author: Stone, J. McAlvay, C. J.

text:
    LEWIS v. DOYLE.
    1. Duress — Contracts—Evidence.
    Duress exists where one is induced by the wrongful act of another to make a contract or perform some act under circumstances wbicb prevent his exercising his free will.

    2. Same — Husband and Wife — Married Women.
    A wife may undoubtedly avoid a contract, otherwise valid, made by reason of the threatened criminal prosecution of her husband.

      3. Same.
    In cases based on alleged duress, tbe question is whether the complainant acted under the coercion of threats made by the defendant or his employees.
    4. Same — Married Women.
    The mere fact that complainant’s husband informed her that he had misappropriated money belonging to his employer, 'and feared he would be forced to go to jail, was not sufficient evidence of duress to avoid conveyances of the complainant to such employer of her husband in satisfaction of the claim.
    5. Husband and Wife — Married Women — Contracts.
    A married woman may convey her property in payment of, or as security for, her husband’s debt, and such contract is sustained by sufficient consideration.
    McAlvay, C. J., and Kuhn and Moore, JJ., dissenting.
    Appeal from Ottawa; Cross, J.
    Submitted November 4, 1913.
    (Docket No. 63.)
    Decided July 25, 1914.
    Bill by Dina Lewis against Edward M. Doyle for the cancellation of certain instruments of conveyance. From a decree for complainant, defendant appeals.
    Reversed.

      Jarrett N. Clark, for complainant.

      Corte C. Coburn, for defendant.

       As to contracts procured by threats of prosecution of a relative, see notes in 26 L. R. A. 48; 20 L. R. A. (N. S.) 484, and 37 L. R. A. (N. S.) 539.

   Stone, J.

In this case the complainant filed her bill of complaint to set aside certain instruments, by the terms of which she conveyed her interest in the estate of her deceased father to the defendant.

Complainant, by her bill of complaint, claims that the instruments were procured from her under circumstances which amounted to duress, and for the sole consideration of preventing her husband from being prosecuted for embezzlement, and sent to the penitentiary.

The complainant is the daughter of Jan Van Eenenaam, and she was married to one William A. Lewis. The complainant and her husband lived in Zeeland, Mich., for a time, and in 1906 went to the State of California because of the ill health of Mr. Lewis, who had consumption. At Riverside, Cal., Mr. Lewis-secured employment with the Riverside Steam Laundry Company. He remained in the employ of the said company from June, 1907, to the last of November, 1909, when he was discharged because he had misappropriated some $1,900 belonging to the company. He had been employed as a driver of one of the wagons of the company, and his duties required him to collect the laundry and deliver the same, and also to collect the money due for the laundry work. The misappropriation was of funds so collected by him.

Upon discovering the shortage, or misappropriation, negotiations were had which resulted in the complainant conveying to the defendant all of her interest in the estate of her deceased father in Michigan, with an agreement back, to pay over to complainant any sum of money which might be received from the property in excess of the sum of. $1,900. A few months prior to the time of the discovery of the misappropriation of the money by Lewis, complainant’s father had died in Michigan and left a will by the terms of which complainant had an interest in his estate. A copy of the will had been sent to the complainant. The defendant- had been informed that the complainant had inherited some property, and he also knew that Mr. Lewis had no property. Mr. Lewis and defendant talked of a settlement of the shortage, and Mr. Lewis asked that he be given a day or two to arrange for a settlement, and informed the defendant that he desired to talk it over with his wife. Upon this branch of the case the complainant testified as follows:

“While in California, Mr. Lewis at first worked at a grocery store, and then secured employment from the Riverside Laundry Company, and remained in their employ about-three years, until the fall of 1909. That the reason he quit the employ was that Lewis said to, complainant, his wife, that he was short in his accounts about $1,900. He came home on Tuesday; seemed to feel very 'sad; went into the parlor; sat in the Morris chair. I saw he was crying, and he said Doyle said he was- short in his accounts nearly $1,900, and he said, T am out of work.’ That was the first time that complainant knew her husband was short in his accounts. That the next day he said he asked to see the books, and that Mr. Doyle refused to show them to him. He said, ‘Now, what can you do?’ I said, ‘Will, I can’t do nothing; I have got my two little babies here, and can’t do nothing.’ He said, ‘Something must be done, because I don’t want to go to the penitentiary.’ * * * ' Three days later Mr. Lewis came home in the laundry wagon, and it was raining, and he says, ‘Now, hurry up and get ready, because Doyle wants us to come to his house;’ and I says, ‘What does he want us to come there for?’ He says, ‘He wants to talk to us.’ I says, T wonder will there be anybody else there;’ and he said, ‘No, there won’t be anybody there but me and my wife.’ I was going to change my dress; I just had a dressing jacket on and an old skirt, and I was going to change it. He said, ‘Don’t get ready; just slip on your coat and go just the way you are. There is no time to waste.’ We went down to Mr. Doyle’s. Mr. Cathcart was sitting there. Never saw him before. Then Mr. Byrne stepped in from the dining room. Mr. Byrne was a lawyer at San Bernardino. Doyle introduced us to Byrne, saying, ‘This is the man who is short in his account.’ And then Mr. Lewis produced a copy of the will, which I did not know Mr. Lewis had. Then Mr. Doyle told me, ‘You and the children go into the kitchen; Mrs. Doyle is there.’ I went and stayed 15 or 20 minutes. The door was closed behind me. I said to Mrs. Doyle, ‘I am awfully sorry I have to come on an errand like this. I hope they won’t send Mr. Lewis to the penitentiary.’ Mrs. Doyle said nothing. After awhile Mr. Doyle came in, and I went into the parlor where the men were. Mr. Byrne read the will to me and said, ‘Now Mrs. Lewis you must sign away your whole inheritance/ and he took that paper, and he hit that like that (indicating) into my face. I thought he was going to slap me with that paper, and he said, ‘If you do not sign that paper we will prosecute your husband, and we will send him to the penitentiary. We have no time to bother; you must hurry and sign that paper/. I did not want him to go to the penitentiary. He was a consumptive husband, and I knew he could not live long. I was a total stranger in Riverside; I didn’t want Mr. Lewis to go there. * * * He took that paper and just went to me and said, ‘Now you shall sign away .your inheritance, because we have no time to bother, and you must hurry up and sign.’ I says, ‘What if you get more than $1,900?’ Then he said, ‘What the balance is we will return to you every penny, what the balance is.’ And then we came home. I signed the paper there to keep my husband from going to the penitentiary. I believed Mr. Lewis would be prosecuted for taking this $1,900 unless I signed it. * * * A week or ten days later the telephone rang and Mr. Lewis answered the phone and said, ‘Doyle wants us to go up to the courthouse and sign a paper.’ It was raining hard, and I said, ‘Why do we have to go today?’ And he said, ‘Doyle said we must go today.’ We went to the prosecutor’s office, and Mr. Lewis took me there, and I signed a paper there; do not know what I signed. I asked no questions and the paper was not read to me. Mr. Evans and Mr. Lewis were in the room when I signed the paper, and I signed that because I thought it would keep him from going to the penitentiary.”

It is undisputed that the instrument first signed by complainant was indorsed upon the back of the copy of the will, and was made to Mr. Byrne in trust for the laundry company, until the value and condition of the property in Michigan could be ascertained, with the understanding that, if the property proved satisfactory, a more formal assignment of the claim of complainant would be made to the defendant, Doyle, in trust for the laundry company. The conditions of the property being satisfactory to the defendant, the instrument of which the complainant speaks as having been made at the prosecutor’s office was a formal assignment in the nature of a quitclaim deed, appearing in the record as Exhibit A which appears to have been signed and acknowledged by the complainant and her husband on the 9th day of December, 1909, and the acknowledgment was before Lyman Evans, a notary public, Mr. Evans being the person referred to by the complainant as the prosecutor. He appears to have been the prosecuting attorney of Riverside county.

After a careful reading of this record, we are of opinion that this case should be disposed of upon the facts and the weight of the testimony. The case must turn upon the facts as to what occurred at the home of Mr. Doyle at the time the first instrument was signed. Upon that subject the defendant, Doyle, testified. Both complainant and defendant testified in open court. In support of the testimony of the defendant there were read in evidence the depositions of Mrs. Edward M. Doyle, W. E. Byrne, and Robert Cathcart. Their testimony as to what occurred at the house is in direct conflict with that of the complainant. Mr. Doyle testified that, after the amount was agreed upon which Mr. Lewis owed the laundry company, Lewis suggested that, instead of having a meeting at the office, it should be held elsewhere, and Mr. Doyle suggested that it could be at his house; that this was done because Lewis wanted to keep the matter t>f his shortage from his friends and the people, and asked Mr. Doyle as a favor to keep that quiet; that there were no threats whatever to arrest Mr. Lewis made at the house; that neither Mr. Doyle nor anybody else said that, if the matter was not settled right up, they would send Lewis to the penitentiary; that the word “penitentiary” was not used, and that complainant and his wife appeared to be anxious to have the matter settled; that no such language was used by Mr. Byrne or anybody else, as testified to by complainant.

Mrs. Doyle testified that shortly after Thanksgiving, 1909, at her home, she and others had a conversation with complainant; that at this time Mrs. Lewis executed a deed of the property in Michigan to W. E. Byrne, which was read to Mrs. Lewis and her husband before she signed it, and that they also read it themselves; that this deed was written on the back of a copy of the will, because there was no other available paper in the house; that the said instrument was prepared at the request and suggestion of Mrs. Lewis; that complainant said she knew her husband was short in his accounts, and that the money had been used for household expenses; that when complainant and her husband came to witness’ house complainant said that they had come to see if they could not make a settlement of the indebtedness of Mr. Lewis to the laundry company, and that they had the means to make such a settlement; that no one said anything to complainant about her husband committing embezzlement, or any other crime, for which he could be prosecuted and sent to the penitentiary; that witness saw Mrs. Lewis during the entire time she was at her home, and heard everything that was said by complainant and by others to her in her presence and hearing; that neither Mr. Byrne nor any one else said to her that she must sign away her inheritance, or sign any paper, or her husband would be prosecuted and sent to the penitentiary; that such language was not used at all by any one; that no one said to her, “Hurry up and sign this; we have no time to waste; you must sign or we will have him sent to the penitentiary,” or words to that effect, or anything of the kind; that nothing was said in her presence and hearing to the effect that unless Mr. Lewis’ shortage was settled that he would or could be arrested, and criminally prosecuted; that at one time the witness and the complainant left the room, and complainant said to her that she was sorry that this had happened, and she would pay every cent back if it took all she had, and that it was very kind of Mr. Doyle to accept the settlement; that the complainant, while at the house, did not appear worried or afraid; that no one said or caused anything to be done which would cause complainant to be frightened or worried; that no one made any threats or attempted to pursuade or coerce complainant or her husband to sign the paper; that Mr. Byrne took the paper in his name at the request of complainant, and was to hold the same until investigation was made of the Michigan property, and that, if Mr. Doyle decided to accept the Michigan property in settlement of Mr. Lewis’ indebtedness, then Mrs. Lewis was to deed the property to him for the laundry company, and that Mr. Doyle should pay Mrs. Lewis all that he received over $1,900 from the sale of the property; that the matter of deeding was fully discussed in the presence of complainant, and that she and her husband both did the talking; that complainant talked with her husband, and thoroughly understood the matter, and was perfectly satisfied.

This testimony of Mrs. Doyle is fully corroborated by the testimony of Robert Cathcart and W. E. Byrne. The deposition of Lyman Evans was also read to the effect that, according to his recollection, Mr. and Mrs. Lewis signed the deed in his presence on December 9, 1909; that he asked her if she fully understood the purpose, nature, and effect of the instrument before he took her acknowledgment; that, while he had no distinct recollection in this case, it was his custom to do this in all cases.

It further appears that in the fall of 1910 Lewis was arrested upon another charge of obtaining money under false pretenses or forgery, and was released on probation, and died in July, 1911.

In September, 1910, Mr. Clark, of Zeeland, Mich., wrote to complainant in behalf of the administrator of her father’s estate, and with reference to the transfer of her interest to the defendant. On the 19th of that month complainant wrote to Mr. Clark in reply, stating that she did not sign over to defendant her entire share of the estate, but had given him a power of attorney to collect $1,900, which represented the amount of money he had loaned to her and her husband. Mrs. Lewis, in her testimony, claims that this letter had been prepared by her husband, and that she had been induced by him to sign and send it, but that it did not represent the facts. Later, and in the month of May, 1911, a paper had been received by Mrs. Lewis which was in the form of a petition to the probate court of Ottawa county, Mich., consenting to an immediate division and distribution of the estate, and waiving a clause which gave her and her sister a five-year use of the income of a certain portion of the estate. As a part of that paper, there was a statement prepared to be signed by defendant, as assignee of all the interest of the complainant in the estate, consenting to the relinquishment of all the rights of Mrs. Lewis in that clause of the will above referred to. This instrument Mr. Doyle declined to sign until he could know more definitely about the amount that would be realized from the estate. On the 8th day of May, 1911, an agreement was entered into between the heirs and legatees of this estate, which had been signed by Dina Lewis and other heirs, which contained, among other things, this clause:

“All the other heirs, legatees, and devisees agree to pay to the said Christina Elgersma (her sister), and Dina Lewis, or her assigns, that amount that would have been paid to them during said five years at the time this estate is closed,” etc.

There ought not to be much question about the law governing a case of this nature, under our decisions. Duress exists where one is induced, by another's unlawful act, to make a contract or perform some act under circumstances which prevent his exercising his free will. Hackley v. Headley, 45 Mich. 569 (8 N. W. 511); Knight v. Brown, 137 Mich. 396 (100 N. W. 602).

Undoubtedly a wife may avoid her contract, otherwise valid, made by reason of the threatened criminal prosecution of her husband. City Nat. Bank of Dayton v. Kusworm, 88 Wis. 188 (59 N. W. 564, 26 L. R. A. 48, and note, 43 Am. St. Rep. 880).

In the opinion of the circuit judge, found in the record, is the following:

“It is not necessary to decide whether or not her husband had committed an offense for which he could be sent to the penitentiary. She (complainant) believed that he had, and she conveyed her inheritance to the defendant for the express purpose of saving her husband from going to the penitentiary, and she was compelled to enter into the arrangement for that purpose.”

If by the closing language above quoted the circuit judge meant that complainant was compelled, by the defendant, to enter into the arrangement, we cannot agree with him.

The question is one of fact whether the complainant acted under the coercion or threats of the defendant or those employed by him. To justify a court in rescinding a contract on the ground of duress, the testimony should be cogent and the case made out by a clear preponderance. The burden is upon complainant to make her case, and the testimony, as a whole, ought to be sufficient to overcome the presumption that the contract was freely made, and was one of fair dealing. From a review of the whole record, we are unable to find by any preponderance whatever that the complainant was deprived of the exercise of her free will by any act of the defendant, or anybody in his employ or interest. The most that can be said from the testimony, as a whole, on behalf of the complainant, is that her husband gave her to understand that he was in danger of a criminal prosecution, and that he feared the penitentiary, and didn’t want to go there. But, unless the defendant was responsible for this conduct of complainant’s husband, her fear, or her husband’s fear, in the matter would not operate as such duress as would justify thfe setting aside of the conveyance.

In the case of Morse v. Woodworth, 155 Mass. 233, at page 250 (29 N. E. 525, at page 528), the supreme judicial court of Massachusetts said as follows:

“The rule as to duress per minas has now a broader application than formerly. It is founded on the principle that a contract rests on the free and voluntary action of the minds of the parties meeting in an agreement which is to be binding upon them. If an influence is exerted on one of them of such a kind as to overcome his will and compel a formal assent to an undertaking when he does not really agree to it, and so to make that appear to be his act which is not his but another’s, imposed on him through fear which deprives him of self-control, there is no contract unless the other deals with him in good faith, in ignorance of the improper influence, and in the belief that he is acting voluntarily.”

In Compton v. Bunker Hill Bank, 96 Ill. 301 (36 Am. Rep. 147), where the wife executed and acknowledged a deed conveying her land to the bank, whose money her husband had embezzled to a large amount, to save him from arrest and criminal prosecution, and it appeared that the wife was urged to make the conveyance by her husband and brother, who informed her that if she would do so the bank would not prosecute, and the bank had no knowledge of, any such representations being made to induce the execution of the deed, nor authorized any to be made, and none of its officers had any conversation with the grantor on the subject, it was held that a court of equity would not set aside the deed for fraud, duress or imposition. See, also, Lefebvre v. Dutruit, 51 Wis. 326 (8 N. W. 149, 37 Am. Rep. 833), to the same effect.

In this State there can be no doubt of the right and power of a married woman to convey her property in payment of, or security for, her husband’s debt, and that such conveyance has a sufficient consideration. Kieldsen v. Blodgett, 113 Mich. 655 (72 N. W. 9).

While complainant testifies that she did not know what instrument she signed on the 9th day of December, 1909, yet she says that she supposed that it was to carry out the arrangement made at defendant’s house. This is true, and is all that that instrument purported to be. This action was taken by her. more than ten days after the first instrument had been signed, and it would seem that there had been sufficient time for her to have considered what she was doing, and to rebut any duréss claimed to have been exercised upon her on the first occasion. Francis v. Hurd, 113 Mich. 250 (71 N. W. 582).

We have examined the numerous cases cited by counsel for complainant and fully recognize the doctrine which those cases announce, but aré of opinion that this case must be disposed of upon the facts and the principle above stated. Not only has the complainant, in our opinion, failed to make out a case for equitable relief by any preponderance of evidence, but the evidence in the case- is overwhelming against her to the effect that she acted voluntarily and freely at the time she executed the two instruments, and that no force,- fraud,' or duress was exercised by defendant, or -by any one with his knowledge.

The circuit court granted the relief prayed for by complainant. We cannot agree with this result. In our opinion, complainant has failed, by the evidence, to make a case entitling her to any relief.

The decree of the circuit court is reversed, and the bill of complaint dismissed, with costs to defendant.

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

McAlvay, C. J.

(dissenting). The facts in this case are clearly stated in the opinion written by Mr. Justice STONE. There is no question of law presented by this record, and it must be disposed of upon the facts presented by the record. I have read- all of the testimony with great care, and after thoughtful consideration I find it impossible to agree with Mr. Justice Stone in his conclusion that the case should be reversed and the bill of complaint dismissed.

The story of this complainant is a simple one. She was a-woman of intelligence and character, with some prospect of a small inheritance, who went from Michigan to California to find a better climate for her sick husband who was suffering from tuberculosis, also taking with her two little children. Her husband found employment with a laundry, of which defendant was manager, where most of his time was spent in the open air driving the laundry wagon. This employment continued for about three years, when, about Thanksgiving day, 1909, he was discharged and accused by his employer of having wrongfully appropriated about $1,900 of the money which had come into his hands by way of collections made in the course of his work. He went to his wife and first informed her that he had lost his employment, and afterwards made confession to her that he was charged with being short in his accounts. He desired her to help him out, saying that something must be done to keep him out of prison. This she hesitated to do on account of the little children. The defendant knew that the husband was without means, and that the wife, through her father’s estate, had inherited some property.

So far there appears to be no dispute upon the facts, and this statement of conditions and the situation is taken from the testimony of complainant, now a widow.

Three days after complainant was told of her husband’s wrongdoing she was sent for by the defendant to come to his house with her husband; her understanding, received through her husband, being that there would be no one present except defendant. She was taken there by her husband in defendant’s laundry wagon, with defendant’s knowledge, and so great was the husband’s urgency that, although she desired to change her dress, having on only a dressing jacket and an old skirt, he stated there was no time to waste; “just slip on your coat and go just as you are.” Upon arrival at defendant’s residence she found defendant, Mr. Cathcart, a stockholder and director in the laundry company, and Mr. Byrne, defendant’s attorney, who was introduced to them by defendant, who said: “This is the man who is short in his accounts.” Her husband produced a copy of her father’s will, which she had no knowledge was in his possession.

To this point her testimony does not appear to he disputed. Her statement of what followed, the threatening attitude of defendant’s attorney toward her and what was said and done, as contained in the excerpt from her testimony in the opinion of Mr. Justice Stone, are in sharp dispute. She is contradicted by the defendant, his attorney and witnesses, all, except defendant’s wife, present by appointment. Defendant was the only witness on his part who testified in open court. The testimony of the others was taken by depositions. It is admitted that this meeting resulted in a memorandum in the nature of an assignment of all of her interest in her father’s estate to defendant’s attorney, Byrne, in trust for the laundry company, written by defendant’s attorney upon the back of a copy of her father’s will as a preliminary security, with an understanding that, if defendant realized more than $1,900 from this property, the surplus would be paid to complainant.

Later, after an investigation had been made on the part of the defendant as to the value of this Michigan property, on December 9, 1909, a deed and assignment of all this interest in her father’s estate to defendant was made out by defendant’s attorney, signed and acknowledged by complainant and her husband, and also a written agreement of the same date was executed by defendant to pay all money realized from the sale of such property received in excess of the sum of $1,900.

The deed was taken to the office of the prosecuting attorney for Riverside county, Cal., by defendant for execution by complainant and her husband and for acknowledgment before Prosecutor Evans.

There is a monotony of statement in the testimony of defendant and the depositions of his witnesses which does not accord with the ordinary testimony of witnesses who testify independently their individual recollections of facts. Defendant’s attorney testifies positively that he went to defendant’s house at the time complainant made the assignment of the interest in her father’s estate without any knowledge of the subject-matter for which his services were desired; that he had been told nothing about any business to be done between defendant and complainant’s husband. Defendant as positively testifies that when he made the appointment with his attorney he told him all of the facts in regard to this matter. In defendant’s testimony he makes an effort to have it appear that the meeting at his house where he had surrounded himself with these witnesses to observe what occurred when complainant gave away her entire estate to save her husband was like a family gathering.

This opinion has been extended to greater length than was intended. My conclusion is that the testimony of complainant is substantially true. Her husband, evidently a weak, sick man, 'now dead, had gotten into this difficulty, and complainant in her devotion to him .was willing to, and did, sacrifice her entire property. That pressure was brought to bear upon her, sufficient to cause her, under the circumstances, in her sense of fear of what would happen in case she refused, to make this conveyance to defendant to save her husband from prison, is evident. She was not a strong woman physically; and her actions at the time were the natural result of surrounding conditions.

My conclusion is that the learned trial judge, before whom the testimony of the parties to this suit was heard, being the only witnesses to the material facts in this case who were sworn, with his opportunity to judge from their personal appearances, arrived at a correct conclusion, and that the decree which was granted to complainant by the circuit court should be affirmed, with costs of both courts in favor of complainant to be taxed.

Kuhn and Moore, JJ., concurred with McAlvay, C. J.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    ADAMS v. ACME WHITE LEAD & COLOR WORKS.
    1. Accident- — Definition—Master and Servant — Workmen’s Compensation Act — Poisoning.
    An accident is an unforeseen event, occurring without the design or will of the person whose act causes it; it partakes of the nature of an unexpected or unusual occurrence, brought about by some unknown cause, and involving something fortuitous or unexpected; or, if the cause is known, having an unprecedented consequence.
    2. Master and Servant — Accident—Personae Injuries.
    Under the provisions of the workmen’s compensation act, no recovery may be allowed for occupational diseases such as lead poisoning, which, being gradually acquired, is outside the scope of the requirement that notice is to be given within ten days after an accident, and of the title and terms of the statute as to compensating accidental injuries. Act No. 10, Pub. Acts Extra Session 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.).

    3. Same — -Constitutional Law — Titee of Statute.
    If the act was intended to include such occupational diseases, the title was not broad enough to express that object within Art. 5, § 21, of the Constitution.
    Certiorari to the industrial accident board to review an award of compensation to Sarah E. Adams against the Acme White Lead & Color Works for the death of claimant’s husband. Defendant brings certiorari.
    Submitted April 15, 1914.
    (Docket No. 44.)
    Reversed July 25, 1914.

      Bowen, Douglas, Eaman & Barbour, for appellant.

      Noble T. Lawson, for appellee.
   Stone, J.

The questions involved in this case are raised on certiorari to the industrial accident board. On December 18, 1912, Augustus Adams, a resident of Sandwich, Ontario, began work at the plant of the Acme White Lead & Color Works in the city of Detroit. His duties were those of a sifter or bolter tender in the red lead plant. His work brought him in contact with the lead. On May 29, 1913, he left his work at the quitting time, but that evening became so ill that he was unable to return to work again. He died on June 27,1913. There is no doubt that the cause of his death was lead poisoning, contracted industrially; i. e., “was an occupational disease,” as the return of the industrial accident board shows. The return states:

“That during said period between December 18,1912, and June 27, 1913, one Augustus Adams was in the employ of the Acme White Lead & Color Works; * * * and that during said period, while in the course of said employment, he contracted an occupational disease, to wit, red lead poisoning, upon the premises of the said company, and that on June 27, 1913, he died as a result of said disease.”

The claim of the widow, under Act No. 10 of the Public Acts of the Special Session of 1912, was duly presented to a committee of arbitration and allowed. Thereafter, in accordance with the provisions of said act, the respondent filed with the said board a claim for review of the decision of said committee on arbitration, and later, after a full hearing, the said board made and entered an opinion and order, denying the contention of the respondent, and affirming the award of said arbitration committee. The opinion of the said board, upon which its order was based, so fully presents the questions involved that we cannot do better than to quote therefrom. After referring to the facts above set forth, it is said:

“These facts are undisputed, and the sole question in the case is whether the workmen’s compensation act covers the case of death by lead poisoning arising out of and in the course of the employment. It is contended on behalf of respondent as follows: (1) That lead poisoning is not an accident; (2) that Act No. 10, Public Acts of 1912, was not intended to provide compensation for diseases, but only accidents; (3) if the act does apply to industrial diseases, it is so far unconstitutional.
“It seems to be established under the English cases that lead poisoning is not an accident. It is an occupational disease. It seems to follow from this that, unless the Michigan workmen’s compensation law, is broad enough to include and cover occupational diseases, the applicant’s claim in this case must be denied. The controlling provision of the act on this point is found in section 1 of part 2, and is as follows: Tf an employee * * * receives a personal injury arising out of and in the course of his employment,’ he shall be paid compensation, etc. It will be noted that the above language does not limit the right of compensation to such persons as receive personal injuries by accident. The language in this respect is broader than the English act, and clearly includes all personal injuries arising out of and in the course of the employment, whether the same are caused 'by accident’ or otherwise. _ It is equally plain that lead poisoning in this case, in fact, constitutes a personal injury, and that such personal injury was of serious and deadly character. The board is therefore of the opinion that-the section of the Michigan act is broad enough to cover cases of lead poisoning, especially the one in question.”

The board also reached the conclusion that it would not be justified in holding the part of the act referred to invalid, on constitutional grounds.

By the assignments of error, it is claimed that the board erred: First, in construing the said act so as to provide for the awarding of compensation for an occupational disease, specifically red lead poisoning; second, in overruling appellant’s contention that, if in said act the legislature intended to provide compensa-. tion for an occupational disease, particularly red lead poisoning, said act, in so far as it does so provide, is unconstitutional.

1. Does the Michigan act include and cover occupational diseases? This is a fair question, and should be fairly answered. What is an “occupation,” or “occupational disease?” The Century Dictionary and Cyclopedia defines an “occupation disease” as “a disease arising from causes incident to the patient’s occupation, as lead poisoning among painters.” In the instant case the undisputed medical evidence shows that lead poisoning does not arise suddenly, but comes only after long exposure. “It is a matter of weeks or months or years.” It is brought about by inhalation, or by the lead coming into the system with food through the alimentary canal, or by absorption through the skin. In any case it is not the result of one contact or a single event.

“In occupational diseases it is drop by drop, it is little by little, day after day for weeks and months, and finally enough is accumulated to produce symptoms.” '

It also appears that lead poisoning is always prevalent in the industries in which lead is used, and a certain percentage of the workmen exposed to it become afflicted with the disease. Elaborate precautions are taken against it in the way of instructions to the men, masks to protect the respiratory organs, etc. Whether the workman will contract it or not will depend upon the physical condition, care, and peculiarity of the individual; and the amount of time it will take to produce ill effects or death also varies.

An “accident” is defined in Black’s Law Dictionary as follows:

“Accident. An unforeseen event, occurring without the will or design of the person whose mere act causes it; an unexpected, unusual, or undesigned occurrence; the effect of an unknown cause, or, the cause being known, an unprecedented consequence of it; a casualty.”

It might be well to keep in mind the conditions sought to be remedied by the diverse workmen’s compensation enactments which have been adopted by several of the States of the Union and in foreign countries. The paramount object has been for the enactment of what has been claimed to be more just and humane laws to take the place of the common-law remedy for the compensation of workmen for accidental injuries received in the course of their employment, by the taking away and removal of certain defenses in that class of cases.

In this our own act is not an exception. It first provides that in any action to recover damages for personal injury sustained by an employee in the course of his employment, or for death' resulting from personal injuries so sustained, it shall not be a defense: (a) That the employee was’ negligent unless and except it shall appear that such negligence was wilful; (b) that the injury was caused by the negligence of a fellow employee; (c) that the employee had assumed the risks inherent in or incidental to or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances.

It is then enacted that the above provisions shall not apply to actions to recover damages for the death of, or for personal injuries sustained by, employees of any employer who has elected, with the approval of the industrial accident board thereinafter created, to pay compensation in the manner and to the extent thereinafter provided. Manifestly, the terms “personal injury” and “personal injuries,” above mentioned, refer to common-law conditions and liabilities, and do not refer to and include occupational diseases, because an employee had no right of action for injury or death due to occupational diseases at common law, but, generally speaking, only accidents, or, rather, accidental injuries, gave a right of action. We are not able to find a single case where an employee has recovered compensation for an occupational disease at common law. Certainly it can be said that in this State no employer has ever been held liable to the employee for injury from an occupational disease, but only for injuries caused by negligence. It seems to us that the whole scheme of this act negatives any liability of the employer for injury resulting from an occupational disease. The title of the act is significant:

“An act to promote the welfare of the people of this State, relating to the liability of employers for injuries or death sustained by their employees, providing compensation for the accidental injury to, or death of employees, and methods for the payment of the same, establishing an industrial accident board, defining its powers, providing for a review of its awards, making an appropriation to carry out the provisions of this act, and restricting the right to compensation or damages in such cases to such as are provided by this act.”

The first provision defining the employers who are subject to the act is found in section 5, subd. 2, of part 1. It reads:

“Every, person, firm and private corporation, including any service corporation, who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the accident to the employee for which compensation under this act may be claimed, shall in the manner provided in the next section have elected to become subject to the provisions of this act, and who shall not, prior to such accident, have effected a withdrawal of such election, in the manner provided in the next section.”

While not controlling, it is pertinent to note the history of the Michigan act.

By Act No. 245, Public Acts of 1911, the legislature created a commission—

“To make the necessary investigation, and to prepare and submit a report * * * setting forth a comprehensive plan and recommending legislative action providing compensation for accidental injuries or death of workmen arising out of and in the course of employment.”

Section 2 of the act reads:

“It shall be the duty of the commission of inquiry to fully investigate the conditions affecting, and the problems involved in the matter of compensation for accidental injuries or death of workmen arising out of and in the course of employments.”

The act drawn pursuant to this authority was passed by the legislature without change. While it cannot be claimed that the power of the legislature was limited to enacting the bill prepared by the commission, yet, when that body passed the bill without change, it may be said that it adopted the meaning that must have been intended by the commission.

It is the claim of appellant that lead poisoning contracted industrially is not an accident; that such poisoning, being something that is contracted by a fairly certain percentage of those working in industries where lead is used, cannot be considered as unexpected; that it comes as a gradual, slow process, and hence is not an “accident.” The appellee, not agreeing with the reasoning of the board, contends that the act does cover injuries occasioned by lead poisoning, and that such poisoning contracted in the course of employment is an “accidental injury.”

The English act of 1897 was entitled:

“An act to amend the law with respect to compensation to workmen for. accidental injuries suffered in the course of their employment.”

The body of the act provided that:

“If in any employment, to which this act applies, personal injury by accident arising out of and in the course of employment, is caused to a workman his employer shall be liable.”

It was not long before it was necessary to determine what was personal injury by accident, and to give a definition of “accident.” In Hensey v. White (1900), 1 Q. B. 481, the language of an earlier case was approved where it was said :

“I think the idea of something fortuitous and unexpected is involved in both words ‘peril’ or ‘accident.’ ”

In Fenton v. Thorley & Co., 72 L. J. K. B. 790, it was said:

“The expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed.”

Finally, in Steel v. Cammell, Laird & Co., Ltd. (1905), 2 K. B. 232, the precise point was decided. The applicant, a caulker in the employment of shipbuilders, was seized with paralysis, caused by lead poisoning, and became totally incapacitated for work. In the course of his work, in which he had been employed by the shipbuilders for a period of two years before he became incapacitated, he had to smear either with red or white lead certain places between the plates of ships into which water-tight shoes were put. The poisoning was such as might be expected from the nature' of the work. It might be caused either by inhalation, or by eating food without having removed the lead from the hands, or by absorption through the skin. Only a small proportion of cases of poisoning of this description occurred amongst a number of persons working with red or white lead. The poisoning could not be traced to any particular day, and its development was a gradual process, and generally took considerable time. Held, that the lead poisoning could not be described as an “accident,” in the popular and ordinary use of that word, so as to entitle the applicant to compensation for personal injury by accident arising out of, and in the course of, his employment, within the meaning of section 1 of the workmen’s compensation act of 1897. Fenton v. Thorley & Co., 72 L. J. K. B. 787, and Brintons, Lim. v. Turvey, 74 L. J. K. B. 474, considered.

The court in the above case [Steel v. Cammell, Laird & Co., Ltd.] reasoned that, under the act, a date must be fixed as that on which the injury by accident occurred, and it was said:

“It has been suggested that there was a series of accidents by the continuous absorption of lead, by one or other of the three processes named; but this suggestion does not meet the difficulty which arises from the provisions of the act as to notice of the particular date of the accident or injury.”

Others of the judges said that the injury was not unexpected; that it was certain that somebody would suffer, and this man turned out to be susceptible to the poison. As a result of this case, it was found necessary to change the act, if cases like this were to be included; so in 1906, less than a year later, the act of 6 Edw. VII., chap. 58, was passed, entitled:

“An act to consolidate and amend the law with respect to compensation to workmen for injuries suffered in the course of their employment.”

The body of the act again provides compensation for “personal injury by accident,” but it also (section 8) provides that:

“Where the disease is due to the nature of any employment * * * he or his dependents shall be entitled to compensation under this act as if the disease * * * were a personal injury by accident arising out of and in the course of that employment” —if it be one of the diseases contained in schedule 8 of the act.

In that schedule “lead poisoning” and its sequelae are therein scheduled. Of this act the Encyclopedia of Laws of England, vol. 5, p. 227, states:

“The extension by this act of the principle of workmen’s compensation to industrial disease is a new departure. Disease, though contracted industrially, is not an ‘accident’ in the ordinary acceptation of the term.”

It was also said of the act that a new phase in workmen’s compensation — compensation for disease arising out of employment — was a new feature in this type of legislation. The language of the act should be particularly noted. It does not attempt to declare an industrial disease an “accident,” but gives compensation therefor “as if the disease * * * were a personal injury by accident.”

Considering the condition to be remedied and the history of the Michigan act, and comparing it with the English act of 1897, we are not able to agree with the accident board when it says, referring to the language which it quotes, that our act is broader than the English act, and clearly includes all personal injuries arising out of and in the course of an employment, whether the same are caused by “accident” or otherwise. In the language quoted by the board it is true that the words “personal injury” are used, but in determining the nature of the personal injury intended to be covered by the act, the whole act, with its title, should be examined and considered; and, so examined, we think it should be held that the words “personal injury,” as quoted by the board, refer to the kind of injury included in the title and other portions of the act, which plainly refer to “accidental injury to, and death of, employees.” The whole scope and purpose of the statute, in our judgment, was to provide compensation for “accidental injuries,” as distinguished from “occupational diseases.” We must hold, therefore, that the provisions of the act of this State are very similar to the early English act above referred to.

We have shown how the English act was subsequently amended by adding the provision permitting the recovery of compensation for certain scheduled diseases, caused by, or especially incident to, particular employments — diseases known as occupation or industrial diseases. Not before, but since, the passage of this amendment to the English act, the English courts have sustained The rights of recovery in such cases as are here presented. The framers of our act either did not know of the amendment to the English act, or else they did not inténd to permit the recovery of compensation in such cases. If it is said that it is just as important to protect employees against such conditions as are here presented as it is to protect them against injuries arising from what are strictly termed “accidents,” our answer is that that is a matter which should be addressed to the legislature. In the absence of a provision in the statute meeting this situation, the court is unable to award a recovery.

Counsel for appellee have referred to some of the English cases where compensation was allowed for injuries caused by poisoning,, but an examination of those cases will show that the injuries were purely accidental. Higgins v. Campbell & Harrison, Ltd. (1904), 1 K. B. 328, affirmed (1905) A. C. 230, is a fair illustration of those cases. There a workman employed in a woolcombing factory in which there was wool which had been taken from sheep infected with anthrax contracted that disease by contact with the anthrax bacillus which was present in the wool. In that case compensation was allowed, and it was held that the workman was injured by accident arising out of and in the course of his employment within the meaning of the English act of 1897. The court treated the disease as caused by an accident, by one particular germ striking the eyeball. It was considered that the accidental alighting of the bacillus from the infected wool on the eyeball caused the injury. It was treated as if a spark from an anvil hit the eye. This may be seen from the statement of Lord Macnaghten:

•“It was an accident that the thing struck the man on a delicate and tender spot in the corner of his eye.”

We think that this and .kindred cases can be readily distinguished from the lead poisoning cases.

The same difficulty about giving notice of the accident or injury noted in the English act applies to the Michigan act. Every employer is required to keep a record of all injuries, fatal or otherwise, received by employees in the course of their employment. Section 17 of part 3 of our statute provides that:

“Within ten days after the occurrence of an accident resulting in personal injury a report thereof shall be made in writing to the industrial accident board on blanks to be procured from the board for that purpose.”

And a penalty is prescribed for neglect to make such report.

In the instant case Adams left his place of employment at the usual quitting time on May 29, 1913. He did not return. What knowledge his employer had of his sickness does not appear. It is not apparent what notice could be given under our statute in such a case. If our statute, in its present form, should be held to apply to occupational or industrial diseases, then compensation might be claimed of an employer where the term of employment had been for a brief period, whereas the disease may have been contracted while in the employment of a former employer. All this is provided for in the amendment of 1906 in the English act, where provision is made for investigation and apportionment among employers for whom the employee worked during the previous year “in the employment to the nature of which the disease was due.” There is no such machinery or procedure provided for in our statute.

We are not unmindful of the holdings of the supreme court of Massachusetts in Re Hurle, 217 Mass. 223 (104 N. E. 336), and Johnson v. Accident Co., 104 N. E. 735. In the latter case-that court held that the personal injury of a lead grinder, sickness incapacitating him from work resulting from the accumulated effect of gradual absorption of lead into his system, arose “out of and in the course of his employment” within the workmen’s’' compensation act (Stat. 1911, chap. 751) of that State.. That case is founded upon In re Hurle, supra, which was a case of blindness incurred from an acute attack of optic neuritis, induced by the poisonous coal tar gases escaping from a furnace about which he was required to work. The matter of accidental injury was not discussed by the court. The court said:

“The question to be decided is whether this was a ‘personal injury arising out of and in the course of his employment’ within the meaning of those words in the statute.”

The court further, in referring to the comments of counsel for the employer that the act could not apply to such an injury as that sustained, said:

“It might be decisive, if ‘accident’ had been the statutory word. It is true that in interpreting a statute words should be construed in their ordinary sense. ‘Injury,’ however, is usually employed as an inclusive word. The fact remains that the word ‘injury,’ and not ‘accident,’ was employed by the legislature throughout this act.”

As “accident” is the controlling word in our act, we do not think that the Massachusetts decision should be held to apply here, as the construction of that act has little, if any, bearing on the Michigan act.

Our attention has been called to the Massachusetts act, which differs in many respects from our act. That act is entitled:

“An act relative to. payments to employees for personal injuries received in the course of their employment, and to the prevention of such injuries.”

The whole scope of the act seems to be to provide for compensation for personal injuries received in the course of employment. In many instances where the word “accident” occurs in our statute the word “injury” is used in the Massachusetts statute. It is true that the Massachusetts board is termed an “Industrial Accident Board,” but, aside from the use of the word “accident” in that title, we are unable to find the word in the body of the act, except in two instances in section 18 of part 3, which provides for the keeping of a record and making a report by the employer in case of accident. This may be said not to be very controlling; but, in our judgment, it has to do with the inquiry as to the scope of the act. We are unable to follow those cases as authority under our statute.

In New Jersey, in the case of Hichens v. Metal Co., N. J. Law Journal (Com. Pl. June 25, 1912), p. 327, which arose under the New Jersey act (P. L. 1911, p. 134) entitled very similarly to the Massachusetts act, to wit—

“An act prescribing the liability of an employer to make compensation for injuries received by an employee in the course of employment, establishing an elective schedule of compensation, and regulating procedure for the determination of liability and compensation thereunder”

—it was held that compensation could not be awarded for a disease known as copper poisoning, caused by contact with the copper filings and inhaling the dust from same by an employee in his work, which involved the grinding and polishing of brass products.. This decision cannot be considered as authoritative, as it is that of the court of common pleas, and not the court of last resort.

The Federal compensation act (Act May 30, 1908, chap. 236, 35 Stat. 556 [U. S. Comp. Stat. Supp. 1911, p. 468]), relating to government employees does not contain the word “accident” in the principal clause, but provides that compensation shall be granted “if the employee is injured in the course of such employment.” Subsidiary clauses provide for the reporting of “accidents,” and otherwise refer to “accidental injuries.”

In the latest opinion of the attorney general, being in the case of John Sheeran, where the employee was a laborer engaged in river and harbor construction, and, while engaged in work in the course of his employment, contracted a severe cold, which resulted in pneumonia, that officer said:

“There is nothing either in the language of the act or its legislative history which justifies the view that the statute was intended to cover disease contracted in the course of employment, although directly attributable to the conditions thereof. On the contrary, it appears that the statute was intended to apply to injuries of an accidental nature resulting from employment in hazardous occupations — not to the effects of disease.”

It has been reiterated under the Federal act that acute lead poisoning is not such an injury as entitles an employee to compensation. Similarly, where a workman suffered from cystitis and prostatitis, which he claimed was the result of overwork, it was held that he was merely suffering from disease which was not covered by the terms of the Federal act, and compensation was refused. 1 Bradbury on Workmen’s Compensation (2d Ed.), pp. 342, 343.

We are of opinion that in the Michigan act it was not the intention of the legislature to provide compensation for industrial or occupational diseases, but for injuries arising from accidents alone.

2. If it were to be held that the act was intended to apply to such diseases, it would, in so far as it does so, be unconstitutional and in violation of section 21 of article 5 of the Constitution of this State, which provides that:

“No law shall embrace more than one object, which shall be expressed in its title.”

That the act, if it were held to apply to and cover occupational diseases is unconstitutional in so far as it does so is shown by the fact that the body of the act would then have greater breadth than is indicated in the title. A careful analysis of the title of the act shows that the controlling words are “providing compensation for accidental injury to or death of employees.” No compensation is contemplated except for such injuries. The prefatory words are generally dependent upon the above-quoted clause. The only compensation provided is for “accidental injury to or death of employees,” and the last clause of the title restricts the right to compensation or damages in such cases “to such as are provided by this act.”

The Massachusetts decisions have no bearing upon this branch of the case for two reasons: One is that the titles of the respective acts differ materially; and the other reason is that Massachusetts has no such constitutional provision as ours above quoted. We have dealt with this question of title too recently to make it necessary to refer to our numerous decisions upon the subject.

For the reasons above given, we are constrained to reverse the order and judgment of the industrial accident board.

Reversed.

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


author: Brooke, J.

text:
    HASS v. BOOTH.
    1. Negligence — Signs — Streets—Falling Sign — Sidewalks—Injury to Pedestrian.
    In an action for personal injuries resulting from a sign falling upon the sidewalk in a city street, and striking plaintiff, it was error to direct a verdict for the defendant, owner of the sign, on the ground that he employed an independent contractor, who was reputable and competent, to suspend the sign.
    2. Same.
    Pedestrians upon the street have the right to absolute safety while exercising ordinary care and prudence: sign boards or other projections or encroachments so situated that if they fall they may do injury to travelers are nuisances unless so secured as to be perfectly safe; the person maintaining them is liable for all injuries arising from the falling of such obstruction except in cases of inevitable accident.

    S. Same — Nuisance—Highways and Streets.
    It has frequently been held that any encroachment upon a street, either on or above the surface, of a permanent nature, which endangers or interferes with its use, is a public nuisance.
    4. Same — Personal Injuries.
    Where plaintiff’s attorney did not contend that the owner of the sign must maintain it at his peril in an absolutely safe condition, but took the ground that he was chargeable with a very high degree of care, the court should have submitted the question to the jury on that theory of negligence.
    5. Same — Municipal Corporations.
    The,duty of the defendant was not lessened by the alleged fact that he had secured the right to maintain the structure in or above the street for advertising purposes from the city council, or by the possibility that the municipality through failure to cause the removal of the nuisance might be held liable.
    6. Same — Evidence — Certificate of Pubiic Inspector — Res Ipsa Loquitur.
    The certificate of the inspector from the department of building that the sign had been inspected, unsupported by proof that the inspection was adequately or carefully made, or that the defect in the sign was latent, did not establish a defense to the action; plaintiff’s evidence tending to show that seven months had elapséd and no one had inspected the sign, presented an issue of fact for the jury.
    Error to Wayne; Murphy, J.
    Submitted April 22, 1914.
    (Docket No. 112.)
    Decided July 25, 1914.
    Case by Bessie Hass against Frank E. Booth for personal injuries. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Florian, Moore & Wilson, for appellant.

      Charles E. Duffy (William G. Fitzpatrick, of counsel), for appellee.

       As to the liability of an abutting owner for injury from falling of object suspended fiver street, see notes in 12 L. R. A. (N. S.) 721 and 24 L. R. A. (N. S.) 139.

   Brooke, J.

At about 2 o’clock in the afternoon on the 13th day of July, 1912, plaintiff was passing along Gratiot avenue near its intersection with Woodward avenue in the city of Detroit. When she had almost reached the corner, a sign 8 feet long, 4 feet wide and 8 inches thick, maintained by the defendant for advertising purposes, and suspended between 20 and 25 feet above the sidewalk, fell. In falling it struck plaintiff, causing the injury of which complaint is made. The sign had been erected two years and two months prior to the accident by Walker & Co., competent and reputable sign builders of the city of Detroit. On December 13, 1911, exactly seven months prior to the happening of the accident, the sign was inspected by an inspector from the department of buildings of the city of Detroit, who issued to the defendant the following certificate:

“This certifies that the sign projecting from the building at the northeast corner of Woodward and Gratiot avenues has been inspected and found to be in safe condition. [Signed]
“Department op Public Buildings.”

The defendant, being examined under the statute by plaintiff’s counsel; testified as follows:

“Q. And from the time that Walker & Co. installed that sign until the time of the accident you yourself gave no inspection?
“A. I would look at the sign occasionally.
“Q. Did you test it in any way?
“A. No, sir.
“Q. The only inspection that that sign got was from the department of buildings?
“A. That is all I know of, yes.”

The record discloses that at the time of the occurrence of the accident there was no unusual atmospheric disturbance.

The declaration charged the defendant with negligence in the construction of the sign in question, negligence in the maintenance of the sign, and negligence in failure to - properly inspect. The court directed a verdict for the defendant, holding that, he having engaged a competent and reputable contractor for the purpose of erecting the sign, he was therefore absolved from liability based'upon a negligent erection. The court further held upon this point that plaintiff’s action, if any, would be against Walker & Co. as an independent contractor. This instruction was erroneous. See Lauer v. Palms, 129 Mich. 671 (89 N. W. 694, 58 L. R. A. 67), and authorities there cited. Also McHarge v. Newcomer, 117 Tenn. 595 (100 S. W. 700, 9 L. R. A. [N. S.] 298). The court below then held that there was no evidence sustaining the charge of negligent maintenance of the sign, and that the inspection by the appropriate city department was adequate. It was and is the contention of the defendant, which view was accepted by the court below, that the record was entirely barren of evidence indicating any negligence on the part of the defendant which contributed to plaintiff’s injury, and that to permit a recovery would be to allow the jury to indulge in conjecture as to the cause of the accident, and ultimately to base their verdict upon the single fact that the sign had fallen and the plaintiff was injured. We are not able to agree with this view of the case. It may be stated at the outset that the authorities as to the liability of-one for injury, occasioned to a pedestrian lawfully upon the street, by the falling of a sign or awning maintained by the owner or occupier of a building, and suspended over the sidewalk, are not harmonious. In most jurisdictions it is held that the doctrine of res ipsa loquitur applies, but that the defendant may avoid recovery by affirmative proof showing that he had exercised ordinary care. The question is fully discussed in Waller v. Ross, 100 Minn. 7 (110 N. W. 252, 12 L. R. A. [N. S.] 721, and note, 117 Am. St. Rep. 661, 10 Am. & Eng. Ann. Cas. 715). A later case upon the subject is McCrorey v. Garrett, 109 Va. 645 (64 S. E. 645, 24 L. R. A. [N. S.] 139). In the latter case the defendant was held liable for injury occasioned by a falling awning maintained without legislative authority, regardless of the question of his negligence, either as to its construction or maintenance. In that case it is said:

“So far as the right of the public to travel unmolested over the highway is concerned, the dominion of the people is absolute, and is not confined to obstructions on the surface of the street, but extends with equal emphasis to encroachments upon the public right either below or above the surface. Indeed, an obstruction above the street that may injure the traveler is. more dangerous than one on the ground, because the latter is more readily seen and avoided” — citing 1 Wood on Nuisances (3d Ed.), § 275, pp. 141, 142; Elliott on Roads and Streets, vol. 2 (3d Ed.), §§ 790, 830; 2 Dillon on Municipal Corporations (4th Ed.), § 1033.

In 1 Wood on Nuisances, supra, it is said:

“Every person in traveling upon a public street has a right to absolute safety, while in the exercise of ordinary care, against all accidents arising from obstructions of or imperfections in the street, and this applies as well to what is in the street as to what is over it. * * * It would seem that all signboards, cornices, blinds, awnings, and other things projecting over a walk, or so situated with reference thereto that if they fall they may do injury to travelers, are nuisances unless so secured as to be absolutely safe, and the person maintaining them is liable for all injuries arising therefrom, except such as are attributable to inevitable accident.”

This court has never had occasion to determine exactly what degree of care would absolve from liability one who maintains a sign or awning over a public street for his own purpose in case said sign or awning fell upon a foot passenger lawfully occupying the sidewalk thereunder. It has frequently been held that any encroachment upon a street, either on or above the surface, of a permanent nature, which endangers or interferes with its use, is a public nuisance. 2 Dillon on Municipal Corporations (4th Ed.), §§ 586, 587, 730, 1032; Wood v. Mears, 12 Ind. 515 (74 Am. Dec. 222); Van O’Linda v. Lothrop, 21 Pick. (Mass.) 292 (32 Am. Dec. 261); Raymond v. Keseberg, 84 Wis. 302 (54 N. W. 612, 19 L. R. A. 643); Sikes v. Town of Manchester, 59 Iowa, 65 (12 N. W. 755); Welsh v. Wilson, 101 N. Y. 254 (4 N. E. 633, 54 Am. Rep. 698). The English courts come very near to holding that the duty to maintain such a structure in safety is an absolute one. Tarry v. Ashton, L. R. 1 Q. B. Div. 314. See, also, Roberts v. Mitchell, 21 Ont. App. Rep. 433.

In this case plaintiff does not contend that defendant must maintain such a structure at his peril. He urges, however, that one who maintains, suspended over the sidewalk of a crowded city for his own purpose, a sign or other structure, which if permitted to fall is liable to kill or injure those lawfully using the sidewalk beneath it, should be charged with a very high degree of care. It is unnecessary, therefore, in the instant case to say more than that the plaintiff’s contention as to defendant’s duty is warranted by the law. This duty is not lessened by reason of the fact that the offending party may have secured the right to maintain said sign from the legislative authority of the municipality, nor by the further fact that the municipality itself, through a failure to cause the removal of such sign or structure as a nuisance, might itself be liable under the authorities last cited. The facts in the case at bar disclose more than the simple falling of the sign. They show that the defendant for seven months prior to the day of the accident had caused no inspection to be made of the structure. The certificate of the inspector from the department of buildings proves nothing. It does not show whether the inspection was adequate or inadequate. Nor does it have a tendency even to prove that the sign fell because of a latent instead of a patent defect. The language of Mr. Justice Ostrander in the case of Scott v. Athletic Association, 152 Mich. 684 (116 N. W. 624, 17 L. R. A. [N. S.] 234, 125 Am. St. Rep. 423, 15 Am. & Eng. Ann. Cas. 418), is applicable:

“The testimony goes much beyond proving merely an accident and resulting injury. That relied upon to show that defendants exercised due care tends to prove that the stand was erected by a competent and experienced builder, of good materials; that before it was used it was inspected by engineers and others admittedly competent to perform the work of inspection, who pronounced it safe. It is clear, however, that a wholly inadequate structure was in fact tendered for public use, and it cannot be determined, upon this record, as a matter of law, that a latent and not a patent defect, discoverable in the exercise of proper care, existed.”

See, also, Barnowsky v. Helson, 89 Mich. 523 (50 N. W. 989, 15 L. R. A. 33); Lauer v. Palms, supra.

The question of defendant’s negligence, under proper instructions as to his duty in the premises, should have been submitted to the jury.

The judgment is reversed, and a new trial ordered.

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