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to future events. Thus, in Com. v. representation was false the defendScroggin (1901) 22 Ky. L. Rep. 1338, ant should be convicted, but that if 60 S. W. 528, where the defendant the agent merely falsely represented falsely represented that he had a con- that the goods sold “would be" at the tract with certain named persons express office, he could not be conwhereby they were obligated to de- victed, because the representation liver merchandise in retail quantities would not be of a subsisting fact. at wholesale prices, in reliance upon And where there is a false reprewhich the prosecutor executed a note sentation as to a material existing for certain merchandise, the court, fact which leads one to part with proceeding upon the theory that the property, an accompanying promise false representation was with refer- to deliver property in the future does ence to an existing fact rather than as not take away the criminal character to something to take place in the fu- of the false pretense, it having been ture, held that the defendant was held that the offense of obtaining guilty of false pretenses within the money by false pretenses may be commeaning of § 1208 of the Kentucky mitted by a false representation as statute which provided that anyone to a past or existing fact, such, for obtaining by any false pretense the example, as where the defendant falsesignature of another to a writing, the ly represents that he is an authorized false making thereof would be for- agent to sell goods, etc., although a gery, shall be, etc. Paynter, Ch. J., promise to deliver any goods sold is a said: The fraudulent statement

part of the inducement to the person made was not that the goods could advancing money on the faith of such be purchased in the future from the representations. For instance, in parties named in the indictment, but

State v. Vandenburg (1900) 159 Mo. that Scroggin [the defendant) had a 230, 60 S. W. 79, where defendant contract with certain named persons, falsely represented himself to be an whereby, if he became a member of agent, it was held that the fact that the Dealer's & Consumer's Supply As- he also promised that, in considersociation, he could buy goods at whole- ation of the note obtained, he would sale prices. So, the fraudulent state- subsequently deliver an insurance ment was made with reference to an policy, did not take away the crimiexisting fact, to wit, that he had such nal character of the false represena contract with the merchants named tation as to agency, the court saying: that would entitle him to certain “The further point is made that the privileges if he paid so much to be

note charged to have been obtained by come a member of the association defendant was obtained by reason of named. We are of the opinion that a contract or promise to be executed it was sufficiently averred in the in

or carried out in the future by defenddictment that the fraudulent state- ant, and that by reason thereof ments were with reference to

defendant was not guilty of any ofexisting fact.” And in State v. Mat- fense. It may be conceded that a thews (1897) 121 N. C. 604, 28 S. E. false representation or promise as to 469, proceeding upon the theory that a future event is not a false pretense, if a person induces another to believe

within the meaning of the statute; but that a fact is really in existence when 'where a false representation of an it is not, and thereby obtains money existing or past fact, calculated to inor property, he comes within the

duce the confidence which led the scope of the statute against false pre- prosecutor to part with his property, tenses, it was held that the question of

is accompanied by or blended with a guilt of one who represented himself promise to do something in the future, as an agent and who obtained money this is a sufficient false pretense, alto obtain the goods from an express though the promise, as well as the office, where he falsely claimed that false staten.ent of fact, operated upon they were, was one for the jury under the mind of the prosecutor in inducing a charge to the effect that if the him to part with his property.' 12 Am.

an

& Eng. Enc. Law, 2d ed. 812.

It may be that the promise constiNow, while, by the terms of the con- tutes the principal motive of the tract, defendant was not to deliver to prosecutor to part with his goods, but Schloeman the policy of insurance for unless such promise is connected with some days after the contract was en- or based upon a false representation tered into and the note delivered to of an existing or past fact, the case defendant, Schloeman would not have does not fall within the statute." And executed the note but for defendant's in People v. Brecker (1912) 20 Cal. statements and pretense that he was App. 205, 127 Pac. 666, where defendagent at that time for the insurance ant falsely represented that he was company by which the policy was to an agent authorized to sell certain be issued, when it is averred that he corporate stock, and that he would dewas not such agent.

Here the pre

liver the same, which representations tense that defendant was agent for were relied upon, a conviction for the company was an existing fact, and, obtaining money by false pretenses although coupled with a promise by was upheld. And in Com. v. Lacey him to deliver to Schloeman the policy (1914) 158 Ky. 584, 165 S. W. 971, in the future, did not take away the which involved similar facts, a like criminal character of the act.” And conclusion was reached. And again, that a false representation that the in Com. v. Tidwell (1915) 162 Ky. 114, defendant is planting a crop of cot- 172 S. W. 102, which involved a promton, made to obtain an advance from a ise to deliver goods in the future, the factor, will not be taken out of the court approved the rule that, while statute by coupling therewith a a false promise to do something restpromise to deliver the crop when ing upon an event to happen in the harvested, see State v. Haines (1885) future is not within the statute de23 S. C. 170, wherein the court said: nouncing false pretenses, yet it is "It is true that the combination of a equally true that a promise of future false promise with the false represen- performance, when coupled with a tation of an existing or past fact will false statement as to a past or existnot take the case out of the statute, ing fact which induces another to rely but it is not the false promise which upon the false promise, will, in conconstitutes the offense, but the false nection with the representation as to representation with which the promise the existing fact, constitute a "false may be connected. Hence, unless

pretense” so that a conviction may be there is a false representation, upon had thereon. And see State v. Bayne which the false promise is based, (1886) 88 Mo. 604, where it was held there can be no conviction, for the that evidence to the effect that defendfalse promise alone involves no crimi- ant agreed to hire the prosecuting nal consequences. As is said in 2 witness to travel for him to teach Bishop, Crim. Law, $ 424: "Though others how to enlarge pictures, that there is a promise connected with the he would teach him such business and pretense of an existing fact, this furnish him an outfit which was to be promise does not take the case out of procured from a third person whom the statute. It is, as to the criminal the defendant falsely testified he himconsequences, a mere nullity. If there self represented as agent, and that the is a sufficient pretense of a false exist- only part of the contract performed ing or past fact, the consequence at- was to teach the art of enlarging pictached to it by law is not overthrown tures to the prosecutor,—was suffiby the promise; if there is not a cient to go to the jury and to justify sufficient pretense of this sort, the the overruling of a demurrer thereto. promise does not supply the defect.'

G. J. C.

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

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

pensation. 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 Workmen's compensation - provision of earning power.

for future contingencies. 2. One seeking compensation for

3. An award of compensation for in

jury to an employee's finger may proloss of earning power in the employ

vide that, if the finger shall be ment in which he was engaged when amputated, he will become entitled to injured has the burden of showing compensation as provided by the Comsuch loss.

pensation 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 and he was sent to Harper Hospital, in certiorari:

where he remained for nine days. The industrial accident board erred

After being absent from his work in granting plaintiff's petition and in

sixteen days, he returned to defendordering payment of further compensation.

ants' factory, and was put to work Miller v. S. Fair & Sons, 206 Mich.

in the same department which he 360, 171 N. W. 380; Leitz v. Labadie

had left. He was paid for one day's Ice Co. 211 Mich. 572, 179 N. W. 291.

work, and receipted for the same. Mr. Ralph D. Haley for defendant He continued to work for defendin certiorari.

ants until June, but did no more Bird, J., delivered the opinion of stitching. After this he attended an the court:

automobile school at the Y. M. C. A. Plaintiff was an employee of de- for two months, and afterwards fendants in their automobile fac- worked for various manufacturers. tory. His work was stitching cush- On January 26, 1920, plaintiff ions. Along about the 6th day of filed a petition with the industrial April, 1919, a gathering appeared accident board, setting up the fact on the third finger of his right hand. of his former employment by deHe called the attention of the med- fendants and the further fact of the ical department to it. It was treat- injury to his finger, stated it had ed, but continued to grow worse, become permanently stiff and use

power.

less, and prayed that the commis- ditional compensation if it were also sion would reopen the case and shown that he had allow him such sum as he was en

since been unable,

Workmen's

compensationtitled to under the Compensation by reason of his in- effect of in

creased earning Law.

jury, to follow the on right to This petition was acted upon fa- particular employ

compensation, vorably by the industrial accident ment he was engaged in when inboard, and later testimony was tak- jured. Foley v. Detroit United R. en thereunder. After the showing Co. 190 Mich. 507, 157 N. W. 45; was concluded the board made the Jameson v. Walter S. Newhall Co. following order:

200 Mich. 514, 166 N. W. 834, 18 N. "It is ordered and adjudged that C. C. A. 855; Miller v. S. Fair & said petition should be, and the Sons, 206 Mich. 360, 171 N. W. 380. same is hereby, granted, and said This fact the petitioner failed to applicant is entitled to receive and show. We have examined the tesrecover compensation from respond timony with care to find something ent at the rate of one half the differ- bearing upon this phase of the case. ence between the average weekly No brief for plaintiff has been filed. wages he was earning at the time The burden of esof the accident and the average tablishing the fact burden of proof

Evidence weekly wages he is able to earn that he was unable -loss of earning thereafter in the employment in

to work in the emwhich he was engaged when injured, ployment in which he was engaged, in accordance with the terms of the since his injury, was upon the petiCompensation Act.

tioner, but he has failed to meet it. “It is further ordered that should The defendant introduced some applicant's finger be amputated he testimony on the subject. Dr. shall become entitled to compensa- Dresshler, who had examined petition as provided in the Workmen's tioner recently, gave it as his opinCompensation Act."

ion that the condition of petitioner's This order is assailed by appellant hand would not prevent him from because the wages which petitioner resuming his former employment. has received since the injury have By reason of this failure upon the been as large, and most of the time part of petitioner, that part of the larger, than he was receiving at the board's order giving to petitioner date of injury, and because there is "one half the difference between the no showing that he is unable to fol- average weekly wages he was earnlow the employment in which he was ing at the time of the accident and engaged when injured.

the average weekly wages he is able Upon the first proposition the tes- to earn thereafter in the employtimony discloses that petitioner's ment in which he was engaged when income when he returned to his injured” is without force and must work was the same as it was when be set aside. he left, namely, 47} cents an hour. The remaining part of the order His wages at the Ford factory were may stand, but, of course, if the 75 cents an hour, and at the Disco finger should be Starter Company, where he was em- amputated, it would workmen's ployed when his testimony was tak- require proof of the provision for en, was at the rate of 55 cents, or

fact, and also that it

tingencies. 74 cents an hour in excess of what

was traceable to the he received at defendants'. Of injury in question. Neither party course, the fact that he received will recover costs. more wages since the injury would The late Justice Brooke took no not preclude him from getting ad- part in this decision.

future con

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.

Co. v.

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1. Rules in general, 205.

Yards Co. (1916) 100 Neb. 232, 158 N. II. Effect of training or education after W. 939; Epsten v. Hancock-Epsten Co. injury, 212.

(1917) 101 Neb. 442, 163 N. W. 767, III. English and Canadian decisions, 213.

15 N. C. C. A. 1067. IV. Miscellaneous, 216.

New Jersey.-De Zeng Standard Co. 1. Rules in general.

v. Pressey (1914) 86 N. J. L. 469, 92 The rule appears to be that the mere

Atl. 278, affirmed without opinion in fact that after the injury the employ

(1915) 88 N. J. L. 382, 96 Atl. 1102; ee receives, or is offered, his former Burbage v. Lee (1915) 87 N. J. L. 36, wages, or a larger sum, does not neces- 93 Atl. 859; Hercules Powder Co. v. sarily preclude recovery of compensa- Morris County Ct. (1919) 93 N. J. L. tion under the various workmen's 93, 107 Atl. 433. compensation statutes.

Wisconsin.-See International HarCalifornia.-Frankfort General Ins. vester Co. v. Industrial Commission

Pillsbury (1916) 173 Cal. 56, (1914) 157 Wis. 167, 147 N. W. 53, 159 Pac. 150; Mercury Aviation Co. v. Ann. Cas. 1916B, 330, 5 N. C. C. A. Industrial Acci. Commission (1921)

822. Cal. -, 199 Pac. 508.

England.Cory Bros. & Co. Colorado.-London Guarantee Acci. Hughes [1911] 2 K. B. 738, 80 L. J. K. Co. v. Industrial Commission (1921) B. N. S. 1307, 105 L. T. N. S. 274, 27 Colo. 199 Pac. 962.

Times L. R. 498, 4 B. W. C. C. 291; Kansas.-Gailey v. Peet Bros. Mfg. Jackson v. Hunslet Engine Co. (1915) Co. (1916) 98 Kan. 53, 157 Pac. 431; 84 L. J. K. B. N. S. 1361, 113 L. T. Dennis v. Cafferty (1917) 99 Kan. 810, N. S. 630, 8 B. W. C. C. 584, 10 N. C. 163 Pac. 461; Sauvain v. Battelle C. A. 1081, subsequent appeal in (1917) 100 Kan. 468, 164 Pac. 1086; [1916] 2 K. B. 8, 85 L. J. K. B. N. S. Lombard v. Uhrich Planing Mill Co. 1213, [1916] W. C. & Ins. Rep. 183, 114 (1918) 102 Kan. 780, 172 Pac. 32; L. T. N. S. 584, 60 Sol. Jo. 386, 9 B. W. Raffaghelle v. Russell (1918) 103 Kan. C. C. 269. See also Webster v. Harri849, 176 Pac. 640; Hood v. American son, T. & Co. (1920) 89 L. J. K. B. Refrigerator Transit Co. (1920) 106 N. S. 1077, 13 B. W. C. C. 195, 150 L. Kan. 76, 186 Pac. 977. See also Seck- T. Jo. 5, set out under III. infra. man v. Monarch Cement Co. (1917)

Scotland. Freeland v. Macfarlane 100 Kan. 463, 165 Pac. 278.

(1900) 2 Sc. Sess. Cas. 5th series, 832, Louisiana.—Norwood v. Lake Biste- 37 Scot. L. R. 599, 7 Scot. L. T. 456; neau Oil Co. (1919) 145 La. 823, 83 So. Fraser v. Great North of Scotland R. 25.

Co. (1901) 3 Sc. Sess. Cas. 5th series, Maine.—Clark v. Kennebec Journal 908, 38 Scot. L. R. 653, 9 Scot. L. T. Co. (1921) Me. —, 113 Atl. 51. 96; Bowhill Coal Co. v. Malcolm

Michigan.--Foley v. Detroit United [1910] S. C. 447, 47 Scot. L. R. 449, 3 R. Co. (1916) 190 Mich. 507, 157 N. W. B. W. C. C. 562 (minor); Pearson v. 45; Jameson v. Walter S. Newhall Co. Archibald Russell (1916) 53 Scot. L. (1918) 200 Mich. 514, 166 N. W. 834, R. 377. 18 N. C. C. A. 855; WOODCOCK V. DODGE Canada.-Peterson V.

Garth Co. BROS. (reported herewith) ante, 203; (1913) Rap. Jud. Quebec 24 B. R. 165; Geis v. Packard Motor Car. Co. (1921) Lariviere v. Girouard (1915) Rap. Jud.

Mich. — 183 N. W. 916. See also Quebec 24 B. R. 154, 24 D. L. R. 532. Myers v. Wadsworth Mfg. Co. (1921) Notwithstanding the fact that an Mich., 183 N. W. 913.

injured workman may be receiving the Nebraska.—Hanley v. Union Stock- same, or even higher, wages than be

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