which he asks and has been allowed compensation. Plaintiff in certiorari reported the accident to the industrial accident board. In time the board made inquiry of the claimant and was informed that he refused to accept the "provisions of the compensation law and anticipates securing the services of an attorney to file suit against this company."

Again, later, the board addressed another inquiry to claimant, whose attorneys replied that

"We have advised him that his claim comes under the Federal act in relation to employees engaged in interstate commerce and we have notified the Pere Marquette receivers of this fact but have had no reply. It is not his contention [intention] at the present time to make any claim for compensation under the Michigan act."

No such claim was made until March 3, 1917, nearly a year after the injury was received. Meantime, claimant began his suit in the Federal court, issue was joined and a trial thereof was begun. In the course of the trial, the Federal judge called the attention of counsel to the decision in Minneapolis, etc., R. Co. v. Winters, 242 U. S. 353, decided by the Federal Supreme Court January 8, 1917. Plaintiff thereupon, on January 22, 1917, submitted to a nonsuit, with leave to move to set it aside, and later, satisfied there could be no recovery under the Federal act, the nonsuit became absolute. On April 1, 1916, and again on April 11, 1916, compensation was offered claimant under the Michigan act and was refused.

The board having allowed him compensation in an order made April 12, 1917, the question presented for decision is whether the claim for compensation should have been made within six months after the injury and, not having so been made, the right to compensation is lost.

The language of the act answers the question. It is provided that

*

"No proceedings for compensation for an injury under this act shall be maintained, * * unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same." 2 Comp. Laws 1915, § 5445.

This provision the board construed and treated as if it read:

"No proceedings for compensation for an injury under this act shall be maintained unless the claim for recompense with respect to such injury shall have been made within six months after the occurrence of the same.

Saying, further:

"In a broad sense the application made claim. In the narrow sense of the act he did not. We prefer to hold that he made all the claim he was required to make until the Supreme Court shall decide otherwise. We also think that under the circumstances of this case, the conduct of the respondent was such as to waive the making of a claim by the applicant. The applicant could not file any formal claim within the six months without endangering what he considered his right to recover under the Federal employers' liability law. Section 1, of part 6, of the workmen's compensation law (2 comp. Laws 1915, § 5488), provides:

""If the employee, or his dependents, in case of his death, of any employer subject to the provisions of this act files any claim with, or accepts any payment from such employer, or any insurance company carrying such risk, or from the commissioner of insurance on account of personal injury, or makes any agreement, or submits any question to arbitration under this act, such action shall constitute a release to such employer of all claims or demands at law, if any, arising from such injury.'

"As long as the applicant thought he was entitled to recover under the Federal employers' liability act, he could not safely accept any money under the workmen's compensation law, nor could he file any notice of claim with the industrial accident board. If he did so his action would have constituted a release to the employer of all claims he thought he had under the Federal employers' liability act.

"Section 6, of part 3, of the workmen's compensation law (2 Comp. Laws 1915, § 5459), reads as follows:

"If the employer, or the insurance company carrying such risk, or commissioner of insurance, as the case may be, and the employee fail to reach an agreement in regard to compensation under this act, either party may notify the industrial accident board, who shall thereupon call for the formation of a committee of arbitration. The committee of arbitration shall consist of three members, one of whom shall be a member of the industrial accident board, and shall act as chairman. The other two members shall be named respectively by the two parties.'

"Under that section, the respondent employer might have called for the formation of a committee of arbitration. It could have notified the industrial accident board that it owed the applicant; it could have demanded arbitration. It did fail to reach an agreement in regard to compensation with the applicant. If it had applied for arbitration in the matter the presumption would legally follow that the industrial accident board would have held that the employee was not an interstate commerce employee and would have made an award along the lines contended for by the respondent.'

We consider, and have in substance held, that the statute provision referred to is a limitation affecting not only the remedy but the right of an injured employee. Podkastelnea v. Railroad Co., 198 Mich. 321. The judicial power does not extend to setting aside the plain terms of the law. The proceeding is special. The condition of giving notice of a claim for compensation, controlling the right to demand the same, is clear. There is no room for construction, and the difficulties attending upon a judicial variance from the legislative rule are obvious. Perhaps the legislative rule ought to be changed: a question for the legislature. But I can see no difficulty in such a case if the right to compensation under the Michigan law is preserved by notice, although the right way be doubtful. If the case falls within the Federal statute, remedy under

that statute is exclusive; if within the Michigan law, the Federal law has no application. But if a right under the Michigan law is claimed, notice of the claim must be given within six months after the injury is received.

The order awarding compensation is set aside, with costs to plaintiff in certiorari.

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

FELLOWS, J. I think this case is ruled by Cooke v. Furnace Co., ante, 192; Kalucki v. Foundry Co., ante, 604; and Dane v. Traction Co., ante, 612. For the reason stated in these cases I concur in the reversal of this case.

DREIJER v. DREIJER.

- DISCRE

DIVORCE-SEPARATE MAINTENANCE-ABSOLUTE DIVORCETION OF COURT. Where a wife filed a bill asking for separate maintenance, defendant filing an answer in the nature of a cross-bill asking for a decree of divorce, and a decree was entered providing for separate maintenance and ordering defendant to pay plaintiff $5 a week; and about a year later defendant moved to modify the decree by granting an absolute divorce and reducing the amount of alimony, in view of the record before this court, settled by agreement, showing that defendant admits his adulterous conduct charged in the original bill, and that he is in default in the payment of alimony, neither the best interests of the parties nor any consideration of public policy requiring the

exercise by the court of its discretion to grant an absolute decree, and, the amount of alimony being reasonable, the order of the court below denying the motion will be affirmed.

Appeal from Kent; Gilday, J., presiding. Submitted January 15, 1918. (Docket No. 77.) Decided March 27, 1918.

Bill by Susie Dreijer against George Dreijer for separate maintenance and alimony. Defendant filed a cross-bill asking for a divorce. A decree was entered for plaintiff and the defendant's cross-bill dismissed. From an order denying defendant's motion to amend, defendant appeals. Affirmed.

Ellis & Ellis, for plaintiff.

H. Monroe Dunham (Arthur R. Sherk, of counsel), for defendant.

OSTRANDER, C. J. Plaintiff is 44, and defendant 47, years of age. They were married in November, 1890, have had five children, four of them-three girls and one boy-living and married. In August or September, 1915, plaintiff filed her bill against defendant asking a decree for separate maintenance and for general relief. In the bill she charges defendant with sexual commerce with other women and shameful conduct. He answered the bill and in his answer asked for affirmative relief, namely, for a decree of divorce. He denied the charges made by his wife and accused her of listening, willingly, to gossip about himself, making unfounded reports the basis of her charges, and unwifely behavior. She answered his cross-bill.

The cause was heard upon pleadings and proofs and a decree made, February 3, 1916, divorcing the parties from bed and board and providing for the separate maintenance of plaintiff by defendant, who is ordered