called “caisson sickness” among the men. This is a dizziness accompanied with partial paralysis of the limbs. On the early morning of July 4th, Williams was coming out of the caisson with his companions. They had entered the air-tight compartment and the air was being released. Williams stood on the ladder leading out of the locker. By inattention or neglect, Eaton, the employee who had charge of the valve, allowed the air to escape too rapidly, with the result that Williams became affected with “caisson disease,”. and released his hold on the ladder and fell on the head of the man below him, striking on his stomach and chest, and later striking his head against the side of the shaft. He was removed from the locker and given medical aid, but survived only a few hours.

Counsel for defendants concedes that plaintiff’s intestate met his death through accidental means, but argues that the award is invalid because the fall which produced the injury was caused by conditions peculiar to the industry in which he was engaged. Effort is made to classify the present case among those to which Van Gorder v. Packard Motor Car Co., 195 Mich. 588 (L. R. A. 1917E, 522), belongs. It is also sought to bring it within the “occupational disease” cases, of which the lead poisoning case of Adams v. Color Works, 182 Mich. 157 (Ll R. A. 1916A, 283, Ann. Cas. 1916D, 689), is an example.

We are not persuaded that the present case falls within the first class mentioned. The reason why recovery has been denied in the first class named is oecause of some inherent physical defect which was the proximate cause of the injury and which had no causal connection) with the employment. Such, however, was not the situation in the present case. The thing which caused the death of plaintiff’s intestate Was not inherent. It was a condition which came on suddenly and was caused by the inattention and neglect of a co-employee in permitting the air to escape from the locker too rapidly. The locker was decompressed at the rate of two pounds a minute, whereas it should have been done at the rate of one pound a minute. This produced in Williams what is termed “caisson disease.” Herein lies the distinction between this and the Van Gorder Case. In that case epilepsy caused the fall. In the present case caisson disease caused it. The epilepsy had no causal connection with the employment. The caisson disease was directly due to it. It, therefore, arose out of the employment.

Neither are we persuaded that the case should be classed among the occupational diseases. It is true the testimony establishes the fact that caisson disease develops by the slow process, the same as occupational diseases usually do. Had Williams contracted caisson disease in this manner and his injury and death had resulted therefrom, the argument of counsel would have great force, but the caisson disease, which was responsible for this accident, developed in a few moments as the result of the inattention and neglect of another. In this inattention and neglect we find the unusual thing — the happening — the accident.

Objection is raised to the award because plaintiff did not establish her right to it. We think the testimony showing the marriage and support was ample to authorize the award which the board made in the premises.

Being impressed that the board reached the right conclusion, their award will be affirmed, with costs to the plaintiff.

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


author: Steere, J.

text:
    SMITH v. I. STEPHENSON CO.
    Master and Servant — Workmen’s Compensation Act — Common Laborer — Ability to Earn — Woodsman.
    On certiorari to review an order of the industrial accident board denying the petition of the employer and its insurer for the discontinuance of further payments to an injured employee under the workmen’s compensation act, on the ground that he was disabled in his employment as a “woodsman," where the evidence shows that at the time of the injury said employee was earning §16 a month and his board as a common laborer in a lumber camp, and at the time of this hearing he was earning an average of over §100 a month as a common laborer in a pulp and paper mill, the order of the board is reversed and the case remanded.
    The question of payments in lump sum to Incapacitated employee under workmen’s compensation act, is discussed in .notes in L. R. A. 1916A, 172, 262; L. R. A. 1917D, 179.
    Certiorari to Industrial Accident Board.
    Submitted October 7, 1920.
    (Docket No. 36.)
    Decided December 21, 1920.
    John Smith presented his claim for compensation against the I. Stephenson Company for injuries received in defendant’s employ. From an order denying a petition for the discontinuance of payments under an award, defendant and the Standard Accident Insurance Company, insurer, bring certiorari.
    Reversed, and remanded.

      Keena, Lightner, Oxtoby & Hanley, for appellants.

      S. M. Matthews, for appellee.
   Steere, J.

John Smith, above named, suffered injuries in an industrial accident on February 16, 1915, while employed in defendant I. Stephenson Company’s lumber camp north of Escanaba helping to load logs. He had been working at that camp 45 days, for about 7 days on roads and the rest of the time helping at log loading. He was a native of Finland, over 30 years of age, unmarried, and had been in the United States several years. His wages were $16 per month and his board. The highest pay he testified to ever having received before his injury was $30 per month and board. His account of the accident is: “I was walking up to hand a chain and the logs were rolling from the skidway and I got caught.” Though no bones were broken he proved to be badly hurt and was taken on that day tó St. Francis Hospital at Escanaba for medical care and attention.

■ Dr. Kitchen, who was called to attend plaintiff, testified he found him seriously injured internally, his condition at first being so low as to preclude operating for a time, but he rallied from the shock about the second day and obstruction of the bowels being manifest the doctor operated, finding the intestines seriously ruptured and peritonitis. The conditions found rendered necessary that an opening in his side should be maintained for a time with a tube inserted for discharge and drainage, which was kept open until his functions became normal and he was able to be up and around. The doctor testified that plaintiff was under his care about 8 months; that about 3 months after the first major operation he performed a minor operation closing the opening in his side, and there yet remained a bulging area or flat hernia on the right side of his abdomen “known as an incisional hernia” which he advised plaintiff required an operation to cure and offered to perform it. Plaintiff would not, however, consent, stating that he did not want any moré operations. The doctor testified his operations proved successful, plaintiff made a good recovery and his physical condition bécame perfect with the exception that he yet had the incisional hernia, and in witness’ opinion he could do any kind of work except such as might require heavy lifting.

Shortly after plaintiff was injured the accident was duly reported by his employer to the industrial accident board, followed by appropriate proceedings under its jurisdiction which resulted, by agreement of parties approved by the board, in an award of compensation to plaintiff at the rate of $4 per week during disability, commencing March 25, 1915. This was paid by defendant for 237 weeks, or over 4years, and up to September 1,1919.

In February, 1918, plaintiff petitioned the accident board for an order requiring of defendants an advance payment of $250 in a lump sum, stating in his petition as reason therefor:

“That he is a single man and no one depending upon him for support; that he has had two operations, but still needs another operation for the purpose of curing the rupture, in order to become completely well; that he is advised by doctors that such operation will cure him, and that he is quite helpless in his present condition; that he has no funds for this purpose, and that an advance lump sum payment would enable him to secure the needed operation, and as he is advised, would be of great service and advantage to him.”

Defendants signified their willingness to make such payment in form and amount prayed for in the said petition, and it was so ordered by the board. Plaintiff then went to Rochester, Minnesota, to consult the Mayo Brothers. Of this he was asked and answered as follows:

“You went there for an operation?
“A. Yes.
“Q. About when did you make the trip?
“A. August, 1918. * * *
“Q. Did the Mayo Brothers tell you to have an operation ?
. “A. Yes.
“Q. You went to Rochester to have an operation, did you not?
“A. I went down to see the Brothers.
“Q. Why didn’t you have an operation at Rochester?
“A. I don’t want any more operations.”

On December 5, 1919, defendants filed a petition ' with the industrial accident board for relief from further payment, denial of which is now here for review.

On February 16, 1920, when plaintiff’s testimony was taken upon this petition for release from further payment, he testified that he had been working for the Escanaba Pulp & Paper Company since the first of the preceding April, beginning at 30 cents an hour, his wages being later increased to 45 cents an hour; that he first worked at a pulp machine taking away the pulp and putting it on the truck and had also worked at piling pulp on cars, which was the nature of his employment at the time his evidence was taken; that his duties were to pick up the slabs of pulp from where they had been piled and put them on a car, the slabs which he had to lift weighing about 40 pounds. G. F. Germanson, a foreman for the Escanaba Pulp & Paper Company, testified plaintiff had been working under him as a common laborer attending machines at the pulp mill and working on the pulp pile, that he was always able to keep up his end of the work with other men, had been working quite steadily and witness always found him a good man to work. The price per hour and amount of wages paid plaintiff by the Pulp & Paper Company were shown without dispute, and it appeared that between April 1 and December 31, 1919, he had earned a total of $926.73, receiving in the month of April $103.80, in May $127, and so on in varying amounts, his average wages being over $100 per month.

Following the hearing on said petition, on February 16, 1920, the industrial accident board found that plaintiff “was still totally disabled in his employment as a woodsman, as a result of the injuries he sustained February 16, 1915,” denied defendants’ petition and ordered weekly payments to be made from September 1, 1919, and continued thereafter “in accordance with the agreement in regard to compensation and the provisions of the workmen’s compensation act.”

The board’s conception of what constitutes a “woodsman” is not altogether clear, but inferably under the testimony it was used as meaning any one who was working in the woods or employed at a lumber camp. While it might almost be assumed as a matter of common knowledge that Most of the men employed at lumber camps are in the fullest sense common laborers, plaintiff’s own testimony makes plain his status as a common laborer. He was working in a lumber camp for $16 a month and his board, part of the time on the roads used in connection with the woods operation there and part of the time helping to load logs under a top loader whom he was assisting in putting a wrapper-chain on the load when injured. He had never so far as shown earned over $30 per month and board in any employment. When this petition for relief from further payment was filed he was and had been for several months earning more at unskilled manual labor than he had ever been able to- earn before.

This case under the undisputed facts falls within the principles of and is controlled by Miller v. Fair & Sons, 206 Mich. 360, and the recent case of Leitz v. Labadie Ice. Co., 211 Mich. 565.

The order of the industrial accident board is reversed and the case remanded for such further proceedings in harmony with this opinion as parties may apply for and the board determine within statutory limitations.

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


author: Brooke, J.

text:
    KLING v. NATIONAL CANDY CO.
    1. Master and Servant — Workmen’s Compensation Act — Certiorari — Questions Review abre — Nature of Employment.
    On certiorari to review an order of the industrial accident board refusing to grant employer’s petition for an order discontinuing'payments to an injured employee, the finding of the board that at the time of the accident plaintiff was in an -“employment” is reviewable by this court.
    2. Same — Common Labor — Ability to Earn.
    Where the order of the board was based upon the finding that plaintiff was, at the time of the accident, engaged in an “employment,” and that he is unable to follow the same by reason of his injuries, but said finding has no evidential support in the record, but on the contrary it clearly appears that plaintiff’s occupation was that of a common laborer, and that he is now able to earn a much larger sum in the same factory at common labor than he was earning at the time of his injury, said order will be set aside.
    On amount of recovery by incapacitated employee under workmen’s compensation act, sea notes in L. R. A. 1916A, 136, 254; L. R. A. 1917D. 167.
    Certiorari to Industrial Accident Board.
    Submitted October 13, 1920.
    (Docket No. 18.)
    Decided December 21, 1920.
    Arthur R. Kling presented his claim for compensation against the National Candy Company for injuries received in defendant’s employ. From an order denying a petition for a discontinuance of payments under an award, defendant and the iEtna Life Insurance Company, insurer, bring certiorari.
    Reversed, and order set aside.

      Travis, Merrick, Warner & Johnson, for appellants.

      Willis B. Perkins, Jr., for appellee.
   Brooke, J.

Certiorari to the industrial accident board. The plaintiff, at that time a young man of 17 who had completed his third year in high school, was employed during vacation on August 7, 1917, by the defendant and set to work running a lozenge mixer. This machine was about 5 feet long, 3 feet wide and 18 to 20 inches deep and its base stood about 2 feet from the floor. On the inside of this trough-like box two spiral screws about 10 inches in diameter revolved slowly (20 to 22 revolutions per minute) in opposite directions. Into this receptacle several hundred pounds of sugar, a certain quantity of glúcose, gum, coloring matter and flavoring matter were dumped and the machine set in motion. It required about 15 minutes of operation to so mix the composition as to render it ready for the next operation. It then became the duty of the operator to remove the mixture from the machine. It is the claim of the plaintiff (denied by the defendant) that he was never instructed to stop the machine for this operation and that he and the other operators on like machines habitually and necessarily — if the work was to be performed with celerity — took the candy dough from the machine while it was in operation. Whatever the facts may be with reference to his instructions, on the 28th of August (after he had been at work on the machine exactly three weeks) plaintiff, in endeavoring to remove some small pieces of dough from the lower part of the machine with his left hand, was caught and that member was quite severely lacerated and crushed.

In the first report of the accident to the industrial accident board, as well as in the second report, the following appears:

“Occupation of injured employee — candy mixer.” On February 16, 1918, an agreement was entered into for compensation at the rate of $6.50 per week during total disability and at the proper rate per week during partial disability, if disability should become partial. At the time of his injury plaintiff was receiving $13 per week, which was about the average paid for such labor in defendant’s factory at the time. Plaintiff’s hand healed substantially within four months after the accident, but his injury resulted in a loss of a portion of his index finger, some loss of motion of the third and fourth fingers and the stiffening of the little finger — taken together, quite materially reducing the efficiency of the left hand.

Compensation was paid under the agreement without question until July 15, 1919, a period of 98 weeks. About this time the agent for the insurance company carrying the risk inquired of the employing defendant whether employment could be furnished plaintiff, and if so, at what wage. Being advised in the affirmative, a letter was written to plaintiff on July 8 th, advising him of the fact that he could secure employment with his former employer at a larger wage than he was receiving at the time of his injury. Plaintiff, however, was at this time attending Junior College in the city of Grand Rapids, and he paid no attention to the offer, nor did he seek employment after his injury and” recovery therefrom, either with his former employer or elsewhere.

Thereupon defendant filed a petition with the industrial accident board, asking that payment be discontinued. The hearing on said petition was had, at which testimony was taken and an order was ultimately made by the board in the following terms:

“ (a) That said applicant has been, since the date of the accident, August 28, 1917, and is at the present time, totally incapacitated for work in the employment in which he was engaged at the time of the accident, viz., that of a candy mixer.
“(b) That compensation should be continued from the time payments thereof were stopped, July 15, 1919, during applicant’s period of disability resulting from the accident, in accordance with the terms of the agreement in regard to compensation approved by the board on March 29,1918.
“It is, therefore, ordered and adjudged, that said petition should be and the same is hereby denied, and that said applicant is entitled to receive and recover from said respondents compensation from the end of the period covered by the last payment thereof, July 15, 1919, up to and including December 19, 1919, the date of hearing herein, a period of 22% weeks, making a total amount of one hundred forty-six dollars and twenty-five cents ($146.25), which shall be paid forthwith and receipt therefor filed with the board, and that subsequent to the last mentioned date compensation shall continue in the case in accordance with the terms of the approved agreement and the provisions of the workmen’s compensation act.”

This order is now reviewed in this'court upon writ of certiorari!

The sole question for determination upon this record is whether the board was justified in holding that plaintiff was entitled to compensation because of his total incapacity “for work in employment in which he was engaged at the time of the accident, namely, that of a candy mixer.” As bearing upon the character of the work in which the plaintiff was engaged at the .time of his injury, the following testimony of defendant’s superintendent was introduced by defendant:

“Q. What did he work at while he was there, Mr. Schroth?
. “A. At mixing lozenges.
“Q. Whether or not you would call that skilled labor?
“A. Not necessarily.
“Q. Why not?
“A. Well, for the reason that we can take almost any- ordinary .man and have him in position to mix these goods within practically a week or two weeks’ time.
“Q. As I understand it you would denominate it as common labor?
“A. I would, yes. * * *
“Q. Whether or not you would say it takes a man of some particular intelligence to run a machine of that kind ?
“A. Why, I wouldn’t say it takes a man of any intelligence to run it, no.
“Mr. Perkins (counsel for plaintiff): Objected to as leading.
“Q. Couldn’t you put most any man, or couldn’t you put any of your men on this machine and do the work?
“Mr. Perkins: That question does not really ask a question. I object to it as being double.
“Q. Whether or not, so long as you have1 observed, it, they have been able to do the work?
“A. Yes, we have done it.
“Q. Whether or not you would claim that working on a machine of that kind is an employment in itself, that is what I mean. I will explain my question. Certain men are known as electricians, other men as moulders, other men as machinists, skilled machinists. Would you term a man working on a machine like that — would he have learned anything in particular that he can follow as a trade?
“A. No, he wouldn’t.”

And on cross-examination:

“Q. In answer to Mr. Kelley’s question here a moment ago with regard to electricians, and so forth, if I understand you correctly what you mean is a man has not learned a specific trade there in a period of two weeks that he learns to run that machine, that is what you mean by answering that question?
“A. Well, I took his question to mean, would it make him a skilled man in any profession, which I don’t think it would.
“Q. That is whether he had learned a trade in that-period of time?
“A. Because he really in that period of time, or a longer period, wouldn’t learn the trade, because there is more attached to it.”

And on re-direct:

“Q. Whether or not Mr. Kling was what is known as a helper at the time he was injured?
“A. Well, we term them all practically as helpers, but designated some of them in different positions, such as this would be, we . would term this a mixer. We have that, and then I would say in another department we would call a man a machine runner or something like that, you see. Still, when it is all summed up they are classed about the same as helpers. Our business is really different than some others. We have as a rule one man in charge of a department, who is the candy maker of a department; he requires this help to turn out the output.
“Q. Whether or not you would say he is the only skilled man that you had in this department?
“A. Well, now I — we usually have one skilled man and another man who is learning or beginning so that he will be a good man to fall back on, and a second man to take the place of the other man if something should happen to him, so we wouldn’t have in any of the departments much over two men that we could term as skilled.
“Q. All the other men in this department are simply common laborers?
“A. They are.”

And no evidence was introduced on the part of the plaintiff to the contrary.

Plaintiff lays stress upon the fact that in the two reports of the accident the defendant employer used the language, “Occupation of injured employee— candy mixer”; and the further fact that, under the evidence, from one to two weeks’ training was required to enable plaintiff to properly perform his duties as such mixer. It is the further claim of counsel for plaintiff that the board’s finding that plaintiff was at the time of the accident in an “employment,” namely, that of candy mixer, is a finding of fact and therefore not reviewable in this court under our authorities. We are of the opinion that counsel overlooks our decision in the case of Leitz v. Labadie Ice Co., 211 Mich. 565, where this identical question arose, and the finding of the board was reversed. As has been noted by this court in Miller v. Fair & Sons, 206 Mich. 360, and Leitz v. Labadie Ice Co., supra, the question presented is not without difficulty. In the latter case, speaking through Mr. Justice Steere, we said:

“While, as suggested in that opinion, an exact definition of common labor, exclusive and inclusive, is not readily formulated, we think it may safely be said that, as generally used and understood, it signifies that kind of unskilled manual labor with or without simple tools, which is commonly done by the masses of working people in lines of employment necessitating no special'trade or previous training before engaging in them beyond what can be quickly learned and effectually performed by the laborer while employed at regular wage under direction of those in charge; as distinguished from that class of skilled and less common manual labor to perform which previous experience, apprenticeship, study, practice or manual training in some special calling,, handicraft or trade is required.”

In the case at bar, it is uncontradicted that plaintiff is now able, if willing, to earn a sum much larger than that of which he was in receipt at the time of the accident at what may be denominated “common labor”'in the factory in which he was employed; and we are constrained to hold, under the evidence quoted, that his employment at the time of the accident was in the nature of common labor and therefore that the order of the board finds no evidential support in the record. The cases of Foley v. Railway, 190 Mich. 507, and Jameson v. Walter S. Newhall Co., 200 Mich. 514, relied upon by plaintiff, have been considered, but in our opinion are not controlling.

The order of the board must be set aside.

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


text:
    DOCHOFF v. GLOBE CONSTRUCTION CO.
    1. Master and Servant — Workmen’s Compensation Act— Statutory Limitations nor Filing Claim.
    The six months statute of limitations fixed by the workmen’s compensation act (2 Comp. Laws 1915, § 5445), affects the right as well as the remedy of the injured employee.
    2. Same — Insurer Not an Agent — Notice.
    The insurer of an employer is not an agent of the latter for the purpose of being served with notice of claim for compensation for an injury to an employee under the terms of the workmen’s compensation act.
    3. Same — Compensation—Failure to File Claim Within Statutory Period.
    Where it clearly appears that neither the injured employee nor any person representing him made any claim upon the employer for compensation under the act within six months from the date of the accident, the order of the industrial accident board denying compensation will be affirmed.
    On time within which notice of injury and claim for compensation under workmen’s compensation act, must he given or other steps taken, see notes in L. R. A. 1917D, 138; L. R. A. 1918E, 559.
    Certiorari to Industrial Accident Board.
    Submitted October 21, 1920.
    (Docket No. 86.)
    Decided December 21, 1920.
    Nick Dochoff presented his claim for compensation against the Globe Construction Company and the General Accident, Fire & Life Assurance Corporation, Limited, insurer,' for injuries received in defendant’s employ. From an order denying compensation, plaintiff brings certiorari.
    Affirmed.

      R. E. Hofelich and Miller, Miller, Brady & Seeley, for appellant.

      Kerr & Lacey, for appellees.
   Steere, J.

Under provisions of the workmen’s compensation act, Nick Dochoff, plaintiff herein, was, on December 11, 1919, awarded compensation by a committee of arbitration at the rate of $10 per week for 100 weeks for the loss of an eye.

Defendants appealed therefrom to the industrial accident board denying liability for the following reasons:

“1. That the applicant was not in the employ of respondent at the time of the alleged accident ;
. “2. There was no accident within the meaning of the act arising out of and in the course of the employment ;
“3. There was no disability .as. result of the accident;
“4. No claim for compensation was made within six months;
“5. That if there was loss of an eye it was not occasioned by the alleged accident;
“6. Respondent did not have notice or knowledge of the accident within three months.”

On review the accident board reversed the decision of the committee on arbitration, on the ground that claim for compensation was not made upon the employer within six months from the date of the accident, as required by section 15, part 2, of the act (2 Comp. Laws 1915, § 5445). ■

There was testimony showing, or tending to show, that on October 6, 1918, Dochoff was in the employ of the Globe Construction Company, in the city of Flint, as a common laborer engaged in putting cement into a mixer, and while so doing a small piece of cement got into his eye, which so hurt and irritated it that within three days thereafter he had it treated by a physician in Flint to whom he was directed to go by his foreman, or “straw boss.” His eye grew worse and he went to the University hospital at Ann Arbor for treatment, but he eventually became totally blind in that eye as a result of the injury sustained on October 6, 1918.

The questions of whether the accident arose out of and in the course of plaintiff’s employment, and whether it resulted in the loss of his eye, were issues of fact with abundant evidence to sustain the finding of the committee of arbitration. .The accident board apparently so assumed in its decision, but held plaintiff was not entitled to an award upon the sole ground that his claim to the employer was not made within the six months limitation fixed by the statute. It is conceded that no written notice of the injury appears to have been given to the employer. There was evidence to support the claim that the employer’s actual knowledge of the same was within the 90-day limit.

Plaintiff was a foreigner unable to speak the English language. The next thing shown of him after he left the Ann Arbor hospital was a letter from Messrs. Miller, Miller, Brady & Seeley, a firm of attorneys in Toledo, Ohio, who wrote the industrial accident board as his legal representative, stating the facts and result of the injury as claimed by him, asking for blanks on which to make a claim for compensation under the Michigan law; and inquiring in that connection whether the Globe Construction Company was operating under the Michigan act. This letter was received by the industrial accident board on February 6, 1919, and answered under date of February 14, 1919, inclosing blanks and stating that the Globe Construction Company was insured under the act by the defendant assurance corporation, giving some directions as to filling out the blanks and concluding:

“On receipt of said claim blanks, we will notify the proper parties. You should mail one of these claim blanks to this office and to each of the respondents. Please try and give us the correct name of the employer.”

On March 4, 1919, the Toledo attorneys mailed to the industrial accident board claim for compensation made out upon the blanks which had been provided for that purpose, and setting out the name and address of claimant and employer, date of accident, nature of the injury, etc., stating in the accompanying letter:

“We are also taking this matter up directly with the Globe Construction Company and presume _ that they will turn the matter over to the General Accident Assurance Corp. for adjustment.”

This letter and application for compensation were received and filed by the industrial accident board on March 5, 1919. The record does not show that any copy of the notice of claim, or application, was mailed by the attorneys to the defendants as directed by the board until over six months after the accident.

On March 31, 1919, the industrial accident board sent the defendant Globe Construction Company the following letter:

“We are advised that an accident occurred October 6, 1918, in which Nick Dochoff was injured while in your employ while you were building roads on contract for the Flint County Road Commission. We will ask that this accident be reported on Forms 5-A and 6, or 5-B and 6, as the case may warrant. Form 5-A should have been filed within 10 days after the accident. Form 5-B should have been filed if this man could have returned to work within fourteen days after the accident, but if he could not have returned to work on the fifteenth day, then you should have filed Form 6, and as these reports are now past due, we will ask that you give this matter prompt attention. There is a fine of $50 which can be imposed on employers who do not give prompt reports of their accidents. We are inclosing blank forms for your use.”

This was received by the Globe Construction Company shortly after its date.

On the same date the industrial accident board mailed a letter to the defendant assurance corporation as follows: '

“In re Nick Dochoff v. Globe Construction Co. 10/6/ 18. We are in receipt of notice that an accident occurred to Nick Dochoff, the plaintiff in the above entitled case, on October 6, 1918, and he has filed Form 5, ‘Notice to Employer of Claim for Injury’ to cover' same.
“As this accident occurred some time ago, we will ask your prompt attention, proper adjustment or a definite, statement of your position in the matter.”

The defendant assurance corporation replied to this under date of April 3, 1919, as follows:

“Re Globe Construction Co., N. Dochoff, 10/6/18. We are in receipt of your letter of March 31, and wish to advise you that this accident has not been reported to this office. We have written to the assured for a report and as soon as same is received it will have our attention.” 1

This communication was received by the industrial accident board on April 4, 1919. The letter from the assurance corporation to the Globe Construction Company mentioned therein was not produced.

On April 10, 1919, the Globe Construction Company answered the letter it received from the industrial accident board dated March 31, 1919, as follows:

“Replying to your recent letter relative to Nick Dochoff, who claims injury on October 6, 1918, this man was not working on the date claimed but was on our pay roll the following two days. We are investigating this, matter and will write you more fully later.”

The industrial accident board received this letter on April 11, 1919. There is no evidence of any further report made by the Globe Construction Company. The treasurer of said company who had charge of the correspondence testified that the first knowledge which came to her of any claim by plaintiff for compensation was about May jL, 1919, in a letter with notice of claim inclosed received from the Toledo attorneys.

It appears from an examination of this correspondence that but one of these communications to defendants which were sent within six months after the accident makes mention of any claim for compensation. All the others refer to notice of the accident only. In its letter of March 31, 1919, to the assurance corporation the industrial accident board states it is in receipt of notice of an accident which occurred to Dochoff upon October 6, 1918, while in the employ of the Globe Construction Company, and that he had “filed Form 5, ‘Notice to Employer of Claim for Injury’ to cover same.” Aside from that statement the record is barren of any evidence of a communication to the employer from the employee or any. one in his behalf, giving notice of a claim for compensation within six months of the occurrence of the accident.

The material sections (2 Comp. Laws 1915, §§ 5445-5447) are as follows:

“Sec. 15. No proceedings for compensation for aii injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer three months after the happening thereof, and unless the claim for compensation with réspect to such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employee, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity.
“Sec. 16. The said notice shall, be in writing, and shall state in ordinary language the time, place and cause of the injury; and shall be signed by the person injured, or by a person in his behalf, or, in the event of his death, by his dependents or by a person in their behalf.
“Sec. 17. The notice shall be served upon the' employer or an agent thereof. Such service may be .made by delivering said notice to the person on whom it is to be served, or leaving it at his residence or place of business, or by sending it by registered mail addressed to the person or corporation on whom it is to be served, at his last known residence or place of business.”

This six months statute of limitations affects the right as well as the remedy of the injured employee. In Schild v. Railroad Co., 200 Mich. 614, this court said in an opinion by Chief Justice .Osteandee:

“The judicial power does not extend to setting aside the plain terms of the law. The proceeding is special. The condition of giving notice of a claim for compensation, controlling the right to demand the same, is clear. There is no room for construction, and the difficulties attending upon a judicial variance from the legislative rule are obvious. Perhaps the legislative rule ought to be changed: a question for the legislature. * * * But if a right under the Michigan law is claimed, notice of the claim must be given within six months after the injury is received.”

It is obvious that neither the person injured nor his attorneys who represented him in the matter, either signed or “served upon the employer or an agent thereof” any notice of claim for compensation within the statutory limit. The industrial accident board had furnished plaintiff’s attorneys with appropriate blanks and instructed them how and upon whom they should serve notice of claim for compensation. Certainly the industrial accident board held no brief for plaintiff, nor can it be said to have represented him in any partisan sense in the proceeding before it. Neither can it be assumed that the board designedly signed “in his behalf” the letter of March 31st to the assurance corporation as a notice of his claim for compensation, in discard of its own form for that purpose which it had prescribed for others to use. The board had received word from other sources of an accident to one of the Globe Construction Company’s employees which occurred several months before, and which it was the company’s duty to report to the board within 10 days thereafter. The manifest object in writing the two letters of March 31st to defendants was to stimulate prompt action on the part of a delinquent employer in furnishing a belated report.

But assuming the letter was a proper notice of plaintiff’s claim for compensation signed by the industrial accident board “in his behalf,” it was not 'sent to or served upon the employer, but upon the General Accident, Fire & Life Assurance Corporation, Limited, a foreign corporation authorized to do business in this State. Plaintiff’s counsel contend that, being the insurer, it was, for the purpose of receiving notice of claim for compensation, an agent of the Globe Construction Company. The latter is a domestic corporation organized under the laws of this State. These two corporations had no representative relations or connection with each other in" the conduct of the respective lines of business for which they were incorporated and in which they were engaged, so far as shown. Their only business relations were as insurer and insured. There is nothing in the act either expressly recognizing such relation as creating the insurer an agent of the insured for the purpose of being served with such notice, nor inferentially impressing upon the insurance company in which an employer may hold a policy the representative character and derivative authority which are the distinguishing features of an agent. Under the act the liability of the employer to the employee is direct and positive. The latter is not relegated to seek compensation from an insurance company because it may be holden by contract with the employer to indemnify him, or it, from loss. The insurance is but added security that the employer will pay the determined compensation to the injured employee. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8.

The provisions of the act directing the manner and fixing the time in which the injured party must proceed to establish his right to an award, set the statute of limitations in plain terms. They are not open to variations by judicial construction. Plaintiff’s claim for compensation was not made .upon his employer within six months from the date of the alleged accident.

The order of the industrial accident board denying compensation is affirmed.

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