text:
    JENNINGS v. REESON.
    1. Wills — Reference to Deed — Validity—Intention.
    Where testator by his will clearly expressed his intention that a farm should go to his daughter, referring to a deed of the farm to her which he had executed and placed in escrow, the validity of which is questioned but not determined, 7leld, to be a valid devise.
    2. Deeds — Delivery—Question of Law.
    Where it is undisputed that a deed of a farm from a wife to her husband was executed and delivered by her, and was in his possession at the time of her death, the court below properly held that there was a Valid delivery, as a matter of- law, although there was some question as to whether the deed was entitled to record by reason of the fact that it was acknowledged and witnessed over the telephone.
    3. Ejectment — -Deeds—Evidence—Admissibility.
    In ejectment proceedings, where plaintiff claimed title under a deed from his wife, testimony as to another deed, executed at the same time, from the husband to the wife, of another parcel of land, was properly rejected as immaterial.

      Error to Genesee; Steyens, J.
    Submitted January 18, 1918.
    (Docket No. 135.)
    Decided March 27, 1918.
    Ejectment by John H. Jennings against Edwin L. Reeson. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Sylvester Pheny and James H. Lynch, for appellant.

      George W. Cook (Clarence Tinker, of counsel), for appellee.
   Kuhn, J.

This is an action of ejectment. Plaintiff having obtained a judgment of restitution of the premises, the cause is removed to this court by the •defendant by writ of error.

John Reeson and wife, Mary A. Reeson, resided in the village of Fenton, Genesee county, in this State. Mr. Reeson died on the 1st day of May, 1908, and Mrs. Reeson died prior thereto. Two surviving children were left, a son and a daughter, Edwin L. Reeson, the defendant herein, and Mary E. Jennings, now deceased. Mr. Reeson prior to his death owned two pieces of real estate, a farm and a house and lot in the village of Fenton. Prior to the death of Mr. and Mrs. Reeson, on the 4th day of February, A. D. 1895, they made, executed and acknowledged a deed of the farm to the daughter, Mary E. Reeson Jennings, and a deed of the village property to their son, the said defendant, Edwin L. Reeson. These deeds, thus executed, were enclosed in an envelope, upon which was written the following:

‘"Valuable title deeds to real estate in Fenton, to remain subject to control of John Reeson and Mary A. Reeson, his wife, during their natural lives. To the president or cashier of the State Bank of Fenton. On being informed of the demise of the two persons above named you may deliver the deed enclosed to our son and daughter as named in the separate deeds running to them with the old deeds of the same property, unless before otherwise directed by us. Fenton, February 6, 1895.
“John Reeson,
“Mary A. Reeson.
“Henry C. Riggs, Attorney and Notary Public, Fen-ton, Mich.”

The envelope .containing the deeds and other papers was deposited in the State Bank of Fenton, presumably at about the time the deed was made. After the death of Mrs. Reeson, John Reeson made his will, and after disposing of his personal property, the will contains the two following paragraphs:

“It is to be understood by this that all my property not already disposed of by deed is to go to my daughter Mary Jennings, aforesaid, in consideration for services rendered and from the fact that I have already given my son his full share.
“As my property now stands, I have deeded my farm to my daughter and my village property to my son, deeds being held in trust and not to be recorded until my death. These deeds, with the above mentioned personal property, dispose of my entire. possessions exactly as I wish, and it is to be understood that this disposition is to. be made by placing the deeds on record and turning over the personal property as above directed, without any necessity of probating the estate, as by so doing everything is disposed of as I wish it, and the expense of probating is thereby obviated.”

This will was not presented for probate until some question had been raised as to the validity of the deeds, which had been placed on record after the death of the father. The will was admitted to probate on the 8th day of December, 1915. The daughter, Mary E. Reeson Jennings, who died prior to the probate of this will, had made and signed a deed of the farm to John H. Jennings, the plaintiff. It appears that Mrs. Jennings was sick and unable to leave her home. She gave the deed to plaintiff, who took it to Mr. Hitchcock, the cashier of one of the banks in the village of Fenton, who was a notary public, and who took her acknowledgment over the telephone, and her signature to the deed was at that time witnessed by himself and by Mr. George Green, the assistant cashier, neither of whom saw Mrs. Jennings personally on that occasion. The deed was left at the bank by John Jennings and was there when Mrs. Jennings died. He subsequently took the deed from the bank and had it placed on record. Mrs. Jennings assumed ownership of the farm in question after the deed to her was recorded, and continued so until her death. After the title to the farm was disputed, Mr. Jennings instituted proceedings before one of the circuit court commissioners of Genesee county to get possession of the farm, and in this action he was successful, but an appeal was taken to the circuit court, and before he actually took possession of the farm, defendant took possession thereof and was in possession at the time this suit was instituted.

It is the claim of plaintiff that he obtained title to the farm by virtue of the will conveying the farm in question to Mary E. Reeson Jennings and by the deed from her to himself.

The defendant contends that there are three principal issues in this case:

1. Whether or not Mary Jennings, by virtue of the deeds deposited in the bank in February, 1895, obtained title to the property in question.

2. Are the deeds of John Reeson to be construed as a part of his last will and thus convey title to Mary Jennings?

3. Was there any delivery of the deed of Mary Jennings to John Jennings?

It is insisted by counsel for defendant that these questions should all be answered in the negative.

No contention is made by counsel for the plaintiff and appellee that the delivery of the deed which was deposited in the bank gave any title to Mary Jennings by itself, but it is insisted that, when taken in connection with the will, it must be treated as incorporated in the will, and, so far as it is necessary, should be given full effect to carry out the desire of the testator as expressed in the will. Counsel for appellant concede the.general legal proposition that a testator may by apt words refer to any written paper, deed or otherwise, in such a manner as to incorporate it into his will, but it is insisted that there cannot be found within the four corners of the will in question a single sentence which can be construed into a statement of intent to convey or devise by his will any real estate. It is the contention that the recital in a will that a deed has been given, which statement subsequently it is discovered is erroneous, does not disclose a purpose or intention on the part of a testator to give the same property by will, and the case of Smith v. Smith, 113 Md. 495 (31 L. R. A. [N. S.] 922), is called to our attention. In that case the court quotes liberally from the case of Zimmerman v. Hafer, 81 Md. 347, which it is insisted is almost identical with the case at bar. In that case the recital in the will reads:

“Whereas, I have this day made and executed a deed conveying to J. Monroe Zimmerman the farm whereon I now reside, I do hereby give and bequeath unto him, the said James Monroe Zimmerman, all my personal property of whatever description and wheresoever situate. I thus give to the said J. Monroe Zimmerman all my property and estate because,” etc.

It is clear from this language that the testator supposed he had conveyed the land in question and that there remained nothing to give validity to the transfer. Such was also the situation in the case of Noble v. Tipton, 219 Ill. 182 (3 L. R. A. [N. S.] 645, where it was held that the recital in the will of a conveyance of land to a certain person is not effective as a devise if the conveyance proves ineffectual. It is insisted, however, and we are inclined to agree, that the will now before us clearly shows, the intention of the testator to dispose of the farm to his daughter. The will by its terms, conceding, without deciding, that the deed is invalid, disposes of the farm in question to Mrs. Jennings. It expressly says:

“It is to be understood by this that all my property” —not personal property — “not already disposed of by deed is to go to my daughter, Mary Jennings aforesaid, in consideration for services rendered and from the fact that I have already given my son his full share.”

In the other paragraph above set forth we also find this expression:

“These deeds, with the above mentioned personal property, dispose of my entire possessions exactly as I wish,”

and his purpose to carry this intent into effect is also disclosed by his direction, where he says:

“This disposition is to be made by placing the deeds on record and turning over the personal property as above directed without any necessity of probating the estate, as by so doing everything is disposed of as I wish it”

Whether or not the deed should be incorporated as a part of the will, is, in our opinion, to be determined by the test of whether or not the will itself showed an intention on the part of the testator to dispose by the will of the property described in the deed. That this was the intention of the testator seems, as we have said, to be clear from the language of the will, although perhaps the expressions are rather inartificial and not as plain as they might be. The paragraphs of the above will cannot, however, be read without clearly carrying the conviction from the language that the testator intended thereby to give to his daughter the land described in the deed and which is the property here involved.

Neither are we impressed with the claim of the appellant that the question of delivery of the deed from Mary E. Jennings to plaintiff was, under the facts of this case, a question of fact for the jury and should have been submitted to them for determination. It is conceded that a deed is valid between the parties thereto without witnesses or acknowledgment, and the question whether a deed is entitled to record which is acknowledged and witnessed in the manner that this instrument was, is not before us. It does not seem to be disputed that Mary E. Jennings executed the deed of the farm to the plaintiff and delivered the same to him before her death. It was in his possession at the time of her death and was in his safety deposit box at the bank. It was not among her papers and was not in her possession'nor in the possession of a third party for her.

Counsel for appellant on the trial of the case sought information with reference to another deed from Mr. Jennings to Mrs. Jennings of another separate parcel of land, which was executed at the same time that the deed in question was. This, was objected to on the ground that it was incompetent and immaterial and had no bearing upon the delivery of the deed from Mary E. Jennings to John Jennings. This ruling of the court is complained .of because it is insisted it was a proper subject of inquiry, but we are of the opinion that the court ruled properly in holding that the inquiries were not pertinent to the issues here involved.

It was not error, under the facts of this case, for the court to determine the question of whether or not this deed had been delivered, without submitting it to the jury.

Finding no error, we are constrained to affirm the judgment of the court below.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    HERBERT v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Master and Servant — Workmen’s Compensation Act — Notice —Sufficiency.
    An award of compensation by the industrial accident board, under the workmen’s compensation law, unsupported by any evidence that the statutory notice required by section 15, part 2, of the act (2 Comp. Laws 1915, § 5445), was given by the injured employee or any one for him, or that the employer had notice or knowledge of the injury under section 18 (2 Comp. Laws 1915, § 5448), will be set aside by the appellate court on certiorari to review the award.
    2. Same — Notice to Inferior Servant.
    Notice of an injury received by a yard conductor to a switchman, who was a subordinate employee, cannot he held to be notice to the employer, rendering the latter liable under the workmen’s compensation act.
    3. Same — Notice—Sufficiency.
    Testimony of a casual conversation between the injured employee and a superior, in which the fact of injury was mentioned, the exact time of which he was unable to fix, hut which was at least seven or eight months after the alleged itqjury, held, insufficient notice of the injury to bind the employer under the workmen’s compensation law.
    4. Same — Findings of Industrial Accident Board — Evidence— Review.
    Findings of the industrial accident board, unsupported by competent evidence, are not binding upon the Supreme Court.
    Certiorari to Industrial Accident Board.
    Submitted January 25, 1918.
    (Docket No. 85.)
    Decided March 27, 1918.
    Catherine Herbert presented her claim for compensation against the Lake Shore & Michigan Southern Railway Company for the accidental death of her hus'band in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed.

      Angelí, Bodman & Turner and C. G. Dyer, for appellant.

      Ralph S. Moore and P. L. Sawyer, for appellee.
   Kuhn, J.

Certiorari to the industrial accident board. The claimant is the widow of Oliver Herbert, deceased, a former employee of the Lake Shore & Michigan Southern Railway Company, the defendant and appellant herein. He had been employed as a switchman and yard conductor for a period of about 14 or 15 years, and in the capacity of yard conductor he had charge of the yard engine and the .work done by it. During the year 1915 he had complained of a hernia to several employees, which fact was. called to the attention of the claim agent of the defendant, who advised him to have an operation, which operation was subsequently performed, on January 22, 1916. It appears that the claimant had been addicted to the intemperate use of intoxicants, and after the operation delirium tremens resulted and lobar pneumonia followed, causing his death on January 25, 1916.

On May 11, 1916, a notice to the defendant of claim for injury was brought to the attention of the defendant by the industrial accident board, in which the date of the accident was given as November 8, 19Í4, and the nature of the injury as a severe strain causing hernia, which resulted in death on January 25, 1916. No notice of any injury had ever been given to the defendant in writing and this was the first-notice that was served on it that any injury was claimed to have occurred on the day mentioned in the notice or that any claim for compensation was based thereon. Upon receipt of notice of this claim, the defendant advised the industrial accident board that it took the position that it was not liable to pay compensation. On December 9, 1916, an application for adjustment of the claim was filed with the industrial accident board, in which the date of the alleged injury was given as on or about the 8th day of December, 1914. The committee of arbitration was duly formed in accordance with the provisions of the act, and the matter proceeded to a hearing on its merits. The date of the alleged injury was not shown definitely by the testimony, and in so far as it was shown, did not correspond either with the date given in the notice of injury or the application for arbitration. At the conclusion of the hearing before the committee on arbitration, the committee decided that the claimant was not entitled to receive or recover from the defendant any sum of money whatsoever, for the reason that no notice of the accident was given within three months; that the employer had no knowledge of the accident, and that there was no competent proof of an accident. An appeal having been taken to the full board, an order was duly entered that the award of the committee on arbitration be set aside and that the claimant receive and recover from the defendant compensation at the rate of $10 a week for a period of 300 weeks. The board, in support of its award, filed a comprehensive finding of facts and of their conclusions. The following finding of fact was made:

“That within three months, and in fact almost immediately, said employee reported the accident to his employer and made a claim against the employer for compensation under the workmen’s compensation law.”

In another portion of their findings the following is found:

“That he reported the accident to the proper official of the respondent company, at just what time does not appear, but we think he reported it at the proper time.”

The workmen’s compensation act (part 2, §§ 15, 18, 2 Comp. Laws 1915, §§ 5445, 5448) provides:

“Sec. 15. No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer three months after the happening thereof, * * *
“Sec. 18. * * * Want of such written notice shall not be a bar to proceedings under this act, if it be shown that the employer had notice or knowledge of the injury.”

We have held that the notice referred to in section 16 is clearly the notice required by section 15 to be given, and that the word “within” must be supplied in section 15, making the section read:

“Unless a written notice of the injury shall have been given to the employer within three months after the happening thereof.”

See Purdy v. City of Sault Ste. Marie, 188 Mich. 573.

We are unable to find in this record, nor has our attention been called to any facts by claimant’s counsel, that would support the finding of the industrial accident board that notice was given to the employer within the statutory period, or that the employer had notice and knowledge of the injury within the period named in the act. It appears that the deceased mentioned his alleged injury to two employees of the defendant, one the witness Kelleher one and a half days after the alleged accident, and the other the witness Bennett some time in the summer or fall of 1915, after the alleged accident. It appears that Kelleher was not an officer of the company nor a proper person to whom to report the injury. The testimony is conclusive that he was working as a switchman under the deceased, who was acting as yard conductor, and, being a subordinate employee, notice to him cannot be held to be notice to the company. See Armstrong v. Pickle Co., 197 Mich. 334; Kutschmar v. Manufacturing Co., 197 Mich. 146. In reference to the witness Bennett, .it appears that he was a general yardmaster, and conceding, for the purposes of this case, that he was a proper person to whom a report of an injury should be made, the record seems to be undisputed that no report of an injury as such was ever made to him and that the only knowledge he had thereof was the result of a casual conversation with the deceased. It is true he was unable to fix the exact time, but at no place in his testimony does he say that this conversation or notice of the accident took place earlier than June, 1915, which makes it at least seven or eight months after the alleged injury, the only testimony concerning which showed that it occurred some time in October, 1914. •

The finding of the board with reference to the time and sufficiency of the notice, finding no support in the record by competent evidence, is not binding upon this court. See Armstrong v. Pickle Co., supra. We are of the opinion that the arbitration board was correct in holding that there was no such notice, and that the industrial accident board erred in making the award.

The award must therefore be, and is hereby set aside.

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


text:
    MENDEL v. POLAND.
    1. Adverse Possession — Highways and Streets — Evidence— Sufficiency — Injunction.
    In an action to restrain a township highway commissioner from removing certain fences enclosing part of the highway claimed to be owned by plaintiff by adverse possession, evidence held, insufficient to establish title by adverse possession.
    2. Same — Ptmuc Lands — Statute.
    It is no longer possible in Michigan to obtain title by adverse possession against the public. Act No. 46, Pub. Acts 1907 (3 Comp. Laws 1915, § 12311).
    3. Same — Highways and Streets — Sufficiency of Proof — Notice.
    Where one seeks to obtain lands against the public by adverse possession of a part of a highway or street, the possession should be of such character, and under such circumstances, as to warrant the conclusion that the municipal authorities must be held chargeable with notice of the adverse possession and with acquiescence therein; and in order that the occupancy may ripen into a title it is necessary that all the elements be clearly established, that •is, the possession must be actual, continuous, visible, notorious, distinct and hostile to that of the public.
    4. Same — Highways and Streets — Permissive User.
    Where the original owner of the land testified that he intended to give two rods as his share of the highway, and he thought he placed the fence upon the proper line, and no claim was made by him or his successors in title to any property belonging to the highway, which the fences enclosed, plaintiff and her predecessors had only a permissive occupancy of the highway occupied by - them, which ceased when the public, through its proper officers, demanded the use of the entire highway.
    Appeal from Muskegon; Sullivan, J.
    Submitted January 17, 1918.
    (Docket No. 109.)
    Decided March 27, 1918.
    Bill by Mary Mendel against Charles Poland, highway commissioner of Norton township^ to enjoin the removal of certain fences. From a decree for plaintiff, defendant appeals.
    Reversed, and bill dismissed.

      R. J. MacDonald (William, H. Simpson, of counsel), for plaintiff.

      Carpenter & Jackson, for defendant.
   Kuhn, J.

The plaintiff is the owner and occupant of the southeast quarter of the northeast quarter of section 19, in the township of Norton in Muskegon county. A public highway, surveyed and laid out with a width of 66" feet, runs along the north side of plaintiff’s farm on the eighth line of the section, and another along the east side of her property on the section line. In the year 1915 plaintiff tore down the old, dilapidated fencing along the north and east sides of her farm and constructed strong and substantial fences on both of said sides. The one on the north side; according to the testimony of the township officials, encroaches about seven feet, and the one on the east side about eleven feet, upon the highways respectively adjoining.

On September 12, 1916, the defendant, who is the commissioner of highways for the township of Norton, made' two orders requiring the plaintiff to remove, within 30 days, the said encroaching fences. On November 8, 1916, plaintiff filed a bill to enjoin the defendant from forcibly removing these fences, alleging as the ground for her bill that the land enclosed thereby, which is claimed to be a part of the highway,

_ “Is the property of this plaintiff by adverse possession, she being the owner thereof and the right of her fences established upwards of 40 years ago, and her righf^and title have ripened by adverse possession into absolute title thereto and cannot be disturbed by the said highway commissioner by his threatened action, and her right to continue fences on said highways at the places aforesaid has become fixed and established so far as this threatened action of the defendant is concerned.”

Upon the filing of her bill a temporary injunction was issued restraining defendant from tearing down, destroying or removing said fences, and after a full hearing of the case the circuit judge entered a decree in favor of plaintiff, making the injunction permanent.

The testimony showed that one Ezra E. Tyler, a former owner, was the man who cleared the farm and built the first fences; that he gave two rods off the north of the farm for highway purposes; that the surveyor who surveyed the road showed him where the corner was, and he built the fence according to that line along the north of his farm; that he set out a row of trees, inside this fence; that he also set out a row of trees, along the east side of the farm and built a barb wire fence along that side about two feet outside the row of trees; that he had recently, inspected the present fences, and they appeared to be located where the fences he built were located; that he sold the farm in 1883 or 1884. It further appeared that a Mr. DeVries, who later bought the place and moved on to it in 1891, found the old fences built by Mr. Tyler in a dilapidated condition; that he made some repairs to the north fence, and also ran some ' barb wire on the row of trees running parallel thereto to make a lane through which to drive cattle; that the outside fence was 7 or 8 feet from the row of trees; that a portion of the fence on the east side was down, and instead of putting in new posts, he tacked the wires onto the trees that stood a foot or two inside the fence line; that the old fence went clear around the place; that the new fence built by Mrs. Mendel appeared to be in the same place as the old fence. Plaintiff’s son, Walter Mendel, testified that he built the new fence on the line of the old, except that he removed the wires nailed to the trees on the east side of the farm and put in posts and replaced the fence about where the old one was originally- built. Mrs. Mendel bought the farm in 1910 and moved onto it in the spring of 1911.

Defendant and his two witnesses, former township officers, did not contradict the above testimony, except that they claimed that the old fence on the north line was crooked and that Mendel built the new fence on a straight line, thereby enclosing from one to three feet more of the highway; also that at the corner where the two highways intersected, he had run the corner post about four feet into the traveled part of the highway. As to this latter point, Mendel claimed the corner post was where the old one had been and that the traffic had been gradually encroaching on their property since the corner of the old fence went down.

The defense introduced testimony and elicited admissions tending to show that until recently little attention had been paid in that locality to highway lines; that fences were not constructed with reference to them; that many owners cultivated almost up to the traveled portion of the highways ; and that such fences as had been constructed, most of which were old, were erected for the purpose of keeping in stock, etc., and not with any idea of asserting a claim of ownership' to the fence line. As to the north fence, Mr. Tyler testified, on cross-examination:

“I designed to give two rods for my share of the highway.
“Q. (by plaintiffs attorney) As indicated by Mr. Porter, the surveyor?
“A. Yes, sir.
“Q. (by defendant’s attorney) Well, whether Mr. Porter indicated or not, you intended to give two rods for the highway, didn’t you?
“A. I suppose I would do what other people — I am a law abiding citizen and do what other people do.”

And Mr. DeVries, on cross-examination, admitted:

“Q. You didn’t know, did you, where the lines were?
“A. No, sir, we didn’t bother with it. No one ever brought any complaints.
“Q. And you never knew whether they were on the lines or off the lines ?
“A. No, sir, we didn’t know anything about it.
$ ‡ $
“Q. You never made any claim, you or your father, did you—
“A. No, sir.
“Q. —that you could hold that line as against the public and the highway.
“A. Why, no, we didn’t know. We kept the fence right there.”

Moreover, a former highway commissioner, Mr. Jacob Bosma, testified to the following conversation with Mr. Derk DeVries, the father of the last named witness, and at that time the owner of the farm:

“I know Mr. DeVries. I remember having a conversation with him at one time in regard to this fence on the north side of the place. It was right by the farm. He was fixing up the fence, was building it, and I asked him if he wasn’t out in the road. He said he didn’t know, but he said, ‘I am just fixing it up for a lane to let my cows down. I don’t think it will do any harm.’ He said, ‘It will be tore down, probably, in a year or two.’ I told him I didn’t know as it would. I was highway commissioner at that time.”

As to the fence on the east side, on cross-examination, after going over the condition and location thereof, witness Walter Mendel testified:

“Q. And that constituted the fence enclosing the place, did it not, so far as there was one?
“A. Why, it was there. We didn’t consider it any more than to keep things out, that is, in the line of stock. It was simply there.
“Q. You didn’t consider it a fence, then?
“A. No, sir.
“Q. Nor as marking the line?
“A. What is that?
“Q. There was no other enclosure on that side, was there, when you went there, anywhere along that side, no other fence?
“A. Why, yes,
UQ. On the east side I am talking about.
"A. From the north corner to these here biggest trees there was an old fence, and then continuing past the big trees to the south comer there was also a fence.”

And after going into detail as to these fences he continued:

“Q. And that fence with those posts .is the one you said that if you had continued it north on the line that it was on, it would have crossed the road opposite your northerly line?
“A. Yes, almost.
“Q. So that you didn’t consider that that fence was on the highway line, did you?
“A. I didn’t consider anything.”

And again:

“Q. Now, when you built that fence on the east a year or two ago, you didn’t put it along where those trees were and where the other wires were?
“A. You hardly could.
SSQ. Well, you didn’t, did you?
“A. No, sir.
“Q. How far out did you put it?
“A. I went out just as far to miss the big branches.”

And later:

“Q. How did you happen to place that north and south fence on the east side of your land just exactly where you did place it?
“A. Why, I followed the course that — I didn’t want to nail this fence to the trees because it would spoil the trees, and also, because those big branches — every once in a while a tree maybe about four feet from the bottom will have a big branch out, and you nail a five foot wire to that and it is going to spoil it, isn’t it? I just put it out far enough to miss these big branches.
“Q. In other words, you put it out in the first convenient place to put it?
“A. Yes, sir.”

While it appears without question that a part of the highway both on the north and east side of the farm was occupied by the plaintiff and her predecessors in title, nevertheless we are not of the opinion that there was enough evidence to establish title to the parts of the highways in question by adverse possession. By the decisions of this court, when it was clearly established, it has been permitted to obtain such a title to the public highways, but, as was said in City of Mt. Clemens v. Sanitarium Co., 127 Mich. 119:

“The propriety of permitting title to be obtained in this way to the public highways is of more than doubtful expediency.”

By legislative act (Act No. 46, Pub. Acts 1907; 3 Comp. Laws 1915, § 12311) this was corrected, and it is no longer possible in this State to obtain title by adverse possession against the public. In the case of Village of Red Jacket v. Pinton, 126 Mich. 197, it was said:

“When one seeks to obtain land against the public by adverse possession of a part of a street, he should make out a clear case, and the possession should be of such a character, and under such circumstances, as to warrant the conclusion that the municipal authorities must be held chargeable with notice of the adverse possession and with acquiescence therein.”

So that, in order that the occupancy of the premises in question ripen into title by adverse possession, it was necessary that all the elements must be clearly . established, that is, the possession must be actual, continuous, visible, notorious, distinct and hostile to that of the public. The testimony of Mr. Tyler discloses that, at the time he built the original fences, it was his intention to give to the public the two rods as his share of the highway, and it is simply his claim that he thought he placed the fence upon the proper line bounding the highway, and no claim seems to have been made by him nor by his successors in title that they desired to have any property belonging to the highway nor that they occupied any part of the highway With any intention of holding it in a manner hostile to the public right. The distinction between obtaining title by adverse possession as against an individual and gaining title to a portion of a city street as against a municipality was clearly pointed out in the opinion of this court in Crosby v. City of Greenville, 183 Mich. 452. We think that the.plaintiff and her predecessors only had a permissive occupancy of the highway occupied by them, 'which ceased when the public through its proper officers demanded the use of the entire highway. See Weber v. City of Detroit, 159 Mich. 14; Pastorino v. City of Detroit, 182 Mich. 5; Conner v. Railroad Co., 183 Mich. 241; City of Ann Arbor v. Real Estate Co., 189 Mich. 165.

We are of the opinion that the lower court erred in granting the relief prayed for, and are of the opinion that the plaintiff has failed in sustaining her claim, and that her bill of complaint should be and is hereby dismissed, with costs to the appellant.

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


author: Per Curiam.

text:
    MARSH v. KENT CIRCUIT JUDGE.
    1. Mandamus — Answer—Failure to Dent.
    Statements in the answer, in mandamus proceedings, not traversed by relator, must be taken as true.
    2. Same — Court Rules — Failure of Relator to Comply — Settlement of Case for Appeal.
    Mandamus will not lie to review the action of a circuit judge in extending the time for settling the record in a case for appeal, where such postponement was made necessary by relator’s failure to furnish the adverse party with the stenographer’s notes in compliance with section 3, Circuit Court Rule No. 66, in time to permit reasonable examination and comparison.
    Mandamus by Frankie E. Marsh to compel Willis B. Perkins, circuit judge of Kent county, to settle and sign a record on appeal.
    Submitted March 5, 1918.
    (Calendar No. 27,883.)
    Writ denied March 27, 1918.

      Eugene Carpenter, for relator.
   Per Curiam.

Relator sets out that within 20 days after the entry of decree, and on February 19, 1917, there was presented to Hon. Willis B. Perkins, one of the judges of the Kent circuit court, a proposed case on appeal to be settled, due' notice of the said application having been given. The cause was heard by Judge Mayne, of another circuit.

Relator sets out, among other things, the following:

“Your petitioner further shows that her said application to have the testimony taken herein upon the said accounting settled for such appeal was presented by her attorney, Eugene Carpenter, to the Honorable Willis B. Perkins, circuit judge of the seventeenth judicial circuit, on Monday, the 19th day of February, 1917, at the circuit court rooms of said county of Kent, Michigan; and that upon the claim of the attorneys for said defendant and appellee that the proposed record had been served upon them by piecemeal, a part' at a time, properly paged, before that time, and not altogether bound up in book form, the said circuit judge did then and there refuse to settle and certify this case for such an appeal, and which would and did thereby prevent and delay your petitioner in .having this case reviewed on such an appeal by the supreme court at the 1917 April term. But that the said circuit judge did at that time and place make an order extending the time for the settlement of this case for such an appeal for a period of 30 days or to and including the 28th day of March, 1917, and requested your petitioner’s counsel to serve such proposed record again upon the attorneys for defendant and appellee altogether at one time and bound up in book form, which your petitioner claims was a somewhat technical requirement under such a rule of practice, when taking into consideration that the'attorneys of the defendant and appellee had taken from the clerk of the court’s office all of the original depositions taken and filed therein in this case and all of the original exhibits, books, papers and documents used as proofs on such an accounting and was then concealing the same for the purpose of preventing the plaintiff’s attorney from preparing the record of testimony for such appeal, and which has delayed your ■ petitioner in having this case reviewed at the 1917 April term of the Supreme Court; although her attorney has fully complied with the said last mentioned order and did within the 30 days méntioned therein serve upon the attorneys for defendant and appellee two copies of a full and complete printed record and transcript of all the testimony, depositions, proofs, exhibits, books, letters, papers and documents used or offered as proofs and testimony by either party upon the said accounting had herein, bound up in book form, and did also within the said 30 days have the said record printed, bound up in book form and filed with the clerk of the Supreme Court, and a return of the case made of this case to the Supreme Court, and the proper fees paid for the making of such return, and for having this case docketed in the Supreme Court, and the same duly noticed for hearing at the 1917 April term, and placed upon the calendar for hearing, and the plaintiff’s brief for such hearing printed and the proper number of both records and briefs filed with the clerk of the Supreme Court, and served upon the defendants and appellee’s attorneys within the said 30 days and before the first day of the 1917 April term of the Supreme Court, and ready for hearing at the said April term, so far as the plaintiff is concerned.”

In answer to the order to show cause, granted April 20, 1917, Judge. Perkins denies the truth of the averment above set out in so far as his action is concerned' and says, and there being no traverse, we must accept the answer as true, that on February 19, 1917, both parties appearing, he learned that relator had not complied with section 3, Circuit Court Rule No. 66, in that relator had not furnished the adverse party the stenographer’s minutes -for inspection and use in’ the. preparation of amendments to the proposed casej and thereupon made an order extending the time for settling the case 30 days from February 21, 1017, to. enable relator’s counsel to serve the said transcript of testimony. Respondent has no knowledge, he says, about what, if anything, relator has since done in the premises and has not since been asked to settle the case.

There has been unpardonable delay in bringing this motion on for hearing. The printed record was filed September 26, 1917, and relator’s brief was delayed until March 4, 1918.

It seems to be the contention of relator that having, as he says, incorporated all of the testimony in his proposed case, and having produced, upon the day noticed for settlement of the case, the stenographer’s minutes of testimony, he had complied with the rule; in this respect saying, in substance, that when the case proposed contains all of the testimony there can be no occasion for the adverse party to make amendments.

But the adverse party has the right to make comparison of the case presented and the testimony — to verify the claim that it contains all of the testimony. For this purpose the rule must be construed to mean that the adverse party be given possession of the stenographer’s minutes for such reasonable time as will permit the required examination and comparison. Counsel for relator differently construes the rule.

In the light of the answer, the matter appears to be a very simple one, about which this court should not have been troubled, and in which no right to the order to show cause is made out.

The writ is refused, with costs to the party adverse to relator in the principal suit.


author: Ostrander, C. J.

text:
    KUICK v. CITY OF GRAND RAPIDS.
    2. Municipal Corporations — Sewers—Charter Provisions.
    In proceedings to establish sewers cities must observe the charter regulations, and the different steps should he taken in the order prescribed and in strict observance of the same.
    2. Same — Extension and Improvement of Existing Sewer.
    That a sewer has been constructed for some distance in a city street does not prevent its extension and enlargement, as the necessities of property owners farther out on the street may require, or the public health may demand.
    3. Same — Sewers—Vested Rights.
    Property owners on the street did not own the tile and had no vested right to have the old sewer maintained.
    4. Same — Necessity—Jurisdiction—Resolution of Council — Injunction.
    In proceedings by property owners to have declared void an assessment for a sewer tax and to enjoin the collection of the same, where the sewer was built according to the plans, under plaintiff’s observation, and no one was deceived as to the nature of the actual improvement, it cannot be contended that the resolution declaring the improvement *a public necessity was insufficient to confer jurisdiction because it provided for lowering the existing sewer, while in fact it was also enlarged and extended and the tile in the old part was either destroyed or used in constructing the extension.
    5. Same — Sewers—Benefits.
    Nor could it be seriously contended that plaintiff’s property was not benefited by the improvement.
    6. Same — Assessment According to Benefit — Presumptions— Evidence.
    Where the assessment was ordered by the city council to be made according to benefits, it will be presumed that the same was done, in the absence of any testimony to the contrary.

      ’TTSam.e — Abatement of Tax — Equity.
    The validity of the special tax roll is not affected by the fact that the council was or will be influenced, upon equitable considerations, to abate what plaintiffs would otherwise have to pay by reason 'of the fact that they had once paid a tax for the old sewer.
    Appeal from superior court of Grand Rapids; Dun-ham, J.
    Submitted January 16, 1918.
    (Docket No. 96.)
    Decided March 27, 1918.
    Bill by John E. Kuick and others against the city of Grand Rapids and another to set aside the proceedings for the assessment and collection of a sewer tax. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      S. Wesselius and Dorr Kuizema, for plaintiffs.

      Ganson Taggart, City Attorney, and Charles A. Watt, Deputy City Attorney, for defendants.
   Ostrander, C. J.

In the city of Grand Rapids, West Leonard street extends from Bristol street, the city limits on the west, eastward, and it seems from the plat found in the record that it intersects, first, West Street, then Powers street, and then Tamarack street, which last named street makes the eastern boundary of the district about which we are concerned. The west 800 feet fronting West Leonard street on the north and south is a cemetery,. Frederick street opens out of West Leonard on the north and White street on the south, in the district west of West street.

It appears that in the year 1901 a sewer was constructed in West Leonard street from Tamarack to West, its size from Tamarack west to Powers street being 24 inches, and from Powers to West street 18 inches, and for the purpose a sewer district was made, upon which the cost of construction was assessed. The old sewer emptied at Tamarack street into a • 9-inch sewer, causing some trouble at times, backing up water and flooding cellars on the West Leonard street line. Before the events related hereinafter this defect had been remedied. It is perhaps a necessary implication from the facts testified to that a natural water course existed on Tamarack street, that it was converted into a sewer in some way, and that the flow from the West Leonard street sewer was thereafter taken care of. There is testimony, not disputed, to the effect that thereafter the West Leonard street sewer, as it was constructed, answered its purpose and the needs of property connected with it.

In June, 1909, a resolution of the common council was adopted which requested the board of public works to furnish an “approximate estimate” of the cost of lowering the sewer and laterals in West Leonard street running from Tamarack west to West street and the construction of a sewer in West Leonard street from West street to the east line of Greenwood cemetery, necessary storm water conduits, branches, manholes and laterals, etc., “the construction of said sewer being a necessary public improvement.” Pursuant thereto, a report was furnished, the approximate estimate of cost being $11,310. Of date October 4, 1909, the common council resolved that the lowering of the said existing main and lateral sewers and the construction of the sewer from West street to the east' line of the cemetery, including-catch basins, etc., “is a necessary public improvement.” Then, October 25, 1909, a contract was reported and presented to the common council for construction of the improvement, the approximate cost stated being $10,633.26. It was approved and the mayor empowered to execute it for the city. In order, there followed action of the common council as follows: In December, the committee on districts was asked to locate a district to be assessed for the said improvement, in the same month $1,000 was transferred temporarily from the sixth ward high-, way fund to the West Leonard street, Tamarack and West street sewer fund, “to be credited pro rata, to the property owners between Tamarack street and West street as assessed for construction of said sewer, to be reimbursed later from the Second Sewer District fund”; in January, the committee on districts made a report, fixing a sewer district, and the report was adopted. Final estimates of cost were submitted May 23, 1910, the total cost being $11,980. . In June, 1910, the entire cost as so reported was ordered assessed upon the owners and occupants of lands and houses benefited by the improvement, determined to be lands as reported by the committee on districts. The board of assessors was ordered to make the assessment “as nearly as may be” in proportion to benefits. The roll was presented in September, 1910, and the evening of September 19, 1910, fixed for hearing appeals and notice of the opportunity ordered given by publication. On the evening fixed, there were a number of appeals. Further action was from time to time postponed. It is apparent that the common council recognized some equitable or legal right of persons owning property abutting on the old sewer, to some credit on account of what had been paid for its construction, and the fact that some of the material in the old sewer was used in the new, at a point further west. The committee on appeals recommended, October '31, 1910, that the board of assessors furnish the committee with certain information, namely, amount of assessments of lots on both sides, of the street from Tamarack to West street on the basis of 25 cents per front foot, including intersections, and West street to end of West Leonard street on basis of actual cost of sewer and 10 cents per foot, including intersections for trunkage; also the balance that would have to be paid from the general fund on this basis. The information was. called for and was furnished. Sitting as a committee of the whole, the common council, December 27, 1910, recommended that the roll be set aside and a new one prepared assessing the cost of the improvement on the district as though the sewer was a new one, not taking into account the old sewer, and that property owners who had paid for the old sewer be given credit on -the new roll for the amount of their assessments for the old sewer, and that the total of such credits, fixed at the sum of $3,110, be paid from the general fund. The testimony does not show that this report was adopted, but ‘the answer of the city admits that it was. Following this, January 9, 1911, the common council by resolution ordered the total of the expense, $11,980, assessed upon owners and occupants of lands and houses in the district benefited by the improvement. A new roll was presented January 30, 1911.

It is inferred that the owners of property served by the old sewer on West Leonard street, if not antagonistic to the proposed improvement, were insisting that with respect to the cost thereof little or none of it should be assessed to them, and this upon the theory that the improvement did not in fact considerably benefit them or their property. Another contention was that material in the old sewer was used in the new one at a point further west in the street and that they ought to have some credit for the value thereof. A number of taxpayers appealed from the order confirming the first assessment roll, and when the second roll was confirmed 27 or more appealed, grounding their appeal upon the propositions: .

“First. Because the construction of said sewer is of no benefit to our respective properties, and said assessment therefor is not based upon benefits derived.
“Second. The property owned by us was assessed for a sewer in said street in the year 1903, and which assessment was paid.
“Third. Because said assessment is not spread against our respective property for benefit received by it.
“Fourth. Because we were not notified for the proposed construction of said sewer and the same was constructed by said city without our consefit.
“Fifth. Because we were assured, after said construction was let, by the aldermen of said ward and the chairman of said committee of the assessment district, that the taxes therefor would not exceed ten dollars per lot.
“Sixth. Because said assessment amounts to a practical confiscation of our property without corresponding compensation therefor.
“Seventh. Because said roll is irregular, not in conformity with the law, inequitable and unjust.”

Meantime, the sewer had been , constructed and, as the court below found, construction went on from day to day under the observation of the appellants, according to plans adopted by the city and on file in the proper office, so that no one was deceived about the nature of the actual improvement.

Thirty-five owners of property assessed for the improvement joined as plaintiffs in the bill filed March 27, 1915, the purpose of which' is to have declared void, the proceedings for the assessment and collection of the taxes, and to enjoin further effort to collect the same. Fraud and deception are not charged. The issue joined having come on to be tried in open court, a decree was entered .dismissing the bill. In the brief for appealing plaintiffs the propositions argued are:

(1) The new sewer was of no benefit to the property owners assessed therefor between Tamarack and West streets.

(2) The construction of the new sewer was not authorized by the resolution declaring the lowering of the existing sewer a necessary public improvement.

(3) The assessment was not according to benefits, and credits for the old sewer were not properly given.

(4) The property owners cannot be said to be guilty of laches and are not estopped from contesting the assessment.

Counsel do not much disagree about the law. It is agreed that there is a presumption in favor of proper, as distinguished from improper, official action and that taxpayers have the right to- assume that such improvements will be made and the cost thereof levied and collected in accordance with the law. It is agreed that the assessment cannot exceed the benefit to be derived from the improvement and that the theory sustaining such levies is that the party assessed is locally and peculiarly benefited over and above the ordinary benefit which as ’one of the community he receives in all public improvements, to the precise extent of the assessment. White v. City of Saginaw, 67 Mich. 33; City of Detroit v. Judge of Recorder’s Court, 112 Mich. 588; City of Detroit v. Daly, 68 Mich. 503. But in applying these rules it is necessary to observe some other rules. Cities must have sewers. The law, in this case the charter of Grand Rapids, has pointed out the steps which must be taken to secure them. These the officials must usually take in the order prescribed and in rather strict observance of the charter, exercising always good faith.

A study of the record has not convinced me that any of plaintiff’s contentions ought to be sustained. The idea that their property was not at all benefited by the improvement is preposterous. The fact that a sewer has been constructed for some distance in a city street does not prevent its extension and enlargement as the necessities of property farther out on the street may require, or the public health may demand. The new improvement involved the old, and might of course destroy the old one entirely.- In fact, it did destroy it, in this case, larger tile being used and laid at a greater depth than the old tile. Farther west, where the sewer was smaller, the old tile, all or some of it, was utilized. But plaintiffs did not own .the tile and had no vested right to have the old sewer maintained. It is said that the jurisdictional step of declaring the proposed improvement a public necessity was not taken because the resolution provided for lowering the old sewer when in fact a new sewer was proposed and was constructed. The argument is based upon the notion that the term lowering the existing sewer means and must mean simply sinking it, and what is in it, to a greater depth. This is made evident by the following excerpt from the brief for plaintiffs:

“It will not do for defendant to say: ‘It does not mean a great deal to the engineering department whether a sewer was spoken of as being a lowered or constructed sewer.’ It does mean a great deal to the people affected, whose only notice is in the words of the resolution, who are not technical men, and who have not the advantage of private information and instruction as has the engineering department, that the thing apparently contemplated by a resolution is not the real thing that is to be done.”

Undoubtedly, the common council should not make a different improvement from the one declared necessary. But how does the case here stand? There was an old sewer in West Leonard street, perhaps 1,300 feet in length. West of its western terminus the street extended some 1,800 feet, and a sewer for that additional distance was desired — was deemed to be a public necessity. Engineering demanded a fall in the level of the sewer to the east. A proper fall (we must assume) carried it below the level of the old sewer, and proper size made the old 18-inch and 24-inch sewer too small. A sewer district had been created when the old sewer was laid, and it embraced nearly all of the territory put into the new district. All of these facts have significance when the language employed by the common council in describing the proposed improvement is read. The resolution implies that when finished there will be but one continuous sewer in West Leonard street, which will traverse the region occupied by the old sewer but be deeper in the earth than the old sewer is. I am impressed that no one should have been deceived by the language of the resolution and that it ought not to be held that the proposed and the declared improvement are two different things. It will be held, therefore, that jurisdiction to do what has been done was acquired, and that it is not made to appear that plaintiff's property was not benefited. This disposes of the contentions that the proceedings ought to be set aside and the city enjoined from collecting the cost of the improvement.

Assuming, what is questionable, that plaintiffs have the right, in this proceeding, to contest the amount of the assessment, they must at least point out either that the method of assessment adopted was all wrong or that, applying a proper method, a wrong result is apparent. This I think they have not done. An assessment according to benefits was ordered and presumably was made. That plaintiffs had once paid a tax for the old sewer is not of itself a reason for holding that the assessors have not performed their duty. The validity of the roll is not affected by the fact that the common council was or will be influenced, upon equitable considerations, to abate what plaintiffs would otherwise have to pay.

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


text:
    HILLMAN HARDWARE CO. v. DIETZ.
    1. Sales — Substituted Goods — Place oe Delivery.
    Where part of certain building material and fixtures furnished by plaintiff to defendant for a barn were admitted to be unsuitable, without particular fault of either party, . and plaintiff acquired, but had not delivered, others to replace the unsuitable ones, in a suit for the purchase price, JielS, that it was defendant’s admitted right to have the new goods delivered at plaintiff’s place of business, but not without first returning those for which they were to be substituted.
    2. Same — Substituted Goods — Delivery—Directed Verdict.
    While it cannot be told, until the experiment is made, whether the substituted parts will go with and fit those already furnished and in place, where both parties are standing upon their strict rights, and the evidence that the parts ordered are proper ones was uncontradicted, a verdict for plaintiff was properly directed by the court below.
    Error to Ottawa; Cross, J.
    Submitted January 11, 1918.
    (Docket No. 59.)
    Decided March 27, 1918.

      Assumpsit by the Hillman Hardware Company against Louis F. Dietz on a promissory note. Judgment for plaintiff on a directed verdict. Defendant brings error.
    .Affirmed.

      Lillie, Lillie & Lillie, for appellant.

      Dean S. Face, for appellee.
   Ostrander, C. J.

The testimony tends to prove that plaintiff sold to defendant and delivered to him certain personal property — principally building material and fixtures for a barn or barns. A promissory note was made by defendant, payable to plaintiff, for some of the debt incurred, and an open account, kept by plaintiff, evidences the remainder. It turned out that, without the particular fault of either party, rather by inadvertence, some of the fixtures ordered and delivered were not suitable — did not fit or suit the particular job — and that upon defendant’s representations others were ordered from the manufacturer, who sent them to the plaintiff, which has them in its possession, ready to be delivered to defendant^ without charge, whenever he returns the material and fixtures in place of which they were ordered. Defendant has demanded the new material and fixtures without returning, or offering to return, the property which he claims was unsuitable and to replace which the other was acquired by plaintiff, and upon the merits his defense is that the goods originally agreed to be furnished have not all been furnished and those furnished are useless to him until the substituted and later ordered parts are furnished. Out of these conditions defendant’s alleged damages have arisen. This defense involves the proposition that it cannot be told until the experiment is made whether the new parts in plaintiff’s possession will go with and fit into those already furnished and in place so as to properly compíete the job, the evidence that they are proper parts, at least are those ordered by defendant, being, however, upeontradicted. The parties are standing upon their strict rights. Under the arrangement of the parties, it is not defendant’s right to have the new parts delivered at his barn. As matter of law, it is not his right to acquire possession of them without returning those for which they are substituted.. It is his admitted right to have the new material delivered at plaintiff’s place of business upon the return of that first furnished. This being the law, it is not made to appear that the defendant, because of any fault of the plaintiff, has suffered any loss or injury. This was the ruling of the circuit court, a verdict for plaintiff being directed. It is doubtful if this ruling is properly challenged in the errors assigned and in argument. However, it was right and disposes of the case.

The judgment is affirmed.

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


text:
    ALLEN v. HEFT.
    1. Equity — Jurisdiction.
    The rule that, having jurisdiction for one purpose, a court of equity may, and usually will, retain jurisdiction to settle the entire controversy, has no application in cases where equitable jurisdiction is not made out by the bill itself.

      2. Execution — Injunction — Adequate Remedy at Law — Husband and Wife — Equity—Jurisdiction.
    On appeal from a decree dismissing a bill by a wife to restrain the sheriff from selling an automobile levied on by a judgment creditor of the husband, where the ownership of the automobile is in dispute, plaintiff claiming that in its purchase the husband acted as her agent, and the conclusions that the automobile is necessary for her use in selling her farm products, and that the identical automobile is the only thing that will satisfy her just demands not being apparent from the bill of complaint or that her remedy at law is inadequate, the sheriff not being officially insolvent, the decree of the court below will be modified to the extent of dismissing the bill without prejudice to plaintiff’s right to institute a suit at law.
    Appeal from Kent; Brown, J.
    Submitted January 8, 1918.
    (Docket No. 5.)
    Decided March 27, 1918.
    Bill by Minnie E. Allen against Israel N. Heft and another to enjoin an execution, levy and sale. From an order dissolving the injunction, plaintiff appeals.
    Modified and affirmed.

      C. G. Turner, for plaintiff.

      Corie C. Coburn, for defendants.
    Plaintiff is the wife of Eli W. Allen. Israel N. Heft is a judgment creditor of Eli W. Allen. To collect his judgment, rendered in the year 1917, Heft caused an execution to be issued and delivered to the sheriff, who, on or about July 24, 1917, levied upon a motor car which Eli W. Allen had theretofore purchased from the Mt. Pleasant Motor Company. When he bought the car, the said Eli W. Allen paid for it $554.10, and gave his individual note to the vendor for $300. Later, Eli W. Allen began suit in the circuit court for the county of Kent against the said Mt. Pleasant Motor Company, claiming fraud on the part of that company in the sale of the said car, he having previously tendered the said car to said company and demanded from it a return of the money he had paid and his note. That suit is pending. The sheriff threatens to sell the car on the execution. The judgment creditor is financially irresponsible.
    Plaintiff owns a farm and personal property thereon, and all income therefrom belongs to her. From time to time, Eli W. Allen, her husband, has acted as her agent and has been intrusted by her with money to purchase property for her. She gave him the $554.10 with which to purchase the said motor car and it was bought for her to be used by her in her business and for family use, and is necessary for her use in selling products of her farm. This was in September, 1915.
    Briefly stated, the foregoing are the facts charged in plaintiff’s bill of complaint, in which she prays that an injunction issue, directed to the sheriff and the judgment creditor, to restrain them from interfering with her custody of the car and from selling or attempting to sell it. There is a prayer for general relief. The injunction was granted and served, plaintiff later on, before motion to dissolve the injunction was heard, giving a bond conditioned to pay the damages and costs awarded to said Heft if she “failed to recover and maintain her action against said Israel N. Heft * * The judgment creditor answered the .plaintiff’s bill and moved for a dissolution of the injunction upon the grounds (1) that it states no equity, (2) plaintiff has an adequate remedy at law, (3) plaintiff is estopped by her conduct to claim owm ership of the car. The court was advised, by affidavit, that Eli W. Allen applied for and obtained a license as owner of said motor car for the year 1917. The motion to dissolve was based, in part, upon the files and records in the case of Eli W. Allen v. Mount Pleasant Motor Company and Isabella County State Bank, which, files and records are not made a part of the settled case on appeal. The injunction was dissolved, the bill dismissed, and plaintiff has appealed.
   Ostrander, C. J.

(after stating the facts). The ■ contention of the appellant is that by the filing of the bill, the'general appearance of defendants, the granting of an injunction, the filing of the answer, etc., the court became possessed of the case, acquired jurisdiction of the parties and subject-matter, and therefore has jurisdiction to give full relief other than that prayed for. The familiar rule is relied upon that having jurisdiction for one purpose a court of equity may, and usually will, retain jurisdiction to settle the entire controversy.

The rule, of course, has no application in cases where equitable jurisdiction is not made out by the bill itself. Upon the facts she alleges, plaintiff has apparently an adequate remedy at law, which is sufficient reason for refusing equitable interference. The sheriff is not, officially, insolvent. It is said that the identical automobile is the only thing which will satisfy plaintiff’s just demands in this case, and that at least the cause ought to have been transferred to the law side of the court for trial. This conclusion is not apparent from the bill of complaint. Furthermore, the record does not contain all of the evidence upon which the court below proceeded.

I am inclined, however, to grant a modification of the decree to the extent of dismissing the bill without prejudice to plaintiff’s right to institute a suit at law if she is so advised. In other respects, the decree is affirmed, with costs of this court to the appellee.

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


text:
    HOLBROOK v. OLYMPIA HOTEL CO.
    1. Master and Servant — Workmen’s Compensation Act — Evidence — Nature oe Employment — Question oe Law.
    On certiorari to review an award of compensation by tbe industrial accident board, under the' workmen’s compensation act, to the widow of a painter and decorator who was accidentally killed while engaged at work for a hotel company, where the facts are undisputed, the question as to whether decedent was an employee or an. independent contractor was a question of law.
    2. Same — Casual Employment — Assumption oe Risk — Statutes.
    It is clear that, under the workmen’s compensation act (sections 5427, 5429, 2 Comp. Laws 1915), it was contemplated that there may be an employment of labor, not in the usual course of the business of the- employer, in which employment the risks of injury not occasioned by the employer’s fault are assumed by the workman.
    3. Same — Casual Employment.
    The owner of a hotel is not pursuing his business, within the meaning of the workmen’s compensation act, when he causes the rooms to be occasionally painted and decorated, although it is usual to have work of that nature done from time to time.
    4. Same — Independent Contractor.
    Where the undisputed facts show that in doing work for a hotel company in painting and decorating its rooms from time to time as occasion required, deceased engaged his own men' and controlled them, doing as much or little work personally as he pleased, although the work was to be done to the satisfaction of the manager of the hotel, ' who furnished the materials used, and deceased was paid so much per hour for the men engaged in the work, he was an independent contractor and not an- employee within the meaning of the workmen’s compensation act.
    Certiorari to Industrial Accident Board.
    Submitted January 9, 1918.
    (Docket No. 24.)
    Decided March 27, 1918.

      Minnie A. Holbrook presented her claim for compensation against the Olympia Hotel Company for the accidental death of her husband in defendant's employ. From an order awarding compensation, defendant and the Hartford Accident & Indemnity Company, insurer, bring certiorari.
    Reversed, and award set aside.

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

      Warren S. Stone, for appellee.
   Ostrander, C. J.

Arthur Lee Holbrook, a painter and decorator, living in Mt. Clemens, Michigan, while doing some work in the hotel of the Olympia Hotel Company, in that city, on September 25, 1916, fell from a ladder, receiving injuries from which he died. His widow, the claimant, seeks to recover compensation under the statute. The committee on arbitration refused to make an award, but the finding was reversed on appeal. The industrial accident board found:

“(a) That the deceased was an employee of the respondent employer and that the accident which befell him arose out of and in the course of his employment.
“(b) That the accident caused his death and that it was the proximate cause of his death, which occurred a few hours after the accident.
(c) That his employment was not casual and that he was not a casual employee.
“(d) That the accident occurred and arose out of and jn the course of the trade, business and occupation of his employer, the Olympia Hotel Company.
(e) That the applicant was solely dependent upon the deceased and that she is entitled to all of the compensation.
“(f) That compensation should be paid by the respondents to the applicant for the period of 300 weeks at the rate of $10 per week.”

Plaintiffs in certiorari, in the petition for the writ, allege:

“(a.) That Arthur Lee Holbrook was an independent contractor and not an employee of the Olympia Hotel Company, and as an independent contractor is not entitled to compensation under the terms of the workmen’s compensation act.
“(b) That the industrial accident board erred in conclusions of law above set forth and erred in its findings hereinbefore complained of.”

It is said in the brief that the point that the employment was casual is waived. To determine whether the deceased was an independent contractor, a mixed question of fact and law, requires examination of the testimony, all of .which is returned. This discloses that the Olympia Hotel Company conducts a hotel. That is its business. The building in which the business is carried on seems to be of considerable size. The rooms were renovated occasionally with paint and paper, and it was the practice of the management to have the necessary work done, in one or in several rooms, as the business of the hotel permitted. Usually, at least, there was a period of time in spring and another period in the autumn, during which periods most of the work was done. When necessity demanded or convenience permitted the renovation of a room or of rooms the management secured the services of a painter to do the work, furnishing the material but not the tools for doing it. For a year or more prior to his death, Mr. Holbrook was the man to whom the doing of the necessary work was confided.

Mr. Holbrook carried on the business of painting and decorating, employing men, as many as, eight at one time. Occasionally, he contracted to do a particular piece of work for an agreed sum, but most of his work was done, as all of it was for the Olympia Hotel Company, by the hour. He carried on different jobs at the same time, using his men on one or other of them as he pleased, changing them from one job to another. He was carrying on more than one job at the time he was injured. He went from job to job, superintending his men and himself doing work. He hired the men; they regarded him as employer, looked to him for their pay, and he paid them.

There was no written contract between Holbrook and the hotel company. He was not carried on the payroll as an employee of the company, nor was he otherwise than as stated in the service of the company. There was no understanding that he was personally to do any work. He was to get the work done, had absolute charge of it and of the men employed, the results to be satisfactory to the hotel company. By this latter, statement is meant that in practice one, two, or more coats of paint might be ordered in a particular room until it looked good to the management, or a tint or color, use of which had been begun, might be ordered changed to suit the taste of the management. Impliedly, of course, he undertook to do a job in a proper, workmanlike manner. He rendered bills for the work done, which bills specified the total number of hours he and his men had worked, but not how many hours each had worked nor who were the men who worked. Some days Mr. Holbrook worked at the hotel a few hours while his men, or some of them, worked many hours. When he was absent, one of his men was left in charge and direc--, tion of the others and the work. Uniformly, by agreement, he charged 35 cents an hour for all work done, whether by himself or others, and he paid his men 30 cents an hour.

There 'is no dispute about the facts. There is no testimony tending to prove that the hotel company controlled or reserved the right to control the men, or the way in which they should do this work. The case presented by the facts is the common one of the house owner and the painter who do not contract to have done and to do a particular job for a lump sum, but do contract to have done and to procure to be done certain work at a stipulated price per hour for the time employed. Nothing is more common, nowadays, than for the house owner to. engage some man whose business it is to see that certain desired painting, dec- ' orating, paper hanging is done in and about his house, or to see that storm houses and storm windows are put up in the autumn and taken down in the spring, when screens and.awnings are installed in place of them, or to mow and trim the lawn. If the man once engaged produces the desired results for a fair sum, he is employed, if it is possible, year after year to do the work —to see that it is done. Nothing is more common than to charge and pay for such work a price per hour of time employed in doing it. Often, the man engaged, who is responsible for results, does not do the work himself and is not expected to' do it. He has facilities, has men, has tools, and often has several jobs progressing at one time.

The facts being undisputed, the question presented is a question of law. In the opinion given by the board it is said:

“Under the manager of the hotel, Matthews, Mr. Holbrook operated as a foreman for the hotel company covering that class of work. He also acted for the hotel company as a sort of paymaster in paying off the men. He kept their time and knew how many hours each put in. He took the money from his employer, .the Olympia Hotel Company, and distributed to each man the part that belonged to each man and kept the remainder for his services. The hotel company and all the men understood the arrangement and were satisfied with it. We have not quoted all of the testimony on the subject of the status of Mr. Holbrook, but we have quoted sufficient to show, in our judgment, that the deceased was not an independent contractor, but that he was an employee of the respondent hotel company. In Tuttle v. Lumber Co., 192 Mich. 385, our Supreme Court said:
“‘We are of the opinion that the test of relationship is the right to control. It is not the fact of actual interference with the control, hut the right to interfere, that makes the difference between an independent contractor and a servant or agent.’
“It is said in 26 Cyc., at page 966:
“ ‘The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished; or, in other words, not only what shall be done, but how it shall be done.’
“In 26 Cyc. p. 1546, an independent contractor is defined as:
“ ‘One who, carrying on an independent business, contracts to do a piece of work according to his own methods and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work.’ ”

This is based in part, it is assumed, upon a finding of facts which reads:

“If the manager concluded that one coat of paint was sufficient, the painters would go to other rooms to work, and the manager was at liberty to take them from one room and put them on another at any time and to change the men around from room to room as he saw fit. If the manager did not think the rooms were properly painted he would direct them to put on other coats, and in some cases under his instructions the painters put on as many as four coats of paint to a room.”

The finding of facts here set out is in effect a finding that the manager of the hotel was in control of the men employed by Mr. Holbrook, directing them in their work, with the right to interrupt it. In this sense, I do not find it supported by testimony. On the contrary, it appears that to Mr. Holbrook suggestions were made and that he or some one whom he left in charge of the work directed the men. And in any event the skill, the art, which the men possessed, probably in different degrees, how paint should be laid or paper hung — about these things, which, combined with the. material furnished, produced the desired results, no one connected with the hotel undertook to control or direct the men or Mr. Holbrook.

The law provides, 2 Comp. Laws 1915, §§ 5427, 5429:

“The following shall constitute employers subject to the provisions of this act: * * * 2. Every person, firm and private corporation, including any public service corporation, who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the accident to the employee * * * have elected to become subject to the provisions of this act” * * *.
“The term "employee’ as used in this act shall be construed to mean; * * * 2. Every person in the service of another under any contract of hire, express or implied, oral or written, * * * but not including any person whose employment is but casual or is not in the usual course of the trade, business, profession or occupation of his employer.”

It is clear that the law contemplates that there may be an employment of labor, not in the usual course of the business of the employer, in which employment the risks of injury not occasioned by the employer’s fault are assumed by the workman. It would seem that occasionally renovating the rooms of a building, or the building itself, owned and occupied by'the owner as a home, with paint or paper or both, is not in the usual course of the trade, business, profession or occupation of the owner, unless he is himself in the business of painting and decorating. No reason can be found for concluding that the owner of a hotel is pursuing his business, within the meaning of the law, when he causes the rooms to be occasionally painted and decorated, although it is usual to have work of that nature done from time to time.

But, assuming that the claimant’s decedent was doing work in the usual course of the business of the hotel company, he was not its employee within the meaning of the law, but was. plainly an independent contractor, who, when material was given to him and rooms designated where it was. to be used, undertook, by himself and others, with his own apparatus, and according to his own methods, to produce results. It is often helpful in seeking to determine whether, upon certain facts, the relation of master and servant exists, to consider whether the alleged master would be liable to third persons for misconduct of the alleged servant. In two cases, in which such a liability was asserted, it has been held that the alleged servant was. an independent contractor upon facts which make the reasoning’ and conclusions of the court applicable here. These cases, are Gall v. Journal Co., 191 Mich. 405; Burns v. Paint Co., 152 Mich. 613. See, also, Perham v. Roofing Co., 193 Mich. 221.

The award is set aside.

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


author: Steere, J.

text:
    KALUCKI v. AMERICAN CAR & FOUNDRY CO.
    1. Master and Servant — Workmen's Compensation Act — Appeal prom Committee on Arbitration — Conclusiveness — Limitation.
    The decision of the committee on arbitration as to a claimant’s right to compensation under the workmen’s compensation act, filed with the industrial accident board, is final • and stands as the decision of the board unless a claim for review is filed with the board in conformity with the provisions of section 5461, 2 Comp. Laws 1915.

      2. Same — Appeal — Limitation — Exception — "Good Cause Shown.”
    Where the claim for review is not filed within the seven days limited in the statute, the showing justifying the board in extending the time, under- the proviso in said section, must be such as to present some legal basis recognized as authorizing the exercise of a judicial, or quasi judicial, function or judgment, and the board may not act arbitrarily without “good cause .shown.”
    3. Same.
    Inability to furnish the money necessary to pay the expenses of such review is not a recognized legal “good cause shown” for extending the timé, especially in view . of the fact that a bare statement in writing of plaintiffs claim for review, which could be written in two or three lines, would, if filed with the board within the seven days, have preserved his right of review under the provisions of the statute.
    4. Same — Limitation oe Action.
    Where plaintiff suffered an injury to his' eye while in defendant’s employ, and after treatment by its physician he continued at work, although the injury continued and finally resulted in the loss of the eye, and no claim for compensation under the workmen’s compensation act was made until more than six months after the date of the accident, an award of compensation was barred by the provisions of the statute (section 5445, 2 Comp. Laws 1915). Cooke v. Holland Furnace Co., ante, 192.
    Certiorari to Industrial Accident Board.
    Submitted January 10, 1918.
    (Docket No. 36.)
    Decided March 27, 1918.
    Joseph Kalucki presented his claim for compensation against the American Car & Foundry Company for injuries received in defendant's employ. From an order awarding compensation, defendant brings cer- . tiorari.
    Reversed.

      Alexander, Cotter <6 MacCord (G. A. Orth, of counsel), for appellant.

      Leopold A. Koscinski (Charles Bowles, of counsel), for appellee.
   Steere, J.

On July 29, 1914, while in defendant’s employ as a car repairer, plaintiff struck with his hammer a highly tempered piece of steel from which a small piece, or pieces, broke off and flew into his left eye. He went to the “shop doctor” who cared for and bandaged the eye, directing him to go down town to the company’s doctor for further treatment. He visited Dr. Palmerlee, the company’s physician, to have his eye treated two or three times and then ceased going. He testified he thought he went three times. Dr. Palmerlee kept a record of the services rendered and testified that he treated plaintiff’s eye but twice, the first time on July 31 and again on August 1, 1914; that he removed a small particle of steel from the eye on the first treatment, finding nothing to indicate anything else in the eye; that most any inflammation in the eye from a foreign substance would require more than two treatments and after the second plaintiff was- told to come back for further observation but failed to do so. Plaintiff denied being told to return but admitted that when he left his eye was bandaged and that he later took the bandage off himself.

From the time of the accident plaintiff continued at his regular work without asking for further medical attention or notifying defendant of any trouble with his eye until about the first of October, 1914, when he and most of the other men in his department were laid off because of lack of work.

Defendant heard nothing further of him until the 9th day of June, 1915, when he served upon it notice of a claim under the workmen’s compensation law for the loss of his eye, accidentally injured while in defendant’s employ, on July 29, 1914, stating that said “injury gradually caused total blindness on about March 20, 1915.”

Liability being denied, on September 9, 1915, plaintiff filed with the industrial accident board his claim and application for compensation based on the accident which occurred July 29, 1914. Pursuant to provisions of the workmen’s compensation act a hearing was had before a committee of arbitration which, on October 14, 1915, determined that he could not be awarded compensation because his claim therefor was not made within six months after the date of the injury as required by the act he invoked which provides (section 15, part 2, Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5445):

“No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer three months after the happening thereof, and unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same.”

Plaintiff was represented by counsel at this hearing and advised “then and there” of his right to appeal and claim review of this decision before the industrial accident board, but no claim for review was, filed within the seven days’ limitation fixed by statute (2 Comp. Laws 1915, § 5461).

On, or some time after, November 3, 1915, plaintiff made application to the industrial accident board for extension of time in which to file a claim for review under the proviso of section 8, part 3 of the compensation act (2 Comp. Laws 1915, § 5461) “that said industrial accident board may, for sufficient cause shown, grant further time in which to claim such review.” The record is hazy as to certain parts of this proceeding. An affidavit by plaintiff’s counsel, dated November 3, 1915, asking for extension of time to November 6th, appears in the record with no indication as to when it was filed. A verified petition .by plaintiff asking for extension of time, sworn to on January 10, 1916, follows this with no indication of when it was filed. The record next 'shows a motion by defendant’s counsel, without date or mark of filing, asking that plaintiff’s application for extension of time be dismissed for various stated reasons. There also appears in the record what is entitled an “application for review of claim before the full board,” signed by plaintiff (by his counsel) and dated February 8, 1916, with no indication of when it was filed. On February 3, 1916, an order was entered by the board reciting that an application for extension of time had been filed by plaintiff and, parties having been heard, the application was granted extending the time for seven days from that date. The only claimed “sufficient cause shown” was lack of funds to “cover the expenses of transcript. of record and other expenses incidental to such proceeding.” Upon that proposition the affidavit of plaintiff’s counsel of November 3d shows that on October 20, 1915, within the seven days, plaintiff notified his counsel that he would succeed in raising the necessary amount and on the 28th of October, 1915, counsel wrote the industrial accident board asking 'for blanks “of application of review of claim before the full board,” which he received on the first of November, 1915, and immediately thereafter he “prepared his reasons for the application for review as aforesaid.” 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.

On rehearing before the industrial accident board the decision made by the committee on arbitration was reversed and an award made of full statutory compensation for the loss of an eye on the theory, as appears by the opinion of said board filed in the ease, that the accident and injury were not contemporaneous and the six months’ statute of limitation providing for time in which to make claim for compensation began to run from the time plaintiff discovered the loss of his eye, which he testified was about March 15, 1915.

The legal propositions presented by defendant against the decision of the accident board are that no notice of the injury was given it within three months after the accident from which it resulted, nor claim of compensation made therefor within six months, and that the board erred in allowing plaintiff’s petition for extension of time in which to file a claim for review of the decision of the committee on arbitration.

It is said in behalf of plaintiff that the injury for which he seeks compensation, the loss of an eye, was of such gradual development that knowledge of it ought not to be imputed to him nor its occurrence timed against him until he learned the fact by consulting a physician in March, 1915. But according to his own testimony he knew from the time he left the office of defendant’s physician, shortly after the accident, with his injured eye bandaged and did not return, that it had not recovered from the accidental injury in reference to which he had gone to the shop doctor, and yet he did not thereafter apply for the treatment to which he knew he was entitled nor notify defendant of any trouble with his eye. He removed the bandage himself and continued to work as usual until he was laid off with the rest in October, less than three months after the accident, and he states that his eye bothered him right along during all that time, hurt when he perspired and occasionally became inflamed, that after the company’s doctor got through with it he could only see “like through a mist” and he did no work after he quit defendant’s employ “because of the eye. I wa¿ afraid it might spoil my eyes.”

The statute which plaintiff invokes fixes the time and manner in which he must proceed to establish his right to an award. After a committee on arbitration had passed upon his claim for compensation and filed its. decision with the industrial accident board, it was final and stood as the decision of the board unless within the seven days thereafter given by the act he, considering himself aggrieved, filed a claim for review; except, that under the proviso it was permissible, upon a legal showing that the delay was without fault imputable to him or his attorney and excused by circumstances beyond his control, for the board to extend the time in which to file such claim. In the absence of such showing justifying the delay the board had no arbitrary power to act in the matter and the seven days’ limit fixed by the statute is conclusive. The showing must be such as to present some legal basis recognized as authorizing the exercise of a judicial, or quasi judicial, function or judgment, in administration of the law. The only claimed excuse here is temporary lack of money to pay the expenses of the desired review. Plaintiff had counsel in the matter who advised him of his right to review. Inability to furnish the funds which counsel may advise a litigant is necessary for an appeal is not recognized as a legal excuse for failure to take the proper steps for that purpose within the time prescribed by law; and if it were, plaintiff notified his counsel within the prescribed time, on October 20th, that he “will succeed in raising the necessary amount,” and a week later his attorney sent for some blanks and the following month made application for extension of time. In administration of the law this is not a recognized legal “good cause shown” for extending the time limit fixed by statute for taking steps to review a decision on appeal.

These facts stand undisputed, as testified to by plaintiff or admitted. The accident upon which he bases his claim occurred July 29, 1914; it resulted in an immediate injury of his eye, to a degree which led him to temporarily suspend work and consult the shop' doctor who dressed it and told him to go to the company’s physician for treatment; his vision was thereafter impaired and his eye continued to bother ' him, becoming at times painful and inflamed, until he quit defendant’s employ in October, 1914, and thereafter it was in such condition that he was not able to work or refrained from so doing because of. fear of losing his vision. Yet he gave no notice to defendant of that which he says, he knew as to the developing results of his accidental injury while in its employ and made no claim for compensation until June 9, 1915.

The six months’ limitation of time fixed by this act for claiming compensation under it is plainly expressed with no qualification and no latitude given, by proviso or otherwise, to the board administering it for extension of time. Upon that proposition the undisputed facts of this case bring it squarely within the recent decision of this court in Cooke v. Furnace Co., ante, 192, wherein the subject is fully discussed by Justice Fellows with review of authorities.

For the foregoing reasons the order of award made by the industrial accident board herein is. reversed.

Ostrander, C. J., and Bird, Moore, Fellows, Stone, and Kuhn, JJ., concurred. Brooke, J., did not sit.


author: Bird, J.

text:
    DANE v. MICHIGAN UNITED TRACTION CO.
    Master and Servant — Workmen’s Compensation Act — -Notice— Limitation of Action.
    The limitation provided in section 15, part 2, of the workmen’s compensation act (section 5445, 2 Comp. Laws 1915), begins to run from the date of the accident, and not from the time the injured employee discovers the extent of his injuries. Cooke v. Furnace Co., ante, 192.
    Certiorari to Industrial Accident Board.
    Submitted January 25, 1918.
    (Docket No. 64.)
    Decided March 28, 1918.
    Joseph Dane presented his claim for compensation against the Michigan United Traction Company for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed and award set aside.

      Sanford W. Ladd (Russell A. McNair and Warren, Cady, Ladd & Hill, of counsel), for appellant.

      Albert E. Meder, for appellee,
   Bird, J.

In October, 1913, plaintiff was employed as a section hand on defendant’s interurban railway. On the 15th of that month, while assisting in unloading steel rails at Albion, one of them skidded and struck his left knee and injured it. Following this hé worked intermittently for the company until May 4, 1914, when he received a second injury to the same knee, while working at Parma. From this time on the knee was more or less painful and later grew worse and finally resulted in amputation on February 6,1916. An award was applied for and allowed by the industrial- accident board. The principal defense raised, and one which, must dispose of the case, is that the claim for compensation was not made and filed within the' time prescribed by the compensation law, it appearing that no claim was filed for either injury until May 15,1916.

Section 15 of part 2 of the law (Act No. 10, Extra Session 1912, 2 Comp. Laws 1915, § 5445), provides that:

“No proceedings- for compensation for an injury under this act shall be maintained, unless a notice of the injury shall be given to the employer three months after the happening thereof, and unless the claim for compensation with respect of such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employee, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity.”

It is quite evident in enacting this section the legislature had in mind the desirability of fixing some limit to the time when a claim could be presented and passed upon by the commission. The language employed to effectuate this purpose, when read in connection with the context, is unambiguous and easily understood. It means, if it means anything, that the time shall begin to run from the day the accident happens- and the injury is incurred. To say that the time does not begin to run until the claimant is fully advised as to the extent of his injuries, as is. urged, is to import something into the section which is not there. The words “After the occurrence of the same” meant the same and are substituted for the words “after the happening thereof ” occurring in the preceding sentence with reference to giving notice of the injury. If one means the day the injury occurred the other does. It would hardly be contended that the three-month provision for giving notice of the injury did not commence to run until some time in the future when the injured party discovered the extent of his injuries. The language employed is not susceptible of such a construction, neither is. it a reasonable one, if we keep in mind what the legislature was attempting to accomplish by inserting this particular section. The construction which the section should receive is that the time commences to run from the day the accident causes the injury. This construction is in keeping with the evident intent of the legislature to create a statute of limitations, and thereby fix a time when employers. could feel certain that their liability in any particular case had ended. This construction is also in accord with the cases handed down herewith. Cooke v. Furnace Co., ante, 192; Kalucki v. Foundry Co., ante, 604.

The claim in question not having been made and filed within six months from the date of either injury, the award must be reversed and set aside.

Osteandee, C. J., and Mooee, Steere, Brooke, Fellows, and Stone, JJ., concurred. Kuhn, J., did not sit.