text:
    BLOZINA v. CASTILE MINING CO.
    1. Master and Servant — Workmen’s Compensation Act — Evidence — Inferences—Industriar Accident Board.
    On certiorari to review an award of compensation to a father for the death of a son, the inference drawn by the industrial accident board that the income from a building owned by deceased was first devoted to the charges against said building rather than to the support of plaintiff, held, justified, in the absence of proof.
    2. Same — Proof—Income—Earnings—Dependents.
    In the absence of proof, held,, proper to charge against the income from the building its expenses and interest charges upon the indebtedness upon it, including that for labor and material, also all sums paid upon the mortgage; and that, if the income was exhausted by such charges and expenses, it is then obvious that plaintiff received his support from the earnings of deceased, rather than from the income from the building.
    On compensation recoverable by dependent under Workmen’s Compensation Acts, see notes in L. R. A. 19I6A, 134, 253, and ‘ L. R. A. 1917D, 164.

      3. Same — Deputy Commissioners — Report Not Evidence.
    Under 2 Comp. Daws 1915, § 5472, empowering the indus- . trial accident board to appoint not to exceed two deputy commissioners to make investigations and report, said report is not made evidence, and it cannot be used -as the basis of an award by said board.
    4. Same — Finding Not Supported by Evidence.
    Where the finding of the industrial accident board that deceased bad spent a certain amount during the past year in payment of a mortgage upon a building owned by him, and that therefore plaintiff was dependent upon tbfe earnings of deceased for bis support, was based solely upon a statement in the report of a deputy commissioner, said finding was not supported by any competent evidence, and cannot be sustained.
    5. Same — Compensation—-Dependents—Earnings.
    Under the language used in our statute (2 Comp. Laws 1915, § 5435), compensation is awarded to one dependent upon the earnings of deceased and not upon bis income from other sources.
    Certiorari to Industrial Accident Board.
    Submitted April 15, 1920.
    (Docket No. 79.)
    Decided June 7, 1920.
    Peter Blozina presented his claim-for compensation against the Castile Mining Company for the accidental death of his son in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed, and remanded.

      Belmont Waples (Harold J. Waples, of counsel), for appellant.

      Fred F. Murphy, for appellee.
   Fellows, J.

Certiorari to the industrial accident board. The case was heard on a stipulation of- facts signed by the' attorneys for the parties, from which it appears that Anton Blozina, son of claimant, was an employee of defendant and met an accidental death arising out of and in the course of his employment. His wage was $4.80 per day. He contributed $45 per month to the support of claimant, who was unable to work and support himself. Deceased was the owner of a building at Caspian which rented for $45 per month; there was a mortgage upon it of $650, and there was also due for material and labor which went into its construction, $1,550. Insurance and taxes for the year prior to his death, and which were paid by him, amounted to $127.73. A deputy commissioner who had a conference with the parties prior to the submission of the matter to arbitration, with a view to adjusting the differences, made a report to the board stating that the year prior to his death deceased paid $350 on the mortgage, reducing it to the amount of $650. There was no statement of this fact in the stipulation and nothing before the board on this subject other than this report.

Defendant insisted before the board and here -insists that under our statute (2 Comp. Laws 1915, § 5435), which is similar in language to the statutes of some of the States and dissimilar to others, dependents entitled to compensation under the provisions of the act are those who are dependent upon the “earnings” of the deceased employee, the language of the section being, “wholly dependent upon his earnings for support at the time of the injury,” and “only partly dependent upon his earnings for support at the time of his injury.” It is argued that the statute having fixed the dependency as a dependency upon “earnings” the burden rests upon claimant to show such dependency in order to entitle him to compensation, and that in the instant case he has not discharged such burden, that deceased received an income from the rent of the building in the same amount as was devoted to his father’s support, and that it is conjeetural and speculative as to whether such support came from rent of the building or from earnings as a laborer.

The industrial accident board, without specifically deciding the question of the construction of the statute, held that it could consider the report of the deputy commissioner as evidence of the facts therein stated; and, accepting the statement that deceased paid $350 on the mortgage, inferred that the income from the building was entirely devoted to the expenses of and indebtedness on the building, and concluded that the claimant was wholly dependent upon the earnings of deceased, and awarded him the maximum.

We agree with the board that it was a proper inference to be drawn, in the absence of proof, that the income from the building was first devoted to the building. In the absence of proof, we think it proper to charge against the income from the building its expenses and interest charges upon the indebtedness upon it, including the indebtedness for labor and material, also all sums paid upon the mortgage, and if the rent from the building was exhausted by such charges and expenses, it is then obvious that claimant received his support from the earnings of deceased. The board, however, based its finding that $350 had been paid on the mortgage solely on the statement of the deputy commissioner to that effect. By section 5472, 2 Comp. Laws 1915, the board is empowered to appoint not to exceed two deputy commissioners, and the section empowers them to make investigations, etc., but the'section does not make their report evidence, and it is difficult if not impossible to perceive its binding force upon either party. The statements contained in it are hearsay, and while we do not reverse for the admission of hearsay testimony, and do affirm where there is any proper testimony to support the finding notwithstanding the admission of the improper evidence, where the only evidence in the record to support the finding is inadmissible hearsay evidence we are bound to say, as matter of law, that the finding is not supported by the evidence, i. e., competent evidence. Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130.

The Massachusetts act (chap. 751, Acts 1911) contains the same language as to dependency as does our act; it also contains a provision similar to the provision found in our act in section 5443, 2 Comp. Laws 1915.

In Derinza’s Case, 229 Mass. 435 (118 N. E. 942), the supreme court of that State had under consideration the question of dependency of a wife living apart from her husband and it was there said:

“The terms of our act award compensation to those dependent upon the ‘earnings’ of the deceased employee, and not to those supported by him, differing thus from the statutes of some other jurisdictions. See, for example, State, ex rel. Crookston Lumber Co., v. District Court, 131 Minn. 27 (154 N. W. 509). Therefore, in the case at bar the finding can be supported only if the wife could be found to have been totally dependent upon the earnings of her deceased husband, and not upon investments of his property. This is so, giving to ‘earnings’ the broadest meaning of which it reasonably is susceptible. Jenks v. Dyer, 102 Mass. 235; Chester v. McDonald, 185 Mass. 54 (69 N. E. 1075). The terms of part II, §§ 7 and 12, the latter to the effect that ‘no savings or insurance of the injured employee * * * shall be taken into consideration in determining the compensation to be paid’ under the act, do not modify and are not in any respect in conflict with the explicit and unequivocal provisions of part II, § 6, and part Y, § 2, to the effect that dependency in case of death of an employee shall be ascertained solely with reference to the fact whether the claimants were wholly or partly ‘dependent upon the earnings of the employee for support at the time of the injury.’ ”

Our attention has not been challenged to the decision of the court of last resort of any other State having similar provisions to ours nor has our investigation led us to one where a contrary doctrine has been announced. Indeed the question is not liable to arise with any degree of frequency. We are persuaded that we should follow the holding of the Massachusetts court. The language of our act expressly states “dependent upon his earnings for support.” That the earnings of an employee are distinct and different from rent he receives for a building is patent. The legislature of this State saw fit to use the precise language of the Massachusetts act and to purposely use the word “earnings.” We may not eliminate it from our consideration, nor modify it by some other inapplicable portion of the act. The section under consideration deals exclusively with the question of dependency and is quite complete in itself.

It follows that the award must be set aside. The case will be remanded to the industrial accident board where the parties may introduce such further proof and take such further proceedings, not inconsistent herewith, as they may be advised. This was the course pursued in Derinza’s Case, supra, and in Finn v. Railway, 190 Mich. 112.

Moore, C. J., and Steere, Brooke, Stone, and Bird, JJ., concurred. Clark and Sharpe, JJ., did not sit.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    THIER v. WIDDIFIELD.
    1. Master and Servant — Workmen’s Compensation Act — Evidence — Burden of Proof.
    In proceedings under the -workmen’s compensation law by a widow for compensation 'for the death of her husband, the burden of proof rested upon plaintiff to show that the accident arose out of and in the course of his employment.
    2. Same — Death by Lightning Does Not “Arise out of” Bitployment Unless a Particular Hazard.
    Where a workman was struck by lightning and killed while standing in the doorway of his employer’s barn, waiting for the storm to subside, where he, .with his employer, had gone for protection after putting the teani into the stalls, it cannot be said that his death “arose out of” his employment, in the absence of evidence that deceased was exposed, by the nature of his employment, to some par-,, tieular danger.
    3. Same — Finding of Industrial Accident Board Based Upon Conjecture Not Sustained.
    The finding of the industrial accident board that the position of deceased was “more hazardous than that of others in the same community; that the deceased by reason of his employment was thereby exposed to injuries from lightning other than the community in general in that locality, and in consequence thereof met his death,” field, to be based upon mere conjecture .and speculation, rather than upon evidence.
    On recovery under Workmen’s Compensation Acts, for injury-by lightning, see notes in L. R. A. 1916A, 347, and L. R. A. 1918F, 936.
    Certiorari to Industrial Accident Board.
    Submitted April 8, 1920.
    (Docket No. 11.)
    Decided June 7, 1920.
    Violet B. Thier presented her claim for compensation against Henry W. Widdifield for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the ¿Etna Life Insurance Company, insurer, bring certiorari.
    Reversed, and order vacated.

      C. W. & W. S. Foster, for appellants.

      Rollie L. Lewis, for appellee.
   Stone, J.

The applicant, who is the widow of William C. Thier, deceased, made application for compensation as a dependent, under the workmen’s compensation law. There is no question that both the employer and employee were subject to that law. It was admitted that the ¿Etna Life Insurance Company had insured Henry W. Widdifield, the employer in the case, which insurance was in force at the time of the accident; that the deceased was in the employ of Widdifield at the time of his death; that the employer had due notice of the accident, and that claim for compensation was duly made; and that deceased was earning $18 per week at the time of his death, on June 3,1919.

About 4 o’clock in the afternoon of that day said William C. Thier was struck by lightning and instantly killed at Charlevoix, Michigan. Widdifield was there engaged in the ice, coal and wood business, in the conduct of which he maintained a barn and an ice-house which were about 25 feet apart, the barn being about 75 feet from his dwelling house, and connected thereto by an insulated electric light wire which entered the bam about 6% feet from the ground. Thier’sl duties were to help deliver ice to customers, and to work on the wagon. It appeared that on the day referred to the deceased and his employer had been engaged drawing ice. Widdifield testified (and it was not disputed), as follows: got the team in the barn, when this bolt of lightning came and struck him.”

uWe had just got through delivering a load of ice. We were going to start down to the coal shed for a load of coal, and we saw this storm coming and I said: T guess we will unhitch and put the team in the barn and see what it is going to do.’ We had just nicely

Having taken care of the team by putting it in the stalls, both the employer and the employee were waiting in the barn for the storm to subside, when Thier, who was standing in the doorway, was struck by lightning and killed. When struck he was leaning beside the door, within a few inches of the place where the electric light wire entered the barn. He at the time was not performing any of the duties incident to his employment. He selected his own position, and had not been asked or directed to stand in that place by Widdifield, who was standing four or five feet behind him, and who was jarred by the stroke of lightning, but not knocked down. It was a very unusual and severe electric storm. During the storm a number of buildings belonging to other people in the vicinity, also trees in front of another house, were struck by lightning. One of such buildings was just across the street from Widdifield’s house, another across the street and north — all within a radius of one-half mile. A tree standing six feet from Widdifield’s house was struck by lightning during the storm, but the branches touching the house were not damaged. The dwelling house was struck, but neither the barn nor icé-house was struck. Widdifield testified that he thought the fuses in the house were not burned out, but that several lights in the house were burned out. The electric light wires in the barn lighting system were not injured, and the switch in the barn was not damaged. There was a slight bum found upon the lip of the deceased after death.

The claimt of the widow was allowed by the committee on arbitration, with compensation at $9 per week for 300 weeks, and this was affirmed on review by the full board. The defendants have brought the case here by certiorari, claiming that there was no evidence that death arose from accidental injury “arising out of” the employment.

It is said by appellants that the one legal question involved is:

“Did the death of William C. Thier by lightning stroke arise out of his employment within the meaning of the workmen’s compensation law?”

In the findings of the board, after referring to and quoting from the case of Klawinski v. Railway Co., 185 Mich. 643 (L. R. A. 1916A, 342), and claiming to distinguish that case, the following conclusion is reached, and language used:

“Taking into consideration all of the circumstances, it seems to us that the only reasonable conclusion is, that the lightning which struck the house, damaging the electric lights, followed the electric wire to the barn, and struck and killed the deceased.
“Under the conclusion which we reach as to the facts, we are of the opinion that this case is not governed by the Klawinski Case. We believe this is a case where the industry through the agency of man combined with the elements to produce injury to the employee. This deceased being in the course of his employment at a point within a few inches of an electric wire which was there, as part of the industry, and being the agency of man, contributed to the hazard and made his position more hazardous than that of others in the same community; that the decedent by reason of his employment was thereby exposed to injuries from lightning, other than the community in general in that locality, and in consequence thereof met his death. After the full consideration of the testimony and of all the files and proceedings had in this case, the board finds that the deceased, William C. Thier, suffered an accidental injury within the meaning of the act, from which death resulted; and that the accidental injury arose but of, and in the course of decedent’s employment. * * * From the foregoing it follows that the award of the committee of arbitration should be, and is hereby affirmed, and applicant is entitled to receive and recover from both the respondents the sum of $9 per week for the period of 300 weeks, under the provisions of the workmen’s compensation law; and an order to that effect will be entered.’’

A careful reading of the testimony contained in this record leads us to differ from the conclusion reached by the board. We are unable to find any evidence to warrant the finding “that the lightning which struck the house, damaging the electric lights, followed the electric wire to the barn and struck and killed the deceased.” Nor do we find any evidence to warrant the finding that the position of deceased was “more hazardous than that of others in the same community; that the deceased by reason of his employment was thereby exposed to injuries from lightning, other than the community in general in that locality, and in consequence thereof met his death.” With due deference to the opinion of the board, we think the findings above referred to were based upon mere conjecture and speculation. In our opinion the case is ruled by Klawinski v. Railroad Co., supra. In that case Mr. Justice McAlvay, in an opinion concurred in by all the then members of this court, said:

“It is our opinion that in the instant case claimant’s husband did not come to his death as the result of a ‘personal injury arising out of and in the course of his employment,’ within the meaning of the workmen’s compensation law. It is clear from the stipulated facts that this injury was in no way caused by or connected with his employment through any agency of man which combined with the elements to produce the injury; plaintiff’s decedent by reason of his employment was in no way exposed to injuries from lightning other than the community generally in that locality.”

In the recent case of Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130, 137, Justice Fellows used the following language in a case arising under this statute:

“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. McCoy v. Michigan Screw Co., 180 Mich. 454 (L. R. A. 1916A, 323); Draper v. Regents of University, 195 Mich. 449,” — and further citing cáses in other jurisdictions.

We have examined the cases known as the “Lightning Cases” in the British and American courts, cited by the respective counsel, and find, with one exception hereinafter mentioned, that they are all in accord with our holdings upon this subject. Among the American cases are the following: Hoenig v. Industrial Commission, 159 Wis. 646 (150 N. W. 996, L. R. A. 1916A, 339); Griffith v. Cole Bros., 183 Iowa, 415 (165 N. W. 577); Wiggins v. Industrial Accident Board, 54 Mont. 335 (170 Pac. 9, Ann. Cas. 1918E, 1164) ; State, ex rel. Peoples Coal Co., v. District Court, 129 Minn. 502 (153 N. W. 119, L. R. A. 1916A, 344).

Compensation was denied in all of the foregoing cases except the last. This Minnesota case is the only American case where, under circumstances at all similar to the instant case, compensation has been allowed. In that case a driver for an ice company was required to follow a fixed route in substantial disregard of weather conditions, though permitted to seek shelter in times of necessity. When a severe rainstorm, accompanied by lightning, was in progress, he left his team and went to a tall tree just within the lot line, either for protection or in the performance of his duties soliciting orders. Lightning struck the tree, and the same bolt struck him, and he was killed. It was held that the evidence sustained a finding that the death of the decedent was the result of an accident “arising out of” his employment within the meaning of the workmen’s compensation act of that State. That case has been criticized, and especially so in Griffith v. Cole Bros., supra,. Referring to that decision the court in the Iowa case said:

“The vice in this decision seems to us to be that, while it recognizes there must be more than the normal risk from lightning to which all are subject, and that the employment must necessarily accentuate the natural hazard from lightning, this is not followed to its logical end, and a recovery for injury by lightning is allowed where there was no such accentuation or abnormal risk. All that is requisite is that the employment be of such nature as that, in reason, the employee is more exposed to hazards from lightning than is one in some other employment. Cases that hold a given accident from lightning did not arise out of the course of the employment recognize that such injury may be related to the employment. See Hoenig v. Industrial Commission, 159 Wis. 646 (150 N. W. 996, L. R. A. 1916A, 339). And so of Rodger v. School Board, 1 Scots Law Times (1912), 271, wherein it is said:
" ‘To be struck by lightning is a risk common to all and independent of employment, yet the circumstances of a particular employment might make the risk not a general risk, but a risk sufficiently exceptional to justify its being held that the accident from such risk was an accident arising out of the employment.’
_“And it has been rightly held that injury from lightning did arise out of the employment where a telephone or telegraph operator was hurt by an electric shock received in the course of his work. Atlantic Coast Line R. Co. v. Newton, 118 Ya. 222 (87 S. E. 618). And so where a workman on a high scaffolding was kept at work during a storm. Andrew v. Industrial Society, 2 K. B. (1904) 32. * * *
“A lineman who, while at his work, is bitten by a snake, will not be allowed to trace his injury to his employment even though he would not have been bitten had he been elsewhere than where his employment called him. On the other hand, if he touch a live wire, or is struck by lightning while repairing or putting up a wire, he may well claim that his injury is peculiarly due to his employment.
“As was said in Kelly v. County Council, 1 B. W. C. C. 194, there must be evidence that the servant was exposed to a greater risk of being struck by lightning than if he had been working in a field or garden. In Robson, Eckford & Co. v. Blakey, 5 B. W. C. C. 586, it is well indicated what the natural range of inquiry is, and said:
“ ‘To what class of dangers does this man’s employment expose him? * * * Suppose I say he is a collier. I may say his employment exposes him to the risk of having things fall upon him from the roof, to the danger of tumbling down a shaft, and so on. In short, there is a peculiar class of dangers which exist only .for people who go down into mines.’
“It' is further illustrated by employments which compel walking in the street, and remaining off the sidewalk, as to which it has been said that there is a peculiar exposure to hazard from moving vehicles. In one word, it all turns upon whether it may in reason be said that as distinguished from being hurt while employed the injury is due to the nature of the employment. As said, we do not deny that being struck by lightning may be reasonably traceable to the nature of the work done, but decide that it may not be done in this case.”

In Tarpper v. Weston-Mott Co., 200 Mich. 275 (L. R. A. 1918E, 507), Justice Brooke, speaking for the court, said:

“That the injury suffered by the employee must arise out of the employment, as well as in the course of the employment is well settled by our own decisions. McCoy v. Michigan Screw Co., 180 Mich. 454 (L. R. A. 1916A, 323) ; Klawinski v. Railway Co., 185 Mich. 643 (L. R. A. 1916A, 342); Van Gorder v. Motorcar Co., 195 Mich. 588 (L. R. A. 1917E, 522).”

The burden of furnishing evidence, from which the inference can be legitimately drawn that an accident to a workman arose out of, and in the course of the employment, rests on the claimant.

We conclude by saying that, in our opinion, there is in the instant case no evidence tending to prove that the death was brought about by the extra hazardous nature of the employment. As was said by the 'English court, it is not enough for the applicant to say, “the accident could not have happened if I had not been engaged in the employment, or if I had not been in this particular place.” The applicant must go further and say, “the accident arose because of something I was doing in the course of my employment, and because I was exposed by the nature of my employment to some particular danger.”

We are constrained to hold that there is no evidence to support the finding of the board, and the award and order of the industrial accident board is reversed and vacated.

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


author: Clarke, J.

text:
    NIXON v. FURNITURE MANUFACTURERS’ ASS’N.
    Master and Servant — Workmen’s Compensation Act — Discontinuance of Payments — Evidence—Modification of Order.
    On certiorari to review an order of the industrial accident board denying defendant employer’s petition to be relieved from further payments under the workmen’s compensation act, there being no competent evidence before the board that plaintiff was employed or received wages subsequent to his employment with defendant, that part of the order of the board which is inconsistent or merely declaratory of the statute is eliminated, and the order as modified is affirmed.

      Certiorari to Industrial Accident Board.
    Submitted April 9, 1920.
    (Docket No. 32.)
    Decided June 7, 1920.
    Guy Nixon presented his claim for compensation against the Furniture Manufacturers’ Association for injuries received in defendant’s employ. From an order denying an application for discontinuance of payments under an award, defendant and the Furniture Mutual Insurance Company, insurer, bring certiorari.
    Modified and affirmed.

      Francis D. Campan, for appellants.

      Glenwood C. Fuller, for appellee.
   Clarke, J.

On April 9, 1919, applicant, Guy Nixon, sustained an accidental personal injury arising out of and in the course of his employment with defendant, Furniture Manufacturers’ Association. An agreement in regard to compensation was entered into between the parties and approved by the industrial accident board and compensation was paid thereunder from the date of the accident to June 24, 1919. On June 25, 1919, applicant returned to his employment when, as stated by employer’s foreman, he was “not in shape to work” and not able to do the work he had been doing when injured, but was permitted to do light work, which he did for about one week. He then left the employment with said defendant. On September 12, 1919, defendant filed with the board a petition alleging that full compensation had been paid and asking to be relieved from further liability in the cause. A hearing was had September 30, 1919. That applicant was employed or received wages subsequent to his employment with said defendant there was before the board no competent evidence as distinguished from hearsay.

Dr. Webb examined applicant about five weeks before the hearing and said that applicant was then not fully recovered, but was able to - do light work, that a full recovery was to be expected and that he advised applicant to work. The board, not ordering further proof in order that the facts necessary to a decision upon the merits might be before it, in the exercise of its discretion made an order and finding from which we quote:

“That on or about June 25, 1919, the applicant resumed employment, although he had not fully recovered from the effects of the accidental injury he sustained, and that he worked about one week, receiving full wages for said period, and then left the respondent’s employ;
“That the proofs do not show the earnings of the applicant since he was last in respondent’s employ, and the board is therefore not in a position to determine at this time whether or not any compensation, is due in the case; * * *
“It is therefore ordered and adjudged that said petition should be and the same is hereby denied.”

The part of the order and finding above quoted is affirmed. The remaining portion of the order and finding, being in part inconsistent, and in part merely declaratory of the statute, will be eliminated.

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


author: Clark, J.

text:
    TANNER v. ALUMINUM CASTINGS CO.
    1. Master and Servant — Workmen’s Compensation Act — Certiorari — Evidence—Sufficiency.
    On certiorari to review an award by tbe industrial accident board'under tbe workmen’s compensation- act, tbe award will be affirmed if there is any competent evidence from which the inference might properly be drawn that death resulted from the accident alleged.
    2. Same — Cause pF Death — Evidence—Sufficiency.
    Evidence that deceased employee’s death was caused by septicemia resulting from a wound in the wrist arising out of and in the course of his employment, held, sufficient to sustain an award of compensation by the industrial accident board, although there was also evidence that death was caused by lobar pneumonia.
    On review and appeal in action for death of employee under Workmen’s Compensation Acts, see notes in L. R. A. 1916A, 163, :266, and L. R. A. 1917D, 186.
    Certiorari to Industrial Accident Board.
    Submitted April 20, 1920.
    (Docket No. 95.)
    Decided June 7, 1920.
    Frances Tanner presented her claim for compensation against the Aluminum Castings Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Hartford Accident & Indemnity Company, insurer, bring certiorari.
    Affirmed.

      Miller, Canfield, Paddock & Perry, for appellants.

      Clarence Kellogg, for appellee.
   Clark, J.

Frances Tanner, the applicant, is the widow of Edward Tanner, who, on November 10,1917, suffered an accidental personal injury arising out of and in the course of his employment with defendant Aluminum Castings Company. The industrial' accident board found that Mr. Tanner died on February 6, 1918, and that said injury was the proximate and contributing cause of his death, and that by reason of the general weakness and low vitality of the deceased as a result of such injury, he succumbed to an illness which, on January 20,1918, showed pronounced and alarming symptoms. It is contended that there is no evidence to sustain this conclusion and none from which the required inference can be drawn.

“In proceedings under the workmen’s compensation act, the industrial accident board is trier of the facts, and it is not for the court, on certiorari to review an award for the accidental death of an employee, to analyze, discuss or pass upon the arguments of counsel in support of their respective theories as to hovr deceased came to his death, if the facts, disputed or undisputed, give opportunity for the board in its discretion to draw a natural and rational inference that his death resulted from an accident while engaged in his master’s business within the scope of his employment.” Gabriel v. Construction Co., 206 Mich. 471 (quoting from syllabus).

The agreement for compensation between deceased and defendant insurance company was in eifect at the time of the death and compensation at the maximum amount had been paid to February 2, 1919. There was testimony that Tanner’s injury had been caused by a bullet passing through the hand just below the wrist striking the ulnar bone and severing a small artery. Tanner held his wrist and had a handkerchief tied around it to prevent bleeding, but there was bleeding, a hemorrhage, spurting, but the main steady bleeding was venous. Dr. Gray, employer’s physician, treated the wound, packed it with gauze to check bleeding and put on a tourniquet. The doctor dressed the wound daily but every time he removed the dressing the hemorrhage would start. The doctor had Tanner taken to Harper Hospital that the severed blood vessel might be ligated, but the operation was delayed several days during which time there was bleeding and on November 18th an artery let go, the bleeding became active and the doctor at once ligated the artery. There was some bleeding for a number of days after the operation. Of the bleeding before going to the hospital, a witness said: “the blood just spurted all over everything” and that it took about 15 minutes to get it stopped, and another witness said: “the blood was spurting all over the rug and stained the table cloth.” The wound became infected and there was a discharge from it. The arm was packed in ice the first few days at the hospital and it was swollen as one witness said “away up above the elbow.” Tanner left the hospital November 26th and was confined to his home for about two weeks, during which time, applicant stated, there was a continuous discharge from the wound and the doctor came every day and dressed it and after two weeks the wound seemed to be healing and the swelling began to go down and the doctor did not come so often. Tanner began walking about. He was weak, not strong as he had been before the accident. He became ill January 20, 1918, and died February 6, 1918. Three or four weeks before his last illness the wound had not healed because of the infection and the doctor had continued the dressings. Dr. Wallace, who attended in the last illness, gave the cause of death as lobar pneumonia. Dr. Gray, employer’s physician, testified:

e‘A. I understand that you wanted to know whether he would be more apt to acquire the disease in the first place on account of having this accident; and if he would be more apt to die if he did acquire the disease, on account of his having this accident previously.
“Q. Well, let’s divide that in two questions. In the first place, Would he be more apt to acquire the disease?
“Á. I think he would.
“Q. The second question is, Would he be more apt to succumb?
“A. Of course, Ms vitality was somewhat — was somewhat lowered, and his chances for recovery, of course, would be better if he had been in real good physical condition at the time.
“Q. Yes; and had not suffered this wound.
“A. No question about that. It is just the matter of degree. * * * I wasn’t notified right away when he was taken sick (January 20, 1918) because they called in their family doctor, and it was within a week after he was taken sick that I saw him.
“Q. How did you come to go up there, doctor?
“A. Well, I was informed that he was sick. I think Mrs. Tanner phoned to me that he was sick, but I don’t remember whether I heard it over at the plant besides that, or not. Anyway, I called on him at that time.
“Q. Well, you were interested in the case?
“A. Yes, sir; certainly.
“Q. And that interest arose by reason of this accident; you were somewhat concerned over Ms injury?
“A. Yes, sir.
“Q. Up to that time?
“A. Yes, sir.”

After an autopsy Dr. Moll said lobular pneumonia was not the cause of the death, that in one lung there was a congestion of a hypostatic character, that “hypo-static pneumonia might have been the result of septicemia,” and that “the man died from degeneration and weakening of the heart muscles” and that “he died of degeneration of the heart, a large hypertrophied heart.” Dr. O’Neil, who assisted in the autopsy, after telling of what was found, said:

“Q. Doctor, if the deceased, prior to the 10th day of November, 1917, was a man in ordinary health and able to perform the usual work of an ordinarily healthy man, and while employed in one of the Detroit factories was shot in the right hand so that the bullet would cut one of the arteries of the wrist, and that after that shot he continued suffering from the result and died on the 6th day of February following, would you be able to state from the conditions found on the autopsy whether the conditions that you describe were the result of septicemia following the wound in the wrist and'hand?
“A. It might follow septicemia, yes, if that condition existed there, if that condition existed.
“Q. Could septicemia produce the conditions that you described?
“A. I think it could.”

We are not unmindful of the evidence in the record directly contrary to that above reviewed, but finding such evidence in the record we cannot say that there was before the board no evidence from which it might properly infer that the death resulted from the accident.

The award is affirmed.

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


author: Bird, J.

text:
    DEWEY v. DEWEY FUEL CO.
    1. Master and Servant — Workmen’s Compensation Act — Relation of Employee — Geeicer of Defendant.
    The fact that deceased was a stockholder and president of defendant company would not alter the fact that he was nevertheless an employee, within the terms of the workmen’s compensation act, where it appears that he was regularly employed and paid as a yard man, and at the time he received the injuries which resulted in his death, he was on his way to pile and measure a quantity of wood, in response to the orders of defendant’s manager.
    2. Same — Evidence—Wilful Negligence.
    Where deceased employee was struck by an automobile while on his way to perform some- work on the orders of defendant’s manager, evidence held, insufficient to show that he intentionally or wilfully put himself in the way of the machine.

      The question as to who are employees within the meaning of Workmen’s Compensation Acts generally, see notes in L. R. A. 1916A, 115, 246; L. R. A. 1917D, 145; L. R. A. 1918F, 201.

      3. Same — Relation of Arbitrator to Claimant.
    The fact that one of the arbitrators, who was at the time a stranger to plaintiff, later became her attorney, held, not in violation of a rule of the industrial accident board excluding as arbitrators persons who are financially interested in the outcome or who are so nearly related to ■ the parties that 'they may fairly be deemed to be financially interested in the decision.
    Certiorari to Industrial Accident Board.
    Submitted April 14, 1920.
    (Docket No. 66.)
    Decided June 7, 1920.
    Henrietta E. Dewey presented her claim for compensation against the Dewey Fuel 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.
    Affirmed.

      Walter M. Nelson, for appellants.

      Forrest C. Badgley, for appellee.
   Bird, J.

Plaintiff claims that her husband, while in the employ of the Dewey Fuel Company, met his death under circumstances which entitle her to an award under the workmen’s compensation act. Liability is denied by defendants on the grounds:

(1) That neither the injury nor death of Mr. Dewey was caused by an accident, arising out of or in the course of his employment.

(2) That the injury and death were the result of intentional and wilful misconduct.

(3) Because one of the arbitrators was not a disinterested party within the meaning of the rules of the commission.

The material part of the testimony bearing upon this question is that plaintiff was a stockholder in, and president of, the defendant fuel company. lie served as president without salary. Being unfitted for office or executive work, and desiring to be employed, he accepted a place as an employee in the yard at two dollars per day, and was carried on the pay roll as an employee. He was called a yard man. His work was principally to assist the drivers in loading their wagons at the yard. On the morning of the accident the deceased was ordered by the manager to go to another part of the city, where defendant had some wood stored, to pile and measure a quantity and get it ready for the drivers. On his way there, while crossing a street, he was run into by a passing automobile, knocked down and run over, resulting in injuries which caused his death. The argument of appellants is that the deceased was not an employee within the meaning of the compensation law because he was an employer. And this argument is based upon the fact that he was a stockholder and president of the company. K

Had the deceased been engaged at the time in executive work as an officer of the company, and had done this work incidentally to his own there might be some basis for arguing that he did not, as an employee, come within the act, but those were not the facts. The deceased was regularly engaged as an employee with the title of “yard man,” doing the work of an employee, paid as an employee, and subject to the orders of the manager as an employee, and when struck by the automobile he was on his way to do some work as an employee in obedience to the orders of the manager. The mere fact that back of this employment he was a stockholder of the company and acted as its president, could not alter the character of his employment. Neither his status as a stockholder, nor his position as president, obligated him in any way to perform the work of an employee. Had the company not been an artificial person the argument might be more plausible that he was working for himself, but when he was employed by the manager of a legal entity, we think he was employed by another within the meaning of the act. Part 1, section 7, of Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5429). The confusion which arises from the closeness of the relation between the deceased and the corporation clears up very rapidly, when one considers that the company had a legal entity which was as distinct as that of the deceased, for the purposes of owning property and controlling its affairs. Our conclusion is that the board was justified in reaching the conclusion it did upon this question.

We have read, with some care, the circumstances under which the deceased collided with the automobile, and we see nothing in them in any way indicating that he intentionally or wilfully put himself in the way of the machine.

A rule promulgated by the compensation board excludes persons as arbitrators who are financially interested in the outcome of the case, and persons who are so nearly related to the parties that they may be fairly deemed to be financially interested in the decision. Mich. W. C. C. (1916), page 404.

Appellants insist that because Mr. Forrest C. Badgley was one of the arbitrators, and afterwards represented the widow, on appeal, before the accident board, the rule was violated and the award made invalid. It appears from the statement of Mr. Badgley, who is a reputable attorney, that he was invited by appellants to act as an arbitrator in the case, that he accepted and sat with the other arbitrators and joined in the award. That he had had no previous acquaintance with claimant prior to the day the arbitration began, that he first met her on that day at the arbitration; and that he had never done any business for her. We fail to see how the fact that Mr. Badgley acted for claimant several weeks after the arbitration had ended could have had any influence upon his judgment several weeks prior to that time. Nothing has been' made to appear of record that would lead us to any such conclusion. We think the objection- is without merit.

Finding no error in the record, the conclusion of the accident board will be affirmed, with costs to the plaintiff.

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


author: Brooke, J.

text:
    STEIN v. PACKARD MOTOR CAR CO.
    1. Master and Servant — -Workmen’s Compensation Act — Claim: Need Not be in Writing.
    It is not necessary that a claim for compensation tinder the workmen’s compensation act (part 2, § 15, 2 Comp. Laws 1915, § 5445) be made in writing.
    2. Same — Claim® Barred Aeter Six Months.
    A claim for compensation under said act not made until more than nine months after the accident is barred by the terms of the statute, wbicb requires a claim to be made within six months.
    3. Same — Limitations—Notice—Estoppel.
    Where plaintiff, after receiving medical and hospital treatment at defendant’s expense, returned to work on the eighth day after the accident, and, in response to his query as to what defendant was going to do about it, was correctly informed by defendant’s physician who treated him that he was entitled to nothing under the law, as he had not been out of work two.weeks, it cannot be said that what was said amounted to a claim for compensation under the law, or that defendant, by reason of its knowledge of the injury and its treatment of plaintiff, was estopped from relying upon the limitation imposed by the statute.

      On the question as to time within which notice must be given or other steps taken in action for injuries under Workmen’s Compensation Acts, see notes in L. R. A. 1916A, 86 and 244, L. R. A. 1917D, 138.

      Certiorari to Industrial Accident Board.
    Submitted April 23, 1920.
    (Docket No. 90.)
    Decided June 7, 1920.
    Charles Stein presented his claim for compensation against the Packard Motor Car Company for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed, and order vacated.

      Beaumont, Smith & Harris, for appellant.

      Behr & Coolidge, for appellee.
   Brooke, J.

On March 4, 1918, claimant received an accidental injury arising out of and in the course of his employment. The injury consisted in the breaking of both bones of the left forearm. Claimant was at once taken to the office of Dr. George, at the company’s plant. (Dr. George devotes his time to the treatment of defendant’s injured employees and is in charge of defendant’s compensation department.) The arm was put in a splint and was set the following day at Harper hospital under a fluoroscope. Claimant carried his arm in a cast.

On the 8th day after the injury, he returned to work and from that time up to the date of the hearing before the industrial accident board he qontinued in the employment of the defendant, earning wages as great as or greater than he received at the date of his injury. He made a claim in writing for compensation on December 10, 1918 — nine months and some days after the receipt of the injury. Interrogated with reference to the written notice, he testified:

“Q. Was that the first one? * * *
“A. Yes, sir. * * *
“Commissioner Reaves: Yes, 1918. There is our stamp as we received it there, just to identify it. Did you ever make any claim to the Packard Motor Car Company prior to the time that you sent this in?
“A. No, before that I asked Dr. George what he could do about it and he said he didn’t think he could do nothing so I went back to work. I said I couldn’t lay around ten weeks and accept $2 a week and so I went back to work and put in my time.
“Q. What did you say at that time?
“A. I asked him what they could do for the time I lost. He said they wouldn’t do anything on account of not being off two weeks. I says I can’t lay off. I says, my arm is in a cast and I can just as well sit there as sit home so I went out there and did all I could with one hand and got my pay for it.
“Q. Do you remember the exact words you used at that time to Dr. George?
“A. That is about what I told him.
“Q. Asked him what they were going to do about it?
“A. I asked him what they were going to do about the time I lost. He said I didn’t lay off two weeks. I said, T can’t lay off two weeks just to wait for it,’ and so I went in on the 8th day.
“Q. Did you ever say anything about it to him after that?
“A. No, he is the only man I talked with about it. He told me that. That is all I thought I could get.
“Q. After December 10, you filed your claim with us?
“A. Yes.
“Q. Did you file claim at the same time with the Packard Motor Car Company?
“A. Yes, sir.
“Q. Filed the original with them and copy with us?
“A. Yes, sir.
“Q. I think that is all.
“By Mr. Smith: Q. In your affidavit, Mr. Stein, is that your signature there (indicating) ?
“A. Yes.
“Q. Do you remember Signing that at Mr. Coolidge’s request?
“A. Yes.
“Q. In this affidavit you say:
“ ‘Plaintiff further states that he was informed by said Dr. George and likewise hy an expert surgeon called in for consultation hy said respondent that the chances for success and of said proposed operation were far from sure. Plaintiff further states that at this time he first became aware of the fact that his injury was permanent and that the condition of his arm would not improve; that he thereupon refused to submit to such operation and promptly thereafter served and filed notice of claim for injury authorized under the compensation law of the State of Michigan.’
“This notice which has been called to your attention; you recall swearing to this in your affidavit?
“Mr.-Coolidge: Is that sworn to?
“Q. Stated; you recall signing that statement?
“A. Yes.
“Q. And that is the first time you filed any notice with the Packard Motor Car Company or with the accident board under the compensation law?
“A. Yes, sir.
“Arbitrator Joncas: What is the date of that statement?
“Q. The statement is dated the 8th of February, 1919, and notice of the claim was dated December 10, 1918. That is your signature there?
“A. Yes, sir.
“Q. And that is the notice that was served on the Packard Motor Car Company at that time?
“A. Yes, sir.
“Q. And all you talked with Dr. George about just about the time of the accident was about your loss of time, as you stated?
“A. Yes, that is all.
“Q. Now,—
“A. I didn’t know at that time the way the arm was going to come out.
“Q. No, you didn’t know that until after this session at the hospital when you talked about the operation?
“A. Yes, sir.
“Q. That is the first time you thought you ought to file claim against the company?
“A. .He gave me good advice my arm would be all right so I went by his instructions thinking it would turn out that way.
“Q. If it had turned out and you hadn’t found out you couldn’t get a guaranteed operation you didn’t have any intention of making a claim as you did, in other words?
“A. No, if I could use all my arm.
“Q. And the first time you got around and determined you wanted to make a claim was when they told you they couldn’t guarantee it and you made up your mind you didn’t want to take a chance on the operation?
“A. Yes.
“Q. Now, I notice in this first part of December there is quite a little time lost there. Were you away or did you stop work or what was that lay-off?
“A. December after the accident?
“Q. Yes.
“A. Yes, I had sickness at home in the family.
“Q. So you say that lay-off in the latter part of November and first of December was due to that sick- ■ ness?
“A. Yes.
“Q. That is all.”
Touching the same point, Dr. George testified as follows:
“Q. How long was Mr. Stein off at the time of the injury — off work — as far as you know?
“A. About a week.
“Q. Did you have any conversation with him at that time about the injury and about his working?
“A. Yes, he asked me if he was getting pay for the time he was losing and I told him no and that the compensation law did not apply unless he was out two weeks, and he suggested — while he thought'the company ought to give him something because it wasn’t his fault that he got hurt — under the circumstances he thought the best thing for him to do was to return to work if they would allow him to work out there at such work he could do with the plaster cast on.
“Q. Did he go back to work then?
“A. Yes, about a week after the arm was broken.
“Q. That is inside of two weeks he went back?
“A. Oh, yes, inside of two weeks he went back.
“Q. Did he state anything to you indicating any intent to make claim against the Packard for injury?
“A. No, he seemed satisfied. He was cared for right along.”

Defendant having denied liability, an arbitration was held, which resulted in a denial of relief to claimant, the committee holding:

“* * * Charles Stein is not entitled to receive and recover compensation from said respondent, Packard Motor Car Company, as no claim for compensation was made within six months of the accident.”

The statute — section 15, part 2, of the workmen’s compensation law (2 Comp. Laws 1915, § 5445) — provides :

“No proceedings for compensation for an injury under this act shall be maintained, * * * unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same.” * * * ’

The act does not in terms require that the claim for compensation be made in writing and this court has never so held. It is undisputed upon this record that no written claim for compensation was made by claimant until December 10, 1918, too late to comply with the statute; but it is urged that the conversation between claimant and Dr. George, as .testified to by claimant, constitutes such a claim for compensation as would satisfy the statute, and it was so held by the board on appeal.

We are unable to agree with this holding. It seems quite plain, upon a perusal of this testimony, that what claimant was seeking at that time was knowledge as to whether he would be paid for the time he was losing (seven days had already elapsed) and he was properly advised by Dr. George that under the law he would not be paid for that lost time, it being less than two weeks. It seems quite clear that he determined to make a claim for compensation only after he had refused to submit to an operation, for he testified :

“Q. And the first time you got around and determined you wanted to make a claim was when they told you they couldn’t guarantee it and you made up your mind you didn’t- want to take a chance on the operation?
“A. Yes.”

We must hold, without considering the other two questions raised by appellant, that claimant is entitled to no relief. Brown, v. Weston-Mott Co., 202 Mich. 592; Rubin v. Fisher Body Corp., 205 Mich. 605.

The claim that the defendant should be held to be estopped from urging claimant’s failure to make his claim seasonably is without merit. Nothing was done by the defendant or any of its officers by act or word, so far as this record discloses, to induce claimant to withhold the filing of his claim. Defendant gave him employment as soon as he was able to perform his work and paid him as much or more than he received before. It afforded him the best medical attention possible. These humanitarian acts surely should not be held to work an estoppel in favor of claimant and against defendant.

The award of the board is reversed and held for naught.

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


text:
    McMORRAN MILLING CO. v. PERE MARQUETTE RAILWAY CO.
    1. Easements — Abandonment—Equity — Jurisdiction — Injunction.
    Where the creation of an easement by deed is not denied by defendant, but the claim is made that it has been abandoned by plaintiff, equity is the proper forum to establish or confirm a right of way.
    2. Same — Ejectment Will Not Lie to Recover an Easement.
    While the only action at law that would give a party possession, or a right to the possession, of real estate, is ejectment, it has been held, that in this State ejectment will not lie to recover an easement.
    3. Same — Continuing Trespass — Right to Writ of Injunction.
    A party need not submit to an invasion of his rights and content himself with suing for damages, but he has a right to have the continuing trespass stopped by an injunction.
    4. Same — Abandonment—Evidence—Sufficiency.
    Evidence held, sufficient to sustain the conclusion of the court below that plaintiff had not abandoned the easement.
    5. Same — Nonuser Not an Abandonment.
    Mere nonuser of an easement, without a clear intent to abandon, does not amount to an abandonment; nor will nonuser for a less time than that required by the statute of limitations give rise to a presumption of abandonment.
    6. Same — Injunction—Laches.
    Where it appears, in a suit by the owner of land to restrain defendant railroad company from obstructing a street crossing to which plaintiff had an easement by deed, giving it ingress and egress to and from its land, that plaintiff stood by and saw the crossing closed, contenting itself with merely protesting against the same, that it has been closed for from nine to twelve years, and in the meantime defendant has incorporated it in its yard, and made many important and expensive changes which it would be costly to abandon, and that the public safety and interest would suffer by reason, of tbe amount of freight shipped over said point if said crossing were re-established, and that the damages to defendant would be grossly disproportionate to any benefit which could accrue to plaintiff, who has access through another street less than 300 feet away, held, that plaintiff has lost its right to the gracious writ of injunction by its inaction, and the case will be remanded to the court below with direction to determine the amount of plaintiff’s damages and to enter a decree for same.
    Appeal from St. Clair; Tappan (Harvey), J.
    Submitted January 6, 1920.
    (Docket No. 15.)
    Decided June 7, 1920.
    Rehearing denied July 20, 1920.
    Bill by the McMorran Milling Company against the Pere Marquette Railway Company to enjoin' the obstruction of certain* easements. From a decree for plaintiff, defendant appeals.
    Modified, and affirmed.

      Walsh & Walsh, for plaintiff.

      Shields, Mérrima & Sleeper (Lincoki Avery, of counsel), for defendant.
   Stone, J.

The' bill of complaint herein was filed in January, 1918, to restrain the defendant from obstructing two alleged easements of right of way over the easterly end of Court and Water streets, in the city of Port Huron, leading to plaintiff’s property, and praying that defendant be required to maintain.and keep clear such crossings, so that plaintiff may have ingress and egress to its property lying east of defendant’s premises. The court below granted relief to plaintiff as to Court street, and defendant has appealed. The plaintiff has not appealed.

The easement in litigation was reserved in a deed executed June 1, 1885, by former owners of the plaintiff’s property, conveying to the Port Huron & North Western Railway Company of Michigan, through whom the defendant acquired title, property now comprising that part of the yard through which a crossing is desired. The pertinent portion of the deed is as follows:

“But subject to the conditions and reservations hereafter mentioned. The condition is that said party of the second part, its successors and assigns, shall provide, keep and maintain suitable and convenient crossings of all railway tracks in the line of Court street and Water street, as shown by said plat, for the purpose of ingress and egress to and from the mill property of McMorran & Co. and for business property on St. Clair and Black rivers, and the reservations are of the right of said parties of the first part, ■ their heirs, executors, administrators, and assigns, at all times, to cross said land and tracks, and in the event of neglect or failure of said second party, its successors and assigns, to provide, keep and maintain said crossings, the right to provide, keep and maintain the same, charging to and collecting from the said party of the second part, its successors and assigns, the expense thereof; also any and all legal rights in the premises resulting from non-fulfillment of the conditions aforesaid by said party of the second part, its successors and assigns.”

The property of the plaintiff to which this easement was reserved as appurtenant, consists of a two-acre tract of land bounded upon the north and east by the Black and St. Clair rivers, respectively, and upon the south and west by the yard of the defendant.

The property of the plaintiff comprises lots A, 39, 40 and B, of the Harrington plat of the city of Port Huron. A map of the property of the plaintiff entitled “Map for Henry McMorran” introduced as plaintiff’s exhibit “C” is appended hereto. That portion of the yard lying west of the plaintiff’s property is the land which was conveyed to the Port Huron & North Western Railway Company by the deed above referred to, and across which the easement in question is claimed. At the time of the conveyance to the railway company, a flour mill, pea mill and elevator were located upon the plaintiff’s, property. These buildings were destroyed by fire in 1900, and have never been rebuilt. A small gravel dump has been maintained at the northern end of the property since 1906 or 1907 by the plaintiff and present owner. Two sheds were constructed for use in this gravel business. Most of the gravel which has been sold has been removed by rail, only a small quantity having been taken out by teams. The amount of gravel which has been sold has been so small that the plaintiff has not derived any profit from this business. In fact, as was testified to by plaintiff’s witnesses, no business enterprise of any importance has been conducted upon the plaintiff’s property since the destruction of the mills and elevator in 1900.

The yard of the defendant consists of a main track and numerous sidings extending in a northerly and southerly direction, as they appear on said map. The sidings are connected with the main line by two “lead tracks” extending diagonally across the northerly and southerly ends of the sidings. The northerly of these two “lead tracks” extends easterly past the sidings to the car ferry slip on the bank of the St. Clair river. The whole yard thus formed is about a half mile long and about 400 feet wide.

The entire yard, together with all the other property and assets of the Port Huron & North Western Railway Company, were conveyed to the Flint & Pere Marquette Railroad Company in 1889, which in turn conveyed to the Pere Marquette Railroad Company ten years later. In 1907 the latter corporation conveyed to a new corporation bearing the same name. The defendant and present owner acquired the property in 1917 at a mortgage foreclosure sale of the assets of the Pere Marquette Railroad Company. The tracks above described constitute the only yard of the defendant in Port Huron. All freight transported from this section of the State, or any points in the State north, and west of this locality to eastern points, or any of the local industries situated around Port Huron, and vice versa, passes through this yard. Trains containing cars moving to or from eastern points have to be broken up in this yard when taken on or off the ferry. Trains for movement within the State also are assembled and broken up here. About two-thirds of this freight consists of traffic with the east, and about one-third of local shipments. It should be borne in mind that this statement is made from testimony taken in September, 1918, and in “war times.” The amount of traffic moving through the yard has greatly increased during recent years, and the number of cars handled has doubled since 1906. There was testimony that at that time the yard was too small for handling the amount of traffic moving through it. In addition to the freight moving through the Port Huron yard, all passenger trains running between that city and other points on defendant’s line pass through, and are made up'in this yard. The passenger station is located on the westerly side of the main track in the northerly end of the yard, as indicáted in the annexed map. This depot was built in 1913 or 1914, the old passenger station, which was located south of Court street, having burned. At the time the new station was built a brick platform was constructed extending from the station in a southerly direction, parallel to the main track, for a distance of about 250 feet. We have to deal primarily with the Court street crossing. By its amended answer, filed before the hearing and authorized by a nunc pro tune order (and the testimony in support of which was not objected to), the defendant, among other things, admitted the allegation of the bill that it had left its cars standing across Court street for long periods of time, and had used its said tracks at what was formerly the crossing of Court street as a place for shunting its cars back and forth, whereby the plaintiff was deprived of any ingress and egress from its said property by means of what was formerly Court street; that defendant and its predecessors in title had so operated its. said tracks at the intersection of what was formerly Court street for the shunting, switching and storage of cars as aforesaid with the full knowledge of the plaintiff ever since 1903; that in 1903, all crossing boards, planks and crossing signs, etc., were removed from said crossing and that plaintiff, and its agents and representatives, and predecessors in title knew of the removal of said planks and crossing boards and signs, etc., at the time they were, removed, yet neither the plaintiff nor its representatives or predecessors in title made any objection whatsoever to such removal; that ever since said crossing1 was so closed in 1903, defendant, and its predecessors in title, have openly and notoriously, and in defiance of any right the plaintiff may have had to cross, said tracks, at the said crossing, used the said tracks formerly intersected by Court street, for the shunting, switching and storage of cars and locomotives, and the passage of trains, with the full knowledge of the plaintiff, and its agents and representatives and predecessors in title; that whatever crossing formerly existed at Court street has been continuously and permanently closed since 1903, and has been at all times since 1903 impassable to traffic of any sort, because of its use as aforesaid, by this defendant and its predecessors in title, with the full knowledge of the plaintiff, and its agents, representatives and predecessors in title; that at the time said crossing at Court street was closed, neither the plaintiff nor its agents, nor representatives, nor predecessors in title made any complaint, or offered any objection whatsoever to the closing of said crossing, and that no objection to the continuous obstruction of said crossing had been' made prior to the time this bill was filed; and that the opening of said crossing at Court street, as is prayed in this bill would involve a great amount of labor, and the expenditure of large sums of money for the reconstruction of proper pavement, roadway, planking, etc.

.'he defendant offered testimony tending to support said claim, and it claims that the testimony fixes the date at which said Court street was first obstructed as not later than 1905 or 1906, and also claims that very little use was made of the crossing before that time. It is very apparent that the brick platform which was constructed when the new station was built, being directly across the line of Court street, also rendered the use of such crossing impossible. All traffic since the closing of Court street has been carried on by way of Water street, the two crossings being about 250 or 300 feet apart. The defendant contended below, and contends here:

(1) That the plaintiff is not entitled to an injunction restraining the defendant from obstructing the alleged crossing at Court street because the existence of that easement is in dispute, and has not been established by an action at law.

(2) If the questions involved in the determination of the right of the plaintiff to an easement were cognizable in a court of equity, the evidence introduced in this case would impel a finding that easement has been lost by abandonment.

(3) Even if the existence of the easement claimed by plaintiff were not disputed, the plaintiff has lost any right that it originally may have had to equitable ■relief by laches.

(4) Regardless of what the equities of the case may be as between the plaintiff and defendant, the great ■injury which would be occasioned to the public inter"ests from the granting of an injunction would be so .grossly disproportionate to any benefit which would .accrue to the plaintiff, that equitable relief should be withheld.

The learned circuit judge filed an opinion in the nature of a finding, and after having stated the date of the burning of the mills and elevator, he referred to the fact (which we have not alluded to because not embraced in the pleadings) that the Pere Marquette officials tore out and removed the industrial,track that plaintiff had constructed on its property known as lots A, 39, 40 and B, and that this line extended from the Grand Trunk Railway track north to the mills and elevator of the plaintiff. He then refers to the fact that the removal of this track resulted in a long controversy between the parties concerning the replacing of the track and the blocking of Court and Water streets. The defendant company finally replaced the track some two or three years before the hearing, but did not connect with the Grand Trunk Railway, but only with its own line. In order to reach the Grand Trunk Railway plaintiff is obliged to pay switching charges.

There is no question that the discontinuance of traffic by, the White Star Line steamers reduced the traffic very materially at Court street.

The trial judge referred, in his findings, to the fact that the evidence showed that when the various tracks were originally put in across Court street the railroad company put in a plank crossing on each track; that after the White Star Line discontinued operations, this plank crossing across Court street was gradually removed by the railroad company, the circuit judge finding that the last removal was in 1914, although most of it had been removed before that date. The conclusions reached by the circuit judge were in substance as follows:

“1. Jurisdiction of the Court.
“It is my conclusion that a court of equity has jurisdiction to hear and determine the issues raised in this cause. It is undisputed that plaintiff reserved an easement of ingress and egress to and from their remaining lands as specified in exhibit B. The undisputed testimony of Mr. McMorran is to the effect that he continued to protest to the officials of the Pere Marquette Railway against the removal of the plaintiff’s industrial track and also against the closing of the streets in question. It is also undisputed that in 1906 or 1907, Mr. McMorran, acting for plaintiff, discussed the matter of the railway company tearing up plaintiff’s industrial track and blocking Court street and Water street.”

The co'urt then quotes certain testimony of Mr. Mc-Morran relating to an interview with Mr. Trump, the superintendent of the railroad company, and adds:

“After Superintendent Trump’s agreement in 1906 or Í907 to give plaintiff free access to and from Court street and Water street, by remedying the team question until the matter could be adjusted later, the officials of the railroad company let the controversy drag along until five or six years ago, 1912 or 1913, when they replaced the track they removed, but failed to adjust the crossing question. It also appears in proof that no official of the road has at any time before this suit was instituted made any claim that plaintiff had lost or abandoned their easement in question.
“The legal question as to jurisdiction is this: Plaintiff’s easement is a part consideration for defendant’s title to the land in the street crossing. Upon controversy as to defendant’s trespasses upon plaintiff’s rights'therein, defendant agrees to adjust the .matter at a later date, not fixed. They also assure plaintiff that they have no intention to and do not want to deprive plaintiff of the easement reserved. Six years after this agreement and assurance defendant settles a portion of the disputed matter by replacing the plaintiff’s industrial line, but continues to block the streets without either adjusting the dispute or advising plaintiff, that they did not intend to do so.
. “Is plaintiff’s failure to further claim or enforce his rights evidence of abandonment? Does such evidence of abandonment tend to establish title to the street crossing in defendant, freed from the easement, thus making the question one of fact for a jury in an action at law? It is my conclusion that these questions must be answered in the negative. Defendant cannot by means of such promises and assurances hold possession and continue trespasses to establish or raise a question of title. The matter involved is one of repeated and continued trespass that cannot be adequately adjusted in an action at law.
“2. Abandonment by Plaintiff.
“Upon the question of abandonment of the easement in question by plaintiff, the character and location of the property involved has an important bearing. Its frontage on St. Clair river affords the benefits of deep water navigation to upper and lower lake ports. The frontage on Black river affords extensive dock facilities. Two principal roads afford transportation directly to and from the property. With suitable street approaches as provided for in plaintiff’s exhibit B, there can be no doubt that the property is very valuable for factory or shipping purposes.
“The undisputed testimony of Mr. McMorran is to the effect that it is worth $35,000 with the streets open, and about half that amount with Court street closed to traffic. While it may be doubted that with Water street open the closing of Court street would reduce the value of the property one-half, there can be no doubt that it will be much more available for factory or shipping purposes with that approach opened.
“With these facts in view it is incredible that the plaintiff, or Mr. McMorran acting for it, has at any time intended to abandon its. rights to reach its property over Water street and Court street as provided in the deed referred to. It is my conclusion that there is no proof of intention to abandon, and no abandonment of easement as contended for by defendant. * * *
“3. Water Street.
“It is my conclusion that the proofs do not warrant action by the court to control the operation of defendant’s trains, cars or locomotives at Water street. The evidence indicates that traffic at that point has not been unreasonably delayed for a considerable time prior to the hearing of this cause.”

A careful consideration of this record satisfies us that the holdings of tne court below upon the subjects of jurisdiction of the court, the claimed abandonment by the plaintiff, and the disposition of the case with reference to Water street, are fully justified by the evidence in the case. We express no opinion as to the value of the premises of the plaintiff, nor to the injury occasioned thereto by the closing of Court street.

The trial court held that it was the duty of the defendant to provide for and keep open a passage over its tracks at Court street, and accordingly enjoined the defendant from obstructing the Court street crossing, allowing the defendant one year to comply with the decree to avoid interrupting the traffic of the defendant in the transporting of munitions and materials used, for war purposes. It is that portion of the decree requiring the defendant to reopen the crossing through its property at the foot of Court street which is complained of by the appellant in this case.

As no cross appeal was filed by the plaintiff, the propriety of the findings of fact and law made by the trial court relative to Water street need not be considered. Proctor v. Robinson, 35 Mich. 284; Herpel v. Herpel, 162 Mich. 606.

Is the existence of the easement so in dispute that it must first be established by an action at law? We think not. It will be noted that the creation of the easement by deed, in the first instance, is not denied. What is really claimed by the defendant is, that the easement has been abandoned. We are of the opinion that it has been settled in this State that a court of equity is the proper forum to establish or confirm a right of way. Nye v. Clark, 55 Mich. 599; Lathrop v. Eisner, 93 Mich. 599 and cases there cited; Murphy Chair Co. v. Radiator Co., 172 Mich. 14; Berkey & Gay Furniture Co. v. Milling Co., 194 Mich. 234; Grinnell Bros. v. Brown, 205 Mich. 134.

In the Grinnell Case Justice FELLOWS, speaking for this court, said:

“The plaintiff as vendee in this land contract had< such an interest in the premises as justified the filing of this bill. Its rights under the contract would be invaded by the erection of the structure originally contemplated and planned for. To prevent this invasion of its rights, it chose the proper forum.”

The only action at law that would give a party possession of real estate, or a right to the possession of real estate, is ejectment. But it has been held that in this State ejectment will not lie to recover an easement. Taylor v. Gladwin, 40 Mich. 232; City of Detroit v. Railway, 172 Mich. 136, 148, and cases cited; Graham v. City of Detroit, 174 Mich. 538 (44 L. R. A. [N. S.] 836); see cases cited at page 542.

If it is claimed that plaintiff should have brought an action of trespass, it should be borne in mind that we have held that a party need not submit to an invasion of his rights and content himself with suing for damages. He has a right to have the continuing trespass stopped by an injunction. Hall v. Nester, 122 Mich. 141; Rhoades v. McNamara, 135 Mich. 644, and cases cited on page 645.

Has plaintiff abandoned the easement? We think not under the evidence in this case. We have examined more than a score of cases cited by counsel, and are of the opinion that the court below was right in its conclusion upon this subject. Certainly mere nonuser does not amount to an abandonment in such a case. Day v. Walden, 46 Mich. 575; Lathrop v. Elsner, supra; Murphy Chair Co. v. Radiator Co., supra.

There must be a clear intent to abandon. Nonuser for a less time than that required by the statute of limitations is no presumption of an abandonment. Jones v. Van Bochove, 103 Mich. 98. There must be some act on the part of the dominant owner clearly indicating an intention to give up and abandon the easement. By the clear weight of authority the better doctrine seems to be that mere nonuser of a way, arising either by prescription or grant, for a- period short of the statute of limitations, will not extinguish the easement, unless accompanied by an intention on the part of the dominant owner to abandon it. See collection of authorities in note to Trimble v. King, 22 L. R. A. (N. S.) 880 (131 Ky. 1, 114 S. W. 317).

The third and fourth propositions of the defendant may be considered together. The evidence is in conflict as to whether complaint or objection had been made by plaintiff to the closing of Court street. That it has been closed from nine to twelve years cannot be denied. At most all that can be claimed by plaintiff is that there was a mere protest on its part. In the meantime a new passenger station has been constructed upon the northerly line of Court street, and a brick platform built directly across the easement. The volume of freight carried through this yard has practically doubled since the crossing was first closed. The reopening of Court street would greatly reduce the number of cars which could be switched through the yard, and the expense of operating the business of defendant would be greatly increased. With Water street open — less than 300 feet away, Should an injunction be granted as to Court street under all the circumstances of the case, as they appear in evidence? With the numerous tracks in the yard, Court street, if opened, would be a dangerous crossing at best. The public safety and the public interest in such a case should be considered.

Has plaintiff lost its right to the gracious writ of injunction by its inaction since the closing of Court street? We think there is much force in the claim of defendant that the granting of an injunction would be grossly disproportionate in damages to defendant to any benefit which could accrue to the plaintiff. The following language taken from 14 Ruling Case Law, Title “Injunctions,” § 64, p. 363, is pertinent here:

“There is no hard and fast rule as to what constitutes laches, which has been defined as an inexcusable delay in asserting a right. Generally if there has been unreasonable delay in asserting claims, or if, knowing his rights, a party does not seasonably avail himself of means at hand for their enforcement, but suffers his adversary to incur expense or enter into obligations or otherwise change his position, or in any way by inaction lulls suspicion of his demands to the harm of the other, or if there has been actual or passive acquiescence in the performance of the act complained of, then equity will ordinarily refuse her aid for the establishment of an admitted right, especially if an injunction is asked.”

We quote the following language of the supreme judicial court of Massachusetts found in Levi v. Railway Co., 193 Mass. 116 (78 N. E. 853) :

“ Tt is not every case of a permanent obstruction in the use of an easement that entitles the aggrieved party to a restoration of the former situation. Each case depends on its own circumstances. It is for the court, in the exercise of a sound discretion, to determine in such instances whether a mandatory injunction shall issue. It will not be issued when it appears that it will operate inequitably or oppressively, nor when it appears that there has been unreasonable delay by the party seeking it in the enforcement of his rights, nor when the injury complained of is not serious or substantial, and may be readily compensated in damages, while to restore things as they were before the acts complained of would subject the other party to great inconvenience and loss.’ Starkie v. Richmond, 155 Mass. 188, 195, 196 (29 N. E. 770), citing 2 Story Eq. Jur. 959a; Kerr on Injunctions (1st Am. Ed.), 231; Royal Bank of Liverpool v. Grand Junction Railroad Co., 125 Mass. 490; Lewis v. Chapman, 3 Beav. 133; Gaskin v. Balls, 13 Ch. D. 324; Aynsley v. Glover, L. R. 18 Eq. Cas. 544.
“No discussion is required to show that upon the facts found by the master, this case is one which' calls' for the application of this principle. It is manifest that to restore things to the former situation would subject the defendant to great inconvenience and loss, and is inequitable, and that the decree ordered by the trial court sufficiently provides for the wants of the plaintiff as to the right of way. She should, however, have recompense for the damages in the past, and the bill may be retained to assess such damages. Jackson v. Stevenson, 156 Mass. 496 (31 N. E. 691).”

This principle has been recognized and acted upon in the following Michigan cases: Blake v. Cornwell, 65 Mich. 467; Allen v. Thornapple Electric Co., 144 Mich. 370; McKee v. City of Grand Rapids, 137 Mich. 200; Stock v. City of Hillsdale, 155 Mich. 375.

In the McKee Case a riparian owner sought to enjoin the pollution of a watercourse running through his property caused by sewage from the city. It appeared that this infringement of the plaintiff’s rights had continued for a number of years, during which the city had constructed an expensive sewage system, which could not be used without extensive changes, if an injunction were issued prohibiting the defendant from polluting the water. This court said:

“As against the city the complainants are not now entitled to the gracious writ of injunction to compel the city to undo what it has done. The purchase of the island, the intention to connect it with the mainland and to close up the sluiceway, and the progress of all these important and extensive improvements were known to the complainants. They contented themselves with a mere protest at some stage of the proceedings. Two courses were then open to them: (1) To file a bill in equity to enjoin the work on the ground that it would increase the nuisance already existing, and cause them irreparable damages; (2) to wait until the work was done, and bring an action at law for damages. They waited. Equity will not now lend its aid to a party to compel an expensive work to be undone, which the party might, by planting a bill in equity in reasonable season, have prevented. (Citing many cases.) A mere protest, under such circumstances, will not open the door of equity to parties who thus delay in seeking its aid. (Citing authorities.) When these complainants chose to content themselves with the simple protest, and then to stand by in silence, and see these extensive and valuable improvements progress, they estopped themselves to any remedy by injunction.”

In the Blake. Case and in the Allen Case, the evidence having warranted it, this court fixed the compensation for “past and future damages” to be paid to complainants.

In the Stock Case it was held that although the plaintiff was not entitled to an injunction, the court having obtained jurisdiction would retain vit, and award plaintiff his damages in gross. The decree was modified and the case remanded, with the privilege of taking testimony upon the distinct question of damages in gross. That course will be followed here. The decree below will be modified to the extent that an injunction will be denied, and the case remanded to the circuit court, in chancery, to take testimony upon the distinct question of the “past and future damages,” or damages in gross, sustained by the plaintiff by reason of the closing of the crossing at Court street; and for this amount as determined by the court below, a decree will be entered by that court for the plaintiff, with costs.

As so modified, the decree below will be affirmed, with costs to plaintiff.

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