author:
Stone, J.
      Bird, C. J.

text:
    RANDALL v. TRAVELERS INSURANCE CO.
    1. Insurance — Life Insurance — Payment of Premium: to Solicitor — Score of Agency.
    Where assured gave insurer an order on the paymaster of the railroad company by which he was employed for four payments, payable in four successive months, in payment of the premium, but left its employment before the first payment became due, leaving no funds in its hands to pay the same, payment to the solicitor who secured assured’s application was not payment to the insurer, in the absence of evidence that said solicitor had authority, either real or apparent, to waive the terms of the policy and collect the premium, or of waiver or ratification by insurer.

      2. Principal and Agent — Scope oe Agency — “Apparent Authority.”
    The “apparent authority” of an agent is that which, though not actually granted, the principal knowingly permits the agent to exercise, or which he holds him out as possessing.
    3. Insurance — Agency—Statutes—Construction.
    In an action on a life insurance policy by the beneficiary, where there was no question as to the agent’s authority to solicit the insurance, but the scope of his agency and whether he had authority to collect the premium, under the circumstances, was in controversy, 2 Comp. Laws 1915, § 9305, defining the status of persons soliciting life insurance and providing that in any controversy between assured or beneficiary and insurer they should be regarded as agents of insurer and not of assured, held, not applicable.
    Bird, C. J., and Fellows and Kuhn, JJ., dissenting.
    Error to Wayne; Williams (W. B.), J., presiding.
    Submitted January 31, 1919.
    (Docket No. 38.)
    Decided July 17, 1919.
    Assumpsit by Hattie Randall against the Travelers Insurance Company on a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Vcmdeveer & Foster, for appellant.

      Dwyer & Dwyer, for appellee.
   Stone, J.

On October 16, 1916, the defendant issued an accident policy to plaintiff’s son, Orrin B. Randall, naming the plaintiff as the beneficiary, in the event of his death. The insurance was solicited by one Frank D. Tubbs on behalf of the defendant. Said Tubbs testified relative to his authority, that he had been a representative of the defendant between 10 and 11 years, handling the railroad branch of business for defendant; also as follows:

“I live in Durand and write applications for insurance for the Travelers Insurance Company. I do not issue the policies but keep a record of those that are issued at my solicitation. I have a record of having issued insurance policy marked exhibit 2 to Mr. Randall * * * and I solicited the insurance from Mr. Randall.”

' The amount of the policy was $1,000. The annual premium therefor was $17. The insured executed an order on the paymaster of the Grand Trunk Railway Company, by whom he was employed, directing" the said paymaster to deduct from his wages $4.25 monthly for four successive months, commencing with November, 1916, and to remit said amounts to the defendant company in payment of said premium. The order in question was as follows:

“October 16, 1916.
“Order for $17.00. (Sum of four premiums for separate insurance periods.)
“To the Paymaster Grand Trunk R. R. Company.
“Will pay to the Travelers Insurance Company, Hartford, Connecticut, the amounts of four premiums for separate insurance periods, as follows:
“First premium 4.25 Dollars, to be paid and deducted from my wages, month of November, 1916.
“Second premium 4.25 Dollars, to be paid and deducted from my wages, month of December, 1916.
“Third premium 4.25 Dollars, to be paid and deducted from my wages, month of January, 1917.
“Fourth premium 4.25 Dollars, to be paid and deducted from my wages, month of February, 1917.
“I agree that the payments named in this order are premiums for separate consecutive periods of three months each; and each shall apply only to its corresponding insurance period under a policy of accident insurance bearing the number shown on the margin of this order and only as therein provided.
“Signature of Applicant,
“Oerin B. Randall.
“Occupation, Car Repairer.
“Where employed, Grand Trunk Ry. Fisher.”
The relevant provisions of the policy are as follows:
“Railway and Shop Employees’ Accident Policy
“(R)
“The Travelers Insurance Company “Hartford, Connecticut,
“In Consideration of the premiums to be paid as hereinafter provided (the total premiums for Four periods being $17.00), and subject to the provisions and limitations hereinafter contained, Does Hereby Insure Orrin B. Randall under classification (Medium) by occupation a Car Repairer against loss resulting from bodily injuries, effected directly and independently of all other causes, through external, violent and accidental means, as stated in the Schedule of Indemnities, for the period or periods hereinafter specified, the first commencing on the 16th day of October, 1916, and each beginning and ending at twelve o’clock noon, Standard time of the place where Insured resides.
“The Principal Sum of This Policy in the First Year is $1,000.00.
“2. No statement made by the applicant for insurance not included herein shall avoid the Policy or be used in any legal proceeding hereunder. No agent has authority to change this Policy or to waive any of its provisions. No change in this Policy shall be valid unless approved by an executive officer of the Company and such approval be endorsed hereon.
“(d) The payments directed in a note or order (copy of which is attached hereto) given with the application for this policy are premiums for separate and consecutive periods and each applies only to its corresponding insurance period, as specified on the note or order. Injuries fatal or non-fatal, sustained during any period of which the respective premium shall not have been actually paid shall not be covered by this insurance, except in case of a just claim for an injury sustained before the pay-day of the month in which first or second premium shall be payable according to the note or order; but this insurance shall not cover an injury in any such case if the insured shall not have earned in the month designated in the note or order sufficient wages to pay said first or second premium as the case may be, nor if he shall have collected or disposed of the wages earned in the month so that there shall not remain sufficient for the payment of said premium. Strict compliance on the part of the Insured and Beneficiary with all the provisions of this policy is a condition precedent to recovery hereunder.
“(e) The copy of the application endorsed hereon is hereby made a part of this contract.
“John E. Ahern, L. V. Butler,
“Department Secretary. President.
"‘Countersigned by....................
“Examined............................”

The application contained the following provisions:

“I hereby apply for an accident policy, to be based upon the order given herewith, and upon the following statement of facts. * * * I wish to pay the premium as provided in note or order of even date herewith. I agree that the policy shall remain in force after the first insurance period only as continued by payments of premium for the consecutive periods following, as provided in said note or order.
“Total premiums $17.00.”

On October 18, 1916, two days after the policy of insurance was issued to him, the assured left the employment of the Grand Trunk Railway Company and went to the home of his sister in the city of Detroit, remaining unemployed until about October 30, 1916, when he went to work for the Michigan Central Railroad Company. Upon the trial it was testified to by the plaintiff, who was the mother of said assured and the beneficiary under the policy, and also by the sister of the assured, that about the last of October, 1916, a person representing himself to be an agent of the defendant, called at the home of the sister in Detroit and there in their presence had an interview with said Orrin B. Randall relating to his policy and the premium provided for therein; that it appearing that the assured was no longer in the employment of the Grand Trunk Railway Company it was arranged that the assured should pay the entire premium of $17 to said pers'on who represented that he would give his receipt therefor, and later send to the assured an “official receipt” of the defendant; that the premium of $17 was then and there paid by said Orrin B. Randall to said person, and that the latter wrote out at length and gave to said assured a receipt for $17 in payment of such premium, and signed such receipt as the agent of defendant. The plaintiff in her testimony claimed to identify said person as the said Frank D. Tubbs. ■

Tubbs was sworn as a witness in the case, and he positively and specifically denied that he had ever called at the house of the sister, or that he had ever at any time or place received or collected any sum of money from the said Orrin B. Randall, or that he had ever seen him after he took the application at Durand.

On November 22, Í916, the dead body of the said Orrin B. Randall was recovered from the Detroit river, and there was testimony tending to show that death was due to drowning. The plaintiff in due season made claim against the defendant for $1,000, the amount of the insurance. Defendant refused payment of any amount because of the nonpayment of the premium, by the person, and to the company, and in the manner set forth in the policy and order. It should be stated that the receipt was not produced at the trial, the plaintiff testifying that it was not found among the effects of the deceased, nor was the pocketbook found, in which she testified that her said son had placed the receipt when he took it.

The manager of the railroad and ticket department of the defendant testified that he had supervision over the accident and health business written upon railroad employees insured upon the four-period plan of the defendant. He identified the policy issued and testified that no premium had ever been paid to the defendant for, or on account of the policy so issued to Orrin B. Randall; he produced the original list sent from his office to the paymaster of the Grand Trunk road at Detroit, showing that the first payment on Mr. Randall’s policy was due from Ms November wages, and wMch the paymaster did not collect, stating that the reason why, was that the said Randall was out of service; and he testified as follows:

“Q. What person or persons were authorized to receive premium payments under the policy issued to Orrin B. Randall?
“A. Mr. E. W. Hotchkiss, paymaster of the Grand Trunk road.
“Q. State whether or hot any person other than he had any authority to receive premium payments in behalf of the company under that policy?
“A. No other person had any authority to make collections, as the order was drawn upon the pay-piaster of the road.”

The following colloquy between court and counsel shows the position and claims of the parties:

“Mr. Vandeveer: Mr. Dwyer, it is my understanding that you don’t claim that the Grand Trunk paid the premium?
“Mr. Dwyer: No, we don’t claim the Grand Trunk paid any of it.
“Mr. Vandeveer: My understanding is, it is your claim the deceased having left the employ of the Grand Trunk during the month of October, that he drew his wages for the work he had performed. After leaving the service he had no money coming to him from the Grand Trunk; the Grand Trunk did not have any money in its possession to pay the premium?
“Mr. Dwyer: Yes.
“Mr. Vandeveer: Your contention is, what premium was paid, was paid by the deceased to the agent of the company; that this Orrin B. Randall worked until about the 18th of October, 1916, and drew his pay by discharge checks, and that when he left the service he had no money coming to him, so that when this order for the quarterly premium of $4.25 was presented in November, he had no funds with which to pay the premium. That is true, Mr. Dwyer?
“Mr. Dwyer: Yes it is true, there was no funds in the hands of the Grand Trunk.
“The Court: It is conceded the order was presented to the paymaster?
“Mr. Dwyer: So far as we are concerned.
“The Court: I think it would devolve on the plaintiff to show the premium was paid.
“Mr. Dwyer: Unquestionably.
. “The Court: You admit the Grand Trunk did not pay it?
“Mr. Dwyer: Yes.
“Mr. Vandeveer: My understanding of the testimony is, it discloses now, that the plaintiff takes the position that the deceased paid it, and not the Grand Trunk. ■
“Mr. Dwyer: Yes, that is true.”

The testimony of the plaintiff, and the sister of deceased, was all admitted against the objection of the defendant, the court stating:

‘Well, I understand that this testimony is all to be stricken out in the event you do not sh6w the authority of the man to collect premiums for the defendant company.
“Mr. Dwyer: Yes, I think that is the understanding.”

There was no further testimony upon the subject of authority in Tubbs, except that he testified that in two instances where, by the terms of the policies, the premiums were payable by notes, he had authority to collect the premiums, give his personal receipt therefor, remit the money to the defendant, whereupon the company would send a regular receipt therefor. There was no evidence that the deceased had any notice or knowledge of these two instances.

At the close of the evidence the defendant’s attorney moved the court for a directed verdict for the defendant for the following reasons:

1. Because there was no competent proof that a payment of the premium covering the insurance in .force, was made to an agent or representative of the defendant company, who was duly authorized by the defendant to accept and receive the same.

2. Because there was not paid to the defendant any money covering the insurance in force.

3. Because a payment of the premium covering the insurance in force, even to Tubbs, was made to him as-an individual, and the same was not received nor accepted by the defendant, and never reached it, and such a method of payment was unauthorized by the: defendant company, and not in accordance with the terms and provisions of the policy in question, and altered and varied the terms and methods of payment, without the knowledge and consent of the defendant company by its duly authorized officers and agents.

The motion was denied and defendant duly excepted.

The case was submitted to the jury and in its charge the court said:

“If you find by a preponderance of the evidence that Mr. Tubbs, the agent of the defendant who took the application of Mr. Randall for the insurance policy issued to him, was paid $17.00 in the latter part of October, 1916, at the house of Mrs. Horton in Detroit, by Mr. Randall to apply as payment on the premium of said policy, I charge you that the payment to Tubbs would be payment to the defendant insurance company, and the policy would not be rendered void, on the theory that the premium was not paid, and the plaintiff would be entitled to recover the face of the policy, $1,000.00.
“Now, you will notice I have said, if that payment was made to Tubbs, then it was a payment to the company, because I charge you, that Mr. Tubbs was the agent of the company, and if he was the agent that took the order for this policy, and the insured paid him the premium, that would be a payment to the insurance company.”

The trial resulted in a verdict and judgment for the plaintiff in the sum of $1,000 damages. The defendant brings error, and error is assigned upon the refusal of the court to direct a verdict for the defendant for the reasons stated, and upon that part of the court’s charge above set forth.

Counsel for defendant, in his brief, says:

“All of the assignments of error relate to the one issue, and that is: Was the payment of the insurance premium (if paid) to Tubbs a payment to the company, contrary to the agreement in writing of the manner and method of the payment, to be paid by whom, and received by whom?”

Special attention is called to the provision in the policy that—

“No agent has authority to change this policy, or to waive any of its provisions. No change in this policy shall be valid unless approved by an executive officer of the company, and such approval be endorsed hereon.”

Whether or not the premium was paid to Tubbs in the manner claimed by the plaintiff, presented a question of fact. Conceding the fact to be as claimed by the plaintiff, the defendant’s position still is that it was not a payment to the defendant, nor to one of its agents duly authorized to receive the payment of premium, and, if paid to him, was not received by the defendant, and that the terms of the policy were not waived by the defendant, nor was such payment to Tubbs authorized or ratified by defendant. The policy also contained the provision that:

“Strict compliance on the part of the insured and beneficiary with all the provisions of the policy is a condition precedent to recovery hereunder.”

It is urged that there was a special mode provided for the payment of the premium which was departed from; that one of the reasons for making such a provision for the payment of the premium was to avoid such disputes as the parties are here involved in; that the defendant provided that the method should'be left in its own hands, and directly contracted that it should be placed there; and that Tubbs was. not authorized to bind the company in the matter, being merely a solicitor for policies. Defendant’s counsel cites 2 Bacon on Life & Accident Insurance (4th Ed.), §§ 469, 640; Michigan Shingle Co. v. Insurance Co., 91 Mich. 441, and many authorities from other jurisdictions, none of which are directly in point, or decisive of the identical question here involved.

Counsel for the plaintiff argue that the question is not what the authority of the agent actually was, but what authority he was apparently clothed with by the defendant, and they cite a number of Illinois cases, of which the leading one is The Eclectic Life Ins. Co. v. Fahrenkrug, 68 Ill. 463. In that case an agent employed by an insurance company to take applications for insurance took the same, and afterwards delivered the policy and collected the first half-yearly premium, his authority so far not being disputed, and he after-wards represented himself as having authority to receive the premium for the second half year before the same was due, and received the same, giving a receipt for both payments, and the assured, through her agent, on inquiry at the office of the company, was informed by a clerk then in charge that the payment was all right, and could not be refunded, and the company, after notice, never repudiated such payment and notified the assured thereof, until after the death of the party whose life was insured; it was held that such company could not avoid payment of the policy on the ground that the agent had no authority to receive the second payment. Also it was held that an insurance company will be bound by the acts of its agent if within the powers he is held out to the public as possessing. Also, that if a premium on a policy of life insurance be paid to, and accepted by an agent who is apparently authorized by the company to receive it, the payment will be sufficient, whether it be in conformity with the terms of the policy or not. The case is readily distinguished from the instant case, and the real question here is, What was Tubbs’ apparent authority?

Plaintiff’s counsel also cite Blake v. Insurance Co., 194 Mich. 589, and Power v. Insurance Co., 121 Mich. 364, neither of which is decisive of the question here involved.

There is no question that Tubbs was the agent of the company for the purpose of taking and submitting the application for insurance. The infirmity in the plaintiff’s case is that there was no evidence of his authority, either real or apparent, to waive the terms of the policy, and collect the premium. There was no evidence of any custom, or practice even, to so act, and certainly none of a waiver or ratification by the •defendant. ■ '

It would have been material and competent to have shown that defendant had waived the terms of the policy as to payment of the premium; but there was no evidence tending to show a waiver. The “apparent authority” of an agent is that which, though not actually granted, the principal knowingly permits the agent to exercise, or which he holds him out as possessing. Dispatch Printing Co. v. National Bank of Commerce, 109 Minn. 440 (124 N. W. 236, 50 L. R. A. [N. S.] 74).

Evidence of “apparent authority” of Tubbs to collect premiums was wholly lacking here. The two instances testified to were special casés, and not known to the assured.

In Cook v. Insurance Co., 84 Mich. 12, it was held that the acceptance of a policy of insurance which expressly negatives the right of the agent to waive or alter any of its conditions, estops the assured from setting up or relying upon any action on the part of the agent in opposition to such prohibition; citing Cleaver v. Insurance Co., 65 Mich. 527, 532. See, also, Mallory v. Insurance Co., 97 Mich. 416. Contracts of insurance are construed by the same rules as other contracts.

In Barry v. Insurance Co., 62 Mich. 424, it was.said by Chief Justice Campbell, speaking for the court:

_ “An agent can only bind a company where he has either real or apparent authority,” citing Security Insurance Co. v. Fay, 22 Mich. 467; Reynolds v. Insurance Co., 36 Mich. 131; Hartford Fire Ins. Co. v. Reynolds, 36 Mich. 502.

The trial court erred in that part of the charge above - quoted. It was to the effect that if Tubbs received the premium, that was payment to the company. Such unqualified charge was prejudicial error.

Counsel for plaintiff invoke the provisions of section 9305, 2 Comp. Laws 1915. It is an act defining the status of persons, soliciting life insurance, and reads as follows:

“Any person who shall solicit an application for insurance upon the life of another shall, in any controversy between the assured or his beneficiary, and the company issuing any policy upon such application, be regarded as the agent of the company, and not the agent of the assured.”

We are of the opinion that this statute is not pertinent here. There is no question here that Tubbs was the agent of the company in soliciting the insurance, and not the agent of the assured. The question is as to the scope of his agency, and whether he had authority to collect the premium, under the circumstances.

We had occasion to refer to this statute in Kane v. Insurance Co., 204 Mich. 357. We think that upon this record the trial court should have directed a verdict for the defendant.

The judgment below is reversed with costs to appellant, and a new trial ordered.

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

Bird, C. J.

(dissenting). I am of the opinion that the trial court,was right in charging the jury that:

“If you find by a preponderance of the evidence that Mr. Tubbs, the agent of the defendant who took the application of Mr. Randall for the insurance policy issued to him, was paid $17.00 in the latter part of October, 1916, at the home of Mrs. Horton in Detroit, by Mr. Randall to apply as payment on the premium of said policy, I charge you that the payments to Tubbs would be payment to the defendant insurance _ company, and the policy would not be rendered void, on the theory that the premium was not paid, and the plaintiff would be entitled to recover the face of the policy, $1,000.
“Now, you will notice I have said, if that payment was made to Tubbs, then it was a payment to the company, because I charge you, that Mr. Tubbs was the agent of the company, and if he was the agent that took the order for this policy, and the insured paid him the premium, that would be payment to the insurance company.”

The question, whether the premium was, paid by Randall to Tubbs, was one of fact made so by conflicting evidence. But it is said that if payment were made to Tubbs it would not bind defendant, as the contract provided it should be paid by the paymaster of the Grand Trunk Railway Company, the insured’s employer. The premium was not paid by the paymaster of the railway company for the very good reason that when it became due Randall was not in its employ and it owed him nothing. We'think it can be said, without doing violence to the contract, that it was not contemplated by either party that the provision for payment by the paymaster out of Randall’s wages should last or be in force any longer than his employment lasted. After the employment, was terminated, the situation was no different than it would have been had the contract never contained such a provision. If Randall wanted to keep the policy alive, it was then his duty to pay the premium to some agent of the company. He accordingly paid the same to the agent who solicited the insurance from him.

Proof that Tubbs solicited and secured the insurance made him the agent of the company, as between the company and the beneficiary, to accept payment of the premium. 2 Comp. Laws 1915, § 9305. This section provides:

“Any person who shall solicit an application for insurance upon the life of another shall, in any controversy between the assured or his beneficiary and the company issuing any policy upon such application, be regarded as the agent of the company and not the agent of the assured.”

It is said the section does not apply to this controversy. When the legislature says that it shall apply to any controversy between the insurance company and the beneficiary, I think it includes this controversy. An insurance company could hardly suspend the operation of this statute by a contract stipulation with the insured. If the stipulation as. to payment had any force after the employment terminated,' it should be construed as having been made subject to the provisions of this statute. The trial court was right in its view of the law, and the judgment should be affirmed.

Fellows and Kuhn, JJ., concurred with Bird, C. J.


source: Caselaw Access Project

author: BROOKE, J. Moore, J.

license: Public Domain

text:
    CHAUDIER v. STEARNS & CULVER LUMBER CO.
    1. Master and Servant — Workmen’s Compensation Act — Establishing Claim — Burden op Proof.
    The burden of establishing a claim for compensation under the workmen’s compensation act is upon those seeking the award.
    2. Same — Suicide—Accidental Death — Presumptions.
    Where claimant’s decedent died as the result of alkaline poisoning, caused by taking into the stomach a quantity of lye and wood ashes, and the inference that they were taken with suicidal intent is at least as reasonable as that they found entrance to the stomach accidentally, claimant may not recover under the workmen’s compensation law as for an accidental injury.
    3. Same — Presumptions.
    Where two inferences equally consistent with the facts arise out of established facts, one involving liability on the part of the employer under the act and the other relieving him from liability, the claimant must fail.
    Bird, C. J., and Moore and Kuhn, JJ., dissenting.
    Certiorari to Industrial Accident Board.
    Submitted April 15, 1919.
    (Docket No. 41.)
    Decided July 17, 1919.
    Mary Chaudier presented her claim for compensation against the Steams & Culver Lumber Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Southern Surety Company, insurer, bring certiorari.
    Reversed, and order vacated.

      B. H. Halstead, for appellants.

      Doyle & Barstow, for appellee.
    Certiorari to the industrial accident board. Claimant’s decedent, a man 42 years of age, was employed by respondent Stearns & Culver Lumber Company in its shingle mill vdiere he worked during the week. The lumber company maintained in connection with its business a large steel burner in which Was consumed the refuse from the mill. This burner was about 20 feet in diameter and 60 or 70 feet high. There were grates in the burner about level with the ground and underneath the grates an ash pit about 3 or 4 feet deep with a cement floor. • It was customary to permit the fire to go out on Saturday or to put it out in order that the ashes might be removed on Saturday night or Sunday. The work of removing the ashes from the burner had been performed by claimant’s decedent for many weeks prior to his death. On Saturday, June 30, 1917, he commenced the work of removing the ashes at about 6:30 p. m., and continued until about 1:30 Sunday morning. He then went home and slept until about 8 or 9 o’clock when he resumed his work at the burner. He workéd until about 2 o’clock Sunday afternoon, when he returned home, had his dinner, carried some potatoes to the field for his wife and at about 3 o’clock returned to the burner. He returned to his home some time before 6:30 Sunday evening, the exact hour being unknown as his wife was away. When she reached home at 6:30 she testified that he was lying on the bed and felt sick — felt like vomiting; that he seemed to sleep until 10:30 when she woke him up to try and have him undress and go to bed; that he moaned but did not seem to recognize her; that he was in a sort of stupor from then until 12 o’clock, at which time he got up and started to walk about the room seeming to be in pain. This lasted for about an hour during which time he fell to the floor. Claimant went for a doctor for him at 1 o’clock in the morning but was unable to secure medical attendance at that time. She did, however, secure a doctor at about 6 o’clock in the morning. Claimant testified that when she first saw her husband at 6:30 he seemed to be in a drunken state,—
    “I naturally thought when I came home at 6:30 and he was asleep, that during the afternoon he had met friends at the mill who had given him liquor.”
    The doctor upon examining him found no temperature and concluded that he was suffering from some stomach trouble. He administered an emetic and later washed his stomach out six times with about a quart of water each time. He found the stomach full of an alkali and about a teacupful of ashes. Upon further examination the doctor testified:

      “Q. That would kill a man if he got it in his stomach?

      “A. Yes, sir.

      “Q. In your judgment, he died from that?

      “A. Yes, sir.

      “Q. How did he get it in his stomach?

      “A. He might have had a pail of water and a good deal of ashes fell in, and in a thirsty condition he might have drunk that water.

      “Q. The stuff that you pumped out of his stomach was an alkaline poison derived from wood ashes?

      “A. Yes.

      “Q. Now, I suppose you are enough of a chemist to be able to say that the stuff that you found in using your stomach pump was a derivative of wood ashes, and in your judgment, was in sufficient quantities to cause his death?

      “A. Yes.

      “Q. Now, suppose a man had a pail of water to drink from, and some of those ashes had gotten into the water and he had not noticed it, and had drunk the water, would he have drunk enough water to kill him?

      “A. By drinking enough.

      “Q. I take it that stuff he had in his stomach was lye. You take leached ashes would make lye. That would kill a man?

      “A. Yes, sir.

      “Q. Suppose a man was working in those ashes, doctor, and got quite a lot of ashes in his mouth, in his nose and mouth and he naturally would if he were working in a lot of it — suppose he drank copiously of water — don’t you suppose he could drink enough water to create lye in his stomach?

      “A. I don’t think of it that way.

      “Q. How do you figure it got in?

      (‘A. I can’t tell. It got in in some way.”
    And on cross-examination he testified in part:

      “Q. Ordinarily a man doesn’t swallow any substance unless he wills it?

      “A. Ordinarily, no.
    “Q. Then the natural impulse, if a man gets something into his mouth that doesn’t have a pleasant taste, the natural impulse is to spit it out?

      (‘A. Yes, sir. * * *

      “Q. Do you think, doctor, that a man could swallow dry wood ashes alone?

      “A. I don’t know — I couldn’t tell. I imagine it. would require an effort; a considerable effort.

      “Q. Something like swallowing flour ?

      “A. Not as hard.

      “Q. The tendency to swallow dry ashes would be to choke ?

      “A. Yes, sir. * * *

      “Q. Then isn’t this a fair conclusion; that if a man got dry ashes into his stomach it would be through a positive effort of the will, and against the reactions of nature?

      “A. That would be my impression.

      “Q. Could only be gotten into his stomach by voluntary action on the part of the man?

      “A. I think so.

      “Q. And in spite of the efforts of nature to prevent them going down his throat?

      “A. Yes, sir.

      “Q. Do you suppose a man could swallow wood ashes at all without moistening them in some way?

      “A. I really don’t know.

      “Q. I suppose by the natural moistening that they would receive from the saliva?
    “A. I suppose so.

      “Q. How large a quantity did you find in this man’s stomach?

      “A. Of course, as I told you before, 1 couldn’t say the quantity, and I didn’t make a chemical analysis.

      “Q. What is your best judgment on it?

      “A. That is very hard to tell. ,1 washed him out six times and four times I got alkali; the first stronger than the second; the second stronger than the third; and the third stronger than the fourth.

      “Q. But I understand that you found ashes ?

      “A. Yes, I suppose as much as an ordinary tea cup?

      “Q. Were there enough ashes to produce alkali?’

      “A. It seems strange that there was more alkali than ashes. There was some discrepancy there.

      “Q. You don’t know how these ashes got into his stomach?

      “A. No, sir.

      “Q. Is it your judgment that the amount of alkali' that you found there must have beén generated outside of his stomach?

      “A. I don’t want to form a real opinion of that.

      “Q. Think you said that the amount of ashes you found in his stomach was not sufficient to form alkali ? That was the condition of his throat?

      “A. Well, his mouth and throat we didn’t examine very much for this reason, that he was unconscious, and dying, and I didn’t expect him to live as long as he did and we didn’t examine.

      “Q. Did you notice any indications in mouth or throat that an alkaline substance had come in contact with those tissues?

      “A. It would take a much stronger alkali to affect those tissues than to affect the lining of the stomach;

      “Q. You said something, you and Mrs. Chaudier, about him taking some poison from liquor?

      “A. We had some talk about whisky. He had been using some whisky and Mrs. Chaudier brought me a bottle, and I was going to examine the' bottle.

      “Q. What bottle?

      “A. The whisky bottle,

      “Q. He had been drinking that day?

      “A. I think I was told so.

      “Q. By Mrs. Chaudier?

      “A. We thought so, both of us.

      “Q. Was there some left in the bottle?

      “A. About a tablespoonful.

      “Q. Do you know from your examination whether he had been drinking liquor?

      “A. No, I couldn’t tell either way.

      “Q. The other condition was so much more pronounced, that you couldn’t say?

      “A. Yes, sir.

      “Q. What did Mrs. Chaudier say?

      “A. Well, she thought he had been drinking some that day.

      “Q. And showed you the bottle?

      “A. Yes, sir.

      “Q. You said, I think, doctor, that this man’s death might possibly be accounted for by his having drank water from a pail into which ashes had been accumulating. You think that might be?

      “A. I think so. He might have brought some water with him and set it in a corner. I can’t conceive of it in any other way.

      “Q. How many swallows of liquid would it require to get into this man’s stomach the amount of alkaline substance that you found there?

      “A. How many swallows?

      “Q. Yes.

      “A. Well, a dozen large swallows of that stuff would account for it.

      “Q. One swallow wouldn’t account for it?

      “A. No.

      “Q. You don’t know where the drinking supply was down there?

      “A. No, sir.

      “Q. What sort of a taste would an alkaline substance such as this have? How would it taste if a man put it in his mouth?

      “A. It would taste a little burning.

      “Q. Not like ordinary water?

      “A. No, sir.

      “Q. A man taking that would know he had something other than ordinary water?

      “A. Yes, sir; it would burn and taste nasty.”
    Claimant’s decedent died at about 3 o’clock Monday afternoon. One William Sterk, another employee of the respondent lumber company, testified that he had cleaned the ashes out of the burner about 25 times; that he usually took a jug of water with him from which he would frequently drink. He said that in drawing out the ashes he would get some in his nostrils and mouth but that it did not bother him. There was a tank about 60 or 70 feet from the burner in which there was running water all the time. Sterk testified that some of the men brought water to the mill in pails and some in jugs. The record does not disclose that claimant had a pail with him containing water on the night in question. The board, on appeal from an award by the arbitration committee, after reciting much of the testimony said:
    “It seems very clear that in some way the man got a lot of ashes into his stomach. Whether a lot of ashes fell into a pail of water and became dissolved and the substance was drunk by the deceased, or whether he got qüantities of ashes into his mouth and nose and then drank quantities of water and washed the ashes down does not appear, but it seems very clear that the ashes got into his stomach in one of these ways. It is, of course, possible that the man might have deliberately put ashes into water and drank the substance and thus committed suicide, but there is no proof to that effect. The presumption of the law is against suicide in this kind of a case, and in favor of the theory of accident. We are impelled to hold that this man did suffer an accidental, personal injury in being accidentally poisoned by the ashes he was handling, and that said accidental, personal injury arose out of and in the course of his employment with the employer, and that said accidental, personal injury was the proximate cause of his death.”
    Counsel for respondents claim that the facts proven are not capable of supporting either of the theories advanced by the board; that there is no proof whatever tending to show that claimant’s decedent came to his death through any accidental, personal injury received out of and in the course of his employment; that the manner in which decedent came to his death was a matter of pure conjecture and that the facts proven are as consistent with nonliability of respondents as with liability. It is claimed further that the only conclusion that can legitimately be drawn from the evidence is that the man committed suicide or was drunk.
   BROOKE, J.

(after stating the facts). The facts upon which the industrial accident board based its conclusion that claimant’s decedent died from the effects of an accidental, personal injury arising out of and in the course of his employment are extremely meager. They m^,y be briefly summarized as follows:

(1) During the 23 hours preceding his death decedent had been engaged at intervals in cleaning out wood ashes from the burner.

(2) At 6:30 in the evening he was found by claimant lying upon his bed fully clothed in a comatose condition which continued until 6 o’clock the next morning with the exception of about an hour at midnight when he walked about the room being apparently in great distress.

(3) The physician called to attend him at 6:30 in the morning with the aid of a stomach pump removed from the stomach of the decedent a large quantity of alkaline liquid and about a teacupful of wood ashes.

(4) Decedent died from alkaline poisoning attributable to the presence in the stomach of lye and ashes.

The following conclusions would seem to- be warranted by the record: Plaintiff’s decedent did not die as the result of an occupational disease; in other words, the lye and ashes found in his stomach did not get there through the performance of his work in the ordinary way. This fact seems to be made clear by the testimony of the witness, Sterk, who himself had removed the ashes from the burner at least 25 times. It is likewise to be noted that the work was done but once each week so that the deleterious effect of the ashes taken into the stomach in the ordinary course of the employment, if any, could scarcely be said to be cumulative from period to period.

There is no evidence tending to show that on the night in question plaintiffs decedent had with him a pail of water into which large quantities of ashes might have fallen in the course of the work. There is no evidence that decedent drank from a pail of water heavily impregnated with ashes. There is evidence of the physician to the effect that the liquid taken from the man’s stomach would be: “A little burning,” that: “It would burn and taste nasty,” and that:

“To swallow something that hasn’t a pleasant taste involves an effort of the will.”

Counsel for claimant assert that the foregoing facts are sufficient to support the inference indulged in by the board to the effect that decedent swallowed the ashes and alkaline liquid accidentally. They point out that, it being undisputed the lye and ashes were in the stomach and caused his death, the only possible inferences are:

(1) That they were taken into the stomach by the decedent accidentally, or

(2) That they were so taken wilfully and with suicidal intent and they rest upon the presumption against suicide, citing Wishcaless v. Hammond, Standish & Co., 201 Mich. 192.

This position is met by counsel for appellant with the argument that the presumption arises only where the facts and the logical deductions therefrom point with equal cogency to suicide or accidental death and that in the case at bar the accidental theory is negatived by the testimony of the doctor that the substance found in the stomach of the decedent could not have been taken by decedent without a conscious effort because of its unpleasant taste. The rule to be adopted by the board is set out clearly in the case of Ginsberg v. Adding Machine Co., 204 Mich. 180, in the following language:

“It is the province of the board to draw the legitimate inferences from the established facts and to weigh the probabilities from such established facts. Wilson v. Phœnix Furniture Co., 201 Mich. 531. But the inferences drawn must be from established facts; inference may not be built upon inference, possibilities upon possibilities, or inferences drawn contrary to the established facts, contrary to the undisputed evidence. If an inference' favorable to the applicant can only be arrived at by conjecture or speculation the applicant may not recover. So if there are two or more inferences equally consistent with the facts, arising out of the established facts, the applicant must fail” — citing many cases.

Applying that rule to the facts in the case at bar and in further consideration of the rule which places the burden of establishing the claim for compensation on those seeking the.award, we are constrained to the view that the inference that the liquid and ashes found in decedent’s stomach and which caused his death were taken into the system by the decedent with suicidal intent, is at least as reasonable as that they found entrance to the stomach accidentally, and where two inferences equally consistent with the facts arise out of established facts, one involving liability on the part of the employer under the act and the other relieving him from liability, the applicant must fail.

The award must be vacated.

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

Moore, J.

(dissenting). I do not agree with the conclusion reached by Justice Brooke. In Wishcaless v. Hammond, Standish & Co., 201 Mich. 199, there is a collation of authorities to the effect that the presumption is against suicide. We have often held that if there is competent testimony upon which to base the award we would not disturb it. Section 5465, 2 Comp. Laws 1915; Vogeley v. Lumber Co., 196 Mich. 516, and cases cited therein.

When we consider the circumstances ünder which Mr. Chaudier did his work, his conduct at his home, and the condition found by the doctor, in connection with the presumption against suicide, we think there is testimony to justify the award, and that it should be affirmed, with costs to claimant.

Bird, C. J., and Kuhn, J., concurred with Moore J.


author: Stone, J.

text:
    RUDSKI v. DETROIT WIRE SPRING CO.
    Master and Servant — Workmen’s Compensation Act — Certiorari — Answer—Inconsistent With Order.
    Where the return of the industrial accident board in certiorari proceedings to review an order of said board denying the petition of the employer to be relieved from further payments under the workmen’s compensation law, was inconsistent with the order entered, the return showing that the board simply meant to keep the case open for future developments and not to require the payment of any compensation, whereas the order entered provided for further payments in accordance with an agreement entered into previously by the employee and employer, the case will be remanded to the board with instructions to enter an order in compliance with its answer in the return.
    Certiorari to Industrial Accident Board.
    Submitted April 22, 1919.
    (Docket No. 81.)
    Decided July 17, 1919.

      Wasye Rudski presented his claim for compensation against the Detroit Wire Spring Company for injuries received in defendant’s employ. From an order denying a petition to discontinue payments for partial disability, defendant and the General Accident, Fire & Life Assurance Corporation, Limited, insurer, bring certiorari.
    Reversed, and remanded.

      Kerr & Lacey, for appellants.

      Solomon G. Papernó, for appellee.
   Stone, J.

The applicant entered the employment of the appellant, the Detroit Wire Spring Company, as a knotting machine operator about two years prior to August 15, 1917. On that date, while performing his duties as such operator, he received an accidental injury, to wit:

“Left eye cut by wire to left of center injuring iris, and penetrating lens enough to cause exudate of the lens fluid.”

Necessary medical aid was provided by appellants, and inasmuch as claimant was disabled for a period in excess of 15 days, an agreement in regard to the payment of compensation was duly executed whereby appellants were to pay to said employee compensation at the rate of $10 per week during period of total disability and at the proper rate per week during partial disability, if he became legally entitled to compensation for partial disability; all in accordance with the provisions of the Michigan workmen’s compensation law. This agreement was duly filed with the industrial accident board, and approved by the latter on October 10, 1917. There is no claim that applicant received any other injury as a result of accident than that above described.

Compensation was paid in accordance with the agreement from August 15, 1917, to December 19, 1917, —a period of 18 weeks. During this interval appellants provided claimant with medical aid, and had him attended by several disinterested eye specialists who recommended that an operation should be performed to remove cataract from the injured eye. Appellants acted in accordance with the recommendation of said doctors, and an operation to remove cataract was performed by Dr. Grant. Within due course thereafter appellants were advised by Dr. Grant that the cataract operation was successful, and that vision in the injured eye was substantially normal. Also that claimant’s condition was such that he was able to return to work for the Detroit Wire Spring Company, and perform the same duties as before said accidental injury. Appellants after being thus advised had a conference with claimant, and in order to determine the true situation had-Dr. Campbell make a careful and complete examination of the injured eye. He, after giving the case necessary attention, confirmed Dr. Grant’s report, by advising that the cataract operation had been entirely successful and that vision in the injured eye, with an adjusted lens was almost normal, being between 80% and 90% of normal, and was a very good result under the conditions.

Claimant returned to his work with the Detroit Wire Spring Company on December 10, 1917, and it is claimed by appellants that since his return he has been doing the same work as before the injury, and is receiving the same wages. He, however, refused to sign a settlement receipt, and appellants filed a petition with the industrial accident board on May 1, 1918, to be relieved from further payments of compensation, and for such other and further relief as was just and proper.

On May 29, 1918, claimant filed a petition asking for compensation for the loss of the eye involved. Testimony in support of, and in opposition to, both petitions was submitted to the board in the form of depositions. In accordance with an agreement between counsel for both parties, Dr. Campbell made a further examination of claimant under date of July 27, 1918, and forwarded his report with reference thereto direct to the board under date of August 9, 1918.

Hearings on both petitions were held before the board, and on August 30, 1918, the board entered the orders complained of, as follows:

“Order denying appellee’s petition. A petition having been duly filed by the applicant in the above entitled cause, praying that he be awarded compensation as for the loss of an eye instead of for disability, and the same having come on for hearing before the board on July 9, 1918, and proof having been filed, and due consideration being had thereon, the board finds the applicant has not lost an eye; and it is ordered that said petition be, and the same is hereby denied, and that applicant is entitled to receive compensation in accordance with the terms of the agreement approved by the board October 10, 1917.”
“Order denying appellants’ petition. A petition having been filed by respondents in the above entitled cause, praying for reasons' therein set forth that they be relieved from making further payments of compensation in the case, and the same having come on for hearing before the board on July 9, 1918, and proof having been filed, and due consideration being had thereon; it is ordered that said petition be, and same is hereby denied, and applicant is entitled to receive compensation in accordance with the terms of the agreement in regard to compensation, approved by the board on October 10, 1917.”

On September 28, 1918, appellants filed a petition in this court for the writ of certiorari, and assigned error as follows:

(1) Industrial accident board did not have the jurisdiction; power or authority, to order appellants to pay compensation in accordance with the terms of the disability agreement approved by the board, inasmuch as appellee had returned to his employment, was doing the same work and receiving the same wage as at the time of the accidental injury, and that he was not either totally or partially disabled.

(2) The action of the industrial accident board in entering the order complained of is contrary to the terms and conditions of the Michigan workmen’s compensation act, so-called.

After the petition for the writ was filed in this court, and before action thereon had been taken, it seems to be conceded that the applicant obtained from the board a certified copy of the orders above set .forth, upon which he obtained a judgment in the circuit court for the county of Wayne for $430 against the appellants covering 43 weeks, from the 17th day of December, 1917, to the 17th day of October, 1918. Subsequently, by stipulation of counsel, this judgment was vacated. We refer to this subject as indicating the understanding which both the board .and the applicant must have had, as to the force and effect of the orders of the board of August 30,1918.

In its return to the writ of certiorari the industrial accident board, among other things, answered as follows:

“And said board further returns in this connection that said order did not mean that said respondents were required to pay any compensation whatever to applicant during any time during which he was not disabled as a result of the accidental personal injury he received from earning full wages, in the occupation in which he was injured, but that upon the testimony submitted, the board did not feel justified in concluding that the injurious effects of the injury were over. The testimony was in such condition that the board could not tell whether the injured employee might not in the future, and within the limitations of time provided for in the workmen’s compensation law, lose his eye entirely as a result of the accident, and the board could not tell whether during the limitation of time fixed in the workmen’s compensation law, the injured employee might not be partially or totally disabled from earning and thus entitled to compensation. In other words, the order entered by the board merely meant that the case should not be finally closed by order of the board, but that it should remain open pending developments. While it so remains open, the respondents are not required to pay compensation to the injured employee to cover any time during which he is not prevented by the accidental personal injury from earning full wages in the occupation in which he was injured. The agreement referred to in the said order was to the effect that respondents should pay applicant ten ($10.00) dollars per week during total disability, and at the proper rate per week during partial disability if he became legally entitled to compensation for partial disability, or in accordance with the provisions of the workmen’s compensation law. That agreement did not mean, in the judgment of the board, that applicant should be paid any compensation whatever (unless for the total loss of the eye) during any time during which his earning capacity was not diminished as a result of the accidental personal injury he received. The testimony convinced the board that the injured employee still suffered a disability caused by the accidental personal injury he received, but that at the time the testimony was taken he was earning as much wages as when he was injured and, therefore, not at that time entitled to be receiving compensation. The board entered the order it did enter because it believed that the testimony taken as a whole would not warrant the board in finding that the disability of the injured employee on account of the accident was at an end, but the order does not require the respondents to pay the injured employee while he is able to earn as much wages as he was earning when he was injured.”

In our opinion the return of the industrial accident board is inconsistent with its orders awarding compensation in accordance with the agreement, above set forth. Conceding that there was testimony which justified the board in holding the case open for further developments, its orders were not warranted; and its return that it did not mean that appellants should pay compensation to the injured employee to cover any period of time during which he was not prevented by the accidental, personal injury from earning full wages in the occupation in which he was injured, is inconsistent with its order. It is apparent that the said orders of the board, as acted upon by the claimant, are inconsistent with this return and should not stand. Hirschkorn v. Fiege Desk Co., 184 Mich. 239.

So much of the orders of the board above set forth as direct payment in accordance with the agreement are vacated and set aside, and the case will be remanded to the industrial accident board with instructions to enter an order in compliance with its answer in the return to the writ of certiorari.

Reversed, and remanded.

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


text:
    SCHIMMEL v. DETROIT PRESSED STEEL CO.
    Master and Servant — Workmen’s Compensation Act — Loss of Finser — Disability—Compensation.
    Where an employee suffered the loss of the index finger of his left hand and a laceration of the second finger and palm of the hand, incapacitating him for work, at his former employment as an electrician, he was entitled, under the workmen’s compensation act, to pay for the period of disability subsequent to the expiration of the specific time for the loss of a hand.

      Certiorari to Industrial Accident Board.
    Submitted May 1, 1919.
    (Docket No. 63.)
    Decided July 17, 1919.
    Carl Schimmel presented his claim for compensation against the Detroit Pressed Steel Company for injuries received in defendant’s employ. From an order denying a petition to discontinue payments for total disability, defendant and the American Mutual Liability Insurance Company, insurer, bring certiorari.
    Affirmed.

      Charles H, Rutile (Guy W. Moore and Hal P. Wilson, of counsel), for appellants.

      Payne & Payne, for appellee.
   Stone, J.

On October 31, 1917, the claimant, who was .employed by the appellant Detroit Pressed Steel Company, in the capacity of electrician, sustained an accidental, crushing injury to his left hand, when said hand was run over by an electric traveling crane. The nature of the claimant’s work was such as required him to work in elevated places, requiring him to maintain his balance by whatever means were near at hand, while he carried on his work. He was engaged in placing conduits between certain buildings of said appellant, and was required for the time being to work near a crane runway. While working in that position, and with no other means of support, he grasped one rail of said crane runway, or allowed his left hand to rest thereon to steady himself. While in that position, an electric traveling crane proceeded along said runway without giving a warning, and upon and over his left hand, necessitating the amputation of the index finger, together with the third metacarpel bone thereof, a severe crushing and loss of the tendon — flexor tendon — of the second finger, and a severe laceration of all of the tendons of the palm. After being totally disabled for over one month, claimant returned to work for said appellant and was employed in an entirely different line of employment, namely, that of foreman in the tool. crib. At the time of the accident his wage was 45 cents an hour, while at the time of the hearing before the industrial accident board, a man in the same employment was paid from 85 cents to one dollar an hour. Claimant’s wage in the tool crib was 55 cents an hour. But it was his claim that he could no longer follow any part of his former employment, that of an electrician.

The effect of the accident upon claimant, at least so far as his former employment with this respondent is concerned, was clearly stated by Frederick May, chief electrician for the respondent:

“Cross-examination.
“Q. If he had partial loss of the second finger and the palm of the hand there was injured, he couldn’t, grip ?
“A. Of course, eventually I would find that out.
“Q. If you found that out would you put him back on that work?
“A. I wouldn’t put him back, it is certainly true, after I found that out.”
Claimant, among-other things, testified as follows:
“Q. Now, was it necessary to use- both hands?
“A. I could never have done the work I was 'doing with one hand.
“Q. At any time would it be- necessary to hold anything in position with one hand and tighten it up with a wrench or pliers in the other hand?
“A. I have had to work for half an hour or three-quarters of an hour at a time, and hang on with one hand and work with the other.
“Q. Here in this plant?
“A. Yes, sir. * * *
“Q. Have you ever tried to work at the occupation you were engaged in at the time of the accident?
“A. I have tried to use my hands in several lines.
“Q. In what lines?
“A. I mean in several branches of the electrical. I have tried to repair my wife’s electric iron which is the simplest thing in the world to repair, and I couldn’t hold the small wires sufficiently tight enough with the left hand, to skin it with the right hand. I can’t handle the knife in my left hand at all.”

A physician called by the claimant expressed the opinion that the claimant will not be able to use the injured hand in heavy work and heavy lifting. He testified as follows:

“Q. Would you say the hand was permanently injured?
“A. No, well, permanently injured in certain regards.
“Q. In what regard, doctor?
“A. I don’t believe with that scar over the nerve, he will ever regain the proper function of that middle finger, I don’t believe.
“Q. What would you say as to his capacity to grip ?
“A. That is what I said before. I tested it several times, of course, and I formed the opinion that the function was just about 50 per cent, of normal strength.
“Q. And in your opinion with anything that would require a strength of grip he would not be able to' do it?
“A. I don’t think so.”

At first an agreement in regard to compensation was entered into, by the terms of which said respondent agreed to pay applicant 35 weeks’ compensation at $10 per week for the loss of the left index finger.' This agreement was never approved by the industrial accident board. Although payments were being made to claimant under this agreement, yet he filed notice of claim for injury, and on May 23, 1918, a committee of arbitration awarded claimant compensation for 35 weeks at $10 per week for loss of index finger; and, in addition thereto, $10 per week for disability subsequent to the 35 weeks’ period. Payments were continued by respondent, and accepted by claimant during 34 weeks, but claimant refused to accept the payment for the 35th week or to sign a settlement receipt, claiming that because of the condition of his hand he was unable to perform the same duties as prior to the accident.

Respondent American Mutual Liability Insurance Company filed a petition with the board praying to be relieved from further liability under the award of the committee on arbitration, it appearing that applicant had returned to work for the respondent, in charge of the tool crib, at 55 cents per hour, plus a ten per cent, bonus, and that he was able to perform his former duties, although he never actually attempted so to do.

Testimony was taken by the parties hereto, and after consideration by the industrial accident board an order was entered December 24, 1918, denying respondent’s petition, and ordering the payment of $10 per week for total disability subsequent to June 26, 1918, the date of the expiration of the 35 weeks period. It is this order of the industrial accident board that this court, upon certiorari, is asked to review. That order continuing compensation reads as follows:

“A petition having been filed by the respondents in the above entitled cause, praying for reasons therein set forth that they be permitted to discontinue payments of the compensation in the case as of July 3, 1918, and the same having come on to be heard before the full board on November 20, 1918, and proofs having been filed and due consideration having been had thereon; the board finds as a fact from the entire files and testimony in the case that said applicant has been since the date of the accident, and was at the time his deposition was taken on November 18, 1918, totally incapacitated as an electrician, the employment in which he was engaged when injured, and is entitled to receive compensation in accordance with the award of the committee of arbitration, dated May 23, 1918, viz.: At the rate of ten dollars ($10.00) per week for a specific period of thirty-five weeks, as for the loss of the index finger of applicant’s left hand, and at the proper rate during any disability, whether total or partial, applicant may suiter, in his usual employment, subsequent to the thirty-five weeks’ period mentioned, because of injuries to his left hand, apart from the amputated index finger.
“It is therefore ordered and adjudged that said applicant is entitled to receive and recover from said respondents compensation at the rate of ten dollars ($10.00) per week, from the end of the period covered by the last payment thereof, June 26, 1918, up to and including the date of the taking of his deposition, November 18, 1918, in all two hundred and five dollars ($205.00), which amount shall be paid forthwith and receipt filed with the industrial accident board, it appearing from the files that one week’s compensation, or $10.00, will complete the thirty-five weeks’ period mentioned herein, and the remainder of the $205.00 will be compensation as for total disability resulting from injuries to applicant’s left hand apart from the amputated index finger.
“It is further ordered that from and after November 18, 1918, applicant is entitled to receive and recover from said respondents, compensation at the rate of ten dollars ($10.00) per week during the period of his total disability in the employment in which he was engaged when injured; and should such disability become partial, then applicant shall be compensated at a rate equal to one-half the difference between the amount he was earning per week when injured, and any lesser amount he may thereafter be able to earn in the same employment, during the continuance of such partial disability.”

Appellants state in their brief that the only question presented by the record arises out of the failure and refusal of the industrial accident board in its order to properly limit compensation to the amount specified by the workmen’s compensation act, for the injuries applicant suffered, to wit: “the loss of the index finger of the left hand and an injury to the palmar surface of the same hand.” Attention is called to the provision contained in section 10, part 2, of the workmen’s compensation act (2 Comp. Laws 1915, § 5440), which reads as follows:

“In no case shall the amount received for more than one finger, exceed the amount provided in this schedule for the loss of a hand.”

It is the claim of appellants that under the authority of King v. Davidson, 195 Mich. 157, and Lovalo v. Michigan Stamping Co., 202 Mich. 85, the order of the industrial accident board should be so modified as to limit respondents’ liability to a period not exceeding 150 weeks, as for the loss of a hand. We are unable to agree with counsel for the respondents in this contention.

An examination of King v. Davidson, supra, shows that the issue was whether in allowing compensation for the loss of three fingers the compensation should be limited to 20 weeks, being the longest period allowed for the loss of either of the fingers involved, or whether the period of payment should embrace the aggregate of 50 weeks, being determined by adding together the time allowed for the loss of each of the fingers involved. This court, being of the opinion that the loss of three fingers involved greater disability than the loss of one finger, allowed for the aggregate amount of 50 weeks. We think that case readily distinguished from the instant case.

Referring to the Lovalo Case, the industrial accident board, in its return to the writ of certiorari herein, expressed its conclusion that that case was not applicable to the facts in the instant case, as in the latter only the index finger was amputated. It said:

“The other injuries were caused by a crushing and burning of the fingers and hand and by the destruction of the tendons of some of the fingers. The board concluded that the Lovalo Case applied to amputations resulting from injuries, and not to a case where only one finger was amputated and the remainder of the hand was injured or destroyed through crushing or burning or from a destruction of the tendons. The board, under the order made, left the case open so that the interested parties could come before the board from time to time if they found it necessary, and the board could then make such orders as the future might determine it was proper to make. The board knows of no theory upon which it would be justified in awarding the applicant compensation for 150 weeks as for the loss of his hand, and the board knows of no theory upon which it would be justified in holding that he might not be entitled to recover more than 150 weeks if the future shall determine that his incapacity lasts long enough to entitle him to compensation for more than that time.”

An examination of the Lovalo Case shows that there the applicant was contending for compensation for 150 weeks, Justice Steere, in the opinion, stating:

“Appellee contends that he should receive compensation for 150 weeks for the loss of the entire hand, or that the industrial accident board’s order should be affirmed.”

Here the claimant is asking that compensation shall continue during the period of disability as that disability shall from time to time appear. Claimant’s position in this court is that the statute does not, under the specific disability section, provide for the loss of use of a hand, except in so far as that loss of use tends to, or does actually, affect the ability of the injured servant to earn in the same employment in which he sustained his injury.

Attention is called by claimant’s counsel to section 9, part 2 of the act (2 Comp. Laws 1915, § 5439), also to section 11, part 2 (2 Comp. Laws 1915, § 5441), and to Foley v. Railway, 190 Mich. 507, and Jameson v. Walter S. Newhall Co., 200 Mich. 514, to the point that the test of disability lies in the capacity to earn in the same employment in which the employee was injured. Reference is also made to the language of this court in Jacobs v. Glasser & Hoffman, 200 Mich. 473, 478, and Green v. Buick Motor Co., 201 Mich. 86.

In the last-cited case, the claimant, while operating a punch press, sustained an injury which so severely lacerated the third and fourth fingers of his left hand that it was necessary to ampütate them. The second finger was also lacerated, but was not amputated. Subsequently, claimant entered into a written agreement with respondent insurer in which it was stated as to the accident:

“While blanking gas tank support flanges one stuck in die and while knocking same out punch came down and cut off third and fourth fingers of the left hand at second joint.”

This agreement was approved by the industrial accident' board. Subsequently claimant regularly filed and served notice of claim for injury, which he stated as follows:

“The loss of the third and fourth fingers, also laceration of second finger.”

The claimant filed with the industrial accident board a petition alleging that in addition to the loss of the third and fourth fingers, he had partially lost the use of the second finger of his left hand; that he had been compensated for the loss of the third and fourth fingers, but that he had received no compensation for the injury to the second finger, and he therefore prayed that the case might be reopened and he be allowed further compensation. The board made an order granting said petition; and, after a hearing, it was decided that said claimant was entitled to compensation amounting to one-half the difference between his average weekly wages before the injury and the average weekly wages he was able to earn thereafter. This court found that there was evidence in the record to sustain the finding of the board, and also testimony showing that if it had not been for the injury to the second finger applicant could have done the work he had done previous to the injury, but was then unable to do so because of the injury to the second finger, and the decision of the board was affirmed by this court.

We are of the opinion that, under the authority of the cases cited, the claimant is entitled to compensation as granted by the industrial accident board. As this court said in Limron v. Blair, 181 Mich. 76:

“The statute speaks in terms of disability. * * * When the period of disability .ends, compensation ceases.”

An examination of the record shows that there were ample facts before the board upon which to base its findings, and, no error in the record appearing, the order of the board is affirmed.

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


author: Ostrander, J.

text:
    KIRCHNER v. MICHIGAN SUGAR CO.
    1. Master and Servant — Workmen’s Compensation Act — Not a Judicial Proceeding — Pleadings.
    A proceeding under the workmen’s compensation act before the industrial accident board is not a judicial proceeding and there are, strictly, no pleadings.
    2. Same — Industrial Accident Board Trier oe Facts.
    The board, in administering the workmen’s compensation act, acts principally as a trier of facts.
    3. Same — Amendment of Statute — Applicability.
    The provisions of Act No. 41, Pub. Acts 1917, amending the workmen’s compensation act, are not applicable to an accident occurring in 1916.
    4. Same — Pending Proceedings — Power to Correct Mistake.
    While the matter of compensation is pending before the board, it has power to so limit payments, by its orders, that the statute sum, no more, no less, shall be paid and received, and may correct any mistake in said amount.
    5. Same — Rights After Termination of Period.
    Where the period of payment under the agreement has ended, and all payments have been made, whether either party may have recourse against the other, in.case of mistake in the amount of payments, by action of the industrial accident board or otherwise, — gucere.
    6. Same — Rate of Compensation — Correction of Mistake.
    Where an employee of a sugar company at the time of his injury was earning $3 a day for seven days a week, but the occupation was seasonal, approximating 90 days each year, an agreement mistakenly entered into by the .employer and employee for the maximum compensation of $10 a week which was paid for over a year, was properly modified by the industrial accident board to the sum of $4 a week for the period of claimant’s disability, dating from the day of the accident, in conformity with the statute.
    Certiorari to Industrial Accident Board.
    Submitted April 23, 1919.
    (Docket No. 87.)
    Decided July 17, 1919.
    Theodore Kirchner presented his claim for compensation against the Michigan Sugar Company for injuries received in defendant’s employ. From an order granting a petition of defendant and the State Accident Fund, insurer, for the modification of the award, plaintiff brings certiorari.
    Affirmed.

      R. L. Crane, for appellant.

      Kerr & Lacey, for appellees.
   Ostrander, J.

Claimant was employed as yard foreman by the Michigan Sugar Company at its factory at Carrollton, Michigan. He was injured. He was earning three dollars a day seven days in the week. The State Accident Fund was the insurer of the Michigan Sugar Company. An agreement for compensation was made between the commissioner of insurance and the claimant, which provided for the payment to claimant, of ten dollars per week during disability. This was approved by the industrial accident board. Accordingly, compensation was paid from date of accident, November 16, 1916, to March 4, 1918, when the commissioner of insurance, by petition, asked to be relieved from further payments, alleging he had been informed and believed that claimant had fully recovered. It was also set up that claimant had been employed at labor for wages in the fall of 1917, and it was asked that for the period he was employed he refund the money paid from the State accident fund. After a hearing, the industrial accident board, June 20, 1918, made its order denying, generally, the relief prayed for, but granting relief as follows:

“It is further ordered that as respondents paid compensation to applicant during the two months while he was working for the city of Saginaw, and during the time from October 11, 1917, to December 7, 1917, during which time applicant was not entitled to compensation, therefore respondents shall have the right to set off the compensation erroneously paid to cover said periods against any other compensation to which applicant is now or shall hereafter be entitled under the terms of this order.”

This order was not reviewed. On August 20, 1913, the defendants in certiorari filed with the industrial accident board another petition, alleging therein that claimant was fully recovered and praying also for a modification of the agreement for compensation. Modification of the agreement and demand for refunding of payments made were asked for upon the ground stated in the said petition as follows:.

_ “6. Your petitioners represent further that at the time said claimant received the accidental injury heretofore referred to, that his employment with said respondent and petitioner, the Michigan Sugar Company, was what is known and designated under the law of this State, as irregular, or seasonal employment, that said claimant’s employment with said respondent and petitioner Michigan Sugar Company was not continuous inasmuch as the operations of the latter, and in which said claimant was employed, were carried on for a period not to exceed one hundred and twenty (120) days, iii the course of a year’s time.
“Respondents and petitioners also show that the compensation agreement heretofore referred to, and under which all payments have been made, is inapplicable to the situation presented in the instant case, and that said agreement was executed and payments thereunder were made through mistake and misunderstanding on the part of said respondents and petitioners, that as a result thereof, said claimant has received compensation far in excess of the amount he is, legally or equitably entitled to receive; that the agreement in regard to compensation should be modified, the amount said claimant was justly entitled to receive should be computed in accordance with the terms and provisions of the compensation law, and the construetion placed thereon by the honorable Supreme Court of the State of Michigan. Also that said respondents and petitioner should be entitled to receive and recover from said claimant, the amounts which were paid to him through aforementioned mistake of law and fact.”

There was a hearing and thereafter a finding and final order, which order the claimant reviews here. Certain recitals and conclusions appearing in the order are:

“The board finds as a fact from the entire files and testimony in the case that the agreement approved December 21, 1916, was entered into by respondents through a mistake, and that said agreement provides for compensation in excess of the amount for which said respondents are liable; that the employment in which applicant was engaged was seasonal, and in computing the compensation to be paid said applicant the only wages that could be considered were those earned by applicant during the period said respondent’s plant was in operation, said period being approximately 90 days each year; that said applicant was earning three dollars ($3.00) a day, employed seven (7) days a week, and that when the compensation in this is computed properly said applicant should receive as for total disability four dollars ($4.00) per week instead of the amount specified in the agreement on. file; that said respondents have the right to set off the moneys, viz.: four dollars the proper weekly rate of compensation, viz.: four dollars ($4.00), and which the applicant' was not entitled to receive against the compensation to which the said applicant is now or may hereafter be entitled under the terms of this order until the total amount of moneys overpaid is consumed. The board further finds that said applicant is at the present time totally disabled in the employment in which he was engaged when injured and that said applicant should receive compensation at the rate of four dollars ($4.00) per week during the period of such total disability.
“It is therefore ordered and adjudged that said petition should be and the same is hereby granted so far as the modification of the agreement is concerned, and that weekly rate of compensation should be and the same is hereby fixed at four dollars ($4.00) during the period of applicant’s total disability, dating from the day of the accident November 16, 1916; and that the total sum overpaid by said respondents shall be applied on the future compensation payable to said applicant until such overpaid amount is entirely consumed.”

The position of plaintiff in certiorari is shortly stated in his brief as follows:

“The petition asks defendants be entitled to receive and recover from said claimant the amounts which were paid to him through aforementioned mistake of law and fact.
“What mistake? Who made it? Are they mistakes of law or fact? Upon what facts are these conclusions in pleading made? Taking, out the ‘fact’ found by the board, that claimant is and has been totally disabled by the accident, what fact is pleaded or proven ■to warrant the order of November, 1918? Nothing. It is too fundamental for doubt, that in all judicial proceedings the pleader must state facts clearly and broad enough to sustain proofs of the claims alleged, and establish them. In no pleading should one be required to be more definite and specific than in asking to be relieved from his agreements. If defendants claim mistake in fact — (in absence of fraud) — they should be required to plead properly and then establish by proof that, the agreement should be avoided through mistake of fact. The only claim in either petition of defendants is that claimant had recovered. The board settled that issue in claimant’s favor. Disability is established by the agreement and by two orders of the board. This point covers the facts and reduces the claim of defendants to one of law. This claim is not pleaded, except by inference, and cannot avail, because mistakes of law are not sufficient to impair contract obligations.”

It is also claimed for him that the provisions of Act No. 41, Public Acts of 1917, are controlling here.

Of course, the proceeding before the industrial accident board is not a judicial proceeding and there are, strictly, no pleadings. The board is set up to administer the compensation law, in doing which it acts, principally, as a trier of facts. It did not, in the first instance, in this case, determine the facts. The parties agreed that there had been an accident, that claimant was then totally disabled, and was entitled to compensation. Without any fraud, so far as is claimed or disclosed, upon the part of either, the rate of weekly compensation was fixed at the maximum because claimant’s weekly wages were more than twice the amount of the statute maximum. But they were mistaken in supposing that claimant was entitled to receive one-half his weekly wages, but not more than ten dollars. They were mistaken because, while the Michigan Sugar Company employed men all of the year, it employed many more men for a brief season only, the season of the campaign. Claimant was not employed by the year, but for the campaign only. He had no such employment at anf other time. His employment, yard boss, was peculiar to the work of the campaign. He is claiming that he is still disabled, not because he cannot do work, he admits in his testimony that he has done and can do many things, but because he is still disabled from doing the work which that particular employment required. The average season for the employment is 90 days, his wages were three dollars a day. Beyond these, there are no factors which may be properly used in applying the statute to ascertain what his average annual earnings in that employment were. The industrial accident board determined, and with their computation, according to the theory stated, no fault is found, that claimant’s average weekly wage was less than four dollars.

There is evidence to sustain the findings and conclusion of the board. The law as announced in Andrejwksi v. Wolverine Coal Co., 182 Mich. 298 (L. R. A. 1916D, 724), supports the final conclusion and order of the board. The amendment of the law of 1917 (Act No. 41) is not applicable, because the accident in question occurred in 1916.

But if the agreement of the parties, though made by mistake, is conclusive, compensation must still be paid at the agreed rate. We think it is not conclusive. The purpose of the compensation law is compensation at rates which the law itself, directly or indirectly, but certainly, fixes. Claimant is entitled to receive, and his employer is obligated to pay, no more and no less than the statute compensation. We are not called upon to decide whether an agreed but a too large or a too small compensation having been paid by agreement and the period of payment having ended and all payments having been made, by commutation or otherwise, either party may have recourse against the other by action of the industrial accident board or otherwise. But so long as the matter is depending before the board we are of opinion that in the due administration of the law it has power to so limit payments, by its orders, that the statute sum, no more, no less, shall be paid and received, and to make such an order as was made in this proceeding to bring about, so far as possible, such desired and lawful result. The order reviewed in terms and in fact takes nothing from plaintiff in certiorari to which, under the law, he is entitled. It may leave him possessed of a larger sum than the one to which he was entitled. If its effect shall be to give him no less than the compensation which the law has said he shall have, his rights, under the law, have been duly respected.

The order is affirmed, with costs to the defendants in certiorari.

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


author: Bird, C. J.

text:
    MARSHALL v. BAKER-VAWTER CO.
    1. Master and Servant — Workmen’s Compensation Act — Assault by Fellow Servant — Voluntary Act.
    If one employee assaults another solely to gratify his feeling of anger or hatred, the injury results from the voluntary act of the assailant, and cannot he said to arise either directly out of the employment or as an incident of it.
    2. Same — Evidence—Inferences to be Drawn.
    In proceedings under the workmen’s compensation act, where plaintiff, while engaged in his duties as foreman of defendant’s composing room, was shot in the back of the head by the janitor, also in the employ of defendant, and the testimony as to the cause of the shooting was in conflict, both the conflict and the inferences to he drawn from the testimony were for the industrial accident board.
    3. Same — Course of Employment — Finding of Board.
    Where persons of equally good judgment might differ as to the inferences to be drawn from the testimony, the finding of the board that it was unable to discover the reason for the shooting and refusing plaintiff compensation, will be affirmed, although the inference might have been drawn that the shooting arose out of the work in which plaintiff and his assailant were engaged; the burden of proof resting upon plaintiff.
    4. Same — Fellow Servant — Dangerous Person — Question of Fact.
    Although the assaulting employee had previously been sent to prison for assault, the finding of the board that .it did not necessarily follow that he was such a person as defendant would not have the- right to employ, held, justified by the evidence.
    Certiorari to Industrial Accident Board.
    Submitted April 28, 1919.
    (Docket No. 64.)
    Decided July 17, 1919.
    Dennis M. Marshall presented his claim against the Baker-Vawter Company and the London & Lancashire Indemnity Company, insurer, for injuries received in defendant’s employ. From an order denying compensation, plaintiff brings certiorari.
    Affirmed.

      Ara Weldon and Cady & Andrevjs, for appellant.

      Beaumont, Smith & Harris and Frank N. Crosby (Albert E. Meder, of counsel), for appellees.
   Bird, C. J.

Claimant was an employee of defendant, a printing or publishing house, in October, 1916. His work was that of foreman of the composing room. While engaged in his duties on the morning of October 3, 1916, he was shot in the back of the head by Harry Fields, a negro janitor, employed in the same place. He was taken to the hospital and remained there until October 17th, when he returned to his work and continued therein until April, 1917, when he gave up his position on account of impaired eyesight. The particular defect is that the lower portion of his field of vision is so affected that it seriously interferes with his regular work. He filed a claim with the industrial accident board and the committee of arbitration allowed him compensation, one member dissenting. An appeal to and hearing by the accident board resulted in a denial of plaintiff’s claim.' The board found that the accidental, personal injury sustained by the applicant did not arise out of or in the course of his employment. The proceedings are now before us for review on certiorari.

It was made to appear by the proofs that plaintiff was foreman of the composing room and as such had a right to give orders with reference to the janitor work therein; that in the event his orders were not carried out by the janitor he reported the matter either to Williams, the assistant superintendent, or McDuffie, the foreman of the janitor service. That a day or so previous to the shooting plaintiff had reported the janitor for failure to obey his orders in cleaning up some portion of the room, and that he had on other occasions made similar complaints.- It was further shown that the janitor had had difficulty with another employee and that two or three years previous to the shooting he had been convicted of assault with intent to do great bodily harm less than the crime of murder and sentenced to a term in Jackson prison. That he was subsequently paroled and took up his work again with defendant company. The janitor’s testimony was taken by deposition in the prison. He was asked:

“Q. Was there any difference or trouble between you and Mr. Marshall?
“A. He did not want me to work there; he was always going to Mr. McDuffie and so Mr. McDuffie told him to leave me be, that I would do my own work.
“Q. Did you and Mr. Marshall have any trouble, or trouble of any kind, in regard to your work?
“A. No, sir. If he ever asked me to do anything I would go ahead and do it. * * *
“Q. What was the real cause of your shooting Mr. Marshall?
“A. Because he made an attempt to shoot me.”

It is the contention of plaintiff that his injuries arose out of and in the course of his employment and he relies on the following cases to sustain his position: McNicol’s Case, 215 Mass. 497 (102 N. E. 697, L. R. A. 1916A, 306) ; Hopkins v. Michigan Sugar Co., 184 Mich. 87 (L. R. A. 1916A, 310); Mitchinson v. Day Bros., L. R. 1 K. B. 603, Workmen’s Comp. Rep. (1913) 324; Knopp v. Foundry Co., 186 Ill. App. 605; Heitz v. Ruppert, 218 N. Y. 148 (112 N. E. 750, L. R. A. 1917A, 344) ; Ohio Building Safety Vault Co. v. Industrial Board, 277 Ill. 96 (115 N. E. 149); Carbone v. Loft, 219 N. Y. 579 (114 N. E. 1062) ; Missouri, etc., R. Co. v. Day, 104 Tex. 237 (136 S. W. 435, 34 L. R. A. [N. S.] 111); Thom v. Sinclair, L. R. App. Cas. (1917) 127 (Ann. Cas. 1917D, 188); Hollenbach Co. v. Hollenbach, 181 Ky. 262 (204 S. W. 152).

Defendants argue that plaintiff’s injury did not arise out of his employment, but was the result of personal vengeance on the part of Fields, and the following cases are cited to sustain their position: Walther v. Paper Co., 89 N. J. Law, 732 (99 Atl. 263); Schmoll v. Brewing Co., 89 N. J. Law, 150 (97 Atl. 723) ; Union Sanitary Manfg. Co. v. Davis (Ind. App.), 115 N. E. 676; Jacquemin v. Manufacturing Co., 92 Conn. 382 (103 Atl. 115, L. R. A. 1918E, 496) ; Hulley v. Moosbrugger, 88 N. J. Law, 161 (95 Atl. 1007, L. R. A. 1916C, 1203) ; Shaw v. Wigan Coal & Iron Co., 3 B. W. C. C. 81; Clark v. Clark, 189 Mich. 652.

An examination of these authorities does not disclose any material disagreement over the test which should be applied. Some of them are close cases— near the line, as is the present case. In all, or nearly all of them, the same test is applied, namely, whether the attack grew out of the employment — out of the work, or was one of personal vengeance. The rule is well stated in Jacquemin v. Manufacturing Co., supra:

“If one employee assaults another employee solely to gratify his feeling of anger or hatred, the injury results from the voluntary act of the assailant, and cannot be said to arise either directly out of the employment or as an incident of it. But when the employee is assaulted while he is defending his employer, or his employer’s property, or his employer’s interests, or when the assault was incidental to some duty of his employment, the injuries he suffers in consequence of the assault will, as a rule, arise out of the employment. He will then be serving his employer’s ends and not his own.”

The disagreement of counsel arises not so much over the law as over the • application of the rule of law to the facts. Plaintiff insists the facts show two things, first, that the shooting was the result of disagreement with Fields over the work in which they were employed; second, that Fields was a quarrelsome and dangerous fellow, and unsafe to be permitted to work with his fellows, and this fact was known to his employer. Defendants take issue upon both of these propositions.

There is some but not much conflict in the testimony. It is, however, subject to different inferences. The plaintiff draws one inference from the testimony and the defendants another. Both the conflict and inferences were matters for the board. Upon the first-proposition the board finds that the accident did not arise out of the employment. They conclude their finding with these words:

“It would seem that there might have been some reason for the shooting, but we are absolutely unable to discover what it was.”

Upon the second proposition they find as follows:

“It is true that Fields had been sent to Jackson prison for an assault with intent to do great bodily harm, but we do not think it necessarily follows that he was such a person as the respondent employer would not have the right to employ as a janitor.”

The burden of proof upon both of these propositions rested upon the plaintiff. We are of the opinion that the testimony is fairly open to either inference. Quite likely persons of equally good judgment might differ as to the inferences to be drawn from the testimony. The accident board has made a finding of fact on both propositions adverse to plaintiff’s contention and, therefore, we think he must fail.

The finding of the board is affirmed.

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