text:
    WEIDNER v. NORTHWAY MOTOR & MANFG. CO.
    1. Master and Servant — Workmen’s. Compensation Act — Reopening Case — Additional Compensation — Questions for Determination — Notice.
    On petition by an injured employee to the industrial accident board to reopen his case after final settlement, the board has power. .to determine at the hearing whether the case should- be reopened and also whether additional compensation should be awarded, where both parties were given ample notice and opportunity to present such evidence as they desired.
    2. Same — Burden oe Proof.
    In such proceedings, the burden of proof rested upon plaintiff to show that he was entitled to have his case reopened, and that, not having recovered fully from the accidental injury, he is entitled to further payment.
    See notes in L. R. A. 1916A, 163, 266; L. R. A. 1917D, 186.

      3. Same — Finding of Industrial Accident Board — Evidence-— Sufficiency.
    Evidence helé, insufficient to support the finding of the board that plaintiff was suffering injuries or infirmities which were attributable to the accident in question.
    Certiorari to Industrial Accident Board.
    Submitted January 23, 1919.
    (Docket No. 99.)
    Decided May 29, 1919.
    Karl Weidner presented his claim for compensation against the Northway Motor & Manufacturing Company, Division General Motors Corporation, for injuries received in defendant’s employ. From an order awarding compensation, on petition to reopen the claim after final settlement, defendant and the Zurich General Accident & Liability Insurance Company, Limited, insurer, bring certiorari.
    Reversed.

      Kerr & Lacey, for appellants.

      Joseph L. Ruby (Carey J. Cole, of counsel), for appellee.
   Steere, J.

On January 5, 1918, Karl Weidner, a laborer in the employ of the Northway Motor & Manufacturing Company, sustained an admitted industrial accident, upon the extent and nature of which the parties are not in harmony.

In the usual course of proceedings under the workmen’s compensation law the accident was reported to the industrial accident board, an agreement for weekly compensation on the basis prescribed by the act, at $8.64 per week during disability, was entered into, filed with and approved by the board, and all required or desired medical care and attendance furnished the injured employee by the company until February 4, 1918; although Dr. Hall, the company’s physician, advised him on January 23, 1918, that he was fully recovered from any effects of the accident and able to resume work. He did not, however, report for work until the fore part of March, 1918, following a final settlement for compensation made with him through the defendant insurance company by which the prescribed weekly payment for disability was continued and paid from February 16 to March 4, 1918. A settlement receipt in full, for $70.56, in form prescribed by the accident board was signed by Weidner and filed with the board. A few days later he reported at the motor company’s factory to resume work, where he states they wanted him to run the elevator and he refused the job because he was “scart of an elevator,” and they said they had other work for him but they did not give it to him, and he did not try for work elsewhere because he was “too sick.” Asked, “What is the matter with you?” he replied, “I do not feel good on my left side. Q. In any other place? A. It hurts me to stand long and it hurts me on the right side, but not so much as on the left side.”

A written notice to his employer of claim for injury dated April 18, 1918, using the form prescribed for such purpose, states the “nature of the injury” to be “side of body and chest hurt badly causing dry pleurisy.”

On June 15, 1918, plaintiff filed a petition with the industrial accident board “to reopen his case, closed by reason of a settlement receipt filed by the Zurich Insurance Co., insurers, acknowledging settlement and payment in full of all compensation,” which he claimed he was not able to read and was led to believe was the “ordinary receipt used when compensation is paid.” The petition states the circumstances of the accident, certain of the prior proceedings in relation to it; that he was “crushed and severely injured internally,” and that “he is now suffering from gastroptosis, or the falling of the stomach” and is yet unable to work, although he has employed a number of physicians to treat him. Accompanying his petition is. a certificate dated May 14, 1918, signed by ■ Dr. Wetherell, certifying that, “I have this day made a physical examination of Karl Weidner and find him suffering from gastroptosis.”

A hearing was had upon this petition, testimony taken by deposition being submitted -by both parties and considered by the industrial accident board, as it returns, for a double purpose — first, to determine whether the case should be reopened, and, having so determined, second, whether further compensation should be awarded. The board decided both inquiries in the affirmative and without filing any finding of facts or reference to the testimony beyond the statement that it found as a fact “from all the files and testimony in the case” that as a result of the accident sustained January 5, 1918, plaintiff was unable to resume his occupation, or earn wages from the time the settlement receipt was signed, and was therefore entitled to continued compensation at the rate of $8.64 per week in accordance with the terms of the first agreement approved by the board oh February 26, 1918. This was ordered paid up to July 3, 1918, forthwith, and paid weekly thereafter.

Defendants’ counsel contend in their brief that on the petition filed to reopen the case the testimony submitted by the respective parties was directed and limited to that question only, and the board had no power without a further hearing upon the second issue to proceed after reopening the case to a determination of the question whether plaintiff had fully recovered from the effects of his accidental injury and was entitled to additional compensation.

We think that question is disposed of in Curtis v. Slater Construction Co., 194 Mich. 259, where the same course was followed, and see no objection to the rule of procedure adopted by the board in such cases. There is no occasion for multiplying pleadings or duplicating proofs if all parties are given ample notice and opportunity to present such evidence as they desire. The major question which is germane to the entire inquiry is whether the applicant is entitled to further compensation because of disability resulting from an industrial accident. In this case ample opportunity and time were given both parties to take and present such testimony as they desired. The application was filed with the board June 15, 1918. Oh July 3,1918, the first depositions were taken for plaintiff, consisting of his own testimony and that of Dr. Wetherell. On July 19, 1918, defendant took the depositions of Dr. Hall and Dr. Panzner. On August 15, 1918, the deposition of Dr. Benmosche was taken at the instance of plaintiff. Each time counsel for the respective parties stipulated as to the method and participated in the examination.

The employer’s report of the accident and injury made to the board shortly after the accident as required by the statute states as follows:

“While he was in the elevator with operator and load of motors, injured claims elevator fell one and one-half floors causing motor to fall and as he tried to stop it he injured himself. Muscle strain of back, possible comminuted fracture lumbar vertebrae.”

Plaintiff similarly described the accident in his testimony and says he “rolled the trucks away and then crawled out on the second floor.” He admitted he resumed work and remained until quitting time, the foreman telling him to use the next elevator. His only description of his injuries or feelings at that time is, “I asked the foreman to go home because I felt weak and my heart went blump, blump, but he said that they were too busy and that I should continue with my work until quitting time. I did so.” He did not resume work at defendant’s plant thereafter and it is not questioned that he sustained injuries which incapacitated him for a time, the accident being reported and his incapacity recognized as related.

Dr. H'all, the company’s consulting surgeon, and his assistants cared for plaintiff professionally and rendered him such medical care and services as he required. His complaint then was of pain in his back and lower part of his lungs. Dr. Hall testified that he saw plaintiff both at the plant and his office down town and made three careful physical examinations of him, the first on January 18th; that he found him a very well nourished, robust man; could not discover any ■ abrasions, discolorations or other physical injuries, or pain symptoms, but knowing he had been considerably shaken up in the accident, of which he gave an account, and pain itself not being visible, he accepted his word that he suffered pain for the fact and treated him accordingly, seeing him from time to time up to February 4th; that he examined him on January 23d, could-find no evidence of any disability, and considering him entirely recovered from any injury reported him able to go to work.

Plaintiff’s further medical history comes from three physicians of his own selection whose offices he visited after declining to accept the elevator job and secured their services, to treat or examine him. The first was Dr. Panzner, to whom he went on March 15, 1918, complaining of a pain in the lower part of his chest. Dr. Panzner diagnosed the cause of the pain as a localized dry pleurisy in the lower left part of the chest, involving a small area of probably two or three inches. He testified that plaintiff gave a history of the injury and, as he was complaining of pain in his chest, an X-ray picture was taken of both sides and no fracture was found nor any diseased condition of the lung or heart; that he appeared to be healthy and everything was found normal, except that he discovered in the front lower part of the left chest what he called “friction rails,” or a “kind of respiration which has been found in conditions of dry pleurisy” and so made that diagnosis, for which they applied adhesive plasters and gave him some internal medicine; that plaintiff called about half a dozen times within the ensuing month, during which he was under their care, and says, “After a week or two, then this pleuritic condition disappeared so that at the end of that time we considered him a cured man.” Dr. Panzner, the only physician who discovered dry pleurisy, not only states it was eliminated within a month and plaintiff a cured man, but as there was no fracture, old or otherwise, to traumatize the pleura “it couldn’t be due to any injury.”

Dr. Wetherell, who furnished the certificate accompanying plaintiff’s petition to reopen the case, testified to examining him twice, found no dry pleurisy, but did find a condition of “gastroptosis, or an enlargement and downward displacement of the stomach,” which he said was a gradual development and might be caused by “overeating, indigestion, heavy lifting, and a dozen things would cause it.” He refused to state or express an opinion that the gastroptosis he diagnosed was traceable to the accident of January 5, 1918. The nearest to an opinion of any answers pointed out or found are:

“Q. Do you think that the abnormal condition of this man’s stomach is caused by injury?
“A. Yes. * * *
“Q. Would the fall of a heavy body against the stomach of a person cause gastroptosis?
“A. It may or it may not.”

But even this was negatived by other - answers as follows:

“Q. And from your examination are you willing to say that this condition resulted from an injury?
“A. I could not say it did. * * *
“Q. What would you say would cause the injuries complained of by Mr. Weidner ?
“A.- I do not know.”

In answer to a hypothetical question by plaintiff’s counsel, based on certain facts in the history of the case in connection with his physical examination, he replied, “No, I cannot state that the condition I found was the result of the accident at all.”

Dr. Benmosche testified that plaintiff had come to him for treatment about three weeks before; that he took several X-ray pictures and his findings were, “that his stomach is about normal, slightly enlarged, no ulcerations, ptosis of the transverse colon, * * * and a shadow in the region of the gall bladder, which is due to some dense body in the gall bladder.”

“Q. Did you find any gastroptosis ?
“A. Very slight if any — not a pathological ptosis,”

He also stated that he found the transverse colon “toast,” or “fallen lower,” which was not at all uncommon. In answer to the question of whether the pressure of a heavy body, of between 300 and 400 pounds, would tend to intensify the conditions he found, he answered that it might. On cross-examination he said he did not wish to be understood that this condition of the bowel was the result of an accident.

This proceeding is an application by plaintiff to reopen a case which he states was closed by a settlement receipt which he signed acknowledging payment in full. Upon, him rested the burden of proof to show both that he was entitled to have his case reopened and that not having recovered fully from the accidental injury he is entitled to further payment. While he alleges in his application that he signed the settlement receipt under a misapprehension as to what he was signing, the testimony is silent on that subject. He does not so testify, nor that any duress, fraud or misrepresentation was practiced upon him, by any one at the time or that it was not then read to him. Even accepting as proof the allegations in his petition, the situation, except the statement he could not read English, is closely analogous to that in Winn v. Adjustable Table Co., 193 Mich. 127, an industrial accident case in which this court said:

“It is not shown that any deceit was practiced by the agent of the insurance company in obtaining the agreement for compensation. Claimant says that he supposed it was a receipt when he signed it, but that he did not ask to have it read, nor did he read it himself, although he was competent to do so. Under these circumstances he will not be heard to deny the validity of the agreement. Sanborn v. Sanborn, 104 Mich. 180. But such an agreement may undoubtedly be reviewed by the industrial accident board upon a proper showing, under section 13, pt. 3, of the act. (2 Comp. Laws 1915, § 5466).”

The only specific injuries resulting from the accident ever claimed by plaintiff in his notice of claim to defendant or his petition to the board are dry pleurisy and gastroptosis. The first is affirmatively eliminated by the testimony of Dtr. Panzner, the only one of the physicians who discovered it. Dr. Wetherell, who testified to gastroptosis, which he said was a gradual development and might be caused by . more than a dozen different things, refused to testify that it was caused by, or to venture the opinion it was traceable to, the accident. Dr. Benmosche stated he found plaintiff’s stomach normal, though slightly enlarged, and did not want to be understood that the not uncommon falling of the colon which he noticed resulted from the accident. Considered in its most favorable light plaintiff’s proof furnishes no legal evidence to support the finding of the board that his injuries, or infirmities, which plaintiff claimed and sought to prove, resulted from or were attributable to the accident in question.

The order appealed from is therefore reversed.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    DOHERTY v. TOWNSHIP OF GROSSE ISLE.
    1. Master and Servant — Workmen's Compensation Act — Findings of Industrial Accident Board — Collusiveness.
    Under the workmen’s compensation law, the findings of . the industrial accident board supported by evidence are not reviewable by the Supreme Court; the only debatable questions along that line being in the field of inference, or permissible deductions of the existence of essential facts not sustained by direct testimony but reasonably inferable from other facts of which there is direct proof.
    2. Same — Evidence—Competency.
    The decision of the industrial accident board that the accident to decedent arose out of his employment will not be reversed because of the admission of incompetent evidence, if any competent evidence supports its conclusion.

    3. Same — Questions for Review — Appeal and Error.
    The claim that decedent was a casual employee, not having been properly raised before the industrial accident board and passed upon by it, is not available on certiorari to review the award.
    4. Same — Husband and Wife — Conclusiveness as to Support— Statutes.
    Under section 6, part 2, of the workmen’s compensation act (2 Comp. Laws 1915, § 5436), where decedent and his wife were living together as husband and wife at the time of his injury and death, testimony as to whether he was supporting his wife, in proceedings hy her for compensation for his death, became immaterial.
    5. Same — Cause of Death — Finding of Board — Conclusiveness.
    Where the record as a whole gave room for the inference drawn by the board that death resulted from the accident to decedent, its conclusion will not be reversed.
    Certiorari to Industrial Accident Board.
    Submitted February 5, 1919.
    (Docket No. 43.)
    Decided May 29, 1919.
    Bridget Doherty presented her claim for compensation against the township of Grosse Isle for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings eertiofari.
    Affirmed.

      Orla B. Taylor, for appellant.

      Frederick T. Witmire (Joseph A. Moynihan, of counsel), for appellee.

      See notes in L. R. A. 1916A, 40, 232; L. R. A. 1917D, 114.

   Steere, J.

The State industrial accident board found and held in this case that plaintiff’s husband, John Doherty, sustained an accidental injury while in defendant’s employ, arising out of and in the course of his employment, which was the “proximate” cause of his death; that plaintiff was living with him as his wife at the time of his injury and under the workmen’s compensation law conclusively dependent upon him for support; that as he was injured before Act No. 41, Pub. Acts 1917, went into effect compensation should be computed according to the “so-called 300-day rule,” and awarded plaintiff $9.09 per week for 300 weeks with deceased’s reasonable expense of hospital and medical attendance from the time of his injury until his death.

Defendant had already, paid the hospital and medical expenses incurred, but denied all legal liability under the statute and has appealed the proceeding to this court for review on certiorari, alleging in its application therefore 10 claimed grounds for reversal, five of which are argued and urged in counsel’s brief, as follows:

“(1) There is no evidence that the injury arose out of and in the course of the employment.
“(2) Error was committed in allowing the introduction of hearsay testimony, upon which the finding of the board was necessarily based.
“(3) Doherty was merely a ‘casual’ employee.
“(4) There was no legal or competent evidence Bridget Doherty was living with John Doherty at the time of his death or that she was dependent on him for support.
“(5) There is no evidence sustaining the finding that death resulted from the injury.”'

These contentions are all in substance that the facts as found by the board have no evidential support. The proposition that under the wording of the statute this court cannot weigh the evidence or assume to determine the facts, nor review the board’s findings as to them farther than to ascertain whether there is any competent evidence direct or circumstantial to support them, whether positive or negative, has been heretofore fully discussed in its various aspects and reiterated in recent decisions. The only debatable questions along that line are in the field of inference, or permissible deductions of the existence of essential facts not sustained by direct testimony but reasonably inferable from other facts of which there is direct proof.

Doherty was married to plaintiff in 1873-, at Wyandotte, Michigan, by a Catholic priest, and although they have since lived apart at intervals neither ever applied for or contemplated a divorce. When he died at the Eilbert Memorial Hospital at Wyandotte, on May 31, 1917, they had four living children of mature years, the youngest born in 1882, all married and taking care of themselves in homes of their own. He was taken to the hospital in an automobile on May 19, 1917, directly from where he was working on defendant’s highway, for care and treatment of a recently crushed foot and remained there under daily medical attendance until his death. H. L. Wilton, supervisor of defendant township and its agent for transaction of all legal business (1 Comp. Laws 1915, § 2115), in his report of the case to the industrial accident board, dated February 12, 1918, made out on its “Form No. 6,”’ gave deceased’s age as “about 80 years,” occupation- “watchman,” branch of work, “good roads,” cause and manner of accident, “motor truck run over toe,” nature and extent of injury, “abrasion on his toe, no bones broken.” Plaintiff, who had been married to deceased over 40 years and raised a family of four children by him, all born in Grosse Isle, testified that he was 68 years old when he died, that he used to be a heavy worker, could even in his older days do “a good, hard day’s work,” and at the time he was injured yet able to do the work at which he was employed.

It is not disputed that on the day and just before he was taken to the hospital Doherty suffered an accidental injury to his foot of a nature requiring medical attendance, while he was employed as a watchman, or gate keeper, on a highway of the township described by its supervisor as the “east road near Trenton crossroad, Grosse Isle,” upon which defendant was then engaged in making improvements under the general superintendence of Robert Johnson, its highway commissioner, a long time neighbor of Doherty on Grosse Isle, who had lived near his place since 1898 and known him much longer, he guessed since 1870, had seen him “all over Grosse Isle, at different places,” had previously employed him at various times both to work on the township highways and privately to work for him on his own place, having hired him to do some plowing on his farm the previous fall (1916) and to do a little work for him in January. He had as highway commissioner employed him to work on defendant’s highway during 1916 at different times in each month from April to October inclusive. Doherty had injured his wrist during the winter and in the spring of 1917 asked Johnson for a job on the highway at gate keeping, as he could not do hard work. Johnson had told him he would, when a gate keeper was wanted, and notified him to report for that work on the morning of the day he was injured. Doherty did so and was directed to “take care of the upper gate,” by a man named Lafayette, who stated he “was sort of what you call a sub-boss at the time,” and doing other work, but who had been keeper at that gate the day before Doherty came on. He testified as to Doherty’s duties there in part: “He had a gate to open there, he was supposed to open the gate for the truck to get in.” This referred to trucks hauling stone for the road which the township was engaged in resurfacing. The crushed stone for this was delivered at different points along the improvement as the work progressed by a Mr. Parker who had a contract to haul it from the mainland and was using motor trucks for that purpose. While this work was in progress the road was closed to public travel by obstructions placed across it at the extremities of the improvement, consisting of so-called gates, described as a “saw-horse” made of “a piece of 2x6 with four legs spiked on it.” This was opened to let the truck loaded with crushed stone pass, by swinging or carrying one end around. Johnson testified Doherty was “going to go on days,” that it was necessary to keep a watchman or “gate tender” at those points “to keep people traveling from going over the new road” while it was under construction, that they were paid 35c per hour and “we had to have them night and day ” Asked as to the number of hours they worked he replied:

“He worked nine hours. Sometimes they put in eleven — those gate keepers-. * * * Well, they usually work nine and a half — they could stay 24 hours.”

Doherty was injured and sent to the hospital about noon. The foreman on the job was time keeper, his time sheets being reported to and O. K.’d by Johnson who turned them in to the township board after he had approved them. Doherty’s name was on the pay roll and the township records show him credited with 4% hours’ work that day. That he was injured while employed by defendant and in the course of his employment cannot be seriously questioned. The gate where he was stationed was at the extremity of the improvement and some distance from where the other employees were at work. Shortly before the noon hour one of Parker’s truck drivers brought him down in his truck to where the other men were at work and turned him over to them in an injured condition and unable to stand without assistance, telling them in Doherty’s presence, after they had taken him out of the truck and had him on the ground, that he had driven over Doherty’s foot while he was opening the gate. Lafayette then took charge of him and he was sent to the hospital. Johnson stopped at Doherty’s home that evening and told plaintiff of her husband’s injury and informed her that he had been taken to the hospital. He also reported the. accident to the township clerk and stated he had sent Doherty to the hospital, and the clerk then so advised the supervisor. Johnson visited Doherty at the hospital a few days later and testified, “he said he thought that he felt pretty good,” but, when asked what Doherty told him about the accident, replied, “I don’t know as I really talked to him about that, * * * I don’t know as that came up.”

The truck driver was not called as a witness at the hearing, but the chairman of the arbitration committee let the testimony as to his statement of how Doherty got hurt stand, against the objection that it was hearsay, on the erroneous theory that “ being an agent, he would have a right to tell.” It is contended for defendant the board’s finding that the accident arose out of deceased’s employment was necessarily based on this hearsay testimony. It was manifestly incom? petent to prove the fact, and that the industrial accident board on review so regarded it is somewhat indicated by the statement in its finding that “the manner of his injury was not shown as clearly as might be.” The board did, however, find from the record as a whole that his injuries arose out of his employment.

The township officers had timely notice of the accident and ample opportunity to promptly investigate and ascertain the facts while Doherty was yet alive and the means of information freshly available. Wilton, the supervisor and agent of the township for transaction of its legal business, testified that he made an investigation of the case “by hearsay,” talked at the time with Lafayette, Mr. Brow, the overseer of highways and foreman then in immediate charge of the work, and others; that he thought the belated report of the accident which he made after notice from the board, on form 6, was filled out by “our attorney,” and he signed it after satisfying himself “that these things were correct.”- Under previous rulings and reasons in preceding cases more or less analogous, which need not be repeated, we cannot say that the finding complained of was entirely without competent evidential support. Reck v. Whittlesberger, 181 Mich. 463 (Ann. Cas. 1916C, 771); Fitzgerald v. Lozier Motor Co., 187 Mich. 660; Kinney v. Cadillac Motor Co., 199 Mich. 435; Ginsberg v. Adding Machine Co., 204 Mich. 130.

The claim that Doherty was a casual employee was concededly not properly raised before the accident board nor passed upon by it. Defendant’s written grounds of defense in denial of liability filed with the board under its Rule V, to which defendant is limited, contains no notice of such claim. In that particular the situation is. substantially as in Roach v. Kelsey Wheel Co., 200 Mich. 299, where the subject is amply discussed. Contingent upon adverse rulings as to the grounds urged before the board, which are enumerated and passed upon in the opinion filed, the board there states “no question is raised by respondent as to the amount of the award.” The question of casual employment is not properly here for review, and if it were Doherty is not shown to come within that class. The fact that he was injured on the first day of his employment that spring affords no test. He was a common laborer on a road job which the township was engaged in, during which Johnson testified they had to have men employed “night and day” in the service he was performing. He had been employed by defendant at road work, more or less, every month during the previous summer. The construction, repair, care and maintenance of its highways was a regular duty of the township imposed by law. In that work it was in no better or different position than would have been a contractor to whom it had let a contract for the improvement.

Defendant’s claim that there was no competent evidence plaintiff was living with her husband at the time of his death or that she was dependent upon him for support ignores both the undisputed facts that she was at the time of his injury living with him in the family home on Grosse Isle which he had owned for many years and the conclusive presumption which obtains in such cases. This contention was initiated by defendant’s supplemental report of the accident to the board on its “Form No. 7,” in reply to the inquiry (No. 13) for names, ages, relationship and address of dependents, made by the supervisor of the township as follows:

“John Doherty did not leave any dependents. He had not lived with his wife for a number of years. He lived alone in a shack on Grosse Isle and was an object of charity. Address of wife unknown.”

The only proof we discover to sustain the claim he was ever an object of public charity is in defendant’s books which show the bills allowed by the township board for his hospital and medical expenses following the accident were eventually charged up after his death to the poor fund because, as the township clerk testified, “we could not pay it out of any other fund.” The proof is undisputed that he owned his home and at the time of his injury, which is the test, was living there with plaintiff, as husband and wife, in friendly relations, supplied with their own food and furniture, she caring for the home and cooking the meals which they ate together. The day before he was injured, May 18, he gave her ten dollars. On the day he was injured she.had put up a lunch for him to take to his work. That evening she prepared their supper and had it ready awaiting his return when Johnson came to the door step and told her her husband was injured and had been taken to the hospital. She went to the hospital in Wyandotte the next day and stayed with her husband until he died. Her niece, with whom she had lived in Detroit during a portion of the winter because laid up with a sprained ankle, testified that on May 17 she went with plaintiff to her home on Grosse Isle to help her clean house, that Doherty was there and seemed pleased to see his wife; that she remained there settled in her own home when witness returned to Detroit the following day and had continued to live on Grosse Isle since that time. Doherty had a brother and other relatives living on Grosse Isle, including a daughter, born on the island in 1876, who was married and yet living there in a home of her own at the time of his death. It was not shown that at the time of his injury and death his wife then living with him had any property or other means of support; but a long cross-examination of plaintiff, reviewing their married life of over 40 years, disclosed that he was a “drinking man,” and the burden of the family had fallen heavily upon her; that while their married relations were otherwise pleasant and congenial and he “tackled anything wherever he could work,” being known as a good worker all his lifetime, they had trouble “once in a while” on account of his drinking habits. Owing to that cause the family suffered from his improvidence and she had worked out more or less during much of their married life, by the day or by the week, he at times being away for long periods and his whereabouts unknown to her. At times she would be at their home with him away and at other times she would be away working and he at home. When he was injured, their children had long been grown and gone from home, earing for themselves. She testified that she lived with him at their home on the island in the summer of 1916, during which time he gave her money, and the following winter she was working in Detroit until she sprained her ankle which laid her up at her sister’s house for about three months, while he was at their home on the island and had injured his wrist; that she joined him in the spring as soon as she was able to do so and they were living there together when the accident befell him. There was no evidence Doherty drank after her return, or had recently been drinking. But whatever his former delinquencies during the years of their married life, it being established that they were living together as husband and wife at the time of his injury and death, testimony as to whether he was supporting her or she was supporting him became immaterial. The act provides, section' 6, part 2 (2 Comp. Laws 1915, § 5436):

“The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee:
“(a) A wife upon a husband with whom she lives at the time of his death ;•
“(b) A husband upon a wife with whom he lives at the time of her death”; * * *

Upon the contention there was no evidence to sustain the finding that death resulted from the accident, it is undisputed that the injury proved in itself to be a serious matter and was so recognized at the time. Even the supervisor who reported it to the board as an “abrasion on his toe,” and had arrived at the conclusion when examined that Doherty was not in the township’s employ at the time, testified in explanation of their taking him to the hospital: “We could not let that man lay on the road side, whether "he was an employee or not.” It was shown that Doherty was advanced in years and his recuperative powers impaired, that he was disabled by an injury to his wrist the previous winter, had arterio-sclerosis and a weak heart, all resulting in a degree of debility. Dr. O’Brien, who was called to attend him, found his foot so badly crushed that the arteries were broken and the blood supply cut off from the tissues beyond, causing gangrene to develop which, as the doctor testified, would in such a case be attended by a poisonous, or toxic, absorption into the system affecting the nervous organization and to a certain extent interfering with the secretions of the stomach. As the gangrene progressed he grew weaker and became delirious, after which vomiting set in with an extension of the abdomen, and his bowels would not move. On the third day after reaching this condition he died. Dr. O’Brien stated he expected to amputate the foot when the line of demarkation set in and made plain how far the dead tissue extended, but Doherty died before it occurred; that in his opinion the “immediate” cause of death was obstruction of the bowels, the gangrenous condition of his foot being a “contributing cause.” No post mortem examination was had. Among the many questions asked of and answered by him are the following:

“Q. What was the cause of death?
“A. Well, the direct cause would be the obstruction.
“Q. What was the approximate cause or the contributing cause?
“A. The contributing cause would be the gangrenous condition of the foot.
“Q. Resulting from this injury?
“A. Of course, the gangrene did not result from that, because there were clots of blood formed, completely precluding the circulation of the arteries. * * *
“Q. And the severe shock, or the shock, combined with the arterial affliction in this man, and also his nervous condition, might easily have produced, or in a measure contributed to his stomach trouble.
“A• Yes, it would be contributory. * * *
“Q. Could this gangrenous condition so upset the stomach that it would cause vomiting?
“A. Well, it might — yes, it could. * * *.
“Q. What would you say as to the crushed foot as to whether it was — looked serious in itself if you had not had other elements of old age and the heart, and the condition of the arteries existing.
“A. Well, if it was a young person it could be removed— the part that was gangrenous, possibly he would have got over it — in a young person, very often they do. * * *
“Q. You did not remove the foot in this case, or remove any of it?
“A. The line of demarkation had not set in. We had to wait for that. We didn’t know how-far to remove it, you can’t tell until you see how far the dead tissue extends. Before the line of demarkation had set in the obstruction came on and he died.”

Without attempting to set out or review, in' full all the testimony which may be inferentially relevant, the conclusion is, reached that the record as a whole gave room for the inference drawn by the board. Of this accident the following reflections in Gaffney v. Goodwillie, 203 Mich. 591, are well in point:

“We find ground for saying that the board had before it some evidence tending to prove that the «fall which Mr. Gaffney had set up a train of physical disturbances, affecting an existing pathological condition in such way as to cause death. We, therefore, decline to set aside the award.”

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

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


author: BROOKE, J.

text:
    RUBIN v. FISHER BODY CORPORATION.
    1. Master and Servant — Workmen’s Compensation Act — Unequivocal Claim — Limitation of Action.
    A claim under the workmen’s compensation law must be an unequivocal one, and must be made within the period of six months fixed by the statute (2 Comp. Laws 1915, § 5445)

    2. Same — Claim—Evidence—Sufficiency.
    Testimony of claimant that after leaving defendant’s employ he had frequent conversations with his former foreman as to what was going to be done for him, held, insufficient to establish the fact that a claim was made in conformity with the statute.
    3. Same — Statute—Legal Liability.
    Legal liability under said statute may not be predicated on mere guess or probability.
    Certiorari to Industrial Accident Board.
    Submitted February 5, 1919.
    (Docket No. 76.)
    Decided May 29, 1919.
    Sam Rubin presented his claim for compensation against the Fisher Body Corporation for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Employers’ Liability Assurance Corporation, Limited, insurer, bring certiorari.
    Reversed, and award set aside.

      Frederick T. Witmire, for appellants.
    ’ Frank J. Biggs, for appellee.
    Claimant was injured on the* 19th day of June, 1917, while in the employ of the defendant Fisher Body Corporation. On December 26, 1917, he filed a written claim for compensation for loss of the sight in his right eye. The record shows that claimant reported his accident to his foreman and was sent to Dr. Schorr for treatment, who in turn sent him to Dr. Bentley, an eye specialist, by whom he was treated for about a month. On July 21, 1917, the doctor advised him that he was able to return to work. He did return to work for the defendant but only put in about 14 or 15 hours’ time when he quit and sought employment elsewhere. For a short time he took and sold pictures on the street, then went into the peddling business with his brother, operating near the premises of the defendant Fisher Body Corporation, where they sold fruit to the employees of that concern during the noon hour. Although no written claim for compensation was filed within the statutory period, it was asserted by claimant that during the period when he was selling fruit to the employees of the Fisher Body Corporation he frequently saw and had conversations with Mr. Caldmeyer, his former foreman. He testified :

      “Q. You told this foreman that you expected that you wanted compensation for the loss of the eye?

      “A. Yes, sir, I did; I told Mr. Caldmeyer, who is the general foreman. * * *

      “A. Every day I used to come in and ask Mr. Caldmeyer what is going to be with me? Are you going to give me some benefit?- I cannot make a living. I had to go on the street. * * * I asked him what is going to be, am I going to have any benefit out of it? He says he don’t know anything about it. He says to me, we will try to give you some work and then if we cannot find you a job we will see what we got to do with you. * * *

      “Q. Caldmeyer?

      “A. Yes, sir, that is his name.
    “Q. Then you deny telling me you never demanded any compensation before?

      “A. Why, I don’t understand the word ‘compensation.’

      “Q. Well, damages, for your eye, pay for your eye?

      “A. I never spoke for damages, but I told him what benefit am I going to have for it, am I going to have any pay for leave until I got fixed up on my eye. I have three children to support.

      “Q. You spoke to the foreman about that?

      “A. Yes, sir, I did.

      “Q. You did not speak to any officer of the company?

      “A. I didn’t know any officer around there. He is the only man that is around there.

      “Q. The only man you knew?”
    An award was denied by the arbitration committee upon the ground that:
    “No claim for compensation was made within six months from the date of the accident.”
    On appeal to the full board the determination of the arbitration committee was reversed and an award of $10 per week for 100 weeks as for the loss of an eye was made. In treating the question of notice the board said:
    “We think that under the testimony he made an unequivocal claim on a good many different occasions during the six months immediately following the accident. We have not quoted all the testimony concerning the claim. He was evidently a man of little education and not too much intelligence. He did not even understand the meaning of the word ‘compensation,’ as he repeatedly testified. The persons to whom he says he made a claim for compensation did not deny that he made such a claim. He probably did not use .the word ‘compensation.’ He probably said he wanted pay for the injury to his eye. He certainly had the question of some sort of recompense for the injury to his eye up with the employers’ representatives many times. While he had a trace of .vision in his eye, his eye was practically lost, and the board does not think it could possibly find upon this record that the applicant had not made a claim for compensation within six months after the accident happened to him.”

      See notes in L. R. A. 1916A, 83, 245; L. R. A. 1917D, 135; L. R. A. 1918E, 559.

   BROOKE, J.

(after stating the facts). Defendants in this court urge that the board was in error in holding that claimant was not barred from recovery upon the ground that he had mad© no claim for compensation within six months after the date of the injury. We think appellants’ contention sound. We have held that a claim for compensation must be an unequivocal one. Baase v. Banner Coal Co., 202 Mich. 57; Brown v. Weston-Mott Co., 202 Mich. 592, and the following cases are conclusive upon the point that such claim must be made within the period of six months fixed by the statute. Cooke v. Furnace Co., 200 Mich. 192 (L. R. A. 1918E, 552); Kalucki v. Foundry Co., 200 Mich. 604; Dane v. Traction Co., 200 Mich. 612; Schild v. Railroad Co., 200 Mich. 614; Peterson v. Fisher Body Co., 201 Mich. 529. The industrial accident board in reaching the conclusion that a claim was made said:

“He probably did not use the word compensation. He probably said he wanted pay for the injury to his eye.”

Legal liability may not be predicated on mere guess or probability. Draper v. Regents of University of Michigan, 195 Mich. 449.

The award must be set aside.

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


author: Brooke, J.'

text:
    COLBY v. WORTLEY.
    1. Wills — Construction.
    A provision in a will that “I give and bequeath 80 acres of land on section 32 in town 3 south, of range 7 east, to H. and his children,” construed, and held, that H. and his children, of whom there were seven, each took an undivided one-eighth of the 80 acres mentioned.
    2. Same.
    A further provision that “The balance of said 40 acres I do give and bequeath to H. and his children,” construed, and held, that as to the portion of said 40 acres herein described, H. and his seven children each took an undivided one-eighth.
    3. Same.
    A further provision that “The 28 rods wide on section 33, which I have willed to S. shall go to I. and H. after the death of S.,” construed, and held, at testator’s death to vest an estate in fee in I. and H. subject to a life estate in S.
    4. Same.
    In the construction of a will, the title to land devised to H. should be confirmed in him rather than in his children, notwithstanding the fact that H. was dead at the time the will was construed.
    See note in 25 L. R. A. (N. S.) 888.
    Appeal from Washtenaw; Kinne, J.
    Submitted February 6, 1919.
    (Docket No. 129.)
    Decided May 29, 1919.
    r Bill by Grover Colby and others against Sarah Wortley and another for a construction of a will. From a decree for plaintiffs, defendants appeal.
    Reversed, and decree entered.

      Tracy L. Towner, for plaintiffs.

      D. C. Griffen and John P. Kirk, for defendants.

      The bill of complaint is filed to secure a construction of the will of Ira T. Colby which follows:

      “First: I give and bequeath to my wife, Irene Colby, all of my real estate lying and being in the township of Ypsilanti, being on sections 31, 32 and 33, in town three south, of range 7 east, and also two cows, fifty sheep and my best horse, buggy and single harness, to do with as she wishes, except the above named real estate mentioned, which my said wife is to have the use of during her lifetime (without waste).

      “Second: The homestead of eighty acres on section 31, I give and bequeath as follows, viz.: After the death of my wife, I give and bequeath the east half of said eighty acres, on section 31, to Sarah Wortley. After the death of Sarah Wortley, I give and bequeath the said east half of said eighty acres to Irene Wortley, provided said Sarah Wortley die leaving no heirs. Should Sarah Wortley die leaving an heir or heirs, the said east half of said eighty acres' shall be divided equally between said Irene Wortley and Sarah Wortley’s heirs.. If Irene Wortley dies leaving no heir, her portion shall go to Henry Colby and his. children. The west half of said homestead of eighty acres I give and bequeath to Rose Colby, and if said Rose Colby die leaving no heirs, said west half of said homestead shall go to Henry Colby and his children.
    “The lane .as it now runs north and south through said homestead of eighty acres shall be the dividing line.*

      “Fourth: I give and bequeath eighty acres of land on section 32 in town 3 south, of range 7 east, to Henry Colby and his children.
    “*and the barn building shall be divided equally on each half of the above said homestead of eighty acres. And the house shall be divided also. The east part now occupied by Sarah Wortley to go with and belong to the east half of said homestead, and the west half as now occupied by Ira T. Colby, to go with and belong to the west half of said homestead.
    “And I also give my organ to Rose Colby after my wife is-through with it. Said Rose Colby is to have a home with my wife as. long as she wishes to remain with her.

      “The forty acres on section 33, in town 3 south, of range 7 east, shall be divided as follows:
    “X give 28 rods wide of west part (divided north and south) to Sarah Wortley.
    “I give and bequeath 26 rods wide of middle part of said section to Rose Colby.
    “The balance of said forty acres X do give and bequeath to Henry Colby and his children.
    “And I do further give to said Henry Colby three acres of land in Augusta, described as follows: west part of west one-third of the east half of the east quarter of section 7, town 4 south, of range 7 east.
    “And I do order and direct that my personal property shall be sold and all my debts paid. Whatever remains after paying my debts my said wife is to have. Should any remain of this sale after my wife’s death it shall be divided equally between Henry Colby, Irene Wortley, Rose Colby and Sarah Wortley.
    “The 28 rods wide on section 33, which I have willed to Sarah Wortley shall go to Irene Wortley and Henry Colby after the death of- Sarah Wortley.
    “The portion of real estate and personal property which I have willed to Rose Colby and Irene Wortley shall go to Henry Colby’s children after‘the death of' either or each of them, provided they or either of them die leaving no heirs.
    “Wherever the name of Rose Colby appears .in this; will it shall and does mean my adopted daughter.
    “And I do hereby appoint Watson Barr and my wife, Irene Colby, executors of this, my last will.
    “In witness whereof, -I have hereunto set my hand and seal this 3rd day of April, A. D. 1885.”
    The testator died June 3, 1888, and his will was duly admitted to probate July 9, 1888. The parties in interest dealt with the property devised inter se( apparently without regard for the provisions of the will or a strict determination thereof until the year 1913, when Henry Colby, son of Ira Colby, died intestate. His son, Grover Colby, was appointed administrator of his estate. He sets up in his bill that claims were duly allowed against the estate of his father in the sum of $1,824.67 while the inventory of the personal estate amounted to about $986.28. It therefore became necessary for the first time since the death of Ira T. Colby to determine exactly what interest Henry Colby took in the real estate under the will of his father. The oral testimony introduced at the hearing throws no' light upon the question involved. The learned circuit judge who heard the case filed the following opinion:
    “This is a bill filed for the construction of the will of Ira T. Colby, some 27 years after his death.- He died in June, 1888, and as some of the parties have passed away, they have construed this will about as they pleased, until, at this late day, it becomes important to know about where they stand.
    “Meanwhile the widow and the son named in the will have deceased. If Watson Barr, who drew this will, were now alive, it might then be possible to understand the provisions of this will. As it is we are left to grope in the dark and guess as best we may at its'real meaning.
    “The first section of said will seems to have already been executed.
    “As to the second section of said will, it appears impossible that Sarah Wortley will now have any children, so upon her death, the east half of said homestead on section 31, will go to Irene Wortley, who, I think, will take the land in fee simple.
    “The west half of said homestead of 80 acres will go to Rose Colby for life, unless she marries and has issue, in which event it will go to her children; but if no marriage takes place, upon her death, it will go to the children of Henry Colby in equal shares.
    “As to the fourth provision of said will, it seems to me that the children of Henry Colby, deceased, will take in equal shares.
    “The 40' acres on section 33 seem to be divided as follows:
    “Sarah Wortley will take a life interest in the 28 rods wide willed to her and at her death it will go to Irene Wortley, one-half, and the remaining one-half to the children of Henry Colby in equal shares. “In the event that Rose Colby does not marry, her 26 rods wide of section 33 will go to the children of Henry Colby in equal shares.
    “The balance of said 40 acres on section 33 will go to the children of Henry Colby in equal shares.
    “Henry Colby, or his children, will take the 3 acres in Augusta township.
    “As to the remainder of the proceedings under this will, I have only to add to the duties of the administrator, ‘Pax vobiscwm.’ ”

    —upon the footing of which a decree was entered in the following terms:
    “This cause having come on to be heard upon the pleadings filed therein and the proofs taken in open court, the court having heard the arguments, of counsel for the respective parties and being fully advised in the matter, doth find and adjudge that the will of Ira T. Colby, deceased, as admitted to probate in the probate court for the county of Washtenaw aforesaid, by the terms of which certain pieces or parcels of land situate in the said county of Washtenaw were devised, is not clear and distinct as to the intentions of the testator and that a construction of the said will for the purpose of determining who are the devisees thereunder, should be made by this court as prayed for in the bill of complaint filed in this cause:
    “Therefore, on consideration thereof, this court finding that Irene Colby, widow, and Henry Colby, son, have departed this life, it is ordered, adjudged and decreed as follows:
    _ “That the homestead of Ira T. Colby, deceased, consisting of eighty acres situate on section thirty-one, in the township of Ypsilanti, county of Washtenaw and State of Michigan, shall go as follows, viz.: The east half thereof, subject to an estate for life in Sarah Wortley, shall go to Sarah Irene Wortley, in fee simple, and that the west half of said homestead shall go to Rose Colby for life, unless she marries and has issue, in which event it will go to her children, but if no marriage takes place, then, upon the death of the said Rose Colby, the said west half of the said homestead shall go to the children of Henry Colby, deceased, viz.: Ernest Colby, Mollie Gillison, Daisy Siegle, Amy Tabor, Bessie Colby, Cora Granger and Grover Colby, in equal shares, to have and to hold forever.
    “The eighty acres known as the west half of the southeast quarter of section thirty-two in said township of Ypsilanti shall go to the aforesaid children of Henry Colby, deceased, in equal shares, to have and to hold forever.
    “The forty acres known as the south one-half of the west half of the. southwest quarter of section thirty-three in said township of Ypsilanti, shall go as follows:
    “(a) The west twenty-eight rods in width thereof, subject to an estate for life in Sarah Wortley, shall go one equal undivided one-half to Sarah Irene Wortley and the remaining one-half to the children of Henry Colby, deceased, in equal shares, to have and to hold forever; (6) twenty-six rods wide of the middle part of said forty acres shall go to Rose Colby, and in event of her death without issue, the samé shall go to the aforesaid children of Henry Colby, deceased, in equal shares, to have and to hold forever; (c) the remainder of said forty acres shall go to the aforesaid children of Henry Colby, deceased, in equal shares, to have and to hold forever.
    “The aforesaid children of Henry Colby, deceased, will take the three-acre tract of land situate on section seven, in the township of Augusta in said county of Washtenaw.
    “It is further ordered that said plaintiffs or defendants have leave to cause this decree, or a certified copy thereof, to be recorded in the office of the register of deeds for said county of Washtenaw.”
    Defendants have appealed from said decree.
   Brooke, J.'

(after stating the facts). The fourth paragraph of the will reads:

“I give and bequeath eighty acres of land on section 32 in town 3 south, of range 7 east, to Henry Colby and his children.”

The decree provides with reference to this section:

“The eighty acres known as the west half of the southeast quarter of section thirty-two in said township of Ypsilanti shall go tQ the aforesaid children of Henry Colby, deceased, in equal shares, to have and to hold forever.”

It is the contention of appellants, touching this part of the decree that the court should have held that Henry Colby and his children, of whom there were seven at the time the will became operative, each took an undivided one-eighth of the eighty acres mentioned. We are of opinion that the construction contended for is sound. The eighty acres in question is given neither to Henry Colby nor to his children but to Henry Colby and his children. Each of those named, therefore, would, according to the number in the class, take an aliquot part of the eighty acres and the eighth thereof acquired under the will by Henry Colby, title to which remained in him at the time of his death, would be liable for the payment of so much of his debts as remained unliquidated after the appropriation of his personal estate.

The next question arises over the provision of the will as contained in the fourth paragraph.

“The balance of said forty acres I do give and bequeath to Henry Colby and his children,”

—with reference to which the decree provides:

“The remainder of said forty acres shall go to the aforesaid children of Henry Colby, deceased, in equal shares, to have and to hold forever.”

This provision of the decree is. in our opinion subject to the same infirmity as that relative to the eighty acres above discussed. As to the portion of said forty acres here described, Henry Colby and his seven children each took an undivided one-eighth under the terms of the will, Henry’s eighth, undisposed of in his lifetime, being subject to the payment of his debts.

The next question arises with reference to the construction of the further provisions relating to said forty acres, part of which follow:

“I give 28 rods wide of west part (divided north and south) to Sarah Wortley. * * *
“The 28 rods wide on section 33, which I have willed to Sarah Wortley shall go to Irene Wortley and Henry Colby after the death of Sarah Wortley.”

The decree provides that as to this 28 rods, upon the death of Sarah Wortley, Irene becomes the owner of the one-half and the children of Henry Colby become the owners of the other one-half. This, too, we think is an erroneous construction of the language under consideration. There is no ambiguity here. A life estate is clearly created in Sarah Wortley with remainder over to Irene Wortley and Henry Colby. Upon the death of the testator, therefore, Irene Wortley and Henry Colby became seized of an estate in fee subject to a life estate in Sarah Wortley.

The next provision likewise found in paragraph four is as follows:

“And I do further give to said Henry Colby three acres of land in Augusta, described as follows:” etc.

With reference to this three acres the decree provides :

“The aforesaid children of Henry Colby, deceased, will take the three-acre tract in the township of Augusta.”

It is asserted in the brief of counsel that Henry Colby died without in any way alienating or incumbering his title to said three acres and it is alleged that as to this property the decree should have confirmed the title in Henry Colby instead of in his children. With this contention we agree. While the will under consideration is. inartificially drawn, we do not find it difficult to ascertain the intention of the testator from the language used. Neither the lapse of time since the will became operative nor the fact that Henry Colby is now dead has any bearing upon the question under consideration.

The decree of the court below is reversed, and one will be entered in this court in accordance with the views above expressed. Costs to appellants.

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


author: Fellows, J.

text:
    EDWARD v. IOOR.
    1. Corporations — Foreign Corporations — Compliance with Statutes.
    If a foreign, corporation desires to carry on its business in this State it must comply with the provisions of the foreign corporation act (2 Comp. Laws 1915, § 9063 et seq.), and if it also desires to sell its stock or securities in this State it must comply with the provisions of the commission act (3 Comp. Laws 1915, § 11945 et seq.).

      2. Contracts — Corporations—Sale op Stock by Owner — Dealers —Statutes.
    A sale of stock of a foreign corporation by the owner in this State was not a violation of the provisions of the commission act, where there were no “continued and successive transactions of a similar nature” contrary to the spirit of the act.
    3. Sales — Definition.
    A sale is defined to be “an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the $rice.”
    a
    4. Contracts — Sales—Foreign Corporations — Sale op Stock— Statutes.
    Where a foreign corporation exchanged its stock for that of other companies it was a sale of its stock within the meaning of the commission act.
    See note in 29 L. R. A. (N. S.) 92.

      5. Same — Void Contract — Sale of Stock — Penal Statute — Construction.
    Under 3 Comp. Laws 1915, §§ 11958, 11967, prohibiting the sale of stock by any investment company or dealer without complying with the provisions of the statute, and providing a penalty for the violation thereof, a sale of stock' in conflict therewith was void, although not expressly declared so to be by the statute.
    6. Same — Rescission—Demand—Remedy.
    Where plaintiff tendered back stock received by him under a void contract which he rescinded, he was entitled to be restored what he had parted with, and failure to restore it entitled him to its value.
    7. Same — Estoppel.
    That plaintiff executed a proxy for the annual meeting of the corporation to the defendant to whom he had tendered the stock and that plaintiff’s counsel offered that a dividend paid after the suit was brought might be offset against plaintiff’s claim, did not estop him from pursuing his remedy.
    8. Same — Rescission—Assumpsit—Remedy—Value of Goods.
    An action in assumpsit to recover the value of the goods parted with upon the rescission of a void contract, made, so far as defendants are concerned, in violation of the terms of a penal statute, is the proper remedy.
    9. Same — Rescission of Void Contract-Demand Unnecessary.
    Upon the rescission of a void contract plaintiff was entitled to what he had paid thereon, and no demand, under the circumstances, was necessary.
    10. Same — Demand—Refusal—Entitled to Value of Goods.
    Although upon plaintiff's rescission of the contract his claim would have been satisfied by the return to him of the stocks with which he parted, yet where his demand was refused, but not upon the ground that he demanded the amount of money invested in the original stocks rather than the stocks the&selves, he is entitled to recover their value.
    11. Samis — Void Contracts — Liability of Several Defendants.
    Where several defendants were engaged in a common enterprise in consummating a transaction contrary to the terms of a penal statute, it cannot be said, as a matter of law, that any of them should be exonerated from liability.

      Error to Kent; McDonald, J.
    Submitted January 31, 1919.
    (Docket No. 39.)
    Decided May 29, 1919.
    Assumpsit by William S. Edward against Walter loor and others for money paid on an illegal sale of stock. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed.

      C. G. Turner and Ellis & Ellis, for appellant.

      .Hatch, McAllister & Raymond, Joseph Renihom,, and Charles A. Watt, for appellees.
    Plaintiff is a resident of Sault Ste. Marie and defendants have a common office in the city of Grand Rapids. Defendant United Vending Company is. a corporation organized under the laws of the State of Arizona. It had been authorized to sell its stock in this State by the Michigan securities commission pursuant to the provisions of Act No. 46, Pub. Acts 1915 (3 Comp. Laws 1915, § 11945 et seq.), hereafter called the commission act, but had not complied with 'the provisions of Act No. 206, Pub. Acts 1901, as. amended by Act No. 310, Pub. Acts 1907 (2 Comp. Laws 1915, § 9063 et seq.), hereafter called the foreign corporation act. Defendant National Piano Manufacturing Company of Illinois, hereafter called the Illinois Piano Company, had complied with the foreign corporation act but had not complied with the commission act. Defendant National Piano Manufacturing Company of Arizona, hereafter called the Arizona Piano Company, had complied with neither act. Defendant Michigan Securities Corporation is a Michigan corporation, and, it seems, has been licensed as a dealer under the provisions of the commission act. The status of the Sparta Manufacturing Company and of the National Automatic Music Company, both of which are mentioned in the record, but neither of which is made defendant, does not clearly appear, nor is it important. The companies seem to possess interlocking directorates and defendant loor is president or secretary of some if not all of them and appears to be the dominant factor in them all.
    Plaintiff purchased through the Michigan Securities Corporation 500 shares of stock of the United Vending Company, paying therefor $5,000 in cash. He also purchased from defendant loor 27 shares of stock in the Illinois Piano Company, paying therefor $6,750 in cash. Both of these stocks paid dividends and there is no evidence tending to show that they were not worth what he paid for them. It should also be stated that Sarah Tyndall purchased stock of the United Vending Company to the amount of $450 and plaintiff’s son to the amount of $225.
    Some time after the purchase of these stocks by plaintiff the directors of the United Vending Company, the Sparta Manufacturing Company and the Illinois Piano Company conceived the organization of the Arizona Piano Company to take over the stock of these companies, issuing stock in the new company in payment therefor. Plaintiff and other stockholders seem to have been informed of this plan. After correspondence, some of which was with the Michigan Securities Corporation, in which the advantages of carrying out such plan were impressed on plaintiff, he acquiesced in this transaction, sent his old stock to defendant Michigan Securities Corporation and received stock in the new Arizona Piano Company. Mrs. Tyndall and plaintiff’s son did the same.
    Prior to the bringing of this action, Mrs. Tyndall and plaintiff’s son assigned their stock in the Arizona Piano Company in blank and delivered it to plaintiff, who paid them the amount they had invested. There is testimony in the case that all of the stock was tendered back before suit was brought by a representative of plaintiff’s, counsel, the tendel" being made to defendant loor; and there is testimony that in declining the tender he told the representative making it to “tell them to go to hell”; there is testimony that the representative demanded $12,425, the amount invested in the original stocks, and there is testimony that neither the original stocks or their value were ever delivered or paid to plaintiff. To review a judgment for defendants upon a directed verdict this writ of error issued.
   Fellows, J.

(after stating the facts). In disposing of the case the following questions will be considered;

(1) Is a foreign corporation required to comply with both the foreign corporation act and the commission act before offering its stock for sale in this State?

(2) Did the sale to plaintiff by the defendant loor of the 27 shares of stock in the Illinois Piano Company offend the commission act?

(3) Did the exchange of the Arizona Piano Company stock for the stock of the other companies constitute a sale within the meaning of the commission act?

(4) If so, may the plaintiff rescind the sale and recover the consideration paid?

(5) Estoppel.

(6) Other questions.

1. Under the provisions of the foreign corporation act (2 Comp. Laws 1915, § 9063 et seq.) a foreign corporation is required to comply with its provisions in order to “carry on its business in this State.” Under the provisions of the commission act (3 Comp. Laws 1915, § 11945 et seq.) a foreign corporation, for the purposes of the act, is known as a “foreign investment company,” and before selling, offering for sale, taking subscriptions for or negotiating for the sale in any manner its stocks or securities in this State, such foreign corporation must secure permission from the Michigan securities commission. Compliance with the corporation act permits a foreign corporation to “carry on its business,” the business for which it is organized in the State; compliance with the commission act permits it to sell its stock and other securities. One is not in any way dependent upon the other. One foreign corporation may desire to carry on its business in the State, but may not desire to sell stock; another may desire to sell stock but may not desire to carry on its business in the State. If a foreign corporation desires to carry on its business and also sell its stock in the State it is obvious that it must comply with both acts. It is equally obvious that if it desires to do but one of these things it is required to comply only with the provisions of the appropriate act.

2. The record discloses that defendant loor was the owner of 100 shares of stock of the Illinois Piano Company. He sold 27 of these shares to the plaintiff. He sold no other shares of stock of this company. Section 10 of the commission act (3 Comp. Laws 1915, § 11954) defines the term “dealer,” and, so far as important here, provides:

“The term 'dealer' shall not include an owner, net issuer, of such securities so owned by him when such sale is not made in the course of continued and successive transactions of a similar nature.”

■This provision was thought important by the framers of this act to remove the question of unconstitutional taint, and preserve the constitutional right of the individual to sell his own stock, but by prohibiting “continued and successive transactions of a similar nature” prevented the abuse of that right and its exercise in a manner contrary to the spirit of the act. Mr. loor had the right to sell this stock to plaintiff. He did not by continued and successive transactions of a similar nature become a dealer. He was acting within his constitutional rights and by this sale to plaintiff did not violate the act. No liability can be predicated on this transaction.

3. The plan contemplated by these defendants provided for the organization of a corporation under the laws of Arizona to take over and hold the stock in the other companies, giving its own stock in varying proportions in exchange therefor. It was to be largely a holding corporation. Did the exchange of its stock for that of the other companies constitute a sale within the meaning of the commission act? This court has defined a sale as follows:

“A sale is a parting with one’s interest in a thing for a valuable consideration.” Western Massachusetts Ins. Co. v. Riker, 10 Mich. 279.
“But every transfer of property for an equivalent is practically- and essentially a sale, and the deed of bargain and sale is almost universally used to convey land so transferred. Money’s worth is a valuable consideration, as much as money itself.” Huff v. Hall, 56 Mich. 456.

Bouvier defines a sale as:

“An agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price.” 3 Bouvier’s Law Dictionary, p. 2983.

This definition has been adopted by the legislature of this State in the uniform sales act (Act No. 100, Pub. Acts 1913, 3 Comp. Laws 1915, § 11832 etseq.).

We must assume that the legislature had in mind this well understood, meaning of the word “sale” when the commission act was passed. If the act is not so construed, as was suggested upon the argument, one may exchange worthless stock for government bonds and escape with impunity. We are impressed that when the Arizona Piano Company exchanged its stock for that of other companies it was a sale of its stock within the meaning of the commission act.

4. Section 14 of the commission act (3 Comp. Laws 1915, § 11958) provides in part as follows:

“It shall be unlawful for any investment company or dealer, or representative thereof, either directly or indirectly, to sell or causé to be sold, offer for sale, take subscriptions for, or negotiate for the sale in any manner whatever in this State, any stocks, bonds or other securities (except as expressly exempted herein), unless and until said commission has approved thereof and issued its certificate in accordance with the provisions of this act.” * * *

Section 23 of the act (3 Comp. Laws 1915, § 11967) provides:

“Any person or persons who shall violate any of the provisions, of this act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than one thousand dollars or shall be imprisoned in the county jail for not moire than one year, or both such fine and imprisonment in the discretion of the court.”

It is admitted that the Arizona Piano Company had not at the time of this transaction been authorized by the Michigan securities commission to sell its stock in Michigan. Under the provisions of the commission act it was a foreign investment company. It could not lawfully sell its stock without being authorized so to do by the commission. Under the evidence in the case it was selling its stock not only to plaintiff but also to many others. It was engaged in the business of disposing of its. stock by continued and successive transactions. The sale, and it was a sale as we have seen, of its stock to plaintiff and others was in violation of the act and submitted all connected therewith as vendors to the penalties for its, violation. The sale of stock without approval by a public board or commission was not bad at common law, is not malum in se, but by the terms of the act it is malum prohibitum. The act in question was passed, under the police powers of the State (see Merrick v. Halsey & Co., 242 U. S. 568 [37 Sup. Ct. Rep. 227]), to prevent fraud in the sale of stocks, and to safeguard the public from exploitation at the hands of the promoter. It was passed to protect and for the benefit of the purchaser. It laid penalties upon the seller, not upon the buyer. As remarked by Lord Mansfield in Browning v. Morris, 2 Cowp. 790:

“And it is very material that the statute itself, by the distinction it makes, has marked the criminal; for the penalties, are all on one side.”

And as we have shown under (2) the sale by an owner of his own stock, except by continued and successive transactions, does not offend the act. The plaintiff therefore violated no law when he sold and transferred his own stock to the Arizona Piano Company, was not in pari delicto, and, as we shall presently see, he supposed defendants were proceeding in a regular and legal manner, and such acts as were done by him were done at the request of the defendants, or some of them.

This sale to plaintiff of the stock of the Arizona Piano Company was in conflict with the terms of a penal statute, malum prohibitum, and void, although not expressly declared so to be by the statute. Loranger v. Jardine, 56 Mich. 518; Niagara Falls Brewing Co. v. Wall, 98 Mich. 158; In re Reidy’s Estate, 164 Mich. 167; Ferle v. City of Lansing, 189 Mich. 501 (L. R. A. 1917C, 1096); Cashin v. Pliter, 168 Mich. 386 (Ann. Cas. 1913C, 697); Maurer v. Greening Nursery Co., 199 Mich. 522.

Some of these cases are so recent and they so fully consider the authorities and the principles involved that we forego further discussion of the subject. When plaintiff’s stock in the Arizona Piano Company, received on this void contract, was tendered back he was entitled to the stocks he had assigned in payment therefor. The transaction had been rescinded, and upon its rescission he was entitled to be restored to what he had parted with. Failure to restore to him what he had parted with entitled him to its value.

5. After this suit was instituted the plaintiff executed a proxy to defendant loor for the annual meeting of the Arizona Piano Company. We discover nothing in this to estop plaintiff from pursuing this remedy. The stock upon the books of the company stood in his name; he through his attorney had tendered it back to Mr. loor. By executing this proxy Mr. loor Was permitted to vote this stock as he desired. A dividend partly in stock and partly in cash was paid after the suit was brought. Plaintiff’s counsel offered that this might be offset against plaintiff’s claim. There is no evidence in the case that any of the acts of plaintiff led defendants to take any steps or do any act in reliance thereon. Mr. Edward lived at Sault Ste. Marie, and the defendants were in Grand Rapids. It is quite doubtful upon this record if plaintiff personally fully understood the workings of these corporations until he came to Grand Rapids for the trial. He testified that he supposed that the transaetions were all legal, that they were legally transacting the business. The letters written him gave no hint otherwise. We discover no estoppel as matter of law.

6. As we have already stated, this case is brought to recover upon the rescission of a contract, made, so far as defendants are concerned, in violation of the terms of a penal statute. It is. in no way analogous to a proceeding instituted by a stockholder for mismanagement of company affairs, which should be in equity. Plaintiff has sought the proper forum.

When the representative of plaintiff’s .counsel tendered back the stock of the Arizona Piano Company he demanded the amount of money invested in the original stocks. This plaintiff was not entitled to. Plaintiff was entitled to what he had paid on the void contract, which payment was made in stock. He was therefore entitled to the return of the stocks. But the contract was void and no demand under the circumstances necessary. Defendant loor by the language attributed to him plainly indicated that his refusal to accept the tendered stock was in no way based on the form of the demand. Had defendants returned to plaintiff the stocks he was entitled to, his claim would have been satisfied and extinguished; not having done so he is entitled to their value.

The defendants appeared by separate counsel and upon the argument it was strenuously urged that there was no liability as to some of them. But the record .discloses they were engaged in a common enterprise, in consummating a transaction in face of, and contrary to, the terms of a penal statute. Under such • circumstances we cannot' say as matter of law that any of them should be exonerated from liability.

For the reasons stated the judgment is reversed and a new trial ordered. Plaintiff will recover his costs in this court.

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


author: Stone, J.

text:
    GRIGGS v. DE YOUNG.
    1. Justices of the Peace — Replevin — Discontinuance — Judgment fob Defendant — Statutes.
    The filing of a discontinuance in a replevin suit in justice’s court by the plaintiff did not deprive the justice of the right to proceed upon the adjourned day to hear evidence of the defendant as to the value of the property taken under the writ; defendant having waived a return of th& property. 3 Comp. Laws 1915, §§ 13108, 13109.
    2. Same — Adjournment—Appearance—Waiver.
    Where the return of the justice shows that plaintiff’s attorney appeared in court on the adjourned day and raised no question as to the jurisdiction of the court or the right to proceed because the record failed to show any time or place of adjournment, held, that the objection was waived.
    3. Same — Certiorari—Questions Reviewabke.
    Upon^certiorari the Supreme Court is bound by the return of the justice as to the facts of the docket entries.
    4. Same — Correction op Docket Entries.
    It is the duty of the justice to correct any clerical mistakes which he finds in the docket before signing the same.
    Certiorari to Wayne; Dingeman, J.
    Submitted January 22, 1919.
    (Docket No. 90.)
    Decided May 29, 1919.
    Replevin, in justice’s court by Albert G. Griggs against Joseph De Young. There was judgment for defendant and plaintiff appealed to the circuit court by writ of certiorari. Judgment for defendant. Plaintiff brings certiorari.
    Affirmed.

      Hurry M. Luu, for appellant.

      Abram Sapiro, for appellee.
   Stone, J.

This case is here upon certiorari to the circuit court for the county of Wayne. The case, originated in the court of Theodore J. Richter, one of the justices of the peace for the city of Detroit, where a judgment was rendered for the defendant in a replevin suit, and the case had been removed by certiorari to the circuit court.

It appears that the plaintiff sued out a writ of replevin before said justice on January 17, 1918; that the said writ was made returnable on the 29th day of January, 1918, at 9 o’clock a. m.; that property was seized under the writ; that on January 29th the parties were in court and put in their pleadings and the case was by consent adjourned to February 12, 1918. On February 5, 1918, the plaintiff filed a discontinuance.

The further proceedings before the justice appear in his return to the circuit court upon the writ of certiorari as follows:

“I further certify and return that the 12th day of February, 1918, was celebrated and observed as ‘Lincoln’s Birthday,’ and that I held no court on said day, and called no cases for hearing1 or adjournment on said day, but that on the 13th day of February, 1918, I called the case of Albert G. Griggs v. Joseph De Young, at the opening of court on said day; plaintiff was not in court, but defendant was in court by Abram Sapiro, his attorney. On examination of the file in said cause, I found that a written stipulation of discontinuance of said cause, dated February 5th, had been filed by Harry M. Lau, attorney for said plaintiff Albert G. Griggs. I asked Abram Sapiro, attorney for defendant, to notify Harry M. Lau, attorney for plaintiff, to appear in my court, and shortly thereafter Harry M. Lau did appear, and he informed me that he stood by his discontinuance and would not participate further in said cause. I informed Harry M. Lau that under the circumstances, I would render judgment in favor of the defendant Joseph De Young. Thereupon Abram Sapiro being sworn and on cause shown, I adjourned said cause to the 14th day of February, 1918, 9 a. m.
“I further certify and return that on the 14th day of February, 1918, the said cause was adjourned by consent of both parties to the 16th day of February, 1918, 9 o’clock a. m.; that on February 16, 1918, 9 o’clock a. m., said cause was called, plaintiff did not appear, but defendant was in court; Joseph De Young was sworn for the defendant; defendant waives the return of the goods taken under the writ of replevin, gave testimony satisfying me as to his right of possession to the goods, and as to their value, and I thereupon rendered judgment against the said plaintiff, and in favor of the said defendant Joseph De Young, in' the sum of four hundred fifty ($450.00) dollars damages and fifty cents costs of suit.”

We cannot consider assignments of error not embraced in the petition for the writ in this court. The allegations of error set forth in the affidavit for the writ of certiorari to remove said cause to the circuit court (which are the only matters which can be considered here, as no others are claimed in the petition for the writ in this court), are as follows:

(1) That upon the filing of the discontinuance of said suit on February 5, 1918, the justice had no jurisdiction to proceed further in the case than render judgment of nonsuit against the plaintiff, with costs.

(2) That said justice had no jurisdiction to proceed after the adjournment of February 12, 1918, because the records failed to show any time or place of adjournment.

(3) The entries on the justice’s docket to give him jurisdiction in the matter,, are erroneous, and are not according to the facts.

(4) The docket entry of February 16, 1918, is contradictory, and shows, the justice lost jurisdiction, in that it shows that defendant did not appear, and in the same entry it shows that J. De Young, the defendant in said cause, was. sworn for the defendant and waived return of goods.

(5) That by virtue of the statute the 12th day of February, 1918, was a legal holiday, and therefore said cause continued by virtue thereof, until February 13, 1918, and that the docket entry shows that no proceedings- were had in said cause on February 13, 1918, and by reason of no proceedings having been had on the 13th, said cause became abated under the statute.

After the return of the justice to the circuit court had been made and upon the-application and affidavit of the plaintiff’s attorney, a further return of said justice was ordered, to show specifically by what right and authority he had made changes and corrections •in the entries in his docket of the proceedings in said cause. We quote from such further return as follows:

“I, Theodore J. Richter, the justice of the peace, in the order hereunto annexed, do further certify and return with reference to the changes and corrections mentioned in the annexed affidavit and order, that upon receiving the writ of certiorari, in the above-entitled cause, to-wit, on March 2d, 1918, he immediately examined the docket entries in the case of Albert G. Griggs v. Joseph De Young, in his docket No. 99, on page 239, and it appeared that two clerical errors had been made by clerk of the justices’ courts, for the city of Detroit, in writing up said docket in said case, and that the said docket did not accurately set forth the proceedings in said cause as they were in truth and in fact had, in two particulars, viz.: in incorrectly writing up the adjournment of February 13th, 1918, as of February 12th, 1918, and in inaccurately stating that at the time of the rendition of the judgment that the plaintiff was in court and defendant was not present, when in truth and fact I held no court on February 12th, 1918, but that said cause was. adjourned on February 13th, 1918, on cause shown, and in the presence of Harry M. Lau, attorney for plaintiff, and further, that at the time of the rendition of my judgment, in truth and fact, plaintiff was not in court, but the defendant was in court.
“I further certify and return that upon discovering that my proceedings in said cause had not been correctly and accurately entered on the docket in said cause, and that the foregoing clerical errors had been made by the clerk of the justices’ courts and his deputies, I immediately instructed the clerk of the justices’ courts for the city of Detroit, William Teagan, to correct the clerical errors mentioned and to make entries in said docket conform to the proceedings in said cause as they were in truth and fact had before me; and that the said William Teagan, clerk of the said justices’ courts for the city of Detroit, forthwith, and op the 2d day of March, A. D. 1918, under my instruction and supervision, corrected the clerical errors hereinbefore mentioned and for which said clerk and his deputies were alone and solely responsible, and thereupon said docket and judgment were signed by me.”

1. There is no merit in this point, in our opinion. The filing of a discontinuance by the plaintiff with the justice did not deprive that magistrate from the right of proceeding upon the adjourned day to hear evidence of the defendant as to the value of the property taken under the writ, said defendant having waived a return of the property. Sections 29, 30, chapter 27, judicature act (3 Comp. Laws 1915, §§ 13108, 13109). Gagney v. Wattles, 121 Mich. 469, is not applicable.

2. The justices’ courts in the city of Detroit are controlled by, and operate under, Act No. 475 of the Local Acts of 1903. The act is an elaborate one, providing for the number of justices, and the keeping of the records and dockets in the offices of the clerks of said justices’ courts, one clerk being provided for each of said justices. The statute prescribes the hours in which the clerks’ offices shall be kept open. Section 3 provides that the auditors of the county of Wayne shall provide suitable rooms for the accommodation of the said justices of the peace, and also offices for the clerks, and such jury rooms as may be necessary. Each of said justices- is required to have his court room open and be in attendance at the duties of his office therein from nine o’clock in the forenoon, city time, until twelve o’clock noon, and from two o’clock until four o’clock in the afternoon, with certain other provisions unimportant here. Section 12 provides that all original writs or processes issued by said justices shall be returnable at nine o’clock in the morning, city time.

The point is urged here that, it appearing that the case having been adjourned to February 12, 1918, the court lost jurisdiction because the record failed to show any time or place of adjournment. It is doubtful if the general provisions of the statute relating to justices’ courts in the State apply to these courts in the city of Detroit, where provision has been specifically made by statute for their location and hours of meeting. However this may be, it distinctly appears here, by the return of the justice, that the plaintiff’s attorney appeared in court on the 13th day of February, and also on the 14th day of February, and raised no question as to the jurisdiction of the court or right to proceed. We think we are bound by this return of the justice, and that this objection was waived. Gilmore v. Lichtenberg, 129 Mich. 275.

We cannot consider upon certiorari the point that the docket entries of the justice were not according to the facts. In this we are bound by the return of the justice.

The fourth and fifth points are fully covered, in our opinion, by the further return of the justice above set forth. The clerk of the court had evidently made some erroneous entries in the docket. When the attention of the justice was called to these errors, and before signing the docket, he corrected the same according to the facts as returned by him; “and thereupon said docket and judgment were signed by me,” is the language of the further return of the justice. Manifestly, it was the duty of the justice to correct any mistake which he found in the docket before the same had been signed, and to then sign the docket.

The return to this court to the writ of certiorari contains the decision of the circuit judge. After reciting the facts as they appear already, he used the following language;

“It is claimed that when the discontinuance was .filed that the justice had jurisdiction to render judgment either for the return of the goods or for their» value, and that he had no authority to adjourn the case on cause shown to February 14th, as was done. It appears, however, from the docket entries (which are controlling so far as this court is concerned) that the parties were in court on February 14th, and that an adjournment was had by consent to February 16, 1918. I am of the opinion that this amounted to a waiver of the discontinuance, and any prior defects which may have existed, under the authority of Gilmore v. Lichtenberg, 129 Mich. 275.
“With reference to the claim that the docket entry as to February 16th was changed, the justice had the right to correct any clerical errors before the docket was signed by him. It appears from the amended return of the justice that after the corrections were made he signed the docket and judgment. The case of Kluck v. Murphy, 115 Mich. 128, relied upon by plaintiff, involved the correction of a justice’s docket after it had been officially signed.
“The judgment of the justice will be affirmed with costs.”

•We find no reversible error in the record, and the judgment of the circuit court is affirmed.

Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellow's, and Kuhn, JJ., concurred.