text:
      In re WEBER’S ESTATE. HAGEN v. WEBER.
    1. Wills — Validity—Testamentary Capacity.
    Less mental capacity is required to make a valid will than to make contracts.

    2. Same — Intoxication oe Testatrix — Evidence.
    Where intoxication of testatrix is made the basis for contesting the validity of the will, the testimony must be confined to the time involved in the transaction in controversy, since it is a temporary condition, and if testatrix was not overcome by - drunkenness when the will was made, it is not important what her condition was on other occasions.

    3. Same — Capacity—Undue Influence — Evidence—Directed Verdict.
    On the contest of a will for lack of testamentary capacity of testatrix, and undue influence on the part of proponents, evidence held, insufficient to warrant the submission of the questions to the jury.
    Error to Wayne; Mayne, J., presiding.
    Submitted January 22, 1918.
    (Docket No. 163.)
    Decided June 3, 1918.
    Wilhelmina Hahn and Christian F. Hagen presented for probate the last will of Friedricke Weber, deceased. From an order allowing the will, Charles F. Weber appealed to the circuit court. Judgment for contestant. Proponents bring error.
    Reversed, and remanded with directions.

      Andrew C. Paterson (John W. Beaumont, of counsel), for appellants.

      Percy W. Grose (J. F. Wilson, of counsel), for appellee.

      In this case, Friedricke Weber, the testatrix, on October 12, 1911, with all legal formalities, executed the following will:
    “I, Friedrica Weber, of the city of Detroit, in the county of Wayne and State of Michigan, being of sound mind and memory, do make, publish and declare this to be my last will and testament, in manner following, viz.:

      “First: — I will and direct that all my just debts and funeral expenses be paid in full.

      “Second: — I give, devise and bequeath to my son, Charles F. Weber, the sum of five dollars, he having already received the sum of three hundred dollars.

      “Third: — I give, devise and bequeath to my nephew, Christian Hagen, the sum of three hundred dollars.

      “Fourth: — I give, devise and bequeath to my sister, Wilhelmina Hahn, the sum of three hundred dollars.

      “Fifth: — I give, devise and bequeath to my stepson, Charles Weber, the sum of fifty dollars.

      “Sixth: — I give, devise and' bequeath to Charles Weber, son of my stepson, Charles Weber, the sum of twenty-five dollars.

      “Seventh: — I give, devise and bequeath to Clarence Weber, son of my stepson, Joseph Weber, the sum of twenty-five dollars.

      “Eighth: — I give, devise and bequeath to Annie Hágen, wife óf my said nephew, Christian Hagen, the sum of fifty dollars.

      “Ninth: — I give, devise and bequeath to Burton Hagen and Frederick Hagen, children of said Christian and Annie Hagen, each the sum of twenty-five dollars.

      “Tenth: — I give,. devise and bequeath to Florence Hagen and Elmer Hagen, also called Florence Bambam and Elmer Bambám, children of my nephew Charles Hagen, deceased, each the sum of twenty^five dollars.

      “Eleventh: — I will and direct that my executor hereinafter named erect a tombstone over my grave to cost the sum of twenty-five dollars.

      “Twelfth: — All the rest and residue of my property of every kind and nature, I give, devise and bequeath to my said sister, Wilhelmina Hahn, and to my said nephew, Christian Hagen, to be divided between them, share and share alike.

      “Thirteenth: — I hereby appoint my said nephew, Christian Hagen, of the city of Detroit, Wayne county, Michigan, sole executor of this my last will and testament.

      “Lastly: — I hereby revoke all former wills by me at any time made.”
    Testatrix at the time the will in question was executed was 69 years of age and had been a widow for upwards of 10 years. She died January 3, 1913, some 15 months after the execution of the will. She left her surviving one son only, Charles F. Weber, the contestant. Testatrix was married in Germany at an early day and there gave birth to the contestant. When he was about two years of age she, with her husband, moved to this country, leaving the contestant in Germany with her sister, Wilhelmina Hahn, one of the proponents, where he remained in the care of his aunt until he was 13 or 14 years of age. He then came to Detroit and lived with his mother until he was married when he moved to Cleveland about the year 1887. His mother continued to live in Detroit until the sum-, mer of 1911 when because, of physical infirmities and advancing years she joined her son in Cleveland. Either shortly before or shortly after going to Cleveland she had disposed of her home and her son had caused the money to be deposited in a joint account with him. She seems to have resented this act and had the account changed to her own name. Contestant then applied to the probate court of Cuyahoga county, Ohio, for his appointment as guardian of his mother’s person and estate, claiming that she was addicted to the intemperate use of intoxicating liquors and unfit to care for herself or her property. The testatrix immediately employed counsel to defend her in that proceeding with the result that on September 25, 1911, contestant’s petition was dismissed. Immediately thereafter the son sued his mother for board and care. This suit was settled by the testatrix by the payment of $60 to her son and she immediately returned to Detroit where she lived with her sister, Mrs. Hahn, until October 11, 1911, when she went to live with her nephew, Christian Hagen. Between that time and her death she lived at several places, remaining in each only a few months. The will was admitted to probate on October 1, 1913, and an appeal was taken to the circuit court. Upon the trial in the circuit court much evidence was introduced pro and con upon the question of the testamentary capacity of the testatrix at the time the will was executed as well as upon the question of undue influence. These questions were both submitted to the jury over the objection of the proponents and a verdict was rendered in favor of the contestant.
    In this court the case is reviewed by proponents under 65 assignments of error which in the main are divided into two classes:
    First, Those bearing on the question whether the ■record contains any evidence warranting the court in submitting the question of the testatrix’s capacity to the jury and
    Second, Whether the record contains any evidence warranting the submission to the jury of the question of undue influence.

      See note in 27 L. R. A. (N. S.) 2.

      See note in 39 L. R. A. 220.

   Brooke, J.

(after stating the facts). The record in this case shows without much dispute that the testatrix had for many years prior to her death been in the habit of indulging in the use of intoxicating liquors as a beverage. From the record we think it is not open to successful contradiction that this use tended to shorten the life of testratrix. It resulted finally in cirrhosis of the liver which was the immediate cause of her death. The evidence of Dr. Smith who treated her in the summer of 1911 is to the effect that she was then suffering from a progressive disease which would eventually weaken her physically and mentally. Dr. Sunkle who treated her up to September, 1911, testified that she used intoxicants to excess which was evidenced by the appearance of her face which was red and the manner in which she walked about his office; that she was very nervous and complained of dizziness in her head:

“From that I concluded that she was not of sound mind. * * *
“Q. Doctor, from your examination of her and what you observed from time to time, the condition of her body and mind, what would you say — was she competent to transact any business involving any amount of money?
“A. No; sir, she was not, at least during the time I was treating her.”

This testimony adverted to a period about two or three weeks prior to the execution of the will in question. Dr. Pfeifer tended her for some months in her last illness and after the execution of the will in question. He testified that when he first saw her he thought she was of the average mentality. Some 10 other witnesses were called by the contestant who gave evidence tending to show that testatrix indulged too freely in the use of intoxicants. When this testimony is all examined carefully, however, we are of opinion that it shows testatrix to have been a woman of considerable business ability, careful of her money and not easily imposed upon. She had disposed of her home but a few months before the will was made and no question of her competency was raised. She successfully defeated her son in an effort to prove her incompetent within a month of its execution. It is not shown that at the time the will was executed testatrix was under the influence of liquor nor indeed that she had tasted an intoxicant for two weeks prior to said date. She herself directed her nephew, proponent Hagen, to secure a lawyer for the purpose of having her will drawn. This he at first declined to do but being importuned a second time he inquired at a nearby store for a lawyer and was directed to Mr. Paterson, a reputable lawyer, who appears to have had no knowledge of the parties prior to his employment, to draw the will. He secured from testatrix all the facts, names, and information necessary for the drawing of the will and drew it that evening at her house where it was executed in the presence of himself and Mi:. Young, after it had been read to her. Both the scrivener and the other witness testified that at the time the will was executed the testatrix was entirely competent. There is absolutely no testimony in the record tending to show that on the 12th day of October the testatrix was not fully competent to make her last will and testament unless such an inference can legitimately be drawn from the evidence of the physician who attended her during the summer and early fall of 1911. We are of opinion that their testimony will not support that inference. It is elementary that less mental capacity is required to make a valid will than to make contracts. Kempsey v. McGinnis, 21 Mich. 123, 141, and In re Barney’s Will, 187 Mich. 145, 157. In passing upon the capacity of the testatrix to make a will attention should be directed to the character of the instrument which she executed. The will in question is one of exceeding simplicity and easily understood by one of even limited intelligence. Even if it could be shown that the testatrix had not sufficient mental capacity to understand a lengthy complicated document, which is not the case, this will could not be set aside if it was such a paper as under the evidence in the record the testatrix could and did readily understand. Kempsey v. McGinnis, supra, and Porter v. Throop, 47 Mich. 313, 324.

Touching* the question of the use of intoxicating liquors this court in Pierce v. Pierce, 38 Mich. 412, said:

“There is no foundation in reason or authority that we have found, for holding that a will is void for the intoxication of the testator. * * *
“It is not impossible for a person more or less intoxicated to make a will which is not the product of the intoxication. * * *
“We are further of opinion that inasmuch as it is a temporary condition, the testimony must be confined to the time involved in the transaction in controversy. If Pierce was not overcome by' drunkenness when he made his will, it is not important what his condition was on other occasions.”

See, also, Schneider v. Vosburgh, 143 Mich. 476;

1. There was in our opinion no evidence warranting the learned circuit judge submitting the question of testamentary capacity to the jury.

2. Undue Influence. It would be of no profit to the profession to set out in this opinion the evidence bearing upon this question. It is sufficient to say first,— that there is no evidence of undue influence to be found in the will itself, considering the fact that contestant by his conduct had embittered his mother toward himself; that Mrs. Hahn, the proponent, was the sister of testatrix and had taken care of her only child in Germany for 11 or 12 years and that the other proponent was the son of Mrs. Hahn. We think that the will itself not only bears no internal evidence of undue influence but represents the natural and probable workings of a normal- mind. There is evidence in the record that proponents desired to get the money of testatrix. This desire, however, even if communicated to testatrix would not constitute undue influence. Kneisel v. Kneisel, 143 Mich. 384, 388; In re Ganun’s Estate, 174 Mich. 286, 294. See, also, In re Williams’ Estate, 185 Mich. 97, 117, and In re McIntyre’s Estate, 193 Mich. 257. From a careful review of the entire record we are convinced that neither question should have been submitted to the jury, but that a verdict should have been directed for proponents.

The judgment is reversed, with costs, and remanded to the circuit court where a judgment will be entered in accordance with this opinion.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    WATSON v. ANDREWS & CO.
    1. Set-off and Recoupment — Evidence—Admissibility.
    In an action for money due from defendant to plaintiff, where defendant attempted to set off damages for plaintiff’s failure to deliver to it certain shares of stock which it claimed to have purchased of him, defendant’s receipt to plaintiff as trustee in the purchase of the same stock was admissible in evidence as tending to show that in relation to said stock defendant dealt with plaintiff as trustee rather than as an individual.
    2. Same — Trustee—Notice.
    Where defendant knew, or should have known, that in dealing with plaintiff in relation to certain shares of stock, he was acting as trustee, it cannot set off a claim arising therefrom in a suit brought by him in his individual capacity.
    Error to Wayne; Davis, J., presiding.
    Submitted January 16, 1918.
    (Docket No. 101.)
    Decided June 3, 1918.
    Assumpsit by Eugene Watson against Andrews & Company for an amount due on an account. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Affirmed.

      Bailey & Bradley (Samuel Shaw Parks, of counsel), for appellant.

      Moloney & Mendelsohn, for appellee.
    The plaintiff is a resident of Flint, Michigan. The defendant is a stockbroker maintaining an office for the transaction of business in the city of Chicago. During the years 1914 and 1915, plaintiff transacted considerable business with defendant in the way of buying and selling stocks. As a result of his various transactions with defendant there was on October 21, 1915, according to a statement rendered by defendant to plaintiff, due plaintiff the sum of $4,900. Payment of this sum having been refused by defend-, ant this action in assumpsit for its recovery was brought by plaintiff. Defendant interposed a plea of the general issue and gave notice thereunder to the effect that upon the trial it would show that on or about the 27th day of September, 1915, plaintiff had sold to defendant 10 shares of the common capital stock of the Saxon Motor Car Co. for $275 per share, making a total of $2,750; that thereafter plaintiff had neglected and refused to deliver said 10 shares of Saxon Motor Car Co. stock although repeatedly requested so to do,—
    “whereby defendant has lost large sums of money, to wit: the sum of $12,000, which said sum of money or so much thereof as will be sufficient for that purpose, the defendant will set off against the demand of the plaintiff and have the balance certified in its favor.”
    The parties went to trial upon these pleadings and upon the trial it appeared without dispute that defendant had in its hands belonging to plaintiff as of October 21, 1915, the sum of $4,900 which, together with interest to the date of hearing, made a total of $5,249.05. Defendant to sustain its plea of set-off and recoupment offered the evidence of one Pollitz, an employee of the defendant, who testified that he had a conversation with plaintiff on September 27,1915, in which plaintiff said:
    “I would like to sell that ten shares of Saxon I got.”
    To which the witness replied:
    “All right, wait till I get Andrews on the wire to see what he can bid for it.”
    Witness testified that he gqt defendant Andrews on the telephone and that Andrews- said he would pay $275 a share for the stock; that he reported this offer to plaintiff who said:
    “All right, sell it”;
    —that thereafter he handed the telephone to plaintiff, 'Watson, who had some further conversation with Andrews about it. On that same day Andrews & Co. sent the following unsigned memorandum to plaintiff:
    “Andrews & Company,
    “Dealers in Inactive and Unlisted Securities,
    “108 South La Salle Street.
    “Telephone Main 4930.
    “Private exchange to all departments.
    “Chicago, Sept. 27, 1915.
    “Mr. Eugene Watson:
    “We have bought from you the following stocks: 10 Saxon common, price $275, net amount $2,750.”
    This was received by plaintiff on the next day, September 28th, and the following letter, unsigned, was sent- by him to the defendants:
    (Letterhead of Harry W. Watson Company.)
    “Tuesday, Sept. 28th, 1915.
    “Andrews & Co.,
    “Chicago, 111.

      “Gentlemen: Your acknowledgment of September 27th for the sale of ten shares of Saxon common at $275, came somewhat as a surprise to me as I understood this was simply an offer on your part as I have been holding this stock for $300, which was the price I paid you. It is necessary in any event to have probate court’s papers authorizing the transfer.
    “Respectfully- yours.”
    Another letter apparently written by plaintiff to defendant but likewise unsigned is in part as follows:
    (Letterhead of Harry W. Watson Go.)
    “Flint, Mich., Monday, Oct. 4, 1915.
    “Andrews & Co.,
    “Chicago, 111.

      “Gentlemen: In connection with Saxon Motor -Co. stock which Mr. Andrews advised a sale at $275 some ten days ago, Mr. J. C. Johnson of the Peninsular State Bank, Detroit, obtained a temporary injunction against the Watson estate, tieing up not only the principal but also the interest of anything in my hands as trustee. The hearing is not until October 24th. This covers a disputed account against H. W. Watson and I intend to fight this thing to the finish. The judge tells me, however, that it is questionable whether any of the assets of the estate can be transferred, at least not during the injunction and that it would not be advisable during the course of the suit, which length of time it would be impossible to state. As this would place me in a bad position in case delivery was demanded and I understand you simply bought this as a personal favor, trust you will allow same to be canceled until things clear up in the future when I will give you selling order at the market.”
    On October 23, 1915, plaintiff wrote defendant a letter which he signed and which contains the following:
    “In regard to the ten shares of Saxon common, delivery of this can be made on or about November 6th.”
    —and on October 27th, another signed communication containing the following1:
    “In regard to the Saxon Motor, you understood this sale thoroughly, Mr. Pollitz being in the office at the time, and was informed there would be a considerable delay as it was necessary to secure probate papers which was further complicated by your injunction, which, however, we worked out in a short time. As you committed yourself, knowing the delay that would ensue, I cannot see where I am open to any criticism. Please see that the bonds are here promptly on the proper date of delivery so that I may issue myself a check from the estate’s funds to reimburse the amount that you are now holding in Chicago.”
    On November 6, 1915, plaintiff wrote defendant another letter in which we find the following:
    “In regard to the estate’s matter of stock, I at no time personally assumed any responsibility in this matter, nor do I do so at present. There are certain conditions existing in the estate which are unfortunate at present. I was fortunate enough to secure the probate’s order to sell General Motors Preferred some 60_ days ago and before the estate was involved by suit of John Johnson. I have not at this date yet been able to secure transfer papers on this stock although same have been in New York ever since, and I am informed that I cannot secure a remittance covering the transfer until the 17th so a delay of this nature is not unusual and will be even longer in your case, because of the conditions I have outlined previously. If you were foolish enough to involve yourselves as you say you did, before the delivery of the stock I refuse to accept any responsibility.”
    Evidence was offered on behalf of the plaintiff and received over the objection of the defendant, showing that plaintiff as trustee for the estate of Harry W. Watson, had on May 27, 1914, bought from the defendant the 10 shares of Saxon Motor Car Company common stock for the sum of $3,000, and defendant’s receipt for said sum was offered and received in evidence over objection. Defendant introduced testimony to the effect that between September 27, 1915, and January 17, 1916, when this suit was started, the Saxon Motor Car Co. common stock rose to the phenomenal figure of $1,800 per share. No proof was offered on behalf of defendant that it had between said dates or at any other time purchased 10 shares of Saxon common at any price to replace the 10 shares which plaintiff failed to deliver. The testimony being closed, plaintiff requested the court to direct a verdict in his favor for the sum of $4,900 and interest, concededly in defendant’s hands. This the court did, holding that the contract between the parties for the purchase of the 10 shares of Saxon stock was void under the statute of frauds. He further held that the defendant had knowledge or notice of the fact that the 10 shares of Saxon stock, the subject of the contract, was owned by the estate of Harry W. Watson and that it would therefore be necessary for plaintiff, as trustee, to obtain an order of the court before transfer.
   Brooke, J.

(after stating the facts). There is no disputed question of fact in the case. The only assignment of error requiring consideration is that the court erred in directing a verdict for the plaintiff and in refusing to direct a verdict for the defendant upon its claim of set-off and recoupment. The action of the court in admitting evidence of the fact that defendant had sold the 10 shares of Saxon stock to the estate of Harry W. Watson is urged as reversible error.

We think it was competent for plaintiff to show, in answer to defendant’s claim of set-off and recoupment, that defendant in undertaking the purchase of said stock was dealing with him as trustee for the estate and the written evidence introduced as to the original purchase from defendant of the stock was of legitimate probative value for that purpose.

It seems to be conceded by counsel for the defendant that the oral contract between Mr. Pollitz, representing defendant, and plaintiff would have been unenforceable as falling within the statute. It is clear that there was no delivery or acceptance of the whole or any portion of the goods or choses in action contracted for and it is equally clear that there was nothing paid on account of the purchase price thereof. There remains then the question whether there is—

“some note or memorandum in writing of the contract or sale, signed by the party to be charged, or his agent in that behalf.” 3 Comp. Laws 1915, § 11835.

This brings us to a consideration of the correspondence. The letter of September 27, 1915, from defendant to plaintiff in which it is stated:

“We have bought from you the following stocks: Ten Saxon common, — Price: $275, Net amount: $2,750.”

—is unsigned by the defendant and is the only written evidence contained in the record tending to show that it ever agreed to buy from the plaintiff the stock in question. Did this writing bind the defendant to accept and pay for the said stock when it was tendered to it by plaintiff? It seems plain that it did not and upon this assumption plaintiff asserts that the contract is void for lack of mutuality, citing Wilkinson v. Heavenrich, 58 Mich. 574; Willebrandt v. Sisters of Mercy, 185 Mich. 366, and the cases therein cited. Answering this claim, defendant urges that it had agreed orally to the purchase of the stock and that the statute requires that the written note or memorandum of the contract shall be signed by the party to be charged only. We think it unnecessary to discuss the issue thus raised in this ease because in our opinion defendant cannot, recover on its claim of set-off and recoupment for the following reason: It seems quite clear upon the record that defendant knew or should have known in negotiating for the purchase of this stock that it belonged to the estate of Harry W. Watson and that the plaintiff in said negotiations was acting as trustee. The failure to deliver the stock therefore imposed no liability upon the plaintiff to defendant as an individual. It cannot set off a claim for which he is not liable as an individual in an action brought by him in his individual capacity. Many authorities are collected in the briefs of counsel touching upon the question whether sufficient can be gathered from the correspondence to satisfy the statute of frauds. This question as well as the earlier one raised may be dismissed with the observation that our conclusion on the point last decided is controlling.

The judgment is affirmed.

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


author: Fellows, J.

text:
    CITY OF LANSING v. JENISON.
    1. Eminent Domain — Municipal Corporations — Alleys—Validity op Charter — Practice.
    In proceedings by the city of Lansing to condemn land for a public alley, it is not necessary for an abutting owner whose land is to be taken to wait until the assessment is levied before raising the question of the validity of the city charter under which the proceedings are had.
    2. Same — Lansing Charter — Construction.
    Where the proceedings for the condemnation of lands by the city of Lansing for alley purposes, and the assessment to be made to pay therefor, • are prescribed by the charter of the city in specific language, such provisions control rather than general provisions found in another section having reference to streets, sewers, and alleys, since when the council acts it must act in accordance with the charter, and the specific provisions in reference thereto must control.
    3. Taxation — Permanent Improvements — Special Assessments —Benefits.
    Special assessments may be sustained only upon the theory that the property assessed receives some special benefit from the improvement differing from the benefit to the general public.
    4. Eminent Domain — Alleys—Public Necessity.
    Under article 13, § 1, of the Constitution, private property may not be taken for the opening of a public alley except the public necessity therefor be found by the jury.
    5. Same — Lansing Charter — Constitutional Law.
    Section 188, chap. 13, of the charter of the city of Lansing, providing “If the proposed improvement shall be the opening, widening, altering, extending or vacating of an alley, the expense of taking private property therefor, including the cost of the proceedings, and the compensation and damages to be paid, and the first cost in making such alley serviceable for use, shall be defrayed by the lands and property abutting thereon, and in such case it shall be the duty of the city council, by resolution, to determine the amount which each piece of land shall bear,” is unconstitutional, as it practically amounts to the taking of private property for a public use without compensation, in conflict with the 14th Amendment to the Federal Constitution.
    Certiorari to Ingham; Collingwood, J.
    Submitted April 19, 1918.
    (Docket No. 15.)
    Decided June 3, 1918.
    Condemnation proceedings in justice’s court by the city of Lansing against Frederick C. Jenison, Sophie S. Turner and others to acquire certain land for a public alley. From an award of the jury determining the necessity and fixing the damages, defendant Turner appealed to the circuit court. Judgment quashing the proceedings as to defendant Turner. Plaintiff brings certiorari.
    Affirmed.

      Joseph H. Dunnebaelce, City Attorney, for appellant.

      Cummins & Nichols, for appellee.
   Fellows, J.

The city of Lansing, acting under the provisions of its charter, seeks in this proceeding to acquire certain property for a public alley on block 101, in that city. Sophie S. Turner, an owner of a portion of the land sought to be condemned,- contests the proceeding. She insists that the provisions of the charter are invalid; that they conflict with the 14th amendment to the Federal Constitution; that they authorize the taking of private property for public use without compensation; and that the whole scheme of the provisions of the charter with reference to the opening of alleys contemplates and authorizes the confiscation of the private property of individual owners for a public use without compensation, and without due process of law. It does not seem to be controverted that the proceedings taken conform to the requirements of the charter; but the argument is directed to the validity of the charter under which the proceedings are had. The jury in justice’s court found the necessity for taking and fixed the damages.. Upon appeal the circuit court sustained Mrs. Turner in her contention and quashed the proceedings as to her. To review this action we allowed this writ of certiorari.

The validity of the charter provisions are properly raised in this proceeding. It is not necessary that Mrs. Turner wait until the assessment is levied before raising the question. She is not contesting the amount or validity of an assessment which may be levied upon her abutting property, but is questioning the right of the city to take from her the property in question. Her objections are not prematurely made.

Under the chapter of the charter entitled “Taking Private Property For Public Use,” being chapter 13, specific provision is made with reference to alleys, and specific provision is made with reference to streets and sewers, and these provisions, which are found in section 188, are radically different. With reference to alleys it is provided:

“If the proposed improvement shall be the opening, widening, altering, extending or vacating of an alley, the expense of tailing private property therefor, including the cost of the proceedings, and the compensation and damages to be paid, and the first cost in making such alley serviceable for use, shall be defrayed by the lands and property abutting thereon, and in such case it shall be the duty of the city council, by resolution, to determine the amount which each piece of land shall bear.”

: While with reference to streets and sewers the provision is as follows:

“If the proposed improvement shall be the opening, widening, altering, extending or vacating of a street or avenue, or the construction of any sewer, drain or ditch, the expense of taking private-property therefor including the cost of the proceedings, and the compensation and damages, shall be defrayed in whole or in part as the council'may determine, by the special assessment upon the lands and premises specially benefited by such improvement, in proportion to the special benefits accruing to each parcel. In such case it shall be the duty of the city council by resolution, to determine and describe a local tax district, which embraces all the lands, and premises which, in the opinion of the council, shall be especially benefited. Such resolution shall prescribe the percentage of the expense aforesaid, to be defrayed by special assessment on the lands and premises in said tax district.”

This radical- difference it will be noted, lies in the fact that as to streets and sewers, assessments are levied upon the lands especially benefited, while as to alleys the entire costs must be arbitrarily levied upon the abutting owners by the city council, without requiring the council to consider the question of benefits as between such abutting owners, and at the same time prohibiting the apportionment of any of such expense upon the public, no matter how great may be the public benefit as a result of the improvement.

But before considering the validity of the provision above quoted with reference to alleys we will consider the argument advanced by the city attorney, that all •the provisions of the charter must be taken into consideration to obtain the proper construction of the section in question,-and that other sections of the charter, when properly considered, relieve the provision from any question of unconstitutional taint. The argument is made that sections 202 and 250 eliminate this question from the case. We must consider the charter in its entirety, but it is quite doubtful if the general language found in other provisions can be substituted for the specific provisions here involved. In section 202 it is provided for the transmission to the council of certified copies of the proceedings in the condemnation case, and directs that:

“Thereupon the city council shall cause a special assessment to be made of the sum or sums awarded by the jury, and .the expense of said proceedings in pursuance of, and in accordance with the said resolution of the city council hereinbefore mentioned.”

Clearly this does not contemplate that the action of the city council shall be other than as directed and provided for in section 188. That section has already made provision for the apportionment of the assessment and there is nothing in this last quoted provision contemplating different action from that found in the former section. It is then.provided:

“The assessment shall be made, and the amount levied and collected, in the same manner as is provided in this charter for other special assessments.”

This must be taken as meaning no more than that the same machinery shall be used as for other special assessments, rather than that the specific provisions found in section 188 are eliminated and other provisions which may be found in the charter substituted for them.

Much is claimed for section 250 of the charter. This section provides:

“Pursuant to the order of the city council the assessors shall make an assessment upon all lands within the portion of the city so designated, of the amount of expense, in case of construction of sewers and drains or of the opening of streets or alleys in proportion as nearly as may be to the benefits which each shall be deemed to acquire by the making of such improvement, and in case of grading, graveling, paving and all other street improvements, shall be according to foot frontage, and shall make out an assessment roll in which shall be entered the names of persons and the description of the property assessed, and the amount assessed to each person respectively; and in case any lots or parcels of real estate shall belong to a nonresident, or the owner or owners are unknown, the same shall be entered accordingly, with a description of such lots or premises, as is required by law in assessment rolls made by supervisors of townships, with the amount assessed thereon, which assessment roll, shall be subscribed by them and returned within two weeks to the city council unless such time be extended by resolution of said city council.”

As already stated, it is quite doubtful if general language can be used to eliminate the specific language found in section 188 with reference to alleys, and the provision there found must be eliminated by something in the charter before we would be justified in overlooking its provisions. But by section 250, it appears that any assessment made by the assessors is tentative only, and by this and subsequent sections the final action on the assessment list is taken by the city council. When, therefore, the city council acts, it acts in accordance with the provisions of the charter; if the special assessment be one for streets or sewers, the provisions with reference to streets and sewers control; if with reference to alleys, the provisions with reference to alleys measure its power. While this provision of the charter in general language makes provision for the making of a tentative assessment the provisions of section 188, under which the city council gets its authority, in specific language limits the levy of the assessment for the cost of the alley to the abutting property, irrespective of how much the public is benefited by it, and permits an arbitrary apportionment of it upon such property irrespective of benefits.

We are constrained to hold that these provisions to which our attention has been directed by the learned city attorney cannot supersede the specific provisions found in the charter having application alone to alleys. The proceedings for the condemnation of lands for opening alleys, and the assessment to be made to pay therefor, are prescribed by the charter in specific language. The whole machinery is provided for and the manner and method to be used to accomplish the end are set forth in specific terms. The proceedings there provided for must be the foundation upon which the condemnation of defendant’s land must stand or fall. It is per force of the authority there granted the city council that this case was started, and, unless such authority has been validly granted to the city council, defendant may not be required to surrender her property, even for a public use.

It is the settled law that special assessments may be sustained upon the theory that the property assessed receives some special benefit from the improvement differing from the benefit that the general public enjoy. This is the foundation of the right to levy special assessments, and without such foundation the right must fail. That the private property of the citizen may not be taken for the opening of a public alley, except the necessity therefor — the public necessity — be found by the jury is settled by the Constitution of the State (art. 13, § 1). That the public have valuable rights in the alleys of the State, the recent decisions of this court in Village of Manchester v. Clarkson, 195 Mich. 354, and Edison Illuminating Co. v. Misch, 200 Mich. 114, point out. When, therefore, the act under which the alley opening is authorized not only permits the assessment to be made, without considering the question of benefits to abutting property, but also prohibits any assessment upon the public at large, irrespective of how much it may be benefited, such act does not square with constitutional requirements: City of Detroit v. Judge of Recorder’s Court, 112 Mich. 588. In this case this court had under consideration an act which required the assessment of at least one-half of the amount awarded as compensation upon the district fixed by the common council. It was held that the act was unconstitutional, Mr. Justice Grant, speaking for the court, saying:

“The legislature has no power to fix an arbitrary percentage of a public improvement to be imposed, upon a local assessment district, regardless of the benefits received.”

This case controls the instant case, unless we overrule it, which, in effect, we are asked to do. It is pointed out by counsel that the tendency of the court of last resort of the Nation has been to relax and modify the holding of that court in Norwood v. Baker, 172 U. S. 269, 281, and many cases which have that tendency have been called to our attention. Counsel has been most diligent and painstaking in his research. We have examined all the cases cited by him, and agree with him that the Norwood Case is now of quite doubtful authority. But this court did not base its holding in the Detroit Case on the Norwood Case; indeed, the Detroit Case was decided before the Norwood Case. The Detroit Case was a condemnation case and involved a statute of the State and its validity under the State Constitution. It was not necessary in that case, nor is it in this case, to determine any Federal question. Neither in that case or in the instant case was. it, or is it, necessary to determine the question of whether due process was or is provided for. Even though the act there and the charter here provide due process, still that act failed and the charter here must fail, if by the provisions there and here private property of the individual was or is taken for a public use without compensation. This infirmity is more marked in the provision here under consideration than it was in that case. Here the whole scheme of the charter contemplates the taking of the private property of the individual for a public use and by an arbitrary, unbending, unyielding, requirement of the charter compels payment by the abutting owners, not only of the damages for such taking, but also the expense of the proceeding, together with the first cost of making it serviceable for use. In its practical application it takes private property from a set of individuals for a public use and then requires the same set of individuals to pay, not only the damages awarded them but also the expenses, together with the cost of making the property serviceable for public use. It would be difficult to imagine a more patent case of taking private property for a public use without compensation than the one now before us. We have no disposition to overrule the Detroit Case. It was correctly decided.

The judgment of the circuit court dismissing the proceedings as to Mrs. Turner must be affirmed.

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


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    CRAMER v. WEST BAY CITY SUGAR CO.
    1. Master and Servant — Workmen's Compensation Act — Findings of Industrial Accident Board — Evidence—Fraud.
    In proceedings under the workmen’s compensation act the burden of proof is upon the plaintiffs, but where there is testimony to sustain the finding of the industrial accident board, the Supreme Court will not disturb such finding in the absence of fraud.
    2. Same — Evidence—Preponderance.
    Whether the testimony introduced by one side preponderates over that of the other is exclusively for the determination of the board.
    3. Same — Personal Injuries — Aggravation of Original Injury— Proximate Cause.
    Where plaintiff’s decedent received an injury to his leg, while in defendant’s employ, in November, .which caused him to be confined to the house for some time, and on a trip down town on Christmas Eve his crutch slipped and he fell, considerably aggravating the original injury, necessitating an operation in the hospital, from which he never rallied, the original injury held, to be the proximate cause of his death, rendering the employer liable under the workmen’s compensation act.
    4. Same — Dependents—Evidence—Sufficiency.
    Evidence held, sufficient to justify the finding of the board that the father, mother and young sister were entitled to compensation as partial dependents, although the evidence as to the amount furnished by deceased to plaintiffs was not as definite as it should have been.
    5. Same — Compensation, Computation of — Irregular Employment.
    Where decedent was employed by defendant on an average but 74 days during the year, the employment was seasonal and compensation to dependents should be computed as provided in the fourth classification of section 11, pt. 2, of the workmen’s compensation act. AndrejwsJci v. Wolverine Coal Co., 182 Mich. 298.
    Certiorari to Industrial Accident Board.
    Submitted April 3, 1918.
    (Docket No. 25.)
    Decided June 3, 1918.
    Rehearing denied July 18, 1918.
    Peter Cramer and others presented their claim for compensation against the West Bay City Sugar Company for the accidental death of decedent in defendant’s employ. From an order awarding compensation, defendant and the General Accident, Fire & Life Assurance Corporation, Limited, insurer, bring certiorari.
    Reversed, and remanded.

      Arthur Sauve, for appellants.

      W. A. Collins, for appellee.
   Fellows, J.

Deceased, John Cramer, was in the employ of defendant sugar company as a fireman during its “campaign” in the fall of 1916. While so employed, using a heavy iron bar weighing about 90 pounds, in breaking clinkers in one of the furnaces, he received an injury to his right hip or leg by the slipping of the bar and its striking him with some force. This occurred in the fore part of November, but the exact dáte is. in dispute, as is also the length of time he continued to work thereafter. It appears, however, that he became unable to pursue his employment and remained indoors until Christmas eve when he went down town to have his hair cut, accompanied by his brother and a friend. When on the street his. crutch slipped and he fell. It is to be inferred that he either received a fracture at or about the place of injury, or that the injury was considerably aggravated by the fall. He does not appear to have received the attention and treatment that his condition required, and not until January 11th following was he taken to the hospital, where he was operated upon on the 13th, but did not recover from the shock and died the same day. The board found the injury received while in the employ of defendant sugar company was the proximate cause of his death and made an award for partial dependency in favor of plaintiffs, who are his father, mother, and young sister, using the so-called “300 rule” in making the computation.

Testimony was introduced tending to show that deceased was lame and used a cane prior to his employment by defendant, but this was denied by other witnesses ; members of his family explain that he had an ingrowing toenail, and when he put on a new pair of shoes this caused whatever appearance of lameness he exhibited, and that he had always been in good health before the accident. The credit of the testimony was for the board. It is true, as claimed by the defendant, that the burden of proof was upon the plaintiffs. But where there is testimony in the record to sustain the finding of the board we cannot disturb such finding in the absence of fraud. Whether the testimony introduced by one side preponderates over that of the other is. exclusively for the determination of the board. We have "had occasion to consider cases of an accident followed by a subsequent injury, where the original injury was held by the board to be the proximate cause of the disability for which compensation was awarded. Cook v. Charles Hoertz & Son, 198 Mich. 129; Reiss v. Manufacturing Co., ante, 90, and in each case affirmed the finding of the board. The instant case is not sufficiently unlike these cases to require further comment.

Deceased was unmarried. There is much controversy over the question of the dependency of the plaintiffs. Testimony was introduced showing that they occupied a house owned by a brother of deceased, the rent of which was admitted to be worth seven dollars per month; that the father owned a farm of 40 acres; that the parents sold butter and milk; that deceased was usually well' dressed, owned an automobile and took a young lady whom he was engaged to marry to shows and entertainments, and that his wages were not large. On the other hand, it was testified that the farm was heavily encumbered, did not produce enough to pay taxes and interest; that the father was injured in an accident, seven or eight years previous and had since been unable to work; that deceased bought all the groceries and gave his parents cash for their necessities; that he clothed the little sister, and the mother positively testified that he had supported them since he was 15 years of age. While the exact sum furnished to plaintiffs by the deceased was not made as definite as it might have been, or should have been, we are not persuaded that we can say that there is no evidence upon which the board could bqse its conclusion of partial dependency or the weekly amount thereof found by it.

Defendant did not operate its plant the entire year. Its “campaign,” which is conducted in the fall, appears from this record to average some 60 odd days. The parties seem to agree that firemen are employed a few days longer and it is agreed that they average 74 days’ work during the year. The employment in defendant’s plant may be termed seasonal, and the case falls squarely within Andrejwski v. Coal Co., 182 Mich. 298. That case so fully discusses the four classifications found in the statute that it is only necessary to refer to it. The compensation in the instant case should have been computed under the fourth classification in accordance with the holding in that case.

The award will be vacated and the case remanded for further proceedings not inconsistent with this opinion.

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


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      In re MARX’S ESTATE. MARX v. MORRISON.
    1. Wills — Evidence—Sufficiency—Directed Verdict.
    On appeal from proceedings to contest the validity of a will, evidence examined, and held, to justify the court below in directing a verdict for proponents.
    2. Same — Evidence—Court Piles — Appeal and Error.
    In proceedings to contest a will, the court below properly rejected certain records and files of the circuit and probate courts of Wayne county, offered in evidence by contestant, where, if everything claimed for them by contestant is granted, the most that can be said is that they establish her as a creditor of decedent.
    3. Same — Beneficiaries.
    It is for testator to select the objects of his bounty, and not for courts and juries.
    4. Evidence — Trial—Hypothetical Questions — Physicians.
    In proceedings to contest a will, a hypothetical question, propounded to a physician, which assumed facts not testified to, and omitted material facts which had been testified about, was properly rejected by the court below.
    5. Vexatious Appeals — Damages—Statutes.
    On appeal of contestant from the judgment of the court below sustaining the validity of the will, where the record shows that the contest of the will was entirely without merit and had no basis either in law or in fact, the Supreme Court will affirm the judgment and award $100 damages against contestant for the vexatious appeal, under section 13705, 3 Comp. Laws 1915.
    Error to Wayne; Des Voignes, J., presiding.
    Submitted April 12, 1918.
    (Docket No. 72.)
    Decided June 3, 1918.
    John J. Marx and others presented for probate the last will of Frank Marx, deceased. The will was allowed in the probate court, and Gracie Marx Morrison appealed to the circuit court. Judgment for proponent on a directed verdict. Contestant brings error.
    Affirmed.

      James H. Pound, for appellant.

      Allan P. Cox, for appellee.
   Fellows, J.

The testator, Frank Marx, an unmarried man, executed the will in question some eight months prior to his' death. He was 49 years old at the time of his decease. The will contained several specific bequests to relatives, friends, employees, and for religious and educational purposes, a specific devise of his interest in the Marx homestead to his sister and her daughter, and left the residue to his two brothers, John and William, and his two sisters, Emma and Henrietta, with the proviso that William’s heirs should hot take his share if William did not survive testator, but the heirs of the others should take by right of representation. Contestant is the daughter of Joseph Marx, a deceased brother of testator. She contests this will on the grounds of mental incapacity, undue influence, and:

“Third: Because the deceased forgot the existence of this contestant at the time he made the paper writing, and being afflicted with as many boils as Job, the torture of which perverted his mind.
“Fourth: Because the paper writing offered as the last will and testament of Frank Marx, deceased, was the produce of prejudice and a lack of comprehension of the laws of this State and of God’s as well.
“Fifth: Because the paper writing offered in evidence to this court is the result of prejudice and fanaticism wholly ungrounded in fact and unjust.
“Sixth: If deceased entertained any prejudice to this contestant it was the result of an unjustified wrong he did contestant’s father without cause or excuse at a time contestant was a babe in arms.” * * *

The will was admitted to probate by the probate court of Wayne county and contestant appealed. Upon the trial at the' circuit some 23 witnesses were sworn by her, and three and one-half days consumed in putting in her proof, at the close of which the court directed a verdict sustaining the will; contestant .brings the case here.

The witnesses called by contestant establish beyond question, either by their testimony given on direct or cross-examination, that Mr. Marx, the testator, was a man of affairs, successful in a high degree as a business man, leaving an estate said to be worth in excess of a hundred thousand dollars; that he was liberal to a fault, traveled extensively, and was competent to successfully conduct his large business affairs and to make the will in question. No witness testified to a single act in his entire life showing, or tending to show, any want of mental capacity, any insane delusions, any impairment of mental vigor, or any fact justifying the submission of the question of mental capacity to the jury.

Nor are we able to find in this record any evidence having the slightest tendency to establish undue influence. Indeed, the testimony of contestant herself refutes the claim that he was a man who could be influenced to do anything contrary to his own inclination. A few excerpts from her testimony demonstrate this. She testifies:

“Q. Mrs. Morrison, was your uncle a man determined—
“A. He was.
“Q. He was?
“A. Yes, sir.
“Q. He was not easy-going?
“A. No, sir.
“Q. Pretty hard man to control if he made up his mind?
“A. I should judge he was.
“Q. Very difficult man to influence, wouldn’t you say so?
“A. I should judge he was. * * *
“Q. But he was a man, in his life there, as you saw, who was in the habit of giving orders rather than taking them, isn’t that true?
“A. He gave orders, yes.
“Q. The rest of them did what he wanted them to cio ? ^ ^
“A. I never saw him around any one who could get him to do anything.”

Upon the argument much time was devoted by counsel to the claim that deceased had an unnatural hatred for contestant. Much space in the brief is devoted to this subject. It ought not to be necessary for us to say that cases must be disposed of on the record as made, and failure of proof on a given subject may not be supplied by the unsupported statements of counsel. It is one of the functions of counsel to draw legitimate inferences from the facts proven; but it is not one of the functions of counsel to enlarge the record by voluntary and unsupported statements of facts in the brief, statements setting up facts which have been testified to by no witnesses, nor properly inferable from those established. When we turn to' the record we find no evidence of an unkind word by deceased to, or of contestant, or by any member of the Marx family. Contestant herself testifies that she was always treated pleasantly and kindly whenever she went there. When deceased returned, from Europe he remembered her with a souvenir of his trip, bought abroad; on one occasion when she contemplated building he offered to assist her in procuring the money; some five months after the making of the will in question hé contracted with contestant and her mother to buy 20 acres of land received by them from the estate of Marx senior, and which was bringing them at the time an income of from 40 to 60 dollars per year, agreeing to pay $10,000 for the property and making a substantial down payment; they had talked with him about this property before; while no provision was made for her in the will he had taken out insurance upon his life to the extent of $500 in her favor, which she refused to receipt for and accept after his death. In the final analysis she complains because the members of the Marx family have not visited her, and when she met them she had to speak first. Her husband, called by her as a witness, testified on direct examination, in answer to questions propounded by her counsel:

“Q. When John Marx talked of your wife what name did he apply to her?
“A. Gracie.
“Q. Gracie. Now, then, now, having answered that question, what was said by either himself or family— what opinion they had of Gracie?
“A. I always understood them that' she was all right.
“Q. Did he say so?
“A. Yes, he has; he has always said so to me.”

In the face of this record, the claim that this will was the product of an unnatural hatred entertained by the testator, or entertained by any member of the Marx family, and vented upon contestant by undue influence over testator is preposterous and without foundation.

In the will testator gave a bequest to the children of his deceased brother, Nicholas, and made the provisions with reference to the homestead we have referred to; but to no other nephew or niece did he give anything. How many there were does not appear, but that there were others than contestant the record discloses. It was for the testator to select the objects of his bounty. His to give and his to withhold. What nephews or nieces, if any, should enjoy that bounty was for his determination, not for courts and juries.

But it is urged that testimony was excluded by the court which, if received, would have sustained contestant’s claim. It therefore becomes necessary to examine the tendered proofs. The testimony went far afield and took an exceptionally wide range; but contestant insists that some was rejected which has a bearing on the issues in the case. The most strenuous insistence grows out of the refusal of the court to receive certain records and files of the circuit and probate courts of Wayne county. These are riot made a part of the bill of exceptions and the statement as to what these cases were about is not as clear as might be desired. One of these files, and this one seems to have been received, although its materiality does not become apparent, was the divorce proceedings between contestant’s mother and a man named Sutherland, in which the decree was granted in 1899. Another was a contest by contestant’s mother over the admission of the will of her father, Joseph Marx, to probate; this appears to have been in 1896 or 1897, and the testimony shows the contest was settled. Another, was the contest upon the will of decedent’s mother. Another, counsel claims, was over the custody of contestant between her mother and grandmother; the record is not clear as to this case. Another, was a suit brought by William Marx and Nicholas Marx against deceased and others. Another, was a suit brought in 1908 by contestant’s mother, as administratrix of Joseph’s estate and .as guardian of contestant, against deceased and others. We should not, by considering the assignments of error covering the rejection of these files, be regarded as approving the manner of submitting these questions to this court. The bill of exceptions should show what these rejected documents are in order that we may better understand their materiality. These files could scarcely be expected to evidence more than the claims of the parties, but if, by the wildest stretch of imagination, we accept everything claimed for them by counsel, that they show a withholding or attempted withholding from contestant of anything from her grandmother’s estate, or her father’s estate, which rightfully belonged to her, they do not have any tendency to prove undue influence in procuring the will in question, or mental incapacity of the testator at the time he executed it, either as a result of mental decay or unnatural hatred amounting to monomania. If we take everything claimed for them by counsel, that they show a withholding from contestant of anything rightfully hers, the most that can be said is that they establish her as a creditor of deceased. If so, the courts have been, and, unless barred by lapse of time, still are open to her for the enforcement of her claim; this is not the proper forum for the adjustment of such claims. One is. not required to will his property to his creditors at the peril of having his will set aside. The court very properly rejected these files.

Contestant called a physician and propounded to him a hypothetical question. This question assumed facts which had not been testified to and omitted material facts which had been testified about, and was objected to on that ground. The objection was sustained; but the court indicated to counsel the proper lines along which he would receive such expert testimony. Instead of accepting such suggestion counsel retorted :

“Your honor, please, I have practiced law 42 years and I propose to play my own hand without any assistance.”

The court having properly ruled upon the question, and having properly indicated along what lines counsel might proceed, we cannot understand upon what theory a reversal should be ordered on this ruling.

We have examined all the other errors assigned. None of them possess any more merit than those discussed.

We have read this record containing 281 pages with care, and find between its covers no scintilla of evidence supporting, or tending in any way to support, the contest of this will. This contest is entirely without merit and has ho basis, either in law or in fact. As a vehicle for an unsuccessful attempt to discredit the memory of the deceased it has performed its function.

Section 13705, 3 Comp. Laws 1915, provides:

“Upon appeals from probate courts to a circuit court, and from the circuit courts to the Supreme Court, costs shall be paid by the appellant or appellee, as shall be directed by the court to which the appeal is made; and upon affirming any sentence; detérmination or decree, or upon the appeal being discontinued or quashed, the court may, in its discretion, award damages. for the delay and vexation caused by such appeal.”

This court has on occasions awarded damages for vexatious appeals. Campau v. Campau, 25 Mich. 127; Heath v. Waters, 40 Mich. 457; Snow v. McCracken, 107 Mich. 49. This should not be done except in plain cases. The contest in the instant case has been without merit from its inception. It has been heard in three courts, entailing large expense upon the estate with no substantial foundation for its beginning, and no basis for its continued prosecution. It is clearly within the purview of the statute.

The judgment of the court below is affirmed, with an award of $100 damages for the vexatious appeal,

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


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    LUELLEN v. NEW YORK LIFE INSURANCE CO.
    1. Insurance — Life Insurance — Tontine Policy — Surplus.
    Where insurance policies are tontine in character, statements as to the prospective surplus or profits will he regarded by the courts as estimates rather than definite promises to pay a fixed amount, and while this does not prevent insurer and insured from contracting for insurance in a definite amount, it does prevent the turning of a tontine policy into one for a fixed sum in case the surplus does not reach expectations.
    2. Same — Contract—Authority of Agent to Change Terms of Policy.
    Where defendant insurance company’s agent sent insured a letter with his policy containing a statement of a definite amount as the surplus of the policy at the end of the tontine period, held, that the terms of the policy could not be changed by the agent, the record affirmatively showing that he had no such authority.
    Error to Washtenaw; Kinne, J.
    Submitted April 18, 1918.
    (Docket No. 61.)
    Decided June 3, 1918.
    Assumpsit by Fannie Luellen and another against the New York Life Insurance Company on a policy of insurance. Judgment for plaintiffs on a directed verdict. Defendant brings error.
    Reversed, and remanded with instructions.

      Thomas A. E. Weadock (James H. McIntosh, of counsel), for appellant.

      John P. Kirk, for appellees.
    On May 11, 1897, defendant, a mutual life insurance company, executed at its New York office a policy of insurance upon the life of Albert G. Denmark, on the 20 payment life, 20 year accumulation plan, to which policy was attached the application therefor. It was one of 16 policies issued by defendant during that year on the same plan to men of the same age as Mr. Denmark. The application contained, among others, the following clause:
    “That in any distribution of surplus or apportionment of dividend,, the principles and methods which may be adopted by the company for such distribution or apportionment, and its determination of the amount equitably belonging to any policy which may be issued under this application, shall be and are hereby ratified and accepted.”
    The policy itself contained the following:
    “No agent has power in behalf of the company to make or modify this or any contract of insurance, to extend the time for paying any premium, to waive any forfeiture, or to bind the company by making any promise or making or receiving any representation or information. These powers can be exercised only by the president, vice-president, second vice-president, actuary or secretary of the company, and will not be delegated. * * . *
    “The company guarantees that the entire cash value of this policy at the end of the accumulation period shall be thirteen hundred twenty dollars, and in addition the cash dividend then apportioned by the company.
    “At the end of the accumulation period, the company will send the insured a written statement, setting forth the results under each of the above accumulation benefits.”
    The policy also contained an option to the insured to select and receive one of six accumulation benefits, the fifth of which was to receive the cash value and discontinue the policy. Mr. Denmark was then living at Big Springs, Texas, and the insurance was solicited by and procured through one E. J. Hadlock, an agent of defendant. While Mr. Denmark only knew what Had-lock told him as to his agency, the defendant admitted that he was its agent and produced the contract of agency. This contract contained the following provision :
    “It is agreed that said party of the second part shall have no authority on behalf of said party of the first part to make, alter or discharge-any contract, to waive forfeitures, to extend the time of payment of any premium, or to waive payment in cash, or to receive any money due or to become due to said party of the first part, except on applications obtained by or through him in exchange for conditional receipts to be furnished by said party of the first part, or on policies or renewal receipts (signed by the president, vice-president or actuary) sent to him for collection.”
    The agent sent to Mr. Denmark the policy of insurance accompanied by the following letter:
    “No. 2,521
    “C. F. Morehead, Joseph Magoff, K. C. Lackland,
    “President. Vice-President. Cashier.
    “State National Bank.
    “United States Depository.
    “El Paso, Texas, May 20, 1897.
    “Mr. A. G. Denmark:

      “Dear Sir: Enclosed please find your policy, the best policy that is written, just as I explained to you. Now if you die within twenty years your estate will receive all back that you have paid on the policy and $2,000 added to it; if you live to the end of twenty years, you will receive your choice of six benefits:
    “The first, $2,000 paid-up insurance and $110 annual income.
    “The second, paid-up insurance, $8,478.
    “The third, $2,000 paid-up insurance and dividend in cash, $1,314.
    “The fourth, $1,320 paid-up insurance and $1,314 dividend.in cash, and $39.60 a year.
    “The fifth, cash value, $1,320, and dividend in cash, $1,314; $2,634.
    “The sixth, annual income for life of $260.
    “I am yours,
    “E. J. Hadlock.”
    Thereafter, during the 20 year period Mr. Denmark paid the annual premiums as they fell due. He had borrowed money from the company so that the amount due on these loans equaled the amount of the reserve guaranteed in said policy. Shortly before the policy matured defendant caused a calculation to be made of the profits and surplus equitably belonging to said policy in accordance with' the principles and methods adopted by it for that purpose, and the amount so found was the sum of $746.66. There is no claim of fraud in this calculation, or that it does not correctly state the amount of surplus and profits apportionable to this policy under such principles and methods.
    Plaintiffs are the daughters and assignees of Mr. Denmark. Proceeding upon the. theory that the letter of Mr. Hadlock was a part of the contract of insurance they elected to accept the fifth option of cash value and asked payment of the sum of $1,314. Defendant tendered the sum of $746.66, which was declined. This suit was thereupon instituted and the said sum of $746.66 was tendered into court. The facts not being in dispute, both parties moved for a directed verdict, plaintiff for the sum of $1,314, with interest, defendant for a verdict for plaintiff for the amount of the tender. Plaintiff’s motion was granted and defendant sued out this writ of error.
   Fellows, J.

(after stating the facts). This record disclosed and it should be obvious that while an insurance company may calculate its reserve with certainty, its prospective surplus or profits over a future period of years would be contingent upon the happening of so many uncertain events that its amount would be highly problematical. The amount apportionable to a policy of any class would be so dependent upon the number of lapses, the rate of interest its investments would earn, its expense of doing business, its losses, taxes, adverse or favorable legislation, its volume of business, and so many other contingencies as to take any approximation of such profits into the realm of conjecture, based to a certain extent upon past experience, but always with the uncertainty of the future. Courts have quite uniformly had this situation in mind in considering tontine insurance, or insurance partaking of a tontine character, and have realized and understood that what the future earnings of a company will be is a matter of estimate, rather than mathematical calculation, and that figures of future earnings will generally be treated as estimates rather than specific sums agreed upon in this class of insurance. Thus it was said in Untermyer v. Insurance Co., 128 N. Y. App. Div. 615, a case not unlike the present one:

“The whole scheme was essentially speculative and problematical. The amount to be apportioned depended upon the number of survivors, for only those who survived were to participate in the distribution; it depended upon the cost of administration of the business of the company properly apportioned to the policy during the period in which it ran; it depended upon the interest which could be earned on the investment of the premiums paid in during that period. Upon such factors there could be no more than a guess, based upon previous experience, as to the result at the end of the period. The company could promise, as it did promise, to pay a fixed and definite sum upon the death of the insured, because experience had shown the average rate of life of a person at the age of the insured, experience had shown the rate of premium which would protect the company and insure the payment of the amount agreed upon. But when, attached to the definite promise of insurance in a definite sum was given the speculative hope of a participation in problematic savings and earnings to the problematic survivors of a given year of insurers, the proposition upon its face became incapable of accurate solution.”

In this case there was given the insured by the agent of the company, upon a blank furnished by the company, an illustration said to be based upon the past experience of the company as to the cash value of the policy at maturity. The figures were held to be an estimate and not a binding agreement to pay that sum.

In Langdon v. Insurance Co., 199 N. Y. 188, the separate paper was headed “special contract.” Like the Untermyer Cuse it stated the amount of the prospective surplus; but the court declined to permit recovery on it, holding that the policy controlled, Mr. Justice Hiscock, speaking for the majority of the court, saying:

“Therefore, it seems to me that on this proposition the appellant did not establish his case; that the contract did not on its face purport by guaranteeing a fixed amount of surplus to overthrow the very fundamental principle of tontine insurance that a policyholder at the end of his period should get a cash payment dependent on what had happened during that period to and concerning other associated policyholders, but rather expressed his share to be estimated and dependent on such contingencies, and, therefore, there was no variance between it and the policy in this respect.”

In Keithley v. Insurance Co., 271 Ill. 584, it was sought to recover, in an action for fraud and deceit, upon the representations that the surplus on the policy, together with the legal reserve, would amount at the end of the period to $6,000. The plaintiff was denied recovery, the court saying:

“The statement that the defendant would pay $6,-000 at the end of twenty years was no more than a promise. The statement that the surplus of the policy, added to the reserve, would amount to $6,000 was no more than a prophecy, — the expression of an expectation. The statement of a thing in the future, to be a fraudulent misrepresentation, must amount to the statement of a fact. The statement that a particular article will bear a certain strain or sustain a certain weight; that a machine will do certain work; that land will produce certain crops, or the like, although future in form, refers to the suitability or capacity of the article or machine for the proposed purpose, or the character or fertility of the soil or the possession of the attributes which will produce the stated results, and amounts to a statement of an existing fact. The statement here complained of is not of that character.”

This court, in the case of O’Brien v. Assurance Society, 173 Mich. 432, had before it a policy of insurance, tontine in character, to which was attached a separate piece of paper upon which recovery was sought. It was held that the figures in the separate paper constituted an estimate as to the amount of the surplus, and not' an agreement to pay the amount therein stated. In that case Mr. Justice Stone, who wrote for the court, pointed out that the cases of Timlin v. Assurance Society, 141 Wis. 276, and Equitable Society v. Meuth, 145 Ky. 160, which are relied upon in the instant case, were clearly distinguishable.from the case before the court. In one particular the O’Brien Case differs from the present case, in that the separate paper was there admittedly issued with authority of the company, while here the company not only denies the authority of the agent to so bind it but also disclaims all knowledge of the paper until it was called to its attention just prior to the institution of suit. The doctrine of the cases discussed is supported in the following cases which are. quite like them on the facts: Williams v. Insurance Co., 122 Md. 141; Tourtellotte v. Insurance Co., 155 Wis. 455; Truly v. Insurance Co., 108 Miss. 453; Kaley v. Insurance Co. Neb.), 166 N. W. 256; Warren v. Insurance Co., 198 Mich. 342.

The tendency of these cases is to the effect that when the policy of insurance is tontine, semi-tontine, or ton-tine in its character, statements as to the prospective surplus or profits will be regarded as estimates, 'rather than definite promises to pay a fixed amount. This does not prevent insurer and insured from contracting for insurance in a definite amount, but does prevent the turning of a tontine policy into one for a fixed sum in case the surplus does not reach expectations.

But the record discloses not only a want of any testimony showing or tending to show any authority upon the part of the agent Hadlock to change the contract of insurance by the letter he wrote, but it also affirmatively shows that he had no such authority. In Fisk v. Insurance Co., 198 Mich. 270, this court, speaking through Mr. Justice Brooke, said:

“It is elementary that the powers possessed by agents of insurance companies, like those of agents of any other corporations, are not governed by any individual principle, but are to be interpreted in accordance with the general law of agency. A different view may not be .applied to a contract of insurance than is applied to other contracts.”

In Quinlan v. Insurance Co., 133 N. Y. 356, it was said:

“But where the restrictions upon an agent’s authority appear in the policy, and there is no evidence tending to show that his powers have been enlarged, there seems to be no good reason why the authority expressed should not be regarded as the measure of his power.”

See, also, Barry & Finan Lumber Co. v. Insurance Co., 136 Mich. 42; Porter v. Home Friendly Society, 114 Ga. 937; Travelers’ Ins. Co. v. Myers & Co., 62 Ohio St. 529.

In the instant case the agent Hadlock was not clothed with either the express or apparent authority to change the policy of insurance issued by the company, or to enlarge the liability of the defendant. That liability was fixed by the contract between the parties, not by the letter written by Mr. Hadlock.

It follows that the judgment must be reversed. The case will be remanded to the circuit court for the county of Washtenaw with instructions to render judgment for the amount of the tender. The defendant will recover costs of both courts.

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


author: Fellows, j.

text:
    PERDEW v. NUFER CEDAR CO.
    1. Master and Servant — Workmen’s Compensation Act — Course of Employment — Mistake—Admissions. _
    In proceedings under the workmen’s compensation act, where defendant’s report of the accident to the industrial accident board was made under a misapprehension of the facts, but after learning the actual facts it entered into a contract with the employee for compensation, continuing in the agreement the cause of the accident set forth in the report, held, that the board was justified in treating such action as an admission that the accident arose in the course of deceased’s employment.
    2. Same — Course of Employment.
    Where deceased, a fireman in defendant's employ,, with other employees, worked overtime in an effort to get the new factory started, the overtime work being different from the day work, evidence that the employees turned in and helped each other, and that deceased, on the night of the accident, first helped the blacksmith until his job was completed, and then helped another employee, when he received his injury, held, sufficient to sustain a finding of the board that the accident arose out of deceased’s employment.
    3. Same — Evidence—Expert Witnesses — Finding of Board— Conclusiveness.
    Where the finding of the industrial accident board that an accident to deceased while in defendant’s employ was the cause of his death was supported by the testimony of one of the attending physicians, although disputed by another physician, such finding, in the absence of fraud, is conclusive, the board being the judge of the credibility of the witnesses, medical as well as lay.

      See notes in E. R A. 1916A, 23; L. R. A. 1917D, 80.

      Certiorari to Industrial Accident Board.
    Submitted April 16, 1918.
    (Docket No. 89.)
    Decided June 3, 1918.
    Lettie Perdew presented her claim for compensation against the Nufer Cedar Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Ball & Garvin (Thomas, Shields & Silsbee, of counsel), for appellant.

      Myron H. Walker, for appellee.
    Plaintiff is the widow and dependent of James K. Perdew. For a number of years next preceding his death Mr. Perdew was in the employ of defendant as fireman. Its plant had been located at 'Whitehall, but shortly before the accident it erected a plant at Marquette. Mr. Perdew and other employees went there with the company. The record fairly discloses that although the plant was operated daytimes the details of its installation were not fully completed, and some of the employees worked evenings getting it in shape for efficient operation. Deceased was one of those so working on the evening of Thursday, October 26, 1916. That evening he worked in the blacksmith shop on a defective valve until nearly ten. Another workman, named Kittridge, also worked that evening; he was repairing a chain to the conveyor in another building. They were boarding at the same place as their families had not moved to Marquette. After deceased had finished his work on the defective valve he went to the building where Kittridge was working. Kittridge had not quite finished his work and deceased turned in to help him. In helping to fasten the links of the chain together he pinched his finger, causing a blister to form. Sunday evening following, deceased developed considerable fever and a physician was called. It appeared that infection had resulted and deceased was sent to the hospital the following day. Four successive operations were had for the removal of pus; a recurrence of pus accumulation having resulted after each of the first three. It was thought the fourth was successful as the incision granulated and healed. He remained at the hospital until December 15th. December 19th another doctor was called and he found him suffering from acute inflammatory rheumatism, and directed his return to the hospital, where he remained until his death, December 29th.
    On November 13th defendant, by its second vice-president, reported the accident to the industrial accident board, giving the cause of the accident as “slight burn.” On December 4th, the same officer, acting for the company, entered into an agreement for compensation with deceased, said agreement stating “injured man was burned while at his work,” etc., and compensation was paid deceased under this agreement for four weeks. After his death, plaintiff made claim for compensation under the terms of the act, resulting in an award to her by the committee of arbitration and the full board.
   Fellows, j.

(after stating the facts). It is first urged that the accident to deceased was not received in the course of his employment; that what deceased did was to assist his fellow workman complete his job so that they could go home together; that he was engaged in a friendly act oútside his employment; and that the case falls within Spooner v. Detroit Saturday Night Co., 187 Mich. 125, and kindred cases. There is much testimony to support this theory of the defendant, but there is also testimony in conflict with it. The board seems to have placed considerable reliance on the report of the accident made by defendant to it. Reck v. Whittlesberger, 181 Mich. 463. Defendant insists that this report was made under a misapprehension of the facts, and that inasmuch as it is established undisputedly that the accident did not occur as therein stated, but is admitted and proved to have happened in another way, the report should be given no force. It is unnecessary for us to determine whether, under the circumstances and the admitted facts, any force should be given this report, because it appears from the testimony of the officer who made it, and who also executed the agreement for compensation, that he visited the deceased at the hospital before he executed the agreement and then learned the manner in which deceased received the accident. When he entered into the agreement he did so under no misapprehension, but with full knowledge of the actual facts, but continued in the agreement the cause of accident set forth in the report; he says:

“But while our reports had been on account of burn we did not change the report, we just made it out that way. Thought it was burn in the first place and continued that way.”

It is highly probable that he then regarded his company liable under the actual facts of the accident, which were then known to him. This admitted liability for the accident and agreement to pay compensation was before the board, and it had the right to treat it as an admission that the accident arose in the course of deceased’s employment. Estate of Beckwith v. Spooner, 183 Mich. 323; Brown v. George A. Fuller Co., 197 Mich. 1.

But there was affirmative proof from the witness Kittridge that they were all at work getting the factory started, and that “it was the custom, and if one got finished first he would turn in and help the other.” Deceased worked during the hours the plánt was running as.fireman, but the evening work was such as was incident to getting the new plant in successful •operation, and on this particular occasion deceased had been helping the blacksmith; the men who worked nights were apparently old employees and were trusted to turn in their own time.

When we take into consideration that the company, with full knowledge of the circumstances of the accident, entered into an agreement for compensation; that the men were all helping to get the new factory started, and working overtime with this object in view; the testimony of Mr. Kittridge, as to the custom of turning in and helping each other; the fact that deceased first helped the blacksmith until his job was completed, and then helped Kittridge until his job was finished; when these things are all considered, with the surrounding circumstances, we cannot say that there was no testimony before the board that the accident arose out of deceased’s employment.

Defendant also insists that the accident was not the cause of the death and therefore it is not liable. But upon this branch of the case there is a sharp conflict between the testimony of the physcians. The one who performed the four operations and the one assisting in three of them seem quite positive in their belief that the fourth operation entirely eradicated all infection from the patient’s system, and that his death from rheumatism was the result of the recurrence of that disease with which he had been afflicted on occasions before the accident. On the other hand, the physician who treated him during the last ten days of his life was of the opinion that the rheumatism was caused from a secondary infection as the result of the local one, and that the death was the direct result of the injury and the resulting infection. Each of the physicians supports his theory with considerable plausibility. The industrial accident board was the trier of the facts. Its findings of fact, if supported by any competent testimony, is conclusive in the absence of fraud. It is the judge of the credibility of witnesses, medical as well as lay. Deem v. Paper Co., 189 Mich. 655; Vogeley v. Lumber Co., 196 Mich. 516; Homan v. Power Co., 200 Mich. 206. The instant case upon this question is not dissimilar to these cases, nor to Fitzgerald v. Motor Co., 187 Mich. 660; Dove v. Leather Co., 198 Mich. 132; Blaess v. Dolph, 195 Mich. 137; Grove v. Paper Co., 184 Mich. 449.

We find no reason to disturb the award and it is affirmed.

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


text:
    McBRIDE v. JACOB.
    1. Equity — Practice—Bill—Averments Showing Jurisdiction —Amount in Controversy.
    On a bill to restrain defendants from trafficking in bottles belonging to plaintiffs and bearing tbeir trade name, in violation of Act No. 164, Pub. Acts 1905 (2 Comp. Laws 1915, § 7404 et seq.), where the bill does not allege that the amount in controversy exceeds the sum of $100, the court should not dismiss upon that ground, the statute, section 12301, 3 Comp. Laws 1915, not requiring the bill to show the amount involved.

      2. Same — Motion to Dismiss — -Demurrer.
    Under the present practice the motion to dismiss is the substitute for demurrer under the former practice.
    3. Same — Constitutional Law — Definiteness of Objection — Motion to Dismiss.
    A motion to dismiss on the ground that “Act No. 164, Public Acts of 1905, referred to in said bill of complaint, is unconstitutional, null and void in that it contravenes the Constitution of the State of Michigan and the Constitution of the United States of America and the amendments thereto,” is too indefinite to apprise the court of the real objection.
    4. Same.
    The rule is well settled that the particular provision of the Constitution, which it is claimed an act offends, must be pointed out.
    Appeal from Wayne; Hally, J.
    Submitted April 16, 1918.
    (Docket No. 100.)
    Decided June 3, 1918.
    Bill by Edward McBride, Charles M. Earl, and Daniel J. Pollard, copartners as McBride, Earl & Pollard, against Max Jacob, Ben Jacob, Samuel Jacob, and William Jacob, copartners as M. Jacob & Sons, to restrain the traffic in bottles, etc., bearing plaintiffs’ registered trade-name. From an order granting a motion to dismiss, plaintiffs appeal.
    Reversed, and remanded.

      Claude H. Stevens, for plaintiffs.

      Harry L. Weinstein and Ormond F. Hunt, for defendants.
   Fellows, J.

Plaintiffs, manufacturers of soda water and other beverages, seek by this bill to restrain defendants, junk dealers, from trafficking in bottles or other receptacles which belong to plaintiffs, and which have upon them plaintiffs’ trade-name, registered pursuant to the provisions of Act No. 164, Pub. Acts 1905 (2 Comp. Laws 1915, § 7404 et seq.). This act is, with slight additions and the elimination of a proviso in section 2, a re-enactment of Act No. 224, Pub. Acts 1901, which, in turn, with slight additions, is but a re-enactment of Act No. 36, Pub. Acts 1897 (2 Comp. Laws, § 5676 et seq.). The bill of complaint, while inartistically drawn, substantially avers plaintiffs’ compliance with the provisions of the act; their use of bottles and other receptacles in their business upon which appears such registered trade-name; the ownership of such bottles to be in plaintiffs, who sell only the contents, retaining title to the bottles and receptacles, many of which are not returned; that defendants are junk dealers and obtain many of such bottles and receptacles and traffic in them to the irreparable injury of plaintiffs. Injunction is sought.

Defendants move to dismiss the bill for various reasons: they argue in their brief:

(1) That the bill does not show that the matter in dispute exceeds $100.

(2) That the act in question is unconstitutional.

The trial court dismissed the bill on the grounds of the invalidity of the act and plaintiffs appeal.

1. This court has held, following the New York cases, from which State our statute with reference to the amount in controversy is taken, that the statute does not require the bill to show that such amount exceeds the sum of $100. Brassington v. Waldron, 143 Mich. 364.

2. The constitutionality of the act in question is assailed in the following language:

“Act Number 164, Public Acts of 1905, referred to in said bill of complaint, is unconstitutional, null and void in that it contravenes the Constitution of the State of Michigan and the Constitution of the United States of America and the amendments thereto.”

The present motion to dismiss is the substitute for demurrer under the former practice:

“A cause of demurrer should be so stated as to apprise the court of the real objection, and in case it is not, the party demurring can claim nothing under it.” Kellogg v. Hamilton, 43 Mich. 269.

The indefiniteness of the grounds of objection to the validity of this act becomes apparent when we contemplate that the Federal Constitution consists of 7 articles, having 24 sections, that the amendments are 17 in number, having 24 sections, while the State Constitution consists of 17 articles, having 221 sections. But it was said upon the argument that this court had disposed of similar questions on equally indefinite objections. In the case of Fitch v. Board of Auditors, 133 Mich. 178, the validity of a joint resolution of the legislature (Joint Resolution No. 4, Pub. Acts 1901, p. 382) was involved. This court there held that other reasons than those urged in the court below against the validity of the joint resolutions might be urged in this court. But in that case the joint resolution assailed provided for the proceedings then before the court, a proceeding by mandamus; unless the joint resolution was valid the court had no jurisdiction in the very case under consideration. It was a question of jurisdiction, and this court said:

“If the law is unconstitutional in attempting to confer judicial power upon respondent, the court below had no rightful jurisdiction to issue the mandamus complained of, and it is difficult to understand how even the consent of the respondent could have so conferred jurisdiction as to make the order complained of effectual for any practical purpose.”

The question being one of jurisdiction, the particular remedy then being pursued having been provided by the joint resolution, the court below and this court were both without jurisdiction unless the joint resolution was valid. The jurisdiction of the court over the subject-matter was an open one, and this court considered it, and in order to determine that question it of necessity passed on the validity of the joint resolution. But in the absence of the question of jurisdiction this court has not sustained so indefinite and general objections to the constitutionality of an act, where the attention of the court has been challenged to the language of the objections. The rule is well settled that the particular provision of the Constitution, which it is claimed the act offends, must be pointed out. 12 C. J. 785; Rose v. State, 171 Ind. 662; Fitzpatrick v. State, 169 Ala. 1; Hudson v. Jennings, 134 Ga. 373; Roberts v. City of Evanston, 218 Ill. 296. This does not necessarily require that the number of the section and article be stated, but does require that the objection show, with reasonable certainty, the provision of the Constitution claimed to be offended.

It follows that the decree of the court below must be reversed. Defendants will have 15 days to answer. Plaintiffs will recover their costs in this court.

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


text:
    PETERSON v. FISHER BODY CO.
    Master and Servant — Workmen’s Compensation Aot — Limitation of Action.
    A claim for compensation under the workmen’s compensation act, for an injury to claimant’s eye, which resulted in the loss of the sight about four years later, made less than six months after the loss of the sight, was not seasonably made, the limitation of the statute beginning to run from the date of the accident and not from the date of the disability. CooTc r. Furnace Co., 200 Mich. 192.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.

      Certiorari to Industrial Accident Board.
    Submitted April 19, 1918.
    (Docket No. 59.)
    Decided June 3, 1918.
    William J. Peterson presented his claim for compensation against the Fisher Body Company for injuries sustained in defendant’s employ. From an order awarding compensation, defendant and the Employers’ Liability Assurance Corporation, Limited, insurer, bring certiorari.
    Reversed, and order vacated.

      Frederick T. Witmire, for appellants.

      Van H. Ring, for appellee.
   Fellows, J.

Plaintiff, an employee of defendant Fisher Body Company, received an accidental injury arising out of and in the course of his employment on either the 20th or 27th day of September, 1912. The accident consisted in getting pieces of steel in his left eye. His notice of claim for compensation is dated March 23, 1917, and was received by the employer and the industrial accident board a few days later. The plaintiff claims not to have lost sight in the injured eye until less than six months before making the claim for compensation. It was not removed until June 29, 1917. The case was heard by the board before this court decided the cases of Cooke v. Furnace Co., 200 Mich. 192; Kalucki v. Foundry Co., 200 Mich. 604; Dane v. Traction Co., 200 Mich. 612, and Schild v. Railroad Co., 200 Mich. 614. Consistent with its holding in these cases the board held that the six months' period given the employee to make claim for compensation (2 Comp. Laws 1915, § 5445) did not begin to run until the employee definitely learned that he had lost the sight of his eye. In the cases cited we did not agree with the construction placed upon this section of the act by the board, but held that while the words “accident” and “injury” are not synonymous, that the accident produced the injury and in point of time they were concurrent. We therefore held in each of the cases cited that a claim for compensation made by the employee more than six months after the happening of the accident was not seasonably made, that the statute began to run from the date of the accident, and vacated the award. The present case is ruled by these cases. The claim for compensation in the instant case was not made until about four and one-half years after the accident— after the injury.

The award must be vacated.

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