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Baseball games have been held there, football games, automobile races, and Wild West shows. Such income as there was Williams used in repairs.

It was his custom to call a meeting of stockholders each year, make a report, and render an account. He regarded as stockholders only those who held certificates for shares of stock. No records of these events were produced. Williams himself claims rights as an assignee of one or more of the certificates of stock originally issued by the association. It appears that since 1902 there has been no semblance of any use of the grounds by the defendant association for any purpose of its organization.

The objection that in introducing much of the testimony a collateral attack was made upon the organization and existence of the defendant association seems to me to be without merit. The testimony, some of it, did tend to show the passing of the association as an entity in fact, whatever it may be said to be in law, but the purpose of its introduction plainly was to prove that there had been, in fact, an abandonment of the premises; that they had not been used for years for the purposes of the association, and had been used for other purposes. The testimony was well calculated to establish this fact.

It is contended that in his charge to the jury the court did not properly instruct them about what facts must be established to warrant the conclusion that the premises had been abandoned. It is not important that a discussion of the matter be undertaken. The court might properly have said to the jury that the fact that the land had for years been used, not • for the purposes of the defendant association, but for other purposes, was established, as well as the fact that for years the defendant association had not performed any of the functions which it was organized to perform-functions the performance of which alone justified its continued legal existence. It would

have been proper to instruct the jury that, whether it was or was not legally in existence, the defendant association was actually, so far as using the premises for association purposes is concerned, exercising no corporate franchise; that from the established facts intention to abandon the premises might be found. What the association did is important as evidencing, or failing to evidence, a purpose to continue to use the grounds. In this view of the matter, the errors assigned become unimportant.

It is undoubtedly true, as is contended by defendant, that mere lapse of time, mere failure to use the premises, is not, in most cases, conclusive evidence of abandonment or of an intention to abandon. But mere lapse of time, mere failure to use, may be of more significance in one case than in another. Plain, tiff's case does not rest upon lapse of time merely, but upon the failure of a corporation grantee (a corporation existing for the purpose of the designated use, a corporation organized to use the premises for definite purposes) to exercise for years its franchise, to use them at all for the purposes of its existence, which are the identical purposes stated in the conditional grant of the lands.

No prejudicial erorr is pointed out, and the judgment is therefore affirmed.

MCALVAY, C. J., and BROOKE, KUHN, STONE, BIRD, MOORE, and STEERE, JJ., concurred.

LIMRON V. BLAIR.

MASTER AND SERVANT-COMPENSATION FOR INJURIES—INDUSTRIAL
ACCIDENT BOARD.
A workman who has lost a leg and sustained other in-

juries resulting in total disability is entitled, under the
workmen's compensation act (Act No. 12, Extra Session
1912, 2 How. Stat. [2d Ed.] 8 3939 et seq.), to recover
the compensation provided for total disability for a period
of not over 500 weeks up to a maximum of $4,000: addi.
tional compensation cannot be awarded for the loss of
the leg.

Certiorari to the industrial accident board by Frank M. Blair and others, receivers of the Pere Marquette Railroad Company, to review an order awarding compensation to Philip Limron for personal injuries. Submitted April 24, 1914. (Docket No. 121.) Reversed June 1, 1914.

W. A. Collins, for claimant.

Parker, Shields & Brown (S. L. Merriam and J. C. Bills, of counsel), for defendants.

OSTRANDER, J. The precise ruling of the industrial accident board, as expressed in its written finding, is:

“The applicant is entitled to receive under the act one-half (12) his average weekly wages during the period of his total disability due to injuries other than the loss of the lower part of his right limb, and at the conclusion of such period of disability is entitled to payment of one-half (12) his wages for 125 weeks for the loss of the lower right limb by amputation as aforesaid, less six weeks' disability incident to such amputation, provided that such weekly payments shall not in any event extend over a greater period than 500 weeks."

The board found that, from the date of the injury to the time of making the award, the employee had been totally disabled, and that such disability would continue for an indefinite period; that the main cause of disability was an injured shoulder.

The act (Act No. 10, Pub. Acts Extra Session 1912, 2 How. Stat. [2d Ed.] § 3939 et seq.), provides that when, as the result of an industrial accident, the incapacity for work is total, the employer shall pay a weekly compensation equal to one-half the average weekly wages for a period not exceeding 500 weeks. This is the longest period of compensatory payments. A period of disability is in certain cases deemed to exist. For the loss of a foot, the period is 125 weeks. For the loss of any two members, as hands, arms, eyes, feet, legs, the period of total disability is deemed to be 500 weeks, unless the weekly payments amount to $4,000 in a shorter period. If one of the results of accident is the loss of a foot, the period of total disability is 125 weeks, although it may be in fact only 6 weeks. The period is not extended because, as a result of the accident, the employee was in fact totally disabled for a period of 125 weeks, or for any shorter period. If he is in fact disabled by the loss of a foot, or otherwise, for a greater period than 125 weeks, compensation continues until disability is removed, or the maximum of compensation is paid. The statute speaks in terms of disability. All of its provisions being considered, it does not mean that compensation must be paid during a period of actual disability and also, if a member is lost, during a period equal to the one during which total disability is deemed to continue. It does not provide a specific indemnity for the loss of a member in addition to compensation for disability. The aim of the statute is to afford compensation if the employee is disabled. When the period of disability ends, compensation

ceases.

It follows that the order of the industrial accident board is erroneous and must be and is vacated and set aside.

MCALVAY, C. J., and BROOKE, KUHN, STONE, BIRD, MOORE, and STEERE, JJ., concurred.

BURCHY V. CARPENTER.

1. PLEADINGFRAUD-COMMON COUNTS—WAIVER OF TORT.

Damages for fraud and deceit are not recoverable under

the common counts; a special count is necessary under
the statute authorizing plaintiff to waive the tort and
sue in assumpsit. 3 Comp. Laws, 8 10421 (5 How. Stat.

[2d Ed.] § 13954).
2. FRAUD DAMAGES—PLEADING.

A plaintiff who claims that he loaned the defendant $300

on a land contract which defendant falsely represented
to be worth about $700, cannot recover more than the
amount of his loan, in an action of assumpsit: a verdict
directed for defendant was proper and will not be re-
versed on error where the appellant sought to recover a
larger amount in damages, without asking to amend his
declaration.

Error to Genesee; Wisner, J. Submitted April 21, 1914. (Docket No. 93.) Decided June 1, 1914.

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Assumpsit by August Burchy against Edbert M. Carpenter for fraud. Judgment for defendant. . Plaintiff brings error.

Affirmed.

George F. Brown, for appellant.
Lee & Parker, for appellee.

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