text:
    MASTER SPARK CO. v. HICKERSON.
    1. Evidence — Books oe Account — Admissibility.
    In an action by a corporation against its selling agent, who was also a stockholder of the corporation, for a balance claimed to be due,. testimony by the person who kept the books, that the journal was the original book of entries, that the ledger was posted from the journal, that the entries were made when the transaction took place, that they were made by herself, and that the books contained all the transactions between the parties, held, a sufficient showing to admit them in evidence.
    On admissibility upoD testimony of bookkeeper, of entries in parties’ books of account, based upon oral or written statements by others, see note in 36 L.. R. A. (N. S.) 899.
    On authentication and correctness of books of account and entries as affecting admissibility in evidence, see note in 52 L. R. A. 590.

      2. Same — Appeal and Error — Harmless Error.
    Whether the showing was sufficient or not, defendant was not prejudiced by the admission of the books, since his counsel admitted that the letters and telegrams and data from which the books were made up were offered and received in evidence, and the only question was as £o their accuracy, which was for the jury.
    S. Same — Admissibility.
    Testimony as to certain sums owing by defendant to officers of plaintiff corporation on personal account was erroneously admitted, in the absence of any showing of an assignment thereof to plaintiff, or any averment of an assignment in the declaration.
    4. Trial — Remarks op Counsel — Requests to Charge.
    Remarks by plaintiff’s counsel that defendant was an embezzler, referring to another action between the parties,, were highly improper and prejudicial, and defendant’s request that the jury be instructed to disregard them should, have been granted.
    5. Same — Collateral Issues.
    Injecting collateral issues into the case, Jield, to have a tendency to confuse the issues and prejudice the jury.
    6. New Trial — Overwhelming Weight op Evidence.
    Although the evidence is persuasive that if the books were properly audited and correct totals arrived at, a less amount would be found owing by defendant than claimed, yet where it does not clearly appear that the books did not show the true state of the account, it cannot be said that the verdict was against the great weight of the evidence..
    7. Trial — Proofs—Issues Submitted to Jury.
    The trial court properly submitted to the jury the questions as to whether defendant was authorized to make the settlement which he did with the Kissel-Karr Company, and as. to whether he was indebted to plaintiff for the amount it paid to the Fisher Subcasing Company to have the contract canceled/
    8. Costs — Prolixity.
    While defendant is awarded costs, he is limited to 250 pages, of record and 40 pages of brief, both being unnecessarily prolix.
    Error to Wayne; Marschner (Adolph F.) J,
    Submitted April 21, 1920.
    (Docket No. 21.)
    Decided September 30, 1920.
    Assumpsit by the Master Spark Company against Benjamin F. Hickerson for money had and received. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Millis, Griffin, Seely & Streeter (George B. Murphy, of counsel), for appellant.

      Asher L. Cornelius, for appellee.
   Bird, J.

Mr. D. M. Sweeney, of San Francisco, patented an automobile accessory which, for a time, found some favor in the automobile world. He named it the “Master Spark,” and proceeded to manufacture and place it upon the market. It came to the attention of defendant, who was engaged in selling such articles, and he later made an arrangement with Mr. Sweeney, or his associates, to sell it on commission. In June, 1916, while these relations existed, a corporation with a capital of $2,500 was organized in the city of Chicago, and defendant was named president and sales manager. Mr. Sweeney was named vice president, Mrs. Sweeney, secretary, and Mrs. Hickerson,. treasurer. The company was organized as a selling agency to market the product.

It was agreed that the plaintiff company should purchase the master sparks of Mr. Sweeney at $4 a dozen, and that defendant should go upon the road and sell them. The price at which they were to be marketed was in dispute. It was agreed that defendant at the end of the year should be entitled to one-half of the capital stock and net profits. In addition, the company was to pay his traveling expenses and allow him $25 a week as salary. Defendant worked under this arrangement until near the close of the year, when the parties fell into disagreement over his accounts, and in consequence thereof they severed their business relations.

It was the claim of the company that defendant had not accounted for the proceeds of all the master sparks sold by him. Defendant insisted that he had and that he owed the company nothing. The disagreement over this issue resulted in the company having defendant arrested for embezzlement in the city of Chicago, which proceeding was still pending at the time of the trial. Later defendant, who is a resident of Detroit, caused Mr. Sweeney’s arrest in Detroit on a capias for slander. The outcome of this suit was a judgment for Mr. Hickerson. Finally the present suit was begun in Detroit to recover the balance which the company claimed defendant was owing it. After a trial lasting 23 days, during which time the embezzlement case and the slander case were quite fully gone into, the jury returned a verdict for plaintiff of'$750. Defendant now assigns 88 errors upon the proceedings.

Error is assigned on the action of the trial court in admitting plaintiff’s books of account in evidence. The reason assigned is that the books were built up from writings, letters, telegrams and other data, which were afterward offered and received in evidence. Mrs. Sweeney, the secretary, who kept the books, testified as to their accuracy. She testified that the journal was the original book of entries, that the ledger was posted from the journal, that the entries were made when the transaction took place, that they were made by herself, and that the books contained all the transactions between the parties. Under the rule laid down in Ganther v. Jenks & Co., 76 Mich. 510, the showing made was sufficient to admit them. See, also, note to Countryman v. Bunker, 101 Mich. 218 where the cases are collected.

But whether the showing was sufficient or not in this particular case it does not appear that their admission was prejudicial to the defendant. Defendant’s counsel admits that the letters and telegrams and data from which the books were made up were offered and received in evidence. In view of this it is difficult to see how any prejudice resulted to the defendant by their admission. The only possible harm under the proofs that could have resulted to defendant was the system employed in keeping them. This might, and probably did, confuse the jury, but this went to the question of their accuracy and that question was for the jury.

Complaint is made because the court admitted evidence of certain sums owing by defendant to Mr. and Mrs. Sweeney on personal account. It is said that these were matters with which the plaintiff corporation had no concern, as no assignment of them to the plaintiff was shown, neither was there any averment in the declaration of an assignment. The reply which plaintiff makes to this objection of defendant is the following:

“Defendant can hardly be heard to complain if Mrs. M. D._ Sweeney and D. M. Sweeney are willing to waive any rights to certain small sums which they advanced to the defendant personally. By putting these claims in as claims of the Master Spark Company they thereby waived any right to these claims themselves.”

This is indeed an easy way to dispose of the objection, but it will hardly do to dispose of the rules and.practice of court in this summary way. In order to entitle plaintiff to recover indebtedness owing by defendant to third parties, it was necessary to prove an assignment from such third parties, and it was also necessary that the declaration should contain an averment of the assignment. Neither of these requisites having been shown, the testimony should not have been admitted. Rose v. Jackson, 40 Mich. 29; Gates v. Comstock, 107 Mich, 546; Cilley v. Van Patten, 58 Mich. 404; Peirce v. Closterhouse, 96 Mich. 124; Mc Knight v. Lowitz, 176 Mich. 452; Green’s Michigan Practice, § 524.

On redirect-examination of Mr. Sweeney, the following took place:

“Mr. Murphy: You are trying now to show what the evidence was in that law suit.
“Mr. Cornelius: I am trying to show whether these books showed that this man was an embezzler.
“Mr. Murphy: Just a moment, you have never yet proven, and will never be able to prove, that he is an embezzler—
“Mr. Cornelius: We have proved it right now in this court.
“Mr. Murphy: I take an exception to the statement of counsel and I ask the court to here rule and charge the jury—
“The Court: I think the jury will understand that the time for argument will come at the close of the case and not at this time, and further, that remarks outside of the testimony are not to be considered.
“Mr. Murphy: I ask the court to rule that the remarks just made by counsel will be disregarded by the jury.
“The Court: I think that will apply to both counsel.”

These remarks were highly improper and prejudicial to the defendant, and defendant’s request that the jury should be instructed to disregard them should have been granted by the trial court. Inasmuch as assumpsit' was relied upon for a recovery, no direct evidence of the embezzlement charges and the proceedings growing out of the same should have been admitted, and this is equally true of the matters growing out of the slander case. Injecting the issues in those collateral matters into this case was one of the causes for unduly prolonging it, and they also had a tendency to confuse the issues and prejudice the jury.

Defendant entered a motion for a new trial, one ground being that the verdict was against the overwhelming weight of the evidence. There is some merit in this claim. An examination of the system of keeping the accounts with defendant is rather persuasive that if the books were properly audited and correct totals arrived at, they would not show that defendant was indebted to plaintiff in a sum as large as was claimed upon the trial. It is asking rather too much of a lay jury to determine whether the system which was employed was a correct one, and whether it had confused the true state of the account. There appears to be little difference between the parties with reference to the several items of the account, but the difference mainly grows out of what the sum total of the items shows. Had an experienced disinterested bookkeeper or auditor been called as a witness by defendant it would have been a great aid to the jury in determining the true state of the account. As it does not clearly appear that the books do not show the true state of the account we cannot say that the verdict was against the great weight of the evidence.

As the case must go back for a retrial some reference should be made to the questions raised relating to the Kissel-Karr note and the Fisher Subcasing contract. Under the proofs it was clearly a question of fact for the jury to determine whether defendant was authorized to make the settlement which he did with the Kissel-Karr Company. It was likewise a question for the jury whether defendant was indebted to plaintiff for the amount it paid to the Fisher Subcasing Company to have the contract canceled. The court properly submitted both questions to the jury.

The judgment of the trial court will be reversed and a new trial ordered. Defendant will recover costs of both courts, but will not be permitted to tax for more than 250 pages of record and 40 pages of brief, it being the opinion of the court that both are unnecessarily prolix.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    HOWELL v. TOWNSHIP OF BURTCHVILLE.
    1. Municipal Corporations — Negligence—Defective Highway-
    Personal Injuries — Evidence—Admissibility.
    In an action against a township for personal injuries caused to plaintiff by the dropping of the front wheel of an automobile, in which she was riding, into a hole on the side of the highway in the approach to a bridge, where the condition of the highway, which had been built up and narrowed at the point of the accident, had been a subject of contention on the trial, involving the nature of its construction, etc., the reception of testimony as to the existence of a hole opposite the one in question, more than two months previously, received for its bearing upon the character of the soil, held, not error.
    2. Damages — Excessive Verdict — Evidence—Sufficiency.
    A verdict for |2,000 cannot he said to be excessive, as a matter of law, in view of the testimony of plaintiff as to the seriousness of her injuries, which was corroborated, although defendant’s testimony tended to show that her injuries were much exaggerated and the resulting damage much less.
    3. Municipal Corporations — Negligence — Contributory Negligence — Question for Jury.
    Defendant’s contention that there was sufficient width of highway reasonably safe and fit for travel leading onto the bridge, so that the driver’s swinging to the west, as he admits he did* to avoid the ruts, constituted contributory negligence as a matter of law, held, not sustained by the record; the question under the evidence being one of fact for the jury.
    Error to St. Clair; Tappan (Harvey), J.
    Submitted April 15, 1920.
    (Docket No. 72.)
    Decided September 30, 1920.
    Case by Lulu Howell against the township of Burtchville for personal injuries caused by a defective highway. Judgment for plaintiff. Defendant brings error.

      On exeessiveness of verdicts in actions for personal injuries other than death, see comprehensive note in L. R. A. 1915A, 30.
    Authorities discussing the question of duty to have highway safe for automobiles are collated in a note in 14 L. R. A. (N. S.) 816.

      Affirmed.

      Moore & Wilson (Lincoln Avery, of counsel), for appellant.

      Walsh & Walsh and C. L. Benedict, for appellee.
   Steere, J.

In the forenoon of July 2, 1916, plaintiff suffered an accidental injury while riding with her husband in an automobile he was driving along what, is known as the “State road” running northerly and southerly through defendant Burtchville township, St. Clair county. They were going north on this highway and the accident occurred just as they reached the south side of a bridge spanning a small stream called Milwaukee creek, owing, as plaintiff claims, to the defective condition of the narrowed and graded approach to the bridge.

They were going from Lakeport to Jeddo and had turned north on the State road at Henderson’s corners some 20 or 30 rods south of the bridge towards which the grade of the road descends to the comparatively narrow valley of the creek, across which it runs practically level, but graded up with a fill and narrowed as it approaches the bridge, with ditches on each side. The filled or raised portion of the road extending south a short distance to higher land, afforded as constructed a level driveway about 12 feet wide at the bridge, the floor of which was 3 or 4 feet above the normal level of the ground and about 14 feet wide inside the railing. Wings or retaining walls extended southeasterly and southwesterly from the southerly corners of the bridge for some 14 or 16 feet. The roadway south of the fill was 25 feet wide or more and in good condition. The condition of the' narrowed approach at and near the bridge is a matter in dispute. The occasion of the accident as claimed by plaintiff was a hole in the west side of the highway near the bridge concealed by growing weeds, into which the left front wheel of the automobile sank, causing it to strike the edge of the bridge planking and suddenly stop, throwing plaintiff forward against the wind-shield, cutting and otherwise injuring her. That there was a hole on that side of the road near the bridge into which the wheel dropped causing the accident is not disputed. Its nature, distance from the center of the road and the width of the safe or traveled portion of the roadway' at that point, are matters in dispute.

Plaintiff’s husband was driving an old model Maxwell car with the driver’s seat on the right-hand side. He testified: that he was driving leisurely at a rate of 8 or 10 miles an hour, that the road was fairly good and amply wide until he reached the narrow graded up approach near the bridge where wagon tracks or • ruts had been worn into the surface of the road making an apparent “bump” of about 4 inches at the south i edge of the bridge for one driving in them, and as he Ineared the bridge he swung to the west a sufficient distance to avoid the bump, putting the west rut be- ¡ tween his wheels, with left wheels about 8 inches outside of it, and when he was close to the bridge his left front wheel dropped into a hole which he had not seen owing to its being concealed from him by a large burdock growing with other weeds close along the side of the road; that the machine was brought by the drop to a sudden stop against the edge of the bridge, throwing his wife violently forward against the wind-shield which broke and she was severely cut with broken glass, and otherwise injured. That there were bur-docks and weeds and a hole on that side of the road into which the wheel dropped, ■ causing the accident, substantially as related, appears from defendant’s own testimony; but it is denied that plaintiff was so seriously or permanently injured as she claims, and contended that the hole was outside the traveled portion of the road, on the side or slope of the grade, that there was a safe, well defined driveway of at least 12 feet in width leading onto the bridge practically level with its floor, and the accident resulted from the driver’s negligence in swinging his car so far outside the traveled way as he was about to go upon the bridge.

Plaintiff’s testimony was mainly confined to what befell her. She stated that she could tell nothing about the “road or hill” and did not know what stopped the car, but as they rode along she was looking at a lot of horses in a field when, as she described the event:

“The first thing I knew I was out of my seat and back again. I don’t know where I went or how I got back; but I had the glass in my side and the wind-shield was broken and the binding on top of the wind-shield bent down. * * * I felt a sharp pain at my waistline and I reached down my hand and pulled it out and it was glass.”

She further told of her husband going round to her side of the car and taking her out, of a Mrs. Hamilton, who was on the bridge and saw the accident, caring for her and helping her to Mrs. Hamilton’s house near by where they cut away her clothing and dressed her wound which was bleeding profusely. She was taken by another car which came along soon after to Port Huron and medical attendance procured. She testified that in addition to the wound in her side her shoulder and knee were sprained and seriously injured, saying in part:

“My knee swelled up and the leg got black and blue and I could not step or move. I could not lay down for my knee and shoulder; I had to set just so, * * * I seemed to ache all over that whole side. I couldn’t move my shoulder, arm or knee. I could not put my hand up to comb my hair or wash my face. My shoulder gives me trouble yet. I guess it was three weeks after the accident before I was able to be up and around the house, * * * the cut in my side healed all right, but it seemed to grow fast there and I had a good deal of trouble with that.”

Of the duration of her injuries she testified that she could not move her shoulder unless she moved her whole side, that her kneecap would snap out of place at times, and she had to be very careful as the knee gave out quite often.

The case was submitted to the jury on a very full, fair, and appropriate charge, resulting in a verdict and judgment in plaintiffs favor of $2,000. . Defendant moved for a new trial on various grounds which included in substance those urged here. Findings and conclusions were filed by the court denying said motion.

The grounds for reversal urged and argued in defendant’s brief are thus stated:

“First. Because of the contributory negligence of the plaintiff’s husband in leaving the traveled portion of the road at the time of the accident, there being a sufficient width of highway reasonably safe and fit for travel over which he could have driven with safety.
“Second. That the award of the jury to plaintiff is grossly excessive in view of the proof of the slight character of the injuries sustained by her at the time in question.
“Third. That the court erred in its receipt of the testimony relative to the existence of the hole more than two months prior to the accident in another part of the road and which was immediately repaired by the proper township authorities, and the existence of which was entirely unknown to plaintiff or her husband on the day the accident happened.”

In support of the last contention, against the admission of evidence relative to the existence of a previously repaired hole in another part of the road, counsel cited Langworthy v. Green Township, 88 Mich. 207. In that case plaintiff was permitted to show by his own witness, as an implied admission of the dangerous character of the obstruction, that after the accident the township had cut off the exposed portion of the log claimed to have caused it. In the instant case the testimony objected to was drawn out by plaintiff’s counsel on cross-examination of defendant’s witnesses and related to a previously existing hole in the east edge of the driveway close to the bridge, and opposite the hole causing the accident, which had been repaired as defendant’s witnesses testified.

During the progress of the trial the condition of this built-up road near the bridge had been a subject of contention involving the nature-of its construction, the kind of soil composing it, and whether or not water coming down the highway from the south could run along the traveled way to the bridge where it might wash down holes at the side of the road or would all run into and along the side ditches. When objection was made to this portion of the cross-examination plaintiff’s counsel said: “They are trying to claim no water got down to this bridge at all; all we want to show, it washed out under the bridge,” and the court permitted the inquiry to be made. Howell had testified that there were ruts in the road which caused him to turn out of the wagon track to the west at that point. He sat on the right-hand side of his car and chose the left side to avoid the ruts he saw, and said that he noticed “that low place at the right-hand side of the bridge, close to the bridge.” Defendant’s highway commissioner testified, during his cross-examination, when asked about there having been a hole on the east side near the bridge,

“I saw á small hole there big enough, I think, to put a man’s head in,- towards the east side and right at the south edge of the bridge; it went down some. I considered it wasn’t necessary to have holes around in a bridge and I had Mr. Hamilton fill it in. * * * I think it was more a settlement of the dirt in some way. * * * The road at that point had been filled and paeked down time .after time. * * * that was like a cavity extending down into the road, like the cavity to a tooth.”

There was conflicting testimony as to whether or not the hole directly opposite this had, or could have, washed out in a similar manner. We find no error in the conclusion upon that subject reached by the trial judge, stated in overruling defendant’s motion for a new trial as follows:

“The evidence was received as bearing upon the character of the soil at the approach of the bridge in question, and this question of soil, in turn, upon the question as to whether there existed a hole of the depth and character alleged by the plaintiff. In addition there was some evidence of a depression at about the point where the former hole had been and evidence that made an inquiry as to the effect of this depression a proper subject of inquiry.”-

As to the contention that the verdict was excessive “in view of the proof of the slight character of the injuries sustained,” the trial judge in passing upon that question when deciding defendant’s motion for a new trial noted the case had been three times tried by a jury and said:

“As to the amount of the verdict, it was undisputed that plaintiff was injured. These injuries and the question as to their extent, and the pain and suffering, were submitted to the jury as sole judges as to their extent and consequent damages. It is my conclusion that the court has no right to substitute its judgment for that of the jury.”

Both the trial judge and jury saw plaintiff and heard her testify as to the accident and her condition some three years after it occurred. We have quoted excerpts from her testimony, and there was much more of like import, sufficiently to show what was before the jury in that particular, and if the facts are as she claims the verdict cannot be accounted excessive. Her testimony as to injuries and subsequent condition of her side and crippled knee were supported by that of her husband. Mrs. Hamilton, who cared for her at the time, dressed her wound and attempted to stop its bleeding with cold water and flour, testified:

“I didn’t pay any particular attention to the machine.
“Q„ I suppose you were more anxious about Mrs. Howell?
“A. Well, I didn’t like to see her suffer, I did what I could to help her. * * * she was in pain, loss of blood, and she wanted water.”

There was also abundant testimony for defendant which, if true, showed plaintiff’s evidence as to the extent of her injuries much exaggerated and the resulting damages much less. The trial court fully and correctly instructed the jury as to the measure of dam-. ages, which included compensation for shock and fright, pain, suffering, inconvenience, etc., matters of fact with no fixed standard of measurement beyond the sound sense and good judgment of the jury, based on the extent of the injuries as they found them to be. The credibility of the witnesses was for the jury Whose province it was to decide the disputed issues of fact. This court cannot say as a matter of law that the case should be reversed because of an excessive verdict.

We are unable to agree with defendant’s contention that it is conclusively shown there was sufficient width of highway reasonably safe and fit for travel leading onto the bridge so that plaintiff’s swinging to the west as he admits he did to avoid the ruts constituted contributory negligence as a matter of law. The testimony of witnesses varies from about 8 to about 12 feet as to the width of a fairly safe traveled way onto the bridge, certain of defendant’s own witnesses, however, testifying to a jolt or rise from it at the edge of the bridge. The grounds of negligence alleged in plaintiff’s declaration are in substance that the safe traveled portion of the way was at the point of accident much elevated, and narrowed by its then condition for safe travel to about one-half the width between the railings of the bridge it led onto; that it was protected by no railings or barriers until it reached the bridge, had deep ditches on each side and there were ruts in the traveled portions made by wagon wheels cutting into the surface several inches where they struck the bridge; that on the easterly side near the bridge was a depression extending into the grade, apparent to a passing traveler, a hole directly opposite on the west side obscured by weeds .growing along the side of the road so close that travelers in the exercise of reasonable care endeavoring to avoid the ruts and jar at the bridge edge were in danger of getting a wheel into it as Howell did; that the nature of the narrow elevated approach was such as to make it liable to get out of repair, as defendant’s officers had learned, and they knew or were presumed to have known of its unsafe condition at the time of the accident. The record is largely devoted to conflicting testimony as to the nature, width and coiidition of the highway generally, and ruts, holes, depressions, etc,, at that point. Plaintiff’s claim was sustained in substance by the testimony of her husband and other witnesses. Defendant produced numerous witnesses who disputed them in material particulars, although some of their testimony seems to favor plaintiff’s contention. A witness named Van piven, who visited the place shortly after the accident at Howell’s request, testified that there were wagon ruts or tracks 4 inches deep where they hit the edge of the bridge, and a jagged hole at the west side on the edge of the traveled way, about 13 inches from the west wagon track, which looked as though water had worked through there and gone down to the incline of the bridge; that the distance between it and a hole or depression on the east side was about 8 feet; that there were burdocks on the west side in the hole broken down by the automobile wheel which dropped into it. Mr. Goodman, a resident of that township for 57 years, testified to the existence of this hole on the west side which he estimated to be a foot and a half deep and about 18 inches from the west track; that where the road went onto the bridge it was somewhere about 8 feet wide, not giving room for two rigs to pass, and had settled down so there was quite a rise for a rig to go up on the bridge; he estimated the “bump” as 4 or 5 inches; observed where the track of the machine had turned astraddle of the west track and kept astraddle of it until it got to the bridge, running straight after it had got in that position. A taxpayer of the township named Barnes testified there was a hole on the east side made by the natural wear of the wheels or a washout near the plank and another hole on the west side, which he judged was a washout made by rains, somewhat obscured by a. burdock, and noticed this hole was so in the road as to be between the railing and the traveled track where it struck the bridge; that the auto track was a little west of the center of the road and pretty near astraddle of the west wagon track. Mr. Wilton, the township supervisor and a witness for defendant, testified that he was notified of the accident by the plaintiff’s husband shortly thereafter and examined the place where it occurred; saw where the automobile track left the usually traveled track of the road and ran into the hole, and said:

“It broke down the sides as it got into that hole. * * * The nearest point of that hole to the traveled track or in part of the traveled track in the highway would be 3% féet, I should judge. * * ’ * The hole was 18 inches deep, I ain’t certain about the back end of it how deep it was, but along that wing there was a kind of hole with weeds growing in it; * * * the dirt was lower than the wing, and as it went in from the wing it was still a little lower, I think, east toward the rut, and as it went further east it went up again on the road-bed * * * the deepest point I could find was 18 inches. * * * the bank of that hole came right up to the good road.”

Mrs. Hamilton, who saw the accident and was called as a witness by defendant, said of the ruts, “there wasn’t over maybe 9 inches of fall where they dropped off the bridge” and testified, among other things, that at the time of the accident—

“they were trying to shun that rut. * * * The automobiles ordinarily shun those ruts of course and this one turned out like any other automobile to shun those ruts * * * when the automobile got to the bridge, its left wheel was probably a foot or more to the left of that track; * * * the left front wheel was in this small rut in some burdocks not quite up to the bridge, on an angle; * * * Wagons travel in one track and autos traveled the other, a wider one; autos never travel the wagon tracks; the wagon tracks went up on the center of the bridge and the auto track was the one that went up west of that on the left side.
“Q. The right auto wheel was in the biggest track?
“A. Yes, sir.
“Q. It was right in the track, was it, or in the center between the two tracks?
“A. In the auto track that would be in the center of the wagon tracks.”

These fragmentary excerpts from the testimony are only quoted to the point that Howell’s contributory negligence was a question of fact for the jury and not of law for the court. There was ample testimony for defendant from which the jury might in their discretion have found contributory negligence as a conclusion of fact. That issue was submitted to the jury under proper instructions. The court said in part:

“You are instructed that in case you should find from the proofs that -the plaintiff’s husband was careless in the management of the car so as to cause or aid in causing the accident, such carelessness or negligence on his part is attributable to plaintiff. * * * She is therefore bound by his carelessness, if any, * * * she must also (Convince you by such preponderance of evidence (previously defined) that her husband, the driver of the car, was himself free from any carelessness in handling the car and that the approach to the bridge was so defective and unsafe that it was the proximate cause of the accident.”

* As a whole the charge very fully covers the law applicable to that controversy.

We find no reversible error in the particulars complained of and the judgment will stand affirmed.

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


author: Brooke, J.

text:
    SORENSEN v. SORENSEN.
    1. Married Women — Right of Husband to Wife’s Services in the Home.
    Services rendered by a married -woman as a member of her husband’s family, in his home, being the ordinary services of a farmer’s wife, belonged to the husband, and if any ' contract with her father-in-law for compensation for such services was legal, her earnings thereunder belonged to the husband notwithstanding the so-called married woman’s act.

      2. Same — Wife’s Services in Home — Right to Contract— Statutes.
    A void contract entered into by a married woman with her father-in-law for compensation for her services rendered as a member of her husband’s family, would not he affected by the passage of 3 Comp. Laws 1915, § 11478, entitling-married women to their separate earnings, in the absence of the making of a new contract after the passage of said act.
    3. Same — Triad—Instructions—Evidence. •
    Instructions by the trial judge that plaintiff would be entitled to recover for any services rendered by her' to defendant independently of her husband, held, erroneous in the absence of any evidence to support them.
    Error to Manistee; Cutler (Hal. L.), J.
    Submitted April 27, 1920.
    (Docket No. 83.)
    Decided September 30, 1920.
    Assumpsit by Sigrid J. Sorensen against Fred W. Sorensen for services rendered. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Thomas Smurthwaite, for appellant.

      Harry F. Hittle, for appellee.
    Plaintiff is a daughter-in-law of defendant, having married defendant’s son some time prior to the year 1908. In December of that year, after some correspondence, plaintiff and her husband ^removed from Kenosha, Wisconsin, to Michigan, and went upon defendant’s farm in the county of Manistee. No arrangement was made between the parties as to possession at that time but in the month of March, 1909, it is the claim of the plaintiff that a contract was entered into between defendant and herself and her husband. She testified:
    “Mr. Sorensen said my husband and I were, to run the farm; my husband was going to do the general farming and I was to do the housework, and take care of the chickens, and make my butter; and-for our services rendered we were to receive the farm, if we would stick to that until the time of his death; one-half to my husband, and one-half to me. Mr. Sorensen, my hus■band and myself were present, and my husband heard the conversation. I know my husband heard it, because he said he wanted to do it. ‘We will stick to that; we can do better at that than we can in Kenosha.’ ”
    She further testified:
    “I remember the time when Mrs. Fred Sorensen, the defendant’s wife, died; it was February 22, 1912, I was living on the farm at that time. I remember having a conversation with Mr. Fred Sorensen shortly after his wife died. It was at breakfast time, and they were talking at the breakfast table; I was baking pancakes at that time. Mr. Sorensen, the defendant, told me that my share — as I was to have for my share all the household furniture; he said that belonged to me. I worked on the farm continuously after that, until about the 29th or 30th of October, 1918.”
    And on cross-examination:

      “A. My husband and I were to run the farm and for our services rendered we were going to get the farm as stated. * * * We were to have our living; living and clothes; a good living, and then if we would stick to it, we were to get the farm at the time of his death. * * * My husband and I were to take care of the farm as long as Mr. Sorensen lived and he would give us the farm at his death.

      “Q. Now, that was the agreement, as you understood it?

      “A. That is as I said there; that was the agreement.

      “Q. Now, then, Mrs. Sorensen, you were living with your husband at that time and have so lived from the time of your marriage until then, and you and your husband had lived together as husband and wife up to that time?

      “A. Yes, sir.

      “Q. And you continued to live together as husband and wife during all the time you were on this farm?
    “A. Yes, sir.

      “Q. And you are his wife yet?

      “A. Yes, sir, I am.”
    Defendant and his son (plaintiff’s husband) were both sworn and denied absolutely the making of the contract as testified to by plaintiff. It was their claim that the original arrangement made between father and son was that the son should furnish from the farm produce such as was necessary for the use of his father and mother and in addition thereto pay to his father the sum of one dollar per day; that this arrangement continued for about two years, but that the son found himself unable to carry it out, whereupon a new bargain was made between them to the effect that the expenses of operation should be first deducted from the gross proceeds of the farm and the balance equally divided; and that such arrangement was in effect at the time of the trial.
    Whatever the actual agreement between the parties was, plaintiff with her husband remained upon the defendant’s farm until October, 1918, a period somewhat more than nine years. During this time she was absent on several occasions, due to ill health, for several weeks or months at a time. After a prolonged absence in the fall of 1918 she returned and her husband refused to permit her to remain, telling defendant that if she came back he (plaintiff’s husband) would leave. This having been communicated to plaintiff, she left, and brought this action against defendant.
    The first count in the declaration is a special count setting out the contract as claimed by plaintiff, its subsequent breach by defendant, and fixing plaintiff’s damage at the sum of $5,630 (presumably one-half of the value of defendant’s farm). There is a special count “in assumpsit” in which the same amount is claimed to be “due and payable from said defendant to the plaintiff for the services of the said plaintiff by her then and there performed as an employee of and for the said defendant at his special instance and request,” and claiming damages in the sum of $5,630, the same as in the first count.

      Upon the trial it was conceded by plaintiff’s counsel that the contract, as set out in the first count, was absolutely void under the statute of frauds and that no recovery could be had thereunder; but it was claimed by plaintiff’s counsel that a recovery might be had under the second count (the count “in assumpsit”) for the value of the services rendered by the plaintiff to defendant under an implied assumpsit. Defendant’s counsel urged that the second count was in fact not a count in assumpsit, but was for a specific sum claimed to be due plaintiff from defendant as “wages or salary,” i. e., as “agreed compensation.” Objection was made to the introduction of any testimony under the declaration and the opening statement of counsel, which was overruled. The case was submitted to the jury by the court upon the theory that plaintiff might recover for the reasonable value of her services under an implied assumpsit, for such time as she remained upon the farm after the passage of Act No. 196 of the Public Acts of 1911 (3 Comp. Laws 1915, § 11478). Plaintiff recovered a judgment of $1,014.
    A motion was made at the end of plaintiff’s testimony and again at the conclusion of all the testimony for a directed verdict. Decision on this motion was reserved, pursuant to Act No. 217, Pub. Acts of 1915 (3 Comp. Laws 1915, § 14568 et seq.). In substance, the motion was for a directed verdict upon the ground that plaintiff, being a married woman, could not recover for her personal services rendered to the defendant without first showing consent or assignment from the husband to the wife, to collect in her own name and right wages earned by her for personal services rendered, and a further showing that the arrangement between the husband and wife was brought home to the knowledge of the defendant and assented to by him. The motion was denied and judgment rendered for the plaintiff.
   Brooke, J.

(after stating the facts). Defendant presents his case in this court under 15 assignments of error, which it is unnecessary to consider seriatim. It is first urged that the court erred in holding the so-called assumpsit count sufficient to enable plaintiff to recover upon the quantum meruit. The count is in-artificially drawn, but under the liberal view now held as to pleading, it might be regarded as sufficient to support the judgment. In view of the conclusions we have reached upon another branch of the case, however, it is unnecessary to pass upon the question of pleading.

Assuming the truth of the plaintiffs testimony, we find that she and her husband entered into a contract with defendant by the terms of which they and defendant undertook jointly to run defendant’s farm, the son doing the farming and the plaintiff doing the housework, in consideration that the defendant should, at his death, give the farm, one-half to each of them. From a very careful examination of the record we are satisfied that the defendant’s version of the arrangement is sustained, not alone by the great preponderance of the evidence, but by the circumstances surrounding it. However, we must, for the purpose of this discussion, assume that plaintiff’s testimony is true. Whatever work and labor she performed thereafter up until October, 1918, was performed in reliance upon said contract. No new or other contract was ever made thereafter. It is conceded upon all hands that the contract, if made according to plaintiff’s testimony, was illegal, and had it been legal when made and she performed services thereunder, her husband would have been entitled to her earnings notwithstanding the so-called married woman’s act of thia State. Glover v. Alcott, 11 Mich. 471; Tillman v. Shackleton, 15 Mich. 447; Randall v. Randall, 37 Mich. 563; Mason v. Dunbar, 43 Mich. 407; Harrington v. Gies, 45 Mich. 374; Benson v. Morgan, 50 Mich. 77; Sines v. Superintendents of Poor, 58 Mich. 503.

It is conceded, or at any rate the learned circuit judge instructed the jury, that plaintiff could not recover for the value of her services rendered prior to the passage of Act No. 196, Pub. Acts 1911 (3 Comp. Laws 1915, § 11478), which provides:

“Each and every married woman in the State of Michigan shall be absolutely entitled to have, hold, own, retain and enjoy any and all earnings acquired by any such married woman as the result of her personal efforts; and to sell or otherwise dispose of any and all such earnings, and to make contracts in relation thereto to the same extent that any such married woman could have or do if unmarried.”

Plaintiff proceeded thereafter as she had before to perform her services.

It is the claim of the plaintiff (and the learned circuit judge so instructed the jury) that the passage of said act changed the relationship of the parties and that thereafter the law would imply an agreement between plaintiff and defendant to the effect that defendant should pay to plaintiff the reasonable value of her services. We find ourselves unable to agree with this view. Plaintiff went with her husband upon the farm of the defendant and there made it her home. Such services as she rendered were rendered as a member of her husband’s family, in her husband's home, and were the ordinary services a farmer’s wife renders in his own home. It may again be emphasized that after the passage of that act, plaintiff made no contract whatever in relation to her services. We are of the opinion that under the situation disclosed by this record, the statute (3 Comp. Laws 1915, § 11478) has no application. We first had the matter under consideration in the case of Gregory v. Oakland Motor Car Co., 181 Mich. 101, where it is said by Mr. Justice Stone:

“It will be noted that our statute above quoted gives, to each and every married woman the right to have, hold, own, retain, and, enjoy ‘any and all earnings acquired’ by her. Can it be said that, in the performance by the wife of the ordinary duties of the housewife as a helpmate in the home of her husband, she has ‘acquired’ the right to her earnings? We think not. If such construction were to be placed upon the statute, then the wife would have a right of action against her husband for any and all domestic services or assistance rendered in the household. We think the statute means that all earnings acquired or service performed by her as the result of her personal efforts in any separate business carried on by her in her own behalf, or any services performed by her for others than her husband, belong to her; but that her husband is entitled to her labor, companionship, society, and assistance in the discharge of those duties and obligations which arise out of the marriage relation, and that these belong to him. Where she has a separate business the wife may recover for loss of time as if she were sole. Fife v. City of Oshkosh, 89 Wis. 540 (62 N. W. 541); Fleming v. Town of Shenandoah, 67 Iowa, 505 (25 N. W. 752, 56 Am. Rep. 354).”

Again, in Blair v. Seitner Dry Goods Co., 184 Mich. 304 (L. R. A. 1915D, 524, Ann. Cas. 1916C, 882), this court, speaking of the act in question through the late Justice Ostrander, said:

_ “The legislature has relieved her of certain disabilities so called and has denied to her husband the right to her earnings and the profits of any business she may carry on. It has not, however, put her domestic duties and labor, performed in and about her home for her family, upon a pecuniary basis, nor meant to classify such duties as services, nor to permit her to recover damages for loss of ability to perform them.”

It is claimed that the rules here laid down were avoided by the following instruction of the circuit judge:

“I charge you further, that in order for you to give a verdict for anything, in favor of the plaintiff in this case, you must be satisfied that she went to work, and performed services for the defendant in this case, which inured to his benefit, independent of her husband absolutely; and in the event you find that by a preponderance of the testimony, then you will only find or give her credit for such work as was performed by her during the period from August 30,1911, to December 15,1918. * * *
“On the other hand, if you believe that she was not working for her husband, and that 'the contract, as claimed by defendant, was not made; but that she worked independently on these promises as claimed by the plaintiff, then she is entitled to recover reasonable value for her services rendered.”

The difficulty with these instructions is that there is no evidence in the case to support them. Even under the void contract as testified to by the plaintiff there is no indication that she was to perform services for the defendant for his benefit “independently of her husband.”

The judgment must be reversed and, inasmuch as under our view of the plaintiff’s testimony no recovery can be had by her, there will be no new trial.

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


author: Moore, C. J.

text:
    BELCHER v. RANNEY.
    1. Conversion — Evidence—Expert Testimony.
    In an action against a postmaster for the conversion of personal property left in the post office by the retiring postmaster, where the record shows that plaintiff had sufficient knowledge of values to testify thereto, his testimony was properly received.
    2. Same — What Constitutes — Demand—Instructions.
    The trial judge properly instructed the jury that if a reasonable time' had elapsed, that a lawful demand had been made, and that the defendant had converted the property, it was their duty to find a verdict of guilty.
    S. Same — Partial Deprivation op Property Sufficient to Constitute.
    Conversion does not necessarily imply a complete and absolute deprivation of property; there may be a deprivation which is only partial or temporary, and where the property of the plaintiff remains in or is restored to him.
    Error to Ingham; Collingwood (Charles B.), J.
    Submitted June 9, 1920.
    (Docket No. 20.)
    Decided September 30, 1920.
    Case by George L. Belcher against Delbert D. Ranney for the conversion of certain post office fixtures. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Thomas, Shields & Silsbee, for appellant.

      L. B. Gardner, and Frank L. Dodge, for appellee.
   Moore, C. J.

In March, 1916, the defendant was notified that he had been appointed postmaster of Leslie. April 7, 1916, he took over the office from the plaintiff. November 17, 1916, this action of trover was commenced to recover the value of the personal property which was left in the office when there was a change in the postmastership. The case was tried by a jury which rendered a verdict in favor of the plaintiff in the sum of $1,117.92. From a judgment for that amount the case is brought here by writ of error.

There Were 17 assignments of error but they may very properly be divided into four groups: 1. That plaintiff was allowed to testify as to values when he was not shown to be an expert. As to this group we shall content ourselves with saying the record shows plaintiff had sufficient knowledge so that his testimony was properly received. The second group of errors relates to the refusal to give eight written requests preferred by defendant. The third group relates to the charge of the court as given, and the remaining group relates to the refusal of the court to direct a verdict for defendant upon the theory that plaintiff had not made a case of trover.

The case is not a complicated one. A.rule of the post office department was received in evidence which reads:

“Sec. 350. Postmasters are not required to purchase the equipment of their predecessors. A retiring postmaster should not remove his equipment to the detriment of the public service when such equipment is not purchased by his successor, until the latter has had a reasonable time in which to obtain and install other equipment. Where the equipment of a predecessor is used at offices of the second or third classes, and if not included in a lease to the post office department, and at offices of the fourth class, the postmaster shall pay from his personal funds a reasonable rental for such equipment, the amount to be agreed upon between the parties interested.”

Both parties seem to have been content with tins rule at first. The record shows that about April 15th there was a talk between them about the fixtures. When plaintiff offered them to the defendant for $1,200 he was told by the defendant he was not yet ready to buy but wanted to look about. A few days later they had an interview on the street, and on the evening of the same day in the post office building. They reached no conclusion. About the first of June there was an interview between them. The plaintiff testified on the cross-examination, in part, as to this interview:

“I think along the first of June or before the first of June, I saw him again. I may have seen him once before that. I was still in Leslie. At that time I told him I had to go away. I had got a job and would like to have the matter settled up before I went. He told me he would not pay my price. I says:, T will pick a man and you pick a man and we will leave it to them,’ and he said he would pay attention to his own business, he would buy his own stuff, and I says, ‘Mr. Ranney that is no way to do, let us act like men and get together and have this furniture — there is no use having two sets of boxes in this town.’ He made me a small offer, but I did not consider it an offer. ’ I could npt tell you just the price he offered. It was less than $500, and I wanted $1,200. We came to no agreement in June.”

The defendant testified in part as to this interview:

“About the first of June or last of May or sometime in May, Mr. Belcher called on me again. He wanted to know what I would give for the fixtures, or what I would not give, and I told him I would give $450. He said ‘you get some new fixtures just as quick as you can,’ jumped up and walked out.”

There was another interview in October, about which the plaintiff and defendant are not agreed. Plaintiff had heard that defendant had bought new fixtures. A Mr. Graham went with the plaintiff and testified as follows:

“I have known Mr. Belcher probably 28 years, and have known Mr. Ranney pretty nearly as long. In 1916 the last of October or the fore part of November, I went down town one night going to the post office and met Mr. Belcher and he told me he wanted to make a demand on Mr. Ranney and wanted to know if I would go with him. I did so, and Mr. Belcher told Mr. Ranney that he either wanted his fixtures or the money, and that he had a business transaction of his own that he had to settle up and he had to know where he was at, he had to have either the money or the fixtures. Mr. Ranney made no reply to Mr. Belcher. He just stood there kind of mum and grinned a little but didn’t say anything. Mr. Belcher told him that he expected to return on the 10 o’clock car and he would like to have an answer before he went back. Mr. Ranney made no further reply.”

The defendant testified that as early as August he ordered new fixtures but did not notify the plaintiff of that fact, and in reply to an inquiry said he did not think it was any of his business. The plaintiff had an interview with defendant in November. He made a demand for the fixtures to be delivered immediately. The defendant says he told him he could have his fixtures “if I could get a couple of men to help put up the others,” and that a day or two later he notified plaintiff he could have his fixtures. In the meantime this law suit had been commenced. The trial judge charged the jury properly that the burden was upon the plaintiff and as to the three things he must prove to maintain this suit in trover. We quote from his charge as follows:

“It is conceded in this case that defendant was entitled to hold those articles until a reasonable time had elapsed for him, the defendant Ranney, to either secure new fixtures or purchase or rent the fixtures then in the office.
“Now, what constitutes a reasonable time is for your consideration, under all the conditions in this case, the fact that it was used by the public and under the post office laws and regulations, and under the evidence in this case.
“Now the question of reasonable time is up to you. If you find that a reasonable time had elapsed to entitle plaintiff Belcher to immediate possession you will next determine the question, Did plaintiff Belcher make a lawful demand for his property? I will say to you, gentlemen, that to constitute a legal demand of property in this class of cases, it is not necessary for the demanding party to use the word demand, or to specify by name or to give any particular' description of the property demanded, but in language which makes known to the party of whom the demand is made that demandant desires possession of the property and informs him by reference or otherwise what property he desires possession of — that is sufficient to constitute a demand. No particular words — what I mean to say by that is, no particular set words are required. If you find, gentlemen, from the evidence, and from a, preponderance of it, the plaintiff was entitled to immediate possession, that is, that he had waited a reasonable time and was entitled to immediate possession and that he made the demand, a lawful demand, it then becomes your duty to determine the third question, Did defendant Ranney unlawfully convert the property ? To constitute an unlawful conversion, you must find that while the plaintiff was entitled to immediate possession, the plaintiff made a legal demand, and that then defendant under such circumstances refused or neglected to deliver this property to plaintiff. * * *
“Now, gentlemen, if you cannot find under the evidence and by a preponderance thereof, and under the law as I have given it to you, that there was a right to immediate possession, and there was a demand, and that there was a conversion — you have got to find all three, and if you cannot so find under the evidence and under the law, it becomes your duty to return a verdict of not guilty.
“But if you do find a reasonable time had elapsed, that a lawful demand had been made, and that the defendant had converted the property, then it would be your duty to find a verdict of guilty and you would then come to the question of damages."

In Ingersoll v. Barnes, 47 Mich. 104, Chief Justice Marston, speaking for the court, said:

“It was also urged on the part of the plaintiff in ■error that although a demand had been made for this property before suit brought, yet that there had been no refusal to comply therewith. The refusal or reply to the demand was in writing and as follows: ’ ‘You now claim the engine as belonging to you. I neither admit nor deny your claim. I shall not consent to your taking the property, nor shall I forbid your doing so. We are both responsible for our acts and I suppose the law will protect us in our rights and punish us for any unlawful acts which we may do.’
“If a demand for property can thus be answered and not constitute a conversion, it will be easy hereafter to avoid the responsibility whiqh a refusal entails. This in my opinion was sufficient evidence of a conversion to entitle the plaintiff to maintain trover.”

In Daggett v. Davis, 53 Mich. 35, Chief Justice Cooley, speaking for the court, said:

“But conversion does not necessarily imply a complete and absolute deprivation of property; there may be a deprivation which is only partial or temporary, and where the property of the plaintiff remains in or is restored to him. Liptrot v. Holmes, 1 Kelly (Ga.), 381, 391; Fisher v. Kyle, 27 Mich. 454; Hall v. Corcoran, 107 Mass. 251 (9 Am. Rep. 30). An illustration is where one hires a horse for one use and puts it to another, subsequently returning it to the owner. Homer v. Thwing, 3 Pick. (Mass.), 492; Rotch v. Hawes, 12 Pick. (Mass.), 136 (22 Am. Dec. 414); Crocker v. Gullifer, 44 Me. 491; Horsely v. Branch, 1 Humph. (Tenn.), 199. The difference between such a case and one in which the property is wholly made away with, is one affecting the damages only; the damages go to the whole value of the property in the one case, and are commonly less in the other. Wheelock v. Wheelwright, 5 Mass. 104; Long v. Lamkin, 9 Cush. (Mass.), 361; Reynolds v. Shuler, 5 Cow. (N. Y.), 323; Cook v. Loomis, 26 Conn. 483; Brady v. Whitney, 24 Mich. 154, 156.”

See Stansell v. Leavitt, 48 Mich. 225; Ashman v. Epsteine, 50 Mich. 360; Gibbons v. Farwell, 63 Mich. 344; McDonald v. McKinnon, 92 Mich. 254; Parnell v. Pungs, 190 Mich. 638.

The issues involved in the instant case were simple ones. We find no reversible error.

The judgment is affirmed, with costs to the plaintiff.

Steere, Brooke, Fellows, Stone, Clark, Bird, and. Sharpe, JJ., concurred.


author: Moore, C. J. Stone, J.

text:
    WILLIAMS v. SOUTHERN SURETY CO.
    1. Words and Phrases — “Chronic” Diseases — Definition.
    In order to distinguish a disease as “chronic,” it is necessary that it should have been of long standing, as applied, to diseases of a body; that it be deep seated and obstinate, threatening a long continuance.
    2. Insurance — Sick Benefits — Contracts—Construction—Ruis.
    Where the terms of an accident and sick benefit policy, issued before the passage of 'the statute requiring the Standard, form of policy to be used, were limited by certain provisions printed in fine print in the application, of which the insured apparently was ignorant, and was depending upon the terms of the policy, on a suit to recover upon the policy, the rule applicable in the construction of the same requires that it should be construed most strongly against the insurer, which prepared the contract, conceding that the policy and application should be construed together as one contract.
    3. Same — “Chronic” Disease — Construction of Poiacy.
    A provision in the policy that “the total length of time to be paid for during any one illness shall not exceed one year,” field, to indicate that an illness of four months was not contemplated to be “chronic” within the terms of the policy relieving the insurer from liability.

      Error to Kent; Brown (William B.), J.
    Submitted June 8, 1920.
    (Docket No. 1.)
    Decided September 30, 1920.
    Assumpsit in justice’s court by George R. Williams against the Southern Surety Company on a policy of insurance. There was judgment for plaintiff and defendant appealed to the circuit court. Plaintiff died and the action was revived in the name of Anna T. Williams, administratrix. Judgment for defendant. Plaintiff brings error.
    Reversed..

      Charles G. Turner, for appellant.

      Jewell & Smith, for appellee.
   Moore, C. J.

George R. Williams became a member of the Phoenix Accident and Sick Benefit Association of Benton Harbor, Michigan, on the 4th day of February, 1898. For the following 20 years he paid premiums on his policy of insurance. He began suit on the 8th day of February, 1919, to recover for sick benefits from September 26,1918, to February 8, 1919, at $40 a month. The policy issued by the Phoenix Accident and Sick Benefit Association was taken over by the defendant who assumed all liabilities on said policy. The case was begun in justice’s court and appealed by said defendant to the circuit court where it was tried by the circuit judge without a jury, who rendered judgment in favor of the defendant for the reason that he thought the proofs disclosed that the disease with which Mr. Williams was afflicted was chronic and came within the exceptions mentioned in the application.

. Mr. Williams died April, 1919, and his widow, Anna T. Williams, was appointed administratrix of his estate and the case was revived according to the rules. The trial judge made findings of fact and law. Amendments to his findings were duly filed, proper exceptions were taken and the case is here by writ of error.

The policy reads in part as follows:

“In consideration of the covenants, agreements and warranties contained in the application for membership, bearing even number herewith, which application, together with the by-laws of this association, is hereby made a part of this contract and the payment of one dollar in advance on or before the first day of each and every month during the continuance of this policy, the Phoenix Accident and Sick Benefit Association accepts as a member George R. Williams * * * said member shall be entitled to the following benefits, during the time this policy is maintained in full .force and effect. * * *
“Forty dollars per month or at that rate for any part of a month after membership of without delinquency prior to the beginning of sickness, should the member become sick from any disease not caused by narcotics, intoxicants, excesses or immoral actions on his part, and be wholly incapacitated from transacting any and every kind of work or business pertaining to his occupation, and as a result thereof be entirely confined to the house or bed. And under the charge of some regularly qualified and registered physician, after the first five days from the time he is so confined to the house. Provided the total length of time to be paid-for during any one illness shall not exceed one year. * * *
“In addition to the above will pay for sickness caused by any of the following diseases:”

Then follows the names of 40 diseases, including inflammation of the lungs, the section concluding with the words “And all other diseases not specifically prohibited.”

The application for membership reads in part as follows:

“Having carefully examined the principles, objects, classifications and policy of the Phoenix Accident and Sick Benefit Association, I hereby make application for membership, and agree to pay the monthly dues.”

Then follow 26 questions and answers.

Between the 12th and 13th questions there are interjected in very small type various provisions, agreements and exceptions, the existence of which it is stated shall avoid the policy. We quote:

“I, the applicant, do hereby agree that this application aiid all statements, answers and agreements herein contained, together with the constitution and bylaws of this association, with all amendments heretofore, or hereafter made, are hereby made part of any policy that may be issued hereon.”

The words printed between those two answers cover a page and a half of the printed record. Among them is the following:

“And I further understand and agree that the benefits of membership in this association shall not extend to nor cover disability or death resulting wholly or partly, directly or indirectly, from any of the causes restricted in the by-laws of this association, nor from any óf the following causes, viz.: Any disease commencing or existing, or the cause of which existed or commenced at or prior to the date of beginning of membership, in this association.”

And then follows a long list of causes which will relieve the company from liability, among them all chronic diseases.

We again quote:

“I, the applicant, here hereby warrant that all statements, answers and agreements herein contained on both sides of this application, whether printed or written by me, or any other person, are my answers; and I understand and agree that the person soliciting or taking this application is my agent as to all statements, answers and agreements contained in application; that no statements or agreements made or received by any person, or to the association, shall be binding upon said association, unless said statements or agreements are embodied in this application in writing. * * * I hereby expressly waive all provisions of law now existing, or that may hereafter exist, preventing any physician who has attended me or who may attend me hereafter, from disclosing all information which he may hereby acquire.”

Counsel for the appellee say in their brief:

“This policy was issued before the passage of the standard provision law requiring the application to be printed on the policy in order for the defendant to use the provisions of the application as a defense.”

It was, probably, contracts like the one before us which led the legislature to provide that policies shall be plainly printed in type not smaller than long primer and that the exceptions to the liability created by the policy shall be printed with the same prominence as the benefits to which such exceptions apply. See 2 Comp. Laws 1915, § 9371.

It is also probable that it was contracts of a similar character which the supreme court of New Hampshire had in mind when it rendered the opinion in De Lancey v. Insurance Co., 52 N. H. 581. In explaining the nature of the mischief intended to be remedied by the legislature of that State in 1855, the opinion reads in part as follows:

“The principal act of precaution was to guard the company against liability for losses. Forms of applications and policies (like those used in this case), of a most complicated and elaborate structure, were prepared, and filled with covenants, exceptions, stipulations, provisos, rules, regulations and conditions, rendering the policy void in a great number of contingencies. These provisions were of such bulk and character that they would not be understood by men in general, even if subjected to a careful and laborious study: by men in general they were sure not to be studied at all. The study of them was rendered particularly unattractive, by a profuse intermixture of discourses on subjects in which a premium payer would have no interest. The compound, if read by him would unless he were an extraordinary man, be an inexplicable riddle, a mere flood of darkness and confusion. Some of the most material stipulatiqns were concealed in a mass of rubbish, on the back side of the policy and the following page, where few would expect to find anything more than a dull appendix and where scarcely any one would think of looking for information so important as that the company claimed a special exemption from the operation of the general law of the land relating to the only business in which the company professed to be engaged. As if it were feared that, notwithstanding these discouraging circumstances, some extremely eccentric person might attempt to examine and understand the meaning of the involved and intricate net in which he was to be entangled, it was printed in small type', and in lines so long and so crowded that the perusal of it was made physically difficult, painful and injurious. Seldom has the art of typography been so successfully diverted from the diffusion of knowledge to the suppression of it. There was ground for the premium payer to argue that the print alone was evidence, competent to be submitted to a jury, of a fraudulent plot. It was not a little remarkable that a method of doing business not designed to impose upon, mislead and deceive him by hiding the truth, practically concealing and misrepresenting the facts, and depriving him of all knowledge of what he was concerned to know,- should happen to be so admirably adapted to that purpose. As a contrivance for keeping out of sight the dangers created by the agents of the nominal corporation, the system displayed a' degree of cultivated ingenuity, which if it had been exercised in any useful calling, would have merited the strongest commendation. * * *
“When a premium payer met with a loss and called for the payment promised in the policy which he had accepted upon the most zealous solicitation, he was surprised to find that the voluminous, unread, and unexplained papers had been so printed at headquarters, and so filled out by the agents of the company, as to show that he had applied for the policy. This, however, was the least of his surprises. He was informed that he had not only obtained the policy on his own application, but had obtained it by a series of representations (of which he had not the slightest conception), and had solemnly bound himself by a general assortment of covenants, and warranties (of which he was unconscious), the number of which was equaled only by their variety, and the variety of which was equaled only by their supposed capacity to defeat every claim that could be made upon the company for the performance of its part of the contract. * * *
“With increased experience came a constant expansion of precautionary measures on the part of the companies. When the court held (Marshall v. Insurance Co., 27 N. H. 157: Campbell v. Insurance Co., 37 N. H. 35; Clark v. Insurance Co., 40 N. H. 333), that the agent’s knowledge of facts not stated in the application was the company’s knowledge, and that an unintentional omission or misrepresentation of facts known to the company would not invalidate the policy, the companies, by their agents, issued new editions of applications and policies, containing additional stipulations to the effect that their agents were not their agents, but were agents of the premium payers; that the latter were alone responsible for the correctness of the applications; and that the companies were not bound by any knowledge, statements, or acts of any agent, not contained in the application.”

In the fourth edition of May on Insurance, at section 174, it is said:

“Having .indemnity for its object, the contract is to be construed liberally to that end, and it is presumably the intention of the insurer that the insured shall understand that in case of loss he is to be protected to the full extent which any fair interpretation will give. The spirit of the rule is, that where two interpretations equally fair may be given, that which gives the greater indemnity shall prevail. And to the same spirit is due the rule that conditions and provisos will be strictly construed against the insurers because they have for their object to limit the scope and defeat the purpose of the principal contract; and apparently contradictory clauses will be so construed if possible as to reconcile them with each other, and to give to each its due force in furtherance of the main purpose of the contract.”

In Grand Rapids, etc., Power Co. v. Casualty Co., 111 Mich. 148, it is said in part:

“In Anderson v. Fitzgerald, 4 H. L. Cas. 484, in speaking of the policy in that case, it was said:
“ ‘It ought to be framed with, such deliberate care that no form of expression by which, on the one hand, the party assured can be caught, or by which, on the other, the company can be cheated shall be found upon the face of it.’
“In National Bank v. Insurance Co., 95 U. S. 673, speaking of the policy in that case and the rule here stated, the court said:
“ ‘The company cannot justly complain of such rule. Its attorneys, officers, or agents prepared the policy for the purpose, we shall assume, both of protecting the company against fraud, and of securing the rights of the assured under a valid contract of insurance. It is its language which the court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself.’ ”

In Turner v. Casualty Co., 112 Mich. 425 (38 L. R. A. 529), Chief Justice Long, speaking for the court, said in part:

“As was said in Bonenfant v. Insurance Co., 76 Mich. 657:
“ ‘Forfeiture is not favored either in law or equity, and a provision for it in a contract will be strictly construed; and courts, will find a waiver of it upon slight evidence when the equity of the claim is, under the contract, in favor of the assured.’ .
“See, also, Lyon v. Insurance Co., 55 Mich. 146 (54 Am. Rep. 354), and cases there cited; Peoria, etc., Ins. Co. v. Hall, 12 Mich. 202; 2 May, Ins., § 488; German Fire Ins. Co. v. Carrow, 21 Ill. App. 631; Thompson v. Insurance Co., 136 U. S. 287 (10 Sup. Ct. Rep. 1019). * * *
“If this language in the policy is ambiguous and susceptible of two constructions, then the question must be solved in favor of the insured; for it is well settled in this State that where a stipulation or exception to a policy, emanating from the insurer, is capable of two meanings, the one is to be adopted which is the most favorable to the insured; that it ought to be framed with such deliberate care that no form of expression by which, on the one hand, the party insured can be caught, or by which, on the other, the company can be cheated, should be found on the face of it. Utter v. Insurance Co., 65 Mich. 545 (8 Am. St. Rep. 913); Grand Rapids, etc., Power Co. v. Casualty Co., 111 Mich. 148.”

See Utter v. Insurance Co., 65 Mich. 555; Laker v. Fraternal Union, 95 Mo. App. 353 (75 S. W. 705); Northwestern Mutual Life Ins. Co. v. Hazelett, 105 Ind. 215 (4 N. E. 582); Allen v. Insurance Co., 85 N. Y. at p. 477; Zantow v. Insurance Co., 103 Neb. 685 (173 N. W. 694); Teutonia Fire Ins. Co. v. Mund, 102 Pa. St. 94; Wadsworth v. Tradesman’s Co., 132 N. Y. 540 (29 N. E. 1104); Miller v. Insurance Co., 31 Iowa, 216; Moulor v. Insurance Co., 111 U. S. 342 (4 Sup. Ct. Rep. 466).

In Volume 2, Words and Phrases, at page 1151, it is said:

“Chronic. In order to distinguish a disease as ‘chronic’ it is necessary that it should have been of long standing as applied to diseases of a body. ‘Chronic’ and ‘acute’ are the antitheses of each other. An acute disease is one usually attended with violent symptoms, while a chronic disease is deep-seated and obstinate, threatening a long continuance. Jones v. Yarborough, 2 Ala. 524, 525.”

In the instant case it is not probable that Mr. Williams had any knowledge of what was contained in the fine print between questions 12 and 13 in the application, but if it be conceded that the application and the policy are to be regarded as one contract, if we apply the rule of law to be deduced from the authorities we have cited to the instant case, what must be the result? For more than 20 years Mr. Williams had been proceeding upon the theory that he had a policy that would entitle him to $40 a month if he became sick from any disease not caused by narcotics, intoxicants, excesses or immoral actions on his part. It is clear from the evidence that he was sick and that his disease was not caused by narcotics, intoxicants, excesses or immoral actions on Ms part. After he had. been sick for a time he applied to the agent of the defendant company for money. He was told there was no liability and one gets the impression from reading the testimony of the agent that it was because the agent thought at first that he was not sick enough to entitle him to pay. It is now claimed that because he got worse, and his illness continued till Ms death, that therefore Ms illness must have been a chronic illness and there can be no recovery.

We have already quoted a definition of chronic illness. This suit was commenced in justice’s court before Mr. Williams died, to recover for four months of illness which he had suffered up to that time. The policy upon its face states “Provided the total length of time to be paid for during any one illness shall not exceed one year.” This is a pretty fair indication that no one supposed that when a disease had run but four months that it had reached such chronic stage that there was no liability. ' Under the undisputed record the plaintiff should have had a judgment for the full amount of $160 and interest.

The judgment is reversed and a new trial is ordered, with costs to the plaintiff.

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

Stone, J.

I concur in the result on the ground that the contract is ambiguous and the provision in the policy should prevail over that in the application.

Steere, J., concurred with Stone, J.


text:
    KROPF v. MICHIGAN BEAN CO.
    1. Master and Servant — Workmen’s Compensation Law — Industrial Accident Board — Inferences to Be Drawn from
    Established Facts.
    In proceedings under the workmen’s compensation law, it is the province of the industrial accident board to draw the legitimate inferences and weigh the probabilities from the established facts.
    2. Same — Finding of Board — Conclusiveness.
    On certiorari to review an award of the industrial accident board under the workmen’s compensation law, where the finding of the board that plaintiff’s husband, a nightwatchman in defendant’s warehouse and dock on the banks of the St. Clair river, who disappeared. one night and whose body was later found in the river, was accidentally drowned while in the course of his employment, was justified by some of the established facts, the award will be affirmed.
    On conclusiveness of findings as to what constitutes an accident or injury, within the meaning of workmen’s compensation acts, see note in L. R. A. 1918F, 877.
    Certiorari to Industrial Accident Board.
    Submitted June 11, 1920.
    (Docket No. 64.)
    Decided September 30, 1920.
    Barbara Kropf presented her claim for compensation against the Michigan Bean 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.

      Clark C. Coulter, for appellants.

      Burt D. Cady, for appellee.
   Moore, C. J.

The Michigan Bean Company on March 17, 1919, had a warehouse and long dock on the banks of the St. Clair river at Port Huron. Jacob Kropf had been employed by the Michigan Bean Company as a nightwatchman and janitor for about 3% years prior to March 17, 1919. On- March 17, 1919, the foreman for the company upon coming to work about 6:30 a. m. found the lights about the plant still burning and Jacob Kropf had disappeared. He had punched his watchman’s clock at about 4:40 or 4:50 a. m., and had placed the clock in its usual place in the office of the Michigan Bean Company.. April 30, 1919, Mr. Kropf’s body was found in the river two miles below defendant’s dock. A claim was made by plaintiff and an award was made in her favor. This proceeding is certiorari to review that award. It is conceded that, if there is any liability, the award should not be disturbed.

The claim of the appellants is tersely stated in a brief by their counsel as follows:

“There is no evidence in the record which would warrant a finding that his death was in any manner due to an accidental personal injury received in the course of his employment; that there is no evidence in the record which would indicate an accidental personal injury arising out of his employment, that the manner in which he came to his death is a matter of conjecture only; that the facts which are proved upon the record are as consistent with the non-liability of the defendants under the compensation act as with the liability, that the only conclusion that can be legitimately drawn from the evidence is that the man was fishing at the time he fell into the river. * * *
“The attention of this honorable court is invited to the fact that snagging herring is an active process, involving the jerking up through a school of herring of a line to which are attached a number of hooks; that a man to do this ordinarily would stand upon his feet and would move rapidly. It is the defendants’ theory that the deceased, at the time he fell into the river, had snagged some herring on his hooks and, as is quite usual, doubting whether his pole was strong enough to lift the fish to the dock, reached over and seized the fish line below the end of the pole in his hand for the purpose of lifting his catch to the dock. It is believed by the" defendants that in this act he lost his balance and fell into the river, and it is submitted that this is a highly feasible explanation; certainly much more feasible than that the deceased went to the edge of the dock to empty a pail of dirt with a fish pole in his hand (the pail being later found sitting upright several feet from the edge of the dock), or that he went out on the dock to perform some unknown duty, carrying a fish pole in his hand for some unknown reason.”

Counsel cites in support of his contention Ginsberg v. Adding Machine Co., 204 Mich. 130; Chaudier v. Lumber Co., 206 Mich. 433, and other Michigan cases.

It may be well here to call attention to what is said in the return of the industrial accident board. We quote part of it:

“The decedent’s work as nightwatchman called him on duty at 7 p. m. and relieved him from duty at 5:30 a. m. His duties during this time were to clean up the office, warehouse and elevator, keep up the fires in furnaces, and make the rounds of ten or twelve watch stations once each hour, ringing up the hours on his watchman’s clock with the keys placed at the respective stations.
“On the morning of March 17, 1919, he rang up his last station as required on the clock, between 4:40 and 4:50. From that time nothing was known of him until his body was found floating in St. Clair river, a considerable distance down the river from the dock of the Michigan Bean Company.
“On the night and morning of March 17, 1919, there was a very dense fog on the river, making the dock very wet and slippery and objects not discernible, even at a distance of two feet away.
“When the body of decedent was recovered on April 30, 1919, it was found his watch had stopped at 4:58 o’clock, about eight minutes after the last station was recorded on the watch clock.
“It was one of his last duties to turn off the lights on the dock and outside of the buildings. These were controlled by a switch located in the office of the D. & C. Boat Company, a few feet away from the edge of the dock, which lights were found to be on when the workmen arrived at the Michigan Bean Company on the morning of March 17, 1919.
“The habits of the decedent were exemplary and he was painstaking and industrious in the discharge of his duty.
“To sustain their contention that the accident did not arise out of and in the course of the employment of the deceased, the respondents rely upon- the theory that the decedent had left his employ and was fishing off the dock, when he met his death.
“It appears from the proofs that after the decedent was missed, his overcoat, undercoat, glasses and several small herring wrapped up in a newspaper were found on a table in the office; that a pail which the decedent was accustomed to using about his work was found standing near the edge of the dock a short distance from one of the stations to which it was necessary for this decedent in the course of his employment to go. * * *
“The respondent (decedent) was missed early on the morning of March 17, 1919. He was last seen while performing his duties upon the premises of the respondent. On April 30th following his body was taken from the river some distance below the respondent’s premises. When the body was recovered a jointed bamboo fish pole was attached to the body. A line connected to the pole being wrapped around the decedent’s arm. Some witnesses testify this pole is the previously mentioned pole which had been kept about the premises. There seems to have been no identification marks about this pole by which the witnesses would be able to distinguish it other than a piece of bag string which had been used to fasten it together at the joint so that a section might not be lost in case the pole came apart. There is considerable testimony in the record to the effect that many jointed bamboo poles were sold and used in this vicinity of the same make and appearance as the pole in question and that it was not unusual for such poles to be tied together at the joints for the purpose of nreventing the loss of a section.
“The body when recovered had on' overalls and smock of the deceased which he wore when about his work.
“The fish which were found wrapped up in a paper upon careful inspection by a number of witnesses showed that they had no wound upon them as they would have had if they had been caught with a hook in the manner which herring are caught. It appears by the testimony that herring are caught either in a seine or net, or by what is known as snagging. It appears by the proofs that if these fish had been caught by snagging or with a hook as the respondents contend they would have been wounded.
“It appears by the proofs that many of the witnesses saw a pail standing near the edge of the dock and one witness connected with the respondent company claims to have seen fish scales in it. None of the other witnesses noticed the fish scales. The fish found upon the table had not been scaled. The decedent had frequently purchased fish from fishermen who fished about this dock and others. Although he had worked about this dock in the neighborhood of three years and many of the witnesses had been well acquainted with him and about the docks a great deal, none of them had ever seen him fish. There is testimony to the effect that he was afraid of the water.
“He disappeared very early on Monday morning. Testimony shows that he had conscientious scruples against working on Sunday and that on Sunday nights he did all his work after twelve o’clock. _ His duties were that of a nightwatchman and in addition it was his duty to keep up the fires and do a considerable amount of janitor work. There were a number of stations upon the premises and it was. his duty to make rounds of each station and punch a clock every hour. One station was about ten feet from the edge of the dock and in passing to and from this station it was necessary to be within seven or eight feet from the edge of the dock. There was an unusually dense fog upon the morning in question. Testimony shows that the fog was so dense that a lantern would be of little or no use, it being the custom of decedent to carry a lantern. The decedent had made his rounds and punched the clock between 4:40 and 4:50. The watch which he carried and which was- recovered with his body had stopped at 4:58. The lights were found burning when employees reached the premises at about 6 o’clock. It was one of the last duties of the decedent to turn off these lights. To perform this duty he would pass near the edge of the dock. * * *
“It appears' from the proofs that fishermen in. this vicinity did not fish during a dense fog. It further appears that the decedent was a faithful and conscientious employee. The temperature upon the night in question according to the witnesses was about such as is usual at this season of the year. If a man were to indulge in fishing under these conditions it would not seem that he would stay out in the cold and dampness clad as decedent was with his heavy clothing laying in the office.
“It would seem clear that the fish found in the office had not been caught by the decedent and must have been purchased from some one as the decedent was accustomed to purchase fish from others.
“It appears that the pail upon the dock was one which the decedent was in the custom of using to carry sweepings from the office for the purpose of throwing them into the river. From the time that decedent punched the clock in the course of his duties and the time that his watch appears to have stopped he must have fallen into the water almost immediately after punching the clock, as the watch probably would not stop instantly upon entering the water. The dock was slippery, and the darkness was extreme. It would not be unusual for the decedent in making his rounds to become confused and take a step or two out of his .usual course; it would not be unusual for him to fall from a slippery dock or accidentally step into the water. It would be unusual for a'man 51 years of age who had worked about the same dock for three years and never indulged in fishing to choose a cold, foggy, chilly, disagreeable morning to indulge himself in this pastime, especially without protecting himself with heavy clothing which he had at hand.
“We therefore find that the applicant’s decedent fell from the dock and was drowned while engaged in the performance of his duties as an employee of the respondent Michigan Bean Company and that the accident arose out of and in the course of his employment.”

The manager of defendant company on cross-examination testified in part:

“Q. How long had Mr. Kropf been working for you?
“A. I couldn’t just tell you because I haven’t had the records to fall back on, but about two years, I imagine.
“Q. You always found him an efficient employee?
“A. Mr. Kropf was one of the finest I ever knew; he was methodical and capable and kept things up in good shape.
“Q. Very painstaking?
“A. Yes, and I am sure that he would not diverge one step from the path of duty until his duties were performed.
“Q. You have always found him very careful in that respect?
“A. Yes, sir.
“Q. And he always followed instructions?
“A. Yes, sir. * * *
“Q. You say there were some lights in the warehouse burning?
“A. On the warehouse.
“Q. That is on the outside ?
“A. Yes, we kept our electric lights there.
“Q. It was his duty to turn those lights out?
“A. Yes, sir.
“Q. What were the hours he was supposed to report? What hours did he leave?
“A. Those hours varied.
“Q. He had regular hours?
“A. Yes. On Sunday night we gave him .an hour ■ so he could attend church services, if he desired; probably around 8:30 he would report.
“Q. What time was he supposed to quit?
“A. 5:30 in the morning.”

The foreman of the Michigan Bean Company testified that he saw herring fish scales in the pail he saw on the dock. The fish that had been wrapped up by Mr. Kropf were taken to his house and the testimony is that they had not been scaled and that they had no wounds such as would have existed if they had been snagged.

The coroner who assisted in removing the body from the water testified in part:

“Q. Did you or did you not find that a fishing pole was with this body?
“A. I did.
“Q. Was this fishing pole in any manner fastened to the body?
“A. No, the fish line was around his arm.
“Q. Which arm?
“A. If I remember right it was the right arm, and the pole was dragging from it.
“Q. The pole was attached to the fish line and the fish line was around the deceased’s right arm?
“A. Yes, sir.” * * . *

Cross-examination by Mr. Cady:

“Q. Was there any hook on the line?
“A. Not that I remember of, if there had been a hook I think I would have remembered it.
“Q. It was a small line around his arm?
“A. Around his arm.
“Q. Did you know whether there was more than one twist of the line?
“A. No, I think there was just one twist around the arm.”

Much stress is put upon the testimony of Willard Smith, a young man about 15 years old, whose evidence tended to identify the fish pole as one he had used. His attention was called to the pole shortly before the trial and he examined it; we quote:

“Q. Did you recognize that fish pole as the same fish pole which you had used and which had disappeared at the time of Mr. Kropf’s disappearance?
“A. Yes, sir.
“Q. How did you recognize it as the same pole?
“A.-I recognized where I had tied it together with bag twine.
“Q. That is when you used this pole you had repaired it with bag twine?
“A. Yes, sir.
“Q. Is that the pole which Mr. Falk has in his hands?
(Witness examined pole.) “A. Yes, sir.
“Q. Is that the twine on there that you put on there yourself?
“A. It is.
“Q. And you are absolutely certain that is the same pole you had used?
“A. Yes, sir.
“Q. And that disappeared?
“A. Yes.”

On the cross-examination he testified in part:

“Q. When did you see this pole last before March 17, 1919?
“A. About three or four weeks before.
“Q. What were you using it for?
“A. To catch fish.
“Q. What kind of fish?
“A. Herring.
“Q. How were you catching them?
“A. Hooking them.
“Q. Snagging them?
“A. Yes, sir.
“Q. How many hooks were on the line?
“A. There was four, I think.
“Q. Four grapples?
“A. Yes, sir.
“Q. How many hooks on each grapple?
“A. Three
“Q. Was there a sinker on it?
“A.. Yes, I think so.
“Q. Were there any grapple's or hooks or sinkers on this line when you saw it over at Falk’s rooms?
“A. No, sir. * * *
“Q. You used it twice, is that the times?
“A. Yes, sir. * * *
“Q. And one of those occasions was about four weeks before March 17th and the other about three weeks before March 17th; is that correct?
“A. Yes, sir. * * *
“Q. Is there anything about this pole other than the string that makes you identify it as the pole that was down there?
“A. No.”

There was much testimony that many poles were used along the dock which were jointed poles, the joints of which were connected with a string in a manner similar to that described by Willard Smith, and that some of these poles were lost in the river.

The testimony is very clear that a fish pole when last seen at defendant’s dock had attached to it a line to which there was attached grapples to each of which were attached hooks. ■ It is equally clear that the line wound around the arm of deceased when he was found had neither grapples nor hooks.

We have recited very little of the testimony. That portion recited in the award is to be found in the voluminous record. We have not referred, except as quoting from the award, to that relating to the cold March morning on the St. Clair river, and the fact that the deceased’s thick clothing was left in the office, nor the fact that the fog was so dense as to be almost impenetrable, making the dock wet and slippery, and its outlines invisible. It has already appeared in what we have quoted that Mr. Kropf disappeared with some of his work undone and if any inference is to be drawn from the time when his watch stopped he disappeared before quitting time had arrived.

In the case of Ginsberg v. Adding Machine Co., supra, we do not understand that any new rule of evidence was announced in the majority opinion. We quote from it:

“The burden of establishing a claim for compensation rests on those seeking the award. They are not required to establish their case by positive, direct evidence; in many cases that would be impossible; they may prove their case by circumstantial evidence as other cases are established. The board is the trier of the facts, and weighs and measures the conflicting testimony, medical as well as lay. Deem v. Kalamazoo Paper Co., 189 Mich. 665; Perdew v. Nufer Cedar Co., 201 Mich. 520. It is the province of the board to draw the legitimate inferences from the established facts and to weigh the probabilities from such established facts. Wilson v. Phoenix Furniture Co., 201 Mich. 531.”

In that case five of the Justices were of the opinion that the established facts did not warrant an inference that would establish claimant’s case, while three of the Justices were of the opinion that the inference might be fairly drawn from the' record. The situation in Chaudier v. Lumber Co., supra, was practically the same.

In the instant case we think the conclusions of the industrial accident board are justified by some of the established facts. See De Mann v. Engineering Co., 192 Mich. 594; Perdew v. Nufer Cedar Co., 201 Mich. 520; Wilson v. Phoenix Furniture Co., 201 Mich. 531.

The award is affirmed, with costs to the claimant.

Steere, Brooke, Fellows, Stone, Clark, Bird, and. Sharpe, JJ., concurred.