author: Fellows, J.

text:
    JONES v. ST. JOSEPH IRON WORKS.
    1. Master and Servant — Workmen’s Compensation Act — Appeal — Sueeiciency.
    A statement in a letter from plaintiff to the industrial accident hoard that he desired to appeal from the decision of the arbitrators, held, sufficient, under the statute (2 Comp. Laws 1915, § 5461, as amended by Act No. 64, Pub. Acts 1919); strict rules of pleading not being required.
    2. Same — Industrial Accident Board’s Powers Are Statutory.
    The industrial accident board, while performing quasi judicial duties, is not possessed of judicial power, but derives its authority’ from the statute creating it.
    3. Same — Award by Arbitrators Final Unless Changed on Ap- . PEAL.
    When the arbitrators make their award, that award, in the absence of fraud, fixes the rights of the parties irrevocably unless the industrial accident board, on review, reaches a different conclusion.

      On extent and review of findings of commission, under workmen’s compensation act, see notes in L. R. A. 1916A, 163, 266; L. R. A. 1917D, 186.

      4. Same — Rehearing Not Authorized.
    There is no power in the board to direct the submission to a second set of arbitrators and vacate the steps already regularly taken.
    5. Same — Right of Board to Examine Papers of Parties.
    While the board or any member thereof may make examinations of books and papers of the parties to a dispute under the statute (2 Comp. Laws 1915, § 5456), this does not entitle, a party to a transcript of the testimony obtained . at the expense of the other party.
    ■ 6. Same — Inability to Furnish Transcript of Testimony No Authority for Setting Aside Decision of Arbitrators.
    While the fact that plaintiff was unable to comply with the request of the board to furnish it with a transcript of the • testimony taken before the arbitrators, because the stenographer’s notes had been destroyed, might induce the board to consider fully all testimony taken, under the provisions of 2 Comp. Laws 1915, § 5464, it. did not authorize the board to vacate the proceedings already taken and order a second arbitration.
    Certiorari to Industrial Accident Board.
    Submitted October 12, 1920.
    (Docket No. 80.)
    Decided December 21, 1920.
    Claude E. Jones presented his claim for compensation against the St. Joseph Iron Works for injuries received in defendant’s employ. From an order setting aside an award of arbitration and granting a rehearing thereof, defendant and the Michigan Mutual Liability Company, insurer, bring certiorari.
    Reversed, and remanded.

      Beaumont, Smith & Harris (Hal. H. Smith and Albert E. Metier, of counsel), for appellants.

      H. Monroe Dunham, for appellee.

      During the month of May, 1918, plaintiff claims to have sustained an accidental injury while in the employ of St. Joseph Iron Works. September 29, 1919, a properly constituted board of arbitration denied him compensation and their finding was duly filed with the industrial accident board. On September 30th he sent to the board .the following letter:
    “Grand Rapids, Michigan, September 30, 1919. “Industrial Accident Board,
    “Lansing, Michigan.

      “Gentlemen: Dear Sirs: Please forward blanks for appeal of my case of Claude E. Jones v. Saint Joseph Iron Works and Michigan Mutual Liability Insurance Company, of Detroit, and full information as to procedure, as I desire to appeal the case upon my own behalf without my attorney.
    “I remain,
    “Respectfully yours,
    “Claude E. Jones,
    “Grand Rapids, Mich.,
    “130 Jefferson Av.
    “Formerly of Benton Harbor, Mich.”
    The blanks were promptly mailed but did not reach plaintiff until some days later and his formal claim for appeal made out on such blanks was not filed with the board until October 11th., ' The insurance company had employed a stenographer to take the testimony before the arbitrators for its use. Applicant had not. Being informed by the board that he would be required to file a transcript of the testimony, plaintiff tried to obtain it from the company’s stenographer. Many letters appear in the record showing such effort on his part; efforts of the board and the attorneys for the insurance company to the same end also appear, as does a letter from the stenographer saying that she was informed by plaintiff’s attorney that there would be no appeal and had destroyed her notes. Finally and on March 16, 1920, the board made an order which, after reciting the inability of plaintiff to obtain a transcript of the testimony, contains the following:
    “Now, therefore, it is hereby ordered by the industrial accident board that the matter stands as though the case had never been set for arbitration and no attempt at hearing same had been made, and that the said case should be and it is hereby re-set for arbitration ; all the interested parties will be given notice and have the right to again, choose arbitrators and have a complete arbitration of the case, all interested parties to present any testimony they may have to the said arbitration committee hereafter to be formed, as though the case had never been heard, so that this board may have before it for its review the testimony so taken, so as to enable them to pass upon the merits of the matter.”
    We allowed this writ of certiorari to bring up this action for review.
   Fellows, J.

(after stating the facts). While other questions are argued, we are impressed that but two questions are presented upon this record for determination at this time. They are:

(1) Was applicant’s letter above quoted a sufficient claim for review of the decision of the arbitrators? and

(2) Has the board the power to set aside the award of the board of arbitration and order a new arbitration?

We are persuaded that the first question must be answered in the affirmative and the second in the negative.

The statute (section 5461, 2 Comp. Laws 1915, amended by Act No. 64, Pub. Acts 1919) requires no formality in the claim for review and this court has on numerous'occasions recognized the summary character of these proceedings. Strict rules of pleading are not required. In Kalucki v. Foundry Co., 200 Mich. 604, where this section of the statute was under consideration, this court said:

“It may be noted in passing that a bare statement-in writing of plaintiff’s claim for review which could be written in two or three lines, would if filed with the board within the seven days have preserved right of review under the provision of the statute.”

And in Brunette v. Quincy Mining Co., 197 Mich. 301, where it was urged that time was needed to prepare the claim for review and assignments of error, we said:

“The act only requires a claim for review to be filed within the 7 days, which can be quickly prepared and transmitted. Assignment of errors and grounds for review which counsel urge take time to prepare are not required by the act to be then stated.”

While the language found in the letter does not strictly follow the language of the statute, we think it was sufficient.

While the industrial accident board performs quasi judicial duties, it is not possessed of judicial power. It was created by statute and to the statute it must look for its authority. The general scheme of procedure in contested claims contemplates a submission to arbitration of the questions, of liability and compensation, a review of the award of the arbitrators by the full board, a review of the board’s action by this court on certiorari. When the arbitrators make their award either for or against the plaintiff, that award fixes the rights of the parties, and these rights are, in the absence of fraud, irrevocably fixed unless the board on review, hearing the case de novo, upon the testimony already taken, and such additional testimony as the parties may submit, reaches a different conclusion. In this way, and this way alone, may the award of the arbitrators be set aside. There is no power in the board to direct the submission to a second set of arbitrators, and vacate the steps already regularly taken. In Pocs v. Buick Motor Co., 207 Mich. 591, and Diebel v. Construction Co., 207 Mich. 618, this court held that the board had no authority to grant rehearings of matters already decided by it. Manifestly if it may not grant a rehearing upon its own action and of questions, which it has decided it may not grant a rehearing before another set of arbitrators of matters once finally decided by a board of arbitrators chosen under the statute. It would be a strange rule which would take from one of the parties the benefit of an award by the arbitrators solely because the other party either through his own neglect or otherwise was unable to comply with the request of the board. We know of no rule of law or of practice which requires a party to furnish his adversary with a transcript of testimony taken by his own stenographer. While the board or any member thereof may make examinations of books and papers of the parties to a dispute (section 5456, 2 • Comp. Laws 1915) this does not entitle a party to a transcript obtained at the expense of the other party. As a matter of courtesy between attorneys it is frequently furnished, and in the instant case the attorneys for the insurance company apparently made a. good faith effort to obtain it for the plaintiff. The notes, however, had been destroyed and it was, therefore, impossible to produce it. This fact might induce the board to consider fully all testimony taken under the provisions of section 5464, 2 Comp. Laws 1915, but it did not authorize the action taken.

The order made by the industrial accident board vacating the award of the board of arbitration and resetting the matter for another arbitration must be vacated and the case remanded for such proceedings as may be had not inconsistent with this opinion.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    WARD v. HETH BROTHERS.
    1. Master and Servant — Workmen’s Compensation Act — Continuing Disability — Finding of Board Supported by Testimony Not Reviewable.
    On certiorari to review an. order of the industrial accident board refusing defendants’ petition to be allowed to discontinue payments to plaintiff, the finding of the board that plaintiff was still suffering from the injuries for which compensation was awarded, which was supported by testimony, is conclusive, although the testimony was conflicting.
    2. Same — Supervening Insanity Not Ground for Relief of Employer.
    After the liability of an employer to pay compensation to an s injured employee under the workmen’s compensation law has become fixed, supervening infirmity or insanity of the employee will relieve the employer or his insurer from the liability to continue paying the compensation according to the terms of the award as originally made.
    Authorities discussing the Question of insanity as affecting right of employee to compensation under workmen's compensation law, are collated in a note in 6 A. L. R. 570.
    Certiorari to Industrial Accident Board.
    Submitted October 5, 1920.
    (Docket No. 19.)
    Decided December 21, 1920.
    Herbert Ward presented his claim for compensation against Heth Brothers for injuries received in defendant’s employ. From an order denying a petition for the discontinuance of payments under an award, defendant and the Ocean Accident & Guarantee Corporation, Limited, insurer, bring certiorari.
    Affirmed.

      Vcmdeveer & Foster, for appellants.

      Corwin & Norcross, for appellee.
   Stone, J.

Heth Brothers, the employers of the plaintiff, and one of the defendants in this proceeding, were engaged in the business of hardware and installation of heating apparatus in Grand Rapids, on February 12, 1916, and on that day were installing a furnace in a garage which was in the course of construction. The plaintiff, while assisting in the installation, and while engaged in lowering the furnace into the basement, received an injury to his right ankle joint, as the result of the giving way or collapse of the floor that he was standing on, and from which the furnace was being lowered. He fell into the basement and the injury was caused by a timber falling on his ankle.

In due season an agreement in regard to compensation was entered into by and between the plaintiff arid” the Ocean Accident & Guarantee Corporation, Ltd., insurer of the defendant Heth Brothers and likewise a codefendant in this proceeding. Under the terms of that agreement plaintiff was to receive $7,425 per week during his period of disability. Subsequent thereto, and on January 27, 1917, a supplemental agreement was entered into whereby the plaintiff was to receive $8,425 per week during disability. The reason that the compensation was diminished was due to the fact that when the original agreement was entered into plaintiff was totally disabled, and subsequently only partially disabled. Both of these agreements were approved by the industrial accident board.

On April 23, 1919, the plaintiff was declared insane by the probate court of Kent county and was ordered confined in the Kalamazoo State hospital, and said order was carried into effect. Thereafter and on November 25, 1919, George S. Norcross was duly appointed guardian of the plaintiff by the said probate court. On December 19, 1919, the defendant Ocean Accident & Guarantee Corporation, Ltd., prepared and filed a petition with the industrial accident board praying that as insurer of the defendant Heth Brothers it be relieved from making any further or additional payments to the said plaintiff, or his duly authorized guardian, stating the following as reasons therefor:

After stating that plaintiff had been declared insane and committed to the State hospital the further reason was stated as follows:

“Your petitioner states that the claimant is not now, and has not been from April 23, 1919, suffering from any disability due to his accident of February 12, 1916, and that said accident and the consequences thereof are in nowise to blame for his physical incapacity to do and perform work at this time; but that his present disability is due to his confinement from a diseased condition of the brain.”

Testimony was taken on behalf of said defendant in support of its petition, and on behalf of plaintiff. After oral argument the industrial accident board, on March 27, 1920, made an order denying the relief prayed for by the said defendant in its petition. The case is. here on writ of certiorari to review the said action of the board. It is. both defendants’ claim that they have fully performed and met the obligation imposed upon them under the statute and under the agreements in the instant case. We call attention to the following extracts from the testimony. Dr. William A. Stone, a witness sworn on behalf of the defendants, testified that he had been a practitioner for some 35 years, being a specialist in nervous and mental diseases, after having been for 24 years in State institutions for the insane. He testified that he had had experience in treating many cases of locomotor ataxia and mental paresis. His examination of the plaintiff was made on July 23, 1919, three months after the committal to the State hospital. Speaking of the condition of the plaintiff at that time the witness, testified as follows:

“Physically, the nature of the organic disease was in the nature of locomotor ataxia with cerebral involvement. I just mentioned a cerebral involvement, but in addition there was paralysis of the left side of his face; his pupils were tightly contracted, he had Argyll-Robertson pupils, Rhomberg symptoms. The left eye had an internal strabismus; the muscles of the outside being paralyzed, turning the eye in. The tongue when protruded, did so to the right slightly, showing the paralysis of the left side of the tongue. He showed the other usual symptoms of locomotor ataxia; the knee reflexes were absent and he had incontinence of the bladder, could not hold his urine; clothes were all wet and there was general anemia accompanying such conditions. He had a slight slurring of his speech so that he could not pronounce certain difficult words.
“Q. How about his gait, Doctor?
“A. It was ataxic. He did not have control of the muscles of his legs, he would wobble.
“Q. Rather shuffling?
“A. Yes, ataxic gait. He couldn’t tell where his legs were going without watching the floor.
“Q. Did you- make an examination of his right leg particularly?
“A. We did. That was the instruction we had, to examine his legs, feet and ankles as, to his injury.-
“Q. Just what did you find?
“A. We found that the motions of his feet and ankles were perfect and devoid of any contraction or restrictions in any way as the result of his injury. There was a slight lack of flexion in the right foot, but no more than in the other, both were alike, although not as good as in a normal individual in prime health. But inasmuch as it was the same in both feet, the loss could only be attributed to the nervous disease.
'“Q. How old a man was Mr. Ward?
“A. That I dori’t know.
“Q. Would you be able to estimate his age at all?
“A. Perhaps in the 40’s.
“Q. Is it not true, Doctor, that in a great percentage, from 90 to 99 per cent, of the cases of locomotor ataxia and this dementia, from which Mr. Ward was suffering, are the result of a disease?
“A. Yes, it is.
_ “Q. And would it be possible, Doctor, even in the highest realms of speculation, in any way to say that the injury in 1916 incited into action any germs which might have been lying dormant and thus bring about this condition which he is now in; the condition in which you found Mr. Ward?
“A. I do not think so.
“Q. In other words, it is not even probable?
“A. The two situations are entirely divorced and have no relation to each other.
“Q. From your examination would you say that Mr. Ward had entirely recovered from his injury of 1916?
“A. I should think he had.
“Q. That is, your examination showed no disability to the right foot or ankle which would be in any way caused by his injury of three or four years ago?
“A. Nothing that I could determine.
“Q. And any disability which might still exist in the right foot is to the same extent in the left foot, and is apparently attributable to the result of the nervous disease?
“A. Yes, to the nervous disease.
“Q. Have you ever heard, Doctor, of a case of mental disturbance, such as Mr. Ward is suffering from, resulting from a broken, leg?
“Counsel for Plaintiff: We will concede that his mental condition was not in any way the result of his injury in 1916; that it is a case of general paresis, no doubt.
“Counsel for Defendants (continuing): The record indicates that Mr. Ward was a laborer in 1916, doing general laboring work; there was nothing skilled in his occupation; he wasi told to do certain things, helping move furnaces or whatever might come along in the laboring line. In '1918 he was employed by a hotel as a porter doing general laboring work. Would you say, Doctor, in your opinion, that if Mr. Ward was not suffering from his general condition of paresis and locomotor ataxia and this mental disturbance, that he would be able today to do general laboring work?
“A. Oh, yes.
“Q. That is, the injury to his ankle does not in any way stop him, or hinder him, from performing a general laborer’s work?
“A. I would not think so.”

On cross-examination Dr. Stone testified, among other things, as follows:

“Q. Are you prepared to swear that were it not for his organic nervous disease and its accompanying mental and physical disability, he would be able to perform his work at this time as well as he did before this accident in 1916?
“A. Well, perhaps nearly as well. I would grant you this. No man ever yet had a broken bone or suffered from any disease — pneumonia or anything else, that left him in the prime condition he was prior to any such accident or disease. You could have pneumonia and recover and still not be quite the same man you were.
“Q. The fact that this ankle was badly broken and possibly badly, treated on the start has, as a matter of fact, left him in a worse condition than he was before the accident, has. it not?
“A. Speaking in general, yes. That would be my testimony regarding any fracture, but he would be able to perform his duties. Thousands of men do that after fractures and unless the disability has been a gross fracture and grossly treated, it leaves usually'a broken bone in such condition that a man can do his ordinary labor or work without any difficulty, but, as I said before, no fracture ever leaves the conditions precisely as they were before.
“Q. One of the results of this fracture of this ankle would logically be to weaken the ankle, would it not?
“A. Logically so, I might say to supplement that, that in this particular case we could not determine any difference. * * *
“Q. I don’t want to impose on you, Doctor, but let us wipe out the fact that he has general paresis, and assume that so far as that condition is concerned it does not exist, you are not prepared to say that if this man were out where he was required to perform hard manual labor, for eight or ten hours day, that he might not still have difficulty in performing that work because of the condition of his. ankle?
“A. No, I wouldn’t be prepared to say that he might not; sometimes they do and sometimes they don’t.
“Q. You don’t know what his condition was just prior to the disease having progressed to a point where he was committed to the State hospital?
“A. That is coincidental with the injury.”

Dr. Dan H. Eaton, who had practiced his profession for more than 15 years, having been sworn as a witness on behalf of the defendants, and who assisted Dr. Stone in making his' examination of the plaintiff on July 23, 1919, at the Kalamazoo State hospital, testified, among other things, as follows:

“Q. As a result of your examination of July 23, 1919, the condition of his ankle as compared with his left ankle and as compared with the normal foot and as compared with persons, who have suffered fractures of a similar nature and have recovered, would you say that Mr. Ward had recovered from the injury to his ankle which was occasioned in 1916?
A. Judging from our examination, both from the physical examination of the part and inspection and from what the man showed us that he could do, I would say that his recovery was as complete as you could expect from any injury of that sort, and that his functions, except from a slight restriction in flexing the joint, were as good as results from any fracture.
“Q. The record indicates that in 1916 Mr. Ward was a common laborer, not a skilled workman, doing general laboring work, whatever that work happened to be, whether it happened to be to move furnaces, if it was carrying building materials, he did that; just a general laborer. That has been his work, and in 1918 he was employed by a hotel for some time as a porter doing general porter work. Nothing skilled in the work, just laboring, working about a hotel. Would you say, Doctor, in your opinion, that Mr. Ward had recovered physically sufficiently so that he could return to a general laborer’s duties ?
“A. Yes, sir, judging from my examination.
“Q. Upon your examination, Doctor, you found that he was suffering from other physical and mental troubles, did you not?
“A. Yes, sir.
“Q. And your answers so far have been regarding the injury to his foot and not taking into consideration the general physical condition of Mr. Ward.
“A. Yes, sir.
“Q. In your opinion, Doctor, does that general physical condition result in any way from the injury he received in 1916?
“A. No, sir.
“Plaintiff’s Counsel: We will concede that to shorten it up.
“Q. So that if it was not for his insanity and the . condition of locomotor ataxia which is present, Mr. Ward, in your opinion would he be capable of performing a general laborer’s duties?
“A. Yes, sir.
“Q. You examined his foot and ankle carefully?
“A. Yes, sir.
“Q• And you found the condition of the bones as good as could possibly be expected in the case of a fracture?
“A. Yes, sir.
“Q. The movement of the.foot was perfectly normal to the extent,of lateral motion?
“A. The flexion of the foot was somewhat restricted, but it was about the same in the other foot, so that when we had him move the foot in different directions, the right foot was about the same as the left.
“Q. So that if there is any restriction in the right foot, practically the same is present in the left?
“A. Yes.
“Q. And would probably 'result from the same cause?
“A. Yes, from the organic disease from which he is suffering.
“Q. Did he seem to be suffering from any pain in the foot at the time of your examination?
“A. He claimed not. He said he had not suffered from any pains since having received some injections shortly after his commitment to the hospital.
“Q. In just what way did he indicate to you that he was suffering no pain?
“A. He walked on his toes and the balls of his feet and danced.
“Q. How far did he walk that way?
“A. Around the room; in a fairly good-sized room.
“Q. Did he seem active when he did that?
“A. Yes, he danced up, and down on his feet.
“Q. Did he swing his foot in a circular way?
“A. He demonstrated that he had all motions; he sat in a chair and whirled his feet around and we put his feet through all the motions, that we could expect.
“Q. Did he rise on his toes?
“A. On the balls of his feet. * * *
“Q. He danced around and whirled his foot in a circular way and went through all of the motions that a normal foot would naturally move?
“A. Yes, with that one exception of flexion of the foot and that was restricted about the same in both feet.
“Q. What percentage below normal?
“A. I wouldn’t attempt to say now. _ We could notice that that foot movement was restricted and asked him to put the other foot through the same movement and the restriction was about the same.
“Q. Do you attribute .that restriction to his ataxic or mental or general physical condition?
“A. To the nervous disease. * * *
“Q. In your opinion what is causing Mr. Ward’s physical condition today?
“A. Locomotor ataxia with cerebral involvement.
“Q. Contributed to in any way by the injury to his ankle?
“A. No, sir.” (This is a part of the direct testimony of this witness.)

Upon cross-examination he testified in part as follows:

“Q. Earlier in your testimony, Doctor, you said this ankle was not in as good condition as you would expect an ankle to be that had been broken or injured such as this one was?
“A. Yes.
“Q. Just what do you mean by that?
“A. I mean that you take an ankle joint or a fracture near any joint, and although the X-ray might show perfect results, I couldn’t swear that such a joint would be perfect in its functions without having seen the man work with it and be on it.
“Q. In other words, although as you say, there had been a complete recovery or complete union, the flex-ions might thereafter be permanently impaired or the articulation (I think you call it) be impaired and be a permanent weakness there?
“A. It is possible without doubt, but our examination of an hour and a half did not disclose it.
“Q. A portion of which time at least you were devoting your time to something else?
“A. Yes.
“Q. You don’t know the condition of this ankle when Mr. Ward was admitted to the hospital?
“A. No, sir.
“Q. You had never seen him before July 23, 1919?
“A. No, sir.
“Q. It is altogether probable, is it not, assuming that an injured ankle has recovered as nearly as can be, that he might be able to do small jobs of porter work around a hotel and yet might be entirely unable to do hard manual labor such as moving furnaces and carrying heavy iron and steel bars and work of that sort?
“A. Well, of course, following any injury of that sort we advise that they do light work and gradually work up to their regular work. My statement was, I believe, that as far as anything we saw, it is my opinion that there is not any reason that the man should do his regular work, but I wish to add that if he has never worked to any extent on that ankle he could not do regular work without working up to it. * * *
“Q. But it is entirely probable, is it not, that although there is as complete a recovery as can be expected in cases of this sort, that the ankle may have been so impaired and weakened that while he is able to do porter work around a hotel, he is not able to go out and do hard manual labor?
“A. I would consider that he would be as capable on his ankle as from the rest of his physical condition.
“Q. Assuming that his physical condition is all right and has been all right?
“A. I would say at this time he could do regular work on his ankle if his general physical condition had been good and he had been gradually working up to it. * * *
“Q. A fractured joint in a person forty years of age or more is generally weakened thereafter, is it not?
“A. It is never as good as before it was fractured.
“Q. Never as good as before?
“A. Never 100% normal.”

Dr. S. Porter Tuttle was examined at Grand Rapids on behalf of the defendants. He had been appointed by the probate court to examine and determine as to the insanity of the plaintiff. He testified that he had been in the practice for 20 years and was a graduate of the University of Michigan. This witness had examined the plaintiff immediately after the injury in 1916. He testified in part as follows:

“Q. Just what was that injury, Doctor?
“A. The injury consisted of a fracture of the os caléis or prominent bone forming the heel, sometimes spoken of as the heel bone.
“Q. Any other injury that you found present there?
“A. No, sir; that was the only injury, was the fracture. He claimed to have some injury to the joint, but the only injury we could discover at that time was the fracture by a careful examination and taking X-ray plates. (The plates referred to were marked Exhibits 1 and 2.)
“Q. Do you recall having taken those X-ray pictures?
“A. Yes, sir.
“Q. You did it yourself, Doctor?
“A. Yes, sir.
“Q. I show you one and ask you what your reading of that plate would be?
“A. That shows the fact that there was no injury to the joint structure or to the bones of the leg or foot, and the dark picture here shows the injury to have been of the os caléis here; it also does not show any other injury here; but this is another picture and shows that there was no injury to those bones there, or to the bones here, but this does show the injury here.
“Q. The place of the injury?
“A. Right here, the os calcis.
“Q. The frayed edge there?
“A. Yes, sir.
“Q. It shows, no injury to the ankle joint?
“A. No, sir.'
“Q. At the time you made your examination in 1916, Mr. Ward, as I understand it, was walking at that time with a cane?
“A. Yes, sir.
“Q. Did you find any evidences of falling arches?
“A. Yes, he had both fallen arches; both feet were flat; in other words, he was flat footed, both feet.
“Q. Were there any other evidences of any general debilitated condition at that time?
‘‘A. Yes, he was a very much debilitated man. The uninjured ankle, or the left ankle, was really in the worst condition, in a worse condition so to speak, than the right, and there was less motion in the left ankle than there was in the right.
“Q. As to subjective symptoms, did he give any subjective symptoms of a debilitated condition or general run down condition?
“A. Yes, sir. He was run down and generally debilitated.
“Q. Did he complain of any pains?
“A. He complained of severe pains in the legs.
“Q. What was the nature of these pains?
“A. Sharp lancinating pains.
“Q. From the hips down to the feet?
“A. From the hips down to the feet.
“Q. That in your opinion indicated what?
“A. The sharp lancinating pains in. his legs, together with other symptoms which he had and tests which I made, led me to make a diagnosis of locomotor ataxia. (After describing the symptoms the witness added:) Those were all symptoms of locomotor ataxia; he had every one of them.”

The witness’ last examination of the claimant was on March 5, 1918. Referring to that examination he testified as follows:

“Q. At that time did you make a careful examination of Mr. Ward’s right ankle?
“A. Yes, sir.
“Q. What did you then find was the condition of his ankle at that time; that is, if there was any evidence of an injury there?
“A. Very slight, indeed, and it seemed to me that there was not enough evidence there of injury to cause the disability claimed by the injured.
“Q. Did you make an examination of the union of the broken bones?
“A. Yes, sir.
“Q. Was that union as complete as would naturally be found in the average individual ?
“A. Yes, sir.
“Q. In other words, his recovery from the fracture was a normal recovery?
“A: I should consider it was, yes.” * * *

In the course of his cross-examination this witness testified, among other things, as follows:

“Q. Do you know that at that time the ankle, if he used his foot for any length of time, the ankle would swell to such an extent that he would have to get off his feet? «
“A. I know that he made that statement, but I was never able to discover any swelling myself. •
“Q. You never did see this ankle when it was swollen?
“A. I think the first time I saw it, it was slightly swollen, which might have been due, and probably was due, to rheumatism rather than the injury.
“Q. You don’t know then that at the very time that, he was brought into the detention hospital the ankle was badly swollen and caused him considerable trouble, that right ankle I am referring to?
“A. That might have been the case and still be due to either the rheumatism or the disease from which he was found to be suffering. •
“Q. It might also have been caused by this fracture, might it not?
“A. There is a bare possibility, but it is so remote and so late that I would almost say it would not be; it was too far advanced.
“Q. Isn’t it a fact people many times have trouble for years to come from fracture of a joint or union?
“A. That is in case where there is an ununited fracture, but this had united, and also this fracture was the outer portion of the os colds, which does not articulate with any other bone. If it had been directly in the joint then I would have to say ‘yes’ to your question, but this being on the outer portion of the bone it probably would not have a great deal of influence on the joint itself.
“Q. This bone, however, with the bones of the front portion of the foot, carries the load of the body, does it not?
“A. Yes, sir. * * *
“Q. Isn’t it also possible that he might have trouble from this heel at this date, or let us date it back to April 23, 1919?
“A. Well, there is a bare possibility, yes.
“Q. You wouldn’t want to say that he might not have trouble with it?
“A. No, I wouldn’t want to say that, because anything might occur.
“Q. Going on the premises that many times a fracture of this sort does materially interfere for many years to come?
“A. Yes.”
Dr. George H. Baert of Grand Rapids was also sworn to testify on behalf of the defendants. He made his only examination of the plaintiff on June 14, 1918. He testified, among other things, as follows:
“Q. Did you make an examination of the injury to the right foot?
“A. I did.
“Q. At that time did you find any swelling in the right foot?
“A. There was no swelling there.
“Q. Was there any swelling in the left foot?
“A. I examined, of course, both feet, and I found that the right foot, the one that had been injured, appeared to be more nearly normal than the left foot.
“Q. Anything abnormal about the foot was of what nature?
“A. The man had flat feet.
“Q. That condition existed — ?
“A. And the left foot was a little worse than the right. * *
“Q. Did you have him move his foot through the various motions?
“A. Yes, in every direction. Yes, sir.
“Q. You found those motions in what condition?
“A. If anything the movement of the right foot— well, it was just as good as the left, but the left foot seemed to be a little more flat than the right.
“Q. Did you have him walk around the room?
“A. Yes, had him stand on one foot and then on the other.
“Q. Did you make an examination of the ankle and the various parts of the foot?
“A. Yes, with my hands, a manual examination.
“Q. What did your examination disclose?
“A. I could find nothing more abnormal in one foot than in the other, excepting that the left foot was a little more flat than the right, and I thought that the right foot was the better foot of the two.” ■

Upon cross-examination this witness testified in part as follows:

“Q. You are not prepared to say that that one examination would reveal to you beyond question that he might not have trouble from that ankle or that o$ calcis if he went into hard manual labor?
“A. No, I couldn’t say that. If one has had any injury to any part — if they should have rheumatism it might affect them more in such parts than any other.
“Q. It always attacks the weakest part? •
“A. Yes, sir.
"Q. Isn’t it perfectly possible that this man’s ankle joint might have been injured?
“A. Yes, that is quite possible.
“Q. And that it might cause him trouble periodically at frequent intervals even?
“A. Yes.
“Q. And might at the particular time that you examined him have given no evidence and be perfectly normal ?
“A. Yes, that is right; that is correct.
“Q. It might be perfectly possible and altogether probable that this joint was injured?
“A. Yes.
“Q. And was causing him trouble from time to time frequently and still you might not have detected it upon your one examination in June, 1918 ?
“A. That is true. * * *-
“Q. You are not prepared to say that he might not be having trouble with this ankle today?
“A. No. * * *
“Q. It is possible that that ankle might have been injured so as to cause him trouble without having actually been fractured, is it not?
“A. Oh, yes.
“Q. The X-ray taken of it would reveal no fracture?
“A. No injury to the synovial membranes or ligaments.”

The only other testimony in the case was that of the son of the plaintiff, and that of an attendant at the detention hospital at Grand Rapids, where the claimant had been taken care of for a number of days before he was taken to Kalamazoo. The son, a young man. 24 years old, testified to having been with his father a number of times each week after July, 1917, and to have observed the condition of his right ankle at that time. He testified that at the time his father was taken to Kalamazoo, and for a short time prior to that, his right ankle was badly swollen and he could .not lace his shoe; and could not get up and down stairs alone; that he would work a week and then be obliged' to “lay off” on account of the trouble with his right ankle.

The attendant testified to the swollen condition of the plaintiff’s right ankle, that he complained of it as bothering him at the time he was taken away; that he himself bathed the ankle on a number of occasions. The witness when asked to give the best description he could of it said:

“Well, it was swollen pretty bad and bothered him. He was only there a couple of days. I think he was there from the 21st to the 23d.
“Q. Did you observe him when he stepped upon the ankle, when he put his weight upon it?
“A. He was lame.
“Q. Did it appear to hurt him?
“A. I suppose it did. * * *
“Q. What was the appearance, what did you observe?
“A. Just as I told you, 1 saw the ankle was swollen. Of course it was a swollen ankle and you know it must surely hurt a man.
“Q. What did you observe when he got out of bed about his ankle? Did he step on it freely?
“A. Why no, he didn’t.
“Q. How did he handle himself?
“A. He didn’t handle himself very good, he couldn’t, the ankle was so sore and swollen.”

By the petition to be relieved from further payments, the issue is presented whether claimant was at the time of the hearing, and had been since April 23, 1919, suffering from any disability due to his accident of February 12, 1916.

It is the claim of appellants that the disability from which the plaintiff was suffering on April 23, 1919, and has suffered since that date was due to disease and not accident, and counsel in their brief say:

“It is admitted that claimant was suffering from a disease at the time of his accident, and that his confinement to the hospital was the result thereof. Even if claimant was suffering from the slight effects of an accident still, his inability to work is due to his insanity and consequent confinement. All of the witnesses agree that, notwithstanding the happening of the accident, the claimant would have become mentally unbalanced and confined, and that his present mental condition and confinement can in nowise be traced to the accident, nor is it directly or indirectly attributable thereto.”

Counsel for plaintiff, after reviewing the testimony, urge that it is clear that there was evidence of a contradictory nature to the allegations of the petition and also positive testimony that right up to the time of the commitment of the plaintiff to the State hospital he was still suffering from the injury of February, 1916. They say:

“Defendants’ own witnesses on cross-examination all concede that he might still have trouble from the foot and ankle. Claimant’s son and the attendant at the detention hospital testified that he did have trouble and was still suffering from the effects of the injury at the time of the commitment. The fact that up to the time claimant was committed to the Kalamazoo State hospital, defendant insurer never made any effort to have the supplemental agreement set aside, or to be released from its liability thereunder, is conclusive evidence that it considered claimant still entitled to compensation up to that date.”

It is urged that from its order denying the petition the board must have- found that at the hearing and at the date of admission to the hospital the plaintiff was suffering from the injury of February, 1916. And that there was competent legal testimony of a substantial nature to support this finding. The following authorities are cited by plaintiff: 2 Comp. Laws 1915, § 5465; Rayner v. Furniture Co., 180 Mich. 168 (L. R. A. 1916A, 22, Ann. Cas. 1916A, 386); Bayne v. Cartage Co., 181 Mich. 378; Hills v. Blair, 182 Mich. 26; Holnagle v. Gas Co., 200 Mich. 132; Homan v. Power Co., 200 Mich. 206, 208; Jacobs v. Glasser & Hoffman, 200 Mich. 473.

In the Homan Case, Justice Fellows, speaking for the court, said:

“If the finding of the ultimate facts upon which the award is based finds support in the testimony it is our duty to accept such finding as final, in the absence of fraud.” Citing cases.

This holding has been announced by this court, in similar but varying language many times, and ñas been held applicable where there was conflicting testimony as to a continuing disability from an injury.. We are unable to say that there was no testimony' in support of the finding of the board, and we do not| think that it is our duty to weigh the evidence, under the statute, and our rulings interpreting it. Findings of the board which are supported by facts or inferences from testimony must be taken as true.

•Counsel for plaintiff discuss the question whether the defendants are released from liability to pay conn pensation because of the supervening insanity of the plaintiff; and they urge in argument that after the liability to pay compensation has become fixed, no supervening infirmity or insanity of plaintiff will relieve the employer or his insurer from the liability to continue paying compensation according to the terms of the award as originally made. And the following cases are cited: Eaves v. Colliery Co., 2 K. B. (1909) 73; Harwood v. Colliery Co., 2 K. B. (1913) 158; McNally v. Furness, Withy & Co., 3 K. B. (1913) 605; Walsh’s Case, 227 Mass. 341 (116 N. E. 496).

We doubt if defendants really claim that, simply, the intervening insanity would relieve them from liability. We understand their real position to be that the disability from which claimant has suffered since April 23, 1919, was due to disease and not the injury of February 12, 1916. However, we are of the opinion that the position of plaintiff upon that subject is fully sustained by the authorities cited. In other words, that the supervening insanity of the plaintiff does not justify defendants. in stopping payment of compensation.

The order of the board in denying defendants' petition is affirmed, with costs.

. Mooee, C. J., and Steeee, Beooke, Fellows, Claek, Bied, and Shaepe, JJ., concurred.


author: Bird, J.

text:
    IRVINE & MEIER v. WIENNER.
    1. Corporations — Piling Annual Report — Default—Right . to Enforce Lien.
    In proceedings by a corporation to enforce a mechanics’ lien, where it appears that at the time the contract was entered into plaintiff was in default in filing its annual report for the previous year with the secretary of State, the trial court properly ruled that under 2 Comp. Laws 1915, § 9028, plaintiff was not .entitled to any relief in the courts, although said report was filed before this suit was commenced.
    2. Same — Pleadings—Defenses.

      1{eld, that said defense was properly raised by the answer of defendants.
    3. Same — Penal Statute — Defenses—Waiver.
    Without passing upon the question as to whether defendants could waive the provisions of said penal statute, which was passed in the interest of the public good, held, that the record fails to show any acts of defendants which would amount to a waiver of their right to insist upon the provisions of said statute.
    Appeal from Wayne; Marschner (Adolph F.), J.
    Submitted October 12, 1920.
    (Docket No. 84.)
    Decided December 21, 1920.
    Bill by Irvine & Meier, a corporation, against Harris Wienner and others to enforce a mechanics’ lien. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Behr & Coolidge, for plaintiff.

      Beekenstein & Wienner, for defendants.
   Bird, J.

Plaintiff, a Michigan corporation, entered into a written contract with defendants Wienner and Cain on the 14th day of October, 1916, to install certain plumbing and heating in an apartment which they were erecting on Tuxedo avenue in the city of Detroit. Plaintiff claims that it finished the work in April, 1917. Failing to receive its pay in full it filed a lien on the premises on June 2, 1917, for' the sum of $1,280.71. On September 25, 1917, this bill was filed to enforce the lien. Plaintiff was met at the outset with the objection that it had not filed with the secretary of State its annual report for the year 1915, and in consequence thereof could not recover on the contract. Another defense made was that the work had not been properly executed, but the case went off on the first defense, the chancellor holding that plaintiff’s contract having been made while it was in default it came under the ban of the statute and no relief could be granted.

It appeared upon the hearing that plaintiff did not make and file its annual report with the secretary of State for the year 1915, in the months of January or February, 1916, as the statute commands, but did file it on March 5, 1917, together with its reports for the years 1913, 1914 and 1916. The case then which is presented for our consideration is this: Plaintiff was in default for failure to file its 1915 report, when the contract was made on October 14, 19Í6, but was not in default when the bill was filed to enforce the lien on September 25, 1917. Under these facts was the chancellor right in holding that no relief could be granted the plaintiff?

A solution of the question calls for a construction of the following provision:

“If any corporation neglect or refuse to make and file the reports required by this section within the time herein specified, and shall continue in default for ten days thereafter, its corporate powers shall be suspended thereafter, until it shall file such report, and it shall not maintain an action in any court of this State upon any contract entered into during the «time of such default.” * * * 2 Comp. Laws 1915, § 9028.

Plaintiff argues that it was not the purpose of the legislature to make such contracts void, but merely to suspend the right of enforcement during the period of default. This view is a plausible one, but we are not persuaded that the language will permit of that construction. There are several reasons which incline us to the view that the inhibition against enforcement was intended to be perpetual. Some of them are:

a. The language of the statute taken in its common and ordinary meaning would preclude any recovery thereon.

b. Because this view is consistent with the first penalty imposed. If plaintiff’s power to contract was suspended it is not clear how it could, during the period of suspension, make a contract which would ever have any validity.

c. It is obvious that the prepositional phrase “during the time of such default” modifies either the verb “maintain” or the verb “entered into.” If it modifies “maintain” it is clear that the inhibition against enforcement continued only during default, but if it modifies “entered into” it is equally clear that the inhibition is perpetual. Under the rule that modifying clauses should be placed as near as consistent to the words which they modify, we must conclude that it was intended the phrase should modify the words “entered into.”

d. Two penalties are imposed in this section for the failure of a corporation to file its annual report, namely: A suspension of corporate powers and a denial of the right to enforce its contracts. The first named penalty is to continue until the report is filed. If the legislature had intended that the inhibition against enforcement of contracts should be only temporary, may we not assume that it would have added a limitation as it did to the former penalty, by repeating the words “until it shall file such report,” or other words of similar import?

e. A glance at the former legislation on this subject discloses that the legislation has been steadily, for several years, growing more drastic. The obvious reason for this was to compel prompt filing of annual reports. With the legislature in this frame of mind when this legislation was passed, it is hardly conceivable that it intended only a temporary suspension of the right to enforce contracts, as that would be but mild punishment for its default. Under this view a corporation could continue to be lax with reference to its annual report, and in the event it desired to sue upon its contract it could then file its report and its atonement would be complete.

Our conclusion is that the chancellor was right in holding that the contract had no validity and, therefore, no relief could be granted.

The point is also made in this connection by plaintiff that this question is not properly raised by the pleadings. We are satisfied, from an examination of the answer, that it fairly makes this question an issue.

It is finally argued that because defendants continued to deal with plaintiff after the annual reports were filed, and also attempted to adjust their differences with him, they waived their right to insist upon the provisions of the statute. Passing over the question whether defendants could waive the provisions of a penal statute which was passed, not for the benefit of the individual but in the interest of the public good, we are unable to find in the record any acts of defendants which would amount to a waiver of their right to insist upon the provisions of the statute.

The decree is affirmed, with costs to the defendants.

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


text:
    FAGIN v. BENTON HARBOR-ST. JOE RAILWAY & LIGHT CO.
    1. Negligence — Personal Injuries — Evidence — Sufficiency— Question for Jury.
    In an action for personal injuries received by plaintiff by coming in contact with a live wire while passing under same upon the public resort grounds of defendant, evidence as to the height of' the sagging wire, held, sufficient to carry to the jury the question of defendant’s negligence.
    2. Same — Constructive Notice — Inference — Evidence — Sufficiency — Question for Jury.
    Where there was testimony that the wire had been within five or six feet of the ground for several days preceding the accident, the trial court properly submitted to the jury the question as to whether it had remained there long enough to justify an inference of constructive notice to defendant, of which it disclaimed actual notice.
    3. Same — Contributory Negligence — Controverted Testimony-Question for Jury.
    Where the testimony on the part of defendant that plaintiff jumped and grabbed the wire was controverted by plaintiff and his witnesses, the question of plaintiff’s contributory negligence therefor was a question of fact for the jury.
    4. Same — Failure.to Notice Wire Overhead.
    It cannot be said, as a matter of law, that plaintiff was guilty of contributory negligence because he failed to observe the wire which was above his head.
    5. New Trial — Newly-Discovered Evidence — Cumulative Evidence.
    Where claimed newly-discovered evidence was cumulative merely and sufficient diligence to discover it before the trial was not shown, the trial court properly refused a new trial therefor.
    On duty of electric company to prevent contact of wires carrying electric current, see note in 52 L. R. A. (N. S.) 587.
    Error to Berrien; White (Charles- E.), J.
    Submitted October 6, 1920.
    (Docket No. 32.)
    Decided December 21, 1920.

      Case by Arthur Fagin against the Benton IlarborSt. Joe Railway & Light Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      John J, Sterling and Humphrey S. Gray, for appellant.

      Cady & Andrews (Mordecai Shulnan, of counsel), for appellee.
   Bird, J.

Plaintiff recovered judgment in the Berrien circuit court for personal injuries incurred while passing under an electric wire at Revinia Springs Park, a summer resort, near Benton Harbor. Defendant review's the proceedings in this court and its chief contentions are:

(1) That no actionable negligence on the part of the defendant was shown.

(2) That plaintiff was guilty of contributory negligence.

(3) That a new trial should have been granted principally on the ground of newly-discovered evidence.

The testimony discloses that the resort grounds were lighted by electricity; that the resort had its own system of wires and these wires were fed by two feed wires, each carrying 220 volts, which defendant had brought up to the grounds and connected with the resort system. The testimony further discloses that the plaintiff and three companions came over on the boat from Chicago to this resort to spend the Fourth of July, in the year 1918; that upon their arrival they went to the resort and were assigned a cottage for their use during their stay. After spending the day in and about the resort they left their cottage, between 6 and 7 o'clock in the evening, intending to go to a restaurant located a short distance away. In doing so their way took them under one of the feed wires referred to. As plaintiff was passing under it he claims he threw up his hand to shoo away some mosquitoes that were gathering about his head, and his hand came in contact with a feed wire, and that by reason of the lack of proper insulation thereon his hand adhered to it. In an attempt to release it with the other hand both became attached. Calls for help by his companions soon brought the manager of the resort, who freed plaintiff’s hands by striking the wire with a broom stick. As a result of the contact plaintiff’s head, face, body and hands were severely burned, two fingers, were amputated and two rendered useless.

The negligence charged by plaintiff was the failure of the defendant to properly insulate the wire, and also in permitting it to sag so that persons having occasion to pass thereunder were liable to come in contact with it. The defendant denied that the wire was low enough to interfere with' one walking thereunder, but contended that if it were as low as claimed by plaintiff it was due to the fact that the pin which held the wire to the cross arm had been broken by boys playing ball on the day of the accident, thereby permitting the wire to drop down and become suspended from the transformer which was located on the pole about five feet below the cross arm, all of which the defendant had no notice of previous to the accident.

Defendant’s Negligence. There is no controversy over the proposition that if the feed wire were hanging so low on the day in question that persons might come in contact with it, and defendant had' either actual or constructive notice thereof, it would be liable in the present action, but the differences between the parties arise over what the testimony shows about the height of the wire above the ground. The defendant insists that the testimony, when analyzed, does not disclose a case for the jury. We are unable to agree with defendant in its contention. After reviewing all the evidence on the subject of defendant’s negligence, we are inclined to the opinion that the question was one of fact. The testimony of plaintiff and his three companions, supplemented by the- testimony of the witnesses Weinberg, who had been stopping at the resort for several days and had observed the sagging wire, was sufficient to carry the question to the jury.

But counsel argue that conceding the wire was as low as claimed there was no testimony showing the defendant had notice of its position. The court submitted this question to the jury and instructed them that if defendant had either actual or constructive notice that the wire was in that position, it would be guilty of negligence if it failed to remedy it within a reasonable time thereafter. The testimony of at least two witnesses was that the wire had been between 5 and 6 feet from the ground for several days preceding the accident. Whether the wire had remained in this position long enough to justify an inference of constructive notice to defendant was a question which the court submitted to the jury, and we think properly so.

Plaintiff’s Contributory Negligence. Defendant’s contention on this question is based principally upon the testimony of one witness, who says that as plaintiff passed under the wire he gave a jump' and grabbed it with his hand. There is some testimony corroborating this claim. On the other hand, it was strenuously denied by plaintiff and his three companions, and by others who had an opportunity of observing him at the time. It is conceded by the parties, and the court charged the jury, that if plaintiff jumped and grabbed the wire, knowing, as he did, that it was dangerous, he would be guilty of contributory negligence, as a matter of law. This instruction was proper, but before the rule of law could be applied it would be necessary to determine, as a question of fact, whether hé did jump and catch the wire, as claimed. Upon this question the testimony was very conflicting. We think the trial court was right in treating it as a question of fact.

It is further argued in this connection that plaintiff should have seen the wire and avoided it if it were in the position claimed by him, because it was yet daylight and within plain view, and his failure in this respect was contributory negligence, as a matter of law. Counsel seek to support this argument by the conclusions of this court in Ramsay v. C. K. Eddy & Sons, 123 Mich. 158, and Larned v. Vanderlinde, 165 Mich. 464. These cases do involve the question of lack of attention, on the part of plaintiffs, to objects in their pathway, but in both of them the danger lay directly in front of them and not above their heads. It is not unusual for wires to be strung in such places, but they are usually high enough so as not to interfere with pedestrians. Pedestrians are so infrequently interfered with by objects suspended over their heads that we ought not to say, as a matter of law, that plaintiff was guilty of contributory negligence because he failed to observe the wire.

The ground most relied upon by defendant in support of its application for a new trial was newly-discovered evidence. This consisted of additional testimony bearing on the position of the wire and the conduct of plaintiff at and immediately before the time of the accident. The trial court reached the conclusion, and we concur in it, that the newly-discovered evidence was merely cumulative and that sufficient diligence to discover it before trial had not been shown to entitle defendant to a retrial.

We are also of the opinion that the other grounds assigned for a retrial are without merit.

The judgment of the trial court is affirmed.

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


text:
    RITTER v. SEESTEDT.
    1. Fraudulent Conveyances — Statutes—Rule of Evidence— Retroactive Statutes — Admissibility.
    On a bill in aid of execution, attacking the conveyance of a theater building by a husband to his wife as being in fraud of creditors, Act No. 99, Pub. Acts 1917, creating a rule of evidence, is applicable, although not passed when the conveyance was made, where it was in effect when the suit was begun, and by its provisions it is made applicable to “all suits begun or hereafter to be begun.”
    2. Statutes — Construction — Retroactive Statutes — Rule of Evidence.
    A statute creating a rule of evidence is excepted from the general rules governing the interpretation of retroactive statutes.
    3. Fraudulent Conveyances — Homesteads—Exemptions — Abandonment — Intent.
    Where, before the conveyance of the premises in question, defendants had formed an intention to abandon the same as their home, and make their home in another locality, which they subsequently did, and before plaintiff’s levy was made, the trial court properly held that they were not entitled to homestead exemption therein, since they would not be entitled to a homestead in both places.

      4. Same — Value of Premises — Income from Rentals — Evidence.
    While income from rentals is not always a safe basis to judge of the value of real estate, it is an important ele- . ment in arriving at its true worth.
    5. Same — Evidence—Sufficiency—Intent.
    Where'defendant husband, after having been engaged in an unprofitable manufacturing business in which he had lost considerable money, which fact was known to his wife, conveyed to her all of his property which was subject to levy and sale upon execution by his creditors, for the expressed consideration of one-half its fair value, said conveyance was properly held by the trial court to have been made for the purpose of hindering and delaying creditors in collecting their claims and to amount to a fraud upon them.

      On transactions between husband and wife as fraud on creditors, see note in 32 L. R. A. 67.
    On burden of proof as to fraud against creditors in transfer from husband to wife, see note in 56 L. R. A. 823.

      Appeal from Wayne; Hosmer (George S.), J.
    Submitted October 5, 1920.
    (Docket No. 21.)
    Decided December 21, 1920.
    Bill in aid of execution by James C. Ritter against Otto A. Seestedt and Lucile B. Seestedt. From a decree for plaintiff, defendant Lucile B. Seestedt appeals.
    Affirmed.

      Henry B. Graves, for plaintiff.

      Moore & Moore, for appellant.
   Bird, J.

This proceeding is one in aid of execution. Plaintiff had two judgments against defendant Otto A. Seestedt and others, aggregating the sum of $562.73, and he caused a levy to be made on a certain moving picture theater situated at 531 Baker street in the city of Detroit, to which Seestedt had formerly held title, but which he had transferred in March, 1916, to his wife, Lucile, the other defendant herein, for an expressed consideration of $5,000.

The indebtedness which furnished the basis for the judgments was contracted several months prior to the conveyance of the theater to Mrs. Seestedt, and plaintiff charges that it was made to delay and hinder in the collection of his claim. This is denied by defendants. They assert that the conveyance was made in good faith and for a valuable consideration and with no intent to defeat or delay the collection of plaintiff’s claim. It is the claim of defendants, that on March 1, 1916, the husband Was indebted to the wife in various sums aggregating $7,300, and for the purpose of liquidating this indebtedness he conveyed to her the theater property. They explained, on the hearing, that the $7,300 was made up of $2,165 which Seestedt agreed to pay his wife for her dower interest in several pieces of real estate which he was desirous of selling and to which she was opposed; $2,650 for borrowed money which she had received from a deceased sister, and $2,090 for 209 weeks’ services for acting as ticket seller at the theater. The balance, $395, was on account of interest on the several items. In addition to these items counsel for defendants insist that there should be added to this amount the homestead and dower interest of the wife in the theater property.

Plaintiff attacked most of these items as being fictitious, void and fraudulent. Much testimony was taken bearing upon the validity of these claims, also upon the question of the value of the property at the time it was conveyed. The chancellor found that the property, at the time .it was conveyed, was worth considerably more than $7,300, that they had no homestead exemption in the theater building, as they had concluded to abandon it' for another home in Algonac, and that the claim for services in selling tickets was an afterthought for the purpose of making up a consideration for the deed, and accordingly set aside the conveyance as being in fraud of plaintiff’s claim.

Upon the hearing plaintiff gave evidence of his judgments, the levies made on the property and the conveyance from Seestedt to his wife, and rested, claiming that these proofs made a prima, facie case of fraud under Act No. 215 of the Public Acts of 1917. Defendants took the position that this act did not apply because it was not passed until after the conveyance was made. This rule of evidence was first added to our statutes at the legislative session of 1897 (Act No. 99). It appears to have been omitted from the judicature act, but was again re-enacted by the laws of 1917, and took effect in August of that year (Act No. 215). The wording of the act makes it applicable to “all suits begun or hereafter to be begun.” The present suit was not begun until after the act took effect and, therefore, is clearly within its terms. The fact that the act was not in effect when the conveyance was made is not of much importance. It being a rule of evidence, it is excepted from the general rules governing the interpretation of retroactive statutes. 36 Cyc. p. 1917, and cases. The objection does not appear to have merit.

Touching the claim of homestead, it appears that on March 1st, at the time the conveyance was made, the defendants lived in the flat in the theater building, and had lived there for three or four years. They, at that time, owned a lot in Algonac upon which they intended to construct a home. During the year 1916 they did construct a home and went there to live. Their own testimony tends strongly to show that before the conveyance was made they had formed an intention to abandon the theater property as their home and take up the same at Algonac, which they subsequently did, and before the levy was made. They would not be entitled to a homestead in both places. LaPlant v. Lester, 150 Mich. 336. We are not disposed to disturb the finding of the chancellor upon this question.

It is the contention of plaintiff that even if all of these items are genuine the sale was a fraud upon him because of the gross inadequacy of the consideration. Several real estate men who were familiar with values in that part of the city were witnesses. Three of them were of the opinion that the premises were worth $10,000 and upwards at the date of the conveyance. One thought it was worth considerably less than that sum. But from all we are able to gather from the record on the question of value, we are convinced that $10,000 was a fair price for the premises on March 1, 1916. In reaching this conclusion on the question of value we have been influenced to some extent by the rentals which were received for the use of the premises immediately following the conveyance. The first year Mrs. Seestedt received $3,900 from rentals, the second year $2,500. While income from rentals is not always a safe basis to judge of the value of real estate, it is an important element in arriving at its true worth.

The record indicates that when Seestedt conveyed the theater to his wife he thereby divested himself of all his property which was subject to levy and sale upon execution by his creditors. He had no right, as against creditors, to dispose of all of his property for a sum considerably less than its fair value. He had recently been engaged in an unprofitable manufacturing business and had lost considerable sums therein, and we are satisfied that his wife was cognizant of the fact and knew of his financial condition. We are persuadedLpn the whole record, as the chancellor was, that the conveyance was made for the purpose of hindering and delaying plaintiff in the collection of his claim. And we are also of the opinion that the sale price was so much less than the fair value of the premises that it amounted to a fraud on other creditors.

In view of the conclusion we have reached upon the question of value and upon the question of intent in making the conveyance it will be unnecessary to consider the remaining questions discussed in the briefs.

The decree will be affirmed, with costs of both courts to the plaintiff.

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


text:
    GILLESPIE v. LEE.
    1. Quieting Title — Judicature Act — Who to Be Joined as Defendants.
    Id. proceedings to quiet title under the judicature act (3 Comp. Laws 1915, § 12371 et seg.), the test as to whether one shall be made a party defendant does not turn upon the question as to whether he has asserted any title or interest in the premises, hut as to whether he might do so.
    2. Same — Disclaimer—Demand Upon Dependant Unnecessary.
    Nor is it necessary for plaintiff to show that a demand was made upon defendant to disclaim any interest in the premises and that he refused to do so, since the statute does not require it.
    3. Same — Statute — Substantial Compliance Sufficient — Equity Practice.
    A substantial compliance with the statute, which undertakes to point out specifically who shall he joined as parties defendant and the conditions under which they shall he joined, is sufficient, and defendant’s contention that the equity practice should he read into the provisions of the statute cannot he sustained.
    Appeal from Genesee; Black (Edward D.), J.
    Submitted October 7, 1920.
    (Docket No. 45.)
    Decided December 21, 1920.
    Bill by James S. Gillespie and another against Frank Lee and others to quiet title to land. From an order granting a motion by defendant Lee to dismiss the bill as to him, plaintiffs appeal.
    Reversed, and order vacated.

      Terry & Parsons, for plaintiffs.

      MeFarlan & Wilson, for defendant Lee.
   Bird, J.

Plaintiffs filed their bill in pursuance of the judicature act (8 Comp. Laws 1915, § 12871 et seg.) to quiet the title to certain premises in Genesee county, which they had theretofore conveyed by deed with covenants of warranty. Several persons were made parties defendant. It is charged in the bill that the records in the register of deeds’ office disclose that a portion of the premises had been conveyed in the year 1868 to Eliza Lee; that she is now deceased and that Frank Lee, the defendant herein, is one of her heirs and resides in the county of Genesee, and that neither, so far as the records show, ever released or conveyed said premises. In view of this, Frank Lee was made one of the defendants and personally served with process. Later he appeared and filed a motion in the nature of a demurrer to dismiss the suit, as to him, upon the following grounds:

(1) There is no allegation in the bill of complaint that at the time of the verification of said bill of complaint, said Frank Lee was claiming any title to the land described in said bill of complaint, or had ever laid claim to any title to said land.

(2) There is no allegation in the bill of complaint that plaintiffs, or any person for them, ever demanded of said Frank Lee that he' disclaimed all title to said land.

(3) There is no allegation in said bill of complaint that said Frank Lee ever refused to disclaim title to said land.

After a hearing thereon the chancellor dismissed the suit as to defendant Lee, agreeable to the prayer of said motion. Plaintiffs have appealed from this order.

These provisions of the judicature act appear not only to authorize plaintiffs to make defendant a party, but make it incumbent upon them to do so if they desire to make their proceeding effective. The language of the statute is:

“When any one against whom proceedings under sections twenty to twenty-seven, inclusive, of this chapter might otherwise be brought is known to be dead, and some of the persons who might claim under him and their places of residence are known, such of them as are known shall be named as defendants and brought before the. court in the manner provided by law, and all others who might claim under such deceased person may be included as unknown defendants.” 3 Comp. Laws 1915, § 12373.

We fin’d nothing in the statute which makes ■ it obligatory upon plaintiffs to show that defendant Lee is claiming any title to or interest in the premises. The test as to whether one shall be made a party does not turn upon the question whether he has asserted any title or interest in the premises, but whether he might do so. As is pointed out by counsel, the law in force prior to the. passage of the judicature act provided for the filing of bills against parties “setting up claims in opposition to the title claimed by complainant,” whereas the judicature act provides that “any person who might at any time under the provisions or legal effect of any instrument of record claim or he entitled to claim any benefits thereunder” may be made a party defendant (section 12371). Under the prior law defendant’s contention would have some force, but under the present one the contention is without merit.

To the point that the bill does not show that plaintiffs have ever demanded that defendant Lee disclaim any interest therein, and that it does not show that he ever refused to do so, it may be said that the statute does not require it. But counsel argue that the equity practice should be read into these provisions. When the legislature undertakes to, and does, point out specifically who may be made parties defendant, and the conditions under which they may or shall be joined, a substantial compliance therewith must be held sufficient to authorize the proceeding against the parties so named. The order dismissing the proceeding as to defendant Lee will be vacated and one entered agreeable to this opinion. The plaintiffs will recover their costs in both courts.

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


author: Sharpe, J.

text:
    FARACI v. FASSULO.
    1. Landlord and Tenant — Expiration of Lease — Holding Over— Presumptions — Intent.
    Where a tenant under a valid lease for years holds over, the law implies a contract on his part to renew the tenancy on the same terms for another year, in the absence of any agreement to the contrary, and all that is.necessary to complete the contract is the consent or acquiescence of the landlord.
    2. Same — Payment of Rent — Acceptance—Tenancy from Year to Year.
    Where defendant leased premises for the period of two years at a certain yearly rental to be paid monthly in advance, and, after the expiration of the lease, continued to occupy the premises and pay the rent which the landlord accepted, without any otter arrangement being made, the effect was to renew the tenancy from year to year.
    3. Same — Effect of Release of Security by Expiration of Lease.
    Since by the holding over the law does not imply a renewal of the lease, and the rights of the parties to possession do not depend upon a renewal of the same, they would not be affected by the possible termination of the security for rent furnished by a chattel mortgage, given with the lease, on the expiration of the same.

      The question as to whether holding over by a tenant after expiration of a term for years constitutes a new and separate term, distinct from that which preceded or followed, is discussed in a note in 25 L. R. A. (N. S.) 847.

      4. Same — Purpose eor Which Leased Premises Are Used.
    That the premises leased were occupied for business purposes rather than for a farm or a residence, does not overcome the legal presumption created by the holding over and the acceptance of rent by the landlord.
    Error to Berrien; White (Charles E.), J.
    Submitted October 7, 1920.
    (Docket No. 47.)
    Decided December 21, 1920.
    Summary proceedings by Antonio Faraci and others against Antonio Fassulo for the possession of leased premises. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      George W. Bridgman, for appellant.

      Cady <& Andrews, for appellees.
   Sharpe, J.

On April 3, 1916, one Emil Reick executed a written lease to defendant of certain premises in the city of Benton Harbor, consisting of a store room and basement, for the term of two years from April 1st of that year, to be occupied for a barber shop. It provided for an “annual rent of $144 in 12 monthly installments,” payable on the first day of each month. The lease was in the usual form, except that it included a clause creating a chattel mortgage on “all goods, wares and merchandise, household furniture, fixtures or other property which are or shall be placed in or on said premises by him,” to secure the rent due or to become due thereon.

Defendant entered into possession under the lease and regularly paid the rent provided for. When the two years expired he continued to occupy the premises and pay the rent without - anything being done or said concerning a new term. On July 14, 1919, Reick conveyed the premises by warranty deed to Antonio Faraci and Marguerite Faraci (husband and wife) and Pasquale Foresteiri and Angelina Foresteiri (hus-. band and wife), and defendant made payment of rent, as reserved in the lease, to them up to January 1,1920. On December 3, 1919, the plaintiffs, being three of the grantees named in said deed, served upon defendant a notice to quit on or before January 5, 1920, “for the reason that we intend to terminate your tenancy, and to repossess ourselves of such premises on the date above mentioned.” On January 9, 1920, plaintiffs began summary proceedings to recover possession and obtained a judgment for restitution. On appeal to the circuit court a similar judgment was rendered, from which defendant has appealed.

The claim of defendant is thus stated by his counsel *

. “That under the lease and the facts in this case there having been an annual rent reserved, he was a tenant from year to year which tenancy in any event would not expire until April 1, 1920, and the notice Was insufficient to terminate the tenancy.”

The plaintiffs contend that the holding over created a tenancy at will and was terminated by the month’s notice to quit.

The rule applicable to a tenant holding over after the expiration of a term for years is thus stated in 24 Cyc. p. 1031:

“According to the great weight of authority, where a tenant under a demise for á year or more holds over at the end of his term without any new agreement with the landlord, he may be treated as a tenant from year to year. . It is held, however, that a tenancy from year to year cannot be inferred from the mere fact of holding over by the tenant; the landlord must in some manner recognize the tenancy. Thus the receipt of rent by the landlord from one so holding over indicates with certainty a design to continue the relation of landlord and tenant, and a tenancy from year to year will arise. Such intention should in each case be found and determined as a question of fact by the jury, and in so doing they may take into consideration the character of the property and the use to which the same is to be put, as well as the periods at which the rent is to be paid. The presumption of law that a tenant who by permission of his landlord holds over is a tenant from year to year may be rebutted by proof that the holding over is in some other character or for some other purpose; but proof of a contrary intention on the part of the tenant alone is not sufficient for this purpose.”

This rule is in full accord with the former holdings of this court. Schneider v. Lord, 62 Mich. 141; Huntington v. Parkhurst, 87 Mich. 38; Scott v. Beecher, 91 Mich. 590; Hoffman v. Willits, 194 Mich. 276. The opinion in Barlum v. Berger, 125 Mich. 504, is said to be in conflict. In that case there was a verbal lease for five years, the tenant to pay $15 per month rental, and also the sum of $150 in advance as additional rentál for the five years. A few days after the lease expired the lessor served a notice to quit and soon after began a summary proceeding to recover possession. This was discontinued on lessee’s promise to vacate. As stated in the opinion, the court found “that there was no intention on the part of the plaintiffs to permit the defendant to continue to occupy” and that “defendant did not suppose there was any such intention.” On these facts the plaintiff was entitled to recover. The court, however, said:

“The rent was payable monthly, and the contract of leasing cannot be treated, after the expiration of five years, in any other manner than as a tenancy or lease from month to month.”

We cannot assume that the court in the language employed intended to overrule the cases theretofore decided, which are cited above. In Scott v. Beecher, supra, the court had said:

“When a tenant under a valid lease for years holds over, the law implies a contract on his part to renew the tenancy on the same terms for another year; but the landlord may treat him as a trespasser, or as a tenant holding upon the terms of the original, lease. * * *
“The law presumes an intention by the tenant to continue the yearly tenancy from the holding over. An agreement that such holding over should not be so regarded might be shown to rebut the presumption, or there might be such clear indications of an intention to vacate that a holding over for a day would not support the presumption. But, in the absence of 'such agreement or such indications, the holding over is a legal expression of the tenant's intention, and all that is necessary to complete the contract is the consent or acquiescence of the landlord.”

This opinion is exhaustive and well considered, and many cases are cited therein. It may also be noted that a part of the above quotation is quoted approvingly by Mr. Justice Moore in the somewhat recent case of Hoffman v. Willits, supra.

The case was tried before the judge without a jury and findings made and filed by him. The third finding of fact reads:

“I further find that after the expiration of the lease, and until July 14, 1919, the defendant held over the premises and paid rent under the terms of the lease, to Emil Reick, until July 14, 1919, with the intent- of the parties to continue under the terms of the lease from month to month.”

Agreeable to this finding of fact, he found as a matter of law that the holding over “created a tenancy at will, from month to month, and that 30 days’ notice was sufficient to terminate the tenancy.” Defendant filed exceptions to these findings and insists that the latter part of the finding of fact is not supported by any proof submitted. The facts were all stipulated, and we find no statement therein indicating what the intent of the parties, or either of them, was when the holding over began. Counsel for plaintiffs claim that these findings were justified by the fact that the rent provided for in the lease was secured by a chattel mortgage, the lien of which is claimed to have ceased to exist at the expiration of the lease and that the holding over, as stated by plaintiffs’ counsel—

“must have been with the intention of the landlord to allow the tenant to remain from month to month, not under the terms of the original lease, but at will of the landlord, with the same monthly rental so long as mutually agreeable, but without security,”—

and by the further fact that the presumption of intention to remain, applicable to farm leases or residence property, does not arise where a building is rented for business purposes.

We are not impressed that these considerations can be treated as sufficient to overcome the legal presumption arising from the holding over by the tenant and the acceptance of rent as provided for in the lease by the landlord. The language before quoted from Scott v. Beecher, supra, is suggestive that there must be some evidence of an agreement or at least an understanding that the holding over was not with the intention to continue the tenancy or some overt act or word indicating an intention to vacate. Even if the provision for security for the rent in the nature of a chattel mortgage be terminated by the expiration of the lease, a question we do not feel called upon to decide, the rights of the parties do not depend upon a renewal of the lease. Under the rule of law before stated, a presumption arises from the holding over by the tenant and acceptance of rent by the landlord, in a case of a lease for a term of years, that the parties intend to renew the tenancy for a period of one year. There is no implication that the lease itself as a binding contract is to be continued in force. Its provisions may be inquired into to determine the terms under which the tenant holds and the nature of his tenancy. In an action to recover the rent, the liability would not be predicated upon the agreement of the tenant to pay as embodied in the lease, but upon the implied contract to pay according to the terms of the lease.

Neither do we think the fact that the premises leased were occupied as a barber shop raises any legal presumption affecting the tenancy. While there is authority supporting the claim that “the character of the property and the use to which the same is put, as well as the periods at which the rent is to be paid” may be taken into consideration (Withnell v. Petzold, 17 Mo. App. 669)‘, we are not impressed that, when applied to the tenancy here created, such considerations so rebut and overcome the presumptions attendant upon the holding over and the acceptance of rent as to justify the findings, made.

We feel constrained to reverse the judgment for restitution rendered by the trial court and dismiss the complaint, with costs to defendant.

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