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there is also testimony justifying the finding that it was not. There is testimony in this record from which the board was justified in finding as it did that the accident arose out of and in the course of plaintiff's employment with the defendant.
The physician of the company and the one of plaintiff's selection both advised an operation for the hernia. Such operation is not attended with danger to life or health, and it appears to be undisputed that it affords the only reasonable prospect of restoration of plaintiff's capacity to labor at his trade, that of a carpenter. Without it he may be able to labor at such light occupation as the condition of his feet and ankles will permit, but he cannot do heavy lifting as his trade of carpenter requires. During all the time he has refused and still persists in his refusal to submit to the operation advised by his own physician as well as the one in the employ of defendant. Plaintiff is an intelligent man, and whether such refusal is due to a defect of moral courage or not we are unable to say. The board did not find that his refusal was due to any ignorance or misunderstanding on his part and no such finding would be justified on this record. Under such circumstances the case is clearly distinguishable from Jendrus v. Detroit Steel Products Co., 178 Mich. 265 (L. R. A. 1916A, 381, Ann. Cas. 1915D, 476), Poniatowski v. Stickley Bros. Co., 194 Mich. 294, and Riley v. Mason Motor Co., 199 Mich. 233.
We appreciate the timidity with which the average person contemplates an operation, minor as well as major. But we also appreciate that in thousands of cases, operations, many of them of but minor degree, have restored incapacitated men to the army of wage earners, and put them in position to discharge their duty to their dependents, themselves and to society. We are impressed that under the undisputed evidence in the case it was the plaintiff's duty to accept the tendered operation. His unequivocal refusal to follow the advice and judgment of both physicians with reference to the operation relieved defendants from further activities in that direction, and, for the time being at least, absolved them from liability. As was said by this court, speaking through Mr. Justice KUHN in Kricinovich v. Foundry Co., 192 Mich. 687:
"Before the defendant is to be charged, in law or morals, with the duty to compensate him, the claimant should first discharge the primary duty owing to himself and society to make use of every available and reasonable means to make himself whole."
In both this case and that of Jendrus v. Detroit Steel Products Co., supra, this court quoted with approval the following language of Lord M’Laren in Donnelly v. Baird & Co., 1 B. W. C. C. 95:
"That if the operation is not attended with danger to life or health, or extraordinary suffering, and if according to the best medical or surgical opinion the operation offers a reasonable prospect of restoration or relief from the incapacity from which the workman is suffering, then he must either submit to the operation or release his employers from the obligation to maintain him."
In the Jendrus Case Mr. Justice STONE fully considers this question. That was a case of a major operation of a very serious character. The workman was an ignorant foreigner, who refused for some time to consent to the operation, but who finally did consent. Under all the circumstances of that case it was held that the refusal to consent to the operation was not an unreasonable one.
Applying then the rule announced by Lord M’Laren and adopted by this court to the facts of the instant case, we are impressed that plaintiff's refusal was unreasonable. The operation was not as serious a one as in the Jendrus Case. Indeed, the record discloses
that it was not a serious case of hernia. The operation is not attended with danger to life or health; could be performed by the use of either a general or local anaesthetic; the doctors agree that it is advisable, and it is not disputed that it is the only thing that can be done to effect a cure. Until the plaintiff submits to an operation, which should be at the expense of defendants, he is not entitled to compensation from them.
On September 27, 1917, when plaintiff received the injury here involved, he was receiving $7 for partial disability from the Bryant & Detwiler Company. From that date to the hearing of this case he continued to receive this amount per week. Notwithstanding this fact the board made an award against these defendants for the payment of $10 per week for the same period. So far as we are advised plaintiff is still drawing $7 per week from the Bryant & Detwiler Company and has this award for $10 per week against these defendants. Both injuries occurred while plaintiff was following his trade as a carpenter. His disabilities are disabilities to continue in that line of employment. The maximum of compensation for total disability fixed by the statute is $10 per week, 2 Comp. Laws 1915, $ 5439. It must be obvious that a man cannot be more than totally disabled. It should be equally obvious that he cannot receive compensation for more than total disability. Our statute does not provide for concurrent compensation. It fixes a maximum for total disability of $10 per week, and it cannot exceed that sum whether it is paid by one employer or by several.
The award will be vacated, and the case remanded for such proceedings as may be had not inconsistent with this opinion.
BIRD, C. J., and OSTRANDER, MOORE, STEERE, BROOKE, STONE, and KUHN, JJ., concurred.
In re BROFFEE'S ESTATE.
1. WILLS—PROBATE COURT-JURISDICTION-OBJECTION Not MADE GROUND OF APPEAL. An objection that the commission of the foreign notary,
before whom the petition for the probate of a will was sworn to, was not authenticated by a court of record, not having been made a ground of appeal from the order
of the probate court, was unavailable in the circuit court. 2. SAME-DETERMINATION OF INTESTACY No BAR TO WILL-STATUTES. Under 3 Comp. Laws 1915, § 13832, the determination of
the probate court in the original proceedings (183 Mich. 100) that deceased died intestate was not a bar to a later
proceeding to probate the will. 3. SAME-ELECTION OF REMEDIES-DEED OR WILL-ESTOPPEL.
Held, that proponents by ineffectually claiming that the
instrument now offered was a deed did not elect a remedy which prevents or estops them from now insisting it is
a will, if such is its legal purport and effect. 4. SAME.
An instrument testamentary in character, if executed with
the formalities required by the statute, is admissible to
probate as a will, although in form a deed. 5. TRIAL-CONDUCT OF COURT--ATTORNEY AND CLIENT-INSTRUCTIONS. Where the trial judge, in attempting to maintain the dig.
nity of the court and the orderly conduct of the trial, was required to admonish contestant's counsel on several occasions, but finally told the jury that they must determine the case from the facts, and in effect told them that contestant should not be prejudiced by the conduct of her counsel, or anything that had been said by him,
held, no cause for reversal. 6. APPEAL AND ERROR-COUNSEL'S BRIEF-EXPUNGED FROM RECORDS. Where, in a supplemental brief of 24 pages, 22 pages are
devoted to a discussion of counsel's personal grievances against the judge, containing much that is impertinent and scandalous, said pages will be expunged from the records of this court.
Error to Kent; Brown, J. Submitted April 24, 1919. (Docket No. 57.) Decided May 29, 1919.
Ella B. Kelly and another presented for probate an instrument as the last will and testament of Bridget Broffee, deceased. The will was allowed in the probate court, and Elsie M. Curtis, guardian of Irene L. Broffee, appealed to the circuit court. Judgment for proponents. Contestant brings error. Affirmed.
Frank L. Carpenter, for appellant.
FELLOWS, J. This case is a continuation of the controversy between heirs of Bridget Delia Broffee, which first came to this court in Broffee v. LeFils, 183 Mich. 100. That was an action of ejectment brought by Irene Lulu Broffee, a granddaughter of Mrs. Broffee, by her next friend, against Anna M. LeFils and Ella B. Kelly, daughters of Mrs. Broffee, and their tenants, for the recovery of her interest as heir-at-law in certain premises located in Grand Rapids. A reference to the report of that case will disclose the facts in detail, together with the instrument, there and here involved. In that case defendants made their defense upon the theory that they had acquired title by virtue of the instrument there set forth, which is in form a deed. This court there held that there was not sufficient evidence of delivery of the deed and that the construction of the instrument was for the court, and that the question of Mrs. Broffee's intent was improperly left to the jury. We therefore reversed the case and granted a new trial.
Thereafter Mrs. Le Fils and Mrs. Kelly offered the instrument for probate as a will and it was admitted. Irene Lulu Broffee, by her guardian, Elsie M. Curtis, appealed to the Kent circuit court from