his master. In connection with this claim counsel notice that the work of filling the small silo was nearly completed; that it could have been completed no faster if the plaintiff had been able to assist his son as only such ensilage could reach the silo as was put through the machine, and also that plaintiff mounted the ladder without any fork, which, it is claimed, would have been necessary to enable him to perform any service of value within the silo. Many cases are cited by counsel for defendant which it is claimed support the position taken. Among them the following: Spooner v. Detroit Saturday Night Co., 187 Mich. 125; Lindstrand v. Delta Lumber Co., 65 Mich. 261; Kinney v. Onsted, 113 Mich. 98; Hutchinson v. Cleveland-Cliffs Iron Co., 141 Mich. 346; Bedell v. Berkey, 76 Mich. 435; Brinkman v. Zuckerman, 192 Mich. 624; Rayner v. Furniture Co., 180 Mich. 168; Stetson v. Transportation Co., 182 Mich. 355; Clem v. Chalmers Motor Co., 178 Mich. 340; Gavigan v. Railway Co., 110 Mich. 71. Upon this point the court declined to hold, as a matter of law, that plaintiff in mounting the ladder was acting without the scope of his employment, but instructed the jury that whether or not such act was within the scope of his employment was a question of fact for their determination, saying:

"He must prove that at the time he went up that ladder he was still a servant of the defendant, and that in going up there he was about the defendant's work, and that he was authorized by the terms of his employment to so go up that ladder and for the purpose that he did ascend it. * * *

"If the plaintiff of his own volition was occupying the position that he did occupy upon this ladder merely for his own convenience and accommodation, or out of mere curiosity on his part, then he would not be entitled to recover. * * *

"And again, if you should find that the plaintiff at the time he was injured had quit the work assigned to him by the defendant, and voluntarily undertook to do

work about which he had no duties to perform, by virtue of the contractual relations existing between him and the defendant, then while such condition exists the duty growing out of that relation, of using care by the defendant for plaintiff's safety, does not rest upon the defendant. * *

*

"If you find that the plaintiff was not authorized, either expressly or impliedly, to go up that ladder as he did go; that if in going up there he was not in the performance of his duty toward the defendant and in the service of the defendant, then he would not be entitled to recover."

The rule, as stated in 4 Labatt's Master and Servant (2d Ed.), § 1566, is as follows:

"The question whether the injured person was acting in the course of his employment is for the jury, where the evidence is conflicting, or where a difference of opinion may reasonably be entertained with regard to the proper inference to be drawn from the testimony."

See, also, 26 Cyc. pp. 1461, 1462, and cases cited in note 36, and see 4 Thompson on Negligence, § 3753, and cases cited.

After a careful consideration of all the authorities cited we have reached the conclusion that the question whether or not at the moment of injury the plaintiff was acting within the scope of his employment was one for the jury and that it was properly submitted.

Error is assigned upon the action of the court in permitting the plaintiff to give his reasons for climbing the ladder on the ground that such testimony was selfserving. We think the evidence competent and its weight for the jury.

Other assignments relate to the admission or exclusion of testimony, but we find no reversible error therein.

In discussing the measure of damages, the court permitted the jury to consider the question of the de

creased earning power of the plaintiff. This is urged as reversible error upon the ground that:

"Plaintiff's own testimony established the fact that since the accident and at the time of the trial he was earning as much as before the injury and also that he had returned to an identical job at the same wages as he had worked at before the injury."

On behalf of the plaintiff it is pointed out that wages had gone up between the time of the accident and the time of the subsequent employment; that his injury made it necessary for him to do lighter work and that the undisputed testimony of Dr. Webb shows that the injury was of a permanent character and impaired plaintiff permanently. We think this element of damage was properly submitted to the jury.

Finally a reversal of the case is sought upon the ground that the trial judge indulged in improper conduct and language in the course of the trial. In denying a motion for a directed verdict the court said:

"He could not delegate the putting in of these to some of his employees and escape the liability for that neglect, to have that ladder properly built. The only wonder is others were not injured before the plaintiff here was injured."

This language, if used in the presence of the jury, would doubtless be open to serious objection, but it was not so delivered and therefore must have been without prejudice to the defendant. Two or three

other episodes occurring in the examination of witnesses are cited to show that the court was prejudiced, and that such prejudice worked to the detriment of the defendant. While we have frequently held that conduct or language on the part of the trial judge indicating the bent of his mind constitutes reversible error, Schwanz v. Wujek, 163 Mich. 492, and Jageriskey v. Railway, 163 Mich. 631, we are yet of opinion after a careful perusal of this record that the rights of the

defendant were not prejudiced by the conduct or language of the court.

The judgment is affirmed.

OSTRANDER, C. J., and BIRD, MOORE, STEERE, FELLOWS, and STONE, JJ., concurred. KUHN, J., did not

sit.

ROACH v. KELSEY WHEEL CO.

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-DEFENSES-REVIEW-RULE OF INDUSTRIAL ACCIDENT Board.

On certiorari to review an award of compensation by the industrial accident board, under the workmen's compensation act, defenses not relied upon in defendant's statement denying liability, filed in conformity with a rule of the board, and not relied upon on the hearing before the arbitration committee and on review before the full board, are not available in the appellate court.

2. SAME "ACCIDENT"-DEATH-LIABILITY OF EMPLOYER. Where claimant's decedent was employed to help tear down some brick work in the superheated boiler room of defendant's plant, during very hot weather in July, and was overcome by the heat on July 24th, remaining away from work on the 25th, but returning to work on the 26th and continuing to work until the afternoon of the 27th, when he was again overcome by the heat and died the same evening, his death was not the result of an accident rendering the employer liable under the provisions of the workmen's compensation act. MOORE and FELLOWS, JJ., dissenting.

Certiorari to Industrial Accident Board. Submitted October 16, 1917. (Docket No. 152.) Decided March 27, 1918.

Phoebe Roach presented her claim for compensation against the Kelsey Wheel Company for the accidental death of her husband in defendant's employ. From an order awarding compensation, defendant and the Ætna Life Insurance Company, insurer, bring certiorari. Reversed.

Douglas, Eaman & Barbour, for appellants.

Howard H. Campbell (Albert E. Meder, of counsel), for appellee.

FELLOWS, J. (dissenting). Plaintiff is the widow of George Roach, a workman; defendant Kelsey Wheel Company an employer of labor operating under the workmen's compensation law at the time of the transaction; the Aetna Life Insurance Company its insurer. In the conduct of its business the Kelsey Wheel Company, hereafter called the defendant, deemed it necessary to tear out and rebuild the brick work around one of the boilers in its plant. Whenever it was necessary to do such work it was its custom to employ one Nicholas Jackman, a mason by trade, who would procure such additional help for it as might be desired. Jackman and the helpers were each paid the union wage by defendant, punched the clock as other employees did, and continued in the employ of defendant until the work in hand was completed. Jackman, Roach and others commenced this work July 24, 1916. The weather was extremely warm. The first thing done was to tear out the old brickwork, and carry away and dump the old brick and mortar outside. The wreckage was piled on trucks which were quite heavy, and these trucks when loaded were pushed outside the building by the workmen and unloaded. The brick work around the boiler was still warm when the work was undertaken and the adjoining boiler was in operation under a head of steam stated to be 125 pounds. The partition walls were heated and it is said