finding of the Industrial Accident Board that the scratch was an accidental personal injury arising out of and in the course of his employment of spreading cotter pins. (For other cases, see Master and Servant, Dec. Dig. § 405[4] ) Certiorari to Industrial Accident Board. Proceeding for compensation under the Workmen's Compensation Act (Pub. Acts [Ex. Sess.] 1912, No. 10) by B. C. Hubbard, guardian of Kenneth Raymond Ford and others, minors, opposed by the Republic Motor Truck Company, employer, and the Travelers' Insurance Company. insurer. The Industrial Accident Board made an award to claimant and defendants bring certiorari. Award vacated. Argued before Steere, C. J., and Moore, Wiest, Fellows. Stone, Clark, Bird, and Sharpe, JJ. William A. Bahlke, of Alma, for claimant. Vandeveer & Foster, of Detroit, for respondents. CLARK, J. Was the death of James Weeks due to an accidental personal injury arising out of and in the course of the employment? The board found that it was and made an award, which defendants review here on certiorari. The employment ended Saturday noon, May 15, 1920. The following Monday forenoon a scratch upon Mr. Weeks' hand was observed, and there was testimony of swelling and of red streaks upon the hand. Later a doctor was consulted, who found a developed case of septic poisoning. The scratch and the resulting infection caused the death. Based upon the condition and appearance of the hand on Monday forenoon, as related by witnesses, there was medical testimony that the scratch had been suffered not less than 48 hours and not more than 6 days prior thereto. This brought the time of injury within the last week of the employment. There was testimony that a part of the employment was spreading cotter pins, which was likely to produce scratches upon the hands; that Mr. Weeks and another employee had been so scratched several times in such work. There was no testimony that Mr. Weeks had suffered a scratch in such employment during the last week thereof, or at any other definite time. There was testimony that he did many and various chores about his home, including gardening and housework, and that he kept and cared for a A finding that the scratch was an accidental personal injury arising out of and in the course of the employment rests upon conjecture and cannot be sustained. cow. Plaintiff relies on the cases of Buhse v. Whitehead & Kales Iron Works, 194 Mich. 413, 160 N. W. 557, and McRae v. Morgan & Wright, 205 Mich. 493, 171 N. W. 394. But in those cases there was evidence that accidental personal injury was actually received in the course of the employment, and this may be said of Kinney v. Cadillac Motor Car Co., 199 Mich. 435, 165 N. W. 651. See Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130, 170 N. W. 15; Chaudier v. Stearns & Culver Lumber Co., 206 Mich. 433, 173 N. W. 198, 5 A. L, R. 1673; Guthrie v. Detroit Shipbuilding Co., 200 Mich. 355, 167 N. W. 37: Draper v. Regents of University of Michigan, 195 Mich. 449, 161 N. W. 956. The award is vacated. KING ET AL. v. PENINSULAR PORTLAND CEMENT CO. ET AL. (No. 55.) (Supreme Court of Michigan. Dec. 21, 1921.) 185 Northwestern Reporter, 858. 1. MASTER AND SERVANT COMPENSATION CLAIMANT NOT APPEALING FROM ARBITRATION DECISION HELD PROPERLY BEFORE ACCIDENT BOARD. Where widow and children sought compensation under the Workmen's Compensation Act for death of husband and father, it cannot be said the widow was not properly before the Accident Board because she was denied compensation on the arbitration hearing and did not appeal. under Comp. Laws, § 5464; the appeal being taken by the employer and insurer carrier. (For other cases, see Master and Servant, Dec. Dig. § 416.) 3. MASTER AND SERVANT-POSTHUMOUS CHILD ENTITLED TO COMPENSATION AS "DEPENDENT.” Posthumous children are entitled to compensation due as the result of death of a parent under the Workmen's Compensation Act in view of Comp. Laws 1915, § 11807; such a child being totally "dependent" upon parents for nourishment. (For other cases, see Master and Servant, Dec. Dig. § 388.) (For other definitions. see Words and Phrases, First and Second Series, Dependent.) 4. MASTER AND SERVANT FINDING OF DEPENDENCY WITHIN COMPENSATION ACT SUSTAINED. In a proceeding under the Workmen's Compensation Act, evidence held to support finding that child born one month after the marriage, and child born three months after death of employee, were the children and the dependents of the deceased employee, in view of Pub. Acts 1919, No. 64. pt. 2. § 6. (For other cases, see Master and Servant, Dec. Dig. § 405[5].) 5. MASTER AND SERVANT – FINDINGS OF INDUSTRIAL BOARD UNDER COMPENSATION ACT CONCLUSIVE. Findings of Industrial Board in a proceeding under the Workmen's Compensation Act cannot be disturbed on certiorari if they have evidence to support them. · (For other cases, see Master and Servant, Dec. Dig. § 417[7].) Certiorari to Industrial Accident Board. Proceeding by Marie King and others under the Workmen's Compensation Act to obtain compensation for the death of Burley Aughinbaugh, opposed by the Peninsular Portland Cement Company, the employer, and the Michigan Mutual Liability Company, the insurer. The Industrial Accident Board awarded compensation, and the employer and the insurer bring certiorari. Award affirmed. Argued before Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ. Beaumont, Smith & Harris, of Detroit (Hal H. Smith, of Care, and Albert E. Meder, of Detroit, of counsel), for appellants. Cummins & Nichols, and Paul G. Eger, all of Lansing, for appellees. STONE, J. The writ of certiorari herein brings before this court from the Industrial Accident Board the record in the claim for compensation of Marie King, Margaret Aughinbaugh, and Joseph Aughinbaugh, against the defendants, as total dependents of Burley Aughinbaugh, who was killed May 19, 1920, while employed by the defendant the Peninsular Portland Cement Company at Cement City, Mich. Marie King was the wife of deceased. The other two applicants claim compensation as his children by Marie King. The only question in controversy is the dependency of the above-named applicants, or that of any of them. The matter was heard on arbitration on March 10, 1921, and compensation was awarded to the applicants Margaret and Joseph at the rate of $14 per week for a period of 300 weeks, but was denied the applicant Marie King on the ground that she was not a dependent within the meaning of the law. From this award the defendants have appealed to the full board, alleging that the board erred in the following particulars: (a) By holding as matter of law that either applicant was conclusively presumed to have been dependent upon the deceased on May 19, 1920. (b) By holding as matter of law that either applicant as a matter cf fact, was dependent for support upon the earnings of deceased on May 19, 1920. (c) By holding as matter of law that either Margaret or Joseph was a member of the family of deceased on May 19, 1920. 1 (d) By holding as matter of law that either Margaret or Joseph was a lineal descendant of deceased. (e) By holding as matter of law that either applicant was either totálly or partially dependent for support on decedent on May 19, 1920. (f) By holding as matter of law that Marie King was properly before it, so that an award could be made in her favor. (g) By holding that it had authority to reject testimony not objected to at the arbitration or hearing on review. (h) By ordering that either applicant, was entitled to any compensation from either of the defendants. [1] It appears that Marie King did not appeal from the arbitration finding, and we are met at the threshold of the case by the proposition that Marie King was not properly before the Accident Board. We do not think there is any merit in this proposition, but that it is disposed of by the case of Margenovitch v. Newport Mining Co., 213 Mich. 272, 181 N. W. 994, in which we said: "If either party files an appeal, the Ind strial Accident Board is the power by the statute to review the decisions of the committee on arbitration. 2 Comp. Laws 1915, § 5464.” "This section evidently contemplates a de novo hearing before the Industrial Accident Board on appeal with the power to make decision therein. without regard as to whether such decision affirms, reverses, increases or decreases the award made by the arbitrators, and without regard to the question as to whose appeal it may have been." [2] Marie Aughinbaugh (now King) was married to the decedent on April 25, 1918. She and the deceased lived together as husband and wife from the time of their marriage until January, 1920. Joseph was born May 31, 1918. a little more than a month after said marriage. The child Margaret was August 28, 1920, a little more than three months after the death of decedent. There was evidence to the effect that during the time the parties lived together as husband and wife the decedent sup ported his wife and said child Joseph; that in January, 1920, decedent went to Disko, Ind., where he secured a job, the wife remaining in Wabash, Ind.; that decedent continued to live in Disko for one month, when he went to Decatur, Ind., where he remained about three months, removing from there to Cement City, Mich., only six days before he was killed; that the boy Joseph was placed with a Mrs. Hauck by his mother about one month before the death of his father while she was employed in a hotel; after remaining with Mrs. Hauck about a week and a half the mother again took him; she kept him with her for about a week, when he again returned to Mrs. Hauck, where he remained until after the death of his father; that during the three months the deceased lived in Decatur he wrote a number of affectionate letters to his wife and requested her to join him with the boy Joseph. He also sent her $5 on two occasions. Three of these letters were offered in evidence. The Board found that it was apparent from these letters and other evidence that the deceased did not consider that he was living apart from his wife and child. It did appear under a rigorous cross-examination that Marie admitted that she did not join her husband because she intended to marry one Joseph King, and the evidence shows that she did marry King about 21 days after her husband's death. It appears that defendants secured a statement from the widow in January, 1921, in which she admitted that the deceased was not the father of either of the children; and on crossexamination she admitted that this statement was true. The defendants claim that because this testimony was admitted without objection, it should be controlling in determining the status of the children. The Board held that it was contrary to public policy to allow parents to testify to the illegitimacy of their children, and for that reason the Board rejected the testimony of the mother relative to the parentage of her children. The rule seems to be well established that neither the father nor the mother can testify to the illegitimacy of the child. See Egbert v. Greenwalt, 44 Mich. 245, 6 N. W. 654, 38 Am. St. Rep. 260; Rabeke v. Baer, 115 Mich. 328, 73 N. W. 242, 60 Am. St. Rep. 567; People v. Case, 171 Mich. 282, 137 N. W. 55. It was held distinctly in the last-cited case that the presumption of legitimacy cannot be overcome by the testimony of either the husband or wife. In the Baer Case the following language was quoted with approval from 1 Jones on Evidence, § 96: "It is well settled, on grounds of public policy, affecting the children born during the marriage, as well as the parties themselves, that the presumption of legitimacy as to children born in lawful wedlock cannot be rebutted by the testimony of the husband or wife to the effect that sexual intercourse has or has not taken place between them. *** The rule not only excludes direct testimony concerning such intercourse, but all testimony of such husband or wife which has a tendency to prove or disprove legitimacy. The rule rests, not only on the ground that it tends to prevent family dissension, but on broad grounds of public policy. * Nor does it depend upon the form of action, or the parties. On the contrary, it obtains whatever the form of legal proceedings, or whoever may be the parties." 2 L. R. A. (N. S.) 619, note; Waliace v. Wallace, 137 Iowa, 37, 114 N. W. 527, 14 L. R. A. (N. S.) 544, 126 Am. St. Rep. 253, 15 Ann. Cas. 761. * * * We think the Board did not err in its holding upon this question. [3] As to the child Margaret, born after the death of decedent, it has been repeatedly held that posthumous children are entitled to compensation due as the result of the death of a parent. By the terms of section 11, 807, Comp. Laws 1915, it is provided that posthumous children are considered as living at the death of their parents. Catholic Benefit Ass'n v. Firnane, 50 Mich. 82, 14 N. W. 707; Chambers v. Shaw, 52 Mich. 18, 17 N. W. 223; Knorr v. Millard, 57 Mich. 268, 23 N. W. 807; McLain v. Howald, 120 Mich. 274, 79 N. W. 182, 77 Am. St. Rep. 597. A child en ventre sa mere is totally dependent upon its parents for nourishment. In accordance with the general presumption that a posthumous child is to be regarded as born already, if it be for his benefit, such child may rank as a dependent, Williams v. Ocean Coal Co., Ltd. (1907) 2 K. B. 422; 76 L. J. K. B. 1073; 97 L. T. 150;.23 T. L. R. 584; 9 W. .C. C. 44; 6 N. & C. C. A. 260. In New Jersey it is held that a posthumous illegitimate child is dependent upon its father for support, within the meaning of the Workmen's Compensation law of that state. Klimchak v. Ingersoll Rand Co., 39 N. J. Law J 275. The Board held that Margaret was the legitimate child of the deceased under the evidence; and that both children being under 16 years of age were, under the statute. conclusively presumed to be dependents. Section 6, p. 2, Act No. 64, Pub. Acts 1919. [4, 5] Referring to the record, while much criticism might be indulged in when considering the testimony of the applicant Marie King we are unable to say that there was no evidence to support the several findings of the Board. Were we weighing the testimony and passing upon the facts, we might reach a different conclusion than that arrived at by the board. This we cannot do. The Board concluded its findings in the following language: "After a careful examination of the entire files in the case, we find: "(1) That Marie King was the wife of Burley Aughinbaugh on May 19, 1920, and that she was living with him at the time of his death. "(2) That Joseph Aughinbaugh was the son of Burley Aughinbaugh, and that he was living with Burley Aughinbaugh on May 19, 1920, and that he was less than 16 years of age. "(3) That Margaret Aughinbaugh is the posthumous child of Marie Aughinbaugh-King and Burley Aughinbaugh, and that she was born August 28, 1920. "It therefore follows that the decision of the arbitration committee, in so far as it refers to Margaret and Joseph Aughinbaugh, should be affirmed, and that the decision, in so far as it refers to Marie-King, should be reversed, and that Marie King, Margaret Aughinbaugh, and Joseph Aughinbaugh, are held to be total dependents of Burley Aughinbaugh. An order to that effect will be duly entered." The order of the Industrial Accident Board is therefore affirmed. PUNCHES v. AMERICAN BOX BOARD CO. ET AL. (No. 33.) (Supreme Court of Michigan. Dec. 21, 1921.) 185 Northwestern Reporter, 758. MASTER AND SERVANT-EVIDENCE HELD TO SHOW COMPENSABLE INJURY TO TEAMSTER. Where an employer permitted a hired team driven by its employees to be kept in its yards and cared for by its employees, and later an employee, driving the team with the knowledge and acquiescence of the foreman, took it to his own barn each night, and was killed while driving the team to work one morning, evidence held sufficient to support a find 13 Vol. IX-Comp |