author: Steere, J.

text:
    GABRIEL v. A. J. SMITH CONSTRUCTION CO.
    1. Master and Servant — Workmen’s Compensation Act — Industrial Accident Board Trier oe Facts — Inferences—Review.
    In proceedings under the workmen’s compensation act the industrial accident hoard is trier of the facts, and it is not for the court, on certiorari to review an award for the accidental death of an employee, to analyze, discuss or pass upon the arguments of counsel in support of their respective theories as to how deceased came to his death, if the facts, disputed or undisputed, give opportunity for the hoard in its discretion to draw a natural and rational inference that his death resulted from an accident while engaged in his master’s business within the scope of his employment.
    2. Same — Finding of Board — Inferences—Scope of Employment.
    Where a water boy on a high building in process of construction fell down the skeleton elevator shaft used for hoisting materials and was* killed, evidence that he was in the habit of sending his water pail upon said elevator to the floor where needed, with the apparent consent of the employer, while he went up the ladder to said floor and took the pail from the elevator floor, and there was no evidence that he ever rode on the elevator contrary to instructions, or violated any instructions, or was careless or reckless in the performance of his duties, and no one saw him when he fell, held, sufficient to justify the industrial accident board in its discretion in drawing a natural and rational inference that his fall and death resulted from an accident while employed in his master’s business within the scope of his employment.
    Certiorari to Industrial Accident Board.
    Submitted April 23, 1919.
    (Docket No. 90.)
    Decided July 17, 1919.
    Rocco Gabriel presented his claim for compensation against the A. J. Smith Construction Company for the accidental death of his decedent in defendant’s employ. From an order awarding compensation, defendant, and the General Accident, Fire & Life Assurance Corporation, Limited, insurer, bring certiorari.
    Affirmed.

      Kerr & Lacey, for appellants.

      Paul P. Colombo (John F. Kennedy, of counsel), for appellee.
   Steere, J.

Mike Gabriel, son of plaintiff, met his death on May 23, 1917, by falling down the shaft of a temporary skeleton elevator at a high building called the Fort Shelby hotel, then in process of construction at the corner of First street and Lafayette boulevard in the city of Detroit. The A. J. Smith Construction Company was engaged as contractor in the erection of this building, and deceased was employed by it as a water boy. He was 16 years of age, of Italian parentage, and was paid $2 per day of 10 hours. His work consisted of obtaining and carrying drinking water to the men working upon the building wherever they might be. He had been steadily so employed for about a month before his death.

The structure of the incompleted building had been carried up eight stories at the time of the accident. A temporary elevator or material hoist stood about four feet from the building, the shaft being of an open, skeleton design constructed of wooden uprights braced and strengthened by cross-pieces in an “X” form, having from each floor of the building an open landing platform or passageway of boards or plank reaching across the intervening four feet to the shaft by which the hoisted material was taken from the elevator into the building at the several floors as required. The elevator itself was a platform and skeleton frame moved up and down the shaft by electric power with proper mechanism in the basement operated in response to a system of bell signals and was used for hoisting or lowering material, tools, etc., as occasion required in connection with the construction work. None of the employees was permitted to ride upon this material hoist, and temporary stairs or ladders between floors were put up in the building for their use as the erection progressed. Notice was posted at the elevator prohibiting riding upon it. So far as shown this prohibition was not violated by any of the employees.

The drinking water was carried to the men on the job in a common water pail with a dipper in it for their use. Deceased’s duties were to supply their wants in that particular and take the water to them where they were at work on different floors. In the performance of his duties he customarily carried the filled pails of water to the elevator or hoist and sent. them up by it to the floor or floors where water was wanted and then would proceed by the ladders, or stairways, provided for the workmen to the floor where the water had been sent and carry it from the elevator to the men where they wanted it. A witness of defendants who testified that this was done “quite customarily” stated that he had seen the water boy get the pail off the elevator himself and, so far as witness knew, he generally did so.

Manifestly dangers and risks not even common to all the employees attended the services of this water boy in his trips serving water to the men in various parts of that tall and unfinished building, where conditions were constantly changing as the work went on. As his duties took him to all places where men were working he was not at any time long under the eye of or associated with any particular man or group of men. He fell down the shaft in the early part of the forenoon. No one noticed him go to the place from which he fell, or saw him when he started to fall, or knew what he was doing at that time. A workman on the 7th floor saw him come up the stairway that morning, and noticed him with a pail serving water on that floor about 15 minutes before hearing of the accident,- but did not particularly watch him while there or pay any attention to where he went. No witness testified to seeing him after that time until he was falling. A foreman of the construction company called by defendant testified that he remembered seeing “Mike, the water boy,” that morning some time before the accident when he was one or two floors below the eighth floor, to which construction had then progressed with no floor above it and which was being completed that morning; that later, while standing 15 feet west of the permanent elevator shaft left in the center of the building on the 8th floor for a passenger elevator when the construction was completed, he saw the boy falling down the material hoist or temporary elevator shaft. His account of the incident in reply to questions by defendants’ counsel is as follows:

“Q. Where was he the day he was killed, when you saw him?
“A. Falling down the elevator shaft. * * *
“Q. What was it that directed your attention to the fact that Mike was falling?
# “A. The man I was talking with directed my attention to it, and wheeled me around to look.
“Q. Who was that man?
“A. A man by the name of McClellan.
“Q. What did you see as you turned around?
“A. I saw the water boy falling through the shaft —down the shaft.
“Q. At that time was he on the level of the floor or above?
“A. Above the floor.
“Q. How could he have gotten above the floor?
“A. Well, he might have fallen oif the elevator— he might have jumped off the floor—
“Q. How far above the level of the floor was he?
“A. Three feet — about 3 feet.
“Q. In what position was his body as you saw him falling?
“A. Feet first.
“Q. Were any of his hands—
“A. One hand was extended above his head.
“Q. Did you notice where the platform of the elevator was at that time?
“A. It was up to what we call the cat-head — the platform was as far as it could go on the shaft.
“Q. Could a man of Mike’s physical stature have jumped and been in the position in which he was at the time you saw him?
“A. No.
“Q. Was it any part of Mike’s duties to make repairs on the elevator shaft?
“A. No, sir.”

This witness further testified that the boy’s duties were “to carry water to the men on the job” and in so doing he was permitted to go above the first floor to “where the men were working”; and that at the time he fell his water pail with water in it stood in the middle of the floor in front of the permanent elevator shaft. McClellan, who he said wheeled him around to look at the time Mike fell, was not called as a witness.

The construction company engaged in erecting this building was under the workmen’s compensation act and in reporting the accident to the industrial accident board adopted the theory of the “cause and manner of the accident,” as “riding on elevator (contrary to orders) and jumped off platform through hoist and fell back down shaft,” and declined to recognize any liability under the law. The testimony of all witnesses working there at that time who were interrogated is positive that they never saw any employees riding upon this elevator. The foreman, Ryan, was asked “Did any men ride on the hoist (elevator) at that time?” and answered “No, sir.” There is no proof that this boy was ever seen riding upon the elevator, was ever reprimanded for Ms conduct wMle at work upon the building, that he neglected his duties or violated any instructions, or was careless, reckless or negligent in the performance of his duties. Defendants’ theory is based solely upon the fact that the boy fell down this elevator shaft and what Ryan, who said deceased “might have jumped off the floor” and that he could not have jumped, testified to.

A claim for compensation under the act was filed by plaintiff, father of deceased. Upon hearing before a committee of arbitration selected under the statute an award was made of compensation at the rate of $5.77 per week for a period of 300 weeks. Upon review of this award before the full industrial accident board it found that the father was a widower who had recently buried his wife and had a family of four children of whom Mike was the oldest, the three others being little girls; that Mike always turned his wages over to his father and they were used for the support of the family which at times had received assistance from the city as the father was in poor health' and unable to work regularly, and the earnings of both of them had proved insufficient for the family needs. Making deductions for the maintenance of deceased by his father, and going somewhat at length into the condition, needs and income of the family, which it is unnecessary to detail, the board found the award by the committee of arbitration excessive and reduced it to $2.66 per week.

Of the four assignments of error made by defendants in their application for certiorari only the following one is urged and argued in their brief:

“The • committee erred in finding that the accident resulting in the death of Mike Gabriel arose out of and in the course of his employment with the A. J. Smith Construction Company within the meaning of the compensation law.”

It is undisputed that the ambit of this boy’s employment was anywhere on the construction job on any parts or floors where men were at work and might w.ant water. His duties were to get pails of water from below to where men were working on the different floors in this tall building and serve them. There is no proof that he was ever instructed to carry these pails of water up the temporary ladders from story to story. It is self-evident that a force of men must have been working at the top most of the time as the building went up and stories were added. Neither is it shown nor is there any presumption that he had-but one pail with which to serve all the workmen on the different floors. It was undisputed that the hoist for carrying up material was customarily used by him to send up the pails of water to the different floors during the time of his service there, that he did this regularly, openly and presumably under instructions as to his duties, climbing up the stairs and taking them from the elevator at the different floors to which they were sent. • That the use of the elevator for that purpose was proper, so recognized by. defendant and continued after the accident is shown by one of defendants’ witnesses who testified to the custom while deceased was there, and added:

“After he was killed they had another boy, and they would not allow him to take the water off the elevator. I had been working right near the elevator and he could ask me to take it off, and I give the signals for the elevator to go down.
“Q. Well, was it customary for the man operating the machine to send the water up to the water boy in the elevator to whichever floor he was?
“A. Yes, there was a man down below on the ground floor, and the water boy would generally leave the water in, and go up the ladder.
“Q. So that the water pail with its contents of water was generally sent up on the elevator?
“A. Yes.’’

From this it is evident that the only change in custom, or method, after Mike was killed was to have one of the workmen on the floor to which the water was sent go over the unguarded passage to this skeleton elevator and carry the water from it to the floor, instead of the water boy as was the former practice.

As has been often said, the industrial accident board is trier of the facts, and it is not for the court to analyze, discuss or pass upon the arguments of counsel in support of their respective theories as to how this boy came to fall if the facts, disputed or undisputed, give opportunity for the board in its discretion to draw a natural and rational inference that his fall and death resulted from an accident while engaged in his master’s business in the line of duties falling within the scope of his employment. Without following counsel in their claimed application or nonapplication of the cases cited where the question of whether any evidence direct or inferential could be discovered to support the board’s finding, we conclude that the evidence in this case clearly distinguishes it from Lobuzek v. Foundry Co., 194 Mich. 533; Moyer v. Packard Motor Car Co., 205 Mich. 503, and other cases cited, where it affirmatively appeared undisputed that the use of a place dr appliance was forbidden, or entirely out of the employee’s range of work or line of duty; and fairly make applicable the rule recognized and reasons therefor discussed in Papinaw v. Railway Co., 189 Mich. 441; Wishcaless v. Hammond, Standish & Co., 201 Mich. 193, and analogous cases where the undisputed facts do not preclude a rational inference that the employee met his death in the line of duty.

The award will stand affirmed.

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


source: Caselaw Access Project

author: Brooke, J:

license: Public Domain

text:
    COUSINEAU v. BLACK.
    Master and Servant — Workmen’s Compensation Act — Casual Employment.
    In proceedings under the workmen’s compensation act, where claimant was sent with a team by the purchaser of a monument, in accordance with an agreement with defendant that a team should be furnished by the purchaser, to haul it from the station to the cemetery, and in response to a question by defendant’s workman, who was sent to erect the monument, as to whether claimant could help him erect it and how much he would charge, he replied $5 a day, and in removing the monument from the car claimant’s thumb was injured, resulting in the amputation of the first phalange, held, that if claimant was employed by defendant his employment was casual under section 7; pt. 1, of said act (2 Comp. Laws 1915, § 5429), the work of erecting the monument consuming less than two days, and he was therefore not entitled to compensation.
    Certiorari to Industrial Accident Board.
    Submitted June 5, 1919.
    (Docket No. 50.)
    Decided July 17, 1919.
    : Charles L. Cousineau presented his claim against Frank D. Black for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed, and order set aside.

      Rodgers & Rodgers, for appellant.

      Arthur J. Butler, for appellee.
   Brooke, J:

Certiorari to the industrial accident board. Defendant is a monument dealer in Grand Rapids. Through an agent, Mr. Soule, he had sold a monument to one Mrs. Parks who was the mother-in-law of claimant. The monument was to be set up in the cemetery at Paris, Michigan. The cemetery was four miles from Paris and it was necessary to have the monument drawn from Paris to the cemetery and set up. Mrs. Parks, the purchaser, was advised of these facts when she purchased the monument. The agent asked her whether she could send a team to haul the monument and be there herself. Upon receiving a negative answer as. to her being present, the agent advised her that it would probably be more satisfactory to her to have some of her folks there. She inquired whether she must stand the expense and was informed by the agent that:

“We stand that. -We pay all bills, but you get your son, for probably it would be more satisfactory to you to have some of your folks there when it is set up.”

Mrs. Parks’ home was in Big Rapids. She was not living with claimant and claimant was unknown in the transaction or to the defendant or his agent up to that time. On August 8, 1918, she was notified by defendant to comply with his arrangements made with defendant’s agent on August 9th. She sent her own team and her son-in-law, the claimant, to Paris. She testified:

“Q. You picked out the team to send and the man to send and sent them down to Paris?
“A. I sent my own team and got the man to go with it.
“Q. The selection of the man to go with the team was made by you?
“A. Yes, for I did not know who else to send, they were all busy and the only one I thought of was my son-in-law, so I asked him to go with the team.”

Defendant had shipped the monument.to Paris and sent his workman, a Mr. Gillies, there to set it up. When claimant got to Paris he found Gillies there. Gillies asked claimant if he could help him do the job. Claimant replied that he could if there was enough in it. Gillies asked him what he wanted and he replied $5 a day. This included the team of Mrs. Parks for which she expected compensation. Claimant never asked for nor received any compensation from defendant for his services. He testified:

“Q. Did you ever present a bill to Mr. Black for the work you did do?
“A. No, sir, I didn’t myself.
“Q- Did anybody ever do it for you that you know of?
“A. Not for me. The man that was on the farm sent in a bill for team work. He had to run over to the graveyard and see what condition it was in and to get the team and he sent a bill in for his time and getting the team.”

In removing the monument from the car and attempting to load it upon the wagon one of claimant’s thumbs was crushed, resulting in the amputation of the first phalange. The erection of the monument was completed the following day. Upon the foregoing facts the board made an award of $9 per week for a period of 80 weeks.

In reviewing said award defendant asserts:

(1) Plaintiff was not an employee of the defendant at the time of the injury or at any time.

(2) The employment of plaintiff, if any existed, was but casual.

1. We find it unnecessary to pass upon the question here involved.

2. Section 7, part 1, of the workmen’s compensation act (2 Comp. Laws 1915, § 5429), provides:

“Every person in the service of another under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally permitted to work under the laws of the State who, for the purpose of this act, shall be considered the same and have the same power to contract as adult employees, but not including any person, whose employment is but casual or is not in the usual course of the trade, business, profession or occupation of his employer.”

Of claimant’s employment in the case at bar it may be said as it was said in the case of Dyer v. Contracting Co., 192 Mich. 400, quoting from Gaynor's Case, 217 Mass. 86 (104 N. E. 339, L. R. A. 1916A, 363);

“It would be difficult to conceive of employment more nearly casual in every respect than was that of the employee in the case at bar.”

Claimant if employed by defendant was employed only to assist in moving and erecting the monument, which work actually consumed less than two days. Upon this point see, also, Hill v. Begg, L. R. (1908) 2 K. B. Div. 802; Ritchings v. Bryant, 6 B. W. C. C. 183; Cheever’s Case, 219 Mass. 244 (106 N. E. 861), and Blood v. Industrial Accident Commission, 30 Cal. App. 274 (157 Pac. 1140).

The award is set aside.

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


author: Kuhn, J.

text:
    SHAFFER v. D’ARCY SPRING CO.
    1. Master and Servant — Workmen’s Compensation Act — Review by Board — Res Judicata.
    Where orders of the industrial accident board for compensation to an injured employee were considered in a former decision of this court (199 Mich. 537) to be for weekly payments and therefore subject to review by the board under section 14, part 3 of the workmen’s compensation act, defendants’ contention to the contrary, held, decided adversely to defendants by the previous decision.
    2. Same — Finding by Board — Varicose Veins.
    A finding by the industrial accident board that varicose veins from which claimant was suffering grew out of the injury alleged while in defendant’s employ, held, supported by the evidence.
    3. Same — Review.
    The Supreme Court will not review a question of fact found by the .industrial accident board, unless there is no evidence upon which to base such finding; the weight of the evidence being for the board.
    Certiorari to Industrial Accident Board.
    Submitted June 11, 1919.
    (Docket No. 7.)
    Decided July 17, 1919.
    Isaac Freeman Shaffer presented his claim for compensation against the D’Arcy Spring Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Prudential Casualty Company and the Chicago Bonding & Insurance Company, insurers, bring certiorari.
    Affirmed.

      Jackson, Fitzgerald & Dalm and Fred J. Ward, for appellants.

      Charles L. Dibble, for appellee.
   Kuhn, J.

The facts which are necessary to understand this proceeding, which is certiorari to the industrial accident board, can be had by reading the opinion of this court reported in 199 Mich. 537. By that opinion it was held that, because of the fact that with reference to certain depositions that were offered in evidence it was found that the notice was clearly irregular under the recent holding of this court in Hamilton v. Macey Co., 195 Mich. 747, the proceeding must be vacated “and the case remanded for further action in accordance with the rules and practice of the board.” Subsequently a motion for rehearing was filed, which was denied, and the case being then before the industrial accident board, a new petition was filed, bearing date January 31, 1918, with the intention, and upon the theory, of reinstating the proceedings before the board in the same manner as the petition of April 8, 1916, which appears from the petition itself, and the petition was so regarded by the board. After filing the petition of January 31, 1918, the parties proceeded again to present evidence to the board. It was stipulated through the respective attorneys that the testimony of all the witnesses who had previously made depositions upon the first hearing of this case, in order to avoid expense, might be used upon the new hearing. Both parties also took voluminous additional testimony by deposition, which was submitted. The industrial accident board, after consideration of the evidence, on September 12, 1918, entered an order for the payment of $6 a week compensation from the date of the last payment made to the claimant in this cause up to the time of that order and for the same amount for the future so long as he seemed to be totally disabled. It is this order which is now before us for review.

The claims of the respondents for a reversal of the action of the industrial accident board are stated in their brief as follows:

“First: Because the claimant and respondents submitted claimant’s claim to a committee on arbitration, which committee met on the 9th day of December, 1914, and awarded claimant the sum of $138.00 and a physician’s bill in amount of $4.50, all of which has been paid, and that neither the claimant nor the respondents appealed from said order, in accordance with the provisions of section 8, part 3, Act No. 10 of the Public Acts of 1912, and in consequence thereof the decision of said committee on arbitration became res adjudicada of the rights of said claimant for compensation for the injury alleged to have been suffered by him while in the employ of the D’Arcy Spring Company on the 15th day of June, 1914.
“Second: No order has ever been made or entered extending the time within which the claimant might appeal from the award of the committee on arbitration.
“Third: No determination has been made by the board or showing made by the claimant which would entitle claimant to an extension of time within which to review the action of the committee on arbitration.
“Fourth: No appeal was ever taken by the claimant or respondents from the order dismissing claimant’s petition filed on or shortly after the 9th day of April, 1915, and which petition is known as Exhibit D, and appears in the record on pages 53 to 55.
“Fifth: The evidence does not show that varicose veins, being the only disability under which claimant suffers at the present time, and for which he now seeks compensation, grew out of the alleged injury on June 15, 1914; that such disease known as varicose veins existed previous to June 15, 1914, and that the claimant has entirely recovered from any effects resulting from the alleged injury suffered by him while in the employ of the D’Arcy Spring Company.”

With reference to the first four assignments of error above set forth, it seems that the contentions of counsel for defendants and appellants are based upon the claim that the award on arbitration of December 9, 1914, was an award for a lump sum payment instead of for weekly compensation. The award reads in part as follows:

“Isaac Freeman Shaffer is entitled to receive and recover from said respondents the sum of six dollars per week for a period of twenty-three weeks from the 2d day of July, 1914, and that said applicant is entitled to receive and recover from said respondents on this date one hundred thirty-eight dollars, being the amount of such compensation that has already become due under the provisions of law, being all of said compensation, the same being now due, also for medical bill the sum of §4.50.”

The order of the board of November 23, 1916, which was referred to in the previous opinion of this court, reads as follows:

“It is ordered and adjudged that said applicant is entitled to receive and recover from respondents compensation at the rate of six ($6.00) dollars per week from the date of the last payment to November 22, 1916, making a total now due of six hundred and twenty-four ($624.00) dollars, this to close the case.”

The latter order was clearly considered by this court as an order for weekly payments, because in considering the claims of counsel Mr. Justice Bird, in writing the opinion, says:

“Because the board refused to reopen the case in June, 1915, it is said that order is res judicata of the present application. The compensation act (part 3, § 14 [2 Comp. Laws 1915, § 5467]) provides that ‘any weekly payment under this act may be reviewed by the industrial accident board at the request of,’ etc. There appears to be no restriction on the power given to the board to review its former orders for weekly payments, and we think it was contemplated that it should have this power.”

In our opinion this determined that the order of November 23,1916, was an order for weekly payments, and it necessarily follows under this holding that the award of December 9, 1914, must be also considered as an award for weekly payments, thus bringing it clearly under the previous decision of this court and making section 14, part 3, of the compensation law applicable. It follows, therefore, that the contentions now urged by counsel must be considered as having been ruled upon adversely to the contention of the respondents by our previous decision.

By the fifth assignment of error it is urged that the claimant’s present condition is not the result of the injury of June 15,1914. It is the claim of counsel for claimant that while this question was not pressed by the respondents upon the previous appeal, it is very obvious that if the condition of the claimant had not been due to the injury which is the basis for his compensation, then this court should have, and would have, entered an order dismissing the entire proceeding. However that may be, a careful reading of the record satisfies us that there was sufficient evidence to sustain the finding of the board upon this question. We have often held that this court will not review a question of fact found by the board, unless there is no evidence upon which to base such finding. With reference to this contention, it is only necessary to quote the following testimony of Dr. Cook:

“Q. Now, you said a moment ago, in answer to Mr. Dibble’s question, that this varicose condition which you found there might have resulted from an injury?
“A. Yes.
“Q. Would you say that it was reasonably certain that it did?
“A. My belief is that it resulted from an injury.
“Q. That is not just the question. In your opinion, is it possible to say with reasonable certainty that' it did?
“A. In view of the history of this particular case, I would say it is reasonably certain that the ulceration was produced by injury.”

This evidence was rebutted by the opinion evidence of other experts summoned by respondents. We will not weigh the evidence, which is the sole province of the industrial accident board.

Finding no error in the proceedings, it follows that the award made by the board must be affirmed.

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


author: Bird, C. J.

text:
    CORKIN v. RIVER RAISIN PAPER CO.
    1. Master and Servant — Workmen’s Compensation Act — Limitation oe Action — Exception—Incapacitated.
    Testimony that an employee sustained an injury to his leg on June 29th, and on July 20th it was determined that he had erysipelas in his leg, and he was taken to the hospital and quarantined until November 16th, much of the time being in great pain and delirious, that while he was quarantined he was cut off from the outside world, most of the time being too weak to read or write, and his mind being more or less in a mental haze, held, sufficient to justify the industrial accident board in finding that he was incapacitated physically and mentally, and incapable of making a claim for compensation within the meaning of the exception in section 15, part 2, of the workmen’s compensation act.
    2. Same.,
    In construing said section 15, part 2 of said act, the rule'" usually invoked in construing general statutes of limitations, that when the statute once attaches the period will continue to run and will not be suspended by any subsequent disability, held, not applicable; it being the evident intent of the legislature to enlarge the six months’ time within which a claim could be made by the period of incapacity.

      Certiorari to Industrial Accident Board.
    Submitted June 12, 1919.
    (Docket No. 28.)
    Decided July 17, 1919.
    John Corkin presented his claim for compensation against the River Raisin Paper Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Michigan Workmen’s Compensation Mutual Insurance Company, insurer, bring certiorari.
    Affirmed.

      Beaumont, Smith & Harris (Hal H. Smith and Albert E. Meder, of counsel), for appellants.

      Alexander & Cotter and Campbell, Dewey & Stanton, for appellee. -
   Bird, C. J.

Plaintiff is a brick mason. When injured he was in the employ of the River Raisin Paper Company. On June 29, 1917, while engaged in his work on a scaffold he slipped and bruised his shin. When his working hours were over he applied an antiseptic to his bruise. The injury gave evidence of healing in the ordinary manner and he continued to work. On July 7th his leg began to swell, but he worked on until July 13th. He then laid off and remained quiet until July 19th when he consulted a physician and on the following day, July 20th, it was determined that he was suffering from erysipelas in his injured leg. He was at once taken to Herman Kiefer hospital, where he remained in quarantine until November 16th, when he was transferred to Harper hospital, and he remained there until January 5, 1918. A week later he had so far recovered his strength that he was able to walk about and he visited his attorneys. They made a claim for him to the industrial accident board on January 14, 1918. An award of $10 a week was made by the committee of arbitration and the same was approved on appeal by the accident board.

The principal defense urged by the defendants is that plaintiff did not file his claim within the six months provided by the statute. Plaintiff concedes that his claim was not filed within the six months period but excuses the delay on the ground that during his stay at the Herman Kiefer hospital he was incapacitated, both physically and mentally.,

Upon that issue the board made the following finding:

“(e) That from July 20, 1917, to November 16, 1917, the applicant was physically and mentally incapable of making a claim for compensation within the meaning of the exception contained in section 15, of part 2, of the workmen’s compensation law, and that said three months and twenty-six days should be excluded in computing the limitations applicable to the facts in this case.”

It is argued by defendants in this court:

(1) That the foregoing finding of fact is not justified by the record.

(2) That if it is, the statute commenced to run at the date of the injury, and that, having commenced to run, the statute would not be flagged by the subsequent mental and physical incapacity of plaintiff.

1. The testimony discloses that during plaintiff’s stay at the Herman Kiefer hospital he was in quarantine and confined to the bed until the last day or two when he was placed in a wheel chair. That during a considerable portion of the time he was in great pain, and much of the time he was delirious. It further shows that he was cut off completely from the outside world and saw only the nurses and doctors. No letters could go out without special permission. On one occasion his brother was permitted to enter the room where he was, and remain five minutes, but before doing so he was required to don an oil cloth robe, and just before leaving the hospital his landlady came and talked with him through the window. Most of the time he was too weak to read or write. His testimony indicates that during the time his mind was more or less in a mental haze as he could remember little that took place in connection with his case. We are of the opinion that the testimony discloses a state of facts which fully justified the board in making the finding which it did. If this state of facts would not furnish a basis for the finding that he was physically and mentally incapacitated within the meaning of the exception to the statute it would be difficult to conceive a situation that would.

2. The statute involved provides that:

“No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have.been given to the employer three months after the happening thereof, and unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employee, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity” 2 Comp. Laws 1915, § 5445.

In construing this section of the statute counsel apply some general rules which have been held applicable to statutes of limitations, namely, that the disability must exist at the time when the action accrues, and that when the statute once attaches the period will continue to run and will not be suspended by any subsequent disability unless the statute so provides. It is then argued that because plaintiff was nót incapacitated for several days after the accident the statute has run and the claim is barred.

The rules stated by counsel are undoubtedly the rules which are usually invoked in construing general statutes of limitations, and they are precisely the rules which counsel would apply to this section- were no saving clause attached. But the legislature attached a saving clause and they did it for some purpose. To construe the entire section as defendants have urged would make the saving clause of little force. It was the evident intent of the legislature to give claimants six months in which to file their claims and to enlarge the time in the event they were either mentally or physically incapacitated during the six months.

If defendants’ suggested construction should prevail the practical operation of the statute would result in this:

(a) In case of immediate death the saving clause would apply.

(b) If death did not ensue until the following day the saving clause would not apply because the statute of limitations would then have begun to run.

(c) In case of injury, if the claimant became incapacitated on the date of the accident, the saving clause would apply.

(d) In case of injury, if the incapacity did not develop until the following day, the exception in the statute would not apply because the statute of limitations would then be on its way.

It is easy to see that this is not the construction which the legislature obviously intended the exception should have, nor is it a reasonable construction, if we keep in mind the purpose of the legislation. The legislature, of course, understood that in many cases of injury periods of incapacity would follow, and it is fair to presume that it annexed the saving clause to exclude such periods from the operation of the statute.

Most of the cases bearing on this question of construction, including those cited by counsel, are cases construing statutes of limitation general in their application and wholly disconnected with the causes which produced the incapacity. The statute involved here is a short statute of limitation special in its application and having relation only to the legislation which it was created to serve. This statute of limitations is much shorter than the general statute which, applies to personal injuries, and it ought not to be still -further restricted by judicial construction if it can be reasonably avoided. The construction which should be given to the statute is that subsequent incapacity of the claimant within the six months period will flag the statute. This is a reasonable construction, one that will make the saving clause mean something, and one which the legislature evidently intended it should have. The board was right in its interpretation of the act and their finding is affirmed, with costs to the plaintiff.

Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Moore, J.

text:
    ROWE v. LEONARD WAREHOUSES, INC.
    Master and Servant — Workmen's Compensation Act — Scope of Employment — Intentional Misconduct.
    Where an employee, whose duty required him frequently to run an elevator, was killed by being struck on the head by the descending elevator while he was looking down the shaft trying to loosen the operating rope which was stuck, it cannot be said that he was not within the scope of his employment or that he was guilty of intentional and wilful misconduct; within the meaning of the workmen’s compensation act, although it was not part of his duties to repair the elevator.

      Certiorari to Industrial Accident Board.
    Submitted June 5, 1919.
    (Docket No. 47.)
    Decided July 17, 1919.
    Sarah Rowe and another presented their claim for compensation against the Leonard Warehouses, Incorporated, for the accidental death of plaintiffs’ decedent in defendant’s employ. From an order awarding compensation, defendant and the Travelers Insurance Company, insurer, bring certiorari.
    Affirmed.

      Vandeveer & Foster, for appellants.

      Washington I. Robinson, for appellees.
   Moore, J.

This is certiorari to review the action of the industrial accident board in awarding compensation of($10 a week to Sarah R. Rowe, the widow, and Marjorie Rowe, the dependent child, of Herman Rowe who was killed while in the employ of the Leonard Warehouses, Inc. The defendant insurance company is contesting the claim, contending that deceased sustained no accident which arose out of and in the course of his employment, and that deceased was guilty of intentional and wilful misconduct. This contention is based upon the claim that it was no part' of Mr. Rowe’s duty to make repairs upon the elevator and that he was doing so when killed.

There appears in the return of the industrial accident board the following:

“He claimed the rope was tight and did not work right.
“Q. That the rope attached .to the elevator?
“A. Yes, to stop the elevator.
“Q. How far were you from him?
“A. I was about five or six feet away from him.
“Q. And you raised the gate? Was that the gate that let in upon the floor from the elevator? What did you have to do, raise it with your hands?
“A. Raise with my hands. I just kept the door about three or four feet with my hands.
“Q. What did he do?
“A. Then he looked down to see what is the matter with that rope.
“Q. Did you see the elevator coming?
“A. Before I turned around, before I just turned around the elevator was then about two inches before me. It was coming down right on him.
“The testimony shows that the deceased was using the elevator. Said witness again testified:
“Q. If the rope was fastened, would he have to un-, fasten it at all?
“A. No, he used the elevator five or six times.
“Q. That day?
“A. Yes. He was up and down about five or six times. He claimed that the rope must be caught and did not work right; can’t start the elevator.
“Q. So then he went to unfasten or unhitch the rope, I suppose?
“A. I did not ask him. He did not tell me. He just tell me to raise up the gate, hold the gate.
“And again:
“After the foreman went into the office, Mr. Rowe walked over to the elevator?
“A. Yes. He was standing about a couple of minutes. Then he says, T can’t see what is the matter with the rope.’
“Q. You and he walked over?
“A. I went right with him and he told me to raise up the gate.
“Q. After he raised up the gate did he raise the guard up ?
“A. The guard up two and a half or two feet from ' the ground.
“Q. Then he laid down on his stomach with his head to the elevator shaft?
“A. And tried to get the rope loose to see what is the matter with it. I don’t know what he done.
“The testimony also shows that it was the usual thing for the deceased to use the elevator. There cannot be any doubt in this matter but that the accident did arise out of and in the course of the employment, and that it killed this man, and that he was not guilty of wilful and intentional misconduct.”

It may be well to quote some of the testimony given by the foreman who had been in the defendant’s employ several years and who testified Mr. Rowe had been his helper for more than a year.

“Q. Again, what floor was it that his body was on?
“A. It was on the first floor in the warehouse.
“Q. Did his duties take him up on that elevator?
“A. Oh, yes. We were working at the present time on that floor about twenty feet from the elevator.
“Q. What disposition had Mr. Rowe shown before the accident?
“A. Good. He was in high spirits that morning. We were joking all the morning. We had both bought a liberty bond; joking about it in the morning. * * *
“Q. What type man was Mr. -Rowe?
“A. Finest in the land, fine.
“Q. As to health?
“Mr. Vandeveer: I object.
“A. As far as his health he never complained. That I cannot say.
“Q. What age man was he?
“A. I think he told me he was 53.”

Counsel cite in support of their contention Bischoff v. Foundry Co., 190 Mich. 229; Lobuzek v. Foundry Co., 194 Mich. 533, and claim they are controlling because of the following testimony of the foreman:

“Q. Just before this accident happened you were in the rear of the building rolling rugs, with Mr. Rowe and Mr. Rosenberg, were you not?
“A. Before the accident, yes.
“Q. You had occasion to leave those two men there and went into the front office to get some tags?
“A. No, some checking.
“Q. Checking?
“A. Yes. That is to tag the rugs on and number them.”

He testified the elevator had been running smoothly, apparently in good working order and nothing out of repair or anything that needed adjustment.

“You had not given either of the men any orders ' to use the elevator while you had left the room?
“A. No, sir.
“Q. Had you?
“A. No, sir.
“Q. Occasionally, when adjustments were needed upon the elevator, you would :always notify the Otis people?
“A. Yes, the Otis people.
“Q. And they would come and repair it?
“A. Yes.
“Q. You had never requested Mr. Rowe to do that? • “A. No.
“Q. And it was not a part of his duties ?
“A. No, not to repair.
“Q. Make repairs or adjustments?
“A. No.
“Q. Or to test it in any way?
“A. No.
“Q. Mr. Rowe’s duties were those of a helper in handling furniture in the store room?
“A. Yes.
“Q. That is the trucking and the carting of it? “A. Well, not cartage, no.
“Q. I mean handling it by truck?
“A. Oh, yes.
“Q. But not going out on any of the wagons?
“A. Not outside, no.'
“Q. You had an electrician there?
“A. Yes.
“Q. And the electrician took care of the motor? “A. Yes.
“Q. And the oiling, such incidents as that as to the operation of the elevator?
“A. Yes.
“Q. And you never knew Mr. Rowe to make any repairs or adjustments upon the elevator?
“A. No.
“Q. And it was not any part of his duty to do it? “A. No.
“Q. And you never requested him to do it?
“A. No, never asked him to do anything like that. “Q. He was not engaged as a mechanic?
“A. No.
“Q. If lie attempted to do that he would be doing something that was not within the scope of his employment?
“A. If he did..
“Q. I say if he did.
“A. Yes.
“Q. He would not be doing anything within the scope of his employment?
“A. No.
“Q. Mr. Rowe’s employment was to handle the furniture and to move it from one point to another in the warehouse and packing and things of that character?
“A. Of course, he would operate the elevator, up and down.
“Q. In moving furniture up and down?
“A. Yes.
“Q. But what I am speaking of is to make repairs and things of that kind?
“A. Oh, no.
“Q. That was something that the electrician of the Otis elevator people attended to?
“A. Yes.”

It is not clear as to how much of this testimony was competent as Mr. Rowe could not give his version of the situation. See Zoladtz v. Detroit Auto Specialty Co., ante, 349, and Hanna v. Michigan Steel Castings Co., 204 Mich. 139. But if we regard the testimony as competent it does not bring the instant case within the cases cited by counsel for appellant.

The foreman testified that four minutes before the accident the elevator was running well. The evidence establishes beyond a doubt that it was part of the duty of the deceased to frequently run the elevator. The record does not show that it was in such a condition as to require the services of an electrician or that a report be made to the Otis elevator people. The most that can be said of it is that the rope which operated it stuck. Suppose the gate or a door to an elevator stuck, could not the operator try to make it open? It would not tend to efficiency on the part of the employee if when so simple a thing as happened occurred, that he might not investigate.

The question involved is not new in this court. Some of the cases are Jendrus v. Detroit Steel Products Co., 178 Mich. 265 (L. R. A. 1916A, 381, Ann. Cas. 1915D, 476) ; Clem v. Chalmers Motor Co., 178 Mich. 340 (L. R. A. 1916A, 352) ; Rayner v. Sligh Furniture Co., 180 Mich. 168 (L. R. A. 1916A, 22, Ann. Cas. 1916A, 386) ; Redfield v. Insurance Co., 183 Mich. 633; Gignac v. Studebaker Corporation, 186 Mich. 574; Beaudry v. Watkins, 191 Mich. 445 (L. R. A. 1916F, 576) ; Ramlow v. Moon Lake Ice Co., 192 Mich. 505. (L. R. A. 1916F, 955); Poniatowski v. Stickley Bros. Co., 194 Mich. 294; Kent v. Boyne City Chemical Co., 195 Mich. 671; Oniji v. Studebaker Corporation, 196 Mich. 397; Cook v. Charles Hoertz & Son, 198 Mich. 129; Riley v. Mason Motor Co., 199 Mich. 233; McMinn v. C. Kern Brewing Co., 202 Mich. 414.

The award is affirmed, with costs to the claimants.

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


text:
    VER WYS v. VANDER MEY.
    1. Frauds, Statute of — False Representations — Defendant Not Personally Benefited — When Actionable.
    Under 3 Comp. Laws 1915, § 11983, where a false representation is made by one who does not derive any personal benefit from tbe resulting transaction, tbe representation, to be actionable, must be in writing over bis signature.

      2. Same — Corporations — Verbal Representations — When Admissible.
    Representations as to the credit of a corporation are within this statute; but if the action is brought against the corporation itself for fraud, verbal representations by its officers and agents may be shown.
    3. Same — Representations in Articles of Incorporation — When Actionable.
    Statements in the articles of incorporation of a corporation, being represented by the signers thereof as true, and being in writing and signed by them, held, to fulfill the requirements of this statute authorizing a suit against the signers individually, by any one relying upon the representations and extending credit to the corporation, if damaged thereby.
    4. Fraud — Nature of Remedy — Corporations—False Representations in Documents on File in Public Office.
    The right of the public to rely upon the statements in the articles of incorporation on filé in' a public office or in the annual report. of a corporation to the secretary of State is not affected by the fact that the question arises in an action at law rather than in a proceeding in chancery.
    5. Same — Proof—Sufficiency.
    In an action against one of the original incorporators of a corporation for fraud and deceit based upon false statements in the articles of incorporation on file in a public . office, and signed by defendant, where the record conclusively shows that there was not actually paid in in cash the amount set forth in said articles, and that the corporation was not possessed of property worth the amount therein set forth, which facts were known to defendant, held, sufficient to establish the fraud relied upon.
    6. Same — Evidence—Sufficiency.
    Evidence, held,, sufficient to warrant the finding of the court below that plaintiff relied upon said statements.
    7. Same — Weight of Evidence.

      Held, that the findings of the court below were not against the great weight of the evidence.
    Error to Kent; Perkins, J.
    Submitted February 6, 1919.
    (Docket No. 97.)
    Decided July 17, 1919.

      Case by Adrian L. H. Ver Wys against Thomas H. Vander Mey for fraud and deceit. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John M. Dunham, for appellant.

      Taggart & Kingston, for appellee.
    This is an action on the case for fraud and deceit. The case was tried before the trial judge without a jury, and after hearing the evidence, the following findings of fact and conclusions of law were filed by him:
    “I. That Adrian L. H. Ver Wys, the plaintiff, is a resident of the city of Grand Rapids, doing business under the name and style of Imperial Machinery Company ; that defendant is one of the original incorporators of the Service Auto Wheel Company, a Michigan corporation.
    “II. That for the purpose of completing its incorporation, the Service Auto Wheel Company filed its articles of association in the office of the county clerk for the county of Kent, on June 9, 1917; that the articles of association remained on file in said office until June 19, 1917, when they were copied into the records of the county clerk and mailed to Charles G. Turner, attorney for the corporation.
    “III. That the articles of association show that the authorized capital stock of the corporation was ten thousand ($10,000) dollars and that of this amount, seventy-eight hundred ($7,800) dollars had been actually paid in at the time of incorporation, sixteen hundred ($1,600) dollars in cash and sixty-two hundred ($6,200) dollars in other property.
    “IV. That defendant signed the articles of association and acknowledged same, and made affidavit in the articles that the property taken in payment for the capital stock had been actually transferred to the corporation and that the property was of the actual value of sixty-two hundred ($6,200) dollars.
    “That defendant had paid in full for the shares of stock of the corporation subscribed for by him, and that none of the other stockholders of the corporation had paid the amount of their subscriptions.
    “V. That said affidavit was untrue in that the property taken in payment for the capital stock and claimed to be of the value of sixty-two hundred dollars ($6,200) was not worth to exceed the sum of twelve hundred ($1,200) dollars and that this fact was well known to defendant; that the amount of money paid for the capital stock was not the sum of sixteen hundred ($1,600) dollars, as stated in said articles, and was not to exceed ten hundred and eighty ($1,080) dollars, and that this fact was known to defendant when he signed and executed the articles of association and affidavit attached thereto.
    “VI. That on July 12,1917, the Service Auto Wheel Company filed a voluntary petition in bankruptcy in the United States district court for the western dis-, trict of Michigan, and.was on said day adjudicated a bankrupt; that the schedules filed in the bankruptcy matter were signed and sworn to by defendant, Vander Mey, who was secretary-treasurer of the corporation; that the schedules disclosed claimed assets of twelve hundred and seventy-eight dollars' and ten ($1,278.10) cents and liabilities amounting to seventeen hundred and fourteen dollars and sixty-nine ($1,714.69) cents.
    _ “VII. That prior to the incorporation of the Service Auto Wheel Company, plaintiff had sold supplies and material to defendant and his associates to the value of one hundred and seventy-seven dollars and eighteen ($177.18) cents; that of the amount so sold before the incorporation all but six dollars and sixty-five ($6.65) cents was paid prior to June 11, 1917.
    “VIII. That on or about the ninth day of June, 1917, defendant went to plaintiff’s place of business and requested plaintiff to grant credit to the corporation on his books and stated to plaintiff that he and his associates were now incorporated for ten thousand ($10,000) dollars, and that more than half of this amount had been actually paid in.
    “IX. That on or about the day following the talk between-defendant and plaintiff, plaintiff went to the office of the Kent county clerk and made inquiries relative to the records of the Service Auto Wheel Company in said office; that he examined the articles of association of the said corporation then on file in said office, containing the statements hereinbefore set forth; that plaintiff relied upon the statements contained in the articles of association as to the amount paid in and value of property received, and gave credit in reliance thereon; that between the time when plaintiff examined the articles of association and the date of the filing of the petition in bankruptcy by the corporation, plaintiff sold supplies and material to the corporation to the value of three hundred and four dollars and seventy-nine ($304.79) cents, and that credit was extended therefor to the corporation because of the statements and representations contained in the articles of association.
    “X. That nothing was paid by the corporation to plaintiff on account of the goods sold to it, but that plaintiff proved his claim in the bankruptcy proceeding and received dividends therefrom amounting to thirty-eight dollars and five ($38.05) cents, leaving a balance of two hundred and sixty-six dollars and seventy-four ($266.74) cents.
    “Conclusions of Law.
    “I. The statements contained in the articles of association were material and were relied upon by the plaintiff in giving the credit in question. Plaintiff had a right to rely on the truth of such statements.
    “II. That such statements were not true in fact and .were in their effect a legal fraud upon the plaintiff. Defendant is a party to and is responsible for the fraud committed upon the plaintiff by having joined in the making and filing of the articles of association.
    “III. The fact that defendant has as between himself and the corporation paid his stock subscription in full does not relieve him from liability to the plaintiff.
    “IV. Plaintiff has been damaged by reason of the fraud and false representations in the articles of association made and executed by defendant as aforesaid in the amount of two hundred sixty-six dollars and seventy-four ($266.74) cents.
    “V. Plaintiff is therefore entitled to a judgment for the said sumí of two hundred and sixty-six dollars and seventy-four ($266.74) cents together with his costs to be taxed/’
   Kuhn, J.

(after stating the facts). Counsel for the appellant, discussing the various assignments of error urged in his brief, says that the principal propositions involved for the consideration^ of this court can be stated as follows:

(1) Can this action be maintained?

(2) Was there any fraud established?

(3) Are the facts found by the court contrary to the clear weight of the evidence, and is the judgment supported by the facts.

1. It is the contention of appellant’s counsel that the trustee in bankruptcy, possessing the right to file a creditor’s bill by virtue of the Federal statute, should be held to be the only person in a position to get the relief that the plaintiff seeks to obtain by this proceeding. To support this contention, the recent cases of Grand Rapids Trust Co. v. Nichols, 199 Mich. 126, and Courtney v. Youngs, 202 Mich. 384, are relied upon. In the case of Grand Rapids Trust Co. v. Nichols it is held that as the trustee in bankruptcy, under section 47 of the bankruptcy act of 1898, as amended in 1910 (36 U. S. Stat. 838, 840), is vested with all the rights of a judgment creditor on whose judgment execution is returned unsatisfied, the trustee in bankruptcy may maintain a suit in the nature of a creditor’s bill against those who obtain corporate stock without payment. But a reading of these authorities does not disclose that this court held that the trustee alone could bring an action and that an action at law might not be brought by a creditor under circumstances such as are now before us. It is true that the plaintiff herein took part in the bankruptcy proceeding and in the election of a trustee and that he reduced the damages in this action by proving the claim in the bankruptcy court and receiving the dividends thereon. This action is the ordinary action on the case for fraud and deceit. Many such actions have been brought in this State, and inasmuch as the methods employed to perpetrate fraud are infinite, there is a great diversity in the facts and situations to which the action has been held applicable. Among others are cases of false representations as to the financial standing and responsibility of a person or a corporation made either to promote an advantageous sale of a worthless business, or an advantageous sale of stock in a worthless corporation, or to induce merchants or bankers to extend credit to an irresponsible or insolvent person or corporation, which would not have been extended had the true fact's been known. Where a false representation is made by one who does not derive any personal benefit from the resulting transaction, the representation, to be actionable, must be in writing over his signature, because of the provisions of section 11983, 3 Comp. Laws 1915, which declares that:

“No action shall be brought to charge any person, upon or by reason of any favorable representation or assurance, made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assurance be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.”

It has been expressly held that representations as to the credit of a corporation are within this statute. See Bush v. Sprague, 51 Mich. 41; Hubbard v. Long, 105 Mich. 449. If the action had been brought against the corporation itself for fraud, verbal representations by its officers and agents might be shown. But the signers of the articles of association have also personally represented that the statements therein are true, and this representation, being in writing and signed by them, would seem to fulfill the requirement of the statute of frauds. Hence, any one who has relied upon these representations and extended credit to the corporation may, if damaged thereby, sue the signers of the articles individually. The only case in which this particular point has been touched on at all by this court is Bush v. Sprague, supra. There were two counts to the declaration in that case setting up two different theories. The first count charged a conspiracy to defraud plaintiff, in pursuance of which the defendants went through the form of organizing a corporation, stating in the articles of association that the capital stock was $50,000, of which $15,000 had been paid in, whereas in fact nothing had been paid in; also that defendants caused the státement to be made in the city directory that this corporation had a capital of $50,000 when it had none and its debts exceeded its assets; that one of the defendants told plaintiff that the business of the corporation was very lucrative and that it was paying large dividends, and that he had invested $1,400 in stock of the corporation; that other similar statements were made singly by the other defendants; that one of the defendants showed plaintiff a written, but unsigned, statement, which he claimed was copied from the corporation’s books, showing the investment of considerable sums of money, by each of the defendants, and large assets and profits; that plaintiff, relying upon these representations, did invest $2,000 in stock of said company, which money was kept by the defendants personally ; that the corporation then gave a chattel mortgage on all its assets to secure pretended indebtedness. The second count alleged the organization of a real corporation, but charged that the defendants combined to defraud plaintiff by false and fraudulent representations, setting up substantially the same representations as were alleged in the -first count except as to the fraud in the organization of the corporation, whereby plaintiff was induced to invest, etc. The plaintiff was not required to elect the count he would rely upon and the case went to the jury upon both and resulted in a verdict for the plaintiff. Defendants sought a reversal on the ground that the representations relied upon were not in writing and signed by the party to be charged. This court was unanimously of the opinion that the statute did not apply to the case alleged in the first count, because the corporation was there claimed to be fictitious and a part of defendants’ fraudulent course of action and the defendants really made the false representations for their own benefit. The Justices were not in accord as to whether the statute would apply in the case presented by the second count. Chief Justice Graves, who wrote the first (and minority) opinion, thought it would and that the testimony was not admissible under the second count, and that therefore the case ought to be sent back for a new trial. Justice Campbell was of the opinion that this question was not before the court, not having been raised by the assignments of error, but that, even if it were, the statute would not apply, because it was not some one particular statement that was relied upon, but a concerted course of action involving many separate acts and statements, no one of which singly, perhaps, would be sufficient to establish fraud, yet which, in combination, were effectual to convey the impression that the corporation was sound and prosperous, and that if the statute were applied in such cases, it would be a most effective and convenient cover for fraud. Moreover, he called attention to the fact that there was a written and signed misrepresentation, saying:

“Here, then, is a case where the fraud was claimed to have been begun by the signing and filing of false assertions in the articles of association, which, it may be remarked, would thus far at least, bring the case within the terms of the statute, and justify the court in refusing, as it did refuse, to charge that there was no evidence of false representations written and signed.”

Justice Cooley did not discuss this question, but agreed with Justice Campbell that the judgment should be affirmed, because no request was made in the lower court that the recovery be restricted to one count of the declaration and no error assigned on the failure to do so. Chief Justice Graves, in his opinion, referred to the articles of association as follows:

“Suppose it were claimed for the plaintiff, although it has not been, that the articles of association should be deemed as signed within the sense of the statute in question, the position, if true, would not help the plaintiff here. The whole testimony as to this point, including the articles, was abandoned to a promiscuous application, and was left to be considered under the second count no less than under the first. But the articles were not properly examinable at all as evidence of false representations under the second count, because, as already said, the corporation is there presented, not as being a fraud and a false representation, but as a body instituted lawfully, and to which the defendants sought to give a fictitious ability and credit.”

His view, however (unless based on the theory that the second count admitted the payment of the $15,-000), would seem to overlook the point caught by Justice Campbell that, even if a corporation was in fact organized by the articles, yet the money was not in fact paid in, and hence the positive statement in the articles that the money had been paid in was a false statement giving a “fictitious ability and credit” to the corporation. Justice Campbell's view seems to have been adopted by this court in more recent decisions — not that there are any instances in which recovery has been sought or allowed in this court in actions on the case for fraud based solely upon statements falsely made in articles of association, but declarations may be found in a number of decisions as to the purpose of requiring the filing of articles of association and of annual reports of corporations in the county clerk’s office, which declarations, though found for the most part in chancery cases, purport to be general announcements of the purpose of the requirement of the law and of the right of the public to rely upon the statements contained in the documents so filed. Thus, in McBryan v. Elevator Co., 130 Mich. 122, 123, it was said:

“The wrong was done by the original incorporators in making a false statement as to the amount of stock actually paid in. The public, and creditors dealing with the corporation, had the right to rely upon this statement as true. * * * It would be a disgrace to the law if creditors dealing with the corporation in reliance upon these statements, which they examine in the public offices where they are on file, had no remedy. Justice and good morals require that they who make such false statements, whether they make them intentionally or, as in this case, recklessly, should respond in damages therefor.”

It is true the portion of the opinion in which this language occurs was not necessary to the decision of the case and was not concurred in, though not dissented from, by the rest of the court. But the same rule seems to have been announced in the earlier case of Moore v. Elevator Co., 122 Mich. 48, in which the following statements were made:

“The organization of this corporation was a fraud in law, if not in fact. As to the Schoonmakers and Hultgren it was a fraud in fact. The amount of property which they conveyed to the company, for which' they received paid up stock to the amount of over $63,000, was not worth any such sum. It was a gross and fraudulent overvaluation, and known by them at the time to be such.
“The bonus subscribers had no knowledge or notice of the fraudulent character of the organization. They relied upon Moore’s connection with the corporation as a bona fide one. One of them, before subscribing, caused the articles of association, as filed in the county clerk’s office, to be examined. * * *
“Moore, by his act in subscribing for the stock, in being a director and president, held himself out to the public and to creditors as a bona fide stockholder, and as liable for the amount of stock subscribed by him.”

That the above were chancery cases does not indicate either that the effect of filing articles of association with the county clerk as presenting to the public certain information and representations upon which they have a right to rely, is not the same in an action at law as in a chancery case, or that there is no remedy at law for a fraud of the kind here involved. Both happened to be chancery cases because of the nature of the relief sought. The first was a bill by a receiver to force the stockholders to pay the unpaid balance of their subscriptions. It was auxiliary to a judgment creditor’s bill filed by a creditor of the elevator company. There is nothing to indicate that the creditor, when he found he had been misled by the false statements in the articles of association and had suffered damage thereby, might not have sued those who signed the articles in an action on the case for fraud and deceit. The creditor simply elected to take a different course, took a judgment in assumpsit for the debt and filed a judgment creditor’s bill to reach the assets, which included these unpaid subscriptions. In the second case, one of the signers of the false and fraudulent articles of association was’himself the complainant, having filed a bill to have his lien declared prior to the liens of the bonus subscribers, and the question of his- liability on his subscription because of his false representation was presented, as a matter of defense, by the bonus subscribers. They very clearly might have brought an action on the case against him for fraud and deceit! The right of the public to rely upon statements contained in annual reports of corporations on file in the county clerks’ offices, is analogous, and this right has been clearly announced and upheld by this court in a number of decisions. In Silberman v. Munroe, 104 Mich. 352 (an action of trover), it was said:

“The report (to the secretary of State) was very clearly intended as a means of furnishing information to those dealing with the corporation; and when parties deal with the corporation upon the strength of such report, acquired through the usual channels, they have the right to rely upon the fairness and honesty of the statement.”

And in Dime Savings Bank v. Fletcher, 158 Mich. 162 (35 L. R. A. [N. S.] 858), a bill to cancel a loan for'‘fraud, it was said:

“Such information is demanded by the law from corporate officers for the very purpose of affording the general public, or that portion of it about to enter into contractual relations with such corporation, with accurate and honest information respecting its financial standing.”

See, also, First Nat. Bank of Ovid v. Steel, 146 Mich. 308, where an action for fraud and deceit was based on false statements in the annual report of a corporation.

It is clear that the right of the public to rely upon these documents on file in.a public office is not affected by the fact that the question arises in an action at law rather than in a proceeding in chancery. Mr. Justice Campbell, in his opinion in Holcomb v. Noble, 69 Mich. 396, said:

“It is admitted that in equity an actual design to mislead is not necessary if a party is actually misled by another in a bargain. There was abundant evidence in this case to authorize the jury to find that defendant, whether honestly or dishonestly, expected plaintiff to act on his representations of the reliableness of the reports which he produced, and that plaintiff did rely on them. There is no reason for a difference in action in such cases between courts of law and courts of equity. Where an equitable cause of grievance exists, it in no way differs from a legal one unless a different remedy is needed. A court of law cannot cancel a contract, and for such a purpose the equitable remedy must be sought. But where the relief desired is compensation for the wrong, the equitable remedy is much less appropriate, and an action in equity for mere damages will generally be denied, but denied only because the legal remedy is better. If there could be no legal remedy, there can be no doubt that equity would act. If the fraud is such that it creates a right of action anywhere, an action must lie on the case where a money judgment is needed.”

The following were actions on the case for fraud and deceit, based on false representations as to credit and financial ability, resulting in loss to the plaintiffs: Bush v. Sprague, 51 Mich. 41; Jones v. Kemp, 49 Mich. 9; Kryger v. Andrews, 65 Mich. 405; French v. Fitch, 67 Mich. 492; Hess v. Culver, 77 Mich. 598 (6 L. R. A. 498, 18 Am. St. Rep. 421) ; Hinchman v. Weeks, 85 Mich. 585; Hubbard v. Long, 105 Mich. 442; Banner v. Schlessinger, 109 Mich. 262; Third Nat. Bank of New York v. Steel, 129 Mich. 434 (64 L. R. A. 119); McDonald v. Smith, 139 Mich. 211; Getchell v. Dusenbury, 145 Mich. 197; Massey v. Luce, 158 Mich. 128; Steele v. Kellogg, 163 Mich. 132; Hubbard v. Oliver, 173 Mich. 337; Krolik v. Lang, 187 Mich. 286; Andrews v. Osius, 203 Mich. 195. See, also, St. Johns Nat. Bank v. Steel, 135 Mich. 165; First Nat. Bank of Ovid v. Steel, 146 Mich. 308.

There is no ground for the claim that an affirmance of the judgment in this case would establish a new rule enlarging the liability of stockholders in corporations. It has nothing whatever to do with the liability of stockholders. It is the ordinary liability that rests upon every person, whether stockholder or not, who makes a false statement as to a fact which he knows is lively to be relied upon by another in the way of extending credit, provided such other person actually does extend credit and suffers damage thereby. The liability is neither greater nor less because of the fact that the false statement happened to be contained in articles of association — that is a mere accidental circumstance so far as the ground of the action is concerned. It is not because the defendant made himself a stockholder by signing the articles that he is held responsible, but because he made false statements, over his signature, in those articles as to the amount of money paid in and the value of the property taken in payment for part of the capital stock. A false statement which causes loss to another relying upon it is not 'exempt from an action for fraud merely because it happened to be made in articles of association. Rather, one making a false statement there ought to be held the more strictly to account, for this court has constantly tried to impress upon those forming corporations that the public have a right to rely upon the statements they make in the documents relative thereto required to be filed and recorded in public offices for the information and guidance of those dealing with the corporation. The more solemn and formal the document, the more confidence will naturally be placed in its statements. If a person who becomes a stockholder by signing articles of association desires to avoid all chance of such a liability as this, let him see to it that the statements he signs in the corporate documents are true.

I am therefore of the opinion that the action was properly brought and that there is no merit in the first contention of appellant’s counsel.

2. I am also of the opinion that there was sufficient proof to establish the fraud relied upon, as found by the trial judge in his findings. ' The record conclusively shows that there was not actually paid in- cash the amount set forth in the articles, viz., $1,600, and that there was not actually paid in cash to exceed the sum of $1,080, and it further appears that this fact was known to the defendant. Likewise it appears conclusively that the corporation was not possessed of property actually worth $6,200. I agree with the circuit judge that the testimony shows that the property was- not worth to exceed the sum of $1,200. There is also sufficient testimony to warrant the finding of the judge that the plaintiff relied upon these statements in the articles of association in extending credit to the corporation after June 10th or'll, 1917, the date on which the plaintiff claims he examined the articles of association in the office of the county clerk.

3. The contention that the findings of the court are against the great weight of the evidence is based largely upon the statements contained in the affidavit filed by the vault' clerk of the county clerk’s office that on the day that the plaintiff claims to have examined the records in the county clerk’s office the articles of association had not been actually recorded and that they were not recorded until June 19th, while the plaintiff testified that he examined the record books on either the 10th or 11th. It does appear, however, conclusively that the articles of association were on file in the office of the county clerk on June 7, 1917. The plaintiff testifies positively that he obtained his information in the office of the county clerk either on the 10th or 11th. There is apparently some discrepancy as to whether he saw the original articles or whether he examined the book in which they were supposed to have been copied. The trial judge, who had the benefit of hearing and seeing the witness, evidently believed that he was testifying to the truth with reference to his statement that he saw the articles, and I am not impressed, upon reading his testimony, that the judge was not warranted in making the finding that he did. I am satisfied that there was sufficient evidence to justify the findings as made and that they are not clearly against the weight of the evidence, but are based upon competent and material testimony.

For this reason I am of the opinion that the findings as made should not be disturbed, and the judgment entered should be affirmed.

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


author: Kuhn, J. BIRD, C. J.

text:
    BOYLE v. WATERS.
    1. Attorney and Client • — ■ Contracts — Evidence — Question- oE Fact.
    ' Where a contract of employment between a law firm and their client was terminated by the client’s brother, acting as her attorney, at the conclusion of the trial in the circuit court, and a new contract entered into for carrying the case to the Supreme Court, contradictory testimony as to the terms of the new contract, held, to present a question of fact for the jury. Moore, Fellows, and Kuhn, JJ., dissenting.
    2. Evidence — Parol Contract — Self-Serving Statement — Admissibility.
    In proceedings by a law firm to establish a lien on the proceeds of a judgment for services rendered in said case in pursuance of an orai agreement between said firm and client’s brother, acting as her attorney, a memorandum of the agreement, made by one of the members of said firm, was inadmissible in evidence for the purpose of proving the terms of said contract. Per Ostrander, Moore, Steere, Brooke, and Stone, JJ. Bird, C. J., dissenting.
    Error to Kent; Brown, J.
    Submitted January 28, 1919.
    (Docket No. 24.)
    Decided July 17, 1919.
    Rehearing denied October 6, 1919.
    Case by Lillian Boyle against Dudley E. Waters and another, receivers of the Pere Marquette Railroad Company, and the Ann Arbor Railroad Company for personal injuries: On petition of Reuben Hatch and others, copartners as Hatch, McAllister & Raymond, to establish a lien for services. Judgment for petitioners. Plaintiff brings error.
    Reversed.

      Wykes & Averill (William K. Clute, of counsel), for appellant.

      Hatch, McAllister & Raymond (Myron H. Walker, of counsel), in pro. per.

   Kuhn, J.

This litigation results from a controversy between Hatch, McAllister & Raymond, a firm of attorneys of Grand Rapids, Michigan, and their former client, Lillian Boyle, concerning their charges for services while they were under retainer and employed as her attorneys, for that portion of their work in the litigation which related to the bill of exceptions, briefing, and arguing her case in this court. The case is found reported under the title of Boyle v. Waters, in 199 Mich. 478. The principal suit arose out of a personal injury which Miss Boyle sustained upon the railroads of the defendant companies,. Through her brother and attorney, who was the head of the firm of Boyle, Mott & Miller, of Chicago, Illinois, she retained the firm of Hatch, McAllister & Raymond, of Grand Rapids, as attorneys to assist Mr. Boyle and to represent her in the prosecution and conduct of said litigation to a final judgment. At the time that this agreement was made for services, it appears undisputed that it was agreed that the services of Hatch, Mc-Allister & Raymond were to be paid for at the rate of $25 a day for services out of court and $50 a day for services in court, and they were also to be repaid whatever moneys were paid out for incidental expenses. This schedule of fees was not contingent, but was to be paid absolutely whatever outcome there might be to the litigation. The case was brought on for trial and resulted in a verdict of $15,000 for the plaintiff. On the trial at Grand Rapids Miss Boyle was represented by the firm of Hatch, McAllister & Raymond and also by Mr. Edward Boyle and Mr. Marion G. Paul, of Thompsonville, who had also been retained as counsel. The day after the verdict was returned, Mr. Boyle went to the office of Hatch, Mc-Allister & Raymond to talk over further proceedings in the case and to settle with them for the services that had been rendered up to date. In the conversation which Mr. McAllister had with Mr. Boyle at that time some disagreement arose as to this settlement, and it is the claim of Mr. Boyle that Mr. McAllister threatened to withdraw from further participation in the case unless more than the specific original contract rate was allowed for services up to that time. The differences were referred to Mr. Hatch, who acknowledged that the firm should carry out the agreement it made and stay in the case, and a settlement for services to date upon the contract basis was thereupon made. As to what then occurred between Mr. Boyle and Mr. Hatch as to compensation for services thereafter to be rendered there is a sharp conflict in the testimony. It is the claim of Mr. Boyle that he requested Mr. Hatch to name an amount that would cover the services of the petitioners herein in connection with the preparation and hearing of The case in the Supreme Court, and that thereupon Mr. Hatch made him the proposition to do the work upon the bill of exceptions and in the Supreme Court for $350 and that he accepted this proposition and agreed to pay $150 additional for services, in case the judgment of the court below was affirmed. That he immediately left Mr. Hatch’s office and went directly to the Morton hotel where the plaintiff herein was staying, and informed her of this arrangement, which he claims she assented to. Mr. Hatch, on the other hand, claims that the agreement was that they were to receive $100 a day for all services in the settlement of the bill of exceptions and brief work and for all work in the Supreme Court, and in case the plaintiff received the amount of the judgment, that they were to receive the amount of $350 additional. The result on the appeal being an affirmance of the judgment, a payment thereon was attempted by the Ann Arbor Railroad Company, one of the defendants, in the form of a check or draft for $2,500, payable to the order of the plaintiff, Lillian Boyle. This was received by Hatch, McAllister & Raymond about March 7, 1918, and without any express authority from their client, they indorsed upon the check or draft her name, thus placing themselves in possession of the funds, and thereafter, on March 13, 1918, they rendered a bill for services on the basis of $100 per day and expenses, amounting to $2,232.21, covering their services for settling the bill of exceptions and briefing and arguing the case in the Supreme Court, and sent to Mr. Boyle at Chicago a letter enclosing a check for the balance of the $2,500, amounting to $267.79. Mr. Boyle immediately came to Grand Rapids, disputing the settlement on that basis, and insisted upon settlement being made upon the contract as he claims it was made. In the controversy which ensued between Mr. Hatch and Mr. Boyle, it is the claim of Mr. Hatch that he told Mr. Boyle of the agreement claimed to have been made by him and that he read to him a memorandum which he claimed he made on the day of the agreement in his journal, which was admitted in evidence upon the rebuttal examination of Mr. Hatch, after he and Mr. Boyle had testified as to what took place, over strenuous exceptions of counsel for the defendant, and which memorandum read as follows:

“Agreement is that for all work for Supreme Court, including settlement of bill of exceptions and brief work, we are to have at the rate of $100 a day; at the end, when plaintiff gets her money, if she does, we are to have $350 in addition; the per diem is payable whether we win or lose.”

The Ann Arbor Railroad Company refused to honor the check or draft because of the insufficient indorsement, and the petitioners were obliged to reimburse the moneys advanced on the check. Thereupon this petition was filed for an order establishing a lien on the $15,000 judgment for the amount of the claim for services of $2,232.21. A tender was made by the defendant to the petitioners of $582.21, which is the amount claimed to be due the petitioners in accordance with the contract testified to by Mr. Boyle, and $10 for services in the taxation of costs in the circuit court, and other additional expenses, and at the conclusion of petitioners’ testimony counsel for the defendant in the petition demurred to the evidence and asked the court to direct a verdict of no cause of action. The issues were, however, submitted to the jury and resulted in a verdict in favor of the petitioners in the full amount of their claim. Whether or not the learned trial judge erred in not directing a verdict as requested is the first question which merits our attention.

The original contract arrangement for services, made by Mr. Boyle, who was acting as attorney for his sister, with the counsel he retained in Grand Rapids, was, as has been stated, for the sum of $25 per day out of court and $50 per day in court for all services that would be rendered in the particular suit in which the plaintiff was at that time interested. So that, in the absence of any change in the contract, it was a contract which bound the petitioners to perform the services at the agreed compensation during the conduct of the entire litigation and, it seems to us, did not cease until the judgment became final and became enforced, and therefore continued through any proceedings which might be brought to reverse it. See 6 Corpus Juris, p. 652, § 161; note in 76 Am. Dec. p. 259; Brown v. Arnold, 67 C. C. A. 125, 131 Fed. 723; Berthold. v. Fox, 21 Minn. 51, at p. 53; Graves v. Graham, 43 N. Y. Supp. 508. The rule seems to be that an attorney cannot withdraw from litigation without the consent of his client and by leave of the court, as the relation does not terminate formally until there has been a withdrawal of record. See 6 Corpus Juris, p. 673, § 186. Therefore it conclusively appears that at the time the alleged second agreement was made the relationship of attorney and client existed between the petitioners and the defendant, and any contract that petitioners claim was entered into between them and their client should and does receive from the courts most careful scrutiny. Gates v. McLaulin, 199 Mich. 488; Coveney v. Pattullo, 130 Mich. 275. In the construction of a contract of this kind, made while the fiduciary relationship exists, we have in mind, and before us, the rule announced by the New York court of appeals in Re Howell, 215 N. Y. 466 (109 N. E. 572), where the general rule was thus stated:

“In this State it has been held that as to contracts made between the attorney and his client, subsequent to the employment, which are beneficial to the attorney, it is incumbent upon the latter to show that the provisions are fair and reasonable, and were fully known and understood by the client” — citing cases.

The rule is thus stated in 2 Ruling Case Law, p. 1038 (part of § 120):

“A number of decisions take the view that not only are contracts between an attorney and his client as to compensation made after the commencement of the relation to be closely scrutinized, but that such contracts are presumptively invalid on the ground of fraud, and that the burden of proof is on the attorney to show the fairness of the transaction, in that the compensation provided for does not exceed a fair and reasonable remuneration for the services which have been rendered or which it is his duty to render. The attorney must show that the contract was free from all fraud, undue influence, and exorbitancy of demand, and it is usually held that by way of establishing its fairness the attorney should show that the contract was entered into by the client freely and with a full understanding as to his rights and as to the effect of the instrument, and that he gave his client full information and disinterested advice.”

It is the contention of counsel for petitioners that Mr. Boyle in his relation to the making of this contract was acting as the alter ego of his sister, the defendant in this petition, and that she is chargeable with all the knowledge possessed by her brother, as special counsel, with whom the contract in question, it is claimed, was made on her behalf. With this, however, we cannot agree, as we are inclined to the view, and think it is a just conclusion, that the rule contended for by the counsel for petitioners should not be held to apply where the fiduciary relation existing between attorney and client is established and a new contract is claimed to have been made, beneficial to the attorney. The duty rested upon the petitioners, not only to show that the provisions of the new contract were fair and reasonable, but that they were fully known ahd understood by the client. No testimony was offered to show that the minds of the parties, that is, of the petitioners and their client, met as to the terms of this new contract. The general rule as to the employment of an attorney through an agent is thus stated in 6 Corpus Juris, p. 782, § 303:

“Where the employment is arranged through an agent, a client’s liability depends on the authority of the agent to bind him in that respect, and the scope of the agent’s authority depends on the rules and. principles of the law of agency.”

And in the following section it is said:

“As an attorney has no implied power, under a general retainer, to employ associate counsel, the client is not liable to counsel so employed, unless he has authorized the employment, or has ratified the act of the original attorney in employing assistance, with full knowledge of the fact that the attorney so employed is to look to him for compensation.”

In this case the original employment of the associate counsel is not contested.. If the contract was not authorized in advance, it has been ratified. But if an attorney has no implied power to employ counsel at the expense of the client, much less would he have any implied authority to alter a contract of employment of associate counsel already entered into by granting him a greater fee than he had originally agreed to accept for the same work. Hence, petitioners must show, not merely that Mr. Boyle was authorized to employ counsel at the time the original agreement was made, but that he had a separate and distinct authorization to increase the rate of compensation at a time when counsel were legally bound to perform the services at the old rate, or, failing in this, that the client ratified the new contract, with full knowledge of its terms and of her rights in the situation which had developed. There is no testimony whatever showing such special authorization. In fact, the testimony negatives it, because it shows clearly that when Mr. Boyle went over to pay Hatch, Mc-Allister & Raymond for services already rendered, he was taken by surprise when the demand was made for greater compensation, which led to the arrangement whose terms are now in dispute. Whatever he did at that time, therefore, was clearly done upon his own initiative, and before it could bind his sister, it was necessary to obtain her ratification. The testimony is uncontradicted that he did not notify her of any such contract as petitioners claim was made. Mr. Boyle testified that he told his -sister what he claims was agreed upon at this conversation as the new contract, which was clearly not the contract which is here insisted upon and sought to be enforced. We think the establishment of this rule places no burden upon counsel, for the reason that, having entered upon the contract of service, if they sought to change it, it was a very simple thing to bring notice of the change to the client by writing a short memorandum of'the proposed change and mailing it or sending it to Miss Boyle. We are firmly of the opinion that the petitioners have not met the burden which rested upon them to show the new contract which they seek hereby to enforce, and having failed to do so, we think cannot recover thereon, and that their right to compensation must be determined by their first contract of hire. Upon the record as made it was the duty of the trial judge to direct that a lien for the services of the petitioners should attach to the judgment for the amount thereof as computed under the first contract of hire, which, according'to the computation made in the brief of appellant, amounted to $487.50, and adding thereto $72.21, expenses, and $10 for services in taxing costs in the circuit court, would make the total amount the petitioners were entitled to, $569.71, which is $12.50 less than the amount which was tendered by the defendant in court.

In view of this conclusion, it will be unnecessary for us to discuss the other interesting questions raised on this appeal concerning the admissibility of the self-serving statement made by Mr. Hatch in his journal and the other questions raised by appellant’s counsel in their brief.

The judgment must be reversed and a new trial granted, with costs to the appellant.

Moore and Fellows, JJ., concurred with Kuhn, J.

Ostrander, J. Not questioning any of the principles stated in the opinion of Brother Kuhn, I am impressed that their application is questionable. For an attorney to deal with a client is one thing, but when the. client employs or uses her own attorney, and her brother at that, to negotiate for her, to make her bargain with her other attorneys, then I think the rule stated ought to be modified. In my judgment, the case presents a question of fact. Mr. Boyle was not deceived, nor was he imposed upon. He was entirely conscious of the rights of his sister in the premises. If he ended, by payment, one contract for the services of petitioners and proceeded then to make another contract, there can be no question of his perfect right to do so and none of his sister’s responsibility. He was doing what his sister had turned over to him to do. • Petitioners were not dealing with her, but with her attorney. The law of agency need not bother us. Boyle was attorney for his sister — represented her, by her consent.. Did he make a new bargain? He says he did and informed his sister about it. Was it the bargain which petitioners say was made? That is the question and, as affecting it, I am impressed that the memorandum made by Hatch was incompetent evidence. The- trial court required the jury to find that the old or first employment ended and that before a new bargain was made. There is testimony tending to prove it. Because the Hatch memorandum' was admitted in evidence, judgment should be reversed and a new trial granted, with costs to appellant.

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

Moore, J. I agree with Justice Ostrander that the memorandum was inadmissible.

BIRD, C. J.

(dissenting). I am in accord with the conclusions reached by Mr. Justice Ostrander in this case save in this respect: I think the memorandum made by Judge Hatch was competent, and therefore admissible in evidence, in view of the conditions existing at the time of its admission. Jones on Evidence» §§ 171, 293, 294.

I am of the opinion that the judgment of the trial court should be affirmed.