text:
      In re MINER’S ESTATE.
    1. Appeal and Error — Probate Courts — Delayed Appeal — Discretion of Court.
    The Supreme Court will not interfere with the allowance of a delayed appeal from the probate court to the circuit court where the notice of appeal was promptly given and an appeal bond filed and approved, but through some misunderstanding the appeal was not perfected; there being no evidence of abuse of the court’s discretion.
    2. Executors and Administrators — Wills—Settlement.
    A compromise settlement between the widow and the executor, growing out of her application for an allowance for support, should not be held to defeat the intention of the testator as expressed in his will.
    3. Life Estates — Wills—Duty to Pay Taxes.
    A residuary clause in a will requiring the life tenant “to pay all taxes” does not include assessments for permanent improvements.
    4. Wills — Construction of Wills.
    In interpreting a will the instrument should be considered as an entirety.
    5. Same — Custody of Property.
    Where the widow, by one clause in her husband’s will, was given the use and net income from the remainder of the estate, including the homestead, for her natural life or-until her remarriage, such provision to be in lieu of dower and other statutory allowances, except support from the estate while it was being settled, not exceeding 12 months’ time, and by another clause the executor was given full power to sell, mortgage and convey any and all of the estate, to invest and reinvest the same, and to do any other act in his judgment wise in the care, management, and settlement of the estate, held, that testator did not intend that the corpus of the estate should be turned over to the widow at the end of 12 months from the time of probating the will. Ostrander, J., dissenting.
    6. Appeal and Error — Wills—Executors and Administrators— Accounting.
    On appeal from an order of the probate court passing upon the account of the executor, the Supreme Court will not pass upon the question whether the testator, in giving his wife the use and net income of the remainder of the estate, authorized her to so use it as to deplete the body of the estate.
    Error to Kent; Perkins, J.
    Submitted January 15, 1918.
    (Docket No. 81.)
    Decided March 28, 1918.
    Clark H. Gleason, executor of the last will and testament of Jerome Miner, deceased, presented his second annual account. The account was allowed in part in the probate court, and the executor appealed to the circuit court. Judgment affirming the order of the probate court. The executor brings error.
    Affirmed in part and reversed in part.

      Gleason & Lee (Myron H. Walker, of counsel), for appellant.

      Jewell & Smith, for appellee.
   Moore, J.

This case arose in the probate court for the county of Kent, was appealed therefrom to the circuit court, there heard and then brought to this court by writ of error. Both appeals were taken by the executor and one of the residuary legatees joined him in the petition for perfecting the delayed appeal.

We quote from the brief of appellant:

“The sole purpose of the appeals is to get a construction of the last will of deceased, and a final determination from its terms, and the terms of an agreement entered into between the widow and the executor, of two questions:
“First. Are special improvement taxes on the real estate to be paid from the income or the corpus of the estate?
“Second. Is the estate to be held in trust by the executor or turned over to the widow, and if so turned over, has the widow the right to consume both the income and the corpus of the estate?”

Counsel for the appellee say the record raises the following issues: '

1. Was the circuit court authorized to consider the appeal made to it upon the showing before the court?

2. Under the will in question should special improvement taxes be charged against the income of the widow from said estate, or against the corpus of the estate?

3. Under the will in question should the residue of the property, after the payment of debts and legacies be turned over to the widow, or held in trust by the executor?

4. Does the agreement of July 2, 1914, bar the widow from claiming that the residue of the estate be turned over to her?

A great deal of space is occupied in the briefs of counsel in discussing the question of whether the case was properly in the circuit court. After the hearing in the probate court, counsel for appellant promptly gave notice of an appeal to the circuit court, an appeal bond was filed and approved. The probate judge directed upon whom the notice of appeal should be served. It was promptly served and notice of service filed, but through some misunderstanding the appeal was not perfected. After a hearing a delayed appeal was allowed. We have often held that unless there was an abuse of discretion in allowing a delayed appeal that we would not interfere. Some of the cases are Sanborn v. St. Clair Circuit Judge, 94 Mich. 519; Merriman v. Jackson Circuit Judge, 96 Mich. 603; Small v. Olds, 151 Mich. 111. We do not think we should interfere as to this feature of the case.

Much time is also spent in arguing the- eifect of a compromise settlement entered into between the widow and the executor growing out of her application for an allowance for support. Whatever else should be said of this agreement it should not be held to defeat the intention of the testator as expressed in his will.

The other two questions must be decided by considering those parts of the will reading as follows:

“Ninth. All the rest, residue and remainder of my estate including the homestead where I now live, I give, devise and bequeath in manner as follows, viz.: I wish my said wife to have the use and net income thereof during her natural life, provided she do not again marry, such use to terminate on her remarriage or death, she to pay all taxes thereon and keep the buildings propérly insured and in repair, and on her remarriage or death what then remains of such residue of my e,state shall pass to the children of my four deceased brothers, Albert Miner, Hubbard Miner, Homer Miner and Frank Miner, the same to be divided between said children share and share alike, to hold the same to them, their heirs and assigns forever. I think there are fourteen such children now living. The provision herein made for my said wife is intended to be in lieu of dower and other statutory allowances, except support from my estate while it is being settled not exceeding twelve months’ time.
“Tenth. I hereby nominate and appoint Clark H. Gleason of Grand Rapids, Mich., to be the executor of this my will, and I give to him full power to sell, mortgage and convey any and all of my estate, to invest and reinvest the same, and to do any other act in his judgment wise in the care, management and settlement of my estate, without first obtaining leave or license of any court in the premises.”

The item of a special improvement assessment amounting to $54.99 was directed to be paid out of the corpus of the estate instead of the income.

It is the claim of appellant that as Mrs. Miner is to have the use and net income and is “to pay all taxes” she must pay not only ordinary taxes but taxes for improvements. No case directly in point sustaining that contention is called to our attention. A somewhat similar case is that of Chamberlin v. Gleason, 163 N. Y. 214. The court said in part:

“The will of the testator, under which the life tenant and remaindermen derive title, provides: ‘My wife (plaintiff) shall pay all taxes assessed against said house and lot during her lifetime’ * * * We think the testator did not intend to include assessments for permanent improvements in the word taxes as used by him in the will.”

This construction appeals to us, otherwise the entire income of the plaintiff might be required to pay a paving or other extraordinary tax, a result not intended by the testator.

The other question, Who is now entitled to the corpus of the estate? is a difficult one to solve because of the phraseology of the will. The position of counsel for the appellee is stated as follows:

“It is the position of the widow in this case that the word ‘use’ means custody and control and that the words ‘use’ and ‘net income’ mean custody and control with a right to have the net income and that the provision that she shall pay the taxes and keep the buildings properly insured and in repair signify the intention of the testator that she should have the custody and income direct and not through an executor or trustee who would otherwise be charged with this duty, and that the portion of the will providing that the provision for the wife is in lieu of dower and other allowances except ‘support from my estate while it is being settled, not exceeding twelve months’ time,’ indicates very strongly the intention of the testator that settlement of the estate should be made within twelve months’ time; otherwise the testator would be granting the use and net income (under the appellant’s theory) and also support from the estate while it was being settled, which period under their theory would continue until her remarriage or death. She further contends, as above set forth, that the power to sell, mortgage, convey, invest and reinvest the estate was a provision made solely in view of the character of the estate; it being necessary in order to make it profitable that the moneys coming in on land contracts should be promptly invested and reinvested and that the repeated use of the word ‘settlement’ further indicates an intention on the part of the testator that the estate was to be settled and not kept open. The exercise of this power by the executor would facilitate rather than delay the settlement of the estate which by the repeated use of the'term it is evident was uppermost in his mind.” * * *

It seems to us that this argument does not give sufficient effect to the provisions of the 10th subdivision of the will.

It is a familiar rule that in interpreting a will the instrument should be considered as an entirety. Robinson v. Finch, 116 Mich. 180. Mr. Justice Brooke, in Kirscher v. Todd, 195 Mich. 297, 308, said in part:

“The primary rule of construction is to ascertain the true intention of the testator. That intention must be ascertained from a consideration of all the provisions of the will itself and in the light of the circumstances surrounding the testator at the time the will was made and his relations with the several objects of his bounty. Having so ascertained his intention, it is the duty of the court to give that intention effect if that be legally possible.”

Mr. Justice Fellows in Re Blodgett’s Estate, 197 Mich. 455, 463, said:

“Let us now consider the will in its entirety, because to arrive at the intent of the testator we must have regard for all provisions of the will and all language used.”

If we apply this rule to the instant case and give effect to subdivision 10th as well as subdivision 9th, we think it clear that Mr. Miner did not intend that the corpus of his estate should be turned over to Mrs. Miner at the end of twelve months from the time of probating the will.

Counsel for appellant ask us to construe the terms of the will fully. Counsel for the appellee question whether this can be done in this proceeding, but say if it can we should say:

“It was the intention of Jerome Miner when he drafted this will that, after the payment of his debts and legacies, the property should be turned over to his wife, and that she might not only have the net income thereof, but that she might úse it and, if necessary, encroach upon the principal, the objects of her use not being limited, and that trusting in her discretion, he intended that only that portion of his estate which she should not expend should descend to his unknown nephews and nieces.”

We cannot ignore the fact that this is an appeal from an order of the probate court passing upon the account of the executor. It is not a proceeding in chancery to construe the provisions of a will. We do not feel at liberty to pass upon the question of whether the testator in giving his wife the use and net income of the rest, residue and remainder of his estate‘has authorized her to so use it as to deplete the body of the estate.

The order of the probate court is affirmed in part and reversed in part, as indicated herein, without costs to either party. >

Bird, Steere, Brooke, Fellows, Stone, and Kuiin, JJ., concurred with Moore, J.

Ostrander, C. J.

I think that the widow, the executor’s account being passed, is entitled to the custody of the estate. In other respects, I concur with Justice Moore.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    WESTERN NEWSPAPER UNION v. KITCHEL.
    Contracts — Mutuality—Option op Buyer — Consideration.
    A contract between defendant, a newspaper publisher, and a news agency, whereby defendant gave up a valuable contract right with a rival concern of the plaintiff and bought plaintiff’s news service and miscellany plates, at a stipulated price, the contract to continue at the option of defendant, was not void for want of mutuality, and in a suit for material furnished by plaintiff, who had breached the contract by refusing to continue the service at the contract price, defendant was entitled to recover his damages as an offset.
    Error to Branch; Knowlen, J.
    ' Submitted January 31, 1918.
    (Docket No. 180.)
    Decided March 28, 1918.
    Assumpsit by the Western Newspaper Union against Horace Kitchel for services rendered. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Palmer, Palmer & Palmer, for appellant.

      Henry C. Loveridge and S. T. Slawitsky, for appellee. ,£
   MOORE, J.

This case was tried before the circuit judge without a jury. His findings of fact and conclusions of law state the issues involved very clearly as follows:

“Findings of Fact: For some years prior to April 16, 1912, Mr. Kitchel, the defendant, published á daily- and semi-weekly newspaper at Coldwater in this county, having a circulation of upwards of 6,000 and buying from the American Press Association daily hews plates and daily news column for which he paid ten dollars and fifty cents per week. At that date and for a long time prior thereto, said American Press Association and plaintiff were competitors and rivals in the business of furnishing such service to newspapers throughout the United States. On April 16, 1912, plaintiff by its agent called upon defendant and importuned him to terminate his said service contract with the American Press Association and offered to supply him with substantially the same service for seven dollars and fifty cents per week. Defendant, reluctant to change, stated to plaintiff’s agent that he feared (if he made the proposed change) that the said plaintiff and said American Press Association would unite, agree upon prices, and that in consequence defendant would be called upon and required to pay higher rates than he was paying. Plaintiff’s agent thereupon offered to protect defendant from the contingency in question by incorporating into the proposed contract an option to defendant in terms, viz:
“ ‘It is also agreed that an option be given Pub. to certain daily service at same rate T. F. and miscellany plates not to exceed former prices namely $1.00 and $1.50.’
“Defendant and plaintiff by its agent thereupon signed the proposed contract, the same including said option and plaintiff’s acceptance indorsement thereon.
“This contract was forwarded to plaintiff at Chicago and was duly accepted in writing by plaintiff. The letters ‘T. F.’ in said option clause are an abbreviation of ‘until forbidden.’
“The clause in question in terms amounted to an option in defendant to elect to continue the said service at his will. The regular price for the service which said plaintiff agreed in such contract to furnish defendant at $7.00 per week was $11.00 per week and the miscellany, etc., fixed in the contract at 50 cents per page were ordinarily charged at $1.00 and $1.50 per page.
“The contract was by its terms made to expire on May 20, 1913, but said option clause as I have said was added and incorporated before its execution.
“Service was furnished defendant by plaintiff under said contract to said May 20, 1913. On April 17, 1913, plaintiff notified defendant that it would not furnish the same after May 20, 1913, at the contract rate and announced a rate of $11.00 per week for the service which had theretofore been furnished defendant under the contract at seven dollars per week. Nothing further was done by either party nor were there any communications between them until about May 25, 1913, when defendant called upon plaintiff at its Chicago office and stated to plaintiff that he desired to continue the service according to the terms of the contract until he should order it discontinued, as provided by such contract, and he desired plaintiff to live up to said contract. Plaintiff questioned the validity of the option clause and stated that it would refer the matter to its attorney and advise the defendant in a few days of the attorney’s decision. On May 29th the plaintiff advised the defendant that the contract was voidable. Service was furnished howéver until June 9th, 1913, when plaintiff wired defendant ‘We cannot continue daily service unless you will accept at price billed’ meaning $11.00 per week. On the same day plaintiff wrote defendant to.the same effect. Nothing further transpired between the parties and the service was discontinued by plaintiff. Thereupon defendant endeavored to obtain the service from the American Press Association, but was unable to do so, the latter wiring him on June 11, 1913 ‘objections on part of paper receiving our telegraph service will make it impossible for us to serve you.’ The paper referred to in this message was the Coldwater Courier, whose contract with said American Press Association prohibited the latter from furnishing service to any other Coldwater paper.
■ “Defendant thereupon made up such service as he was able to with his own facilities at a weekly cost as he claims and testifies of $16.00 and claims as damages by way of recoupment against plaintiff’s claim, nine dollars per week from June 9, 1913. This suit was commenced May 25, 1914.
“It is conceded that plaintiff has .a valid claim against defendant of $42.81 for metal not returned to plaintiff by defendant. The plaintiff also claims for unpaid service $15.99, making its total claim against defendant $58.80, for which it asks judgment.
“Conclusions of Law: The option clause, namely, Tt is also agreed that publisher be given an option of continuing daily news service at the same rate T. F. and miscellany plates not to exceed former prices namely $1.00 and. $1.50 per page,’ was the exact legal equivalent of .the following language, Tt is also agreed that Mr. Kitchel be given an option to continue daily news service at the same rate as long as he may desire such service.’
“Although under this clause Mr. Kitchel was under no obligation to receive this service for any definite time and was at liberty to terminate such service at any time at his will after May 20, 1913, the contract was not void for want of mutuality. A valid consideration supported this option clause, namely, defendant’s agreement to take and pay for the service from April 16 to May 20, 1913.
“ 'A contract may be so made as to be optional on one of tbe parties and obligatory on tbe other, or obligatory at tbe election of one of them.’ East Line, etc., R. Co. v. Scott, 72 Tex. 70, and cases cited.
“The option contract, properly interpreted, gave Mr. Kitchel the right to exercise the option and fix a definite and reasonable period of service required of the plaintiff and thus make certain and definite that which in the absence of such exercise was so uncertain and indefinite as to be not susceptible of enforce.ment by an action for damages; and such right was not terminated by the notification (of April 17, 1913) of plaintiff that it would not furnish the service after May 20, 1913. Defendant in my opinion had only to then fix and declare a reasonable, definite period of continuation of the service and thereby bind plaintiff for such period, but defendant did not do so. Such right was not terminated by the refusal of plaintiff to continue such service on the occasion of defendant’s presence in plaintiff’s office in Chicago on May 25, 1913. He had then in my opinion only to fix and declare a reasonable, definite period and thereby bind the plaintiff for such period. But defendant did not do so. Upon the contrary he insisted upon a continuance of the service indefinitely at his will. In my opinion such right of defendant to exercise the option in the manner aforesaid continued in him until June 9, 1913, when plaintiff informed him that it would no longer furnish the service at the contract rate. In my opinion defendant had only then to fix and declare a reasonable, definite period of service and thereby bind plaintiff for that period. But defendant did not do so.
“It is my further opinion that this right of exercise of option in the manner above expressed continued in defendant up to the time of the commencement of this suit and perhaps up to the trial, but defendant at no time prior to the trial nor during the trial elected to fix any definite period of service. Upon the contrary his attitude at all times was that he was entitled to continuation of the service at the old rate indefinitely and at his will. Under such circumstances, I am of opinion and find as a matter of law that the contract not having been rendered certain and definite by any exercise of election by defendant, is not enforceable by defendant in this suit; that he cannot recover damages against plaintiff and that plaintiff is entitled to judgment against defendant for $62.45 damages; that sum being the amount of plaintiff’s claim of $58.80 with 5 per cent, interest from October 8, 1915, the day of the trial, computed to this day but without costs.
“I further find, adjudge, and determine that the claim of plaintiff, as established on the trial, was not reduced by any set-off; that this suit was one that could have lawfully been commenced in justice’s court; and that therefore defendant is entitled to -recover against plaintiff his costs to be taxed.
“Formal judgment therefore for said sum of $62.45 will be entered in favor of plaintiff and against defendant (but without costs) with execution to collect the same; and formal judgment will be entered in favor of defendant and against plaintiff for costs to be taxed with execution to collect the same.”

The case is brought here by writ of error.

It is the claim cf appellant that he should have been allowed to recover the difference between the price he was to have paid under the contract, and what it cost him to supply the service to which he claims, he was entitled under the contract, amounting to upwards of $600.

It is conceded that the cases of East Line, etc., R. Co. v. Scott, 72 Tex. 70, and Bolles v. Sachs, 37 Minn. 315, sanction the conclusion of the circuit judge, but it is claimed they are against the clear weight of authority.

Counsel for appellee insist the contract is void for want of mutuality, and for want of certainty, and because it is indefinite and indeterminable. In addition to the cases already mentioned they cite, in support of their contention, Davie v. Mining Co., 93 Mich. 491; Jackson v. Sessions, 109 Mich. 216; Sax v. Railway Co., 129 Mich. 502; Sullivan v. Railway, 135 Mich. 673; Isbell v. Carriage Co., 170 Mich. 304; Fuchs v. Thermometer Co., 178 Mich. 37; Garlock v. Rubber Co., 192 Mich. 665, and many other cases. Without stopping to analyze each of these cases it may be said of them that they are easily distinguishable from the case before us.

The case of Rague v. Publishing Co., 164 N. Y. App. Div. 126, is in point. There the plaintiff gave up the sale of a rival newspaper in consideration of the contract which was made. The same claim was made as to the contract that is made here. We quote from the opinion:

“The contract by its terms was not within the statute of frauds with reference to its completion within one year. (Kent v. Kent, 62 N. Y. 560.) It was not without consideration as the plaintiff abandoned a valuable business. The duration of the contract was not unmeasured, as it would continue until plaintiff did an act, viz., resumed the sale of the Telegram. (Harrington v. Railway Co., 60 Mo. App. 223; Carter White Lead Co. v. Kinlin, 47 Neb. 409; McMullan v. Dickinson Co., 63 Minn. 405.) But it is urged that the contract failed in mutuality. There was all the mutuality that the nature of defendant’s offer permitted. The plaintiff was not asked to promise but to do an act. He made renunciation of profitable employment and was continuing it. That was exact acceptance of all that was tendered. The plaintiff did not promise, but he did the required thing. Mutuality does not depend on words alone. It is unimportant that the continuance of the renunciation depends upon plaintiff’s will. If a piaster owe, or is claimed to owe, a servant damages for personal injury, and promise him employment in consideration of a release therefor, and the release be given and the employment undertaken, there is mutuality although the servant may at his will cease working. (Carter White Lead Co. v. Kinlin, supra.) So when permanent employment is promised upon similar consideration. (Pennsylvania Co. v. Dolan, 6 Ind. App. 109.) There was similar decision in Smith v. Railroad Co., 60 Minn. 330; East Line, etc., R. Co. v. Scott, 72 Tex. 70; McMullan v. Dickinson Co., supra. If A offer to pay B $500 upon the consideration that the latter lay down a business, B accepts by laying it down. The case does not differ in respect to mutuality if the offer be that B relinquish the business in consideration of the payment of fixed installments while the relinquishment continues, and B acts upon it. In either case the offer upon B’s compliance becomes an obligatory promise, based upon good consideration.”

In Sanford v. Huxford, 32 Mich. 319, Justice Campbell, speaking for the court, said in part:

“The decisions generally hold that an agreement to settle an existing suit is sustainable without reference to the merits of the controversy, unless under very peculiar circumstances. It is so held on the ground that an alteration in the position of the parties may of itself be an advantage, and may, in the absence of fraud or other controlling reason, be a sufficient consideration. In Cook v. Wright, 1 B. & S. 559, the court held that there could be no doubt whatever that the compromise of' a suit was a sufficient consideration; but that the reason was not the saving of costs, but the change of position, and that in all cases where parties had so changed their position, the same rule would apply.”

See Brighton v. Railway Co., 103 Mich. 420.

In Stearns v. Railway Co., 112 Mich. 651, plaintiff released a claim he had against the defendant as part consideration for the agreement. Justice Montgomery, speaking for the court, said in part:

“It is insisted that the contract is not enforceable, because not mutual; that the plaintiff was not bound to work for any stated time for the defendant. In a case where no consideration passed for the employment, there might be force in this contention; but in this case, under the proofs, a valuable consideration was paid to the defendant for the conditional agreement which the defendant saw fit to enter into, leaving it optional with the plaintiff to continue in defendant’s employ, — the engagement of the defendant resting, not upon the consideration of any promise by the plaintiff, but upon a consideration actually paid in hand at the time of the engagement, namely, the compromise of the disputed claim. Upon this question the following cases are in point: Pennsylvania Co. v. Dolan, 6 Ind. App. 109; Harrington v. Railway Co., 60 Mo. App. 223; Brighton v. Railway Co., supra.”

In the case before us the defendant had a valuable contract with the American Press Association. The plaintiff was a competitor and rival of this association. It desired defendant, to break with the American Press Association and to take over the service of the plaintiff. The defendant was apprehensive if he did so that what has now happened might happen. To avoid that result it was agreed that if defendant would make the change and enter into the contract it should continue until he discontinued it. The defendant acceded to the proposal. He surrendered a valuable right, he changed his position. He did what he agreed to do.

The plaintiff should be held, to its agreement and as it breached the agreement defendant should have been allowed his damages.

Judgment is reversed, with costs to defendant, and a new trial ordered.

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


author: Moore, J.

text:
    WADKINS v. CITY OF ALBION.
    1. Municipal Corporations — Personal Injuries — Defective Sidewalk — Question for Jury.

      In an action for personal 'injuries .caused by a defective sidewalk, where there was testimony that there was a depression of three to four inches in the walk, the court below was not in error in submitting to the jury, under proper instructions, 'the question as to whether the walk was reasonably safe for public travel.
    2. Same — Place of Injury — Variance,—Pleading.
    In such action, where the declaration described the place where the accident occurred as “at a point on the south sidewalk on Erie street, between the church and the parsonage of the Methodist Episcopal church,” and the proofs disclosed that the accident happened on the south sidewalk on Erie street between the church and the parsonage, and that the defective blocks were taken out and new ones put in their places, and plaintiff testified that she fell where the new blocks were put in, it is not open to the objections that the place of the injury was not definitely fixed, and that plaintiff was allowed to recover for a defect not alleged in the declaration.
    3. Same — Notice—Contributory Negligence.
    That plaintiff had knowledge of the defect, did not necessarily establish her negligence, but was a fact to be considered by the jury along with the other facts as to whether she was negligent or not.
    4. Same — Defective Sidewalk — Notice.
    It cannot be said, as a matter of law, that the city had no notice of the defect, where there was testimony that the bad walk had existed for at least three years, and one witness testified that she told the city manager a few days before the accident of its condition and that he ought to fix it.
    Error to Calhoun; North, J.
    Submitted January-22, 1918.
    (Docket No. 157.)
    Decided March 28, 1918.
    Case by Jennie M. Wadkins against the city of Albion for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Frank J. Simon, for appellant.

      J. M. Hatch & Son, for appellee.
   Moore, J.

The plaintiff recovered a judgment in the court below for $750, for injuries received on a defective sidewalk which she claims was not reasonably safe and fit for travel. The case is brought here by writ of error.

We quote from the brief of counsel for the appellant:

“The defendant contends that the circuit judge erred in not directing a verdict in its favor at the close of the trial, or, after reserving his decision until after verdict, in not entering judgment notwithstanding the verdict, for the following reasons:
“First. Because the walk was reasonably safe as the plaintiff, according to her testimony, fell upon an obstruction less than, or not exceeding, two inches in height, and one which the city as matter of law would not have to guard against.
“Second. Because the obstruction wag a straight raise not exceeding two inches in height, and that, and only that, caused the injury to the plaintiff.
“Third. Plaintiff did not definitely fix the place of injury.
“Fourth. Plaintiff was guilty of contributory negligence as a matter of law.
“Fifth. Knowledge or notice by or to the city was not shown as a matter of law.
“Sixth. Plaintiff was allowed to recover upon a defect which was not alleged in the declaration.” •

Reasons one and two may be considered together. The judge charged the jury in part:

“As stated by one of plaintiff’s attorneys in his argument to you, it is the settled law in this State that a depression in a walk which does not exceed two inches in depth will not render the city liable for damages incident to an accident caused by such depression. Thus you will see that unless the plaintiff in this case has proven by a preponderance of the evidence that the depression or obstruction in question exceeded two inches in depth or in height, she cannot recover. But if you shall find as a fact from the evidence in this case that one piece of the walk had been depressed and the other had been so raised as to cause a depression of from two to four inches in depth, or if one of the sections of the walk was elevated at one side or end of the section and depressed at the other to such an extent that there was a difference in height of the adjacent portions of the walk of from two to four inches, then it would be a question of fact for you to determine whether the walk was in a reasonably safe and fit condition for public travel.”

There was an abundance of testimony that the depression in the walk was three or four inches. Upon Ibis record it cannot be said there is reversible error in this respect. Williams v. West Bay City, 126 Mich. 156; Wedderburn v. City of Detroit, 144 Mich. 684.

Reasons three and six may be considered together. The place of the accident was. described in the declaration as “at a point on the south sidewalk on Erie street, between the church'and the parsonage of the Methodist Episcopal church.” The proofs disclosed that the accident happened on the south sidewalk on Erie street between the church and the parsonage. The proofs show the defective blocks were taken out and new ones put in their places. The plaintiff testified: “It was at the point where those new blocks were put in that I fell.”

Fourth. Could it be said as a matter of law that plaintiff was guilty of contributory negligence. The court charged the jury that unless plaintiff was free from negligence that contributed as a cause to the accident she should not recover.

Plaintiff testified in part as follows:

“Was knowing to the condition of the walk there before, but my mind was busy with the thought that that bad place was a little further down. I had that in my mind. There was a deep shadow from the light there and the buildings and trees, whatever it may be, * • * * * I had it in mind, but thought it was further down.”

The fact that the plaintiff had knowledge of the defect did not necessarily establish her negligence but was a fact to be considered by the jury along with the other facts as to whether she was negligent or not. Whoram v. Township of Argentine, 112 Mich. 20; Barnes v. West Bay City, 138 Mich. 93. There are many other eases to the same effect.

Can it be said as a matter of law that the city had no notice of the defect? There was testimony to the effect that the bad walk had existed for at least three years. One of the witnesses testified that she told the city manager a few days before the accident of its condition and that he ought to fix it.

The ease was carefully tried and properly submitted to the jury.

Judgment is affirmed, with costs.

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


author: Mooee, J.

text:
    NIXON v. HOOD.
    Appeal and Error — Replevin—Presumption oe Error — Record.
    On. case-made after judgment on a replevin bond, where the record fails to show any error, it will not be presumed by the Supreme Court.
    Case-made from Cass; Des Voignes, J.
    Submitted January 16, 1918.
    (Docket No. 98.)
    Decided March 28, 1918.
    Assumpsit in justice’s court by Arthur K. Nixon against George Hood and others upon a replevin bond. There was judgment for plaintiff, and defendants appealed to the circuit court. Judgment for plaintiff. Defendants appeal.
    Affirmed.

      Chester E. Cone, for appellants.

      Asa K. Hayden, for appellee.
   Mooee, J.

This proceeding is here upon case-made after judgment reading as follows:

“This was an action of assumpsit brought by the plaintiff against the defendants to recover on a replevin bond. The suit was commenced in justice’s court and brought into the circuit court on appeal. The declaration was in the usual form. The plea was the general issue.
“The plaintiff, at the time this suit was commenced, was a deputy sheriff of Cass county, and had in a former replevin suit brought by George Hood, secured a judgment of return of property which he had attached on behalf of one Arthur Higley, the attachment creditor.
“The issue in said cause came on to be tried before the Hon. L. Burget Des Voignes, judge of the circuit court of the county of Cass, at Cassopolis, Mich., on the 11th day of May, 1917, with a jury.
“To maintain the issue on his part the plaintiff introduced in evidence: The judgment of return; the execution issued in said replevin suit; the officer’s return of no property found; the writ of replevin; Hood’s affidavit therein and the replevin bond on which this action is based, and rested his case, asking for a judgment equal to the value of the property as shown by Hood’s affidavit in the replevin suit.
“Defendants then moved the court to dismiss the action for the following reason: On the trial of the case wherein George Hood replevied the property, the right of possession of which is involved in this issue, plaintiff herein, who was the defendant in said former'trial, contended that the evidence in the replevin suit showed that George Hood did not own the property attached and replevied, but that the wife of the said George Hood owned said property, and for this reason, and relying on this theory asked the court to direct a verdict for the plaintiff herein, who was the defendant in the said replevin suit, for the return of the property in question to the said officer which request the court granted, and instructed the jury accordingly. Defendants herein contend that plaintiff in this suit is now estopped from claiming any damage because of his contention in the former suit, to wit: That the property did not belong to George Hood, which contention he then relied upon and which contention the court acted upon. If the property attached was not George Hood’s property, as plaintiff then contended, the officer had no right to take it to satisfy a debt of Hood’s and cannot recover from the bondsmen in this action.
“This motion was overruled by the court. To maintain the issue on their part defendants then offered to show that the property attached by the officer belonged to George Hood and that the same was exempt from execution at the time it was attached by plaintiff.
“The court refused to admit such evidence and directed a verdict for plaintiff in the sum of $40.85, the amount of the judgment against Hood in the justice’s court in favor of the attachment creditor, this judgment having been introduced by defendants.”

The first question presented is, Did the court err in overruling defendant’s motion to dismiss the case? In urging that the court erred counsel assume that in the replevin suit the court directed a verdict for a return of the property because it was shown that the wife of George Hood owned it. Counsel for the plaintiff deny this and insist the trial in the* replevin case was upon the merits and the same facts and questions of law were litigated there as are attempted to be litigated here.

The only part of the replevin proceeding appearing in this record is the affidavit for replevin in the usual form, in which George Hood swore the property was his and was unlawfully detained, and the replevin bond in the usual form in which it was recited that George Hood would diligently prosecute his suit, “and that if the said defendant recover judgment against him, said George Hood, plaintiff in the said action, he will return the property above described, if return thereof be adjudged and will pay to the said defendant all such sums of money as may be recovered by the said defendant against him in the said action, then the above obligation to be void, otherwise to remain in full force and •virtue.”

It is conceded that there was a judgment for the return of the property and that it was not returned. It may be presumed that the trial judge may have known why, in the replevin case, he directed a return of the property and that it was not for the reason stated in the motion. In any event, in the absence of an affirmative showing, we cannot presume error. Tuxberry v. French, 39 Mich. 190.

The other question is, Did the court err in overruling the offer to show that the property belonged to George Hood, but was exempt.from execution? Counsel for appellant rely upon the provisions of section 13116,' 3 Comp. Laws 1915, and the cases of Williams v. Bresnahan, 66 Mich. 637; Fletcher v. Lee, 71 Mich. 493, and Treadwell v. Paddock, 75 Mich. 286.

The first of these cases was not an action upon a replevin bond but was a review of the conduct of the trial judge in the replevin case itself. The case of Fletcher v. Lee, supra, was. an action of debt on a coroner’s bond. The case of Treadwell v. Paddock, was a replevin case in which a discontinuance was entered. It will be seen that the cases are distinguishable from the instant case.

Section 13116, supra, reads:

“In any action prosecuted on such bond given by either party in action of replevin for the deliverance of any property, the defendant may show, in mitigation of the damages that the obligee in such bond had only a lien upon it, or special property or part ownership in said property at the time of commencement of suit in replevin, and that the defendants or either of them, had at the same time a part ownership or other valuable interest in said property; and if such liens, special 'property, part ownership, or other interest of said obligee, with interest thereon, amount to less than the value of the property replevied, a corresponding reduction shall be made from sueh value.”

Does the case before us come within the terms of the statute? Defendants did not seek to show that the sheriff had only a lien on the property nor did they seek to show that defendants or either of them had simply an interest or part ownership in the property, but did seek to show that the obligor in the bond was the owner of all of the property, and that it was exempt from execution. This would have been a proper issue to have tried out in the replevin case and counsel for the plaintiff insists that it was tried. Whether the trial judge took that view of the case and for that reason refused to allow the testimony we have no means of knowing from this record.

The appellant assigns error. It will not be presumed but must be shown by the record. We think it is not shown.

Judgment is affirmed, with costs to the appellee.

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


author: Steere, J.

text:
    HAYNES v. LAPEER CIRCUIT JUDGE.
    1. Constitutional Law — Police Powers — Mental Defectives— Class Legislation.
    Legislation which, in carrying out a public purpose for the common good, is limited by reasonable and justifiable differentiation to a distinct type or class of persons is not for that reason unconstitutional because class legislation, if germane to the object of the enactment and made uniform in its operation upon all persons of the same class to which it naturally applies; but if it fails»to include and affect alike all persons of the same class, and extends immunities or privileges to one portion and denies them to others of like kind, by unreasonable or arbitrary subclassification, it comes within the constitutional prohibition against class legislation.
    2. Same — Sterilization—Statutes—Class Legislation.
    Act No. 34, Pub. Acts 1913 (1 Comp; Laws 1915, § 5176 et seq.), providing for the sterilization, by means of a surgical operation, mentally defective persons maintained wholly or in part by public expense in public institutions, is unconstitutional as class legislation.
    Mandamus by H. A. Haynes, medical superintendent of the Michigan Home and Training School, to compel William B. Williams, circuit judge of Lapeer county, to vacate an order sustaining an order of the probate court denying a petition filed under Act No. 34, Pub. Acts 1913.
    Submitted January 22, 1918.
    (Calendar No. 28,151.)
    Writ denied March 28, 1918.

      Alexander J. Groesbech, Attorney General, and Clare Retan and L. W. Carr, Assistants Attorney General, amicus curiae.

   Steere, J.

In this proceeding by mandamus plaintiff seeks review and reversal of an order of the circuit court of Lapeer county sustaining an order of the probate judge of that county refusing to entertain jurisdiction on plaintiff’s petition for a hearing in the. probate court to determine the question of sanity of an alleged incompetent named Nora Reynolds, confined in the Michigan Home and Training School at Lapeer in said county, and the necessity of performing upon her the operation of salpingectomy “as in other insane cases before such courts,” under the provisions of Act No. 34 of the Public Acts of 1913 (1 Comp. Laws 1915, § 5176 ei seq.). The probate court dismissed said petition and on appeal the circuit court sustained the order of dismissal on the ground that said act is unconstitutional.

The statute in question is entitled:

“An act to authorize the sterilization of mentally defective persons maintained wholly or in part by public expense and public institutions in this State and to provide a penalty for the unauthorized use of the operations provided for.”

The operations provided for in the act are (on the male) vasectomy and (on the female) salpingectomy, “or any other operation or improvement on vasectomy or salpingectomy recognized by the medical profession, as the case may be, upon such person.” By section 5 of the act, except as authorized therein, such operations “unless the 'same shall be a medical necessity,” are made a felony punishable by five years’ imprisonment in the State prison or a fine not to exceed $1,000, or both, in the discretion of the court.

Briefly summarized, this act authorizes the management of any publicly maintained institution of the State authorized to hold in custody individuals who have been adjudicated by a court of competent jurisdiction mentally defective or insane, to render incapable of procreation by the operations mentioned inmates determined to be proper subjects for such treatment. The State boards and physicians, and surgeons in charge of each of said institutions are constituted a special board with authority to examine such inmates as are reported by the warden, or medical superintendent, to be persons by whom procreation would be inadvisable, and, upon the report of insanity experts, examine into the physical and mental condition of such persons, etc., determine the advisability of such operation upon them. At least BO days’ notice of the proceeding must be given the parent or guardian of such mentally defective person before performing the operation, such notice specifying the purpose, time and place of such examination. If the parent or guardian object, the matter must be referred to the probate court of the county in which the institution is located, which is then required to determine as in other cases the question of sanity and necessity of the operation. When authorized, the operation is to be performed either by the physician of the institution or an expert employed by the board for that purpose after a report has been secured from two qualified physicians that such operation is desirable in the interest of the patient or the good of the community. A record, not for public inspection, is required to be made in relation to each individual so operated upon and filed with the State board of public health.

Acting under the provisions of this act the board of control of the Michigan Home and Training School and plaintiff, its medical superintendent, as a special board, for that purpose, took the proper steps and made the requisite determination for performing the operation of salpingectomy upon said Nora Reynolds. Notice of such proceeding was served upon John Roach, her guardian, who. interposed written objections, contending that the'act was unconstitutional and void on various grounds. Petition was thereupon filed in the probate court by plaintiff as superintendent of said institution asking that the sanity of said inmate and necessity for the proposed operation be there determined, with the result already stated.

As appears by return to the order to show cause issued from this court, the learned circuit judge, in an opinion sustaining the refusal of the probate court to take jurisdiction, expressed the view that the results sought to be reached by the act were commendable and to be desired, but, as framed and enacted, it “so limits the class of feeble minded persons who may be brought within its provisions as to almost entirely subvert its object and make it clearly class legislation,” and therefore unconstitutional.

The only brief filed or argument offered in this proceeding is by the attorney general as amicus curiss, apparently conceding the unconstitutionality of the aCt and concurring in the views expressed by the circuit judge that the validity of the legislation cannot be sustained in its present form because of the narrow and arbitrary classification adopted.

The only question argued or raised in this proceeding, against the validity of the law being that it is capricious and discriminating class legislation, there is no occasion to dwell or pass upon any suggested underlying medico-legal questions to which the indicated purpose of the law points and which within constitutional limits are for legislative rather than judicial consideration. That line of inquiry in the field of forensic medicine has only incidental relation to the question here involved.

It is elementary that legislation which, in carrying out a public purpose for the common good, is limited by reasonable and justifiable differentiation to a distinct type or class of persons is not for that reason unconstitutional because class legislation, if germane to' the object of the enactment and made uniform in its operation upon all persons of the class to which it' naturally applies; but if it fails to include and affect alike all persons of the same class, and extends immunities or privileges to one portion and denies them to others of like kind, by unreasonable or arbitrary sub-classification, it comes within the constitutional prohibition against class legislation. For the purposes of this case we need go no further into the subject of class legislation than to point out this distinction. For an able amplification of the topic, with abundant citation of sustaining cases, reference may be made to 6 R. C. L. subpage 373 et seq.

Plainly stated, the manifest purpose and only justification for this legislation is to promote, under the police power of the State, the general welfare of the human race by a step in the line of selective breeding to be effected through sterilization of those found and adjudicated by a designated tribunal to be hopelessly insane and mentally defective to such an extent that, in connection with their personal record and family history, procreation by such persons is inadvisable and inimical to public welfare.

>. Conceding, for the purpose of this inquiry, that such legislation is a proper governmental function • and within the police power of the State, the question naturally arises, What logical connection with the object sought by this enactment has a classification which carves a class out of a class and applies the proposed curative treatment, which it is found the public weal demands and justifies, only to those of the type requiring such exclusive legislation who, by reason of their sequestration under public control, are presumably helpless to work upon those now in being or posterity the mischief which the law is framed to eliminate?

“The legislature cannot take what might be termed a natural class of persons, split the same in two and then arbitrarily designate the dissevered factions of the original unit as two classes, and thereupon enact different rules for the government of each.” 6 R. C. L. p. 383.

In this enactment the legislature selected out of what might be termed a natural class of defective and incompetent persons only those already under public restraint, leaving immune from its operation all others of like kind to whom the reason for the legislative remedy is normally and equally, at least, applicable, extending immunities and privileges to the latter which are denied to the former.

While legislation is to be found in a few other jurisdictions providing for sterilization of designated abnormal classes by whom procreation is deemed inadvisable, either because mentally defective or of certain confirmed criminal tendencies, but two' cases are cited or found where the subject has been before a court of last resort.

In State v. Feilen, 70 Wash. 65 (41 L. R. A. [N. S.] 419), defendant was convicted in a trial court of the State of Washington of statutory rape upon a female child and sentenced under authorizing statutes of that State to imprisonment in the penitentiary for life, and in addition thereto that the operation of vasectomy, for prevention of procreation, be performed upon him by some qualified and capable surgeon, “carefully and scientifically” under procurement by the warden of the penitentiary. The constitutionality of the statute authorizing this portion of the sentence was attacked on the ground that it provided for cruel and unusual punishment. In a carefully considered review of the subject the court reached the conclusion that such operation, when properly performed, involved little pain or danger, was not of that class of “severe, cruel and unusual punishments as disgraced the civilization of former ages” and declined to hold the law unconstitutional.

That case, while illuminating in some respects, involved primarily a question foreign to the issue before us and is of but remote application, for under the statute involved here the proposed operation is not provided as a penalty in punishment of crime.

A sterilization law was, enacted in the State of New Jersey in 1911, to which our act (No. 34 of 1913) is analogous in purpose and similar in various provisions, although that law extends the scope of its provided curative treatment to convicted rapists and other criminals convicted of such a succession of crimes as in the opinion of the authorized determining board are found stamped with confirmed criminal tendencies. It was entitled:

“An act to authorize and provide for the sterilization of feebleminded (including idiots, imbeciles and morons), epileptics, rapists, certain criminals and other defectives.”

As particularly in point here, its operation was confined to inmates of the “several reformatories, charitable and penal institutions in the various counties and State.” The constitutionality of the law was attacked on various grounds in a case involving the proposed operation of salpingectomy on an epileptic female named Alice Smith, an inmate of one of the designated institutions, found by the board to be permanently so afflicted that procreation by her was inadvisable. . The court of last resort in that State held the law unconstitutional for the same reason urged in this inquiry. Smith v. Board of Examiners of Feeble-Minded, 85 N. J. Law, 46. Passing by certain reflections and moot suggestions in that case which need not be indorsed or considered for the purpose of the question before us, the following clearly stated reasons for holding the law invalid as discriminating class legislation are well in point here:

_ “It must be apparent that the class thus selected is singularly narrow when the broad purpose of the statute and the'avowed object sought to be accomplished by it are considered. The objection, however, is not that the class is small as compared with the magnitude of the purpose in view, which is nothing less than the artificial improvement of society at large, but that it is singularly inept for the accomplishment of that purpose in this respect, viz., that if such object requires the sterilization of the class so selected then a fortiori does it require the sterilization of the vastly greater class who are not protected from procreation by their confinement in State or county institutions.
“The broad class to which the legislative remedy is •normally applicable is that of epileptics, i.e., all epileptics. * * * If it be conceded, for the sake of argument, that the legislature may select one of these broadly defined classes, i.e., the poor — and may legislate solely with reference to this class, it is evident that, by the further subclassification of the poor into those who are, and those who are not, inmates in public charitable institutions, a principle of selection is adopted that bears no reasonable relation to the proposed scheme for the artificial betterment of society. For not only will society at large be just as injuriously affected by the procreation of epileptics who are not confined in such institutions as it will be by the procreation of those who are so confined, but the former vastly outnumber the latter, and are, in the nature of things, vastly more exposed to the temptation and opportunity of procreation, which indeed in cases of those confined in a presumably well conducted public institution is reduced practically to nil.”

For the foregoing reasons we are constrained to concur in the opinion of the learned circuit judge that this law as framed does not afford, in its scope, those affected by it that equal protection under the laws guaranteed by the Constitution, and so limits the class of defectives covered by its provisions as to be clearly class legislation without substantial distinction within constitutional inhibition.

The writ of mandamus prayed for is therefore denied.

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


text:
    BOWERS v. GATES.
    1. Contracts — Parties—Insurance—Privity—Right o¡? Action.
    There is no privity of contract between the surety company on an ordinary “physician’s liability bond” and one suing the physician for malpractice, authorizing the joinder of the company in the suit.
    2. Parties — Misjoinder—Demurrer—Dismissal.
    Circuit Court Rule No. 43, § 3, providing that where an action is brought against two or more defendants, the plaintiff shall not be required to discontinue as to any, but the jury shall show by their verdict which of them are not liable, cannot be construed as applicable to a situation where a defendant is shown by the declaration to have taken no part in the commission of the tort for which recovery is sought, and seeks release by proceedings in the nature of a demurrer, on the ground that no cause of action is stated against it; section 12364, 3 Comp. Laws 1915, providing that parties misjoined may be dropped by order of the court at any stage of the cause, as the ends of justice may require.
    3. Same — Principal and Surety — Intervener—Statutes.
    Although an insurance company, as surety on a physician’s liability bond, appeared in a suit for malpractice against the physician, in which it had been improperly joined, in pursuance of its agreement to defend him, the same counsel representing both, it did not thereby intervene, under section 12362, 3 Comp. Laws 1915, in any legal sense, any more than would an attorney who took charge of his client’s case.
    Certiorari to Washtenaw; Kinne, J.
    Submitted January 16, 1918.
    (Docket No. 31.)
    Decided March 28, 1918.
    Case by Roy Bowers against Neil A. Gates and the Fidelity & Casualty Company of New York for malpractice. From an order denying a motion to dismiss as to defendant company, it brings certiorari.
    Reversed.

      Guy W. Moore and Hal P. Wilson, for appellant.

      Frank E. Jones, for appellee.
   Steere, J.

This is an action in tort commenced by an original writ of summons in prescribed form issued out of the circuit court of Washtenaw county on July 28,1917, directed against both of the above named defendants and personally served upon each of them as appears by the return thereof. Defendants, by their attorneys, duly entered their appearance in response to said summons and demanded a copy of plaintiff’s declaration, which was filed on August 6, 1917, and served August 7, 1917. Thereafter defendant Gates pleaded issuably.

On August 13, 1917, the defendant Fidelity & Casualty Company made and filed a motion in the nature of a demurrer, as authorized by present practice, to dismiss the action and strike from the record plaintiff’s pleadings as to it for the reason that in the declaration filed and served it does not appear—

“1st. That there is any privity of contract between plaintiff and the defendant the Fidelity & Casualty Company of New York.
“2d. Or that plaintiff charges the defendant the Fidelity & Casualty Company of New York with any wrongful act, negligence, breach of contract, or default.
“3d. Or that plaintiff herein has any right of action against the defendant the Fidelity & Casualty Company of New York.”

This motion was brought on to be heard before the circuit court of Washtenaw county on September 17, 1917, and, after hearing counsel for the respective parties, was denied.

As disclosed by his declaration, in a plea of trespass on the case, the sole tort charged by plaintiff is that of malpractice inflicted upon him by defendant Gates while professionally employed as his physician and surgeon to set, reduce, and properly care for a broken leg and fractured ankle which plaintiff had suffered.

The declaration contains two counts. Of the first and longest it is sufficient to state that it is a good count against defendant Gates for malpractice, directed and exclusively devoted to his alleged lack of skill, malfeasance, and neglect while professionally attending plaintiff as a physician, and the damaging consequences which the latter experienced. The second and comparatively short count alleges that the defendant Fidelity & Casualty Company had by a described obligation in writing covering the period during which plaintiff was under the care and treatment of Gates—

“covenanted and agreed to save, hold harmless, and indemnify said defendant Neil A. Gates of and from all let, harm, trouble, expense actions, judgments, and costs that might or could come to him by reason of any and all claims for damage, expenses, actions, judgments, and costs that might or could be brought, had, or prosecuted by the said plaintiff or other persons and to pay any and all such judgments as might or should be adjudged against him,” and that “by reason of the claim of the said plaintiff as hereinbefore set forth and which said agreement and writing obligatory now remains in full force and virtue and the said defendant the Fidelity & Casualty Company of New York fully bounden thereby. * * * Wherefore and by reason, of the premises said plaintiff is entitled to have and recover of and from the said defendants his said damages to the amount of $10,000 and therefore he brings suit.”

The writing obligatory, by virtue .of which plaintiff seeks to make the Fidelity & Casualty Company a party defendant in this action ex delicto, is an ordinary indemnity insurance contract, headed “Physician’s liability policy,” by which the insurance company contracts with defendant Gates to indemnify him against loss from the liability imposed upon him by law for damages on account of bodily injuries or death suffered by any person or persons in consequence of any malpractice, error, or mistake made by him in the practice of his profession, or of any assistant aiding him in the administration of medical or surgical treatment, during the term of the policy. It provides in customary form and ample verbiage what, as between the contending parties, shall or shall not be done in the matter to which it relates in a schedule of stated warranties, amongst which plaintiff points out, as material to the question of his right to make the insurance company a party defendant, that it requires assured to give timely notice to the company of any prospective claim or suit against him for malpractice with any papers which may have been served on him in that connection; co-operate with and assist it in the defense of any such suit, which the company obligates itself to defend to the court of last resort unless previously settled; that he will not voluntarily assume liability or incur any expense without its consent except at his own cost; nor interfere in any negotiations or legal proceedings conducted by the company on account of any such claim; also that the insured shall not assign the policy without the written consent of the insurer and that neither party shall compromise or settle any such claim or suit without the consent of the other.

As to these and all other contractual obligations in the policy, the difficulty in seriously considering plaintiff’s theory is that he was in no sense a party to the contract or to the consideration for it. He was a stranger to it and there was no privity of contract between him and the company issuing the policy. The insurer made no promises to him, did not know him in the transaction, and assumed no obligation for his benefit. Any right of action which might arise out of this engagement is vested -in the person to whom and with whom the promise, or contract, was made. No statutory provision and nothing in the contract gives him any right of action in tort, or otherwise, against the insurer of the alleged tort-feasor. The law upon that subject is elementary in principle and will be found fully discussed in its various aspects in the following authorities and others to which they refer, several of which discuss policies containing provisions similar to the one under consideration. Frye v. Electric Co., 97 Me. 241; Finley v. Casualty Co., 113 Tenn. 592; Hawkins v. McCalla, 95 Ga. 192; Embler v. Insurance Co., 158 N. Y. 431; Carter v. Insurance Co., 76 Kan. 275; Beyer v. Aluminum Co., 115 N. Y. App. Div. 853; Anoka Lumber Co. v. Casualty Co., 63 Minn. 286; Allen v. Insurance Co., 76 C. C. A. 265.

Plaintiff also contends that, under section 3 of present Circuit Court Rule No. 43, defendant cannot be dropped as a party to this proceeding until the case is tried, citing, in that connection, Pruner v. Railway, 173 Mich. 146. Section 3 is as follows:

“But in case an action is brought against two or more defendants, the plaintiff shall not be required to discontinue as to any of them but the jury shall show by their verdict, or the court by its finding in a trial by the court without a jury, which of them are and which of them are not liable to the plaintiff and judgment shall be given accordingly.”

In the Bruner Case, which was an action in tort for personal injuries, plaintiff declared in separate counts against both the city of Detroit and the Detroit United Railway, claiming that the wrongful act charged was the result of their joint action and co-operation. The trial court held there was no misjoinder of counts and this court in affirming the judgment simply said that the rule was equally applicable in actions ex contractu and ex delicto. In the absence of some provision to that effect the rule cited cannot be construed as applicable to a situation where a defendant is shown by the declaration to have taken no part in the commission of the tort for which recovery is sought and seeks release by proceedings in the nature of a demurrer, on the ground that no cause of action is stated against it. Plaintiff was not required to discontinue as to one of two defendants in an action which by the pleadings was shown to have been properly planted against both. The declaration showed a misjoinder of parties —“the improper joining together of parties to a suit.” —Black’s Law Diet.

“A misjoinder cannot be distinguished from a nonjoinder in principle or effect. Either fault can be searched out, found and cured by demurrer. * * * After the demurrer has been sustained by the court the party without interest could be dismissed upon proper motion.” Victor Talking Machine Co. v. American Graphophone Co., 118 Fed. 50.

By the judicature act it is provided:

“No action at law or in equity shall be defeated by the nonjoinder or misjoinder of the parties. New parties may be added and parties misjoined may be dropped, by order of the court, at any stage of the cause, as the ends of justice may require.” Section 12364, 3 Comp. Laws 1915.

It is further contended for plaintiff that the Fidelity & Casualty Company has in fact and effect intervened and become a defendant in appearing, represented by the same counsel who appeared for defendant Gates, and taking upon itself the burden of his defense pursuant to its contract with him, citing, as sustaining that contention, section 12362, 3 Comp. Laws 1915, reading as follows:

“In an action either at law, or in equity, any one claiming an interest in the litigation may, at any time, be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding.”

Certainly nothing which the defendant company has done can be said to be in subordination to or recognition of the propriety of a proceeding against it for a tort charged as committed by another, which is the gist of the action. The fact that both parties appeared by the same counsel has no legal bearing upon the question. By acting as authorized agent of Gates to take charge of and conduct his defense in his name it in no legal sense intervened, more than would an attorney who took charge of his client’s case. Weatherby v. Kent Circuit Judge, 194 Mich. 46, cited by plaintiff, has no application here. That was a statutory action brought against the bondsman of a saloon-keeper to recover damages resulting from the illegal sale by him of intoxicants to plaintiff’s husband. The saloonkeeper was not made a party defendant and upon his application he was permitted by order of the trial court to intervene, being the principal on a bond which the statute compelled him to give. He was the party charged to have committed the tort and directly interested as the alleged tort feasor. ’ Here no privity is shown, there is no enabling statute, the defendant company is neither charged as bondsman nor participant in the alleged tort, neither has it sought to intervene. Made a defendant in the main proceeding it demurs, by motion, to the declaration filed on the ground that no cause of action is stated against it. The demurrer is well taken, and the motion to dismiss said cause as to said defendant company should have been granted.

The order denying said motion is therefore reversed.

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


text:
    CARNAHAN v. MAILOMETER CO.
    1. Master and Servant — Workmen's Compensation Act — Personal Injuries — Course oe Employment.
    Where an employee of a manufacturing corporation was engaged to drive a truck, delivering the finished products and bringing in steel, etc., and he was injured while delivering a box of books, by order of the manager, as an accommodation to a stockholder, such injury was not received in the course of his employment authorizing an award under the workmen’s compensation act.
    2. Same.
    Where the injury was received while carrying the box up a winding stairway, at the request of a woman, although he testified that the box was so heavy he “wouldn’t take a chance even around the factory” with it, he was not injured in the course of his employment, even if it be conceded that in taking it to the address given him he was so acting.
    Certiorari to Industrial Accident Board.
    Submitted January 31,1918.
    (Docket No. 136.)
    Decided March 28, 1918.
    Clarence G. Carnahan presented his claim for compensation against the Mailometer Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Frankfort General Insurance Company, insurer, bring certiorari.
    Reversed.

      Keena, Lightner, Oxtoby & Hanley, for appellant.
   Steere, J.

The only question involved here is whether an injury sustained by plaintiff on June 23, 1916, for which an award was made by the industrial accident board, arose out of and in the course of his employment by the defendant the Mailometer Company.

The Mailometer Company is a, Michigan corporation operating a “special machine shop” located at 1093 Jefferson avenue east, in the city of Detroit, engaged in the manufacture of such specialties as “dies, automobile parts, mailing machines, mailometer machines, self-starters for Ford cars;” etc.

Plaintiff was employed by defendant to drive a truck as a “general pick-up man,” the scope and nature of his employment as stated by him being as follows:

“My duties were to deliver the finished products and bring steel in and, in fact, as a handy man or roustabout. * * * I was to deliver all the dies and tools made to the different factories in the city, get the different tools they used in the factory and material used and to take away finished products.”

But he was not required to lift or carry heavy packages or boxes without assistance, which was as a rule readily available where his duties called him

Plaintiff testified that on or about the 23d day of June, 1916, he was handed a bill of lading by the shipping clerk who said it was for a case of law books, telling him to get them from the Michigan Central freight house when he got time from his regular work and “to deliver them at Mr. Wetmore Hunt’s residence, St. Aubin and Jefferson,” Mr. Hunt being then one of defendant’s stockholders. He attended to this at the noon hour of the following day. When he reached the Michigan Central freight house he found the box weighed about 140 pounds, and knew it was too heavy for him to handle alone; that two men assisted him there and he then took the box to Mr. Hunt’s house, at St. Aubin and Jefferson, where he had never been before, and asked the maid who came to the door if there was any one there who could help him carry it in. There being no one, he tried unsuccessfully to get help at the next door and from a man in the street; being in a hurry he then “thought, pshaw, I can manage that alone,” and took the books into the house on his shoulder.

Plaintiff had then delivered this box of books, which had no connection with the business of his employer or the duties for which he was employed, at Mr. Hunt’s residence and fully performed without injury to himself the errand upon which he was sent; he states however, in explanation of what followed, that he might have set the box down in the hall upon the first floor but “the lady asked me if I would kindly take it to the second floor. I hesitated, but a man hates to refuse a woman,” and, although it was heavier than he ordinarily would try to carry alone and he “wouldn’t take a chance even around the factory,” he did take a chance at her request and took it up a winding stairway to the second floor. He could not see and his foot slipped on about the sixth step causing the box to tip so “it got me in the back on a side swing” and he felt a snap, but he straightened up and carried it to the second floor. Following this injury, which he stated he did not pay any attention to at first, he continued in his usual employment for some time although he suffered with a lame back which grew worse in spite of medical treatment until he finally became partially paralyzed and totally incapacitated, an X-Ray examination showing “two joints of my spine snapped out of place.” He permanently quit his employment for that reason towards the latter part of the following August.

To bring the case within purview of the workmen’s compensation law, it was necessary to show that the accidental injury arose out of and in the course of plaintiff’s employment. The industrial accident board so found. The contention against such finding is that there is no competent evidence to support it. The nature and circumstances of the accident are not in dispute, neither is it questioned that no charge was made against Hunt for this service. It is indicated from the record that the testimony of a witness named Shelby, who stated he was general manager of the Mailometer Company, was especially regarded as lending evidential support to the finding of the board. He testified that the order for this delivery emanated from him and that it was customary for him to give such orders as a part of his business and they were doing it right along, which he stultified by also testifying that he did not mean they “ran an express office or anything like that,” and could not say “it had become customary because such favors were few;” he also testified that he hired plaintiff to do whatever he wanted him to do, “absolutely,” but in describing the nature of his employment said “he was hired to deliver and pick up anything we needed or delivered from our factory.” Plaintiff himself, who describes his contract of employment with the corporation substantially as last above quoted from Shelby, testified that he was in that employ about four months and there was no deliveryman besides himself, he doing all delivering for the company; that he never but once before made delivery at anybody’s house, on which occasion he took a couple of suit cases up to Mr. Sheldrick’s brother’s house when his wife was away, and that in making this delivery for Hunt he would not let it interfere with the factory business, because there was no hurry. As he understood the nature of his employment and performed it such orders and their execution were not customary nor a part of the business of the factory for which he worked.

It appears conclusively that such temporary service was of a casual nature, a mere accommodiation undertaken by the corporation for one of its stockholders without charge, and in no sense a part of its special machine shop business in which both Shelby and plaintiff were employed. “Uncompensated favors extended occasionally to its stockholders surely do not constitute a ‘business’ of a corporation, ‘usual’ or otherwise.” LaGrande Laundry Co. v. Pillsbury, 173 Cal. 777.

But passing these questions, and even conceding that in rendering this casual service, as directed, to a stockholder of the corporation during the noon hour, plaintiff was in’ the usual course of his employment, because obeying an order emanating from the manager under whom he was employed, his own testimony shows that he had executed the order as given and fully performed the service directed before the accident occurred. Neither the nature of his employment nor the special order given him by the shipping clerk can be said to contemplate that after he had succeeded in delivering this heavy box, weighing 140 pounds and containing 100 books, as he estimated, at Mr. Hunt’s residence, he would then, at the unreasonable request of some woman whom he hated to refuse, undertake to carry it on his back up a winding stairs to the second floor — an undertaking on which he “wouldn’t take a chance even around the factory” with which he was employed. There is no competent evidence in the case to support the finding that an injury resulting from such an undertaking arose out of and in the course of his' employment.

The order of the industrial accident board is therefore reversed.

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


text:
    NAGY v. SOLVAY PROCESS CO.
    1. Master and Servant — Workmen's Compensation Act — Hernia —Burden of Proof.
    Where plaintiff claimed that a hernia from which he was suffering was caused by an accident while in defendant’s employ, which was disputed, the burden of proof was upon him to establish the fact, in proceedings under the workmen’s compensation law.
    2. Same — Appeal and Error — Issue of Fact — Finding of Industrial Accident Board.
    In such case, an issue of fact, fairly raised by conflicting evidence, direct or circumstantial, is for the industrial accident board to decide, and its decision upon that point is final.
    3. Same — Credibility of Witnesses — Issue of Fact.
    The committee on arbitration and the ihdustrial accident board are the judges of the credibility of the witnesses before them, in an issue of fact, and their finding that the plaintiff had failed to sustain the burden of proof will not be disturbed by the Supreme Court.
    4. Same — Rulings of Arbitration Committee — Evidence — Prejudicial Error.
    Where the hearings before the arbitration committee were of an informal nature, and all parties in interest had full opportunity to be heard, while certain admissible facts which plaintiff desired to bring before the committee were excluded, on objection, there was no prejudicial error where their substance was fully developed in later testimony, and the rulings complained of could have no controlling influence in the result reached upon the basic issue involved.
    5. Same — Waiver
    Where defendant denied liability, but paid plaintiff’s hospital expenses and gave him half pay for the time lost, stating it did so because he was unfortunate, it did not thereby waive anything, under the circumstances.
    6. Same — Written Denial of Liability — Admission of Liability.
    Where, after plaintiff made claim for compensation, and defendant was notified, it wrote the board tbe same month denying liability, and tbe board tbe same month wrote plaintiff advising him of this denial, while the proceedings were somewhat informal, it cannot be said that defendant, in legal effect, admitted liability by failing to file and serve on plaintiff written denial of liability.
    Certiorari to Industrial Accident Board.
    Submitted January 8, 1918.
    (Docket No. 12.)
    Decided March 28, 1918.
    Bertalan Nagy presented his claim for compensation against the Solvay Process Company for injuries received in defendant’s, employ. From an order denying compensation, plaintiff brings certiorari.
    Affirmed.

      Raymond E. Van Sycle, for appellant.

      Angelí, Bodman & Turner and C. G. Dyer, for appellee.
   Steere, J.

On March 7, 1916, plaintiff made application for employment as a common laborer at the plant of defendant and was accepted as such, without any physical examination. He is a native of Austria and his previous employment since coming to America had been in handling coal or wood. He was put at unloading stone from cars into a furnace, on a shift of nine hours a day at 27 y% cents per hour. On the fourth day of his employment he quit before his shift ended under circumstances somewhat in dispute. The foreman under whom he worked testified that no accident or injury occurred to his knowledge and plaintiff made no complaint Of having been hurt at the time he left; that he approached him and said he wanted another job because there was too much gas there, which was the only reason he gave for quitting; that he spoke in understandable English, walked straight with his hands down and said nothing then or at any other time about being hurt. Plaintiff testified that he quit because he was hurt while putting back the cover of the furnace with an iron bar which slipped and struck' him on the stomach, causing such severe pain that he could not continue at work, and, on reaching his boarding- house, discovered a severe rupture had resulted from the accident.

About four days later, on March 14th, he appeared at defendant’s office, and, claiming to have been seriously injured at the time he quit work, asked to be sent to a hospital for treatment. Defendant sent him to Harper hospital where he was examined by Dr. McAlpin of that institution, who found that he was afflicted with a large, old scrotal hernia, for cure of which an operation was necessary. He found him otherwise in good physical condition, and the doctor operated upon him the following day, March 15th, finding conclusively,- as the doctor testified, that the rupture, was of long standing, without indications of recent injury, increase or inflammation. Plaintiff remained in the hospital three weeks and was discharged about April 5th as cured, Dr. McAlpin testifying:

“The condition of the man when I discharged him • was very good;.the wound was healed, the hernia was cured, entirely cured.”

Plaintiff testified that after he was discharged from the hospital he was unable to work for about two months; that he went back to work for defendant for about four days, at what time he does not state, but was unable to work longer because he was so weak and the place where he was operated upon hurt him badly. Defendant’s records, however, show that he- returned to work on April 29th, putting in one full day’s time, and then was absent until May 8th when he resumed his employment and worked until May 23d, quitting without notice or making any complaints about his work. Prior to this defendant had assumed all his hospital expenses, amounting to $118, and, aside from his wages, given him $45.

On July 3, 1916, he made demand of defendant for compensation, and, liability being denied, on July 21st, filed his claim with the industrial accident board. A hearing was had on September 8th before a committee of arbitration which rejected his claim and refused to award him compensation. Upon appeal from the decision of the arbitration committee “to the industrial accident board the decision of the committee was affirmed, on January 8, 1917.

Prior to making return, to the writ of certiorari issued herein no written finding of facts was filed by the industrial accident board, and plaintiff’s principal claim is that the board’s denial of an award amounted to an erroneous conclusion of law, contrary to the undisputed facts in the case. In its return the board embodies a statement of the case dealing with the essential facts claimed by plaintiff, both conceded and disputed, saying in part as follows:

“Before the entry of said order, a copy of which is designated as Exhibit G, the industrial accident board found as a fact that no accident was suffered by claimant while he was working for defendant; that, the operation was made necessary by a pre-existing scrotal hernia, which was not in any manner caused or affected by claimant’s employment at the Solvay Process Company; that after recovering from the operation claimant was in'better physical condition than he was before, and that the Solvay Process Company owed him nothing.”

It is conceded that plaintiff was afflicted with a scrotal hernia requiring an operation for its cure. He claimed it was caused by an accident which he suffered while in defendant’s employ. This was denied. The burden of proof rested upon him to establish the fact. If there was conflicting evidence upon that affirmance and denial, direct or circumstantial, fairly raising an issue of fact it was for the board to decide, and its decision upon that point disposes of the case.

While certain of plaintiff’s compatriots testified to what he showed and told them of the accident of which they saw indications, amongst which were that “it was black and blue where he got hurt,” he was the only direct witness to this claimed accident. He testified that when the bar slipped and struck the side of his stomach it hurt him so that he could not work and had to quit, that he “showed the boss the cause” and told him he would go home, .to which he answered “all right,” and “the fellows took me down in their own place.” The foreman testifies that he heard nothing of anything happening to plaintiff when he quit, who said nothing about being hurt, walked straight when he came to him and gave as his reason for quitting that he wanted another job because of too much gas there.

Plaintiff testified that he did not report at the company’s office until the third day after this because he was laid up and unable to walk, that he wanted to and did go to the hospital for treatment, where he was operated on and remained 21 days, but since the operation his left leg has been sore and he could do no heavy work because “that place always comes out just as soon as I work hard,” and he had gone to see two doctors about it, whom he did not call as witnesses; that before the accident his health was good and he never had a hernia.

The only medical witness plaintiff produced was Dr. McEwen who testified that once, on August 9, 1916, he was called to visit plaintiff and treated him for a cold, that he did not then complain of anything else being wrong with him nor show his leg or side where he was operated on, as the witnesses recalled, but witness did examine the place of operation later when a fellow countryman brought plaintiff to his office, but was unable to testify whether or not that would reduce his working capacity.

Dr. McAlpin testified that when he examined plaintiff there were no black and blue marks or bruises on his body, nor signs of recent injury or inflammation, but he found signs of an old inflammation, or irritation, such as one might get from wearing a truss a good many years; that plaintiff had a large scrotal hernia of long standing which was not the result of an injury and could be easily reduced, and many men having that type of hernia work, with it supported by a truss; that the sac of a recent hernia is very thin and of pinkish color but as it gets older it always becomes thicker and greyish in color, and the operation disclosed the sac of this hernia was of a greyish color and greatly thickened, with no signs of recent inflammation, a condition found only in old hernias.

It is not the province of this court to review the testimony or deal with disputed facts beyond the question of whether there is evidence, direct or inferential, to put the controlling facts in issue and support the findings thereon by the board, whether positive or negative. We think the testimony referred to, as well as other items of evidence scattered through the record which it would serve no useful purpose to detail, fairly raise an issue of fact as to whether plaintiff has sustained the burden of proof resting upon him to show that he suffered an accidental injury while in defendant’s employ as he claims and testifies. Both the committee on arbitration, which heard and saw the witnesses, and the accident board on appeal found he did not. They are the judges of the credibility of the witnesses where that question is involved in an issue of fact. We find no occasion to disturb their conclusions.

Various of plaintiff’s claimed errors involve as we regard them purely questions of fact. Others relate to rulings upon the admission of testimony, some of which are erratic, and, considered alone, technically erroneous when made, but in view of the nature of the investigation and latitude given to the inquiry in other portions of the testimony we do not regard the adverse rulings complained of as prejudicial error demanding reversal. An examination of the record with reference to rulings upon admission and rejection of testimony discloses that the arbitration committee in making, under authority of the statute, “such inquiries and investigations as it shall deem necessary,” conducted an open forum in which the hearings were of an informal nature, apparently all parties in interest being furnished full opportunity to be heard. On the whole, wide latitude was given in the examination of plaintiff and his witnesses, abundance of incompetent hearsay evidence was allowed and even the unsworn statements of some of his attending fellow-countrymen, designated in the record as. “bystanders,” was heard and recorded apparently without protest. While certain admissible facts which plaintiff' desired to bring before the committee were excluded at the time objections to questions asked were sustained, we think their substance was fully developed in later testimony, fairly before the committee for consideration, and the particular rulings complained of could have no controlling influence in the result reached upon the basic issue involved.

It is further urged that by failing to file and serve upon plaintiff written denial of liability defendant in legal effect admitted the same, which further stands confirmed in fact by admissions of its agents at a conference held May 4th, when it agreed to compensate plaintiff and give him further work. In support of the latter proposition plaintiff’s counsel quote from the testimony of a witness named Bolla, as follows:

“Mr. Hadrick and Mr. Sanders said right there that they were going to pay Mr. Nagy. Mr. Sanders said that he will see to it that Nagy gets his half pay and then positive that he gets a job.”

Bolla also testified further in part:

“Mr. Sanders said he would report this matter to Mr. Green, what he would do about it, of course Sanders would not say. They asked me what this man wanted. I came to the conclusion while trying this case there wasn’t anything to it at all. I said to Mr. Hadrick, ‘Why don’t you pay this man the salary; that is all he wants, and give him a job at what he can do.’ So Mr. Hadrick asked Mr. Sanders and he said I think we can do that, it isn’t much. * * * I was there as interpreter acting for Nagy. I done the best I could for him. I expect to be paid by him for that * * * Mr. Sanders said he will see to it that Nagy gets his half pay and then positive he gets a job. About $45 was half of the wages he had lost up to that time. Nagy was satisfied with that.”

A member of the industrial accident board was in Detroit at that time and attended this conference. The following memorandum by him in reference to it appears as Exhibit H in the record:

“5-4-16.
“Solvay will not admit accident, as doctor says hernia was old one. Solvay paid for operation and medical attention. Only dispute about a matter of five weeks’ compensation. Man claims 7 weeks’ disability. Deducting waiting period leaves five weeks due. Mr. Sanders of Solvay says that they may pay this rather than arbitrate.
“T. B. G.”

Of this conference the industrial accident board finds and returns:

“That on May 4, 1916, claimant, a representative of respondent and Thomas B. Gloster, a member of the industrial accident board, held a conference in the city of Detroit, at which time the respondent expressly denied liability under the workman’s compensation act, on the ground that the claimant had suffered no injury-while in respondent’s employ; that said claim was squarely made to the claimant and that he understood it. That all of claimant’s hospital expenses were paid by the respondent and later claimant was paid $45 by the respondent, which amounted to half pay for the time he was disabled on account of his operation. Respondent always denied liability and claimed to give said money to said claimant and to pay said hospital bills merely because claimant was unfortunate and had been working for the respondent, * * * that under the circumstances of the case, said respondent did not waive anything by paying the hospital expenses of claimant and by paying him the $45.”

We are of opinion that there is abundant testimony in the case to support this conclusion.

In July, after plaintiff made claim with the industrial accident board for compensation and defendant was notified, defendant wrote the board on July 11, 1916, denying liability and on July 19th the board wrote plaintiff advising him of this denial. While these proceedings were perhaps somewhat informal the board had on file with it defendant’s denial of liability and plaintiff had written notice of such denial. We find no error in the rulings of the board in this particular.

The order of the industrial accident board is therefore affirmed.

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