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to future events. Thus, in Com. v. Scroggin (1901) 22 Ky. L. Rep. 1338, 60 S. W. 528, where the defendant falsely represented that he had a contract with certain named persons whereby they were obligated to deliver merchandise in retail quantities at wholesale prices, in reliance upon which the prosecutor executed a note for certain merchandise, the court, proceeding upon the theory that the false representation was with reference to an existing fact rather than as to something to take place in the future, held that the defendant was guilty of false pretenses within the meaning of § 1208 of the Kentucky statute which provided that anyone obtaining by any false pretense the signature of another to a writing, the false making thereof would be forgery, shall be, etc. Paynter, Ch. J., said: "The fraudulent statement made was not that the goods could be purchased in the future from the parties named in the indictment, but that Scroggin [the defendant] had a contract with certain named persons, whereby, if he became a member of the Dealer's & Consumer's Supply Association, he could buy goods at wholesale prices. So, the fraudulent statement was made with reference to an existing fact, to wit, that he had such a contract with the merchants named that would entitle him to certain privileges if he paid so much to become a member of the association named. We are of the opinion that it was sufficiently averred in the indictment that the fraudulent statements were with reference to an existing fact." And in State v. Matthews (1897) 121 N. C. 604, 28 S. E. 469, proceeding upon the theory that if a person induces another to believe that a fact is really in existence when it is not, and thereby obtains money or property, he comes within the scope of the statute against false pretenses, it was held that the question of guilt of one who represented himself as an agent and who obtained money to obtain the goods from an express office, where he falsely claimed that they were, was one for the jury under a charge to the effect that if the

representation was false the defendant should be convicted, but that if the agent merely falsely represented that the goods sold "would be" at the express office, he could not be convicted, because the representation would not be of a subsisting fact.

And where there is a false representation as to a material existing fact which leads one to part with property, an accompanying promise to deliver property in the future does not take away the criminal character of the false pretense, it having been held that the offense of obtaining money by false pretenses may be committed by a false representation as to a past or existing fact, such, for example, as where the defendant falsely represents that he is an authorized agent to sell goods, etc., although a promise to deliver any goods sold is a part of the inducement to the person advancing money on the faith of such representations. For instance, in State v. Vandenburg (1900) 159 Mo. 230, 60 S. W. 79, where defendant falsely represented himself to be an agent, it was held that the fact that he also promised that, in consideration of the note obtained, he would subsequently deliver an insurance policy, did not take away the criminal character of the false representation as to agency, the court saying: "The further point is made that the note charged to have been obtained by defendant was obtained by reason of a contract or promise to be executed or carried out in the future by defendant, and that by reason thereof defendant was not guilty of any offense. It may be conceded that a false representation or promise as to a future event is not a false pretense, within the meaning of the statute; but 'where a false representation of an existing or past fact, calculated to induce the confidence which led the prosecutor to part with his property, is accompanied by or blended with a promise to do something in the future, this is a sufficient false pretense, although the promise, as well as the false statement of fact, operated upon the mind of the prosecutor in inducing him to part with his property.' 12 Am.

& Eng. Enc. Law, 2d ed. 812. Now, while, by the terms of the contract, defendant was not to deliver to Schloeman the policy of insurance for some days after the contract was entered into and the note delivered to defendant, Schloeman would not have executed the note but for defendant's statements and pretense that he was agent at that time for the insurance company by which the policy was to be issued, when it is averred that he was not such agent. Here the pretense that defendant was agent for the company was an existing fact, and, although coupled with a promise by him to deliver to Schloeman the policy in the future, did not take away the criminal character of the act." And that a false representation that the defendant is planting a crop of cotton, made to obtain an advance from a factor, will not be taken out of the statute by coupling therewith a promise to deliver the crop when harvested, see State v. Haines (1885) 23 S. C. 170, wherein the court said: "It is true that the combination of a false promise with the false representation of an existing or past fact will not take the case out of the statute, but it is not the false promise which constitutes the offense, but the false representation with which the promise may be connected. Hence, unless there is a false representation, upon which the false promise is based, there can be no conviction, for the false promise alone involves no criminal consequences. As is said in 2 Bishop, Crim. Law, § 424: Though there is a promise connected with the pretense of an existing fact, this promise does not take the case out of the statute. It is, as to the criminal consequences, a mere nullity. If there is a sufficient pretense of a false existing or past fact, the consequence attached to it by law is not overthrown by the promise; if there is not a sufficient pretense of this sort, the promise does not supply the defect.'

It may be that the promise constitutes the principal motive of the prosecutor to part with his goods, but unless such promise is connected with or based upon a false representation of an existing or past fact, the case does not fall within the statute." And in People v. Brecker (1912) 20 Cal. App. 205, 127 Pac. 666, where defendant falsely represented that he was an agent authorized to sell certain corporate stock, and that he would deliver the same, which representations were relied upon, a conviction for obtaining money by false pretenses was upheld. And in Com. v. Lacey (1914) 158 Ky. 584, 165 S. W. 971, which involved similar facts, a like conclusion was reached. And again, in Com. v. Tidwell (1915) 162 Ky. 114, 172 S. W. 102, which involved a promise to deliver goods in the future, the court approved the rule that, while a false promise to do something resting upon an event to happen in the future is not within the statute denouncing false pretenses, yet it is equally true that a promise of future performance, when coupled with a false statement as to a past or existing fact which induces another to rely upon the false promise, will, in connection with the representation as to the existing fact, constitute a "false pretense" so that a conviction may be had thereon. And see State v. Bayne (1886) 88 Mo. 604, where it was held that evidence to the effect that defendant agreed to hire the prosecuting witness to travel for him to teach others how to enlarge pictures, that he would teach him such business and furnish him an outfit which was to be procured from a third person whom the defendant falsely testified he himself represented as agent, and that the only part of the contract performed was to teach the art of enlarging pictures to the prosecutor,-was sufficient to go to the jury and to justify the overruling of a demurrer thereto. G. J. C.

(213 Mich. 233, 181 N. W. 976.)

WILLIAM F. WOODCOCK

V.

DODGE BROTHERS, Plffs. in Certiorari.

Michigan Supreme Court -
- March 30, 1921.

(213 Mich. 233, 181 N. W. 976.)

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Workmen's compensation effect of increased earning on right to compensation.

1. That an employee injured so as to prevent his following the particular employment in which he was engaged at the time of the injury is able to earn greater compensation in other employment does not prevent his receiving compensation for diminished earning power in the employment which he followed when injured.

[See note on this question beginning on page 205.] Evidence burden of proof loss

of earning power.

2. One seeking compensation for loss of earning power in the employment in which he was engaged when injured has the burden of showing such loss.

Workmen's compensation - provision for future contingencies.

3. An award of compensation for injury to an employee's finger may provide that, if the finger shall be amputated, he will become entitled to compensation as provided by the Compensation Act.

CERTIORARI to the Industrial Accident Board to review its order awarding compensation to plaintiff in a proceeding under the Workmen's Compensation Act to recover compensation for accidental injury while in the employ of defendant. Order set aside in part. The facts are stated in the opinion of the court. Messrs. Kerr & Lacey, for plaintiff in certiorari:

The industrial accident board erred in granting plaintiff's petition and in ordering payment of further compensation.

Miller v. S. Fair & Sons, 206 Mich. 360, 171 N. W. 380; Leitz v. Labadie Ice Co. 211 Mich. 572, 179 N. W. 291. Mr. Ralph D. Haley for defendant in certiorari.

Bird, J., delivered the opinion of the court:

Plaintiff was an employee of defendants in their automobile factory. His work was stitching cushions. Along about the 6th day of April, 1919, a gathering appeared on the third finger of his right hand. He called the attention of the medical department to it. It was treated, but continued to grow worse,

and he was sent to Harper Hospital, where he remained for nine days. After being absent from his work sixteen days, he returned to defendants' factory, and was put to work in the same department which he had left. He was paid for one day's work, and receipted for the same. He continued to work for defendants until June, but did no more stitching. After this he attended an automobile school at the Y. M. C. A. for two months, and afterwards worked for various manufacturers.

On January 26, 1920, plaintiff filed a petition with the industrial accident board, setting up the fact of his former employment by defendants and the further fact of the injury to his finger, stated it had become permanently stiff and use

less, and prayed that the commission would reopen the case and allow him such sum as he was entitled to under the Compensation Law.

This petition was acted upon favorably by the industrial accident board, and later testimony was taken thereunder. After the showing was concluded the board made the following order:

"It is ordered and adjudged that said petition should be, and the same is hereby, granted, and said applicant is entitled to receive and recover compensation from respondent at the rate of one half the difference between the average weekly wages he was earning at the time of the accident and the average weekly wages he is able to earn thereafter in the employment in which he was engaged when injured, in accordance with the terms of the Compensation Act.

"It is further ordered that should applicant's finger be amputated he shall become entitled to compensation as provided in the Workmen's Compensation Act."

This order is assailed by appellant because the wages which petitioner has received since the injury have been as large, and most of the time larger, than he was receiving at the date of injury, and because there is no showing that he is unable to follow the employment in which he was engaged when injured.

Upon the first proposition the testimony discloses that petitioner's income when he returned to his work was the same as it was when he left, namely, 47 cents an hour. His wages at the Ford factory were 75 cents an hour, and at the Disco Starter Company, where he was employed when his testimony was taken, was at the rate of 55 cents, or 7 cents an hour in excess of what he received at defendants'. Of course, the fact that he received more wages since the injury would not preclude him from getting ad

Workmen's compensation

creased earning

ditional compensation if it were also shown that he had since been unable, by reason of his in- effect of injury, to follow the on right to particular employ- compensation. ment he was engaged in when injured. Foley v. Detroit United R. Co. 190 Mich. 507, 157 N. W. 45; Jameson v. Walter S. Newhall Co. 200 Mich. 514, 166 N. W. 834, 18 N. C. C. A. 855; Miller v. S. Fair & Sons, 206 Mich. 360, 171 N. W. 380.

This fact the petitioner failed to show. We have examined the testimony with care to find something bearing upon this phase of the case. No brief for plaintiff has been filed. The burden of es

Evidence

power.

Dr.

tablishing the fact burden of proof that he was unable -loss of earning to work in the employment in which he was engaged, since his injury, was upon the petitioner, but he has failed to meet it. The defendant introduced some testimony on the subject. Dresshler, who had examined petitioner recently, gave it as his opinion that the condition of petitioner's hand would not prevent him from resuming his former employment. By reason of this failure upon the part of petitioner, that part of the board's order giving to petitioner "one half the difference between the average weekly wages he was earning at the time of the accident and the average weekly wages he is able to earn thereafter in the employment in which he was engaged when injured" is without force and must be set aside.

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ANNOTATION.

Workmen's compensation: right to compensation as affected by the fact that the earnings of the injured employee are as much as, or more than, before

the injury.

I. Rules in general, 205.

II. Effect of training or education after injury, 212.

III. English and Canadian decisions, 213. IV. Miscellaneous, 216.

1. Rules in general.

The rule appears to be that the mere fact that after the injury the employee receives, or is offered, his former wages, or a larger sum, does not necessarily preclude recovery of compensation under the various workmen's compensation statutes.

California. Frankfort General Ins. Co. v. Pillsbury (1916) 173 Cal. 56, 159 Pac. 150; Mercury Aviation Co. v. Industrial Acci. Commission (1921) Cal., 199 Pac. 508.

Colorado.-London Guarantee Acci. Co. v. Industrial Commission (1921) Colo. 199 Pac. 962.

Kansas.-Gailey v. Peet Bros. Mfg. Co. (1916) 98 Kan. 53, 157 Pac. 431; Dennis v. Cafferty (1917) 99 Kan. 810, 163 Pac. 461; Sauvain v. Battelle (1917) 100 Kan. 468, 164 Pac. 1086; Lombard v. Uhrich Planing Mill Co. (1918) 102 Kan. 780, 172 Pac. 32; Raffaghelle v. Russell (1918) 103 Kan. 849, 176 Pac. 640; Hood v. American Refrigerator Transit Co. (1920) 106 Kan. 76, 186 Pac. 977. See also Seckman v. Monarch Cement Co. (1917) 100 Kan. 463, 165 Pac. 278.

Louisiana.-Norwood v. Lake Bisteneau Oil Co. (1919) 145 La. 823, 83 So. 25.

Me.

Maine.-Clark v. Kennebec Journal Co. (1921) 113 Atl. 51. Michigan.-Foley v. Detroit United R. Co. (1916) 190 Mich. 507, 157 N. W. 45; Jameson v. Walter S. Newhall Co. (1918) 200 Mich. 514, 166 N. W. 834, 18 N. C. C. A. 855; WOODCOCK V. DODGE BROS. (reported herewith) ante, 203; Geis v. Packard Motor Car. Co. (1921)

Mich. 183 N. W. 916. See also Myers v. Wadsworth Mfg. Co. (1921) Mich., 183 N. W. 913.

Nebraska.-Hanley v. Union Stock

Yards Co. (1916) 100 Neb. 232, 158 N. W. 939; Epsten v. Hancock-Epsten Co. (1917) 101 Neb. 442, 163 N. W. 767, 15 N. C. C. A. 1067.

New Jersey.-De Zeng Standard Co. v. Pressey (1914) 86 N. J. L. 469, 92 Atl. 278, affirmed without opinion in (1915) 88 N. J. L. 382, 96 Atl. 1102; Burbage v. Lee (1915) 87 N. J. L. 36, 93 Atl. 859; Hercules Powder Co. v. Morris County Ct. (1919) 93 N. J. L. 93, 107 Atl. 433.

Wisconsin.-See International Harvester Co. v. Industrial Commission (1914) 157 Wis. 167, 147 N. W. 53, Ann. Cas. 1916B, 330, 5 N. C. C. A. 822.

England. Cory Bros. & Co. V. Hughes [1911] 2 K. B. 738, 80 L. J. K. B. N. S. 1307, 105 L. T. N. S. 274, 27 Times L. R. 498, 4 B. W. C. C. 291; Jackson v. Hunslet Engine Co. (1915) 84 L. J. K. B. N. S. 1361, 113 L. T. N. S. 630, 8 B. W. C. C. 584, 10 N. C. C. A. 1081, subsequent appeal in [1916] 2 K. B. 8, 85 L. J. K. B. N. S. 1213, [1916] W. C. & Ins. Rep. 183, 114 L. T. N. S. 584, 60 Sol. Jo. 386, 9 B. W. C. C. 269. See also Webster v. Harrison, T. & Co. (1920) 89 L. J. K. B. N. S. 1077, 13 B. W. C. C. 195, 150 L. T. Jo. 5, set out under III. infra.

Scotland. - Freeland v. Macfarlane (1900) 2 Sc. Sess. Cas. 5th series, 832, 37 Scot. L. R. 599, 7 Scot. L. T. 456; Fraser v. Great North of Scotland R. Co. (1901) 3 Sc. Sess. Cas. 5th series, 908, 38 Scot. L. R. 653, 9 Scot. L. T. 96; Bowhill Coal Co. v. Malcolm [1910] S. C. 447, 47 Scot. L. R. 449, 3 B. W. C. C. 562 (minor); Pearson v. Archibald Russell (1916) 53 Scot. L. R. 377.

Canada.-Peterson V. Garth Co. (1913) Rap. Jud. Quebec 24 B. R. 165; Lariviere v. Girouard (1915) Rap. Jud. Quebec 24 B. R. 154, 24 D. L. R. 532.

Notwithstanding the fact that an injured workman may be receiving the same, or even higher, wages than be

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