IC-NRLF tlfl MICHIGAN WORKMEN'S i COMPENSATION CASES INCLUDING RULES OF PROCEDURE FORMS AND BLANKS JULY 1910 PUBLISHED I1Y INDUSTRIAL ACCIDENT HOARD GIFT OF DOCUMENTS DEPT. STATE OF MICHIGAN WORKMEN'S COMPENSATION CASES Determined By INDUSTRIAL ACCIDENT BOARD AND SUPREME COURT Also Administration and Practice, Rules of Procedure, Forms and Blanks. LANSING, MICHIGAN WYNKOOP HALLENBECK CRAWFORD CO., STATE PRINTERS 1916 MEMBERS AND OFFICERS OF MICHIGAN INDUSTRIAL ACCIDENT BOARD- JOHN E. KINNANE, Chairman, THOMAS B. GLOSTER, JAMES A. KENNEDY. FRED A. ZIERLEYN, Deputy Commissioner, ORA E. REAVES, Deputy Commissioner, GILBERT W. DICKSON, Secretary. 340586 TABLE OF CASES. PAGE. Acme Universal Joint Manufacturing Co., Hindman v . . . 56 Acme White Lead & Color Works, Adams v 122, xiii Adams v. Acme White Lead & Color Works 122, xiii Agler v. Michigan Agricultural College 98, xiv Alderdyce, Keyes-Davis Company v. 336 American Car & Foundry Company, Bischoff v 362 American Car & Foundry Company, Jankowski v 327 American Car & Foundry * Company, Kalucki v 390 American Car & Foundry Company, Matwiczuk v 89 Andrewjeski v. Wolverine Coal Company 267 Bacik v. Solvay Process Company 48 Bayer v. Bayer 435 Bayer, Bayer v 435 Bayne v. Riverside Storage & Cartage Company 248 Beaudry v. Watkins and Radcliffe 439 Beckwith, Estate of P. D. V. Spooner 28'5 Bell v. Hayes-Ionia Company 447 Bernard v. Michigan United Traction Company xii Bevans v. Stewart Laundry Company 388 Bischoff v. American Car Foundry Company 362 Black Masonry & Contracting Co., James, Dyer v 52, 488 Blair, et al., Hills v 250 Blynn v. City of Pontiac 231 Bruce v. Taylor and Maliskey 442 Brule Timber Company, Malzac v 330 Carpenter v. Detroit Forging Company 378 vi MICHIGAN WORKMEN'S COMPENSATION CASES. PAGE. Chalmers Motor Company, Clem v 175 City Electric Railway Company, McKay v 63 Clark v. Clark 308 Clark, Clark v 308 Clem v. Chalmers Motor Company 175 Cline v. Studebaker Corporation 214 Commonwealth Power Company, Worden v 14 Consumers Ice & Fuel Company, Linsner v 61 Continental Motor Manufacturing Company, Posner v. . . 29 Damps v. Michigan Central Railroad Company 25 Deem v. Kalamazoo Paper Company 219 Denton's Sleeping Garment Mills, Dr., Redfield v 139 Detroit, City of, Marshall v 57 Detroit, City of, Wood v 77, xii Detroit Forging Company, Carpenter v 378 Detroit, Mt. Clemens & Marine City Ry., Finn v 222 Detroit Saturday Night Company, Spooner v 148 Detroit Shade Tree Company, Kunze v 467 Detroit Steel Products Company, Jendrus v 106 Detroit-Timken Axle Co., Mackin v xi Detroit United Railway, Foley v 352 Dodge Brothers, Oleskie v 45 Dyer v. James Black Masonry & Contracting Company. 52, 488 Embury -Martin Lumber Company, Tuttle v 471 Fiege Desk Company, Hirschkorn v 206 Finn v. Detroit, Mt. Clemens & Marine City Ry 222 Fitzgerald v. Lozier Motor Company 302 Foley v. Detroit United Railway 352 Ford Motor Company, Konkel v 324 Gignac v. Studebaker Corporation 204 Grand Rapids, City of, Vereeke v 244 TABLE OF CASES. vii PAGE. Grand Rapids Show Case Co., Lardie v 17 Grand Trunk Railway Company, Papinaw v 164 Grove v. Michigan Paper Company 241 Hart, Harry, In re 338 Hayes-Ionia Company, Bell v 447 Hills v. Blair, et al 250 Hills v. Oval Wood Dish Company 11, 431 Hindman v. Acme Universal Joint Mfg. Company 50 Hirschkorn v. Fiege Desk Company 206 Hoertz & Son, et al., Charles, Opitz v 311 Hopkins v. Michigan Sugar Company 185 Jankowski v. American Car & Foundry Company 327 Jendrus v. Detroit Steel Products Company 106 Kalamazoo Paper Company, Deem v 219 Kalucki v. American Car & Foundry Company 390 Kennelly v. Stearns Salt & Lumber Company 341 Keyes-Davis Company v. Alderdyce 336 Kilgren v. E. H. Stafford Manufacturing Co. 461 Klawinski v. Lake Shore & Michigan Southern Railway. . 194 Konkel v. Ford Motor Company 324 Kunze v. Detroit Shade Tree Company 467 Lake Shore & Michigan Southern Ry., Klawinski v 194 Lardie v. Grand Rapids Show Case Company 17 La Veck v. Parke, Davis & Company 35 Limron v. Pere Marquette Railroad Company 300 Lindsteadt v. Louis Sands Salt & Lumber Company 370 Lin sner v. Consumers Ice & Fuel Company 61 Little Company, C. H., Rider v 321 Lozier Motor Company, Fitzgerald v 302 McCoy v. Michigan Screw Company 295 viii MICHIGAN WORKMEN'S COMPENSATION CASES. PAGE. McKay v. City Electric Railway Company 63 Mackin v. Detroit-Tiinken Axle Company xi Malzac v. Brule Timber Company 330 Marshall v. City of Detroit 57 Matwiczuk v. American Car & Foundry Company 89 Maxwell Motor Company, Weaver v 200 Michigan Agricultural College, Agler v 98, xiv Michigan Cabinet Company, Visser v 319 Michigan Central Railroad Company, Damps v 25 Michigan Paper Company, Grove v 241 Michigan Screw Company, McCoy v 295 Michigan Sugar Company, Hopkins v 185 Michigan United Traction Company, Bernard v xii Miller v. Riverside Storage & Cartage Co 209 Moon Lake Ice Company, Ramlow v 485 New York Central Company, Schrewe v 459 Oleskie v. Dodge Brothers 45 Opitz v. Charles Hoertz & Son, et al 311 Original Gas Engine Company, Robbins v 344 Oval Wood Dish Company, Hills v . : 11, 431 Papinaw v. Grand Trunk Railway Company 164 Parke, Davis & Company, La Veck v 35 Parke, Davis & Company, Shafer v 7 Pederson v. J. W. Wells Lumber Company 21 Pere Marquette Railroad Company, Limron v 300 Pinel v. Rapid Railway System 192 Pontiac, City of, Blynn v 231 Posner v. Continental Motor Manufacturing Company. . 29 Purdy v. City of Sault Ste. Marie 65, xii Quincy Mining Company, Schoenreiter v 32 TABLE OF CASES. . ix PAGE. Rainlow v. Mooii Lake Ice Company 485 Rapid Railway System, Pinel v. 192 Rayner v. Sligh Furniture Company 279 Reck v. Whittlesberger 259 Redfield v. Dr. Den ton's Sleeping Garment Mills 139 Rider v. C. H. Little Company 321 Riverside Storage & Cartage Company, Bayne y 248 Riverside Storage & Cartage Company, Miller v 209 Robbins v. Original Gas Engine Company 344 Roberts et al. v. Whaley and Edwards 453 Robinson v. Wayne County Moving & Storage Company . . 464 Sands Salt & Lumber Company, Louis, Lindsteadt v 370 Sault Ste. Marie, City of, Purdy v 65, xii Schoenreiter v. Quincy Mining Company 32 Schrewe v. New York Central Railroad Company ...... 459 Scott v. What Cheer Coal Company 1 Shafer v. Parke, Davis & Company 7 Sligh Furniture Company, Rayner v 279 Solvay Process Company, Bacik v 48 Spooner v. Detroit Saturday Night Company 148 Spooner, Estate of P. D. Beckwith v .- 285 Stafford Manufacturing Company, E. H., Kilgren v 461 Stearns Salt & Lumber Company, Kennelly v 341 Stewart Laundry Company, Bevans v 388 Studebaker Corporation, Cline v 214 Studebaker Corporation, Gignac v. . 204 Taylor and Maliskey, Bruce v 442 Tuttle v. Embury-Martin Lumber Company 471 Vereeke v. City of Grand Rapids 244 Visser v. Michigan Cabinet Company 319 Watkins and Radcliff e, Beaudry v 439 MICHIGAN WORKMEN'S COMPENSATION CASES. PAGE. Wayne County Moving Storage Company, Robinson v. . . 164 Weaver v. Maxwell Motor Company 200 Wells Lumber Company, J. W., Pederson v 21 Whaley and Edwards, Roberts, et al. v 453 What Cheer Coal Company, Scott v 1 Whittlesberger, Reck v 259 Wolverine Coal Company, Andrewjeski v 267 Wood v. City of Detroit 77, xii Worden v. Commonwealth Power Company 14 INTRODUCTION. This Report of Workmen's Compensation Cases and Rul- ings has been prepared and published by the Michigan In- dustrial Accident Board as an aid in the understanding and administration of the law. It substantially covers the de- velopment and administration of the Compensation Law up to the date of publication, July, 1916, and contains, in addi- tion to the formal opinions of the Board and Supreme Court, the Rules of Procedure, Rules and Practice to be followed in reporting accidents and adjusting cases, Miscellaneous Rulings, Opinions by the Attorney General, etc. The formal written opinions filed by the Board in what are considered leading cases, involving the interpretation of important fea- tures of the law, are published in full. All the decisions handed down by the Supreme Court in cases appealed from the decision of the Board are included in the report. These together with the Miscellaneous Rulings and other matter will, we think, show the system of administration and inter- pretation as developed to date. It is believed that the Report will furnish those interested in the administration of the law, or taking proceedings under the same, a means of informa- tion and guidance which can be easily and effectively used. FUNDAMENTAL DECISIONS. The constitutionality of the Michigan Law was settled in the case of Mackin vs. Detroit-Timken Axle Company, Vol. 22, Detroit Legal News, 588, the opinion being exhaustive and ably sustaining practically every feature of the law. After stating the facts in that case and before proceeding to a dis- cussion and disposition of the legal points raised, the Court by way of introduction states the controlling principles: xii MICHIGAN WORKMEN'S COMPENSATION CASES. "It is to be recognized at the outset that workmen's compensation legislation of this class, based on the economic principle of trade risk in that personal injury losses incident to industrial pursuits are like wages and breakage of machinery a part of the cost of production, works fundamental changes in the familiar principles underlying and governing the doctrine of liability for negligence as heretofore applied to the relation of master and servant. But it by no means follows that this comparatively recent and radical legislation upon the subject, enacted to meet changed industrial condi- tions and afford relief from evils and defects which had developed under the old rules of law in negligence cases for personal injuries of employes, violates the spirit or letter of our constitution." The only remaining constitutional objection was that urged by the City of Detroit and the City of Sault Ste. Marie against the provision of the Michigan Act making it manda- tory as to municipalities, claiming that it invaded the right of local self-government extended to cities under the consti- tution of the State; also that it was in conflict with the charter provisions relative to making and giving notice of claims against cities. Both of the above cases were decided against the objecting cities, the question of the constitutional right to local self-government being fully discussed and dis- posed of in the case of Mary Wood v. City of Detroit, and the charter question in Purdy v. City of Sault Ste. Marie. These decisions were by the Supreme Court and in both cases affirm- ed the position taken by the Board. The question as to when the employer becomes subject to the Workmen's Compensation Law is decided in Bernard v. Michigan United Traction Company, Vol. 22, Detroit Legal News, 945. Under the Michigan Act, which is elective, the first step to be taken by the employer in becoming subject to its provisions, is to file with the Industrial Accident Board INTRODUCTION. xiii a written acceptance. The law further provides for the ex- amination and approval of acceptances so filed, by the Board. The injury in this case occurred between the time of the filing of the acceptance and its approval. The court held that the new status created by the Compensation Law is not estab- lished until tKe approval of the acceptance and that the date of such approval is controlling. OCCUPATIONAL DISEASES. Adams v. Acme White Lead d Color Works, 182 Mich. 157, was a case of death from lead poisoning, the lead being gradu- ally absorbed into applicant's system while at work in re- spondent's plant. The body of the Michigan Act provides for compensation in cases where the employe receives a a personal injury," while the language used in the title of the Act is "personal injury by accident." It was held by the Supreme Court that the law does not cover occupational diseases such as lead poisoning, but must be limited to personal injuries received by accident, the restrictive language in the title and other matters pointed out in the opinion being the basis for this construction. EVIDENCE. The Supreme Court has uniformly held that the findings and' decisions of the Industrial Accident Board as to matters of fact are conclusive and not subject to review on appeal, if such findings are supported by competent evidence. The Court has also held that the Board in arbitrations and hear- ings before it is bound by the established rules of evidence, intimating however that such rules perhaps should not be as strictly applied as in regular court proceedings. Hearsay evidence is discussed in some of the cases and the weakness and unreliability of that class of testimony pointed out. How- ever, the Court has distinctly held that an award is not to be reversed because incompetent or hearsay evidence was admitted at the hearing, if enough competent evidence is found to rea- xiv MICHIGAN WORKMEN'S COMPENSATION CASES. sonably sustain the decision. The cases touching upon this subject will be readily found by referring to the index of this Report under the head of "Evidence," as will another class of cases involving the question of circumstantial evidence where there is no eye witness to the accident and no one hav- ing personal knowledge of facts upon which the decision of the case depends. The Regents of the University of Michigan and the State Board of Agriculture are constitutional bodies not subject to Legislative control, and therefore not subject to the Compen- sation Law without filing an election to come under its pro- visions. Agler v. Michigan Agricultural College, 181 Mich. 559. The Regents of the University of Michigan have filed their acceptance of the Compensation Law and are operating under the same. No acceptance has been filed by the State Board of Agriculture. There are now in effect the acceptances of 17,000 employers of labor covering more than 700,000 workers in the State. The amounts paid for compensation to injured workers and their dependents, exclusive of medical and hospital service furnished, approximate one and a half millions of dollars yearly. INDUSTRIAL ACCIDENT BOARD. JOHN E. KINNANE, Chairman, THOMAS B. GLOSTER, JAMES A. KENNEDY. STATE OF MICHIGAN INDUSTRIAL ACCIDENT BOARD. DECISIONS AND OPINIONS OF THE BOAKD IN WORK- MEN'S COMPENSATION CASES WITH THE DECI- SIONS AND OPINIONS OF THE SUPREME COURT IN ALL ADJUDGED CASES. ARCHIBALD SCOTT, Applicant, vs. WHAT CHEER COAL COMPANY, Respondent. HERNIA RESULT OF ACCIDENT OR DISEASE. Applicant was employed as driver by respondent in its coal mine. The cars driven by him ran on tracks and were frequently liable to jump off. When this occurred, it was the duty of the driver to get the car back on the track. While attempting to lift a car back onto the track, applicant suffered a strain which resulted in an inguinal hernia. He was awarded compensation for four weeks, by an arbitration committee, together with hospital and medical expenses. The question involved is, whether the hernia should be classed as an accident within the meaning of the Com- pensation Act. HELD: 1. That although the strain was received while in the per- formance of applicant's ordinary work, it was the result of an extraordinary exertion and therefore should be classed as an accident within the meaning of the Act. 2. That before the workman is entitled to compensation in 2 MICHIGAN WORKMEN'S COMPENSATION CASES. case of hernia, it must be shown to have the essentials of an accidental injury, and it must arise out of the work, as from a strain or some other occurence. Hernia occurring without any strain and without the elements that are necessary to constitute an accident would not come within the meaning of the law. Appeal of What Cheer Coal Company from the decision oJ an arbitration committee awarding compensation to Archi- bald Scott for an injury sustained by him while in respond- ent's employ. At the hearing of this cause on review a gen- eral invitation was extended to all interested in the subject of hernia to participate in such hearing and file briefs. The case was exhaustively argued and a large number of able briefs filed, the purpose of the general hearing being to con- sider and determine the status of hernia cases under the Workmen's Compensation Law. It was contended on behalf of respondent that hernia should be classed as an accident only in a few rare cases. Opinion by the Board : The applicant, Archibald Scott, was employed as a driver by respondent in its coal. mine, and as such it was his duty to drive trains of coal cars drawn by mules through the various passages and entries of the mine, the cars running on an iron track. It was quite a common occurrence for one or more of such cars to jump the track, and in such case it was the duty of the driver to get the car back on to the track and proceed with his trip. Each of the empty cars weighed about one thousand pounds. On March 23, 1914, while the applicant was so employed, one of the cars left the track and became wedged in between the transfer rail and the straight rail of the track. Applicant attempted to lift the car back on to the track and while so doing felt a strain in the abdomen. It pained him for a few minutes and then seemed to go away. That night when changing his clothes at the wash shanty he noticed a small swelling, which turned out to be an inguinal hernia. He went hack to work on the following day, which was Tuesday, and continued working until Friday night when ARCHIBALD SCOTT vs. WHAT CHEER COAL COMPANY. 3 he went to a doctor for an examination. The last two days that he worked it distressed him considerably. On Saturday lie reported the matter to the company and on the following day submitted to an operation which was successful and re suited in a complete cure. The arbitration committee awarded the applicant compensation for four weeks, together with hospital and medical expenses. The applicant testified that lie noticed the pain directly at the time he was lifting on the car while trying to replace it on the track, that he examined himself when he went to the wash-house that evening and found the swelling, and that it increased in size during the three or four days following until he went to a doctor. He further testified that in replacing a car on the track it was necessary to lift with all his might. That prior to lifting on the day in question there was no swelling or appearance of hernia. At the time of rehearing of this case, a general invitation was given to those interested in the general subject of hernia to participate in the rehearing and to file briefs. The case was exhaustively argued and a number of able briefs filed,. the purpose of the general hearing being to consider and de- termine in a general way the status of hernia cases under the Workmen's Compensation Law. It is contended that putting derailed cars back upon the n-ack is a part of the ordinary work of a driver, and that a hernia resulting from the applicant's ordinary work is not an accident within the meaning of the law. It is also contended that inguinal hernia in a large majority of cases is not the result of accident, but comes from bodily weakness which is usually congenital. These claims were strenuously urged and have been given careful consideration and investigation by the Board. In the opinion -of the Board it is fairly shown that the ap- plicant, while exerting himself to replace the car upon the track, sustained a strain which produced the hernia; that he was not- subjected to any external violence; and that the her- nia was brought on by lifting on the car, something which 4 MICHIGAN WORKMEN'S COMPENSATION CASES. he was frequently required to do in the course of his work. We do not think the mere fact that the strain was received in performing his ordinary work makes the occurrence any less an accident. Almost the precise question was under consid- eration in the case of Clover, Clayton & Company vs. Hughes, by the House of Lords, 3 B. W. C. C. 275, the date of the de- cision being March 14, 1910. The alleged accident in that case was the rupture of an aneurism while the employe was engaged in doing his ordinary work, and it was contended that because nothing unusual happened in connection with his work that it was not an accident within the meaning of the British Workmen's Compensation Law. We quote from the prevailing opinions in the above case: "I do not think that we should attach any importance to the fact that there was no strain or exertion out of the ordinary. * * * * If the degree of exertion beyond what is usual had to be considered in these cases, there must be some standard of exertion, varying in every trade. Nor do I think we should attach any importance to the fact that this man's health was as described. If the state of his health had to be considered, there must be some standard of health, varying, I suppose, with men of different ages. An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or the condition of health." Again we quote from opinion on page 280: "Certainly it was an 'untoward event.' It was not designed. It was unexpected in what seems to me the relevant sense, namely, that a sensible man who knew the nature of the work would not have ex- pected it. I cannot agree with the argument presented to your Lord- ships that you are to ask whether a doctor acquainted with the man's condition would have expected it. Were that the right view then it would not be an accident if a man very liable to fainting fits fell in a faint from a ladder and hurt himself. No doubt the ordinary acci- dent is associated with something external; the bursting of a boiler, or an explosion in a mine, for example. But it may be merely frOm the man's own miscalculation, such as tripping and falling. Or it may be due both to internal and external conditions, as if a seaman were to faint in the rigging and tumble into the sea. I think it may also be something going wrong within the human frame itself, such ARCHIBALD SCOTT vs. WHAT CHEER COAL COMPANY. 5 as the straining of a muscle, or the breaking of a blood vessel. If that occurred when he was lifting a weight it would be properly described as an accident." Again we quote from the opinion on pages 283 and 284: "The man 'broke part of his body,' to borrow Lord Robertson's ex- pression in Brintons v. Turvey, 7 W. C. C. 1. And he certainly did not mean to do it. * * * * The fact that the man's condition pre- disposed him to such an accident seems to me to be immaterial. The work was ordinary work; but it was too heavy for him. * * * * The fact that the result would have been expected, or indeed contemplated as a certainty, by a medical man of ordinary skill if he had diagnosed the case, is, I think, nothing to the purpose. An occurrence, I think, is unexpected, if it is not expected by the man who suffers by it." In Fenton vs. J. Thorley & Co. Ltd. 5 W. 0. C. (the same being a House of Lords case), it is said on page 4: "If a man, in lifting a weight or trying to move something not easily moved, were to strain a muscle, or rick his back, or rupture himself, the mishap in ordinary parlance would be described as an accident. Anybody would say that the man had met with an acci- dent in lifting a weight, or trying to move something too heavy, for him." Bradbury in his work on Workmen's Compensation, Page 367, Vol. I, Second Edition, stated the general rule as follows: "Rupture caused by overexertion in the course of a man's work is an accident within the meaning of the Compensation Act." Citing a large number of English and American Authorities. The same general rule is laid down in Boyd's Workmen's Compensation on Page 1043. It has also been adopted by the United States Government in the administration of the Com- pensation Law applicable to government employes, the prin- ciple being stated as follows: "A person whose duty requires him to lift heavy weights may, in so doing, overstrain himself and cause a rupture. Even though the rupture be due, in some degree, to the naturally feeble condition of the employee, he would, without doubt, be entitled to the benefits of 6 MICHIGAN WORKMEN'S COMPENSATION CASES. the act." See Opinions of Solicitor for Department of Commerce and Labor, Page 151. We do not overlook the medical evidence introduced on the hearing to the effect that hernia should be classed as an ac- cident only in a few rare cases. We think that the weight of authority in workmen's compensation cases is clearly against such theory, and that the general rule established in the adjudicated cases and the text books is otherwise. The Board is of the opinion that there are many cases of hernia which occur under such circumstances that they could not be considered the result of accident. But we think it would be neither possible nor practicable to enumerate such conditions, as each case would have to depend upon its own peculiar facts and circumstances, and these may vary as widely as the field of human experience, depending upon things that could not be reasonably foreseen or predetermined by rule. It seems clear that before the workman is entitled to com- pensation in case of hernia, it must be shown to have the es- sentials of an accidental injury, and it must arise out of the work, as from a strain or some other occurrence. Hernia oc- curring without any strain and without the elements that are necessary to constitute an accident would not come within the meaning of the law. The award of the committee on arbitration is affirmed. HUGH SHAFER vs. PARKE, DAVIS & COMPANY. HUGH SHAFER. Applicant, vs. PARKE, DAVIS & COMPANY, Respondent. FARM LABORERS SUFFICIENT NOTICE. Respondent drug company maintained a farm for the purpose of raising horses, guinea pigs, etc., which are used for the purpose of obtaining anti-toxins, serums, and vaccines. Applicant, while employed on this farm, was kicked in the thigh by a horse and received an injury resulting in a permanent partial disability. Compensation was denied on the ground that farm laborers do not come within the benefits of the act, and that applicant failed to give notice of his injury within the required time. HELD: 1. That the Act does not exclude farmers from accept- ing the provisions of the law, but exempts them from its opera- tion merely in the sense that they suffer no harm by not coming under it. 2. The work carried on at respondent's farm was in reality a part of its general manufacturing business. 3. The fact that the injury was reported to the farm super- intendent within a few days, and claim was made for compensa- tion in a letter to the company within the time required by law, was sufficient notice of applicant's claim. Appeal of Hngh Shafer from the decision of an arbitration committee denying compensation for injuries received while applicant was working on a farm owned by Parke, Davis & Company. Decision reversed and compensation ordered paid. Opinion by the Board: Parke, Davis & Company, the respondent, is a corporation organized under the laws of the State of Michigan, its char- acter and scope being set forth in the articles of incorporation as follows: "The purpose or purposes of this corporation are as follows: The 8 MICHIGAN WORKMEN'S COMPENSATION CASES. manufacture and sale of chemicals and Pharmaceuticals; the propaga- tion and sale of serums, vaccines, toxins, anti-toxins, and biological and bacteriological products generally; the printing, publication and sale of medicinal and pharmaceutical pamphlets, books and magazines, and all business incident to such manufacture, propagation, printing, publication and sale." The business in which respondent is actually engaged under its corporate charter is set forth in some detail in its brief filed in this case, as follows: "Incidental to the manufacture and sale of said chemicals and Pharmaceuticals, respondent is extensively engaged in the business of manufacturing machines, glass ware, boxes, cartons, display cards, etc. Respondent also maintains a large printing plant, garage, fire department, biological laboratory, medicinal research department, ex- perimental department, auditing department, law department, and, last but not least, a farm." The so-called farm of respondent consists of a tract of land near Rochester, Michigan, where about 40 hands are employed. On this farm are kept from 200 to 300 horses, about 2,500 guinea pigs, 10 cows, and a considerable number of rabbits and other animals. The principal output of the farm consists of toxins, anti- toxins, serums and vaccines produced from the animals afore- said by inoculation, treatments and sundry processes. These were mainly shipped to the Detroit plant of the company, which is a large manufacturing and commercial plant, em- ploying over 2,000 men, where they are prepared for market and sent out to the trade as part of the regular business of the company. The applicant was injured while working on this farm, so- called, by a kick from a horse which fractured the neck of the left femur, resulting in what apparently is permanent partial disability. Part of his work on the farm was taking caro of the horses, preparing them for operations and assisting the operator. The ten buildings on the farm included an operat- ing room and a laboratory. Crops were raised on the land, HUGH SHAFER vs. PARKE, DAVIS & COMPANY. 9 consisting of grain and hay, the same being used generally in feeding and caring for the animals. Its acceptance of the Workmen's Compensation Law was filed by respondent on August 31, 1912, and approved by the Board on September 12th of the same year, the same being the usual unconditional acceptance of the provisions of the Act. It is contended that applicant was working for respondent at the time of the injury as a farm laborer and that the Law, together with election of respondent to come under it, did not include respondent's farm laborers within its benefits. It is further contended that applicant failed to give notice of in- jury and to make claim for compensation within the times required by the Act, and for these reasons must be denied com- pensation. The only reference to farm laborers in the Act is found in Section 2 of Part I, and is merely a declaration that Section 1, which repeals the special defenses, shall not apply to actions for the recovery of damages by farm laborers. This does not exclude farmers from coming under the Law, but exempts them from its operation merely in the sense that they suffer no harm from not coming under it. The farmer may come under the Law by filing his acceptance if he so desires,, and if such acceptance is unconditional his employes would be entitled to compensation in case of injury the same as if he were engaged in manufacturing, mining, or any other bus- iness. The contention that he may, if he choose, file an ac- ceptance for the benefit of only a part of his men, because exempt from the provisions of the Law in the above sense, would not change the situation even if sustained, for the rea- son that the acceptance of the respondent in this case is un- conditional and does not assume to exclude any of its em- ployes. Also for the further reason that a manufacturing and commercial corporation such as respondent could not well be classed as a farmer. Respondent's claim must fail for another reason. The work carried on at the so-called farm constituted a part of the man- 10 MICHIGAN WORKMEN'S COMPENSATION CASES. ufacturing business of the company. Keeping the animals and also raising grain and fodder for their support are, we think, a part of the process in the manufacture and produc- tion of serums, toxins, anti-toxins and vaccines. If these animals were maintained in a part of respondent's plant in the city of Detroit, and vaccines, toxins and serums pro- duced from them, it would be clearly considered a part of the general process of manufacture. The fact that this w r ork was carried on at another place outside of the city, where bet- ter facilities and conditions could be obtained, does not change its character, and the further fact that the company could there grow grain and hay for the support of its animals, makes it no less a part of their business of manufacturing and marketing drugs and chemical products. The contention that notice of the injury was not given and that claim for compensation was not made within the times required, are not sustained by the evidence. The injury was reported to Dr. Wilson, the superintendent of the farm, a few days after it occurred, and claim was made for compensa- tion from the company by letter within the time required by Law. The fact that a formal claim on the blank of the Board was later served would not change the situation. The decision of the committee on arbitration is reversed and compensation is awarded to the applicant. ASAPH HILLS vs. OVAL WOOD DISH COMPANY. 11 ASAPH HILLS, Applicant, vs. OV.AL WOOD DISH COMPANY and MICHIGAN WORKMEN'S COMPENSATION MUTUAL INSURANCE COMPANY. Respondents. INJURY REFUSAL TO HEAL WITHIN REASONABLE TIME. Applicant, while working at an edging machine in respondent's mill, on May 13, 1914, received a severe injury to his right arm. Under an agreement with respondent he was paid compensation for the injury without objection until Dec. 17, 1914, at which time respondent filed a petition to stop compensation, claiming that the refusal of the wound to heal was the result of a venereal disease with which applicant was afflicted and that in a normally healthy man the wound should have healed within fourteen weeks. HELD: That the Compensation Law does not make any exception for cases of injury to men whose health is impaired or below the normal standard. Neither does it except from its benefits the man who carried in his body a latent disease which in case of injury may retard or prevent recovery. It applies to every man who suffers disability from accidental injury, and does not exclude the weak or less fortunate physically. Petition of Oval Wood Dish Company to be relieved from payment of further compensation to Asaph Hills, on the grounds that applicant's present condition is due to a disease other than his injury. Petition denied. Opinion by the Board : The applicant was a laborer in the saw-mill of the Oval Wood Dish Company of Traverse City, and on May 13, 1914, was injured by having his right arm caught in the gear of an edger. The part of the arm injured was above the elbow. The 12 MICHIGAN WORKMEN'S COMPENSATION CASES. flesh was bruised and torn, and the front part of the arm de- nuded of its skin, exposing the blood vessels and muscles un- derneath. On June 8, 1914, an agreement in regard to com- pensation was made providing for the payment of compensa- tion at f 5.25 per week during the period of disability, and the same was approved by the Board. The injury did not respond readily to treatment, was stubborn in healing, and the appli- cant has been continuously disabled since the time of the acci- dent, and the disability still continues, although there has been some improvement in the arm. On December 17, 1914, respondents filed a petition to stop compensation, claiming that applicant's disability was due to a venereal disease and not to the injury. This petition was denied, and on March 1, 1915, respondents again filed a peti- tion with the Board asking to be relieved from further liabil- ity to pay compensation for the reason that a wound such as applicant received should be completely healed within 14 weeks from the time said wound was received, that number of weeks being the maximum time for such a wound to heal ; and that the continuance of the disability beyond said time was due to a diseased condition of applicant's body, and that such disease is the cause of the wound refusing to heal within ap- proximately 14 weeks. In other words, that the period of time during which compensation is to be paid should be fixed by the estimate of physicians as to the time in which a normal person should recover from such an injury, rather than the fact that the disability continued and the injured man did not so recover. The evidence in this case does not suggest any active dis- ease in applicant's body prior to the injury, nor does it dis- close any substantial evidence of the existence of a bodily disease except the fact that the wound did not readily heal and that symptoms led the physicians to suspect syphilis in the blood, together with some evidence that a Wasserman Test of the blood was had and that such test showed the pres- ence of syphilis. In this connection it should be said that the essential part of the evidence as to the Wasserman Test is ASAPH HILLS vs. OVAL WOOD DISH COMPANY. 13 hearsay, as it consisted merely of an unsworn report sent by mail from the Lincoln-Gardner Laboratories in Chicago, where a sample of applicant's blood had been sent to be tested. The legal question presented by the petition is an import- ant one. If the correct rule for determining the length of time compensation for disability should be paid in case of an injury of this general character is found to be the one con- tended for by respondents, the result will be far-reaching. The question then to be determined in cases of continuing disabil- ity would be whether the injury should have healed, or whether it should have healed more quickly that it did, instead of the actual resulting disability. Instead of the plain question of fact as to the nature and duration of the disability which the injured man actually suffered, it would present for decision the question as to how much he should have suffered, and how soon he should have recovered, upon the theory that only a part of the disability was due to the injury and the remaining part due to disease. In the opinion of the Board, the respond- ent's contention must fail. The Compensation Law does" not fix any standard of physical health, nor does it make any ex- ceptions for cases of injuries to men whose health is impaired, or below the normal standard. Neither does it except from the benefits of the Law the man who carries in his body a latent disease which, in case of injury, may retard or prevent recovery. The Law by its expressed terms applies to every man who suffers disability from injury. It does not exclude the weak nor the less fortunate physically, but was intended for the working men of the state generally, taken as they are. The authorities seem to be strongly against respondents' contention : Boyd's Workmen's Compensation, Sec. 463. Bradbury's Workmen's Compensation, 2d Ed. 385 and 386. Willoughby vs. Great Western Railway Company, 6 W. C. C. 28. Ystradowen Colliery vs. Griffiths, 2 B. W. C. C. 359. This is not a case where the workman was suffering from some active disease or injury at the time of the accident, as applicant was apparently in good health in every respect up 14 MICHIGAN WORKMEN'S COMPENSATION CASES. to the time he received the injury. The difficulties of proving the reasonable duration of disability which should result from an accident is discussed to some extent in the English cases above cited, pointing out the fact that Ward vs. London and Northwestern Railway Company, 3 W. C. C. 193, which at- tempted to make such determination, is no longer regarded as authority. They further suggest the danger of attempting to fix the duration of disability on medical prognosis and opinion evidence, when it is conceded by the medical profes sion itself that it has yet much to learn in such matters. The petition of respondents is dismissed. A. M. WORDEN, Applicant, vs. COMMONWEALTH POWER COMPANY, Respondent. SLIPPING ON ICE INJURY NOT ARISING OUT OF EMPLOYMENT. The applicant was employed by the Commonwealth Power Company to repair and change its lights in the city of Jackson. He used his own horse and wagon in doing the work, keeping the horse in a barn on his own premises, and being paid for his services and that of his horse and wagon the sum of $70 per month. On the date of the injury, applicant had finished his dinner and started for the barn to hitch up his horse and complete his circuit of lights which it was his duty to care for daily, he having no special hours of employment but a certain circuit to cover each day. At a point about half way between the house and barn he slipped and fell on some ice and sustained serious and permanent injuries. HELD: That slipping and falling on ice is one of the most common risks to which the public is exposed, and is encountered by people A. M. WORDEN vs. COMMONWEALTH POWER COMPANY. 15 generally irrespective of their employment, and that the accident under the facts in this case did not arise out of the employment. Application of A. M. TVorden to the Industrial Accident Board for compensation for injuries claimed to have been re- ceived while in the employ of the Commonwealth Power Com- pany. Application denied. Opinion by the Board: The applicant claims compensation in this case for an in- jury received by slipping and falling on some ice on his own premises, the ice in question being situated about half way between his house and barn. He was employed by respondent repairing and changing lights in its lighting system in the city of Jackson, and in doing this work he used his own horse and wagon, which were kept on his own premises in the barn in question. He received |70 per month for his work, and for the use of his horse and wagon, and had been engaged in this work for respondent for many years. He was 71 years of age at the time of the accident. The sole question in this case is one of law, the facts being undisputed. On the day of the accident, the applicant had finished his dinner and started to go from his house to the barn for the purpose of hitching up his horse to go out and complete the circuit of lights in the city which it was his duty to care for daily. At a point about half way between the house and barn he slipped and fell upon some ice, which had accumulated, and sustained serious injury. Did this injury arise in the course of his employment? This question brings us very near to the border line of doubt. It is contended that going from the house to the barn in this case should be governed by the same rule that is applied to a workman going from his house to the shop or place of his employment, and that applicant's employment did not commence until he reached the barn. Also, the fact that the distance between the house and barn in this case was small does not materially change the situa- tion, as the principle would be the same if the barn was 16 MICHIGAN WORKMEN'S COMPENSATION CASES. situated in the next block, or several blocks away from appli- cant's house. On the other hand, it is contended that the ap- plicant had no stated hours of labor; that he had a certain circuit of lights to care for each day, and was in the service of his employer throughout the day until such duties were com- pleted, and that eating his dinner and feeding his horse were mere incidents of such employment. The more serious question in the case is, did the accident arise out of applicant's employment? Under the language of the statute, two conditions must be present to entitle the in- jured man to compensation, viz., the injury must have hap- pened "in the course of his employment," and it must also "arise out of his employment." The fact that it occurred in the course of the employment merely, if it be a fact, is not enough to entitle him to compensation. It must also appear that the injury "arose out of the employment," and was from a risk reasonably incident to such employment, as distin- guished from risks to which the general public is exposed. To illustrate: Falling from his wagon, or receiving an electric shock, would constitute injuries arising from the risks inci- dent to the emiployment. Many other examples might be given. These would be risks to which he was peculiarly ex- posed by his employment. On the other hand, it may be fairly said that one of the most common risks, to which the general public is exposed is that of slipping and falling upon the ice. This risk is encountered by people generally, irrespective of their employment, particularly so when the accident happens to the party injured while he is walking on his own premises. It is the opinion of the board that when a man is injured, as in this case, by falling on the ice in his own yard, such injury does not arise out of the peculiar character of his employ- ment, but from a condition and danger that is common to all. It follows from this that applicant's claim for compensation must be denied. It is therefore unnecessary to decide the other question in the case, as to whether the injury arose in the course of the employment. EDWARD F. LARDIE vs. GRAND RAPIDS SHOW CASE CO. 17 EDWAED F. LARDIE, Applicant, vs. GRAND RAPIDS SHOW CASE COMPANY, and FURNITURE MUTUAL INSURANCE COMPANY, Respondents. COMPENSATION FOR Loss OF USE OF MEMBER, WHERE MEMBER is NOT AMPUTATED. Applicant was injured while in the employ of respondent by his hand coming in contact with a saw with the result that his little finger was completely severed, his third finger rendered per- manently stiff and the first joint of the index finger likewise became permanently stiff. Compensation was paid for the loss of the little finger, but refused as to the injury to the other two fingers, under a dispute as to whether applicant was en- titled to it under the act (Sec. 10 Part II, Workmen's Com- pensation Law). HELD: 1. That the loss of the use of a member is sufficient to entitle the injured party to compensation as provided in the Act, whether the member is completely severed or not, the action of the surgeon in amputating the finger, or failing to amputate it, not being controlling. 2. The fact that a workman, after suffering the loss of one or more fingers, is able to earn the same wage does not affect his right to the specific indemnity provided in Section 10, Part II of the Law, cuch indemnity being given because the work- man must go through the remainder of his life without the use of the members so lost. Appeal of Edward F. Lardie to the Industrial Accident Board to determine his right to compensation for the perman- ent loss of use of two fingers. Applicant awarded compensa- tion as provided by the statute. 3 18 MICHIGAN WORKMEN'S COMPENSATION CASES. Opinion by the Board: The applicant while in the employ of the Grand Rapids Show Case Company met with an accident by which his right hand was cut on a saw, the little finger being cut off and the first and third fingers permanently injured. The injury to the third finger resulted in its becoming permanently stiff through the destruction of the cord of control, and the injury to the first finger also resulted in permanent stiffness at the first joint from the same cause. The case comes before the Board on written stipulation of facts, and while the stipula- tion does not describe the injury to the fingers with entire clearness, it was conceded on the argument that the injury to the third finger rendered it permanently useless, and that the injury to the first finger rendered the last joint of the same permanently useless. No part of either the third or first finger was severed from the hand. Compensation was paid for the little finger was was severed, and the matter in dis- pute here is whether the applicant is entitled to compensation for the loss of the third and first fingers under Section 10, Part II of the Workmen's Compensation Law providing special indemnity for the loss of fingers and similar members. The stipulation shows that the applicant is now receiving the same or better wages than at the time of the injury. Under the stipulated and conceded facts in the case the en- tire third finger has been rendered permanently useless by the accident, and the last joint of the first finger has also been rendered permanently useless. In other words the applicant has lost entirely the use of the third finger and the injury to the first finger would be equivalent to the loss of one-half of the use of the finger. If entitled to compensation under the specific schedules in Section 10, Part II of the Act, applicant would be entitled to 20 for the third finger and 17% weeks for one-half of the first finger, the weekly rate of compensa- tion being 17.50. Is the loss of the use of a member equivalent to the loss of such member under the Michigan Compensation Law? The EDWARD F. LARDIE vs. GRAND RAPIDS SHOW CASE CO. 19 Board has decided this question in the affirmative, using: the following language : "The action of the surgeon in amputating a finger, or in failing to amputate it, or in choosing the point of amputation, is not controlling in all cases of this kind. The real test in such cases is whether the injured person has been permanently deprived of the use of the finger. If so, then he has suffered the loss of the finger, and the fact that the surgeon failed to remove it does not lessen his loss. If its usefulness is entirely destroyed, he has suffered the loss of the finger as com- pletely as if it had been amputated." The courts have uniformly construed provisions of accident policies insuring against the loss of a member, to cover cases where the usefulness of the member was destroyed by accident without resulting in severance or amputation. 1 Am. & Eng. Enc. Law, 301. Fuller vs. Ins. Co. 122 Mich. 548 ; 48 L. K. A. 86 ; Sneck vs. Trav. Ins. Go. 34 N. Y. Sup. 548. In Fuller vs. Ins. Co., supra, our Supreme Court reviews the authorities bearing upon this point in considerable detail, and declares unequivocally the doctrine that the loss of the use of a member under accident insurance policies is equival- ent to the loss of the member. After reviewing the authorities as above, the Court says: "These cases establish the proposition that where an insurance policy insures against the loss of a member, the word 'loss' should be construed to mean the destruction of the usefulness of the mem- ber, or the entire member, for the purpose to which, in its normal condition, it was susceptible of application. In all these policies the word 'loss' is used, and it is the loss of the member that is in terms insured against. As indicated in the last authorities cited, the at- tempts of insurance companies to avoid this construction by so chang- ing the policy that it reads, 'loss by severance,' has failed; the Courts holding, as before, that it is the loss of the use of the member which was the object of the contract." In Sneck vs. Trav. Ins. Co. 34 N. Y. Sup. 548, the same rule lias held in the state of New York. There the Court said among other things: 20 MICHIGAN WORKMEN'S COMPENSATION CASES. "It would seem to be an extremely narrow and technical construc- tion of this contract to say that only physical removal of every particle of that portion of the human anatomy known as the hand would entitle the injured to recover under the clause of the policy now under consideration. Is it not more reasonable and logical to con- clude that in the use of the language above referred to the 'entire hand' as a part of the human structure is considered in connection with the use to which it is adapted, and the injury which the loss of such use would entail?" The decision in Sneck vs. Travelers Ins. Co. above referred to was affirmed by the Court of Appeals in 156, N. Y. Page 669. The language used in the Workmen's Compensation Law is "loss of finger, etc.", without any specification that such loss shall be by severance or otherwise. The purpose of the Compensation Law is to provide indemnity for the person who suffers such loss in substantially the came sense that such indemnity is provided by an accident insurance contract. We see no reason why the above construction should not be ap- plied to the language providing for specific indemnity for the loss of a member in our law. The mere fact that the injured employe is receiving the same wages after the injury, does not alter the situation. The specific indemnities provided in Sec- tion 10, Part II of the Law are payable to the injured work- man not because the injury prevents him from earning, but because he must go through the remainder of his life without the use of the member lost. A man may lose his forefinger by accident and be able to return to work in two or three weeks. Nevertheless the Law provides that he shall receive compensation for 35 weeks, because throughout the remainder of his life he will be handicapped by the loss of that finger. We find that the applicant is entitled to 37!/o weeks of ad- ditional compensation at $7.50 per week and judgment will be entered accordingly. ELLEN OLSON PEDERSON vs. J. W. WELLS LUMBER CO. 21 ELLEN OLSON PEDERSON, Applicant, vs. J. W. WELLS LUMBER COMPANY, and NEW ENGLAND CASUALTY COMPANY, Respondents. ACCIDENTAL DEATH EVIDENCE. Applicant's decedent was employed by the respondent lumber com- pany at its saw mill, a part of his duties including the piling of lumber on the docks which extended from the mill out into Green Bay a distance of about 700 feet. On the date of the accident, decedent left his home for work early in the morning as usual, taking his dinner in a lunch box, which he left in the engine room of the mill where it would be kept warm, it being the cus- tom of the employes to eat their dinners during the noon hour in and around the engine room. On the day in question while Olson was piling lumber on the dock, his fellow employe, at about 3 minutes to 12 o'clock, said "We will go to dinner" and started towards the mill leaving Olson on the lumber pile. This was the last seen of decedent until his body was recovered from Green Bay 5 months later. It was contended by respondents that the proofs fail to show that decedent met his death by accident aris- ing out of and in the course of his employment, and that the cause and manner of his death rests wholly in conjecture. HELD: The fact that decedent did not come to the engine room for his dinner, and that his body when found still had on the leather apron in which he worked, together with the other circum- stances in the case, justified and reasonably required the inference that decedent met his death by drowning while engaged in per- forming the duties of his employment. Appeal of J. W. Wells Lumber Co. et al. from the decision of an arbitration committee, awarding compensation to Ellen Olson Pederson for the death of her husband. Affirmed, 22 MICHIGAN WORKMEN'S COMPENSATION CASES. Opinion by the Board : On December 4, 1913, Martin Olson, the husband of ap- plicant, was piling lumber on the docks of the respondent lumber company at Menominee, Michigan. He had been a resident of the City of Menominee for fifteen years, was in the employ of the lumber company about 3 years, and at the time of his death was receiving $1.85 per day. His family con- sisted of his wife, who is the applicant in this case, and one child 3 years .old. On the morning of December 4th lie had breakfast at his home and left for work at 5 o'clock in the morning, taking his dinner with him, being dressed in his usual working clothes. That morning as usual he left his dinner pail in the engine room of the mill, and went out on the pier or dock of the com- pany to his regular work of piling lumber. This lumber dock extends from the shore where the mill stands about 700 feet into Green Bay. It consists of an elevated tramway extend- ing from the mill along the center of the docks and 18 or 20 feet above the water. The docks are on each side of the tram- way and consist of timbers resting on spiles driven into the bottom of the Bay, the spaces between the timbers being from 5 to 6 feet in width. Under this tramway boards are laid down on the timbers of the dock making places to walk for the men in coining from and going to their work of piling lumber or loading boats. The lumber to be piled on the dock is brought out from the mill along the tramway in carts and unloaded by one man passing it down from the tramway to another man who builds it up in a pile on the dock timbers resting on the spiles. At the point on the dock where Mr. Olson was last seen alive the Bay is about 16 feet deep, and the timbers of the dock upon which the lumber is piled are generally a little above the water, but when the water is high they are about even with it. On the day in question Mr. Olson was working on the dock piling lumber which was handed down to him by one Isaac Alscok, the pile on which he was working being about 2 feet ELLEN OLSON PEDERSON vs. J. W. WELLS LUMBER CO. 23 high from the timbers of the dock. At about 8 minutes to 12 o'clock Alseok said to Olson, u We will go to dinner/- and Ol- son said "All right." Alseok then started for dinner, going along the Tramway toward the mill. After lie left, Olson could not do any more work as there was no one to hand him lumber. He wore a leather apron and hand-leathers in his work. When Olson did not appear for work in the afternoon in- quiry was made, the Chief of Police was notified and he took his irons and pike pole and endeavored to find Olson's body at or near the place where he was last seen as his work, but without success. One of the hand leathers which were used by Olson was found on the timbers near where he was work- ing. On the 4th of May, 1914, Olson's body was found washed up on the shore about G miles south of the mill, and when found he still had on the leather apron which he was wearing while at work on the forenoon of the day he disappeared. The waters of Green Bay freeze over in the winter, and at the break-up in the spring there are large fields of ice in the Bay which are driven by the winds, sometimes upon the shore, and sometimes in other directions. On the afternoon of the day Olson disappeared, his dinner paid was found in the engine room of the mill unopened and his lunch undisturbed. There were about 400 men working in and about the mill, mill-yards and docks, but no. one could be found who had seen Olson after Alseok left him on the lumber dock about 8 minutes be- fore noon. Mr. Olson was about 50 years of age, was sober and in- dustrious, owned the home which he occupied, and had $1,500 in the bank. On the day of his disappearance a lumber barge which was loading at the same dock where he was working went out that afternoon. Olson was a large man weighing about 250 pounds. The Chief of Police continued to drag the water in the vicinity of the docks for li or 4 days, and later procured a diver who spent the entire day searching in the water for Olson's body. It is the claim of the applicant that Mr. Olson accidentally fell from the dock and was drowned at 24 MICHIGAN WORKMEN'S COMPENSATION CASES. or about the time that they quit work for dinner. Respond- ents claim that the proofs fail to show that Olson met his death by accident arising out of and in the course of his em- ployment, and that the cause and manner of his death rests wholly in conjecture. The issue here presented for decision is one of fact and all of the evidence is circumstantial. The lack of direct evidence, however, will not defeat applicant's claim if the facts and circumstances proved justify and reasonably require the in- ference that deceased met his death by drowning as he was leaving the dock for dinner. The rule applicable to this class of proof is stated in Schoepper v. Hancock Chemical Co., 113 Mich., 586, as follows: "Defendant's counsel contend that the cause of this explosion is a matter of mere conjecture, and it is said by counsel that it is not enough for plaintiff to prove circumstances consistent with their theory, but that these circumstances, and each of them, must pre- clude any other rational conclusion. .This we take to be but another way of stating the proposition that the proof must exclude all reason- able doubt. It is hardly necessary to say that no such rule obtains in civil cases. It is true that where an injury occurs that cannot be accounted for, and where the occasion of it rests wholly in conjecture, the case may fail for want of proof. Robinson v. Charles Wright & Co., 94 Mich., 283; Redmond v. Lumber Co., 96 Mich., 545. But such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an irijured person a right of ac- tion where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than the other." Mr. Olson had his breakfast before 5 o'clock in the morning, was engaged in hard manual labor piling lumber until about noon, when the men started for dinner, and lie would undoubt- edly have gone directly from the place where he was working to the engine room of the mill for his dinner if accident had not prevented. That he did not do this is shown by the fact that his dinner pail and dinner were undisturbed and that none of the numerous employes of the company saw him around, the premises or engine room. It is scarcely disputed but that he met his death by drowning, and the fact that the AMBROSE DAMPS vs. MICHIGAN CENTRAL RAILROAD CO. 25 body when found still had on the leather apron in which he worked strongly indicates that the drowning occurred when he was quitting his work at the lumber pile on the dock. These circumstances outweigh any inference that might be drawn from the failure of the Chief of Police and the diver to find his body in the vicinity of the lumber dock. We think it is shown by a fair preponderance of the evidence that Mr. Olson met his death by drowning as he was leaving or about to leave the lumber dock at noon for dinner. The award of the committee on arbitration in favor of the applicant is affirmed. AMBROSE DAMPS, Applicant, vs. MICHIGAN CENTRAL RAILROAD COMPANY, Respondent. NOTICE AND CLAIM FOB INJUEY WAIVER. Applicant Damps suffered the loss of an eye on October 3, 1912, as the result of a piece of steel flying into it, while in respondent's employ. November 25, 1912, applicant filed a report of the acci- dent with the Industrial Accident Board. No notice of Claim for Injury was served by the applicant on respondent within the six months after the accident, but within that period such claim was filed with the Board by applicant and the Board notified respon- dent in writing of the filing of such claim. On May 2 and twice thereafter respondent advised the Board that it was carrying on proceedings looking to an adjustment of the claim Applicant re- fused to sign the settlement papers because they were not satis- factory to him. Respondent denies liability for compensation on the ground that it was not served with notice of such claim as provided by Sec. 15, Part II of the Act. 26 MICHIGAN WORKMEN'S COMPENSATION CASES. HELD: 1. That the filing of claim for injury with the Industrial Accident Board, and the action of the Board in communicating the fact of the making of such claim to respondent, constituted suffi- cient compliance with the statute. 2. That the carrying on of negotiations with applicant for the settlement of his claim as shown by the record in this case was a waiver of the right to object that claim was not made within the statutory period. Appeal of Michigan Central Railroad Company from the de- cision of an arbitration committee awarding Ambrose Damps compensation for 100 weeks. Decision affirmed. Opinion by the Board: On October 23, 1912, Ambrose Damps, while employed in the machine shop of the Michigan Central Eailroad Company at Jackson, was injured by a piece of steel flying from a wedge that he was driving, said piece of steel entering his right eye. The injury resulted in the loss of the eye. The respondent denies liability, alleging that no claim for compensation was made or filed with respondent until more than six months after the injury, contrary to the provisions of Section 15, Part II, of the Workmen's Compensation Law. On November 25, 1912, respondent filed a report of this acci- dent in the office of the Industrial Accident Board. On Jan- uary 27th two copies of the regular blank provided by the Board for "Notice to Employer of Claim for Injury'' were sent by the Board on request to applicant's attorney, together with a letter stating that both of the blanks should be filled out, and one served on the employer and the other filed with the Board. On February 21, 191.,, "Notice to Employer of Claim for Injury" made by said applicant in this case on one of the blanks above referred to was received and filed in the office of the Board. It is claimed that n<> service of such claim for in- jury was ever made upon the respondent, and there is n<> evidence in the case tending to prove that such claim was made or served on said respondent. It is also established by the proofs that no claim was made for compensation on ac- AMBROSE DAMPS vs. MICHIGAN CENTRAL RAILROAD CO. 27 count of this injury by the applicant to said respondent di- rect within six months from the date of the injury. But after the filing of claim for injury in the office of the Board, a letter was written by the Board to respondent on February 25, 191:!. as follows: "We beg to advise that a claim for injury has been filed in the above named case (referring to the Ambrose Damps case). The In- dustrial Accident Board is interested in learning what disposition has been made of the same. Your prompt attention will be appreciated." (Signed.) It appears further that respondent advised the Board by letter on May '2. July 9, and September 8, that it was carrying on proceedings looking to an adjustment of the claim, and on the latter date, September 8, 1913, stated that they have ''sent the necessary papers to Mr. Damps for execution, and as soon as they are returned we will send you the agreement." The settlement papers referred to in the last letter were in fact sent by respondent to Mr. Damps but were not executed be- cause not satisfactory to the applicant. It is the claim of the applicant in this case (1). That the claim for injury filed by him with the Industrial Accident Board on February 21, 1913, and communicated in substance by the Board to respondent, was a sufficient claim for injury under the statute, and (2). That the action of respondent in the proceedings taken by it for settlement of the claim constituted a waiver of formal notice of such claim. After a careful consideration the Board has reached the conclusion that the action of the applicant in filing his claim against respondent for the injury in question in the office of the Industrial Accident Board, coupled with the action of the Board in communicating the fact of the making and filing of such claim to respondent, constitutes a sufficient compliance with the statute. The fundamental purpose of the provision of law referred to is to cause notice and knowledge of the fact that applicant is asserting such claim to be brought home to his employer, in order that such employer will be apprized 28 MICHIGAN WORKMEN'S COMPENSATION CASES. of the fact ^that the applicant is seeking to establish such claim. This it seems was fairly accomplished by the filing of claim by the applicant and the transmission of such claim in substance to the employer through the agency of the Board. The Board is also of the opinion that the action of respond- ent in carrying on negotiations with the applicant for a settle- ment of his claim for the injury in question, through a period of several months after the expiration of six months period, constitutes a waiver of the company's right to object that formal claim for injury had not been made to it by the ap- plicant within said six months. The above consideration we think is in accord w T ith the prin- ciples adopted by our Supreme Court in construing like stat- utory provisions. Kidgeway vs." City of Escanaba, 154 Mich. 68 and Pearll vs. City of Bay City, 174 Mich. 647. In the Escanaba case the Court said: "We have been inclined to favor a liberal construction of statutes requiring notice of claims, and have not denied relief when by any reasonable interpretation the notice could be said to be in substantial compliance with the statute, or where the defect had been waived by the council." The decision of the Committee on- Arbitration, which awarded the applicant 100 weeks' compensation, is affirmed. SAMUEL L. POSNER vs. CONTINENTAL MOTOR MFG. CO. 29 SAMUEL L. POSNER, Applicant, vs. CONTINENTAL MOTOR MANUFACTURING COMPANY and MICHIGAN WORKMEN'S COMPENSATION MUTUAL INSURANCE COMPANY, Respondents. NECESSARY OPERATION OPEN AWARD. Applicant sustained a rupture by accident arising out of and in the course of his employment. He was advised by both his own and respondent's physician to have an operation. Applicant was willing, but could not afford to pay for an operation and respon- dents refused to provide for it. In order to continue his em- ployment applicant was obliged to wear a truss, which gives him only temporary relief, and unless an operation is performed he will suffer permanent partial disability. HELD : That the Board may determine the question of respondent's liability in the case, and make an open award covering such disability as applicant may suffer on account of the injury during the statutory period for continuing disability. Application of Samuel L. Posner for compensation and ex- penses incident to the performance of a necessary operation. Granted. Opinion by the Board: Samuel Posner, the applicant, while employed by the Con- tinental Motor Manufacturing Company sustained a rupture while lifting an automobile crank case from the floor to a bench 32 inches in height. At the time of lifting he felt a pain in his groin, but continued to work during the remainder of the day, though troubled with the same pain. When he went home that evening he complained to his wife of being injured and following her advice consulted a physician who advised him that he needed an operation for hernia. Posner told the 30 MICHIGAN WORKMEN'S COMPENSATION CASES. doctor that lie was unable to afford the expense of an opera- tion, and the doctor told him in that event he should wear a truss. He then reported the matter to the time-keeper of the company who gave him an order to go to Dr. Witter. He went to Doctor Witter and was again advised that he needed an operation for the hernia, and was told by the doctor that he would take the matter up with the officials of the company. A little later Posner was sent to Dr. Hutchins, the physician of the Michigan Workmen's Compensation Mutual Insurance Com- pany. After stating his case to Dr. Hutchins, he was told to come back in a day or two and he wo*uld be advised as! to what course the company would take. On his return a day or two later he was told that the company would do nothing in the matter. Posner was then ready and willing to submit to an operation, and is still ready to do so, if the company will bear the expense and pay compensation during his disability. While the testimony in this case is conflicting, we think it is fairly shown that the applicant sustained an injury by accident, and that the accident caused the hernia from which he now suffers. After the refusal of the company to do any- thing for him, Posner procured a truss and went back to work at the same employment, and has earned the same wages. He has lost but very little time since the accident, but has been handicapped by the truss and his injured condition, and has continually suffered pain and inconvenience in doing his work. Unless remedied by an operation, he will continue to suffer, and disability either partial or total will probably re- sult. The failure to have an operation is due to the action of the company, as Mr. Posner has at all times been ready and willing to undergo the operation, but was unable to provide for the expense himself, and the respondents refused to bear such expense. The. question of the form and kind of relief to be granted to the applicant is one of somie difficulty. It seems that the respondents liability to furnish medical and hospital service <] living the first three weeks following the injury cannot be evaded in a case of this kind by refusing to furnish the same SAMUEL L. POSNER vs. CONTINENTAL MOTOR MFG. CO. 31 and to perform the duty imposed upon them by the statute. If the applicant, on the respondent's refusal to provide for an operation, had engaged a physician and hospital service and had such operation performed, the respondents would be liable to pay the reasonable cost of same. The fact that he was without me^ms to procure such operation, though willing to undergo the same, should not effect his rights in the prem- ises, nor should respondents be permitted to take advantage of their own wrong. However, the case still presents the diffi- culty of making an award for a sum of money to cover the estimated cost of a prospective operation, and the loss of time following the same. In some of the Compensation States and in Great Britain it is the practice in cases of this kind to make what is termed an ''open award," covering such disability as the applicant may suffer on account of the injury during the entire statut- ory period in cases of continuing disability. It seems to be clearly within the authority of the Board to make such an award in connection with its decision determining respond- ent's liability. The action of respondents in the case seems to have made this necessary and prevented an adjustment of the case upon a basis which would undoubtedly remove the diffi- culty and speedily terminate the liability. 32 MICHIGAN WORKMEN'S COMPENSATION CASES. ZENZI SCHOENREITER, Applicant, vs. QUINCY MINING COMPANY, Respondent. SPECIFIC INDEMNITY FOR Loss OF MEMBER DEATH OF EMPLOYE AD- MINISTRATOR TO RECOVER. The injury in this case resulted in the loss of the third finger for which 20 weeks' compensation was payable. No part of it was paid prior to the death of the employe which resulted from other causes than the injury. HELD: 1. That under the facts in the case the employer is liable only for the amount of compensation which accrued to the time of the death. 2. The compensation that had actually accrued prior to the death of the employe, and had not been paid to him, be- came a part of his estate and as such would be collectible by his administrator. Application of Zenzi Schoenreiter for compensation for in- jury to her deceased husband. Denied and remanded for future proceedings. Opinion by the Board: In this case Hans Schoenreiter was injured while in the employ of the Quincy Mining Company on October 20th and died on December 1st. The injury resulted in the loss of the third finger for which he was entitled to compensation for a period of 20 weeks at the rate of $7.50 per week. It is con- ceded that his death resulted from peritonitis which was not caused in any way by the injury. He received no compensa- tion during his life time, but each week from the time of his injury until his death a check was drawn in his favor in the company's office, but not delivered. The widow in her Application for Adjustment of Claim al- ZENZI SCHOENREITER vs. QUINCY MINING CO. 33 leged that the death of her husband resulted from the injury, and claimed compensation for the statutory period of 300 weeks. At the hearing before the arbitration committee this claim was abandoned, and a claim made on the part of the widow that she was entitled to the 20 weeks' compensation that her husband would have received for the finger had he lived. On the part of the respondent it is claimed that under Section 12 of Part II of the Workmen's Compensation Law that the death of Mr. Schoenreiter terminated the liability to make payments on account of the loss of the finger. It is also claimed that the widow has no right to assert a claim for the compensation that accrued prior to the death of deceased, as that belonged to him and passed under the law to his admin- istrator. It is further claimed that the company has a right to set off certain indebtedness owing by deceased to it against this compensation that had accrued for the weeks and 1 day prior to the death. It seems clear that the employer is liable for the payment of the compensation that accrued prior to the death of deceased, which is 6 weeks and 1 day at the rate of $7.50 per week. This money accruing from week to week belonged to deceased and constituted his property as much as if the money had been actually paid over to him and deposited in a bank. The question as to the liability of the employer for the bal- ance of the specific period of 20 weeks for the loss of the finger in question is one of greater difficulty. The claim of counsel for applicant on this point is stated as follows: "Where there is an injury taking off a finger, the specified com- pensation is due at once and is deemed to be for the period (specified in the Act). It is just the same as if a person had sued and re- covered judgment and that judgment should be payable in install- ments and had not all been paid at the time of the death. The injury under the Act given him a vested right, and it is not necessary that he outlive this period to get the money." But this position seems to be in conflict with Section 12, Part II of the Workmen's Compensation Law which is as fol- lows : 5 34 MICHIGAN WORKMEN'S COMPENSATION CASES. "The death of the injured employe prior to the expiration of the period within which he would receive such weekly payments shall be deemed to end such disability, and all liability for the remainder of such payments which he would have received in case he had lived shall be terminated, but the employer shall thereupon be liable for the following death benefits in lieu of any further disability indemnity:" In the opinion of the Board it is the purpose and meaning of this provision of the Law that the right to specific indem- nity in case of the loss of a member is one that is for the per- sonal benefit of the injured man, and that it is a right peculiar to himself and not created for the benefit of his dependents. The section above quoted provides that in case of the death of the injured man, (as a result of the injury), that thereupon a right to compensation shall arise in favor of his dependents for the amount specified in the statute. We are of the opinion that the right to an order for the payments of this special compensation ceases with the death of the injured man, but that the employer is liable for the payment of the compensa- tion that accrued prior to the death. The compensation which had accrued prior to the death of deceased was his property as much as if it had been actually paid over to him. It was money owing to the employe at the time of his death, and it seems would stand upon the same basis as wages that he had earned and had not yet received. If we are correct in this, then the proper course would be for for the administrator of deceased to make demand for the money owing by the employer, and recover the same if neces- sary in a court of competent jurisdiction, where the question of a set-off claim by the employer could be litigated. While the exemption of the compensation money from garnishment and other liability to creditors may be personal to deceased, still if the estate does not exceed f 150 it perhaps would be assigned to the widow without regard to the claims of credit- ors. It seems that under the circumstances in this case that no award can be made to the applicant, who is the widow, the proper party to receive the money being the administrator. As MICHAEL LA VECK vs. PARKE, DAVIS & COMPANY 35 the case now stands we can only determine the amount for which the employer is liable and leave the recovery of same to further proceedings. MICfiAEL LA VECK, Applicant, vs. PARKE, DAVIS & COMPANY, Respondent. PAKALYSIS ACCIDENT WITHIN MEANING OF ACT. Applicant suffered paralysis of one side of his body, caused by a cerebral hemorrhage. The evidence tended to show that such hemorrhage was the result of the rupture of a small blood vessel in the brain. The testimony tended to show that applicant was working in a room where the temperature was unusually high and that heat coupled with over-exertion was the cause of the rupture in the brain and the resulting paralysis, arterial sclerosis from which the applicant was suffering being a contributing cause. HELD: That the facts and circumstances shown justified and reasonably required the inference that the paralysis resulted from the rupture of a blood vessel in the brain, that the same was caused by over-exertion and heat and was an accident arising out of the employment within the meaning of the Act. Appeal of Michael LaVeck from the decision of an arbitra- tion committee, refusing to grant him compensation for paralysis contracted while in the employ of Parke, Davis & Company. Reversed and compensation granted. Opinion by the Board : In this case the committee of arbitration denied applicant's claim for compensation, and applicant thereupon appealed the 36 MICHIGAN WORKMEN'S COMPENSATION CASES. case to the full Board for review. Since the arbitration a considerable amount of additional testimony was taken, par- ticularly medical testimony tending to show that the probable cause of the paralysis from which the applicant suffers was a cerebral hemorrhage caused by heat and over-exertion, to- gether with a diseased condition of his arteries, known PS arterial sclerosis of some two years standing. The evidence fairly tends to show that the paralysis re- sulted from the rupture of a small blood vessel in the brain. We say "small" because the paralysis was gradual, being first noticed by the dropping of a flask from the hand, later on by inability to use his arm, and still later by the paralysis of one side of the body. The work which applicant was doing was making bouillon from beef by boiling and certain other processes in a room and with retorts and appliances main- tained for that purpose by respondent. The weather was hot and an extra amount of bouillon was made that week, so as to have enough to meet the demands of the Plant while the appa- ratus was being transferred to a new room which was to be equipped for such work. A high degree of heat was required in the process, and although the retorts were so constructed as to protect the operator as far as possible from the heat and steam, a considerable quantity of both escaped into the work- room at the times of making the various changes connected with the process. No visible accident occurred, and no event causing external violence to applicant's body. It was appar- ently conceded on the hearing that the cause of the paralysis was in the brain, the applicant contending that it was the rupture of a cerebral blood-vessel, while the respondent con- l ended that the paralysis resulted from the clogging of such vessel. The testimony on behalf of the applicant tended to show that on account of the condition of his arteries a cere- bral hemorrhage was likely to result from the increased pres- sure caused by unusual heat and over-exertion, and that in the opinion of his experts such hemorrhage did occur, result- ing finally. in the total paralysis of one side of the body. Was MICHAEL LA VECK vs. PARKE, DAVIS & COMPANY 37 it an accident within the meaning of the Law, and did it arise out of and in the course of applicant's employment? Under the doctrine laid down in the "Spanner Case," so- called, and also in other and later English cases, this would be an accident. In Fenton vs. J. Thorley & Co. 5 W. C. C. 4, the question of what constitutes an accident is exhaustedly discussed, Lord MacNaghten's opinion being in subsequent case's regarded as authority and this being regarded as a lead- ing case. Lord MacNaghten's opinion is an able discussion of the principle involved and a review of the authorities. In the opinion of Lord Robertson on Page 9 it is said: "In the present instance the man by an act of over-exertion broke the wall of his abdomen. Suppose the wheel had yielded and been broken by exactly the same act, surely the breakage would be rightly described as accidental." In Mclnnes vs. Dunsmuir & Jackson, Ltd., 1 B. W. C. C. 226, it is held that where over-exertion brings on a cerebral hemorrhage and paralysis, it is an accident entitling the work- man to compensation. The Court say on Page 229: "It is the giving way of an artery causing effusion of blood on the brain, and I am unable to see any distinction between this kind of physiological injury resulting in disablement, and the kind of injury we had to consider in the case of Stewart." On Page 230 the Court quotes from the Thorley case as fol lows: "If a workman has suffered an injury by breaking a limb or by a rupture while he is trying to lift a weight too heavy for him, then, according to the ordinary use of language, one would say that that injury was caused by an accident which he met with while he was en- gaged at his work. I think the same rule of construction applies to the question before us, and that we should say that this man suffered from the bursting of a blood vessel while trying to lift a weight too heavy for him. That it might not have been too heavy for a man whose arteries were in a sound condition is nothing to the purpose. In the condition in which this man's arteries were he was undertak- ing a work which was too great for him." In Tsmay, Imrie & Company v. Williamson 1 B. W. C. C. 38 MICHIGAN WORKMEN'S COMPENSATION CASES. 232, it is held that where a seaman died from a heat stroke while raking the fire, that it was an accident entitling him to compensation. This is a House of Lords case and follows the rule laid down in the Thorley case. In Johnson vs. S. S. "Torrington" 3 B. W. C. C. 70, it was held that where a fireman working in the hold of a vessel un- der great heat and drinking large quantities of water had an apoplectic stroke it was an accident within the meaning of the Compensation Law. The Court treats the principle as es- tablished and holds that the determination of the case was a question of fact. In Hughes vs. Clover Clayton & Co. 2 B. W. C. C. 17, (The Spanner Case), the Court say: "Every man brings some disability with him. Any exertion or any external action which might have been entirely innocuous to a man in good health may produce most serious results to the workman bringing with him, as I have said, some disability. This man brought with him a disability of a serious nature an aneurism which I quite agree might have caused his death at some time or other with- out any exertion usual or unusual. But in this case we have this fact found that a strain incurred by the workman in the ordinary dis- charge of his duties caused the rupture from which he died. As I read the decisions in the House of Lords, it is not open to this Court to say that this is not an accident. It is impossible, I think to read the judgment of Lord Macnaghten in Fenton v. Thorley * * without seeing that this case is exactly and precisely within the language which he used. But if there were any doubt about that, the more recent deci- sion of the House of Lords of Ismay, Imrie & Co. vs. Williamson is really a much stronger case than this. In that case Lord Loreburn said: 'To my mind the weakness of the deceased which predisposed him to this form of attack is immaterial. The fact that a man who died from a heat-stroke which was by physical debility more likely than others so to suffer can have nothing to do with the question whether what befell him is to be regarded as an accident or not.' * * 'If a workman in the reasonable performance of his duties sustains a physiological injury as a result of the work he is engaged in, this is an accidental injury in the words of the statute.' " In the case of Broforst vs. S. S. "Blomfield" VI B. W. C. C. 613, where a workman shoveling coal in the fire of a vessel had an apoplectic stroke which was found by the trial court MICHAEL LAVECK vs. PARKE, DAVIS & COMPANY 39 to be due to the rupture of an artery in the brain which was attributed to heat and exertion; it was held that he was en- titled to compensation and* that the question was one of fact which the appellate court could not review. From a careful examination of all of the facts and evidence in the case, the Board is of the opinion that the strain upon the weakened arteries of the applicant caused by over-exertion and excessive heat was more than they could stand and re- sulted in the rupture of a blood-vessel in the brain, which was followed by a gradual effusion of blood resulting in the grad- ual paralysis, and finally disabling one side of the body. The award of the committee will be reversed and applicant granted compensation. SUPREME COURT. MICHAEL LA VECK, Claimant and Appellee, vs. PARKE, DAVIS & COMPANY, Respondent and Appellant. ACCIDENT CEREBRAL HEMORRHAGE. Paralysis of one side of claimant's body was caused by hemorrhage resulting from the rupture of a small blood vessel in the brain. No visible accident occurred and no event causing external vio- lence to claimant's body. He was suffering from arterial sclerosis to such an extent that cerebral hemorrhage was likely to result from increased pressure caused by unusual heat and over-exertion. Just before the occurrence he was engaged in making an unusual quantity of bouillon at respondent's plant by boiling and other pro- cesses in a room supplied with retorts and appliances for that purpose, the processes and weather resulting in a high degree of heat. 40 MICHIGAN WORKMEN'S COMPENSATION CASES. HELD: An injury by accident within the meaning of the Workmen's Compensation Law. It was an unexpected consequence from the continued work in an excessively warm room. Gertiorari to the Industrial Accident Board to review the action of that board in awarding compensation to Michael La Veck for injuries sustained while in the employ of Parke, Davis & Company. Affirmed. H. R. Martin, of Detroit, for claimant. Charles M. Woodmff, of Detroit, for defendant and a] pellant. MOORE, J. This is certiorari by the respondent to the In- dustrial Accident Board to review a finding of the Board awarding compensation to the claimant. The brief of appel- lant begins as follows : "Appellant does not question the Industrial Accident Board's finding of facts, and only refers to the testimony of record to amplify the same." It will be helpful to quote from the opinion of the Indus- trial Accident Board: "In this case the committee of arbitration denied applicant's claim for compensation, and applicant thereupon appealed the case to the full board for review. Since the arbitration a considerable amount of additional testimony was taken, particularly medical testimony tending to show that the probable cause of the paralysis from which the applicant suffers was cerebral hemorrhage caused by heat and over-exertion, together with a diseased condition of his arteries, known as arterial sclerosis of some two years standing. "The evidence fairly tends to show that the paralysis resulted from the rupture of a small blood vessel in the brain. We say 'small' because the paralysis was gradual, being first noticed by the dropping of a flask from the hand, later on by inability to use his arm, and still later, by the paralysis of one side of the body. The work which appli- cant was doing was making bouillon from beef by boiling and certain other processes in a room and with retorts and appliances maintained for that purpose by respondent. The weather was hot and an extra amount of bouillon was made that week, so as to have enough to meet MICHAEL LA VECK vs. PARKE, DAVIS & CO. 41 the demands of the plant while the apparatus was being transferred to a new room which was to be equipped for such work. A high de- gree of heat was required in the process and although the retorts were so constructed as to protect the operator as far as possible from the heat and steam, a considerable quantity of both escaped into the work room at the time of making the various changes connected with the process. No visible accident occurred and no event causing ex- ternal violence to applicant's body. It was apparently conceded on the hearing that the cause of the paralysis was in the brain, the ap- plicant contending that it was the rupture of a cerebral blood vessel, while the respondent contended that the paralysis resulted from the clogging of such vessel. The testimony on behalf of the applicant tended to show that on account of the condition of his arteries a cere- bral hemorrhage was likely to result from the increased pressure caused by unusual heat and over-exertion, and that in the opinion of his experts such hemorrhage did occur, resulting finally in the total paralysis of one side of the body. Was it an accident within the mean- ing of the law, and did it arise out of and in the course of applicant's employment? "Under the doctrine laid down in the 'Spanner Case,' so-called, and also in other and later English cases, this would be an accident. In Fenton v. J. Thorley & Co., 5 W. C. C. P. 4, the question of. what con- stitutes an accident is exhaustedly discussed, Lord McNaughton's opin- ion being in subsequent cases regarded as authority and this being regarded as a leading case. Lord McNaughton's opinion is an able dis- cussion of the principle involved and a review of the authorities. In the opinion of Lord Robertson on page 9, it is said: 'In the present instance a man by an act of over-exertion broke the wall of his abdo- men. Suppose the wheel had yielded and been broken by exactly the same act, surely the breakage would be rightly described as accidental. "In Mclnnes vs. Dunsmuir-Jackson, Ltd. 1 B. W. C. C. 226, it is held that where over-exertion brings on a cerebral hemorrhage and paralysis, it is an accident entitling the workman to compensation. The court say on page 229: "It is the giving way of an artery causing effusion of blood on the brain, and I am unable to see any distinction between this kind of physiological injury resulting in disablement, and the kind of injury we had to consider in the case of Stewart. "On page 231 the court quote from the Thorley case as follows: "If a workman has suffered an injury by breaking a limb or by a rupture while he is trying to lift a weight too heavy for him, then according to the ordinary use of language, one would say that the in- jury was caused by an accident which he met with while he was en- gaged in his work. I think the same rule of construction applies to the question before us, and that we should say that this man suffered from 42 MICHIGAN WORKMEN'S COMPENSATION CASES. the bursting of a blood vessel while trying to lift a weight too heavy for him. That it might not have been too heavy for a man whose arteries were in a sound condition is nothing to the purpose. In the condition in which this man's arteries were he was undertaking a work which was too great for him. "In Ismay, Imrie & Company vs. Williamson, 1 B. W. C. C. 232, it is held that where a seaman died from heat stroke while raking the fire that it was an accident entitling him to compensation. This is a House of Lords case and follows the rule laid down in the Thorley case. "In Johnson v. S. S. 'Torrington,' 3 B. W. C. C. 70, it was held that where a fireman working in the hold of a vessel under great heat and drinking large quantities of water had an apoplectic stroke it was an accident within the meaning of the Compensation Law. The court treats the principle as established and holds that the determination of the case was a question of fact. "In Hughes v. Clover Clayton & Co. 2 B. W. C. C. 17 (The Spanner Case), the court say: "Every man brings some disability with him. Any exertion of any external action which might have been innocuous to a man in good health may produce most serious results to the workman bringing with him as I have said, some disability. This man brought with him a disability of a serious nature an aneurism which I quite agree might have caused his death at some time or other without any exertion, usual or unusual. But in this case we have this fact found that a strain incurred by the workman in the ordinary discharge of his duties caused the rupture from which he died. As I read the decisions in the house of Lords it is not open to this court to say that this is not an accident. It is impossible, I think, to read the judgment of Lord McNaughton in Fenton v. Thorley without seeing that this case is exactly and precisely within the language which he used. But if there were any doubt about that the more recent decision of the House of Lords in Ismay, Imrie & Co., vs. Williamson is really a much stronger case than this. "In that case Lord Loreburn said: "To my mind the weakness of the deceased which predisposed him to this form of attack is immaterial. The fact that a man who had died from a heat stroke was by a physical debility more likely than what befell him is to be regarded as an accident or not. If a work- others so to suffer can have nothing to do with the question whether man in the reasonable performance of his duties sustains a physiologi- cal injury as a result of the work he is engaged in, this is an acci- dental injury in the words of the statute. "In the case of Broforst v. S. S. Blomfield, VI B. W. C. C. 613, where a workman shoveling coal in the fire of a vessel had an apoplec- MICHAEL LA VECK vs. PARKE, DAVIS & CO. 43 tic stroke which was found by the trial court to be due to the rupture of an artery in the brain which was attributed to heat and exertion; it was held that he was entitled to compensation and that the question was one of fact which the appellate court could not review. "From a careful examination of all the facts and evidence in the case, the Board is of the opinion that the strain upon the weakened arteries of the applicant caused by over-exertion and excessive heat was more than they could stand and resulted in the rupture of a blood vessel in the brain which was followed by a gradual effusion of blood resulting in the gradual paralysis and finally disabling one side of the body. "The award of the committee will be reversed and applicant granted compensation." We cannot state the claim of appellant better than to quote from the reply brief as follows : "As pointed out in his brief respondent does not question the In- dustrial Accident Board's finding of facts; but does affirm that the essential facts are not clearly stated, and that it is necessary to refer to the testimony to understand what the Board means by certain words, phrases and references. "Before doing this, however, counsel for respondent wishes his posi- tion as to the law distinctly understood, so that his comments upon the finding of the Board may be read in the light thereof. "Counsel for respondent claims that the principles, the arguments, the reasoning upon which the decision in Adams vs. Acme White Lead & Color Works, 182 Mich. 157 was based control the present case as effectually as it did the case there decided, notwithstanding claimant in the case at bar cannot be said to have suffered an 'occupational' disease. "That the word 'accident' is not subject to a special construction, but must be understood in the light of common law definitions and common law decisions. "Third. The accident contemplated by the Michigan Act must be some 'casualty' occurring on some day which can be definitely fixed, and from which the time within which notice of the injury must be given, and demand for compensation must be made, can be deter- mined. This proposition is clearly indicated in the Adams case. "Fourth. It is therefore submitted that unless it appears that some accident within the meaning of the common law occurred that was the exciting cause of the gradually-developing cerebral hemorrhage re- 44 MICHIGAN WORKMEN'S COMPENSATION CASES. ferred to in the case, the claimant and appellee is not entitled to com- pensation under the Michigan Compensation Act." Counsel cite other authorities in support of his contention, among them Feder v. Traveling Men's Association, 70 Am. State B. 214. Counsel also contends that the authorities counsel for ap- pellee cite from New .Jersey and Massachusetts are not appli- cable because the statutes of those states are different from the Michigan Statute. It must be' conceded there is some confusion in the authorities. We cannot agree with counsel that the case of Adams v. White Lead & Color Works, supra, is conclusive of the instant case. In that case the sole question was, is an occupational disease within the Statute. It was held that it was not. The case is more like the case of Bayne v. Storage & Cartage Com- pany, 181 Mich. 378. In that case Mr. Bayne undoubtedly in- tended to do the lifting which he did but he did not expect the effect would be to hurt his back with resulting pneumonia. In the instant case Mr. La Veck intended to do the prolonged work which the situation demanded, but he did not anticipate that because of doing so his blood pressure would be so in- creased as to result in the rupture of a cerebral blood vessel. According to the testimony of some of the physicians that result could be traced to the unusual hours of work and the unusual conditions. It was an unexpected consequence from the continued work in the excessively warm room. Where there is testimony upon which the accident board can base its conclusion we will not review its action. Bayne v. Storage & Cartage Co., 181 Mich. R. 278; Redfield v. In- surance Co., 183 id. f>33. Other cases than those mentioned in the opinion of the Industrial Accident Board which support its conclusions arc Voorhcis v. Schooumaker, 80 TC. .1. L. K. 500; Doughton v. Heckniau Limited, B. W. C. C. 77; Maskery v. Shipping Co., Limited, Xeg. & Comp. Cases Ann. 7D8. See also the cases cited in note c, page 714 of 6 Neg. & Comp. Cases Annotated. The order is affirmed. JOSEPH OLESKIE vs. DODGE BROTHERS. 45 JOSEPH OLESKIE, Applicant, vs. DODGE BROTHERS, Respondent. ATTORNEY'S FEES POWER OF BOARD TO Fix FEES. A contract between applicant and his attorney providing that such attorney shall receive fifty per cent of the compensation for ser- vices is held to be unreasonable and is disregarded. Section 10, Part III, Workmen's Compensation Act, gives the Indus- trial Accident Board power to fix and determine the fees of attorneys and physicians, and in proper cases to order the pay- ment of same out of the amount awarded for compensation. Petition filed by attorneys of applicant to determine their rights under a contract for services, providing that they re- ceive fifty per cent of the amount of compensation awarded. Contract held invalid and the value of the services rendered fixed by the Board. Opinion by the Board: This is a proceeding by petition to determine the rights of the attorneys for applicant under a contract made with him and for services rendered pursuant to the same. The injury involved the loss of applicant's leg and respondents denied liability. A contract in writing was made under which the at- torneys were to receive fifty per cent of the amount recovered in case of success, but nothing in case of failure. The con- tract further gave the attorneys a lien on the cause of action and all moneys recovered, and assigned to them one-half of the same for such fees and their necessary disbursements. The case went to arbitration and, though vigorously contested by respondents, resulted in an award against them. They ap- pealed from the 'decision and the case was heard before the full Board at Lansing, resulting finally in the recovery of 46 MICHIGAN WORKMEN'S COMPENSATION CASES. compensation for the applicant aggregating $1,093.75. A part of this sum has already been paid and the attorneys claim they are entitled to fifty per cent of the remainder, or about $425. This was a case requiring the services of attorneys. Res- pondents denied liability and prepared for a vigorous de- fense. The case was well handled by applicant's attorneys, and the services rendered were valuable. If the question is one of fixing the value of services rendered, and we think it is, such value in the opinion of the Board is $150. The evidence shows in detail the various proceedings and the services ren- dered, and shows the case to be an unusual one. However, the 50% provided in the contract is an unreasonable amount, and the contract in this respect must be disregarded. The Workmen's Compensation Law, even in cases like this, has greatly reduced the amount of legal work and minimized the delay and expense. What would not be an unreasonable per- centage under the old system would be entirely unconscion- able under the present law. The applicant is a foreigner un- able to read English or reasonably understand the language, ignorant of the proceedings under the Workmen's Compensa- tion Law, and while there was no fraud, it presents a proper case for the intervention of the Board to fix the amount. The more difficult question in this case is whether the Board has power to order the payment of attorney fees out of the compensation moneys. An examination of Section 10, Part III of the Law discloses that the language used relative to attorney fees is that, "The fees and the payment thereof of all attorneys and physicians for services under this Act shall be subject to the approval of the Industrial Accident Board." The general meaning of approval is to sanction, and it is fre- quently used in the sense of passively commending. It seems, however, that the word as here used in the compensation law is in its active sense and means to pass judgment upon. It is clear that the Board possesses no powers except those granted expressly or by implication in the Statute. We quote : JOSEPH OLESKIE vs. DODGE BROTHERS. 47 "All questions arising under this Act, if not settled by agreement by the parties interested therein, shall, except as otherwise herein provided, be determined by the Industrial Accident Board." Section 16, Part III of the Act. This, together with the provisions of Section 10, Part III and the general administrative provisions of the Act, seems to be a grant to the Board of full power to determine the ques- tion arising under the Act as to the amount of the fee and the relative rights of the parties. But does this power to deter- mine questions as to attorney and medical fees carry with it the power to direct the payment of the same out of the funds involved in the proceeding? The question is an important one, as the Law applies equally to legal and medical fees. Both are covered by the same section and language of the Statute, and if the position of the respondents in this case is upheld, an injured man who has nothing but his disputed claim for compensation under the law, would be rendered powerless to help himself. He could not lawfully assign or pledge a por- tion of such compensation (if finally recovered) for either medical or legal aid, no matter how badly same was needed, and would therefore be deprived in many cases of the means of curing his injuries or enforcing his rights. This would fairly be the result if he could make no contract for medical or legal services that could be enforced. The approval mentioned in Section 10, Part III of the Stat- ute is two-fold : viz., of the fee and the payment thereof. It is easy to see how this provision would apply in cases where the parties disagree only as to the amount and are willing to make payment as soon as the Board approves the amount. The power to approve carries with it by implication the power to disapprove, and the power to allow what, in the judgment of the Board is fair and just. If, however, the authority of the Board ends here, and it mjerely has the right to express its opinion as to the amount of such fees, but has no authority to enforce or give effect to such opinion, or to take any action that would entitle such opinion even to respect, then the pro- visions above quoted would be nugatory. It seems clear that 48 MICHIGAN WORKMEN'S COMPENSATION CASES. the provisions of the above section were intended for use in the practical administration of the Law, and when read in con- nection with the other administrative features of the Act and its general plan and purpose, were intended to give the Board authority to deal effectively with such matters, and this would imply the authority to enforce its determination by directing payment. ANDREW BACIK, Applicant, vs. THE SOLVAY PROCESS COMPANY, Respondent. JUDGMENT RES ADJUDICATA JURISDICTION. Applicant received compensation from respondent and signed a settlement receipt therefor. He returned to work before he had entirely recovered and later was forced to quit again through disability caused by the original injury. Respondent caused a judgment for the amount of compensation it had paid to appli- cant to be entered against it in the Circuit Court, and upon appli- cant's filing a petition praying that the case be reopened and that he be awarded further compensation, respondent refused payment on the ground that by reason of the judgment previously rendered the entire matter is res adjudicata and cannot be reopened. HELD: 1. That the ex-parte action of respondent in causing judg- ment to be rendered against itself does not affect the right of applicant to further compensation. 2. The Industrial Accident Board is expressly given jurisdic- tion to review and pass upon questions of this kind, arising rela- tive to the payment of compensation. Application of Andrew Bacik for further compensation for injury occurring while in employ of Solvay Process Company. Granted. ANDREW BACIK vs. THE SOLVAY PROCESS CO. 49 Opinion by the Board : On December 11, 1914, applicant filed his petition in the above cause praying that same be re-opened and that he be awarded further compensation on account of continuing dis- ability. He was injured on March 26, 1914, by falling from a scaffold. An agreement for compensation w r as made and approved by the Board on May 15, 1914, and under this agree- ment compensation was paid from time to time at the rate of |7.02 per week aggregating $52.39, the last payment being made and Settlement Receipt signed on June 6, 1914. The ap- plicant w T ent back to work for a tinie though still suffering disability and still being treated by respondent's physician. Lalcr he gave up the work and claims that he has since been unable to work on account of the injury. After the filing of liis petition asking for further compensation, respondent pro- cured a certified copy of the Agreement in Regard to Compen- sation approved by the Board, and filed the same in the Cir- cuit Court of Wayne County and caused a judgment to be rendered against it, as follows: "STATE OF MICHIGAN, IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE. At a session of said Court held at the Court House on Thursday, the 31st day of December, A. D. 1914. Present: Hon. Alfred J. Murphy, Circuit Judge. Andrew Bacik vs. The Solvay Process Company, a corporation. "In this cause, there having been presented to the said Court by the said Solvay Process Company a duly certified copy of the Agreement of Settlement approved by the Industrial Accident Board as provided in Section 13, part 3 of Act No. 10 of the Public Acts of 1912 passed at special session, and it appearing from said certified copy that the said Andrew Bacik is entitled to receive the sum of Seven and 2/100 dollars ($7.02) per week beginning on March 26th, 1914, and con- tinuing for the period of disability, and it also appearing from the certified copy of the Final Report of Accident that said Andrew Bacik 7 50 MICHIGAN WORKMEN'S COMPENSATION CASES. returned to work on May 18th, 1914, making a disability period of 7 3/7 weeks, THEREFORE, it is determined that said Andrew Bacik do recover and have judgment against said Solvay Process Company in accordance with said Settlement Agreement and Final Report in the sum of $52.39 without costs. (Signed) ALFRED J. MURPHY, Circuit Judge." It will be seen that this judgment was entered on December 31, 1914, several months after the payment by respondent of the sum of money which the judgment purports to cover, and after the filing of applicant's petition and before the same came on to be heard. Respondent claims now that by reason of the entry of such judgment in the Circuit Court of Wayne County, the entire matter is res adjudicata and that it can- not be re-opened, and is not subject to the further action or jurisdiction of the Board. We are of the opinion that the substantial rights of the applicant are not affected or cut off by the ex parte action of respondent in going through the extraordinary and needless procedure of causing judgment to be entered in the Circuit Court against itself for an amount that it had already paid to the applicant. The evident purpose of Section 13, Part III of the Law, which provides for the rendition of judgments by the Circuit Courts of the various counties based upon awards of the Board or agreements approved by it, is to provide a means for the enforcement of such awards and agreements. It certainly was not intended to furnish a means of ousting the Board of jurisdiction in a pending proceeding by having a judgment entered in this way under the section. The objection fails for the further reason that under the provisions of Section 14, Part III of the Law, the Board is ex- pressly given jurisdiction to review and pass upon questions arising relative to the payment of compensation in cases of this kind at any time within the limits prescribed by Law, and to terminate, diminish or increase the compensation if the facts warrant such action. The judgment entered in the cir- ANDREW BACIK vs. THE SOLVAY PROCESS CO. 51 cuit court merely covers the period of compensation between the injury and the time when the $52.39 accrued, and directs that the applicant recover that sum. The Compensation Law limits the power of such court to the rendition of a money judgment for the sum fixed either by the award or the ap- proved agreement. Such judgment would not in any way con- flict with a subsequent claim for additional compensation in cases where the disability in fact continued beyond the esti- mated time. From a careful examination of the proofs the Board has reached the conclusion that the applicant's petition should be granted and that he is entitled to further compensation. From the evidence now on file it is not clear as to how long applicant's total disability continued, or whether he has now recovered so as to be able to resume his former employment. If the parties are unable to agree as to the amount of addi- tional compensation, the Board will direct the taking of fur- ther proofs in the case on this particular question, and will then enter an order fixing the liability. 52 MICHIGAN WORKMEN'S COMPENSATION CASES. SIDNEY DYER, Applicant, vs. JAMES BLACK MASONRY & CONTRACTING COMPANY, and EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., Respondents. EMPLOYE INDEPENDENT CONTRACTOR CASUAL EMPLOYMENT. The applicant was injured while assisting in unloading glass. He was doing work for the principal contractors on the David Stott Building in Detroit, pursuant to a sub-contract which he held from them. He was doing the work of unloading the glass at the time of his injury pursuant to a verbal arrangement with such principal contractors to assist in such unloading from time to time, said principal contractors to pay him for the work so per- formed. Respondents deny liability on the grounds: (1) That the applicant was an independent contractor; (2) That the acci- dent did not arise out of and in the course of his employment; And (3) that if an employe, then his employment was but casual. HELD: 1. That while the applicant's firm, Dyer and Ross, were clearly contractors, the arrangement which the respondents made with Sidney Dyer was for the performance of work and service outside of the contract of Dyer and Ross, and included his giving such assistance in unloading the glass as he might deem neces- sary, and his injury occurring while engaged in this work, arose out of and in the course of his employment. 2. The work was intermittent rather than steady in its nature, and the fact that it would extend over a number of months and would have continued until the job was finished negatives the claim that the employment was but casual. Application of Sidney Dyer for compensation for injury re- ceived while unloading glass pursuant to agreement with James Black Masonry & Contracting Company. Compensa- tion granted. SIDNEY DYER vs. JAMES BLACK MASONRY & CONT. CO. 53 Opinion by the Board : The applicant was injured on December 10, 1914, while jjssi sting in unloading glass at the David Stott Building in Detroit. He was at the time of the accident engaged in do- ing the glazing on the building in question under the follow- ing written contract, viz. : "Detroit, Nov. 19, 1914. Sidney Dyer & John Ross, City, Gentlemen: We hereby accept your proposition for furnishing all labor and materials necessary (with the exception of the glass) for glazing all the glass in the Davit Stott Building, as called for in the revised Specifications dated June 2nd, 1914 and the plans, for the sum of Three Hundred and twelve dollars ($312.00), payable at the com- pletion of the work and the acceptance of the Architects, Marshall & Fox. "It is understood between us that the glass is to be furnished you at the site of the said building and you are to take it from there and glaze it. "It is also understood that you are not to glaze any glass which is called for to be done by any other contractor rather than the glaz- ing contractors. The glazing contractors are Sidney Dyer and John Ross, working under the name of Dyer & Ross. "It is mutually understood that the Glazing Contractors are to be responsible and will replace all glass broken by them in handling or setting the glass. JAMES BLACK MASONRY & CONTRACTING CO., By A. E. Black (Signed) EABiCVR Vice-President. Nov. 19, 1914. Accepted by DYER & ROSS By SIDNEY DYER (Signed) Glaz. Contractors." Tt will be seen from this written agreement that the prin- cipal contractor was to furnish the glass delivered at the site of the building, and in carrying out the contract the glass was in fact delivered from timo to timie at the building by the Pittsburg Plate Glass Company. The principal contractor arranged with Mr. Dyer that he look after the delivering of the glass at the building and see to the unloading, for which 54 MICHIGAN WORKMEN'S COMPENSATION CASES. services Mr. Dyer was to receive payment from the principal contractor. The injury to Mr. Dyer occurred when he was assisting in the unloading of glass at the building under this arrangement. The respondents deny applicant's right to com- pensation on the following grounds : (1) The accident did not arise out of and in the course of the employment. (2) That he was an independent contractor. (3) That if an employe, then his employment was but casual. In doing the work of glazing the building under the above written agreement, the applicant was clearly a contractor. He is so described in the writing itself, which contains all the elements of a contract, and included the furnishing of a part of the material by the applicant, viz : everything "with the ex- ception of the glass.'' The work was to be done according to the architects' specifications and in such a manner as to be ac- cepted by the architects of the building. No control over the work or the manner of doing it is reserved by the principal contractor, the applicant and his partner being required merely to perform the work in accordance with the architects' specifications and be responsible for the result. The arrangement made with the applicant under which he was to look after the delivery and unloading of the glass fairly includes giving such reasonable assistance in unload- ing as he might deem necessary. It cannot reasonably be re- stricted to merely overseeing and directing, but fairly included any reasonable assistance in loading the glass which was rea- sonably necessary to accomplish the object for which he was employed. The injury therefore which he received in assisting in the unloading arose out of and in the course of his employ- ment. The arrangement under which applicant was to look after and assist in the unloading of the glass was no part of his contract work. While it is doubtless true that the arrange- SIDNEY DYER vs. JAMES BLACK MASONRY & CONT. CO. 55 rnent was made with him because he was doing the glazing on the building, it might have been made by the principal con- tractor with any other person who happened to be in the vicinity and who could conveniently do the work at such times as the loads of glass arrived at the building. It seems clear that the applicant was the employe of the principal contractor for the work in question, and that he is entitled to compen- sation for the injury unless the employment was casual within the meaning of the Workmen's Compensation Law. It should be noted that this work was being done by Sidney Dyer individually, and not by the firm of Dyer & Boss. It was billed as an individual account with Mr. Dyer and paid as such. The date of the contract for, the glazing work was Novem- ber 19, 1914; the injury occurred on December 10, 1914; and it appears from the evidence that the work was not finished until the latter part of March. It also appears that the work to be done was periodic in its nature, that is, from time to time as the loads of glass arrived at the building. The build- ing was a large one and the time during which this work would have continued had it not been for the accident, would extend over a number of months. While it is true it was not steady work, or work that consumed a larger portion of his time, yet it recurred at intervals with the progress of the work and would have continued until the job was finished. Under these facts we think that the employment was not casual. 56 MICHIGAN WORKMEN'S COMPENSATION CASES. SAXFORD HINDMAN, Applicant, vs. ACME UNIVERSAL JOINT MANUFACTURING COMPANY, and EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., Respondents. CYANIDE POISONING OCCUPATIONAL DISEASE AND NOT AN ACCIDENT. Applicant was employed at a forge in the plant of respondent where cyanide was used on red hot steel, causing it to vaporize and be inhaled. After following this work for some time, he was taken violently ill as a result of the inhalation of such gases and is now totally disabled. Respondents filed petition to be relieved from paying further compensation on the ground that applicant was not suffering from an accident but from an occupational disease. HELD: That the disability resulting from the inhalation of cya- nide fumes was not caused by a sudden occurrence, but by a gradual process, and was an occupational disease and not an accident. Opinion by the Board: In this cause a petition was filed by respondents asking to be relieved from making further payments of compensation for several reasons, among them being that the disability of the applicant came from an occupational disease and not from an accident. Applicant was employed at a forge in the plant of the .Acme Universal Joint Mfg. Company where cyanide was used on the red-hot steel, causing it to vaporize and- be inhaled. He continued at this work from June until Septem- ber, 1912, when he was taken violently ill and has since been in a state of total disabilitv. It seems clear that the disabil- CALEDONIA MARSHALL vs. CITY OF DETROIT. 57 itv was caused iiot by a sudden occurrence but by a gradual process through which the cyanide poison was absorbed into the system, making it an occupational disease instead of an accident. It having been held by the Supreme Court in the case of Adams vs. Acme White Lead & Color Works, 21 De- troit Legal News Page 824, that such injuries are not covered by the Law in its present form, it follows that the petitioners are entitled to be relieved from making further payments of compensation, except that they shall make the payments up to the time of the filing of their petition for relief, August 31, 1914. CALEDONIA MARSHALL, Applicant, vs. CITY OF DETROIT, Respondent. MUNICIPAL CORPORATIONS SUBJECT TO WORKMEN'S COMPENSATION LAW WHICH SUPERSEDES CHARTER PROVISIONS. Applicant's decedent was employed by the City of Detroit as a garbage wagon driver, and while engaged in his duties he re- ceived injuries which resulted in his death. Applicant was re- fused compensation under the Workmen's Compensation Act for the following reasons: 1. Because she did not comply with provisions of the Charter of the City of Detroit in filing a claim against the city in the manner provided by its charter. 2. The Charter of the City of Detroit, being a local act, is not affected by the provisions of the Workmen's Compensation Law. 3. The Act, so far as it is mandatory upon municipal corpora- tions, is unconstitutional. 4. By accepting a settlement of five hundred dollars, applicant should be barred from further prosecuting her claim. 58 MICHIGAN WORKMEN'S COMPENSATION CASES. HELD: 1. That the provisions of the Charter of the City of Detroit relative to filing claims against the city are superseded by the Workmen's Compensation Act which is especially made applicable to every city within the State. 2. Sections 7 and 8, Part I, Workmen's Compensation Law, expressly make that law applicable to every city in the state. 3. The Constitution does not prevent the Legislature from imposing upon municipalities the duty of paying compensation to workmen injured while in their employ, such duty being im- posed by a general law. 4. Inasmuch as the settlement made with the applicant was made without reference to the Workmen's Compensation Act, such settlement would not become binding until approved by the Industrial Accident Board, but the amount will be treated as equitably applying upon the compensation to which she was entitled under the Act. Opinion by the Board: William Marshall, the husband of the applicant was em- ployed by the city of Detroit through its Department of Pub- lic Works, and on December 17, 1912, he was severely injured by the slipping of a chain which threw him from the garbage car on which he was working. On March 30, 1913, he died. It is claimed that his death resulted from his said injury, and at the arbitration of the case testimony was introduced tend- ing to support this claim. At such hearing an award was made in favor of the applicant for compensation at the rate of $7.50 per week for 300 weeks, less $87.84 received from res- pondent by Mr. Marshall prior to his death and the sum of $500.00 paid the applicant by respondent after the death. An appeal was taken from this award to the full Board for re- view. The case has been fully argued and briefed by the parties, the principal contention on the part of the respond- ent being based upon the legal questions raised. Competent evidence was offered in support of the applicant's claim that the accident was the cause of the death of William Marshall on March 30, 1913, and in the opinion of the Board fairly es- tablished such claim. CALEDONIA MARSHALL vs. CITY OF DETROIT. 59 The contention is made by respondent that applicant's claim is barred because she did not comply with the provisions of the Charter of the City of Detroit in filing a claim against the city under such Charter provisions, and it is argued in support of this contention that the Charter of the City of De- troit, being a local act, is not modified or affected with refer- ence to the above requirement by the Workmen's Compensa- tion Law, which is a general act. The rule of construction is well settled that a general act will not be construed as affecting a local act except in cases where it does so expressly or by necessary implication. However, the provisions of Sec- tions 7 and 8 of Part I of the Workmen's Compensation Law expressly make that Law applicable to every city within the state, which necessarily means that it is applicable to the city of Detroit. The language of the statute will bear no other construction. The Compensation Act specifies the notices that are required and the time and manner of making claim, and in this respect must be held to supersede the provisions of the Charter of the City of Detroit. It is contended that the act is unconstitutional because it is mandatory as to cities and other municipalities, it being elective as to private corporations and persons. Whatever may be said as to the constitutional rights of private corpora- tions and persons, it seems clear that cities stand on a very different basis. Under the general rule of law laid down in the books, cities are mere creatures of the Legislature possess- ing only the rights and powers expressly granted in their charters, subject to modification or repeal at any time. While the Constitution of 1909 confers upon the cities of Michigan extensive powers of local self-government, it does not affect the power of the Legislature over cities when exercised through a general law designed to promote the public welfare. In the opinion of the Board it was clearly competent for the Legis- lature to impose upon municipalities the duty of paying com- pensation to workmen injured in their service, or to the de- pendents of such workmen in case of death. It is urged that applicant should be barred from prosecut- 60 MICHIGAN WORKMEN'S COMPENSATION CASES. ing her claim in this case for the reason that she has- not res- cinded the settlement which she assumed to make with res- pondent and on which she received the sum of $500. It is contended that said applicant having spent said sum of money and being unable to return it to the city, and therefore unable to rescind the settlement, her claim must be denied. This settlement was made without reference to the Compensation Law, and w r as not reported to or approved by the Board. Un- der Section 5 of Part III of the act such settlement would not become binding on the parties until approved by the Board, and not having been approved, never became a settlement in law. Therefore no rescission was necessary. The most that can be required under the circumstances would be that the amount of money which applicant received from respondent be treated as equitably applying upon the compensation to which she was entitled, and this w r as done by the award. The Department of Public Works is an agency of the City of Detroit merely, the city itself being the principal. This de- partment, we think, can fairly be treated as an important and we might say a general agency of the city with reference to the matters and men having to do with the Public Works of the City. However, the question of notice to the city and of making claim in this case seems to be placed beyond dispute by the action of the parties themselves. William Marshall died on March 30, 1913, and by reason of his death the claim of the applicant in this case came into being. On April 22, 1013, we find that the applicant is asserting her claim against the city and giving testimony in support of it before the com- mittee on claims of the Common Council, the |500 settlement being made by the city with her the following mouth. It ap- pears to be undisputed that the city had knowledge of the in- jury and that the claim was asserted by applicant within the statutory time. Any lack of formality in the service of notice or in the making of claim must be deemed to have been waived under the facts here shown. HAROLD LINSNER vs. CONSUMERS ICE AND FUEL CO. 61 HAROLD LINSXKK, Applicant, vs. CONSl'MKRS ICE AND FFKL COMPANY, and GENERAL ACCIDENT FIRE & LIFE ASSFRAXCE CORPORATION, Respondents. COMPENSATION FOR DISABILITY CAUSED BY HYSTERIA AS RESULT OF INJURY. Applicant suffered an injury to his foot, for which he was paid compensation from February 12, 1914, to December 17, 1914,- Respondents thereafter filed a petition praying to be relieved from paying further compensation on the ground that applicant was then suffering from hysterical neurosis. The hysterical con- dition was the result of the accident, and still renders applicant partially disabled. HELD: That where hysterical neurosis comes as a result of an injury, the one injured is entitled to compensation during the continuance of the disability arising from that cause. Petition by Consumers Ice & Fuel Company for relief from payment of compensation to Harold Linsner for partial dis- ability caused by hysterical neurosis. Denied. Opinion by the Board: The applicant in this case was injured on February 12, 1914, by having his foot jammed between two cakes of ice. On April 17, 1014, an agreement for compensation at the rate of s7.00 per week was filed in the case, and under this agreement compensation was paid until December 17, 1014. On Janu- ary (J. 101."), a petition was filed by respondents praying that they be relieved from paying further compensation, based mainly upon the claim that applicant was now suffering from hysteria or hysterical neurosis. It is not disputed that the applicant is still partially disabled and that his present con- dition is a result of the accident. 62 MICHIGAN WORKMEN'S COMPENSATION CASES. The Board is of the opinion that hysterical neurosis such as the evidence shows in this case entitled the injured man to compensation when it comes as a result of the injury. Almost the precise question was passed upon by the Supreme Court of Massachusetts in the case of Hunnewell vs. Casualty Com- pany of America 107 Northeastern Reporter, 936. We quote from the opinion in that case as follows : "The physical injury to the eye of the employe in the case at bar was slight and he soon recovered from it completely so far as con- cerned harm to the organ itself. But the committee of arbitration found that 'the injury to the eye caused a nervous upset and a neurotic condition which is purely functional.' The Board found that he was 'partially incapacitated from work by reason of a condi- tion of hysterical blindness and neurosis, said condition having a casual relation with the personal injury.' These findings which seem to be identical in substance, were warranted by the evidence. Ap- parently he did not have sufficient will power to throw off this con- dition and go to work as his physical capacity amply warranted him in doing. But such a condition resulting from a battery is an injury for which a tort-feasor would be liable in damages. Spade v. Lynn & Boston R. R., 168 Mass. 285, 47 N. E. 88, 38 L. R. A. 512, 60 Am. St. Rep. 393; Id., 172 Mass. 488, 52 N. E. 747, 43 L. R. A. 832, 70 Am. St. Rep. 298; Berard v. Boston & Albany R. R., 177 Mass. 179, 58 N. E. 586; Homans v. Boston Elev. Ry., 180 Mass. 456, 62 N. E. 737, 57 L. R. A. 291, 91 Am. St. Rep. 324; Bell v. N. Y. t N. H. & H. R. R., 217 Mass. 408, 410, 104 N. E. 963. The same principles applies to in- juries following as a proximate result from an actual physical impact received by an employe under the act in the course of and arising out of his employment." The applicant is entitled to full compensation up to the date of the filing of the petition, and to compensation after that date during the continuance of his partial disability at the rate of $3.50 per week. JAMES H. McKAY vs. CITY ELECTRIC RAILWAY CO. 63 JAMES H. McKAY, Applicant, vs. CITY ELECTRIC RAILWAY COMPANY, Respondent. INJURY CAUSED BY THIRD PERSON EMPLOYEE HAS THE RIGHT TO ELECT BUT CANNOT MAKE CLAIM AGAINST BOTH. Where an employe suffers an injury while in the course of his employment, which injury is caused by some person or agency not connected with the employment, he may elect whether to sue the party directly responsible for his injury or make appli- cation to his employer for compensation. HELD: That an employe cannot accept payment in lieu of damages from the person causing his injury and draw com- pensation from his employer at the same time. Any money so paid shall be applied on the amount of compensation awarded him. Application by City Electric Company for reduction in amount of compensation paid to James H. McKay. Granted. Opinion by the Board: The applicant was injured while in the employ of respond- ent, the injury being caused by the fall of a steel rail which applicant and others were carrying across a highway, and which was struck by an automobile owned by one Philip Higer of Port Huron. The steel rail belonged to respondent and the work of carrying it was a part of applicant's regular employ- ment. Philip Higer, the owner of the automobile in question, was away from home at the time and his automobile was taken out of his garage by one Biddlecomb who acted on the re- quest of Mr. Higer's sister-in-law who lived in the neighbor- hood. On September 18, 1914, an Agreement in Regard to Compensation was made by applicant and respondent under which applicant was to receive compensation at the rate of 64 MICHIGAN WORKMEN'S COMPENSATION CASES. *7.o3 per week during the continuance of disability. Six days later, on September 24, Mr. Higer while denying all liability to applicant, paid him the sum of $150 and received from the applicant a full release for "all damages present and future arising from a collision with auto of said Higer driven by H. Biddlecomb on August 25th, 1914, while working on a rail for City Electric Railway Company in the City of Port Huron." Some compensation was paid under the above agreement made by respondent, and on March 2, 1915, respondent filed a petition praying to be relieved from making further payments for the reason that applicant had made settlement with and received damages from a third person, Philip Higer, and that said action barred his right to further compensation from res- pondent. The petition is based on Section 15, Part III of the Workmen's Compensation Act, which is as follows : "Sec. 15. Where the injury for which compensation is payable under this act was caused under circumstances creating a legal lia- bility in some person other than the employer to pay damages in respect thereof, the employe may at his option proceed either at law against that person to recover damages, or against the employer for compensation under this act, but not against both, and if compensa- tion be paid under this act the employer may enforce for his benefit or for that of the insurance company carrying such risk, or the commis- sioner of insurance, as the case may be, the liability of such other person." The provisions of the above section are substantially the same as those of the early British Workmen's Compensation Acts, and a review of the authority shows that such provi- sions have been upheld and given effect by the British Courts. Under the provisions of our Act, the employer who pays com- pensation to his injured workman is clearly entitled to the right of action that such injured workman may have against a third party on account of the accident. The settlement and release given by the applicant in this case disposed of this right of action which otherwise would belong to the employer. Whether the employer would prosecute such right of action if the settlement had not been made, is unimportant in this case, as the Law gave him the right to do so. The claim of the peti- WILLIAM PURDY vs. CITY OF SAULT STE. MARIE. 65 tioner in this case that the sum of f 150 so received by the ap- plicant should be applied pro tanto upon the compensation that the applicant otherwise would be entitled to recover, must be granted. WILLIAM PURDY, Applicant, vs. CITY OF SAULT STE. MARIE, Respondent. MUNICIPAL CORPORATIONS EMPLOYES INJURY ARISING IN COURSE OF EMPLOYMENT ELECTION TO COME UNDER ACT. Applicant, a man of seventy-five years of age, was employed as a street sweeper by the city of Sault Ste. Marie. While working on the streets he was accidentally run down and injured in such a way that he was entirely deprived of the use of his left foot. Compensation was refused because (1) no negligence on the part of the municipality or its officers was shown; (2) the in- jury did not arise out of claimant's employment; (3) the mu- nicipality was not served with notice of his claim for damages; (4) because the notice provided by Act 10, P. A. 1912, was not served upon the city; (5) because the city had not elected to come within the provisions of the Act. HELD: 1. That the accident arose out of applicant's employ- ment, and that the liability of the City is not affected by the fact of no negligence on the part of itself or its officers. 2. That the officers of the City had knowledge of applicant's injury, and that it was not necessary to serve notice of claim for damages in accordance with the charter provision, such provisions being superseded by the Compensation Law. 3. That by the terms of Act No. 10, Public Acts of 1912, all municipal corporations automatically become subject to its provisions, and no election is necessary. 9 66 MICHIGAN WORKMEN'S COMPENSATION CASES. Appeals by both City of Sault Ste. Marie (respondent) and William Purdy (applicant) to the Industrial Accident Board, from the decision of an arbitration committee awarding ap- plicant $5.00 per week for 125 weeks for the loss of use of hi& left foot. Decision of arbitration committee affirmed. Opinion by the Board: The Committee on Arbitration awarded the applicant in this case $5 per week for a period of 125 weeks. The injury to the applicant's left leg was such as to deprive him entirely of the use of the foot, although the foot was not amputated. The arbitrator chosen by the Applicant and also the arbitrat- or chosen by the Eespondent filed written opinions in the case. Appeals were taken by both the Applicant and the Respondent to the full Board of Review, and after a full hear- ing the award on arbitration is affirmed. The opinion filed by Frank P. Sullivan, the arbitrator for Respondent, so fully covers and presents the issues in the case that it is the sub- stance adopted by the Board (with the exception of the con- cluding paragraph on the amount to be awarded), said opin- ion being as follows: "The claimant, William Purdy, was employed by the city of Sault Ste. Marie for about five weeks as one of its street sweepers, during the months of August and September, in the year 1912. While engaged at work on the streets he was accidentally run down and injured by a conveyance using the public streets. He was a man about 75 years of age, and had been em- ployed for a day or two in excavation work by the city and was placed at street sweeping because he was not fitted for the more arduous labor. He makes claim for compensation under Act No. 10 of the Public Acts of 1912, special session. Mr. Purdy's left leg, between the ankle and the knee, was fractured and the union of the bones was such as to make the foot practically useless. It is claimed on behalf of the city that the municipality not liable because: WILLIAM PURDY vs. CITY OF.SAULT STE. MARIE. 67 (1st) No negligence on the part of the municipality or any of its officers, agents, or employes, was shown. (2d) The injury did not occur through the agency of any employe or officer of the city and was not one arising out of the claimant's employment. (3d) Claimant served no notice upon the common council of said city or the proper city officers of his claim for dam- ages, as provided by the terms of the city charter in such claims (4th) Because no notice of the injury as provided by Act No. 10 of the Public Acts of 1912 was served upon the respond- ent city or any of its officers. (5th) Because the city had not elected to come within the provisions of Act No. 10 and the provision in the act making it applicable to cities does not apply. Section 1 of Act No. 10 gives to every employe the right to recover damages (compensation) for personal injuries sus- tained in the course of his employment, against his employer. Subdivision 1 of Section 5 of the act provides that the state, and each county, city, township, incorporated village, and school district therein shall automatically come under the act without any action on the part of the municipality. Every ether employer must elect to come under the act before being liable to its provisions. Act No. 50 of the Public Acts of 1913, on page 73, adds to Subdivision 1 of Section 5 the following: 'And each incorporated board or public commission in this state, authorized by law to hold property and to sue and be sued/ No other change is made by subsequent amendments affect- ing this case. Section 5 of the act automatically brings the employer city under its terms unless the claimant who was employed by the board of public w T orks of the city of Sault Ste. Marie, was an employe of an incorporated board or commission authorized by law to hold property and to sue and be sued, the employes 68 MICHIGAN WORKMEN'S COMPENSATION CASES. of which are not automatically brought under the act until after the amendment to Section 1 of said Section 5, made by Act No. 50 of the P. A. of 1913. Obviously, the board of public works of said city is not such a board or commission as is contemplated by this amendment. It is one of the agencies by which the functions of the city are exercised, and has none of the powers or privileges enumerated in the amended statute. It is conceded the claimant was injured while in the employ of the city by being run over or against by a vehicle using its public streets and through the probable carelessness of the driver. The injury was not because of or through any agency connected with or incident to the employment, but caused by the act of a third party. Was it, then, received in the course of his employment, with- in the meaning of Section 1 of the act? This act is remedial and should be construed liberally and generously, in favor of the injured servant. It is designed to afford compensation for injuries accidentally and even neg- ligently suffered on the part of the employe, where such neg- ligence was not intentional or wilful, and eliminates the doc- trines of contributory negligence, fellow servant, and safe place, and assumption of risk. The object of this law is to obviate, rather than to set in motion, technical inquiries and defenses, with which courts are familiar and often very much puzzled. It is designed and should receive the broadest possible construction without doing violence to the spirit and language of the act. It is not, however, intended to make the employer an in- surer of the safety of his employes, under any and all con- ditions and from any cause, whether or not the injury results from and arises out of the employment. One of the dangers to be apprehended in the usual course and conduct of the work in question is just what did happen, and it is one of the incidents connected with the employment. The measure is so salutary, the theory of the legislation so fully in accord with the progressive economics, employers WILLIAM PURDY vs. CITY OF SAULT STE. MARIE. GO have so generally adopted it and complied with its terras with- out litigation and in a spirit of harmony which has much to do with its successful administration, that I should deem it worthy of much more careful research and inquiry if this find- ing were to be a precedent. It has been held that a risk is incidental to the employer when it is an ordinary risk directly connected with the em- ployment, or an extraordinary risk which is only indirectly connected with the employment, owing to the special nature of the employment. It is not essential that there be any neg- ligence on the part of the city, and the act does not contem- plate making provision for negligent injuries, but for accident- al injuries any accident arising out of the employment is with- in its terms, and an accident arises out of the employment when it is a risk which might have been contemplated by a reasonable person when entering the employment, as inci- dental to it. The work of the complainant w r as performed upon the pub- lic streets. He is somewhat aged, and somewhat deaf, and necessarily must occupy the traveled way of the public streets when doing this work. It seems to me that it needs no argu- ment to satisfy one that being run over or against by a pass- ing vehicle is one of the risks incident to this employment. The injury may have been accidental, but if it was accidental it is to be compensated for by the city. An ''accident" is defined as: "An unlocked for and unto- ward event, which is not expected or designed." There is no evidence that the driver of this rig intentionally ran upon and over this claimant. Bryant vs. Fessell, 2 Negligence and Compensation Cases, P. 585. It has been held that an engineer, while driving his train under a bridge, who was injured by a stone dropped by a boy from the bridge, was an accident arising out of and in the course of his employment. Clmlles vs. London d Southwestern Ry., 2 K. B., 154. The court here fixed its decision on the fact that a train in 70 MICHIGAN WORKMEN'S COMPENSATION CASES. motion is a great attraction for mischievous boys and an ob- ject at which to hurl missiles. In Nesbitt vs. Rouge and Burns, 2 K. B., 689, it was held that the death of a cashier who was robbed and murdered on a railway carriage while carrying money to pay the wages of his employer's workmen, was caused by an accident arising out of and in the course of his employment, on the ground that the risk of being robbed and murdered is a risk incident to the employment of those who are known to carry consider- able money in cash on regular days over a regular route, to the same place. It was held in Anderson vs. Balfour,'2 Irish Rep., 297, that an injury sustained by a game keeper through criminal con- duct by poachers, was one arising in the course of his employ- ment. 'Injury to a salesman and collector caused by being kicked by a passing horse, while he was riding on the street on his bicycle, in the course of his business, is held to be an injury arising from his employment.' McNeice vs. Singer Sewing Machine Co., 48 Scot. Law Rep., 15. I think it is very plain, without the citation of further au- thority, that it must be held the injury was one sus- tained by this employe in the course of his employment. The act, as I said before, automatically brings the respond- ent city within its terms. Until a court of last resort should say that the attempt of the Legislature to do this was not ef- fective I should deem it my duty to hold according to the literal language of the act. Considerable trouble has been experienced with reference to the notices required, by both the charter and the act itself, to be given by an injured employe to his employer. The charter of the respondent city provides that within sixty days all claims for personal injuries or otherwise must be presented to the common council and verified.' This has not been done. The authorities are numerous WILLIAM PURDY vs. CITY OF SAULT STE. MARIE. 71 which sustain the position that unless the charter provisions are complied with and the claims presented, all right of action against the city is lost, but none of them arise under this statute. The act in question provides for notice being served upon the city within three months after the happening of the in- jury, and notice of a claim for damages under the act within six months after death or removal of physical or mental inca- pacity. Section 18 of the act provides : "Want of written no- tice shall not be a bar to proceedings under this act, if it be shown that the employer had notice or knowledge of the in- jury." The testimony discloses that the city officers and members of the common council generally had notice of the injury? in ample time. That no specific notice was officially served upon them until after the expiration of three months must, I think, also be determined from the evidence. However, the object of a notice is to prevent fraud and to permit the city authorities to collect its evidence before, the parties having knowledge of the same are scattered and this knowledge lost. I think that it has been sufficiently shown that the city, in its official capacity, and nearly all of the city officers (includ- ing the board of public works), had knowledge of the injury, and more or less desultory consultation and conferences had respecting it. I believe this notice to be sufficient. The claim for injury was filed, or left with the recorder, within six months from the date of the injury." The decision of the Board m this case was affirmed by the Supreme Court, the following being the opinion filed by said Court : 72 MICHIGAN WORKMEN'S COMPENSATION CASES. SUPREME COURT. WILLIAM PURDY, Claimant and Appellee, vs. CITY OF SAULT STE. MARIE, Defendant and Appellant. 1. STATUTES TITLE WORKMEN'S COMPENSATION ACT REPEAL OF CITY CHARTER PROVISIONS. The Workmen's Compensation Act is entitled "An act to promote the welfare of the people of this state, relating to the liability of employers for injuries or death sustained by their employes providing compensation for accidental injury to or death of em- ployes and methods for the payment of * * * same, establishing an Industrial Accident Board, defining its powers, providing for a review of its awards, making an appropriation to carry out the provisions of this act, and restricting the right to compensa- tion or damages in such cases to such as are provided (for) by this act," and provides, in part 6, 5, that it expressly re- peals "all aots and parts of acts inconsistent with this act," and "replaced by this act." HELD: That the charter provisions of cities with respect to claims which may be made under the Compensation Act are superseded by its provisions, the title of the act being broad enough to include municipal corporations that are employers. 2. MASTER AND SERVANT WORKMEN s COMPENSATION ACT NOTICE OF INJURY. Under Workmen's Compensation Act, pt. 2, 18, providing that want of written notice shall not be a bar to proceedings under the act, if it be shown that the employer had notice or knowl- edge of the injury, where a street employe was injured and in- formed the superintendent of public works of the city, who had charge of work on the streets, the latter mentioning the matter to the board of public works, so that all city officials had notice of the injury, the employe was not barred from obtaining com- pensation under the act by his failure to give written notice within three months. WILLIAM PURDY vs. CITY OP SAULT STE. MARIE. 73 Certiorari to Industrial Accident Board. Proceedings under the Workmen's Compensation Act by William Purdy to obtain compensation for personal injuries, opposed by the City of Sault Ste. Marie, the employer. Com- pensation was awarded by arbitrators the award approved by the Industrial Accident Board, and the employer brings cer- tiorari. Affirmed. F. T. McDonald, of Sault Ste. Marie, for appellant, Lawson C. H olden and John A. McMahon, both of Sault Ste. Marie, for appellee. OSTRANDER, J. The claimant, Purdy, was employed by the city of Sault Ste. Marie as a street sweeper. He was run down and injured by a conveyance using the street. An award by arbitrators, approved by the Industrial Accident Board, is questioned in this proceeding, the contentions of the city being: "I. Act No. 10, Public Acts of 1912, Extra Session, does not apply to municipalities, and appellant is not subject to its provisions. "II. Said Act No. 10 is compulsory as applied to municipalities and therefore in violation of Article II, Section 1, of the Constitution of Michigan. "III. To compel payment of compensation under said Act would deprive appellant of its property without due process of law. "IV. Said Act makes municipalities insurers of its employes and compels payment of compensation whether or not the injury is the re- sult of any negligence on the part of the municipality. "V. The legislature is without constitutional power to enact such a compensation act as applying to municipalities. "VI. The award cannot be sustained because no claim for compen- sation or notice of injury was presented to or filed with the appellant as required by Act No. 10, Public Acts of 1912." In argument it is said that the city is governed by a charter granted by the legislature and, pointing out its provisions re- lating to the presenting, allowance and payment of claims against it, no authority is to be found for the payment of the award; that the compensation act, so-called, contains no pro- vision for paying the award; that the title to the said com- 71 MICHIGAN WORKMEN'S COMPENSATION CASES. pensation act does not give notice of any intention to super- sede the charter. In Wood v. City of Detroit, decided herewith, this point was not presented, and is not referred to in the opinion. However in considering that case we had the advantage of the briefs in the case at bar and are of opinion that the charter provisions of cities with respect to claims which may be made under the act here in question are superseded by the provisions of the act. Section 5 of part 6 of that act expressly repeals "All acts and parts of acts inconsistent with the act" and "replaced by this act." The title of the act mentions and indicates that its provisions relate to "liability of employers for injuries or death sustained by their employes." It is general, as titles of acts must be, and is broad enough to include municipal cor- porations if they are employers. Our view of the act, as ex- pressed in the opinion in Wood v. City of Detroit, answers the contention that the plaintiff in certiorari may not provide the funds necessary to pay awards made under the act. The other points, except the last, are answered in the earlier opinion. Upon the last point, we have reviewed the testimony. The claimant was hired by Patrick Brady, who was superintend- ent of public works of the city. He had charge of work on streets. Mr. Brady saw claimant the second or third day after the injury at the hospital and was told by claimant that while sweeping the street a "rig" ran over him. Mr. Brady mentioned the matter to the board of public works, consisting of the mayor and two members appointed by the council, and in a general way the matter was discussed. An alderman of the city heard of the injury, called at claimant's house and told claimant he would take the matter up with the council. He referred to the case in the council, but made no motion. The first written notice of a claim for compensation was ad- dressed to Mr. Brady as "City Commissioner," is dated April 22, 1913, was served upon Mr. Brady on or about that date, and recites that the injury occurred September 25, 1912. It was brought into the office of the city recorder by some wom- an May 5, 1913, and left there without any oral statement. It WILLIAM PURDY vs. CITY OF SAULT STE. MARIE. 75 was laid before the council the evening of that day and refer- red to the city attorney for a report. On May 19 the attorney filed his report. It is conceded that he reported non-liability of the city. Later, on December 1, 1913, a copy of a notice of application to the Industrial Accident Board was served upon the city. Objection was duly made by the city before the ar- bitration committee to arbitrating the claim. Upon an appeal from the award of the committee the board, upon a transcript of the testimony and the objections thereto made by the city, affirmed the award. To the arbitration committee the city objected to the arbitration "on the ground that no notice of injury was served on it," The committee disposed of the point, as appears by a written opinion, in the following man- ner: "The Act in question provides for notice being served upon the city within three months after the happening of the injury, and notice of a claim for damages under the Act within six months after death or the removal of physical or mental incapacity. Section 18 of the Act provides: 'Want of written notice shall not be a bar to proceedings under this Act, if it be shown that the employer had notice or knowl- edge of the injury.' "The testimony discloses that the city officers and members of the common council generally had notice of the injury, in ample time. That no specific notice was officially served upon them until after the expiration of three months must, I think, also be determined from the evidence. "However, the object of a notice is to prevent fraud and to permit the city authorities to collect its evidence before the parties having knowledge of the same are scattered and this knowledge lost. "I think that it has been sufficiently shown that the city, in its official capacity, and nearly all of the city officers (including the board of public works), had knowledge of the injury, and more or less desultory consultation and conferences had respecting it. I believe this notice to be sufficient. The claim for injury was filed, or left with the recorder, within six months from the date of the injury." Upon the subject of notice of injury the statute, in Part II, provides : "Sec. 15. No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer three months after the happening thereof, and 76 MICHIGAN WORKMEN'S COMPENSATION CASES. unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employe, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity. "Sec. 16. The said notice shall be in writing, and shall state in ordinary language the time, place and cause of the injury; and shall be signed by the person injured, or by a person in his behalf, or, in the event of his death, by his dependents or by a person in their behalf. "Sec. 17. The notice shall be served upon the employer or an agent thereof. Such service may be made by delivering said notice to the person on whom it is to be served, or leaving it at his residence or place of business, or by sending it by registered mail addressed to the person or corporation on whom it is to be served, at his last known residence or place of business. "Sec. 18. A notice given under the provisions of this act shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place or cause of the injury, unless it is shown that it was the intention to mislead, and the employer, or the insurance company carrying such risk, or the Commissioner of Insurance, as the case may be, was in fact misled thereby. Want of such written notice shall not be a bar to proceedings under this act, if it be shown that the em- ployer had notice or knowledge of the injury." The notice referred to in section 16, is, clearly, the notice required by section 15 to be given. The word "within" must be supplied in section 15, making the section read: "unless a written notice of the injury shall have been given to the employer within three months after the happening thereof." No such notice was given. It is apparent, however, that the employer had notice and knowledge of the injury within the shortest period named in the act and, giving effect to section 18 in accord with the evident legislative intent, the claimant was not barred this proceeding. It follows that there is no error and that the award must be affirmed. MARY WOOD VS. CITY OF DETROIT. 77 The i-iisse of MARY WOOD vs. CITY OF DF.TKOIT. cited in the Purdy case, and which discusses at length the objections made to the constitutionality of the law on account of it being man- datory as to cities and municipalities, is here given in full: SUPREME COURT. MARY WOOD ? Claimant and Appellee, vs. CITY OF DETROIT, Defendant and Appellant. CONSTITUTIONAL LAW WORKMEN'S COMPENSATION ACT APPLICATION TO MUNICIPALITIES EQUAL PROTECTION OF LAW. The Workmen's Compensation Act (Act No. 10, Public Acts of 1912), as amended by Act No. 50, Public Acts of 1913, pro- viding that the state and each county, city, township, incor- porated village, and school district, and each incorporated pub- lic board or public commission in the state, authorized by law to hold property and to sue or be sued generally, shall consti- tute an employer subject to the provisions of the act, is not violative of Const, art. 8, 20-24, providing, generally, that the Legislature shall provide by a general law for the incorpo- ration of cities, that under such general law the electors of each city and village shall have power to frame and amend its charter and to pass all laws and ordinances relating to mu- nicipal concerns, that any city or village may acquire and main- tain parks, hospitals, etc., and all works involving the public health or safety, that subject to the Constitution any city or village may acquire and operate public utilities, etc., and that when a city or village is authorized to acquire or operate any such utility it may issue bonds, since the compensation act, in its application to municipalities, involves and touches upon no right of local self-government or local control and manage- ment of corporate property, because in effect it declares a new public purpose for which taxes may be levied by the munici- pality, i. e., to compensate injured employes, and so does not deprive the municipality of its property, authorized by the Con- stitution to be held by it. 78 MICHIGAN WORKMEN'S COMPENSATION CASES. The classification of employers as municipal or otherwise by the Legislature in the Workmen's Compensation Act (Act No. 10, Public Acts of 1912) as amended by Act No. 50, Public Acts of 1913, giving private employers an election whether or not to accept the act, while imposing it upon municipal employers, is not unconstitutional, as denying equal protection of the laws, since the imposition of the law upon municipalities works no invasion of private rights, as the burden assumed by such corporations is distributed immediately and finally upon the community subject to .be taxed to raise the funds necessary to compensate the injured workmen. Certiorari to the Industrial Accident Board to review the action of the Board in granting an award to Mary Wood, as compensation for the death of her husband, while in the em- ploy of the city of Detroit. Affirmed. Louis H. Wolfe and Chester L. Schwartz, (Maurice E, Fitz- gerald and Samuel W. Shier, of counsel), all of Detroit, for claimant. William E. Tarsney, (Richard I. Lawson, of counsel), of De- troit, for respondent. Grant Fellows, Attorney General; L. S. Carr, Assistant At- torney General, both of Lansing, amici curiae. OSTRANDER, J. In March, 1914, an employe. of the Pub- lic Lighting Commission of the city of Detroit in the course of his employment was killed. The Industrial Aclident Board affirmed an award to a member of the family of the deceased made under the provisions of ,Act No. 10 of the Public Acts of the Extra Session of 1912, overruling the contention of the city that, as applied to municipal corporations, the act is void. The act is entitled: "An Act to promote the welfare of the people of this State, relating to the liability of employers for injuries or death sustained by their employes, providing compensation for the accidental injury to or death of employes and methods for the payment of the same, estab- lishing an industrial accident board, defining its powers, providing for a review of its awards, making an appropriation to carry out the provisions of this act, and restricting the right to compensation or damages in such cases to such as are provided by this act." MARY WOOD VS. CITY OF DETROIT. 79 The proposition of plaintiff in certiorari are that the effect of the act, in operation, is to deprive it of its property with- out due process of law, the Legislature being without power to compel it to respond in damages to an employe injured without its fault; that by the terms and operation of the law and in respect to its private and proprietary functions and powers its rights and the similar rights of individuals and of private corporations are not equally protected. It is also con- tended that in the Home Kule Act the Legislature exhausted its powers and may not by the act in question affect municipal affairs as it has assumed to do. On the other hand, the claimant, the defendant in certio- rari, presents points which are stated in the brief as follows: "(1) That Act No. 10, Public Acts 1912, Extra Session, is consti- tutional and is within the police power of the State; and that the State has absolute control of municipalities. "(2) That the Legislature in passing Act No. 279 in 1909, known as the Home Rule Bill, did not relinquish its control or its further guidance or restrictive powers as to municipalities; that the provi- sion in the constitution made in 1908 in which it is stated that the legislature shall provide a general law for the incorporation of cities and villages with reference to the rate of taxation for municipal pur- poses and restricting their powers to borrow money and contracting debts did not prevent the legislature from passing a law such as Act No. 10 of the Public Acts of 1912, Extra Session. "(3) The appellee contends that municipalities, such as cities, vil- lages, towns, townships, and counties are not discriminated against in Act No. 10 of the Public Acts of 1912, Extra Session; that the Legislature did not exceed its authority in passing a measure which compels an employer (Municipality) to pay money to an employe who is injured while within the scope of his employment, whether or not the employer (Municipality) is negligent in any degree." A Workmen's Compensation Act has been held to be in- valid, because compulsory, in Ives v. South Buffalo Ry Co., 201 N. Y. 271, and valid, though compulsory, in State ex rel Davis-Smith Co. v. Clausen, Wash. 117 Pac. Rep. 1101. The New York decision was made in March, 1911. In November, 1913, the constitution of New York was amended (Art. 1, Sec. 19), and it has since been held, Jensen v. Southern Pac. Co., 80 MICHIGAN WORKMEN'S COMPENSATION CASES. 109 N. E. Rep. 600, that the constitutional amendment meets the objections suggested by the court and sustains the present act, which differs essentially from the one considered in the Ives case. See, also, State ex rel. Yaple v. Creamer, 85 Ohio St. 349, and Porter v. Hopkins, 109 N. E. Rep. 629. The broad question discussed in the cases referred to is not before us. The questions here are whether the Legislature may impose the obligation upon a municipal corporation and, if it may r then whether the act discriminates, unlawfully, between such corporations and others affected by the act. It is well to inquire what will be the effect of the law in application- to actual affairs, and especially in what way, if in any, it affects differently, municipal corporations and pri- vate corporations and individuals. Excepting employers of domestic and farm labor, the act abolishes certain defenses in actions for personal injuries as to all employers, in all cases except cases where an employe gives notice that he will not be bound by the act. These de- fenses are available to an individual or a private corporation in a suit brought by an employe who has so given notice. In no case are they available to a municipal corporation, because its employes are in any event, in express terms, bound by the act. The defenses referred to are (1) that the employe was negligent, unless wilfully so, (2) that the injury was caused by the negligense of a fellow servant, (3) that the employe had assumed the risks inherent in, incidental to, or arising out of his employment, or arising from failure of the employer to provide and maintain safe premises and suitable appli- ances. Probably no one will now deny the power of the Legisla- ture to abolish these defenses. See, Opinion of Justices (Mass.), 96 N. E. 308; Ives v. S. B. R. Co., 201 N. Y. 271; Quackenbush v. Wis. & Minn. R. Co., 62 Wis. 411; Quacken- bush v. Wis. & Minn. R. Co., 71 Wis. 472 ; Employers' Liabil- ity Cases, 207 U. S. 463; Kiley v. C., M. & St. P. R. Co., 138 Wis. 215; Wilmington Star M. Co. v. Fulton, 205 U. S. 60; Minnesota I. Co. v. Kline, 199 U. S. 593; Hall v. West & S. M. MARY WOOD VS. CITY OF DETROIT. 81 Co., 30 Wash. 447; Johnson v. So. Pac. Co., 196 U. S. 1; Walker v. C. C. R. Co., 135 N. C. 738; Mott v. Southern E. Co., 131 N. C. 1^4; Cogdell v. Southern R. Co., 129 N. C. 398 ; Thomas v.R. & A, A. L. R. Co., 129 N. C. 392; Carterville C. Co. v. Abbott, 181 111. 495; Odin C. Co. v. Denman, 185 111. 413; D. H. Davis C. Co. v. Polland, 27 Ind. App. 697; Island C. Co. v. Swag- gerty, 159 Ind. 664; U. S. C. Co. v. Cooper, (Ind. App.) 82 N. E. 981 ; Hailey v. T. & P. R, Co., 113 La. 533 ; Kilpatrick v. ay make, revise or amend, within certain limitations. Among other things, the charters may provide: "(i) For the purchase of the franchises, if any exist, and of prop- erty used in the operation of companies or individuals engaged in the plank-road, cemetery, hospital, almshouse, electric light, gas, heat, water and power business ; and in- cities having not less than twenty- five thousand inhabitants the purchase of the franchise, if any, and the property of street railway and tram railway companies, State and county taxes shall be paid upon such transportation property so pur- chased and owned by any such city;" "(s) For the exercise of all municipal powers in the management and control of municipal property and in the administration of the municipal government, whether such powers be expressly enumerated or not; for any act to advance the interest of the city, the good gov- ernment and prosperity of the municipality and its inhabitants, and 86 MICHIGAN WORKMEN'S COMPENSATION CASES. through its regularly constituted authority to pass all laws and ordinances relating to its municipal concerns, subject to the consti- tution and general laws of this State." The city of Detroit, the plaintiff in certiorari, exists under a special charter, being of the class referred to in section 2 of the act as follows : "Each city now existing shall continue with all its present rights and powers until otherwise provided by law." It has, however, as is matter of common knowledge, amended its charter in various respects, not here of importance. It possessed, before the constitution was adopted, various powers relating to the acquisition, ownership and control of property, and still possesses these powers and in their exercise has ac- quired and owns property, real and personal, which is operated by the city. In the management and control of this property and in the exercise of powers concerning streets and public places, it employs and pays many men. Counsel for plaintiff in certiorari say: "If the municipality in its private business capacity is a private" corporation, it is then entitled to the same right of election as every other private corporation; and if this Act is compulsory in its features as applied to the municipality, it then compels the municipality to pay its injured employes, and results in the taking away of the munici- pality's property (its money) without due process of law, for the rea- son that by due process of law is meant the right to have laws operate on all alike, not subjecting the individuals to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice." The constitution of 1909 has pointed out the extent of the local powers and capacities of cities and villages with more precision than was done in former constitutions, thus restrict- ing the power of the Legislature to grant or to deny to partic- ular communities the enumerated capacities and powers, at will, but it has not abolished all distinctions between munic- ipal and other corporations and individuals Avith respect to the exercises of the powers conferred nor denied the power of MARY WOOD -VS. CITY OF DETROIT. 87 the Legislature to enact general laws applicable to cities. The distinction between powers governmental in character and those private in character as exercised by municipal corpora- tions does not involve the abrogation of the distinction be- tween private municipal activity and private individual activ- ity. To employ a seeming paradox, private municipal activ- ities are all of them public. What has been called private in municipal activity is, nevertheless public when contrasted with purely private enterprise and adventure. There remains, and always must remain, the distinction pointed out in the opinion last referred to. The actual basis for the carrying on by municipal corporations of private municipal business is taxation. There is not, and there can not be, any merely local power to tax persons or property, and municipal activity may still be, and it is the command of the constitution that it shall be, restricted, limited, by the limita- tion of the power to tax, to borrow money and to exploit the municipal credit. Moreover, municipal corporations are still State agencies and as such subject to legislative direction and control, none the less so because the exercise of such control may indirectly affect a private municipal activity. The act, in its application to municipalities, involves no right of local self-government, or* local control and management of corpo- rate property. It deprives the municipality of none of its property, because, in effect, it is made lawful to raise by tax the money required to pay all injured employes some com- pensation. A new public purpose for which taxes may be levied is declared. The subject of the legislation which is in question here is a social subject, in its very nature referable for community action to the State itself. A social theory needed to be crystallized into law. Its nature was such that no community less than the State could be appealed to for this purpose. The theory of this and of similar legislation includes the essential idea that the industrial worker is himself a social asset and ought not, in any case, to bear the whole result of a personal injury arising out of and in the course of his employment; that MICHIGAN WORKMEN'S COMPENSATION CASES. society at large ought to share the loss. The subject is one of governmental control, of public policy, necessarily committed to the Legislature. Whether it is or is not denominated a police regulation, municipal corporationss are, for the purpose of carrying out such a measure, subject to legislative control. The first question is therefore answered adversely to the plaintiff in certiorari. The second question, namely, whether the classification of employers as municipal and other can be defended, is, in prin- ciple, answered by what has been already said. The legisla- ture was confronted with the duty to devise a plan, complete in itself, for dealing with the subject and accomplishing the desired purpose. The limitation upon its power in this direc- tion is the constitution, which I think it has not contravened. The burden created, if it can be called a burden, is uniform as to each individual of each class. There is no vested right of any person to labor for a municipal corporation. There is also a consideration of expediency which may have influenced the Legislature. Private corporations and individ- uals exploit private capital. Out of this, in the first instance, the compensation of employes must be paid. The burden thus assumed by the employer must be distributed by his action in the course of his business. In the case of a municipal corpo- ration the burden assumed by it as employer is distributed, immediately and finally, upon the communit} 7 subject to be taxed to raise the necessary fund. However that may be, there is found in the imposition of the law upon municipal corporations no invasion of private rights, but only the enforce- ment of a State policy which, in view of municipal activities, ought to be uniformly accepted and observed by all municipal corporations. The order of the Industrial Accident Board is affirmed. MATWICZUK vs. AMERICAN CAR & FOUNDRY CO. 89 MARYANNA MATWICZUK, Applicant, vs. AMERICAN CAR & FOUNDRY COMPANY, Respondent. NOTICE OF CLAIM POWER OF ATTORNEY. Applicant's decedent was killed while in respondent's employ. His brother-in-law immediately consulted an attorney who notified respondent of the widow's claim and suggested an early settlement. Decedent's widow lived in Poland and she gave his brother-in-law power of attorney 'to act for her, which was executed in Poland and received by him more than six months after the date of the injury. Respondent refused to pay compensation on the ground that the brother-in-law had no authority to make the application for compensation and that the power of attorney was given him more than six months after the injury, and therefore he was barred from making such claim. HELD: 1. That the attorney's letter notifying respondent of the death of decedent was sufficient notice of a claim for compensation. 2. That the power of attorney took effect at the time of mail- ing rather than at the time of delivery. Appeal of American Car & Foundry Company from the de- cision of an arbitration committee awarding compensation to Maryanna Matwiczuk for the death of her husband. Affirmed. Opinion by the Board: It is conceded in this case that Joseph Matwiczuk, the hus- band of the applicant, met his death on May 22, 1913, as a result of injuries received while in the employ of respondent. It is undisputed that the injuries resulting in his death arose out of and in the course of his employment, and that his widow would be entitled to the compensation fixed by law if claim therefor was made within the time fixed by the Compen- 90 MICHIGAN WORKMEN'S COMPENSATION CASES. sation Act. It is undisputed that on the day following the death of deceased, his brother-in-law, Joseph Postinack, con- sulted an attorney in the city of Detroit, and that said attor- ney wrote a letter to respondent notifying it of the death of Joseph Matwiczuk and further stating that his death was due to any injury received while working for respondent, that deceased had a wife and four children living in Poland, who were dependent upon him, and closing the letter as follows: "If you care to offer reasonable compensation in settlement there is no doubt that it will be considered. Awaiting an immediate reply, I remain (Signature)." The widow of deceased in fact resided in Poland as stated in said notice, and the brother-in-law of deceased above-men- tioned assumed to act for her in consulting said attorney and making the aforesaid claim. If is conceded that Postinack at the time he consulted said attorney had not been authorized so to do by the widow, as this was done very shortly after the death and before the widow even had knowledge of the acci- dent, her residence being in a small town in the interior of Poland. It is contended in this case that the claim made through the action of Postinack is a nullity because he was not authorized so to act, and that the letter from said attor- ney did not constitute the making of a claim for compensation within the meanning of the law. In the opinion of the Board the provision of the Compensa- tion Law relative to making claims for compensation should not be technically construed, and that the communication which was sent to the employer in this case was sufficient to fairly apprise it of the fact that compensation was claimed for the death of decedent. The essential function to be per- formed by notice of claim for injury under this law is to bring home to the employer at some time within 6 months after the accident knowledge of the fact that a claim for compensation therefor is being asserted. We think that the letter in ques- tion must be held to have fairly apprised respondent of this fact. MATWICZUK vs. AMERICAN CAR & FOUNDRY CO. 91 At the time of making the claim, Postiiiack had not been authorized to act for applicant as before stated, but about 5 months after the death of deceased applicant executed at her home in Poland a written power of attorney authorizing Post- inack to act in her behalf in all things relating to the prosecu- tion of her claim for compensation. When this power of at- torney reached Postinack in this country a little more than 6 months had elapsed since the death of decedent, and it is con- tended by respondent that the power of attorney did not take effect until it was actually delivered in this country, and that being after the expiration of the six months period, it could not operate as a ratification of the previous acts of Postinack. This contention is largely technical and without merit. We are inclined to the opinion that the mailing of the power of attorney in Poland constituted a sufficient delivery. We are unable to find any provision in the act requiring the person who makes the claim on behalf of dependents of a deceased workman to be duly authorized agent. It is the evident in- tention of the Law that such claim may be made by near rela- tives or friends without formal authorization from the de- pendents. To hold otherwise would defeat compensation in many cases where the dependents of deceased workmen live in distant lands, or where such dependents are minors. The de- cision of the committee on arbitration awarding compensation to the applicant is affirmed. 92 MICHIGAN WORKMEN'S COMPENSATION CASES. The decision of the Board in this case was affirmed by the Supreme Court, the following being the opinion filed by said Court : SUPREME COURT. MARYANNA MATWIOZUK, Claimant and Appellee, vs. AMERICAN CAR & FOUNDRY COMPANY, Defendant and Appellant. MASTER AND SERVANT INJURIES TO SERVANT RIGHT TO COMPENSATION COMPLIANCE WITH STATUTES. Act No. 10, Public Acts of 1912, 15, Part 2, provides that no proceedings for compensation for injury shall he maintained without notice of the injury within 3 months, and claim for compensation within 6 months, after the injury. Section 1ft provides that the notice shall be in writing, in ordinary lan- guage, and shall state the time, place, and cause of the injury, and be signed, in the event of the employe's death, by his de- pendents or others in their behalf. Section 18 provides that want of written notice shall not bar the action, if the employer has notice or knowledge of the injury. Deceased employe had a wife and family in Poland. On his death, and on the next day, his brother-in-law employed an attorney, who wrote a letter notifying the employer of the death at a certain hour and day, that the cause was improper insulation of electric wires, and that deceased had a family in Poland dependent on him, and asking compensation. A power of attorney ratifying such act was executed and mailed in Poland by the wife to the brother-in-law within six months, but reached him after the expiration of that period. HELD: That, as the statute must not be technically construed, the notice given was sufficient, since it gave the employer full opportunity to investigate the accident. Certiorari to Industrial Accident Board. Proceedings under the Workmen's Compensation Act by MATWICZUK vs. AMERICAN CAR & FOUNDRY CO. 93 Maryanna Matwiczuk to recover compensation for the death of her husband against the American Car & Foundry Com- pany, employer. On certiorari to review the action of the In- dustrial Accident Board in confirming an award for the claim- ant. Affirmed. L. A. Koschiski, of Detroit, for claimant. E. D. Alexander, of Detroit, for defendant. MOORE, J. This is certiorari to review the action of the Industrial Accident Board in confirming an award made in favor of the claimant. The questions involved are so clearly stated in the opinion rendered by the Board that we quote from it. "It is conceded in this case that Joseph Matwiczuk, the husband of the applicant, met his death on May 22, 1913, as a result of the in- juries received while in the employ of respondent. It is undisputed that the injuries resulting in his death arose out of and in the course of his employment, and that his widow would be entitled to the com- pensation fixed by law if claim therefor was made within the time fixed by the Compensation Act. It is undisputed that on the day following the death of deceased, his brother-in-law, Joseph Postinack, consulted an attorney in the city of Detroit, and that said attorney wrote a letter to respondent notifying it of the death of Joseph Matwiczuk and further stating that his death was due to an injury received while working for respondent, that deceased had a wife and four children living in Poland, who were dependent upon him, and closing the letter as follows: "If you care to offer reasonable compensation in settlement there is no doubt that it will be considered. Awaiting an immediate reply, I remain, (Signature)." "The widow of deceased in fact -resided in Poland as stated in said notice, and the brother-in-law of deceased above mentioned assumed to act for her in consulting said attorney and making the aforesaid claim. It is conceded that Postinack at the time he consulted said attorney had not been authorized so to do by the widow, as this was done very shortly after the death and before the widow even had knowledge of the accident, her residence being in a small town in the interior of Poland. It is contended in this case that the claim made through the action of Postinack is a nullity because he was not authorized so to act, and that the letter from said attorney did not 94 MICHIGAN WORKMEN'S COMPENSATION CASES. constitute the making of a claim for compensation within the mean- ing of the law." "In the opinion of the Board the provision of the Compensation Law relative to making claims for compensation should not be technically construed, and that the communication which was sent to the em* ployer in this case was sufficient to fairly apprise it of the fact that, compensation was claimed for the death of the decedent. The essen- tial function to be performed by notice of claim for injury under this law is to bring home to the employer at some time within six months after the accident knowledge of the fact that a claim for compensation therefor is being asserted. We think that the letter in question must be held to have fairly apprised respondent of this fact." "At the time of making the claim, Postinack has not been authorized to act for applicant as before stated, but about five months after the death of deceased, applicant executed at her home in Poland a written, power of attorney authorizing Postinack to act in her behalf in all things relating to the prosecution of her claim for compensation. When this power of attorney reached Postinack in this country a little more than six months had elapsed since the death of decedent, and it is contended by respondent that the power of attorney did not take effect until it was actually delivered in this country, and that being after expiration of the six months' period, it could not operate as a ratification of the previous acts of Postinack. This contention is largely technical and without merit. We are inclined to the opinion, that the mailing of the power of attorney in Poland constituted a sufficient delivery. We are unable to find any provision in the act requiring the person who makes the claim on behalf of the dependents of a deceased workman to be a fully authorized agent. It is the evident intention of the lav/ that such claim may be made by near relatives or friends without formal authorization from the dependents. To hold otherwise would defeat compensation in many cases where the dependents of deceased workmen live in distant lands, or where such dependents are minors. The decision of the committee on arbi- tration awarding compensation to the applicant is affirmed." Counsel for appellant argue two propositions : 1. Was the letter sent by Daniel Minock to the American Car am Foundry Company a claim for compensation such as is contemplated by the terms of the Workmen's Compensation Act? 2. If this letter was a claim sufficient to comply with the terms of the Workmen's Compensation Law, was it sufficiently authorized to- be binding upon the American Car and Foundry Company? Under the first of these propositions it is argued that when- MATWICZUK vs. AMERICAN CAR & FOUNDRY CO. 95 the attorney sent the letter he was not presenting a claim un- der the compensation law, but had in mind liability under the common law for negligence. Under the second proposition it is urged that the power of attorney did not take effect until after the six months had ex- pired, and that as the claimant could not nMe a claim at that time she could not ratify what had been done before. It is also claimed that the power of attorney related to the future and not to what had already been done. Counsel for appellant admit that the propositions involved in this case are new r and therefore undecided. It may be helpful to quote in full the letter which was sent : "Detroit, Mich., May 22, A. D. '13. American Car and Foundry Co., Gentlemen : Joseph Pasternack, who resides at No. 621 Palmer Ave., this city, informs me that his brother-in-law was killed while working in your employ about 1 p. m. Wednesday, May 21st, A. D. 1913. He claims that his brother-in-law, whose name is Joseph Natfechuck, was working on an electric drill, that the electric wires were not properly insulated and that the wires were lying in water, that ow- ing to the fact that when this man came in contact with the wires he received a shock through his body which finally caused his death. This man is married and his wife and four children are living in Poland and are and were dependent on him for their support and maintenance. If you care to offer a reasonable compensation in settlement there is no doubt that it will be considered. Awaiting an immediate reply, I remain, (Sgd) Daniel L. Minock." The record discloses that the claimant was advised of the death of her husband. It does jiot appear whether she was ad- vised of the sending of the letter just quoted. On October 28, 1913, she executed before a Notary Public a formal power of attorney authorizing her brother Joseph Postinack to look after her claim growing out of the death of her husband, the concluding part of the power of attorney reads as follows : "Said Mary Matwiczuk hereby consents to and agrees with every- thing that said Joseph, son of Michael Pasternak, her duly appointed 96 MICHIGAN WORKMEN'S COMPENSATION CASES. attorney in fact, or his duly selected attorneys, may legally do or perform, and she further ratines any of their actions." By due course this power of attorney reached her brother, Joseph Posternak, though not until more than six months after the death of her husband. We may now consider the compensation law, Act 10, Pub- lic Acts, 1912. The provisions of the compensation law appli- cable are Section 15, of Part II which reads: "No proceedings for compensation for injury under this act shall be maintained unless a Notice of the Injury shall have been given to the employer three months after the happening thereof, and un- less the Claim For Compensation with respect to such injury shall have been made within six months after the occurrence of the same, etc." and Section 16 which reads : "The said Notice shall be in writing and shall state in ordinary language the time, place and cause of the injury and shall be signed by the person injured or by a person in his behalf, or in the event of his death by his dependents or by a person in their behalf." Section 18 provides: "Want of such written notice shall not be a bar to the proceeding if it be shown that the employer had notice or knowledge of the injury." See Pwrdy vs. City of Sault Ste. Mane, in which an opinion was handed down this term. It is clear that what was done gave the employer notice of the injury thus affording an opportunity for a full investiga- tion. It also gave notice of who were dependents. We think it also is clear that the company was informed that the brother-in-law by employing the attorney who wrote the letter giving this information, was seeking to protect the interests of the widow and minor children who were in Poland, and the inference follows almost as of course that a claim was urged in their behalf growing out of the death of the husband and father. MATWICZUK vs. AMERICAN CAR & FOUNDRY CO. 97 The language of the Statute indicates that the notice and claim might be in ordinary language and might be signed by dependents "or by a person in their behalf/' and what would be more natural than to assume that a brother of the widow in her absence would act for her. What was done gave to the employer every opportunity to investigate the accident, and knowledge of all material things relating thereto as fully as though an application had been made in a formal way by the widow upon the day when the letter was written. The next day after the injury the employer was notified of it, the result of it, the time and place and cause of its hap- pening and of the persons who were dependent. This notice was given not by an outsider but through the agency of the brother-in-law of the deceased, the brother of the widow. What was done was notice of a claim by the deceased's dependents made by a person in their behalf. We think it too technical to say that a notice and claim made within twenty-four hours after the accident caused to be given as in this case in behalf of the widow who could not make the claim herself because of the distance from where she lived, which action was ratified by her on being advised of the situation, must fail because the ratification did not reach this country within six months from the time of the accident, to so hold would not be according to the letter or the spirit of the employers' Liability Act. The action of the Industrial Board is affirmed. 13 MICHIGAN WORKMEN'S COMPENSATION CASES. WILLIAM M. AGLER, Applicant, vs. * MICHIGAN AGRICULTURAL COLLEGE, Respondent. CASUAL EMPLOYMENT CONSTITUTIONAL BODIES. Applicant was employed by the Michigan Agricultural College make some repairs on the roofs of some of its buildings. He ws not a regular employe of the college, but was merely called upoi as his services were needed. While engaged in one of these jol he fell and received injuries which incapacitated him for a loi period. Compensation was refused because it was contended ihi under sub. 2 of sec. 7, Part I, of the Compensation Law he w$ a casual employe. Also that the Michigan Agricultural Collet is a constitutional body, not subject to legislative control am therefore not liable to pay compensation in any case of injury. HELD: 1. That the proviso of sub. 2, of sec. 7, excluding the "whose employment is but casual," does not apply to employes the state or of municipal corporations within the state. 2. The Michigan Agricultural College is subject to the general laws of the state with reference to its liability to others. Opinion by the Board. In the summer of 1912, the applicant, Willis M. Agler r was employed by the Michigan Agricultural College to repair the tin, metal and slate portions of roofs and porticos of th( buildings on the college grounds for a period of nearly thr< months, receiving for his work 40 cents per hour. This was the first work Agler had ever done for the college, and at it* conclusion no arrangement was made with him for any fui ther work. In the spring of 1913, the heavy winds injure* some of the tin work on some of the porticos of the *col buildings and Agler was employed to repair the same, he to d< the work at 40 cents per hour, the same as the previous sum- mer. Mr. Agler is a tinner and roofer by trade, but does no1 AGLER vs. MICHIGAN AGRICULTURAL COLLEGE. 99 maintain a regular shop or place of business, except that he has a room in his basement where his tools and stock are kept and where some of his work is done. He was accustomed to take such work and jobs in his line as he could procure, work- ing generally by the hour, and when he undertook to make the repairs on the porches in question he knew it would require but two or three days' work for himself and a helper. He knew that he was subject to the direction of the proper officials of the college and could be discharged by them at any time. The college furnished the material for making the repairs, Mr. Agler only furnishing part of his tools. Altogether the college has about 60 buildings and employs on an average 125 em- ployes in and about the grounds and buildings in addition to the faculty of the college. It does not employ regularly tin- ners or roofers. On April 18, 1913, while Mr. Agler was engaged in making the repairs above referred to, he fell from a ladder, fracturing his left leg. The injury will probably not result in permanent disability, but it may be a considerable time before the injured leg will be as well as prior to the injury. Had it not been for the accident Mr. Agler would have finished the work that aft- ernoon, the total amount of time required in completing the work being 41 hours for two men or something over 20 hours each. The respondent contends that it is not liable to pay compensation because the work in which Mr. Agler was en- gaged Avhen injured was casual employment. This involves the construction of Section 7, Part 1 of the Compensation Law, which is as follows: term 'employe' as used in this act shall be construed to mean: 1. Every person in the service of the state or of any county, city, township, incorporated village or school district therein, under any appointment, or contract of hire, express or implied, oral or written, except any official of the state, or of any county, city, township, in- corporated village or school district therein. 2. Every person in the service of another under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally permitted to work under the laws of the state who, for the purposes of this act, shall be considered the 100 MICHIGAN WORKMEN'S COMPENSATION CASES. same and have the same power to contract as adult employes, but not including any person whose employment is but casual or is not in the usual course of the trade, business, profession or occupation of his employer." The next section of the act, being Section 8 of Part I, pro- vides "any employe as denned in subdivision one of the pre- ceding section shall be subject to the provisions of this act and of any act amendatory thereof." The remainder of Sec- tion 8 provides in detail that any employe mentioned in sub- division two of the preceding section shall become subject to the provision of the act by his employer accepting the same, and the failure of such employe to make his election not to be subject to the act. It seems clearly apparent from these pro- visions that two distinct classes of employes are created, one of the said classes being denned by subdivision one, and the other by subdivision two of said Section 7. The Agricultural College being a state institution, its employes are in the ser- vice of the state within the meaning of the act and fall within the class of employes denned in subdivision one above quoted. The proviso which excludes from the benefit of the compensa- tion law those "whose employment is but casual" is found only in subdivision two of said section and applies only to the class of employes defined in said subdivision two. It does not apply to employes of the state or of municipal corporations within the state. At the re-hearing of this case on appeal to the full Board, the point was raised by respondent for the first time that it is a constitutional body not subject to legislative control, and for that reason is not liable to pay compensation in this or any other case. In support of this contention the cases of Bauer vs. State Board of Agriculture, 1(>4 Michigan 415, and Board of Regents vs. Auditor General 167 Michigan 444 are cited. We have examined the above authorities and carefully considered respondent's claim, and have reached the conclu- sion that the position taken in untenable. The authorities re- ferred to do not go to the extent of holding that respondent is not subject to the general laws of the state, or that it may AGLER vs. MICHIGAN AGRICULTURAL COLLEGE. 101 repudiate its obligations because it is a constitutional body. The substance of the above authorities is that, being a consti- tutional body with certain powers and functions granted and fixed by the constitution, it may determine the purpose and manner of expending its funds, and that the legislature may not interfere with or abridge such right. The precise question decided in the Agricultural College case was that the Board might use its funds to construct a building in East Lansing to be leased to the United States Government for a Post Office, and that such action by the State Board of Agriculture in ex- pending its funds could not be interfered with by the Auditor General or the Legislature. This is a very different question from the one now before us for determination. The State Board of Agriculture is a corporate body, an artificial person, and even though it be of a high class because created by the constitution, it is subject to the general laws of the state, is protected by such general laws as to its property, its con- tracts, and the liabiliy of others to it; and it is subject to the general laws of the state with reference to its liabilities to others. It is conducting a large enterprise having some 60 buildings, 125 employes besides its corps of professors, teach- ers and instructors. It exists by virtue of the laws of Michi- gan, is protected by such law^s, and is subject to such laws in ail general matters. The award of the committee on arbitra- tion is affirmed. The above case was appealed to the Supreme Court and re- versed on the ground that the State Board of Agriculture, (Agricultural College), is a constitutional body, and not sub- ject to general legislative control, and not having elected to come under the provisions of the Workmen's Compensation Law, the Michigan Agricultural College is not subject to its terms. The question raised on the hearing before the Board and discussed in the Board's opinion as to the applicability of the provision of the Compensation Act relating to casual employment to cases where a municipality is the employer, is not discussed in the opinion of the Supreme Court, and the 102 MICHIGAN WORKMEN'S COMPENSATION CASES. Board's position upon the point is not disturbed. The fol- lowing is the opinion of the Supreme Court in the case: SUPREME COURT. WILLIAM AGLER, Applicant, vs. MICHIGAN AGRICULTURAL COLLEGE, Respondent. 1. COLLEGES AND UNIVERSITIES CONSTITUTIONAL LAW MICHIGAN AGRI- CULTURAL COLLEGE MASTER AND SERVANT WORKMEN'S COMPENSATION. Neither the legislature nor any officer or Board of the State may interfere with the affairs and property of the university or the Michigan Agricultural College, although in making appropria- tions for its support the legislature may attach any conditions that it deems expedient, and the appropriation cannot be re- ceived without complying with the expressed conditions. 2. SAME MUNICIPAL CORPORATIONS. Not having elected to be brought within the provisions of the workmen's compensation law, Act No. 10, Extra Session 1912 (2 How. Stat. (2d Ed.) 3939 et seq.), the Michigan Agricultural College is not subject to its terms. 3. SAME MASTER AND SERVANT. A servant of the college or of the State Board of Agriculture is not a servant of the State, within the meaning of the statute. William M. Agler applied to the Industrial Accident Board for compensation for injuries received while in the employ of the Michigan Agricultural College. An order awarding com- pensation is reviewed by the respondent on certiorari. Submit- ted April 24, 1014. Reversed July 24, 1014. AGLER vs. MICHIGAN AGRICULTURAL COLLEGE. 103 Grant Fellows, Attorney General, and L. W. Carr, Assist- ant Attorney General, for appellant. Person, Shields & Silsbee, for appellee. The applicant, who is a tinner and roofer by trade, was in- jured, on April 18, 1913, by falling from a ladder while mak- ing repairs on the buildings of the respondent. A claim was presented against the respondent under the workmen's com- pensation law of 1912, and the case is brought here by cer- tiorari to the Industrial Accident Board to review an order affirming the award miade to the applicant by an arbitration committee, in accordance with the provisions of the act. Neither the Michigan Agricultural College nor the State board of agriculture, which has general supervision of the col- lege and direction and control of all its funds, elected to come tinder the provisions of the Workmen's Compensation Act. No mention is made in the act of either of the constitutional boards; the board of regents of the University and the State board of agriculture, and the question here it, Does the act bring arbitrarily under its provisions the State board of agri- culture, which is a board created by the Constitution (sec- tions 7 and 8, art. 11, Const.) ? This involves a consideration of the following sections of the act: "PART 1. "SEC. 5. The following shall constitute employers subject to the provisions of this act: "1. The State and each county, city, township, incorporated vil- lage and school district therein; "2. Every person, firm and private corporation, including any pub- lic service corporation, who has any,person in service under any con- tract of hire, express or implied, oral or written, and who, at or prior to the time of the accident to the employee for which compensation under this act may be claimed, shall in the manner provided in the next section, have elected to become subject to the provisions of this act, and who shall not, prior to such accident, have effected a with- drawal of such election, in the manner provided in the next section. * * * "SEC. 7. The term 'employee' as used in this act shall be construed to mean: 104 MICHIGAN WORKMEN'S COMPENSATION CASES. "1. Every person in the service of the State, or of any county, city, township, incorporated village or school district therein, under any appointment, or contract of hire, express or implied, oral or written, except any official of the State, or of any county, city, township, in- corporated village or school district therein: Provided, that one em- ployed by a contractor who has contracted with a county, city, town- ship, incorporated village, school district or the State, through its representatives, shall not be considered an employee of the State, county, city, township, incorporated village or school district which made the contract; "2. Every person in the service of another under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally permitted to work under the laws of the State who, for the purposes of this act, shall be considered the same and have the same power to contract as adult employees, but not including any person whose employment is but casual or is not in the usual course of the trade, business, profession or occupation of his employer." In the stipulation filed in this case the following appears: "It is agreed that the draft of the workmen's compensation act as prepared by the commission and as presented to the legislature con- tained a period after the word 'contract' at the end of the first sub- division of paragraph 7 of part 1." KUHN, J. (After stating the facts). By virtue of the Con- stitution of 1909, the State board of agriculture was put on the same plane with the board of regents of the University of Michigan. It has been established beyond question by deci- sions of this court that neither the Legislature nor any officer or board of this State may interfere with the control and man agement of the affairs and property of the University, although in making appropriations for its support the Legislature may attach any conditions it may deem expedient and wise, and the appropriation cannot be received without complying with the conditions. People, ex rel. Drake, v. Regents, 4 Mich. 98; Weinberg v . Regents, 97 Mich. 246 (56 N. W. 605; Sterling v. Regents 110 Mich. 369 (68 N. W. 253, 34 L. E. A. 150) ; 'Bauer v. State Board of Agriculture, 164 Mich. 415 (129 N. W. 713) ; Board of Regents v. Auditor General, 167 Mich. 444 (132 N. W. 1037). AGLER vs. MICHIGAN AGRICULTURAL COLLEGE. 105 Section 5, part 1, of the Workmen's Compensation Law (2 How. Stat. [2d Ed.] 3939), expressly enumerates the State and counties, cities and villages, townships and school dis- tricts. Neither of the constitutional boards is mentioned. In the case of Weiriberg v. Regents, supra, there was under consideration an act of the Legislature which provided : "That when public buildings, or other public works or improve- ments are to be built, repaired or ornamented under contract, at the expense of this State, or of any county, city, village, township, or school district thereof, it shall be the duty of the board of officers or agents contracting on behalf of the State, county, city, village, town- ship, or school district, to require sufficient security by bond, for the payment by the contractor, and all subcontractors, for all labor per- formed, or materials furnished in the erection, repairing or ornament- ing of such building, works or improvements." Act No. 45, Pub. Acts 1885. Mr. Justice Grant, in writing the majority opinion said, 97 Mich., at pages 253, 254 (56 N. W. 607) : "The regents make no contracts on behalf of the State, but solely on behalf of and for the benefit of the University. All the other public corporations mentioned in the Constitution, which have occa- sion to erect public buildings or to make public improvements, are expressly included in this statute. 'Expressio unius est exclusio al- terius.' It expressly enumerates the State, counties, cities, villages, townships, and school districts. If the University were under the control and management of the legislature, it would undoubtedly come within this statute, as do the Agricultural College, Normal School, State Public School, asylums, prisons, reform schools, houses of cor- rection, etc. But the general supervision of the University is, by the Constitution, vested in the regents. * * * "The University is the property of the people of the State, and in this sense is State property so as to be exempt from taxation. Auditor General v. Regents, 83 Mich. 467 [4J N. W. 440, 10 L. R. A. 376]. But the people, who are the corporators of this institution of learning, have, by their Constitution, conferred the entire control and manage- ment of its affairs and property upon the corporation designated as 'the Regents of the University of Michigan,' and have thereby ex- cluded all departments of the State government from any interference therewith. The fact that it is State property does not bring the regents within the purview of the statute. The people may, by their Constitution, place any of its institutions or property beyond the control of the legislature." 106 MICHIGAN WORKMEN'S COMPENSATION CASES. The contract of employment in the instant case was made with the State board of agriculture, not on behalf of the State, but primarily for the benefit of the Agricultural College. For the reasons stated by Mr. Justice Grant in the Weinberg Case, we must conclude that it cannot be said that the State board of agriculture or the regents of the University are brought un- der the Workmen's Compensation Act by virtue of said sec- tion 5 of part 1 of the act, and it cannot be said that the ap- plicant was an employee of the State within the meaning of said law. The conclusion must therefore follow that the res- pondent was not within the list of employers who come under the provisions of the law of 1912 automatically; and, inas- much as the respondent has made no election to come thereun- der, the applicant is not entitled to recover in this proceeding. Because of this conclusion, it is unnecessary to discuss the other interesting and well-argued questions raised in briefs of counsel. The decision of the Industrial Accident Board is re- versed, and the claim of the applicant is disallowed. HELEN JENDRUS, Applicant, vs. DETROIT STEEL PRODUCTS COMPANY, and MICHIGAN WORKMEN'S COMPENSATION MUTUAL INSURANCE COMPANY, Respondents. REFUSAL TO SUBMIT TO OPERATION DELAY IN GIVING CONSENT. Respondent's decedent suffered an injury while in the employ of the applicant, which necessitated an operation. Decedent refused to allow an operation until the next day, although he was told that it was necessary. While the operation was being performed de- JEXDRUS vs. DETROIT STEEL PRODUCTS COMPANY. 107 cedent vomited and some of the vomit was drawn into his lungs, causing pneumonia which resulted in this death. HELD: The refusal to be operated on when first requested was not so unreasonable as to defeat the claim for compensation, as de- cedent finally consented when convinced that the operation was absolutely necessary. Appeal of Detroit Steel Products Company from a decision of an arbitration committee, awarding compensation to Helen Tendnis for the death of her husband. Affirmed. Opinion by the Board: In this case the deceased, Joseph Jendrus, was injured by a severe blow on the abdomen. The doctors attending the in- jured man diagnosed the injury as a probable rupture of the intestine and advised an operation. The accident occurred about 1 o'clock in the afternoon on February 14. At about 8 or 8 :30 in the evening the doctors sought to operate on the in- jured man. It appears that he could not talk English and communication was had with him through an interpreter. The injured man shook his head, indicating a refusal to be operated on. The matter of an operation was again brought up by the doctors on the following morning, February 15. Jendrus, at that time, refused to submit to the operation, but consented at about 11 :30 a. m. The operation was performed about 1 :30 p. m. on February 15. It seems that during the operation the patient vomited, and vomit was drawn into the lungs, caus- ing pneumonia and resulting in his death a few days later. The operation disclosed a rupture of the intestine which was not sutured, and the post-mortem examination showed the same to be in process of healing at the time of death. All communication with the deceased after the injury was through an interpreter. The Board is of the opinion that the refusal to be operated on when first requested, and the further action of deceased in delaying consent to the operation until nearly noon on the day 108 MICHIGAN WORKMEN'S COMPENSATION CASES. following the accident was not so unreasonable and persistent as to defeat the claim for compensation in this case. He did submit to the operation after being convinced that it was ab- solutely necessary. It seems that nearly two hours elapsed from the time he gave his consent till the operation was 'per- formed. It is by no means certain that an earlier operation would have saved his life, nor is it certain that the operation actually performed would have have resulted in his recovery were it not for the fact that he vomited while under the anaesthetic and inhaled some of the vomit, causing pneumonia. It seems clear that the operation was not too late to remedy the abdominal injury caused by the accident. The vomiting and resulting pneumonia came as an incident to the operation. The fact that the deceased was unable to speak English and was unaccustomed to the ways of this country should be given some weight. The judgment and decision of the Arbitration Committee is affirmed. This case was appealed to the Supreme Court and affirmed, the full opinion of the Supreme Court being given below : SUPREME COURT. HELEN JENDRUS, Claimant and Appellee, vs. DETROIT STEEL PRODUCTS COMPANY, and MICHIGAN WORKMEN'S COMPENSATION MUTUAL INSURANCE COMPANY, Defendants and Appellants. MASTER AND SERVANT PERSONAL INJURIES WORKMEN'S COMPENSATION ACT REFUSAL TO ALLOW OPERATION. Where a servant of defendant received internal injuries which resulted in peritonitis and he refused to permit an operation which his physician advised, until his condition hecame too JENDRUS vs. DETROIT STEEL PRODUCTS COMPANY. 103 serious to operate successfully, but it was not established con- clusively that an operation would have effected a cure or that the peritonitis caused his death, and where it was shown that decedent probably died of pneumonia contracted as a result of the operation when he finally submitted to it, 15 or 16 hours later, the court could not determine, as matter of law, that his conduct was so unreasonable as to forfeit the right to com- pensation under Act No. 10, First Special Session 1912 (2 How. Stat. [2d. Ed.] 3939), especially in view of the fact that he was unable to speak or understand English well, and was suffer- ing at the time the operation was proposed. Certiorari to the Industrial Accident Board. Submitted October 16, 1913. Decided December 20, 1913. Helen Jendrus presented her claim to the Industrial Acci- dent Board for compensation for the accidental death of her husband while he was employed by the Detroit Steel Products Company. From the allowance of the claim, defendants bring certiorari. Affirmed. Beaumont, Smith & Harris, for appellants. William W. MacPherson, for appellee. STONE, J. The claimant and appellee is the widow of Joseph Jendrus, who died on February 19, 1913. Joseph Jen- drus, a native of Poland, was on February 14, 1913, an em- ployee of the appellant Detroit Steel Products Company, which was then insured under the Workmen's Compensation Act by the appellant Michigan Workmen's Compensation Mu- tual Insurance Company. Joseph Jendrus was at the date last named also subject to the Compensation Act. On Fri- day, February 14, 1913, at about 2 o'clock in the afternoon, Jendrus, while in good health and vigor, was at work for his said employer polishing a spring scroll, when the end of the scroll caught on a belt of a machine, and swung around and struck him violently in the abdomen. Jendrus was imme- diately placed on a stretcher and sent to Harper Hospital. The insurance company was notified, and its surgeon, Dr. W. H. Hutchings, reached the hospital before the ambulance ar- 110 MICHIGAN WORKMEN'S COMPENSATION CASES. rived. He looked at Jendurs before he was taken into the hos- pital. Before Jendrus was taken into the ward, samples of his urine and his blood w r ere taken, and he was then put to bed. As soon as this was done, the surgeon examined him, and found "a tenderness, very slight, almost no sign of contu- sion on the outside, just a little redness." This was on the right side between the ribs and the hip. This was at 2 p. m. A delay was necessary for the blood examination. At 4 o'clock Dr. Hutchings saw Jendrus again. He then complained of much pain, and there was marked muscular rigidity over the area where the blow appeared to have struck. At 8 o'clock p. ni. another examination was made. The area of hardness was then spreading. The blood examination had shown no in- ternal hemorrhage, the urine no blood, and the surgeon, with this information diagnosed the case as that of a ruptured in- testine. At this hour Jendrus' temperature was rising. The surgeon, to confirm his diagnosis, asked Drs. George McKeaii and Angus McLean to see the injured man. They each ex- amined him at about 8 o'clock, and confirmed Dr. Hutchings' opinion, and they joined him in saying that an immediate operation was necessary. At this time the claimant and an elderly man were at the bedside of the patient. Jendrus spoke very little English and Dr. Hutchings could not speak Polish. He and the man spoke German, and the doctor explained to him the necessity for an operation. Upon this subject Dr. Hutchings testified before the committee of arbitration as follows : "I told him that if my diagnosis was correct, that without an opera- tion he was, in my opinion, sure to die; that if he was operated on at that time, he had about nine chances out of ten of getting well. I thoroughly explained that the longer he delayed the operation, the so much worse it was for his chances; that if he delayed long enough, there would be no use of operating. Dr. McLean and Dr. McKean said the same thing. I was not satisfied from the attitude of the man I talked with that he had told him what I said. I was not sure that he did. So I sent down and got one of the maids there who spoke English very well, and who is Polish also, called her in and said to her, 'I want you to tell this man what I say to you.' This was around 8 o'clock. 'You tell him that, if our diagnosis is correct, that if he JENDRUS vs. DETROIT STEEL PRODUCTS COMPANY. Ill is not operated on, he will surely die.' I said, 'If you are operated on now, as soon as we can, your chances of getting well are about nine out of ten; the longer you delay this, so much you take away from your chances of recovery; if you delay it until you are pretty near dead, probably an operation will do you no good.' This Polish girl explained this to the man, and he said, 'No.' I could see him shake his head. It was apparent from his general attitude that he would not have it, so I went away. * * * I went away leaving in- structions, if they changed their minds, they were to call me." While the doctors were there in consultation, the patient vomited a little fluid. Dr. McLean testified : . "It was fecal in odor, but was not of a poisonous nature. ' Dr. McKean testified: "It was almost a fecal vomit, due to reverse acting of the peritalsis. It was just the beginning of peritonitis. * * * It was approaching the fecal vomiting time." The patient was kept quiet during the night. The next morning when Dr. Hutchings again saw him he was worse. The doctor testified : "His pulse was rapid, the whole abdomen was distended and tender, and the typical signs of advanced peritonitis; that is, he was vomiting considerable quantities of fecal matter, which by that time had become markedly fecal." The patient would not consent in the morning to an opera- tion. Dr. Hutchings went to attend to some other operations. Between 11 :30.a. m. and 12 o'clock another physician had been called by the Jendrus family, and he testified that when he arrived Jendrtis had consented to be operated upon. Dr. Hutchings testified that it was about 12 :30 p. m. when he was told by the nurse that Jendrus had consented to an operation. A room was ordered prepared, and the patient was operated upon at 1 :30 p. m. This was as soon as the arrangements could be made. The house staff was present and assisted. There was testimony that the vomiting had grown worse, and it had been persistent all the morning, and the distended con- 112 MICHIGAN WORKMEN'S COMPENSATION CASES. dition of the abdomen had developed about 9 o'clock. Becaus of the vomiting Dr. Hutchings directed the assistants to us< nitrous oxide as the anaesthetic as being less likely to prodm vomiting. Just as the patient was going under the influence of the anaesthetic a large quantity of fecal vomitus came and some of it went down in his lungs. They turned his hea< over in the endeavor to rid him of this. The surgeon testifiec that there was no way that this vomitus getting into the lunj could be avoided. Dr. Hutchings proceeded with the open tion, which took about ten minutes. He made the ordinary incision and found a complete peritonitis. The intestin< were so congested that he did not attempt to remove them an< find the perforation. He inserted drainage in the abdomen, and began transfusing a salt solution subcutaneously. Fol lowing the operation Jendrus' condition improved. His tei perature went down ; the vomiting became less, but his breath- ing remained rapid. There was trouble about washing out hi* stomach. He had refused to have this done, but finally coi sen ted. Two days after the operation pneumonia developed, an< Dr. Ernest Haass was called. He found the patient suffering from aspiration, or "swallow" pneumonia. This was on Mon- day. The next two days the lungs solidified, and the patient died of pneumonia, in the opinion of most of the physicians. Dr. McLean, however, testified that, while he saw him but a few times, he did not think he died of pneumonia; he thought it was the peritonitis that was the cause of his death, but testified that he did not see the patient after he had pneumo nia. After Jendrus' death a post mortem was performed by Dr. Sill, and it confirmed the diagnosis of the surgeon. The lungs were found to be solidified, and Dr. Pill testified, among other things, as follows: "I think that the pneumonia process discovered was as potent a factor in causing the death as the peritonitis. I would call that what we term the immediate cause of death. "Q. Was there any way for you to determine whether or not the pneumonia was caused by inspiration of material, of vomitus?" JENDRUS vs. DETROIT STEEL PRODUCTS COMPANY. lia "A. Simply that it was a disseminated bronchial pneumonia. * * * The pneumonia process was still active. I mean that the inflamma- tion was going on. I think the man died from toxaemia. I hold from my post mortem findings that the pneumonia process was the most active toxic process going on at the time of his death. I form that opinion from the fact that the peritonitis was beginning to localize, beginning to subside. I do not think I could say that the pneumonia was sufficient to have caused death without the complicated inflamma- tion of the peritonitis. The peritonitis and the pneumonia together were sufficient to cause death; but whether the pneumonia alone would have caused death I could not answer. * * * I think the pneumonia was the immediate cause of death. If he had not had pneumonia, he would not have died when he did die, and he might have recovered from his peritonitis. "Q. Nothing certain about that, about him recovering from the peritonitis? "A. I could not swear that he would recover; no. "Q. Are you able to tell from your post mortem findings, or are you able to state, which was the greatest factor in his death produc- tion, eliminating the fact that his pneumonia came, as stated by Dr. Hutchings, from the inspiration of material vomited? "A. No; I don't think I can state that. I don't think I can state which was the greatest factor in his death, eliminating the fact that his pneumonia came from inspiration of material vomited." The perforation of the intestine was located at the post morfem. On separating the coils of the intestines a perfora- tion the size of a Canadian five-cent piece was found in the ileum 21/2 feet from the caput coli. None of the physicians testified that Jendrns would surely have recovered from the operation if it had been performed Friday night; but there was testimony that an early operation presented the only chance for saving his life. After the death of Jendrus the claimant here made claim for compensation. A committee of arbitration was appointed, testimony taken, and the award was in favor of the claimant for the sum of $10 per week for a period of 300 weeks from the 14th day of February, 1913. Thereafter a review of this award was bad, and the Indus- trial Accident Board affirmed it, filing an opinion and find- ings of facts, as follows : 15 114 MICHIGAN WORKMEN'S COMPENSATION CASES. "In this case the deceased, Joseph Jendrus, was injured by a severe blow on the abdomen. The doctors attending the injured man diag- nosed the injury as a probable rupture of the intestine, and advised an operation. The accident occurred about 1 o'clock in the afternoon on February 14th. At about 8 or 8:30 in the evening the doctors sought to operate on the injured man. It appears that he could not talk English, and communication was had with him through an interpreter. The injured man shook his head, indicating a refusal to be operated on. The matter of an operation was again brought up by the doctors on the following morning, February 15th. Jendrus, at that time, refused to submit to the operation, but consented at about 11:30 a. m. The operation was performed about 1:30 p. m. on Feb- ruary 15th. It seems that during the operation the patient vomited, and the vomit was drawn into the lungs, causing pneumonia, and resulting in his death a few days later. The operation disclosed a rupture of the intestines which was not sutured, and the post mortem examination showed the same to be in process of healing at the time of death. All communication with the deceased after the injury was through an interpreter. The board is of the opinion that the refusal to be operated on' when first requested and the further action of de- ceased in delaying consent to the operation until nearly noon on the day following the accident was not so unreasonable and persistent as to defeat the claim for compensation in this case. He did submit to the operation after being convinced that it was absolutely necessary. It seems that nearly two hours elapsed from the time he gave this consent until the operation was performed. It is by no means certain that an earlier operation would have saved his life, nor is it certain that the operation actually performed would not have resulted in his recovery were it not for the fact that he vomited while under the anaesthetic, and inhaled some of the vomit, causing pneumonia. It seems clear that the operation was not too late to remedy the ab- dominal injury caused by the accident. The vomiting and resulting pneumonia came as an incident to the operation. The fact that the deceased was unable to speak English and was unaccustomed to the ways of this country should be given some weight. The judgment and decision of the arbitration committee is affirmed." There was a motion to amend the findings, which was re- fused except in one instance, to which action there was no ex- ception or error assigned, and the matter of refusal to amend is not before us. The case is here upon certiorari to review the action of the Industrial Accident Board. JENDRUS vs. DETROIT STEEL PRODUCTS COMPANY. 115 The following grounds of error are assigned by appellants in the affidavit for the writ of certiorari : (a) "The industrial accident board erred in affirming the said judgment and decision of the said arbitration committee." (b) "The industrial accident board erred in deciding that the refusal of said Joseph Jendrus to be operated on when first requested and further action of the deceased in delaying consent to the opera- tion was not so unreasonable and persistent as to defeat the claim for compensation." (c) "The said industrial accident board erred in holding that the refusal of the said Joseph Jendrus to be operated on was not so un- reasonable as to defeat the claim for compensation." (d) "Said industrial accident board erred in deciding that the re- fusal of the said Joseph Jendrus was not so persistent as to defeat the claim for compensation in that the refusal to submit to an opera- tion if unreasonable need not be persistent to defeat the claim for compensation." (e) "Said industrial accident board likewise erred in their con- clusion of law that the said refusal was not so persistent as to de- feat the claim for compensation in that, as a matter of law, the said refusal need not be persistent to defeat said claim." (f ) "Said industrial accident board erred in its conclusion of law that the said refusal was not unreasonable." (g) "That said industrial accident board erred in their decision, be- cause it appears from the testimony that the said Joseph Jendrus did not come to his death as a result of the said injury for which compensa- tion was claimed, but he came to his death by reason of his refusal to permit the medical attention offered him by said respondents, Michigan Workmen's Compensatipn Mutual Insurance Company and the Detroit Steel Products Company." (h) "The said industrial accident board erred in holding, as a mat- ter of law, that the death of the said deceased was not a result of his intentional and wilful misconduct." (i) "The industrial accident board erred in holding, as a matter of law, that the claimant was entitled to compensation as widow of the said Joseph Jendrus; he having refused to consent to the medical attendance offered by the said employer, the Detroit Steel Products Company and the Michigan Workmen's Compensation Mutual Insur- ance Company, petitioners herein." Section 12 of part 3 of the act (Act No. 10, Pub. Acts 11)12) provides that the finding of fact made by the said Industrial Accident Board, acting within its powers, shall, in the absence of fraud, be conclusive, but the Supreme Court shall have 116 MICHIGAN WORKMEN'S COMPENSATION CASES. power to review questions of law involved in any final deter- mination of said Industrial Accident Board. No question it raised in this case involving the validity or constitutionality of the act in question. No claim of fraud is here presented. The appellants state in their brief that the questions in- volved are: (1) Did the injury arise out of and in the course of the employment ? (2) Was the employee guilty of intentional misconduct? It is said that these questions are closely related, since i is clear that, if the employee had been guilty of intentional and wilful misconduct, he could not be acting within th< course of his employment. We quote from appellants' bri( as follows: "Manifestly, the original injury the striking of the spring against the abdomen of Jendrus arose in the course of the employment, and arose out of the employment, and there is no showing that it was caused by the wilful misconduct of Jendrus. But the claim here for compensation by reason of the death of Jendrus. The question then is, did the death occur from that injury, or was it caused by some other accident, act, or injury? * * * Here Jendrus had entered into an agreement by which he had undertaken to accept from his em- ployer reasonable medical treatment and hospital services. The em- ployer had undertaken that for a limited period of time it would furnish this service. That agreement was offered to the employee as a part consideration for his yielding up his right of action at common law. But it rests as well upon another theory, which is that the employer, by reason of the fact that it undertook to pay the in- jured employee a percentage of his earnings during the period of his disability, should have the right, as it was its duty, to furnish the medical attendance to that employee in order to minimize the injury and the consequent compensation." "When, therefore, Jendrus refused the medical attendance offered by his employer, he refused that which the employer had undertaken to give him, and he refused a service that it was important for the employer to render by reason of the relation which it bore to the com- pensation that the employer must pay for disability or death. * * The workmen's compensation statute specifically provides that the injury must arise out of the employment, and specifically negatives a recovery where there is intentional and wilful misconduct. It is true JENDRUS vs. DETROIT STEEL PRODUCTS COMPANY. 117 that the statute disregards negligence; but there still must remain, before there can be a recovery, a showing that the injury did result from an accident arising out of the employment, and not from any other cause." "It would be a harsh rule that bound an employee who had been injured to accept in all cases the dictum of a surgeon who advises an operation. Manifestly the employee cannot be called upon at all times and under all circumstances to place himself absolutely in the hands of the employer's surgeon; but, where there is no dispute amongst his medical advisers, and the course suggested presents the only opportunity for the saving of the life, we insist that that refusal is a new and controlling cause for the injury for which recovery is sought." Counsel for appellants call attention to the English act which provides, as ours does, for the payment for injuries arising out of and in the course of the employment, but that that act does not provide for medical care by the employer; and it is urged that in Michigan, if the employee refuses the reasonable medical services tendered by the employer, he is refusing compensation, and should not be permitted to compel the employer to pay the money compensation, while, at the same time, he is refusing to accept the medical compensation. Tl is urged that under the English decisions the rule has been universally laid down that, if the employee unreasonably re- fuses to accept the medical attention offered by the employer, li<> forfeits- his compensation. And our attention has been called to the following English cases: Donnelly v. Baird <& Co., Lt94 ; 1 Butterworths' Workmen's Com- pensation Cases, 95. In that case a workman in the course of his employment had suffered injury to his left hand, in respect of which he was receiving compensation. On application by the employers to stop the payment of compensation on the ground that the con- tinued incapacity for work resulted from the workman refus- ing to undergo surgical treatment, the sheriff's substitute found that the operations suggested by the doctors were sim- ple or minor operations, not attended with appreciable risk or serious pain, likely, if submitted to, to restore the workman's 118 MICHIGAN WORKMEN'S COMPENSATION CASES. capacity for work, and that the workman was of good consti- tution and sound general health; he thereupon ended the pay- ment of compensation. The court of sessions, two justices dis- senting, held that upon the findings of the sheriff's substitute his decision was right. In the course of his opinion, Lord Justice-Clerk said : "The question whether a refusal to submit to skilled treatment the restoration, whole or partial, of capacity for work is an unreason- able refusal, is necessarily a question of degree. For it cannot be maintained that no matter what be the severity of the operation recommended, or how great soever the risk to life or general health of the treatment, the workman loses right to compensation unless he brings himself to undergo the treatment and to take the risk. I think the sound view on this matter is well expressed by Lord Adam in the case of Dowds v. Bennie & Son (40 S. L. R. 239), when he laid it down that a workman who has been incapacitated is not bound in every case to submit to any medical or surgical treatment that is pro- posed, under the penalty, if he refuses, or forfeiture of his right to a weekly payment e. g., in the case where a serious surgical opera- tion is proposed with more or less probability of a successful cure. "On the other hand, I hold it to be the duty of the injured workman to submit to such treatment, medical or surgical, as involves no serious risk or suffering, such an operation as a man of ordinarily manly character would undergo for his own good, in a case where no question of compensation due by another existed. In preparing this opinion I find mat I have used almost the terms which are to be found in the case of Anderson v. Baird & Co., Ltd. (40 S. L. R. 263). These two cases which I have referred to seem to me to prac- tically rule this case." Lord McLaren said: "There 'is of course no question of compelling the party to submi to an operation. The question is whether a party who declines to undergo what would be described by experts as a reasonable and safe operation is to be considered as a sufferer from the effect of an injury received in the course of his employment, or whether his suffering and consequent inability to work at his trade ought not . to be attributed to his voluntary action in declining to avail himself of reasonable surgical treatment. "In order to test the principle of decision I will suppose a more simple case. A workman whose trade requires the perfect use of both hands a watchmaker or an instrument-maker for example has th< JENDRUS vs. DETROIT STEEL PRODUCTS COMPANY. 119 misfortune to break one of the bones of a finger, and from want of immediate assistance, or it may be from neglect, the bone does not unite in the proper way. The hand is disabled, but he is advised that by breaking the bone at the old fracture and resetting it the use of his hand will be completely restored. I am supposing a case where the operation is not attended with risk to health or unusual suffering, and where the recovery of the use of the hand is reasonably clear. If in such a case the sufferer, either from defect of moral courage, or because he is content with a disabled hand and is willing to live on the pittance which he is receiving under the compensation act, refuses to be operated on, I should have no diffculty in holding that his con- tinued inability to work at his trade was the result of the refusal of remedial treatment, and that he was not entitled to further com- pensation. "Passing to the other extreme, it is easy to figure a case of internal injury where an operation if successful would restore the sufferer to health, but where the surgeon was bound to admit that the operation was attended with danger. In such a case it would be generally ad- mitted that there was not only a legal but a moral right of election on the part of the injured person; and if he preferred to remain in his disabled condition rather than incur the risk of more serious disable- ment or death, it could not be said that his inaction disentitled him to further compensation. "In view of the great diversity of cases raising this question, I can see no general principle except this, that if the operation is not attended with danger to life or health, or extraordinary suffering, and if according to the best medical or surgical opinion the operation offers a reasonable prospect of restoration or relief from the incapacity from which the workman is suffering, then he must either submit to the operation or release his employers from the obligation to maintain him. In other words, the statutory obligation of the employer to give maintenance during the period of incapacity resulting from an accident, is subject to the implied condition that the workman shall avail himself of such reasonable remedial measures as are within his power." Our attention is also directed to the case of Warncken v. Moreland & Son, Ltd. (Court of Appeal, England, 1908), 100 Law Times, 12, 2 B. W. C. C. 350. There it was held that, where a workman was injured by an accident in respect of which he was otherwise entitled to receive compensation, and refused to submit to a surgical operation of a single charac- ter involving no serious risk of life or health, and which, ac- cording to the unanimous professional evidence, offered a rea- 120 MICHIGAN WORKMEN'S COMPENSATION CASES. sonable prospect of the removal of the incapacity from whicl he suffered, that under those circumstances he had debarret himself from any right to claim further compensation undei the act for his continued disability, as such continuance was not attributable to the original accident, but to his unreason- able refusal to avail himself of surgical treatment. In thai case the claimant had injured his foot and had had two to( remjoved. He still suffered pain, and the X-rays showed thai a piece of bone was loose in the big toe. The doctors advis< an operation ; but the man refused. Moulton, L. J., said : "To hold the contrary would lead to this result, that a workmai who had an injury, however small, might refuse to allow it to dressed and let a trivial burn, say, become a sloughing sore, and leac to partial or total incapacity. * * * The distinction is between bein^ reasonable and not being reasonable." This case was followed by the case of Tutton v. Owners oj Steamship Majestic (Court of Appeal, 1909), 100 L. T. 044, B. W. C. O. 346. It was there held that a workman injun by an accident arising out of and in the course of his employ ment within the meaning of the act, who refuses, on the ad- vice of his own doctor, to submit to the surgical operation which, in the opinion of such medical man, involved some risk to his life, is not acting unreasonably in such refusal, and is not thereby precluded from claiming compensation from his employer under the act in respect to his continued disability to work. There the court said: "The test is not really whether on the balance of medical opinioi the operation is one which might reasonably be performed. The test is whether the workman in refusing to undergo the surgical operatioi acted unreasonably. I altogether decline to say that, in a case of operation of this kind, a workman can be said to act unreasonably ii following the advice of an unimpeached and competent doctor, ever though on the balance of medical evidence given at a subsequent date the learned county court judge might hold that the operatioi was in its nature one which might reasonably and properly performed." Here the applicant was a sailor on board the steamship M; JENDRUS vs. DETROIT STEEL PRODUCTS COMPANY. 121 jestic, and met with an accident which resulted in double rup- ture. He went to the hospital at Southampton, where the doctor advised an operation. The applicant then consulted another surgeon, who advised him not to undergo an opera- tion, as he was suffering from Bright's disease of the kidneys, which would, in his opinion, render it dangerous for him to have an anaesthetic administered; the physician saying that it would be barbarous for him to undergo an operation with- out an anaesthetic. With kidney disease an anaesthetic would be a risk to his life. The appellee has called our attention to the case of Mar- shall v. Navigation Co. (1910), 1 K. B. Div. 79, to the effect that, where the injured party refuses to undergo a surgical operation, the employer has the burden of showing that the operation would have accomplished its purpose. Attention is also called by appellee to the case of Proprietors of Hays' Wharf, Ltd., v. Brown, 3 B. W. C. C. 84, to the effect that the burden is upon the employer to show that the refusal of the workman was unreasonable. In none of the cases cited by appellants' counsel was the operation anything more than a* minor operation for a trifling injury. We think the cases clearly distinguishable from the instant case, which involved a major operation of a serious nature. None of the testimony in the case goes to the length of showing that Jendrus' life would have been saved had the operation been submitted to at 8 o'clock on the evening of February 14th, which was the first time that Dr. Hutchings had reached the conclusion that an operation was necessary. Peritonitis had already set in, and the vomiting had com- menced, and vomitus of a fecal nature was then being expelled. That it was the injury which caused the peritonitis is not questioned; that it was the peritonitis which caused the vom- iting of fecal matter is not questioned ; that it was the taking of fecal matter into the lungs which caused the pneumonia is claimed by all of the surgeons who testified. There is testimony that he might have recovered without any operation, although that result could not have been reasonably expected. 122 MICHIGAN WORKMEN'S COMPENSATION CASES. Under all the circumstances of the case, including the fact that Jendrus was a foreigner, unable to speak or understand the English language, that he was suffering great pain on the evening of the 14th, that he was unacquainted with his sur- roundings, and that he did consent to, and did submit to, an operation within 15 or 16 hours after it was first found neces- sary, in the judgment of the surgeons, we cannot hold, as mat- ter of law, that the conduct of Jendrus was so unreasonable and persistent as to defeat the claim for compensation by his widow. Neither can we hold that Jendrus by his conduct in the premises in causing a delay in the operation was guilty of intentional and wilful misconduct. We cannot say, as mat- ter of law, that the industrial accident board erred in its con- clusions of law in affirming the action of the committee on ar- bitration. No other questions of law are presented by the record. The judgment and decision of the said Board is therefore affirmed, with costs against appellants. SARAH E. ADAMS, Applicant, vs. ACME WHITE LEAD & COLOR WORKS, Respondent. LEAD POISONING OCCUPATIONAL DISEASE. Applicant's decedent was employed by respondent in its red plant. He contracted lead poisoning from the effects of which he died. Compensation was refused, under the contention that his death was not the result of an accident, but a disease, and therefore the case was not covered by the act. It was further contended that if the act was held to apply to industrial diseases it would, in that respect, be unconstitutional. ADAMS vs. ACME WHITE LEAD & COLOR WORKS. 123 HELD: 1. That the lead poisoning suffered by decedent in this case constituted a personal injury of a serious and deadly charac- ter, although classified under the English decision as an occupa- tional disease and not an accident. 2. That part of Sec. 1, Part II, which covers injuries, received otherwise than by accident, is not such a variance from the title of the act as to render a portion of this section unconstitutional. Appeal of Acme White Lead & Color Works from the deci- sion of an arbitration committee awarding Sarah E. Adams compensation at the rate of $7.50 per week for 300 weeks for the death of her husband. Affirmed. Opinion by the Board: Augustus Adams, the husband of the applicant, was an em- ploye of the respondent, working in its Ked Lead plant, so- called, in Detroit. On May 29, 1913, he became so affected from lead poisoning that he was obliged to quit his work and on June 27 he died from the effects of such lead poisoning. These facts are undisputed and the sole question in the case is vdiether the Workmen's Compensation Act covers a case of death by lead poisoning arising out of and in the course of the employment. It is contended on behalf of respondent as fol- lows : 1. That lead poisoning is not an accident. 2. That Act No. 10, Public Acts of 1912, was not intended to provide compensation for diseases, but only accidents. 3. If the Act does apply to industrial diseases, it is so far unconstitutional. It seems to be established under the English cases that Lead Poisoning is not an accident, but is an occupational disease. It seems to follow from this that unless the Michigan Work- men's Compensation Law is broad enough to include and cover occupational diseases the applicant's claim in this case must 124 MICHIGAN WORKMEN'S COMPENSATION CASES. be denied. The controlling provision of the act on this point is found in Section 1 of Part II, and is as follows : "If an em- ploye * * receives a personal injury arising out of and in the course of his employment," he shall be entitled to compen- sation, etc. It will be noted that the above language does no1 limit the right of compensation to such persons as receive per- sonal injuries "by accident." The language in this respect is broader than the English act and clearly includes all personal injuries arising out of and in the course of the employment, whether the same are caused "by accident" or otherwise. 11 is equally plain that Lead Poisoning in this case in fact con- stitutes a personal injury, and that such personal injury was of a serious and deadly character. The Board is therefore o1 the opinion that the section of the Michigan .Act above quot< is broad enough to cover cases of Lead Poisoning such as th< one in question. It is claimed, however, on behalf of the respondent that th< title of the act is such as to exclude all personal injuries ex- cepting those received "by accident" and that in so far as th< body of the act is broader than the title, it is unconstitutional. This point has been ably briefed and argued on the part of the respondent and we are asked to hold in this case that the por- tion of the provisions of Section 1 of Part II which covers in- juries received otherwise than by accident is invalid because it is broader than the title. After a careful consideration of the question, the Board has reached the conclusion that it would not be justified in holding such portion of the Compensation Act to be invalid on the constitutional grounds urged by th respondent. The award of the committee on arbitration i therefore affirmed. This case was appealed to the Supreme Court and reversed, the Court holding that the Michigan Workmen's Compensa- tion Law is limited to personal injuries ~by 'accident, and d< not apply in cases where the injury is classed as an occupa- tional disease. The full opinion of the Supreme Court is heri given : ADAMS vs. ACME WHITE LEAD & COLOR WORKS. 125 SUPREME COURT. SARAH E. ADAMS, Applicant, vs. ACME WHITE LEAD AND COLOR WORKS, Respondent. 1. ACCIDENT DEFINITION MASTER AND SERVANT WORKMEN'S COMPEN- SATION ACT POISONING. An accident is an unforeseen event, occurring without the design or will of the person whose act causes it; it partakes of the nature of an unexpected or unusual occurrence, brought about by some unknown cause, and involving something fortuitous or unexpected; or, if the cause is known, having an unprecedented consequence. 2. MASTER AND SERVANT ACCIDENT PERSONAL INJURIES. Under the provisions of the workmen's compensation act, no re- covery may be allowed for occupational diseases such as lead poisoning, which, being gradually acquired, is outside the scope of the requirement that notice is to be given within ten days after an accident, and of the title and terms of the statute as to com- pensating accidental injuries. Act No. 10, Pub. Acts Extra Session 1912 (2 How. Stat. (2d. Ed. 3939 et seq.). 3. SAME CONSTITUTIONAL LAW TITLE OF STATUTE. If the act was intended to include such occupational diseases, the title was not broad enough to express that object within Art. 5, Sec. 21, of the Constitution. Certiorari to the Industrial Accident Board to review an award of compensation to Sarafc E. Adams against the Acme White Lead & Color Works for the death of claimant's hus- band. Defendant brings certiorari. Submitted April 15, 1914. Reversed July 25, 1914. Bowen, Douglas, Eaman d Barbour, for appellant. Noble T. Lawson, for appellee. STONE, J. The questions involved in this case are raised 126 MICHIGAN WORKMEN'S COMPENSATION CASES. on certiorari to the Industrial Accident Board. On Decem- ber 18, 1912, Augustus Adams, a resident of Sandwich, On- tario, began work at the plant of the Acme White Lead Color Works in the city of Detroit. His duties were those o1 a sifter or bolter tender in the red lead plant. His worl brought him in contact with the lead. On May 29, 1913, In left his work at the quitting time, but that evening became ill that he was unable to return to work again. He died 01 June 27, 1913. There is no doubt that the cause of his deatl was lead poisoning, contracted industrially; i. e., "was ai occupational disease," as the return of the Industrial Accidem Board shows. The return states: "That during said period between December 18, 1912, and June 27, 1913, one Augustus Adams was in the employ of the Acme Whit< Lead & Color Works; * * * and that during said period, while in th( course of said employment, he contracted an occupational disease, to wit, red lead poisoning, upon the premises of the said company, and that on June 27, 1913, he died as a result of said disease." The claim of the widow, under .Act No. 10 of the Public Act* of the Special Session of 1912, was duly presented to a com- mittee of arbitration and allowed. Thereafter, in accordance with the provisions of said act, the respondent filed with the said board a claim for review of the decision of said commit- tee on arbitration, and later, after a full hearing, the said Board made and entered an opinion and order, denying the centention of the respondent, and affirming the award of said arbitration committee. The opinion of the said board, upon which its order was based, so fully presents the questions in- volved that we cannot do better than to quote therefrom. Aftei referring to the facts above set forth, it is said : "These facts are undisputed, and the sole question in the case is whether the workmen's compensation act covers the case of death by lead poisoning arising out of and in the course of the employ- ment. It is contended on behalf of respondent as follows: (1-) That lead poisoning is not an accident; (2) that Act No. 10, Public Acts of 1912, was not intended to provide compensation for diseases, but only accidents; (3) if the act does apply to industrial diseases, it is so far unconstitutional. ADAMS vs. ACME WHITE LEAD & COLOR WORKS. 127 "It seems to be established under the English cases that lead poison- ing is not an accident. It is an occupational disease. It seems to follow from this that, unless the Michigan workmen's compensation law, is broad enough to include and cover occupational diseases, the applicant's claim in this case must be denied. The controlling pro- vision of the act on this point is found in section 1 of part 2, and is as follows: 'If an employee * * * receives a personal injury arising out of and in the course of his employment,' he shall be paid com- pensation, etc. It will be noted that the above language does not limit the right of compensation to such persons as receive personal injuries by accident. The language in this respect is broader than the English act, and clearly includes all personal injuries arising out of and in the course of the employment, whether the same are caused 'by accident' or otherwise. It is equally plain that lead poisoning in this case, in fact, constitutes a personal injury, and that such per- sonal injury was of serious and deadly character. The board is there- fore of the opinion that the section of the Michigan act is broad enough to cover cases of lead poisoning, especially the one in question." The Board also reached the conclusion that it would not be justified in holding the part of the act referred to invalid, on constitutional grounds. By the assignments of error, it is claimed that the Board erred: First,, in construing the said act so as to provide for the awarding of compensation for an occupational disease, specifically red lead poisoning; second, in overruling appel- lant's contention that, if in said act the legislature intended to provide compensation for an occupational disease, partic- ularly red lead poisoning, said act, in so far as it does so pro- vide, is unconstitutional. 1. Does the Michigan act include and cover occupational diseases? This is a fair question, and should be fairly an- swered. What is an "occupation," or "occupational disease ?" The Century Dictionary and Cyclopedia defines an "occupa- tion disease" as "a disease arising from causes incident to the patient's occupation, as lead poisoning among painters." In the instant case the undisputed medical evidence shows that lead poisoning does not arise suddenly, but comes only after long exposure. "It is a matter of weeks or months or years." It is brought about by inhalation, or bv the lead com- 123 MICHIGAN WORKMEN'S COMPENSATION CASES. ing into the system with food through the alimentary canal or by absorption through the skin. In any case it is not th< result of one contact or a single event. "In occupational diseases it is drop by drop, it is little by littl( day after day for weeks and months, and finally enough is accumulate to produce symptoms." It also appears that lead poisoning is always prevalent ii the industries in which lead is used, and a certain percenta^ of the workmen exposed to it become afflicted with the diseas Elaborate precautions are taken against it in the way of ii structions to the men, masks to protect the respiratory 01 gans, etc. Whether the workman will contract it or not wil depend upon the physical condition, care, and peculiarity o1 the individual ; and the amount of time it will take to produ< ill effects or death also varies. An "accident" is defined in Black's Law Dictionary as fol lows: "Accident. An unforeseen event, occurring without the will or d( sign of the person whose mere act causes it; an unexpected, unusual, or undesigned occurrence; the effect of an unknown cause, or, the cause being known, an unprecedented consequence of it; a casualty." It might be well to keep in mind the conditions sought to remedied by the diverse workmen's compensation enactments which have been adopted by several of the States of the Union and in foreign countries. The paramount object has been for the enactment of what has been claimed to be more just and humane laws to take the place of the common-law remedy fo the compensation of workmen for accidental injuries receiv in the course of their employment, by the taking away and moval of certain defenses in that class of cases. In this our own act is not an exception. It first provid that in any action to recover damages for personal injury su tained by an employee in the course of his employment," or fo death resulting from personal injuries so sustained, it shal not be a defense: (a) That the employee was negligent unle and except it shall appear that such negligence was wilful ADAMS vs. ACME WHITE LEAD & COLOR WORKS. 129 (6) that the injury was caused by the negligence of a fellow employee; (c) that the employee had assumed the risks in- herent in or incidental to or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances. It is then enacted that the above provisions shall not apply to actions to recover damages for the death of, or for personal injuries sustained by, employees of any employer who has elected, with the approval of the industrial accident board thereinafter created, to pay compensation in the manner and to the extent thereinafter provided. Manifestly, the terms "'personal injury" and "personal injuries," above mentioned, refer to common-law conditions and liabilities, and do not refer to and include occupational diseases, because an em- ployee had no right of action for injury, or death due to oc- cupational diseases at common law, but, generally speaking, only accidents, or, rather, accidental injuries, gave a right of action. We are not able to find a single case where an em- ployee has recovered compensation for an occupational dis- ease at common law. Certainly it can be said that in this State no employer has ever been held liable to the employee for injury from an occupational disease, but only for injuries caused by negligence. It seems to us that the whole scheme of this act negatives any liability of the employer for injury resulting from an occupational disease. The title of the act is significant: "An act to promote the welfare of the people of this State, relating to the liability of employers for injuries or death sustained by their employees, providing compensation for the accidental injury to, or death of employees, and methods for the payment of the same, estab- lishing an industrial accident board, defining its powers, providing for a review of its awards, making an appropriation to carry out the pro- visions of this act, and restricting the right to compensation or damages in such cases to such as are provided by this act." The first provision defining the employers who are subject to the act is found in section 5, subd. 2, of part 1. It reads: 17 130 MICHIGAN WORKMEN'S COMPENSATION CASES. "Every person, firm and private corporation, including any ser- vice corporation, who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the accident to the employee for which compensation under this act may be claimed, shall in the manner provided in the next section have elected to become subject to the provisions of this act, and who shall not, prior to such accident, have effected a with- drawal of such election, in the manner provided in the next section." While not controlling, it is pertinent to note the history of the Michigan act. By Act No. 245, Public Acts of 1911, the Legislature created a commission "To make the necessary investigation, and to prepare and submit a report * * * setting forth a comprehensive plan and recommending legislative action providing compensation for accidental injuries or death of workmen arising out of and in the course of employment." Section 2 of the act reads : "It shall be the duty of the commission of inquiry to fully in- vestigate the conditions affecting, and the problems involved in the matter of compensation for accidental injuries or death of workmen arising out of and in the course of employments." The act drawn pursuant to this authority was passed by the Legislature without change. While it cannot be claimed that the power of the Legislature was limited to enacting the bill prepared by the commission, yet, when that body passed the bill without change, it may be said that it adopted the mean- ing that must have been intended by the commission. It is the claim of appellant that lead poisoning contracted industrially is not an accident: that such poisoning, being something that is contracted by a fairly certain percentage of those working in industries where lead is used, cannot be considered as unexpected; that it comes as a gradual, slow process, and hence is not an "accident." The appellee, not agreeing with the reasoning of the board, contends that the act does cover injuries occasioned by lead poisoning, and that such poisoning contracted in the course of employment is an "accidental injury," ADAMS vs. ACME WHITE LEAD & COLOR WORKS. 131 The English act of 1897 was entitled : "An act to amend the law with respect to compensation to workmen for accidental injuries suffered in the course of their employment." The body of the act provided that: "If in any employment, to which this act applies, personal injury by accident arising out of and in the course of employment, is caused to a workman his employer shall be liable." It was not long before it was necessary to determine what was personal injury by accident, and to give a definition of "accident." In Hensey v. White (1900), 1 Q. B. 481, the lang- uage of an earlier case was approved where it was said: "I think the idea of something fortuitous and unexpected is in- volved in both words 'peril' or 'accident.' " In Fenton v, Thorley & Co., 72 L. J. K. B. 790, it was said : "The expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlocked for mishap or an untoward event which is not expected or designed." Finally, in Steel v. Cammell, Laird & Co., Ltd. (1905), 2 K. B. 232, the precise point was decided. The applicant, a caulker in the employment of ship-builders, was seized with paralysis, caused by lead poisoning, and became totally incap- acitated for work. In the course of his work, in which he had been employed by the shipbuilders for a period of two years before he became incapacitated, he had to smear either with red or white lead certain places between the plates of ships into which water-tight shoes were put. The poisoning was such as might be expected from Ihe nature of the work. It might be caused either by inhalation, or by eating food with- out having removed the lead from the hands, or by absorption through the skin. Only a small proportion of cases of pois- oning of this description occurred amongst a number of per- sons working with red or white lead. The poisoning could not be traced to any particular day, and its development was fi gradual process, and generally took considerable time. Held, 132 MICHIGAN WORKMEN'S COMPENSATION CASES. that the lead poisoning could not be described as an "acci- dent," in the popular and ordinary use of that word, so as to entitle the applicant to compensation for personal injury by accident arising out of, and in the course of, his employment, within the meaning of section 1 of the workmen's compensa- tion act of 1897. Fenton v. Thortey d Co., 72 L. J. K. B. 787, and BriittonS; Lim. v. Turvey, 74 L. J. K. B. 474, considered. The court in the above case [Steel v. Cammtell, Laird & Co., Ltd.] reasoned that, under the act, a date must be fixed as that on which the injury by accident occurred, and it was said: "It has been suggested that there was a series of accidents by the continuous absorption of lead, by one or other of the three processes named; but this suggestion does not meet the difficulty which arises from the provisions of the act as to notice of the particular date of the accident or injury." Others of the judges said that the injury was not unex- pected; that it was certain that somebody would suffer, and this man turned out to be susceptible to the poison. As a re- sult of this case, it was found necessary to change the act, if cases like this were to be included; so in 1906, less than a year later, the act of 6 Edw. VII., chap. 58, was passed, en- titled: "An act to consolidate and amend the law with respect to compen- sation to workmen for injuries suffered in the course of their em- ployment." The body of the act again provides compensation for "per- sonal injury by accident," but it also (section 8) provides that: "Where the disease is due to the nature of any employment * * * he or his dependents shall be entitled to compensation under this act as if the disease * * * were a personal injury by accident arising out of and in the course of that employment" if it be one of the diseases contained in schedule 3 of the act. In that schedule "lead poisoning" and its sequelae are there- ADAMS vs. ACME WHITE LEAD & COLOR WORKS. 133 in scheduled. Of this act the Encyclopedia of Laws of Eng- land, vol. 5, p. 227, states: "The extension by this act of the principle of workmen's compensa- tion to industrial disease is a new departure. Disease, though con- tracted industrially, is not an 'accident' in the ordinary acceptation of the term." It was also said of the act that a new phase in workmen's compensation compensation for disease arising out of em- ployment was a new feature in this type of legislation. The language of the act should be particularly noted. It does not attempt to declare an industrial disease an "accident,'* but gives compensation therefor "as if the disease * * * were a personal injury by accident." Considering the condition to be remedied and the history of the Michigan act, and comparing it with the English act of 1897, we are not able to agree with the accident board when it says, referring to the language which it quotes, that our act is broader than the English act, and clearly includes all personal injuries arising out of and in the course of an em- ployment, whether the same are caused by "accident" or other- wise. In the language quoted by the board it is true that the words "personal injury" are used, but in determining the na- ture of the personal injury intended to be covered by the act, the whole act, with its title, should be examined and consid- ered; and, so examined, we think it should be held that the words "personal injury," as quoted by the board, refer to the kind of injury included in the title and other portions of the act, which plainly refer to "accident injury to, and death of, employees." The whole scope and purpose of the statute, in our judgment, was to provide compensation for "accidental injuries," as distinguished from "occupational diseases." We must hold, therefore, that the provisions of the act of this State are very similar to the early English act above referred to. We have shown how the English act was subsequently amended by adding the provision permitting the recovery of MICHIGAN WORKMEN'S COMPENSATION CASES. compensation for certain scheduled diseases, caused by, or especially incident to, particular employments diseases known as occupation or industrial diseases. Not before, but since, the passage of this amendment to the English act, the English courts have sustained the rights of recovery in such cases as are here presented. The framers of our act either did not know of the amendment to the English act, or else they did not intend to permit the recovery of compensation in such cases. If it is said that it is just as important to protect em- ployees against such conditions as are here presented as it is to protect them against injuries arising from what are strictly termed "accidents," our answer is that that is a matter which should be addressed to the Legislature. In the absence of a provision in the statute meeting this situation, the court is unable to award a recovery. Counsel for appellee have referred to some of the English cases where compensation was allowed for injuries caused by poisoning, but an examination of those cases will show that the injuries were purely accidental. Higgins v. Campbell & Harrison, Ltd. (1904), 1 K B. 328, affirmed (1905) A. C. 230, is a fair illustration of those cases. There a workman employed in a woolcombing factory in which there was wool which had been taken from sheep infected with anthrax con- tracted that disease by contact with the anthrax bacillus which was present in the wool. In that case compensation was allowed, and it was held that the workman was injured by accident arising out of and in the course of his employ- ment within the meaning of the English act of 1897. The court treated the disease as caused by an accident, by one particular germ striking the eyeball. It was considered that the accidental alighting of the bacillus from the infected wool on the eyeball caused the injury. It was treated as if a spark from an anvil hit the eye. This may be seen from the state- ment of Lord Macnaghten: "It was an accident that the thing struck the man on a delicate and tender spot in the corner of his eye." ADAMS vs. ACME WHITE LEAD & COLOR WORKS. 135 We think that this and kindred cases can be readily dis- tinguished from the lead poisoning cases. The same difficulty about giving notice of the accident or injury noted in the English act applies to the Michigan act. Every employer is required to keep a record of all injuries, fatal or otherwise, received by employees in the course of their employment. Section 17 of part 3 of our statute pro- vides that: "Within ten days after the occurrence of an accident resulting in personal injury a report thereof shall be made in writing to the indus- trial accident board on blanks to be procured from the board for that purpose." And a penalty is prescribed for neglect to make such report. In the instant case Adams left his place of employment at the usual quitting time on May 29, 1913. He did not return. What knowledge his employer had of his sickness does not appear. It is not apparent what notice could be given imder our statute in such a case. If our statute, in its present form, should be held to apply to occupational or industrial diseases, then compensation might be claimed of an employer where the term of employment had been for a brief period, whereas the disease may have been contracted while in the employment of a former employer. All this is provided for in the amendment of 1900 in the English act, where provision is made for investiga- tion and apportionment among employers for whom the em- ployee worked during the previous year "in the employment to the nature of which the disease was due." There is no such ma- chinery or procedure provided for in our statute. We are not unmindful of the holdings of the supreme court of Massachusetts in Re Hurle, 217 Mass. 223 (104 N. E. 336), and Johnson v. Accident Co., 104 K. E. 735. In the latter case that court held that the personal injury of a lead grinder, sickness incapacitating him from work resulting from the ac- cumulated effect of gradual absorption of lead into his sys- tem, arose "out of and in the course of his employment" with- in the workmen's compensation act (Stat. 1911, chap. 751) 136 MICHIGAN WORKMEN'S COMPENSATION CASES. of that State. That case is founded upon In re Hurle, si which was a case of blindness incurred from an acute attacl of optic neuritis, induced by the poisonous coal tar gases caping from a furnace about which he was required to worl The matter of accidental injury was not discussed by the court. The court said: "The question to be decided is whether this was a 'personal injui arising out of and in the course of his employment' within the mean- ing of those words in the statute." The court further, in referring to the comments of couns< for the employer that the act could not apply to such an i] jury as that sustained, said: "It might be decisive if 'accident' had been the statutory word. II is true that in interpreting a statute words should be construed in theii ordinary sense. 'Injury,' however, is usually employed as an inclusri word. The fact remains that the word 'injury,' and not 'accident,' was employed by the legislature throughout this act." As "accident" is the controlling word in our act, we do no1 think that the Massachusetts decision should be held to appl; here, as the construction of that act has little, if any, beai ing on the Michigan act. Our attention has been called to the Massachusetts act, which differs in many respects from our act. That act is en- titled: ' "An act relative to payments to employees for personal injuries received in the course of their employment, and to the prevention of such injuries." The whole scope of the act seems to be to provide for com- pensation for personal injuries received in the course of em- ployment. In many instances where the word "accident" o< curs in our statute the word "injury" is used in the Massa- chusetts statute. It is true that the Massachusetts board ii termed an "Industrial Accident Board," but, aside from th< use of the word "accident" in that title, we are unable to fin< the word in the body of the act, except in two instances ii ADAMS vs. ACME WHITE LEAD & COLOR WORKS. 137 section 18 of part 3, which provides for the keeping of a rec- ord and making a report by the employer in case of accident. This may be said not to be very controlling; but, in our judg- ment, it has to do with the inquiry as to the scope of the act. We are unable to follow those cases as authority under our statute. In New Jersey, in the case of Hichens v. Metal Co., N. J. Law Journal (Com. PL June 25, 1912), p. 327 which arose un- der the New Jersey act (P. L. 1911, p. 134) entitled very sim- ilarly to the Massachusetts act, to wit "An act prescribing the liability of an employer to make compensa- tion for injuries received by an employee in the course of employ- ment, establishing an elective schedule of compensation, and regulat- ing procedure for the determination of liability and compensation thereunder" it was held that compensation could not be awarded for a disease known as copper poisoning, caused by contact with the copper filings and inhaling the dust from same by an em- ployee in his work, which involved the grinding and polish- ing of brass products. This decision cannot be considered as authoritative, as it 'is that of the court of common pleas, and not the court of last resort. The Federal compensation act " (Act May 30, 1908, chap. 236, 35 Stat. 556 [U. S. Comp. Stat. Supp. 1911, p. 468]), re- lating to government employees does not contain the word "accident" in the principal clause, but provides that compen- sation shall be granted "if the employee is injured in the course of such employment." Subsidiary clauses provide for the reporting of "accidents," and otherwise refer to "acci- dental injuries." In the latest opinion of the attorney general, being in the case of John Sheeran, where the employee was a laborer en- gaged in river and harbor construction, and, while engaged in work in the course of his employment, contracted a severe cold, which resulted in pneumonia, that officer said: "There is nothing either in the language of the act or its legislative MICHIGAN WORKMEN'S COMPENSATION CASES. history which justifies the view that the statute was intended to cover disease contracted in the course of employment, although directly Attributable to the conditions thereof. On the contrary, it ai pears that the statute was intended to apply to injuries of an ac dental nature resulting from employment in hazardous occupations not to the effects of disease." It has been reiterated under the Federal act that acute lea< poisoning is not such an injury as eatfitles an employee to compensation. Similarly, where a workman suffered fron cystitis and prostatitis, which he claimed was the result o overwork, it was held that he was merely suffering from dis ease which was not covered by the terms of the Federal ac and compensation was refused. 1 Bradbury on Workmen' Compensation (2d Ed.) pp. 342, 343. We are of opinion that in the Michigan act it was not th intention of the legislature to provide compensation for ii dustrial or occupational diseases, but for injuries arisin from accidents alone. 2. If it were to be held that the act was intended to appl to. such diseases, it would, in so far as it does so, be unconst tutional and in violation of section 21 of article 5 of the Con stitution of this State, which provides, that: "No law shall embrace more than one object, which shall be ex- pressed in its title." That the act, if it were held to apply to and cover occupa- tional diseases is unconstitutional in so far as it does so is shown by the fact that the body of the act would then have greater breadth than is indicated in the title. A careful anal ysis of the title of the act shows that the controlling wor are ''providing compensation for accidental injury to or deai of employees." No compensation is contemplated except f( such injuries. The prefatory words are generally dependei upon the above-quoted clause. The only compensation pi vided is for "accidental injury to or death of employees," am the last clause of the title restricts the right to compensatioi or damages in such cases "to such as are provided by this act." REDFIELD vs. DR. DENTON'S SLEEPING GARMENT MILLS. 139 The Massachusetts decisions have no bearing upon this branch of the case for two reasons: One is that the titles of the respective acts differ materially; and the other reason is that Massachusetts has no such constitutional provision as ours above quoted. We have dealt with this question of title too recently to make it necessary to refer to our numerous decisions upon the subject. For the reasons above given, we are constrained to reverse the order and judgment of the Industrial Accident Board. Reversed. KATHARYN REDFIELD, Applicant and Appellee, vs. DR. DENTON'S SLEEPING GARMENT MILLS, and MICHIGAN WORKMEN'S COMPENSATION MUTUAL INSURANCE COMPANY, Respondents and Appellants. INTENTIONAL AND WILFUL MISCONDUCT DISEASE CUMULATIVE EVIDENCE. Applicant's decedent received injuries by his hand coming in con- tact with the gears in a carding machine in appellant's factory. Gangrene set in and he died on May 4, which was sixteen days after the injury. Appellants 'contend that the injury was the result of the wilful and intentional misconduct of decedent, by his disregarding the signs warning employees to keep their hands off the machines and not to clean machines while in motion; and further, that he was suffering from diabetes when injured and that his death was the result of that disease. HELD: 1. That the act which decedent was performing at the time of his injury, was picking off some of the cotton which had 140 MICHIGAN WORKMEN'S COMPENSATION CASES. collected on the carding cylinder, and that such action was neces- sary and ordinarily performed by and required of the operator of the machine. 2. That the claim that death was due to diabetes was not sustained by the proofs. 3. The application of the respondents made after the hearing on review for leave to take testimony of expert witnesses in De- troit and elsewhere, which testimony would be merely cumulative, denied. Appeal of Michigan Workmen's Compensation Mutual In- surance Co. from the decision of an arbitration committee, awarding Katharyn Kedfield $5.25 per week for 300 weeks, for the death of her husband. Affirmed. Opinion by the Board: On April 18, 1913, William H. Kedfield, the husband of the applicant, was injured in the factory of the Dr. Denton Sleeping Garment Mills at Centerville, Michigan. He was em- ployed in the card room in the factory, where for many years he had worked as a carder in operating the carding machines. There was no eye witness to the accident, but it appeared from the blood on the machinery and other circumstances that his hand was caught in a large card cylinder and the gear con- nected with it. The hand was badly lacerated, necessitating the amputation of three fingers. The other injuries to the hand above the fingers were dressed and treated an effort be- ing made to save as much of the hand as possible. The in- jured man was taken to the hospital at Kalamazoo for treat- ment, and while there gangrene set in and he died on May 4th. It is the claim of the applicant that compensation should be denied for two reasons : 1. That the deceased was guilty of wilful and intentional misconduct. 2. That he was suffering from diabetes when injured, and REDFIELD vs. DR. DENTON'S SLEEPING GARMENT MILLS. 141 that his death was the result of the disease rather than the injury. The claim of intentional, wilful misconduct is based on what is claimed to be a violation of the factory rules by de- ceased. It was shown that on each of the carding machines was one or more signs "hands off," and also that there were signs through the factory and in the carding room to the effect that "cleaning machinery while in motion is strictly forbidden." It is claimed that deceased was in the act of pick- ing off some of the cotton which had collected on the card cylinder near the gear when he received his injury, and that such act constituted a violation of the above rules. This claim, however, was refuted by the testimony of the general manager and also the secretary and treasurer of the Dr. Den- ton Company. It was shown by the testimony of these wit- nesses that the carding machines are so adjusted that the ma- chinery operates through a system of weights and when it reaches a certain weight then it dumps down upon the apron, and if any person puts his hands on the machinery and dis- turbs the mechanism it would cause the machine to dump and seriously interfere with its operation. That the sign "hands off" was put up to warn people not to put their hands on the machine because of producing the above results, and not because the machinery was dangerous. These signs were put there by the manufacturers of the machines. It was fur- ther shown by the same witnesses that the sign relating to the cleaning of the machinery while in motion did not refer to picking off accumulations of cotton on the cards or gears but referred to the general cleaning of the machines. That it was necessary in the operation of the card machine to pick off ac- cumulations of cotton while the machinery was in motion, and that the employes were expected and required to do it. That every time a carding machine is stopped it produces an unevenness in the work, involves the loss of time and impairs the quality of the product. If the accumulations were not picked off it would produce thickening in parts of the product 112 MICHIGAN WORKMEN'S COMPENSATION CASES. and make it unfit for use. Picking off cotton in this way while the machines were in operation was in fact a part of the duties of the operator. This testimony is practically undis- puted, and the first point must be held against the respond- ents. The claim that the gangrene and the resulting death of the deceased was caused by his diabetes and not by the injury must also be decided against the respondents. The testimony produced in support of this claim, particularly the medical testimony, fell far short of proving the same, and apparently was disappointing to the respondents. We think we should refer in this opinion to the request made by counsel for fhe respondent after the hearing on review before the full Board and before the decision of the case, for leave to take the depositions of several physicians in Detroit, who would give expert evidence tending to show that Mr. Eedfield's death was caused by gangrene produced by di- abetes. The Board refused to grant such request. The Work- men's Compensation Law provides that the arbitration, which is the first and fundamental hearing in the case, shall be held at the place where the accident occurred, in order to make such hearing reasonably convenient and inexpensive to the injured workman or his dependents. The witnesses in such case on behalf of the workman or his dependents are usually found at or near the place where the accident occurred, and the same is true of the witnesses for the employer in a vast majority of cases. If the board should permit a reopening of the case to take such proposed expert testimony in a distant city, necessitating the expense on the part of the widow to be present at the taking of such testimony and to protect her interest by cross-examination of witnesses, such action would defeat one of the most important provisions of the law and such practice would place it in the power of the employer to nijike the recovery of compensation in some cases so vexa- tious and expensive as to compel the abandonment of claims. This is not a case of newly discovered evidence, but is a re- quest for permission to put in expert and opinion evidence REDFIELD vs. DR. DENTON'S SLEEPING GARMENT MILLS. 143 which would be merely cumulative. The award in this case is affirmed. This case was appealed to the Supreme Court, and the deci- sion of the Board affirmed, the full opinion of the Supreme Court being as follows: SUPREME COURT. KATHARYN REDFIELD, Claimant and Appellee, vs. MICHIGAN WORKMEN'S COMPENSATION MUTUAL INSURANCE COMPANY/ and DR. DENTON'S SLEEPING GARMENT MILLS, Respondents. 1. MASTER A.XD SERVANT DANGEROUS MACHINERY WARNING CONTRIBU- TORY NEGLIGENCE WORKMEN'S COMPENSATION. Where a former superior servant of a corporation testified that signs were placed on machines in the shop, marked "Hands Off," to warn employees from touching the machinery, for the reason that such act tended to disturb the adjustment, and the warning was not intended as a danger sign, there was sufficient testimony to support the finding of the Industrial Accident Board, that the warning was not against danger. 2. SAME. HELD: also, that signs placed about the shop advising servants not to clean machinery in motion did not prohibit an employee from removing collections of cotton which frequently gathered on a guard of the carding machine and that required to be re- moved in order to prevent imperfections in the cloth. 3. APPEAL AND ERROR INDUSTRIAL ACCIDENT BOARD. Only where there is no proof to support a finding of fact can the court interfere with the finding of the accident board on certiorari. 4. MASTER AND SERVANT WORKMEN'S COMPENSATION INSURANCE PRACTICE. 144 MICHIGAN WORKMEN'S COMPENSATION CASES. Where the date of hearing was fixed on September 9th, and the insurance company which indemnified the employer against accidents did not appear, but the attorneys for claimant ap- peared and were heard, no ground of objection could be based on the action of the Board in declining to hear further testi- mony, though granting the insurer a hearing on a subsequent date. Certiorari to the Industrial Accident Board. Submitted January 20, 1914. Decided January 4, 1915. Katharyn Kedfield presented her claim for compensation for the death of her husband, William Kedfield, while em- ployed by the Dr. Denton Sleeping Garment Mills. Contest- ant, the Michigan Workmen's Compensation Mutual Insur- ance Company, bring certiorari from an order awarding com- pensation. Affirmed. Beaumont, Smith d Harris, for appellant, George H. Arnold, for claimant. BIRD, J. Claimant's husband, William Kedfield, was an employee of the Dr. Denton Sleeping Garment Mills, at Cen- terville. On April 18th, while so employed, he received a seri- ous injury to one of his hands, which resulted later in an am- putation of three fingers. Gangrene set in and 16 days there- after he died. His widow petitioned the Industrial Accident Board to have her claim adjusted. Proofs were taken and an award made by an arbitration committee of $5.25 a week for 300 weeks. On appeal to the Industrial Accident Board the award was affirmed. The proceedings were then removed to this court by a Writ of Certiorari. Exception is taken to the following findings of fact, it being claimed that the testimony does not support them: "(15). At the time of the accident there was on each of the card- ing machines one or more signs reading, 'Hands Off,' such being placed on the machines by the manufacturer. These carding machines are so adjusted that they operate through a system of weights, and when the weight reaches a certain point, the machine dumps down REDFIELD vs. DR. DENTON'S SLEEPING GARMENT MILLS. 145 upon the apron; and, if a person coming near the machine should rest his hand upon it, such action would disturb the mechanism and cause the machine to dump, thereby seriously interfering with its operation. That the sign, 'Hands Off,' was put up not as a warning against danger, but to prevent people from disturbing the operation of the machines and so cause it to dump." "(16) There were also signs posted in the room reading, 'Clean- ing machinery while in motion positively forbidden.' But this did not have reference to picking off cotton while machine was in motion, caught on different parts of the machine but not in a dangerous place. Picking off accumulations of cotton while the machine was in motion was part of the duty of the operator." It appears from the record that the deceased was engaged in the carding room, in which there were four carding ma- chines. Each machine consisted of a picker, a breaker and a finisher. While these are different machines, they are con- nected together and operated as one set. The deceased had charge of one set and it was his duty to watch the yarn as it came from the carder and take care of the machines while they were in motion. The testimony tends to show that the de- ceased was working at the time of his injury on the finisher. The finisher consists, in part, of two cylinders with protrud- ing ends of small wires. As the cylinders revolved in oppo- site directions they separated the cotton. In front of the cylinders and close to them, was a metal guard to protect the operator against injury. Sometimes the cotton would collect on this guard, and, if not removed, it would cause an imper- fection in the product. The findings show that it was near this guard that the injury occurred. Exception to finding No. 16 raises the question as to whether the removing of the cotton at this point was cleaning the machines, in such a sense as to make his conduct a violation of the posted rule that, "Cleaning machinery while in motion is strickly forbid- den." Touching this question, Frank S. Cummings, who had been formerly general manager, and was at the time secretary and treasurer of the company, testified as follows: 19 146 MICHIGAN WORKMEN'S COMPENSATION CASES. "Q. I will ask if when you were manager, if a little piece of cotton got close to the wire where it was not considered dangerous to pick it off, would they pick it off without stopping the machine? "A. Any careful employee, any conscientious employee kept his machine clean. "Q. Well, now, to get to that, would he pick off the cotton there? "A. Yes, sir. "Q. Where it might interfere with the product? "A. Yes, sir; with reasonable care there was no danger. "Q. Would you cons'der this sign 'cleaning machinery,' would it apply to picking off that little cotton that might injure the product would you stop the machine for that? "A. If it was not in a dangerous place, it did not apply to that; it was commonly done. "Q. That is, the employees were expected to do it, weren't they, to keep them clean and pick off anything like that? "A. Yes, sir." Frank S. Thomas, manager of the company, testified that: "I posted the signs all over the mill as a general precaution against accidents that might result from cleaning machinery while it was in motion. * * * The common custom, however, is in the mills to pick the cotton off from the cards, and I do not think our understanding of the words 'Cleaning Machinery,' included that. "A. As I say, I don't think our understanding of 'cleaning ma- chinery,' included picking off such as it was reasonably safe to pick off while the machines were in motion, because it was really im- practical to handle the machines in any other way. "Q. To stop the machines to pick off a little cotton that might be caught in there that you could reach handily would impair the product of the machine? "A. Yes, sir; every time you stop the card, there is unevenness produced in the work, and of course, it involves a loss of time, and naturally every practicable attempt to keep the machine in continued operation is taken." The testimony relied upon to support finding No. 15 is as follows: Speaking of the sign on the machinery, "Hands Off," the witness, Frank S. Cummings, testified: "A. Yes, sir. Those, perhaps, if I may be permitted to explain, were never put there as an indication of danger. "Q. Did you put them there? "A. Yes, sir; I was here when the machines were bought, and they REDFIELD vs. DR. DENTON'S SLEEPING GARMENT MILLS. 147 were on the machines when they were put there by the manufacturers of the machines. "Q. You don't know why the manufacturers put them there? "A. Surely. Simply because putting your hands on them dis- turbed the mechanism of the machinery. There is no danger from that. The machinery operates through a system of weights, and when it reaches a certain weight, then it dumps down on to the apron, and if anybody puts their hands in there, and disturbs the mechanism, it makes it work irregularly, and it has to be repaired, it is simply a delicate piece of machinery that ought not to be handled. "Q. Is there any danger connected with it at all? "A. Not a particle." Unless there was no proof to support the finding of fact, this court has no power to interfere. The foregoing testi- mony affords some proof of the facts therein found. It fol- lows, therefore, that the exceptions to these findings must be overruled. Several legal questions are raised and discussed by appel- lant. Most of them rest upon the assumption that the forego- ing exceptions are well taken. The exceptions having been overruled, it will be unnecessary to consider them. A further question is raised that the death of the deceased was caused by the disease diabetes. This was a question of fact. The Board, after taking the proofs, decided that this claim was not established by the evidence. An examination of the evidence bearing upon that question convinces us that there was room for such a finding, and therefore, it must be regarded as final. In connection with this question, another one is raised, and that is the refusal of the Board to allow respondent to re- open the proofs after the day set for the hearing to permit fur- ther expert testimony to be introduced on this question. The hearing on appeal was fixed for September 9th. On that day claimant's attorney was present and was heard. Kespondents did not appear, they evidently relying upon certain sugges- tions made by them to the Board for an adjournment. The matter was then held open until October 8th. On that day the Board gave respondents an opportunity to be heard, but refused to allow them to introduce expert testimony because 148 MICHIGAN WORKMEN'S COMPENSATION CASES. of the absence of claimant's attorney, and further refused to allow depositions to be taken in Detroit and elsewhere, be- cause of the added expense to claimant to have her counsel present. Section 11 of part 3 of the law gives the parties the right to be heard, and the right to introduce additional tes- timony on appeal. This right was given to them on Septem- ber 9th. The fact that appellants' efforts to secure an ad- journment, proved futile on September 9th, did not make it incumbent on the Board to grant further time in which to take additional testimony. We think the determination of the Board should be affirmed. MARY SPOONER, Applicant, vs. DETROIT SATURDAY NIGHT COMPANY, Respondent. COURSE OF EMPLOYMENT BY WHOM EMPLOYED ARISING OUT OF. Decedent was employed by the Winn & Hammond Printing Co. as engineer. The plant of the Detroit Saturday Night, having been injured by fire, temporary arrangements were made with the Winn & Hammond Co. for the use of their plant to get out the paper. Decedent was killed while running an elevator during the night on which respondent was using the plant. Respondent con- tends that decedent was not in its employ at the time of the acci- dent, and that running the elevator was out of the course of his regular employment. It was shown that respondents entered into a contract, part of which stipulated that they were to fur- nish a competent engineer to attend to the engine while they had the use of the plant. They did in fact hire a man, but decedent insisted that he do the work himself, as he did not want any one else to handle his engine. This arrangement was approved by respondent. SPOONER vs. DETROIT SATURDAY NIGHT COMPANY. 149 HELD: 1. That Spooner's work for Winn & Hammond ceased at five o'clock in the afternoon, and it was understood and agreed that he was to continue as engineer that night, and his services were to be paid for by respondent, and this under the circum- stances of the case makes him an employe of the respondent. 2. That he was engaged at the time of the accident which caused his death in running the elevator with the consent of respondent's foreman who was riding therein, and Spooner's action in running the elevator must therefore be held to be within the course of his employment, and that the accident causing his death arose out of his employment. Appeal of the Detroit Saturday Night from the decision of an arbitration committee awarding compensation to Mary Bpooner for the death of her husband. Affirmed. Opinion by the Board: On February 3, 1913, respondent entered into a contract for the use of a portion of the plant and machinery of Winn & Hammond Company, a publishing concern of the City of De- troit, respondent's plant and place of business having been rendered untenantable by fire. The contract is in writing and was made between the Saturday Night Company and T. H. Collins, receiver for the Winn & Hammond Company, and pro- vides the terms and compensation for the use of machinery, power and appliances in the plant and also contains the fol- lowing proviso: "It is further agreed that should the Detroit Saturday Night Com- pany wish to operate the machinery in this plant at any time other than the stated working hours oj: the Winn & Hammond Company which are 7 a. m. to 11:30 a. m. and 12:15 p. m. to 5:00 p. m., that the charge for power service shall be $1 per hour in addition to the prices above quoted and that the Detroit Saturday Night Company agree to furnish a competent engineer to tend boiler and perform such other duties as usually fall to a man in that capacity." The Saturday Night Company desired to operate the plant on the night of February 5th to get out its paper for that 150 MICHIGAN WORKMEN'S COMPENSATION CASES. week, and some negotiations were had between the representa- tives of the Saturday Night Company and Beceiver Collins and Mr. Spooner, who was the regular engineer of the Winn & Hammond plant, for the services of Mr. Spooner as en- gineer that night. Objection was made by some of the Winn & Hammond people to the proposal because the work would be too much for Mr. Spooner, and that he would be worn out and unable to do his work properly for the Winn & Hammond people the next day. Mr. Williamson, superintendent for the Saturday Night Company, employed a man by the name of Leonard J. McCabe as engineer for that night. Time and a half was allowed for night work and Spooner it seems desired the job on that account, and it is claimed that he was opposed to having any other engineer run the engine lest it might not be handled properly. McCabe came to the plant that after- noon talked with Spooner in the matter and left because the latter told him that he, Spooner, was going to run the engine that night. It is claimed on the part of the applicant that Spooner's work for Winn & Hammond Company ceased at 5 o'clock on February 5th, and from that time he was in the employ of the Saturday Night Company until he met his death at about 2 o'clock in the morning following. It is further claimed on the part of the applicant that Mr. Spooner was hired by the Saturday Night Company as engineer and that the accident which resulted in his death arose out of and in the course of his employment. It is claimed by respondent that Spooner was not in the employ of the Saturday Night Company, but was there sub- stantially as a volunteer because he was unwilling to have anyone else handle his engine, and that Spooner was in fact at the time of the accident in the employ of the Winn & Ham- mond Company. Kespondent further claims that the work of running the elevator, at which Spooner was fatally injured, was entirely outside of his duties as engineer, and that his in- jury did not arise out of or in the course of his employment. There is no dispute as to any of the material facts in the case except the question of employment of Mr. Spooner as engineer SPOONER vs.' DETROIT SATURDAY NIGHT COMPANY. 151 that night. The place and manner of the accident are undis- puted. The sole question of fact in dispute is whether or not Spooner that night was working as an employe of the Detroit Saturday Night Company. Death having sealed Spooner's lips, the disputed fact must be determined from the testimony of others and from infer- ences that miay be drawn from established facts and condi- tions. It is undisputed that Winn & Hammond Company ceased work in the plant at 5 o'clock in the afternoon of February 5th ; that the plant was operated that night by the respondent in getting out its paper; that Mr. Spooner was working that night running the engine which furnished power and light for the respondent; that the plant could not run and respondent's work could not be done without an engineer and the operation of the engine ; and that Spooner was engaged in run- ning the engine with the knowledge and approval of and pursuant to some arrangement with respondent. The duty of respondent to furnish an engineer is fixed by the written contract above referred to, and it is conceded that respondent expected to pay for Spooner's services as engineer that night, the claim of respondent being that Spooner was to act as en- gineer that night through an arrangement made with Receiver Collins of the Winn & Hammond Company, who was Spoon- er's regular employer. The precise claim as made by respond- ent is that it was understood that Spooner was to work as en- gineer that night, that Receiver Collins would "bill respond- ent for him," and that respondent would pay the bill for the services of Spooner as such engineer, such payment to be made to Receiver Collins of the Winn & Hammond Company. On the other hand, it is claimed' by the applicant that Spooner was employed as such engineer for the night in question di- rectly by respondent and was to be paid time and a half for his work, which would amount to approximately |5.20. It is not disputed by respondent that this amount was to be paid for the services of Spooner that night, respondents' claim be- ing that such payment should be made to Collins as receiver, 152 MICHIGAN WORKMEN'S COMPENSATION CASES. and that by reason of such arrangement Spooner was in fact in the employ of Winn & Hammond Company at the time he met his death. There is a sharp conflict of evidence in rela- tion to the hiring of Spooner for the night in question between the witnesses of the applicant and the respondent, but from a careful examination of all the proofs the Board has reached the conclusion and finds as a matter of fact that Spooner, at the time of his death, was working as an employe of respond- ent. The engine which Mr. Spooner was engaged in operating was located -in the basement of the building, and the place where he met his death was in the elevator between the third and fourth floors of the building. It appears that it was not necessary for Spooner to remain in the basement with the en- gine all of the time, and he came to the floor above where re- spondent's employes were folding papers and putting in the inserts. Mr. Loeffelbein, foreman of the press room, was the man charged with getting out the work, and was in charge of the work at that time, respondent's superintendent being away. Loeffelbein and others desired to get some stools that were located on the fourth floor of the building to use in their work of folding. There were no lights on the stairways or on the fourth floor, and Spooner proposed to run the men up to the fourth floor in the elevator, which he had been accus- tomed to run at times in connection with his work as engineer. Loeffelbein an.d two other foremen of respondent thereupon got into the elevator with Spooner. Spooner started the ele- vator and while ascending to the fourth floor was caught in the gate or some other way and crushed to death. There was no light in the elevator and those with him could not tell just how the accident happened. ^Respondent contends that run- ning the elevator in question was outside of the course of Spooner's employment, and that the accident which caused his death did not arise out of his employment. The employes of the Saturday Night Company were not familiar with the building, having moved into it in an emerg- ency caused by fire; while on the other hand, Spooner was SPOONER vs. DETROIT SATURDAY NIGHT COMPANY. 153 familiar with the plant and had been accustomed to run the elevator frequently during his long employment with Winn & Hammond Company. It was but natural under those circum- stances that Spooner should volunteer to run the elevator up to the fourth boor w^ith Loeffelbein and Hussey and Wheeler, two other foremen of respondent, to get the stools that were wanted. The stools were to be used in doing the work of fold- ing and putting in inserts, and the proposal of Spooner to run the elevator to the upper floor seems to be in the nature of a suggestion from him, which respondent's foreman might either have accepted or declined. Loeffelbein was foreman of the pressroom and had charge of getting out the work that night, and in the absence of respondent's superintendent, Loeffel- bein was Spooner's immediate superior. Also, Spooner might naturally be expected to be governed by the orders and wishes of the other two foremen of respondent who went with him and Loeffelbein on the fatal elevator trip. The acquiescence of Loeffelbein and the other two foremen in Spooners' proposal to run the elevator for them and their approval of his action in so doing had the effect of placing Spooner in the same posi- tion as if he had been ordered by his foreman to run the eleva- tor on this trip. He was merely doing what any helpful man accustomed to run the elevator would have done under the circumstances, and was trying to further the business and work of his employer. In the opinion of the Board the injury arose out of and in the course of his employment and the award of the arbitration committee is affirmed. 154 MICHIGAN WORKMEN'S COMPENSATION CASES. The Spooner case was appealed to the Supreme Court and reversed, the court holding that Mr. Spooner was outside of the course of his employment at the time of the accident which resulted in his death. The full opinion of the Supreme Court is here given: SUPREME COUKT. MARY SPOONER, Claimant and Appellee, vs. DETROIT SATURDAY NIGHT COMPANY, Defendant and Appellant. ACTS OUTSIDE OF COURSE OF EMPLOYMENT. Claimant's decedent was a stationary engineer in charge of the en- gine and dynamo in a plant leased by defendant company. Late at night while so employed he went to the first floor of the build- ing and there met some of defendant's employes and upon their signifying an intention of going to an upper floor of the building, he volunteered his services to take them up on the elevator. While doing this he met with the injury which resulted in his death. HELD: The act was one outside of the course of the employment and for which no liability would attach to defendant under the workmen's compensation law. Certiorari to the Industrial Accident Board to review an award of said Board to Mary Spooner, as against the Detroit Saturday Night Company. Reversed. Beaumont,, Smith & Hams, of Detroit, for claimant. McGregor y the route that the employes of the company were accus- tomed to travel, when the accident occurred. The night was dark and stormy rendering the happening of such as accident more probable than otherwise. In the opinion of the Board Mr. Papinaw met his death by an accident which arose out of and in the course of his em- ployment by respondent company, and his widow is entitled to recover the compensation awarded her in this case. SUPREME COUKT. ROSE PAPINAW, Applicant and Appellee, vs. GRAND TRUNK RAILWAY OF CANADA, Respondent and Appellant. 1. MASTER AND SERVANT INJURIES TO SERVANT WORKMEN'S COMPEN- SATION ACT INDUSTRIAL BOARD. Findings by the Industrial Accident Board are, in the absence of fraud, conclusive, if the facts proven are capable as a matter of law of sustaining the inferences drawn therefrom. 2. MASTER AND SERVANT INJURIES TO SERVANT TRESPASSER. 168 MICHIGAN WORKMEN'S COMPENSATION CASES. A foreman of a section on a railroad was required to mail out pay rolls so that they would reach the office not later than the first of the month. He was also required to be on call during the night, and in case of storms was supposed, on his own motion, to clean switches and see that they were in proper working order. On the night of January 30, 1914, which was stormy, de- ceased walked down the railroad tracks to a station to mail his pay roll, and informed his wife that he might be late in caring for the switches. HELD: That in such case, deceased, while using the tracks, was not a trespasser, but was upon the right of way in the employer's business either whether he was going to mail his reports or to visit the switches. 3. MASTER AND SERVANT INJURIES TO SERVANT WORKMEN'S COMPEN- SATION ACT. Where the natural and reasonable inference is that the the acci- dent happened while the deceased servant was engaged in his employment, the master has the burden of proving the contrary. 4. MASTER AND SERVANT INJURIES TO SERVANT WORKMEN'S COMPEN- SATION ACT. In a proceeding under the Workmen's Compensation Act for com- pensation for the death of a section foreman run over by a train, evidence held to warrant a finding that deceased when killed was on the tracks in the course of his employment. Certiorari to Industrial Accident Board. Proceeding by Rose Papinaw against the Grand Trunk Railway Company of Canada under the Workmens' Compen- sation Act for compensation for the death of her husband. Compensation was awarded by the Industrial Accident Board, and defendant brings certiorari. Affirmed. W. K. Williams, of Detroit, (Harrison Geer, of Detroit of counsel) for appellant. J. C. Lelw, of Port Huron, for appellee. STEERE, J. The husband of applicant, Alfred Papinaw, who had been for several years section foreman for respondent was killed during the night of January 30, 1914, on its track between his residence and what is called the Tunnel Depot of ROSE PAPINAW vs. GRAND TRUNK RAILWAY CO. 169 respondent's road in the city of Port Huron. On her appli- cation for compensation under Act No. 10 Pub. Acts 1912 (ex- tra session) the Michigan Industrial Accident Board found that his death arose out of and in the course of his employ- ment, and therefore awarded her the full compensation pro- vided in such cases. The known facts and circumstances, relating to Papinaw's death are practically undisputed. Kespondent contends that the award was erroneous because it cannot fairly be found as a matter of fact, from any competent evidence in the case, that his death did so arise. Deceased's section commenced at what is known as Tappan Junction, which was about 1% miles west of the Tunnel De- pot and extended several miles westerly toward Detroit. He resided with his family near the east end of his section about 150 feet north of respondent's tracks, on the west side of the Junction road, which runs north and south crossing respond- ent's tracks a short distance east of Tappan Junction. His daily duties as section foreman required him usually to work upon the track with his section crew from about 7 o'clock in the morning until 5:30 in the evening, the time varying some- what with the season of the year. It was also his duty to patrol the track Sunday mornings and keep a yard interlock- ing light burning at night, and re-light it in case it went out during the night. Between his section and the Tunnel Depot was another section in charge of a different foreman, called the Tunnel freight yard section. In this section were numerous switches five of which near the Tappan Junction road crossing it was the duty of deceased to look after in case of storm. It was his custom when nothing out of the ordinary arose and there was no indication of. storm to retire early. He was sub- ject to be called out at any time of night in case of a wreck or to clean the switches in event a storm rendered it neces- sary. Another of his duties was to keep the time of his crew and daily enter it on a time book from which he made out their check pay-rolls at his home as opportunity arose, and mailed them at the Tunnel Depot to respondent's superintendent in 170 MICHIGAN WORKMEN'S COMPENSATION CASES. Detroit. This was required to be done for the first half of each month in time to reach the Detroit office not later than the morning of the 14th and for the last half not later than the first day of the ensuing month. The section hands worked by the day,, with extra pay for overtime, but section foremen were then paid monthly wages of $62.50, which covered whatever services they rendered during the month, and were required to be on call at all times. If they wished to be away beyond call over night or on Sunday they had to secure permission from the roadmaster, while the section hands w T ere at liberty to go and come as they pleased on nights and Sundays. There was a street, called Griswold, running east and west on the north side of respondent's tracks, but not parallel with them, at a distance of about four blocks from the Tunnel De- pot and about 2% blocks from respondent's west bound track at the Junction road near where deceased resided. This was outside of the city limits, similar to a country road. The rail- road men, including deceased, who resided near Tappan Junc- tion were accustomed to use the railroad tracks in going to and returning from the Tunnel Depot, it being more conveni- ent and direct than by the street. Deceased's education was limited and it was hard for him to correctly prepare his pay-rolls and reports. He worked at this task the evening before until midnight and on the afternoon of January 30, at about half-past three, returned home to com- plete making them out, which he practically finished about supper time. After suppper he signed the papers and his wife addressed the envelopes containing them. He then left home, at about 6 :30 o'clock, for the purpose of mailing them at the Tunnel Depot, as was customary and in accordance with his instructions, that the} T might be received in Detroit the next day. There is no direct evidence of his movements from that time. These papers were mailed that evening at the Tunnel Depot and went out on a train which left at 6:55, being re- ceived in Detroit the following day. Sometime about mid- night his remains were found by a switchman on respondent's tracks, badly mutilated and cut to pieces, portions being scat- ROSE PAPINAW vs. GRAND TRUNK RAILWAY CO. 171 tered along and frozen to the track, at a locality variously stated at from about a block and a half east of Tappan Junc- tion to 1300 feet east of the Junction road. It was a dark, stormy night with a mixture of rain and snow flying and fall- ing. His wife testified that he seldom went to the city at night and never to the tunnel except on the nights when it was his duty to mail his pay-rolls and reports; that on leaving this night he commented upon its being dark and stormy, telling her that if he was late she could know that he was out work- ing on the switches. Between when deceased left home and his remains were dis- covered, the time of his death is necessarily indefinite. The undertaker who was summoned shortly after their discovery mid cared for the remains testified that they were strung along the track seventy-five or one hundred feet, some parts frozen to the rails or ties so that he had difficulty in loosen- ing them; that it was a ''cold, nasty, raw night," and he t IK (light from the condition of the body, which he judged had been dead an hour and a half or two hours, that more than one train ran over him ; that "one had taken him one way and another brought him back." In considering this case we start with the well settled propo- sition that if the facts proven are capable as a matter of law of sustaining the inferences of fact drawn from them by the Industrial Accident Board, its findings are conclusive, in the absence of fraud, and the appellate court is not at liberty to interfere with them. Section 12 part 3 of the Industrial Acci- dent Law has been too often and recently so construed by this court to require citation of cases. This is but an application under the statute of the comprehensive and fundamental prin- ciple universal in courts of law, that whether there is any com- petent evidence is for the Court to determine, but whether the evidence is sufficient is a question for the jury, the function of the accident board being in that respect those of a jury in ac- tions at law. This case is readily distinguishable from that line of deci- sions cited by respondent in which the employe by his con- 172 MICHIGAN WORKMEN'S COMPENSATION CASES. tract of hiring was engaged to work during certain hours and was injured away from his place of employment, while going to or returning from work, or was absent during some inter- mission for meals, or otherwise, not then upon his employer's business nor subject to his control, at liberty for the time to go where and do what he pleased, free from any claim of the employer upon his services. Here it is shown conclusively that by his contract of hiring deceased was at the time of his death required to be within reach, liable at any time to be called to work upon the track, and in that sense on duty sub- ject to his employer's orders and control. His wife and his fellow foreman, of the section east of his, so testified, as also respondent's supervisors of tracks who said, in part : "The section foreman is supposed to be on call at any time, in case of trouble with the switches. * * * I gave him (Papinaw) instruc- tions with reference to those switches because he lived near, and was the nearest man to be called. Sharrard lived near the Tunnel depot. Although it was on Sharrard's section I gave Papinaw orders that in case of storm to look after the cleaning of those Switches. * * * He was supposed to be on call in case the tracks got in bad condition of repair so that he could get there without tying up traffic. * * * If the foreman has not gone to bed before it starts storming he is sup- posed to go out himself without being called." Especial and extra duties rested upon deceased that night. He was required to be on call. It was a stormy night, of a kind requiring unusual vigilance as to the switches, and it was imperative that he mail his pay rolls at the Tunnel De- pot before the evening train left so that they would be in De- troit on the day required. He worked upon those papers until supper time and started after supper for the Tunnel Depot to mail them, leaving word with his wife which would keep him in touch with his employer during his absence, so near as pos- sible. It is conceded that he mailed the papers that evening and they reached their destination on time. It was his duty after mailing them to return and either be at home on c'all or looking after the switches near by. His last words, so far as there Is any proof, show such was his intent and that he left with this duty on his mind. He was in the habit of retiring ROSE PAPINAW vs. GRAND TRUNK RAILWAY CO. 173 early when there was no indication of a storm. Under the ici ins of his employment it was as much his duty to return to his home, or the switches near there, after mailing the papers at the Tunnel Depot as it was to go there for that purpose. In going he started along respondent's track, and presumably went that way as was his custom and that of other employes of respondent, because it was more convenient and the dis- tance to the tunnel shorter than by any other route. He was a section foreman whose special work was to be upon, travel along and care for his employer's track. He was not a tres- passer upon its right of way in any sense which would deny relief under this act, and no question of his negligence is in- volved in this proceeding. The place and cause of his death are readily inferable from the facts proven. Respondent's counsel say : "He was in the act of going home at the time he was killed." If so, under the circumstances of this case he was performing a duty in the line of his employment out of and in the course of which the accident which caused his death befell him. The accident occurred while he was doing that which a man so employed can reasonably do, and ought to do, and w r as injured at a place on his employer's premises where under the proven circumstances his combined duties made it reasonable that he should be, and there is no proof that he was there for any other purpose than on his return in com- pleting a trip to the Tunnel Depot, in the line of his employ- ment, to the place where his employment required him to be on call or at work, and where he w r ould have been during that evening but for the necessity of the trip. This claim is by a dependent of a workman who was acci- dentally killed, and whose evidence is therefore not available. In (i rant vs. Glasgow Ry., 1 B. W. C. 17, it is said: "If in such a case facts are proved, the natural and reasonable inference from which is that the accident happened while the de- ceased was engaged in his employment, I think it falls on the em- ployer, if he disputes the claim, to prove that the contrary was the case." Tli at an employe, not actually at work, is on duty if required 174 MICHIGAN WORKMEN'S COMPENSATION CASES. to be at a certain place on call and ready for work, is held in St. L. A. & T. Rij. Co. vs. Welsh, 72 Texas 298, where it is, said of a member of a railroad bridge gang injured while sleeping in a bunk car provided by his employer: "The plaintiff at the time of the accident was asleep on a car be- longing to the company, provided by it for that purpose, which was placed upon its sidetrack. He was liable to be called upon at any moment to go out with his gang upon duty upon the road. We think he must be held to have been upon duty at the time he received the injury. That the accident occurred when he was resting from his labors, we think makes no difference. He was subject to the call of the company at the time, and his case differs from that of other ser- vants who engage for certain hours of employment, and who are in- jured during the intervals in which the master has no claim upon his services." The Arbitration Committee and Industrial Accident Board were at liberty in determining the facts in this case to draw all rational and natural inferences from the evidentiary cir- cumstances shown. To infer and find that the accident which resulted in Papinaw's death arose out of and in the course of his employment had evidential support, and was neither un- natural nor irrational. The decision of the Industrial Accident Board is therefore affirmed, with costs to appellee. JESSIE B. CLEM vs. CHALMERS MOTOR CO. 175 JESSIE B. CLEM, Applicant, vs. CHALMERS MOTOR COMPANY, Respondent. INTENTIONAL AND WILFUL MISCONDUCT CARPENTER INJURED WHILE DESCENDING FROM A BUILDING BY A ROPE INSTEAD OF A LADDER. Applicant's decedent was employed as a carpenter by respondent and on the day of his injury was working on the flat roof of a large building which was being constructed, the roof being about 20 feet from the ground. The weather was very cold and decedent and the other men were called down from the roof by the foreman at about 9 o'clock in the forenoon for a hot coffee lunch, which it was usual to serve to the men to mitigate the effects of the cold. The means generally used for descending from the roof was an extension ladder, but decedent chose to descend by means of a rope, and in some manner lost his hold of the rope and was killed. Payment of compensation was re- fused on the ground: (1) That the injury is not one arising out of and in the course of the employment, and (2) that it was the result of decedent's intentional and wilful misconduct. HELD: 1. That the act of coming down from the roof for coffee lunch at the foreman's call was in the course of deceased's em- ployment. 2. That the dangers ordinarily incident to descending from such roof arise out of the employment, and this fact is not fundamentally changed by varying the manner and means of descending as in this case. 3. There being no proof that any order or rule forbidding the use of a rope in descending was communicated or made known to decedent, and it appearing that other employes used the rope method in descending, and that deceased used much care in letting himself down over the edge of the roof with such rope, his act did not constitute intentional and wilful mis- conduct within the meaning of the law. Opinion by the Board: On December 12, 1912, Charles S. Clem was in the employ 176 MICHIGAN WORKMEN'S COMPENSATION CASES. of Chalmers Motor Company in Detroit and was receiving an average weekly wage of $20.65. He was a carpenter by trade and was working on the roof of the new storage building which was being erected by the company. This building was approximately 160 feet long, 150 feet wide and 19 or 20 feet high, the roof in course of construction being what is common- ly called a flat roof. The day was cold and the men employed on this roof, 25 or 30 in number, were obliged to wear gloves or mittens in their work. During the few days of very cold weather at this time, the foreman provided hot coffee for the men, and at about 9 o'clock in the forenoon of each day would call them down from the roof for a hot coffee lunch. The or- dinary means used by the men for ascending to and descending from the roof of the building was an extension ladder such as painters use, 20 feet in length, resting against the south side of the building and tied to- it by ropes. This was the only lad- der provided. The heavier material used by the men in their work was lifted to the roof by block arid tackle with rope falls, and in addition to this there were about a dozen ropes from 20 to 30 feet in length which were used to pull up lighter ma- terial over the cornice of the building when needed by the men working on the roof. These ropes were located around in dif- ferent places so that when material was needed at any parti- ular place there would be a rope near at hand with which to haul it up. The ropes were lying on the roof and at places where the men happened to leave them. At about 9 o'clock in the forenoon of December 12, 1912, the foreman called the men working on the roof to come down for hot coffee, and it appears that they proceeded to go down by way of the ladder, one following another. While others were going down in this way, Mr. Clem said to a fellow workman named Sekos. "Hold this rope and I will slip down." From this point Sekos tells the story as follows : "'I was in a hurry to get down. I wanted to get down, but I just held it (the rope). Another man was behind me on the roof, but did not have hold of the rope. * * * I held the rope all right; it didn't let loose at all ; it didn't break, and if he had hung on JESSIE B. CLEM vs. CHALMERS MOTOR CO. 177 the rope all right he would have got down safely. I guess he lost the rope; I guess his hands were cold; he had mitts on his hands and so did I. It was pretty cold ; we were so cold we were going, down to get some coffee." The only other eye witness was Albert E. Glaser, the man stood behind Sekos when Clem started down the rope. Glaser tes- tified in substance that Clem asked Sekos to hold the rope for him; that Sekos held one end of the rope; that Clem took the other end of it, went over to the edge of the roof and got down, feet first on his knees, and went down backwards, with his legs down first holding onto the rope with his hands. That he was careful about it, and that would be the most careful way to do it ; Clem had gloves on his hands ; it was so cold that we could not work without gloves; we were all cold at that time and fingers a little stiff with the cold ; a man with fingers stif- fened with the cold would- not be able to hold onto a rope as he otherwise could. Angus E. McDonald was subforenian, having charge of part of the men working on the roof. McDonald had been a sailor and used a rope instead of the ladder on going up to and down from the roof of this building probably four or five times ; and on one occasion w r hen he so used a rope, the general foreman cautioned him and the men then present not to use ropes for going up and down, but to use the ladder. There was no evi- dence that Clem \vas present at this time, or that the fore- man's order not to use the rope ever reached him. It is con- ceded that no question as to the effect of violation of shop rules or orders is involved in this case. It is also conceded the "(Nulling down off the roof for coffee lunch" at the foreman's call was u in the course of Clem's employment." The issue is narrowed down to "the manner of coming down'' from the roof, and the means used by Clem for that purpose. It is con- tended on behalf of the company that compensation should be denied because (1) the injury is not one arising out of and in the course of the employment of deceased, and (2) that it was the result of his intentional and wilful misconduct. 23 178 MICHIGAN WORKMEN'S COMPENSATION CASES. The first objection, we think, cannot be sustained. It is a matter of common knowledge that carpenters' employes in the erection of a building must ascend and descend and change their positions on the building as the work requires and that they are often required to choose the means and manner of so doing. This is also shown by the proofs, attention being called to the testimony of McDonald, the sub-foreman, that it is not uncommon for men to go down a rope if there is one there, and that he would sooner go down a rope than not. We think the means and manner chosen by deceased to descend from the roof, did not place his act of descending outside of the course of his employment. Did his choice of the means and manner of descent constitute "intentional and \vilful misconduct" within the meaning of the Compensation Law? Mere neglig- ence on the part of deceased will not defeat the claim of his widow for compensation. A mistaken estimate of the risk in descending by means of a rope, or the mere choosing of means and manner of descending which were less safe than the lad- der, would at most be only negligence on the part of deceased. There is no evidence of wilfulness, except what might be infer- red from the naked fact of choosing the rope method of de- scending. The evidence shows that deceased exercised much care in letting himself down over the edge of the roof with the rope. There is an entire absence of any showing of wilfulness by any act or w^ord of deceased except as above, and w r e think it may be fairly said that deceased acted in the belief that he could safely descend by the rope. He fell because of losing his hold on the rope. Whether this resulted from his fingers being stiffened with cold, or from his gloves, or for some other cause does not appear. It was not impossible that by reason of frosted fingers or some other cause he might have lost his hold on the ladder, had he chosen that way of descending. We are of the opinion that the act complained of did not constitute "intentional and wilful misconduct" within the meaning of the statute, and the decision of the arbitration committee in favor of the widow is affirmed. JESSIE B. CLEM vs. CHALMERS MOTOR CO. 179 This case was appealed to the Supreme Court and affirmed the following- being the full opinion of the Supreme Court: SUPREME COURT. JESSIE B. CLEM, Claimant and Appellee, vs. CHALMERS MOTOR COMPANY, Defendant and Appellant. 1. MASTER AND SERVANT INDUSTRIAL ACCIDENT COMMISSION PERSONAL INJURIES COURSE OF EMPLOYMENT. Under the terms of Act No. 10, Special Session 1912, providing for an industrial accident board and authorizing compensation for injuries to any servant "arising out of and in the course of his employment," the provisions included a decedent who was called from the roof of a building where he was working to partake of a lunch served by the employer, and who, in descend- ing by means of a rope that extended over the edge of the roof and within 12 or 13 feet of the ground, instead of using a ladder which was provided and was safely attached to the roof, fell and was killed; his widow's right of recovery was properly sustained by the industrial accident board. 2. SAME. Nor was his act intentional and wilful misconduct so as to defeat the claim. MCALVAY, C. J v dissenting. Certiorari by the Chalmers Motor Company to review a rul- ing of the Industrial Accident Board allowing a claim in favor of Jessie B. Clem. Submitted June 19, 1913. Affirmed Jan- uary 5, 1914. Eowen, Douglas,, Eaman d- B arbour, for appellant. Shields & Shields, for appellee. 180 MICHIGAN WORKMEN'S COMPENSATION CASES. MOORE, J. This is certiorari directed to the Industrial Accident Board of the State to review an order allowing the claim of Jessie B. Clem, widow of Charles S. Clem, deceased, for the sum of |3,000 against the contestant. The claim is made under the employers liability act, so called, being Act No. 10 of the Public Acts of the Special Session of 1912. Charles S. Clem sustained injuries by falling while descend- ing from the roof of a building in the course of construction by means of a rope. It is conceded if there is any liability that the compensation of $3,000 is a correct sum to be paid. Following the death of Mr. Clem, an arbitration was had before an arbitration committee, which allowed the claim. An ap- peal was taken to the Industrial Accident Board, which board affirmed the award of the arbitration committee. The record shows Mr. Clem had worked for some weeks as a carpenter for the Chalmers Motor Company. On the day of the accident he was assisting in placing roof boards upon a building which was 150 feet wide, 160 feet long, and 19 or 20 feet high from the ground to the eaves. It was a flat roof. Be- tween 9 and 10 o'clock the men were instructed by a sub-fore- man to come down from the top of the building for a coffee lunch, so called. The men went to and from the roof in the course of the work by means of a ladder which was attached firmly to the side of the building, extending from the ground to the roof. There were on the roof of the building some loose ropes. These were used for the purpose of raising and lower- ing material. They were not provided for men to go up and down. On the call being made to come for the coffee, all of the men descended by the ladder but Mr. Clem and two fellow workmen named Sekos and Glaser. Instead of going down the ladder, Mr. Clem picked up one of the loose ropes about 20 feet long and gave one end of it to Sekos, directing him to hold it in his hand. The rope extended over the edge of the roof about seven feet. Taking the rope in his hands, Mr. .Clem passed over the edge of the roof and disappeared from the sight of the two men on the roof. If any one saw what happened after that, it does not appear in the record further than that JESSIE B. CLEM vs. CHALMERS MOTOR CO. 181 Mr. Clem fell and was hurt, receiving injuries which resulted in his death. The following appears in the record: "Mr. Kinnane: Now, is it contended that the act of coming down off the building to coffee lunch when they were called by the foreman for that cause was not in the due course of their employment? I am not speaking of the manner of doing it but the fact of their coming down and going back. "Mr. Rogers: I concede that was a part of his employment. "Mr. Kinnane: Then it would simmer down to the manner of com- ing down, would it not? "A. Yes. "Mr. Kinnane: That would be the only matter at issue? "Mr. Rogers: Yes. My point on that matter as to that act: When the man was doing that act he was not in the course of his em- ployment." It is the claim of appellant (we quote from the brief) : "(1) Charles S. Clem, the deceased, did not receive a personal injury arising out of and in the course of his employment. "(2) He was injured by reason of his intentional and wilful mis- conduct." The statute involved here is of such recent date that its con- struction has never been before this court. Statutes of a sim- ilar character are so recent that there is a paucity of decisions relating to them, especially in the American courts. Counsel cite a number of English and Scotch cases, but none of them is on all fours, nor is the principle of law stated in them con- trolling in the case before us. The case now in this court is one of the first impression. The title of Act No. 10, Public Acts of Special Session of 1912, reads as follows: "An act to promote the welfare of the people of this State, relating to the liability of employers for injuries or death sustained by their employees, providing compensation for the accidental injury to or death of employees and methods for the payment of the same, estab- lishing an industrial accident board, defining its powers, providing for a review of its awards, making an appropriation to carry out the pro- visions of this act, and restricting the right to compensation or damages in such cases to such as are provided by this act." 182 MICHIGAN WORKMEN'S COMPENSATION CASES. We quote from the act: "The people of the State of Michigan enact: "PART 1. "Modification of Remedies. "SECTION 1. In an action to recover damages for personal injury sustained by an employee in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense: (a) That the employee was negligent, unless and except it shall appear that such negligence was wilful; (b) that the injury was caused by the negligence of a fellow employee; (c) that the employee had assumed the risks inherent in or incidental to, or aris- ing out of his employment, or arising from the failure of the em- ployer to provide and maintain safe premises and suitable appliances. "SEC. 2. The provisions of section one shall not apply to actions to recover damages for personal injuries sustained by household domestic servants and farm laborers. "SEC. 3. The provisions of section one shall not apply to actions to recover damages for the death of, or for personal injuries sustained by employees of any employer who has elected, with the approval of the industrial accident board hereinafter created, to pay compem tion in the manner and to the extent hereinafter provided. "SEC. 4. Any employer who has elected, with the approval of th( industrial accident board hereinafter created, to pay compensation hereinafter provided, shall not be subject to the provisions of section one; nor shall such employer be subject to any other liability what- soever, save as herein provided for the death of or personal injury to any employee, for which death or injury compensation is recoverable under this act, except as to employees who have elected in the manner hereinafter provided not to become subject to the provisions of this act." The appellant elected to come within the provisions of th< act. Sections 1 and 2, pt. 2, of the act, read in part as follows: "SECTION 1. If an employee who has not given notice of his electior not to be subject to the provisions of this act, as provided in part 1, section 8, or who has given such notice and has waived the same hereinbefore provided, receives a personal injury arising out of am in the course of his employment by an employer who is at the time of such injury subject to the provisions of this act, he shall be pai( compensation in the manner and to the extent hereinafter provided, JESSIE B. CLEM vs. CHALMERS MOTOR CO. 183 or in case of his death resulting from such injuries such compensation shall be paid to his dependents as hereinafter defined. "SEC. 2. If the employee is injured by reason of his intentional and wilful misconduct, he shall not receive compensation under the pro- visions of this act." have quoted sufficiently from the act* to show that it is a very marked departure from the old rule of liability on the part of the employer to the employee. It is clear that as to the employer, who has accepted the provisions of the act, the risks of the employee, arising out of and in the course of his employment, are not assumed as heretofore by the employee but must be compensated for according to the provisions of the act, unless the employee is injured by reason of his inten- tional and wilful misconduc^. The first question then is: Did Mr. Clem receive a per- sonal injury arising out of and in the course of his employ- ment? And the second question is: Was he injured by rea- son of his intentional and wilful misconduct? The questions are so interwoven that they may well be discussed together. Mr. Clem, with others, was employed on a December day con- structing a flat roof on a large building only 19 or 20 feet high. It would add not only to the comfort of these men but to their efficiency as workers to have them about 9 or 10 o'clock par- take of a luncheon, which, from the fact that hot coffee was served, was called a coffee lunch. The luncheon was ordered by the foreman of the company. It was prepared on the prem- ises, and when it was ready the men were directed by the sub- foreman to go and partake of it. All of them started to do so. They did not in doing so leave the premises of the appellant. All of them but three went down the ladder. Mr. Clem went down the rope which projected over the eaves seven feet. If he had kept hold of the rope until he reached the end of it, if he was a man of ordinary height and his arms were of the or- dinary reach, his feet would be within five to seven feet of the ground. If, when the call to come to lunch was made, Mr. Clem, in responding to the call, had inadvertently stepped in- to an opening in the uncompleted roof or in company with the 184 MICHIGAN WORKMEN'S COMPENSATION CASES. others had, in the attempt to reach the ladder, got too near the edge of the roof and fallen and been hurt, would it be claimed that the injury did not arise out of and in the course of his employment? The getting his luncheon under the con- ditions shown was just as much a part of his duty as the lay- ing of a board or the spreading of the roofing material. The injury, then, having arisen out of and in the course of his em- ployment, can it be said that compensation should be defeated because of his intentional and wilful misconduct? His pri- mary object was like that of all the other men, to get to and partake of his luncheon. There is nothing to indicate that he intended or expected to be hurt. Nearly all the other men went down by the ladder. He went down by a rope where, if his plans had carried he would have had to make a drop of only five to seven feet. Is that such intentional and wilful misconduct as to defeat compensation under the act? There is scarcely a healthy, wide-awake ten-year-old boy who does riot frequently take a greater chance and without harm. For a man accustomed to physical toil, judged by what is occurr- ing daily, it cannot be said that such an act should be charac- terized as intentional and wilful misconduct within the mean- ing of the statute. The allowance of the claim is affirmed. BROOKE, KUHN, STONE, OSTRANDER, BIRD and STEERE, JJ., Concurred with MOORE, J. MCALVAY, C. J. (dissenting). I think that the cause of the injury to the deceased was his intentional wilful misconduct and therefore cannot concur in this opinion. JANE E. HOPKINS vs. MICHIGAN SUGAR CO. 185 SUPREME COURT. .TANK K. HOPKINS. Claimant and Appellee, vs. MICHIGAN SUGAR COMPANY, a Michigan Corporation, and NEW ENGLAND CASUALTY COMPANY, a Massachusetts Corporation, Defendants and Appellants. 1. MASTER AND SERVANT WORKMEN'S COMPENSATION ACCIDENT ARIS- ING OUT OF EMPLOYMENT. To justify an award of compensation to an injured employee the accident must have arisen out of as well as in the course of his employment; the two are separate questions to be determined by different tests: "out of" points to the cause or source of the accident, while "in the course of" relates to time, place, and circumstance. 2. SAME RELATION OF SERVANT INJURIES OUTSIDE OF EMPLOYMENT. Where the decedent was in the employ of the defendant as its chief engineer, and had supervision of the installation of ma- chinery in several of defendant's plants at different cities, an in- jury received while he was preparing to board a car in the street by slipping and falling upon icy ground in a city in which his principal office and the main plant of his employer was situated, was not an injury which arose out of his employment under Act No. 10, Extra Session 1912 (2 How. Stat. [2d. Ed.] 3939 et seq.), although decedent had spent the day at one of the branch fac- tories in a distant town from which he had returned to the city in which he resided. Certiorari to the Industrial Accident Board. Submitted November 11, 1914. Decided January 4, 1915. Jane E. Hopkins presented a claim against the Michigan Sugar Company for compensation for the death of her hus- band. An order granting compensation is reviewed by con- testant on certiorari. Keversed. 186 MICHIGAN WORKMEN'S COMPENSATION CASES. Brooks & Cook (Hal H. SnvUli, of counsel), for claimant. Frank J. Riggs. (Martin J. Cavanaugh, of counsel), for de- fendants. STEERED J. The proceedings in this case, brought here for review by certiorari, arose under Act No. 10, Pub. Acts 1912 (Extra Session) ; (2 How. Stat. [2d Ed.] 3939 et seq.), and involve the validity of an award, by the State Industrial Accident Board, of compensation to claimant for the death of her husband on February 13, 1913, against his employer, the Michigan Sugar Company, defendant. It appears from the finding of the Board, supported by com- petent evidence, that deceased was in the employ of said com- pany as its chief engineer, supervising the installation of ma- chinery in, and. operation of, six of its plants located at Sag- inaw, Bay City, Alma, Croswell, Caro and Sebewaiug. He re- sided at Saginaw, had a desk at the office of the company in that city and did work there from time to time, but had no regular office hours, and was engaged much of his time visit- ing and looking after the different factories, as directed or as circumstances might require. He received an annual salary, with his traveling expenses paid when going on business of his employer. He sometimes started from the office and at other times from his home when making such trips. On February 4, 1913, he left Saginaw in the morning for Sebewaing, to visit the company's plant at that place. A train arrived at Saginaw from Sebewaing at 5 :40 P. M. About 6 :40 he arrived home with an injury to his head, which was bleed- ing a little at the back and which his wife cared for. He de- tailed to her, and subsequently to others, how it occurred. No one is shown to have seen the accident. He spent most of the following day at the office and the day after attended a funeral in Bay City. During those two days he appeared unwell, com- plained of a severe headache, and in speaking of it told of the accident to which he attributed it. From that time he grew worse, suffered a partial paralysis, with other symptoms of JANE E. HOPKINS vs. MICHIGAN SUGAR CO. 187 bra iii pressure, and died on February 13th. Without details, the testimony of physicians showed that his death was caused lie a hemorrhage resulting from a small fracture about one- half inch long extending from the vertex of the skull toward the right ear. It is claimed and found by the Board that upon arriving at the station in Saginaw, upon his return in the evening from Sebewaing, deceased found no street car in sight and started to walk along Washington Street in the direction of both his home and the company's office; that after he had walked a number of blocks he saw a street car coming and started from the sidewalk intending to take it; that the ground there was icy and covered with snow, and he sapped and fell, receiving the injury which eventually resulted fatally. Material parts of this finding are challenged as unsupported by any compet- ent evidence; no witness being shown to have seen the acci- dent. Much clearly incompetent and purely hearsay evidence produced by claimant was admitted in regard to it, some of which showed that deceased ran to catch the car and did not notice the ice until, in hurrying over it, he slipped and fell. Conceding, however, as contended by claimant, that facts and circumstances properly proven, together with the report of accident made by the defendant company to the Industrial Accident Board as required by statute, furnish sufficient evid- ential support for the findings and, accepting them as true, we are yet impelled under the authorities, to the view that such findings fail to sustain the conclusion of law by the Board that such accident was naturally or peculiarly inciden- tal to and arose out of deceased's employment. To justify an award under this act it must be shown that the employee received "a personal injury arising out of and in the course of his employment.'' -This provision is adopted in identical words from the English workmen's compensation act and presumably with the meaning previously given it there. It is well settled that, to justify an award, the accident must have arisen "out of as well as "in the course of the 188 MICHIGAN WORKMEN'S COMPENSATION CASES. employment, and the two are separate questions to be deter- mined by different tests, for cases often arise where both re- quirements are not satisfied. An employee may suffer an ac- cident while engaged at his work or in the course of his em- ployment which in no sense is attributable to the nature of or risks involved in such employment, and therefore cannot be said to arise out of it. An accident arising out of an employ- ment almost necessarily occurs in the course of it, but the con- verse does not follow, 1 Bradbury on Workmen's Compensa- tion, p. 398. "Out of" points to the cause or source of the ac- cident, while "in the course of" relates to time, place, and cir- cumstances. Fitzgerald vs. Clarke & Son, 2 K B. (1908) p 796. The same provision, in the same words, is found in the Mas sachusetts Workmen's Compensation Act. In McNicols' Case, 215 Mass. 497, (102 N. E. 697), the controlling question was whether fatal injuries received by an employee through blows and kicks administered by a fellow-workman, "in an intoxi cated and frenzied passion, arose out of the employment. 11 appearing that the assaulting fellow-servant, with whom de- ceased was required to work, was, when in liquor, known to be quarrelsome and dangerous, and unsafe to be permitted to work with his fellow employes, the court held that "a natural result of the employment of a peaceable workman in company with a choleric drunkard might have been found to be an at- tack by the latter upon his companion;" but if the assaulter had not been an employe, though the injury would yet have been received in the course of the employment it could not have been said to have arisen out of it. MitchAnson vs. Day Bros., Workmen's Compensation Reports (1913), p. 324. Ii that connection, recognizing as controlling authority, and dif- ferentiating, many cited English cases upon the subject, the court thus clearly and comprehensively states the rule: "It is sufficient to say that an injury is received 'in the course oi the employment when it comes while the workman is doing the duty which he is employed to perform. It 'arises out of the employment when there is apparent to the rational mind, upon consideration of JANE E. HOPKINS vs. MICHIGAN SUGAR CO. 189 all the circumstances, a casual connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not inde- pendent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appar to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence." The question of whether deceased was in any sense within the ambit of his employment at the time and place of the acci- dent is a serious one ; but conceding that the injury befell him while in the course of his employment, can it be fairly traced to his employment as a contributing, proximate cause, or did it come from a hazard to which he, in common with others, would have been equally exposed apart from the employment? No direct casual relation is claimed in the particular that the nature of the business of manufacturing sugar in itself exposes its employes to unusual risk or danger of accident of this nature. All that can be claimed is that the accident re- sulted from the understood extra hazard to which those who travel are exposed, and, while traveling in his employer's bus- iness he was protected against accidents attributable to that extra danger. Deceased's home and headquarters were in Saginaw. He had a desk in the office of the company where he did some work. One of the six factories he supervised was in Saginaw. His traveling consisted of journeying to the other five factor- ies from time to time as occasion required. On the day in question he had made such a journey to Sebewaing and re- turned to Saginaw in safety. ,At the time of the accident he was in his home city, walking along the street, exposed to' no 190 MICHIGAN WORKMEN'S COMPENSATION CASES. more or different hazards of travel than any other citizen, no than he would have been had he spent the day at the com pany's office or its Saginaw plant. How is the legal aspect o the case affected by his having gone to Sebewaing during the clay when it appears that his duties of the day were en dec and he had returned safely to Saginaw? At the time of hi accident he was passing on foot along a familiar highway, up on which was ice and snow a natural condition of that sea son of the year involving an increased risk and added clan ger of falling, common to all and known to all. When h slipped upon the snow-covered ice and fell, he was not riding upon nor getting on or off any conveyance, public or private No person or thing connected with transportation or trave touched or threatened him. While it is indicated by the rec ord that he desired to take a street car and was walking o running towards one for that purpose, to assert that he wa injured in attempting to take or board a car would be a mis leading overstatement. He slipped and fell before reaching "it. apparently such a distance away as not to attract the at tention of those on the car, as no witnesses to the acciden were produced. The Board found that "he started from th< sidewalk towards the car with the intention of boarding th< same" and the employer's report, which is the legal basis of such finding, shows that he fell "about one-third distance be- tween sidewalk and car track." The car was presumably some- where on the track at the time but just where is not disclosed. Slipping upon snow-covered ice and falling while walking, or running, is not even what is known as peculiarly a "street risk;" neither is it a recognized extra hazard of travel or par ticularly incidental to the employment of those who are callec upon to make journeys between towns on business missions. These distinctions are recognized and the rule correctl; stated in an opinion of the Michigan Industrial Accident Boarc filed in Warden vs. Commonwealth Power Company, 20 Det Leg. News, No. 39 (Dec. 27, 1913), as follows: "It must also appear that the injury arose out of the employmenl and was a risk reasonably incident to such employment, as distin JANE E. HOPKINS vs. MICHIGAN SUGAR CO. 191 guished from risks to which the general public is exposed. To illus- trate: * * * On the other hand it might be fairly said that one of the most common risks to which the general public is exposed is that of slipping and falling upon ice. The risk is encountered by people generally irrespective of employment. * * *." The Board also referred to the fact that claimant was upon his own premises, as of some force, but apparently denied an award upon the ground quoted, which is well supported by former decisions. In the late case of Sheldon vs. Needham, W. C. & Ins. Rep. of 1914, p. 274, a servant sent to mail a letter slipped in the street, upon a banana peel or some other slippery object, breaking her leg. Citing as controlling several cases involv- ing the same principle, the court held that, although claimant was in performance of the exact thing ordered done, there could be no aw r ard because the accident was not due to any special or extra risk connected with and incidental to her em- ployment, but was of such a nature as to be equally liable to happen under like circumstances to any one in any employ- ment, and whether employed or not. This unfortunate acci- dent resulted from a risk common to all, and which arose from no special exposure to dangers of the road from travel and traffic upon it; it was not a hazard peculiarly inci- dental to or connected with deceased's employment, and there- fore is not shown to have a casual connection with it, or to have arisen out of it. For the foregoing reasons we are impelled to the conclusion that the order and award of the Industrial Accident Board in the premises cannot be sustained. Reversed. 192 MICHIGAN WORKMEN'S COMPENSATION CASES. SUPREME COURT. RACHEL PINEL, Claimant and Appellant, vs. RAPID RAILWAY SYSTEM, Respondent. MASTER AND SERVANT WORKMEN'S COMPENSATION DEPENDENT RELA- TIVES PARENT AND CHILD. A woman who has been receiving no support from her son, and who was not dependent upon him, is not entitled to compensa- tion for his death in the course of his employment under Act No. 10, Extra Session 1912, 2 How. Stat. (2d. Ed.) 3953; since it is apparent that the son is not under legal obligation to sup- port his parents until an order of the court has been made re- quiring him to contribute thereto. 2 Comp. Laws, 4487 (2 How. Stat. [2d Ed.] 3478). The situation as to the dependency is to be determined as of the date of the accident to decedent. Act No. 10, Extra Session 1912, 7. Certiorari to the Industrial Accident Board. Submitted April 21, 1914. Decided January 29, 1915. Rachel Pinel presented her claim against the Rapid Rail- way System, a corporation, for compensation caused by the death of her son, while he was employed by said company. ,An order denying an award of compensation is reviewed by claim- ant on certiorari. .Affirmed. Devine d .Snyder, for claimant. Corliss, Leete & Moody, and Benjamin S. Pa gel, for contest- ant. BIRD, J. Edward Pinel was in the employe of the respond- ent, and was killed while in such employment on May 29, 1913. He left him surviving neither widow nor child. He left a mother 83 years of age, who is claimant herein, and sev- eral brothers and sisters. Application was made to the In- RACHEL PINEL vs. RAPID RAILWAY SYSTEM. 193 dustrial Accident Board on behalf of claimant for an award. After hearing the proofs the award was denied by the Arbi- tration Board, on the ground that claimant was not depend- ent on the deceased. On appeal to the Industrial Accident Board, the same result was reached. The claimant has a life lease on a farm of 87 acres in Macornb county. Her son Charles resides with her. The deceased, Edward, and his brother Thomas were the owners of a mortgage against the farm, and more or less litigation has ensued in the past few years between them and claimant, and as a result thereof they have been unfriendly. It is not contended Aat the claimant was dependent upon the deceased by reason of any contribu- tions made to her by the deceased, but by reason of the fact that he was a son who might be compelled to contribute to her support by 2 Cornp. Laws, Sec. 4487 et seq (2 How. Stat. [2d Ed.] Sec. 3478 et seq.) The question, therefore, presented is whether the claimant was a dependent on the deceased within the meaning of the compensation law, by reason of the provisions of 2 Comp. Laws. Sec. 4487 et seq. (2 How. Stat. [2d Ed.] Sec. 3478 et seq.) Section 7 of part II of the compensation law provides that : "Questions as to who constitute dependents and the extent of their dependency shall he determined as of the date of the accident to the employe, and their right to any death benefit shall become fixed as of such time, irrespective of any subsequent change in conditions." Act No. 10, Pub. Acts 1912. The claimant did not belong to the class conclusively pre- sumed by the compensation law to be a dependent. On the date of the accident it is conceded claimant was not depend- ent by reason of any support furnished to her by the deceased. On the date of the accident she was not dependent on the de- ceased by force of any order of court based upon section 4487 et seq. A son is always under moral obligation to assist his indigent mother, but he is under no legal obligation to do so until proceedings under the statute have resulted in an order 194 MICHIGAN WORKMEN'S COMPENSATION CASES. compelling him to do so. No such order was in force at the time of the accident; therefore we must conclude that he was under no legal obligation at that time to support his mother See Rees vs. Navigation Co. 87 L. T., 661, 5 W. 0. G. 117 Schwanz vs. Wujek, 163 Mich. 492, (128 N. W. 731). The most that can be said of the statute with reference to the ques tion involved, is that by its terms a court of competent juris diction might have, under certain contingencies, compelled the deceased, if able, to contribute to the support of his mother The contention of claimant cannot be sustained. The order of the Board will be affirmed. SUPREME COURT. KATHERINE M. KLAWINSKI, Applicant and Appellee, vs. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY, Respondent and Appellant. MASTER AND SERVANT WORKMEN'S COMPENSATION LAW COURSE OF EMPLOYMENT RAILROADS PERSONAL INJURIES. A section laborer upon a railroad who had taken refuge in a barn during a storm was not entitled to compensation under the employer's liability law for his death caused by a stroke of lightning which struck the barn: the injury or accident did not arise out of or in the course of his employment, nor was death by lightning peculiar to the industry or occupation in which he was engaged. Act No. 10, Extra Session 1912 (2 How. Stat. [2d. Ed.] 3939.) Certiorari to the Industrial Accident Board. Submitted June 18, 1914. Decided April 19, 1915. KLAWINSKI vs. L. S. &. M. S. RAILWAY CO. 195 Katherine M. Klawinski presented a claim against the Lake Shore & Michigan Southern Railway Company for the death of her husband in defendant's employ. From an order award- ing compensation respondent brings certiorari. Reversed. Angelly Boynton, McMillan, Boclman cC- Turner, for appel- lant. W. Glenn Cowell, for appellee. McALVAY, J. In its return to a writ of certiorari in this cause the Industrial Accident Board certifies, as follows: "That at the time of the injury for which compensation was sought herein, to wit: on the 15th day of May, 1913, respondent had accepted to become subject to the terms Of Act No. 10, Pub. Acts 1912 (Special Session), commonly known as the 'Workmen's Compensation Law.' That on the 28th day of July, 1913, said Katherine Klawinski made application to the board of arbitration of a claim to compensation from respondent for the death of her husband, Frank Klawinski, on the 15th day of May, 1913, while in its employ. That a Committee of Arbitration was duly formed which, after hearing the parties, made an award that respondent pay to said applicant the sum of $5.24 per week for a period of 300 weeks. That thereafter an appeal was taken by respondent from such award to said board on the ground that deceased did not receive an injury arising out of and in the course of his employment. That on the 20th day of November, 1913, an order was made by said board, affirming the award of said com- mittee. The facts involved in this cause appear in the agreed state- ment hereto attached. The board does certify that said statement of facts is correct." The following is the stipulation adopted by respondent board as its finding of facts in the case: "STATE OF MICHIGAN Before the Industrial Accident Board. "Katherine Klawinski, Applicant, v. "Lake Shore & Michigan Southern Railway Company, Respondent. "It is hereby stipulated and agreed between the parties hereto by their respective attorneys that the facts out of which controversy in 196 MICHIGAN WORKMEN'S COMPENSATION CASES. the above entitled cause arises and which it is desired may be made a part of the return to the writ of certiorari heretofore issued from the Supreme Court in this cause to said Industrial Accident Board, are as follows: "Frank Klawinski, applicant's husband, was employed prior to and on the 15th day of May, 1913, by respondent as a section laborer. On said date he was working as a member of a section gang of six men on respondent's roadway near Bronson, Mich. During the afternoon of that day a violent wind and rain storm arose. The foreman of the gang said, 'Boys, we better get out of the storm.' There was a barn near by, where the section gang had been in the habit of taking refuge from storms. The assistant foreman said, 'Come and go to the barn.' The foreman directed one of the men, named Kolassa, to go for the coats and waited for him. While he did so, the rest of the gang, including Klawinski, went to the barn, the foreman and Kolassa going to a nearby tenant house. While in the barn, and during said storm, Klawinski was killed by a bolt of lightning. During the time the men were in the barn no work was performed. At such time as they had previously gone in this barn for shelter the men had been paid for their time and were so paid on this occasion. The assistant foreman was subject to the authority of the foreman and had charge of the men during his absence. It was in the presence of the fore- man that he said, 'Come and go to the barn.' " The only contention in the case made by appellent is that the death of Frank Klawinski, for which compensation is asked by and was granted to his widow, did not result from "a per- sonal injury arising out of and in the course of his employ- ment," and within the meaning of the workmen's compensa- tion law, and therefore the Industrial Accident Board erred in affirming the award of the committee of arbitration. The proposition is fundamental that a claimant is entitled only to an award of compensation for "a personal injury aris- ing out of and in the course of his employment." To deter- mine whether the injury in the instant case is within the meaning of the law and arose "out of and in the course of his employment" we must consider the nature and character of that employment. Decedent was employed at the time as a section laborer, one of a section gang of six men, working upon defendant's roadway at the usual and ordinary work performed by rail- road section men, in which it may be said as a general propo- KLAWINSKI vs. L. S. &. M. S. RAILWAY CO. 197 sition there is no use of or work performed in connection with electrical machinery or appliances, nor any unusual proxim- ity to such machinery or appliances. There is no doubt that it was the legislative intent to compensate workmen for in- juries resulting from industrial accidents, and that such com- pensation is charged against the industry because it is respon- sible for the injury. As far as the instant case is concerned the scope of the Eng- lish statute may be considered identical with the Michigan workmen's compensation law. Several cases have been passed upon by the English courts arising under the English law where compensation was sought for injury by lightning and, except in cases where the employment necessarily placed the employee at the time of his injury in a position subjecting him to unusual risk from lightning, compensation has been de- nied. In a case identical with the instant case, where a workman employed as a road laborer picking stones and clearing out gutters along a highway, during a thunderstorm was killed by lightning, the court held that the accident causing death did not arise out of the workman's employment. The court said: "I am unable to find any special or peculiar danger from lightning to which these men (deceased and his companion) were exposed from working on the road. No expert or other evidence was offered to me that their position on the road exposed them to any greater risk of being struck by lightning than if they had been working in a field or a garden or a factory. The antecedent probability that they would be struck by lightning was no greater in their case than it was in the case of any other person who was within the region over which the thunderstorm passed." Kelly v. Kerry County Council, 42 Ir. L. T. E. 23, 1. B. W. C. C. 194. This question has been before the industrial commission of Wisconsin in the case of Lindauer O'Connel Co. vs. Hoenig, where the widow of John Hoenig, who came to his death by a stroke of lightning while he was employed by the Company at 198 MICHIGAN WORKMEN'S COMPENSATION CASES. work on a dam in the Fox River, taking planks out of water above the dam, filed a claim for compensation on a< count of his death. Among other things, the commission foun< as a fact that "at the time and place of the injury to Johi Hoenig resulting in his death, deceased was not exposed to hazard from lightning stroke peculiar to the injury (indus try), or substantially differing from the hazard from light- ning of any other out-of-door work," and, further, that hi death "was not proximately caused by any accident within th< meaning of the term as used in chapter 599, Laws of Wiscon- sin, 1913." In a memorandum opinion filed in the case, th< commission, among other things, said : "Lightning stroke is not popularly spoken of as an accident when it comes from the action of the elements without the agency of niai When the agency (industry) through the agency of man combine with the elements and produces injury to the employee by lightning stroke, it may well be said that the injury grows out of the employ- ment and is accidental. Such has been the decision of the Englisl courts under the English compensation act. We are aware that th( language of the English act differs from the language of our act, bul if we accept the construction of the legislative committee which drei the act, then we find the meaning of the two acts in this res] identical. Clearly, the industry may be and ought to be charge with the burden resulting from hazards of the industry itself. * * We have no desire to pass on the question of public policy. That function is wholly within the province of the legislature. We merely desire to correctly interpret the legislative intent. The legislative committee in its report says that 'compensation shall be paid when the injury grows out of the employee's employment it makes no dif- ference who is to blame; it is sufficient that the industry caused the injury.' So in the case of lightning stroke, if we can find as a fact that the injury grew out of the employment, or that the industry caused the injury, then undoubtedly compensation should be paid. "Assuming the law to provide compensation for industrial acci dents only those growing out of the employment and caused by the industry we must approach the consideration of each case of injury by lightning on the question of fact. Did the injury grow out of the employment and did the industry cause the injury? The act provides for compensation for 'personal injuries accidentally sustained * * where the injury is proximately caused by accident.' We are of the opinion that this language refers to industrial accidents; those causec by the industry and chargeable to the industry, and does not apply to KLAWINSKI vs. L. S. &. M. S. RAILWAY CO. 199 injuries resulting from those forces of nature described in the com- mon law as acts of God, such forces as are wholly uncontrolled by man." The prayer for compensation was denied and the case dis- missed. Our quotations from the foregoing opinion are made from a certified copy which was furnished the court by counsel for appellant, who stated that they were unable to find that the opinions of the industrial commission of Wisconsin were offi- cially published. It is our opinion that in the instant case claimant's hus- band did not come to his death as the result of "a personal injury arising out of and in the course of his employment," within the meaning of the workmen's compensation law. It is clear from the stipulated facts that this injury was in no way caused by or connected with his employment through any agency of man which combined with the elements to produce the injury; that plaintiff's decedent by reason of his employ- ment was in no way exposed to injuries from lightning other than the community generally in that locality. Under the stipulated facts in the case the Industrial Acci- dent Board was in error in affirming the award of the com- mittee of arbitration, and its decision and determination is hereby reversed and set aside. 200 MICHIGAN WORKMEN'S COMPENSATION CASES. SUPREME COURT. CHARLES WEAVER, .Appellee and Claimant, vs. MAXWELL MOTOR COMPANY, Defendant and Appellant. MASTER AND SERVANT INJURIES TO SERVANT COMPENSATION. Act No. 10, Pub. Acts 1912, pt. 2, 9, provides that, while the in- capacity for work resulting from an injury is total, the employer shall pay a weekly compensation equal to one-half of the em- ploye's wages, but not to exceed $10. Section 10 declares that, while the incapacity is partial, the injured employe shall be en- titled to compensation equal to one-half the difference between his average weekly wages before the injury and those he is able to earn thereafter, that for the loss of an eye he shall recover as compensation 50 per cent of the average weekly wages during 100 weeks, and that the loss of both eyes or both legs shall constitute a total and permanent disability. The claimant had in a previous accident lost one eye. Thereafter he lost his re- maining eye. HELD: That the injury could not be considered as a total dis- ability, and he was entitled only to one-half of his weekly wages for 100 weeks. Certiorari to Industrial .Accident Board. Proceedings by Charles Weaver, under the Workmen's Compensation Act, against the Maxwell Motor Company, to obtain compensation for personal injuries. The claimant was awarded compensa- tion by the Industrial Accident Board, and the employer brings certiorari. Remanded for further proceedings. Fred L. Vanderveer of Detroit (Cummins, Nichols & Rhoads of Lansing, of counsel), for appellant. Person, Shields & Silsbee, of Lansing, for appellee. MOORE, J. This case is certiorari to the Industrial Acci- CHARLES WEAVER vs. MAXWELL MOTOR CO. 201 dent Board. The facts are stipulated. We quote sufficiently for the purposes of this case: "The character and nature of the injury and the result thereof is as follows: The end of a crowbar struck me in the left eye, causing an injury which has permanently destroyed the sight of this member. Due to an injury received about seven years ago while working in a dye works, applicant received an injury which cost him practically the total loss of sight of the right eye. At the present time the sight of both eyes is limited only to a perception of light. Applicant re- ceived no injury to his right eye due to the accident of July 3rd, 1913, to the left eye. * * * "Applicant contends that by reason of the loss of his left eye, due to the accident of July 3rd, 1913, and the loss of the right eye, due to the accident of some seven years ago that he is now totally and permanently incapacitated from work and therefore entitled to com- pensation up to the limit allowed by the act, viz: four thousand dol- lars. Respondent claims that it is liable only for the injury which was received while in its employ, viz: the loss of the left eye, and should pay compensation for but one hundred weeks for a total amount of one thousand dollars." The ruling of the Industrial Accident Board was as follows : "This cause having come on to be heard before the full board on stipulation and waiver, agreeing among other things that the applicant by the accident in question lost the sight of his only eye, the result being blindness and total incapacity for labor, and the same having been argued by counsel and written brief filed therein, and due con- sideration thereof having been had by the board; it is ordered and adjudged that said applicant is entitled to receive and recover from said respondents compensation at the rate of $10.00 per week for a period of four hundred weeks from the date of accident in said cause, said compensation to be paid in weekly payments in accordance with the provision of the Workmen's Compensation Law." The questions involved call for a construction of portions of Act 10 Extra Session of 1912. Section 9, Part 2 of the Act reads : "While the incapacity for work resulting from the injury is total, the employer shall pay or cause to be paid, as hereinafter provided, to the injured employe, a weekly compensation equal to one-half his average weekly wages, but not more than $10.00 nor less than $4.00 a week ; and in no case shall the period covered by such compensation 202 MICHIGAN WORKMEN'S COMPENSATION CASES. be greater than five hundred weeks, nor shall the total amount of all compensation- exceed $4,000." Section 10, of Part 2, provides in part as follows: "While the incapacity for work resulting from the injury is partial, the employer shall pay or cause to be paid, as hereinafter provided, to the injured employe, a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than $10 a week; and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of injury. In cases included by the following schedule, the disability in each such case shall be deemed to continue for the period specified and the compensation so paid for such injury shall be as specified therein, to-wit: * * * For the loss of an eye, fifty per centum of average weekly wages during one hundred weeks; the loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof, shall constitute total and permanent disability to be compensated according to the provisions of Section 9." Counsel, upon the oral argument and in "the printed briefs stated that after diligent search they were unable to find a case in point. Since the case was submitted counsel for the claimants has called the attention of the court and opposing counsel to the case of State ex. rel. Garwin vs. District Court, et al., 151 N. W. K. 910, which is a case on all fours as to the facts. It is not a precedent in the instant case however, be- cause the Minnesota Statute contains language not found in the Michigan Statute reading "if an employe receive an injury which of itself would only cause permanent partial disability, but which combined with a previous disability does in fact cause permanent total disability, the employer shall only be liable for the permanent partial disability caused by the sub- sequent injury," and it was held the compensation should be based upon the permanent partial disability, and not as claimed by the appellant on the basis of permanent total dis- ability. It must be confessed that the provisions of the Michigan Statute are so ambiguous as not to be free from doubt as is evidenced by the diverse constructions put upon it by the able CHARLES WEAVER vs. MAXWELL MOTOR CO. 203 counsel employed in the case before us. All of its provisions however should be given effect if possible. The compensation fixed in Section 9 must be based upon the fact that the total incapacity for work resulted from the injury. Section 10 deals with the partial incapacity for work re- sulting from the injury and fixes the compensation and then proceeds "for the loss of an eye fifty per centum" etc., * * * "the loss * * * of both eyes * * * shall constitute total and permanent disability." In the instant case the loss of the first eye was a partial disability for which if our Workmen's Compensation Law had been in existence the then employer would have been liable, and for which disability the present employer was in no de- gree the cause. The loss of the second eye standing by itself was also a partial disability and of itself did not occasion the total disability. It required that in addition to the results of the disability occasioned by the accident of seven years ago, there should be added the results of the partial disability of the recent accident to produce the total disability. The ab- sence of either accident would have left the claimant partially incapacitated. We think it clear the total incapacity cannot be entirely attributed to the last accident. It follows that the compensation should be based upon partial incapacity and it is so ordered. The case will be remanded for further proceedings. 204 MICHIGAN WORKMEN'S COMPENSATION CASES. SUPREME COURT. A. HARRY GIGNAC, Claimant and Appellee, vs. STUDEBAKER CORPORATION, Contestant and Appellant. WORKMEN'S COMPENSATION WILFUL INTENTIONAL MISCONDUCT. Claimant, a car checker, was injured while passing between cars to which an engine was attached. He placed his foot on a coupling and when the engine backed, his foot was caught and injured. HELD: Claimant was not guilty of such wilful misconduct as would preclude his receiving compensation under the terms of the Workmen's Compensation Law. Certiorari to the Industrial Accident Board, to review the order of the board in awarding compensation to A. Harry Gig- nac ; while in the employ of the Studebaker Corporation. Af- firmed. F. J. Ward, of Detroit for defendant and appellant. No appearance for claimant. BROOKE, C. J. The facts involved in this case may be briefly stated as follows : The claimant, a young man about 20 years of age, was employed by the defendant corporation as a checker. At the rear of the plant operated by appellant was a side-track of the railroad company, running along the side of the platform where empty cars were placed to be loaded with automobiles. It was claimant's duty to check each auto- mobile as it was placed in the car. When the string of cars was loaded it was customary to remove it to anothei . track a short distance away from the platform. On the evening be- fore the accident claimant had checked a string of cars which stood beside the platform. Returning to his work the follow- A. HARRY GIGNAC vs. STUDEBAKER CORPORATION. 205 ing morning, he found that those cars had been removed from the front of the platform to the other side-track. Desiring in assure himself that he had properly checked the automo- biles in this particular string of cars, he crossed over to the track upon which they stood, and there made the necessary examination. Returning to the plant he found that in his ab- sence another string of cars was being placed upon the track in front of the platform, the engine being still attached there- to. Without stopping to see where the trainmen were and without knowing but what they were signalling this train to back up or go ahead, he attempted to cross through between the watertank and the end car and in so doing he placed his right foot on a coupling. The engine came back and caught his foot, crushing it so that it was necessary to amputate his five toes. Compensation for said injury was allowed by the arbitra- tion board, which award was afterwards affirmed by the In- dustrial Accident Board. But one question is raised upon the record. It is the claim of the appellant that the claimant was guilty of intentional and wilful misconduct as a matter of law. Section 2 of part 2 of the Public Acts of Michigan, Ex- tra Session, 1912, is as follows: "If the employe is injured by reason of his intentional and wilful misconduct, he shall not receive compensation under the provisions of this act." Appellant cites and relies upon the following cases: John- son v. Marshall Sons & Co., 22 T. L. R. 565, 75 L. J. K. B. 868 ; Hill v. Grandy Consolidated Mines, 12 B. O. 118, 1 B. C. W. 436; Johnson v. Marshall Sons & Co., 94 L. T. 828; 8 W. C. C. 10; Leishman v. William Dixon, 47 Scotch L. R. 410, 3 B. W. C. C. 560 ; John v. Albion Coal Co., 4 W. C. C. 15 ; George v. Glasgow Coal Co., 78 L. J. K. B. 47, 25 T. L. R. 57. These cases all arose in foreign jurisdictions and under statutes containing somewhat different language from that used in the Michigan Act. The question has twice been presented to this court, in the case of Clem v. Chalmers Motor Co., 178 Mich. 206 MICHIGAN WORKMEN'S COMPENSATION CASES. 340, and again in the case of Rayner v. Sligk Furniture 180 Mich. 168. While it is quite clear that the claimant's injury wi brought about by his own gross negligence, we are of opinioi that it cannot be said as a matter of law that he was guilty such intentional and wilful misconduct as would defeat hii recovery. Our own adjudicated cases cited above are con- clusive upon this point. The judgment is affirmed. GEORGE HIRSCHKORN, Claimant and Appellee, vs. FIEGE DESK COMPANY, and MICHIGAN WORKMEN'S COMPENSATION MUTUAL INSURANCE COMPANY, Respondents and Appellants. 1. MASTER AND SERVANT WORKMEN'S COMPENSATION PARTIAL Loss OF EYE. On ceritorari to an award of the Industrial Accident Board allow- ing thirty-five weeks' compensation for the partial loss of claim- ant's eye, the award could not be sustained under section 9, Act No. 10, Extra Session 1912, 2 How. Stat. (2d Ed.) 3956, relating to total incapacity, nor under section 10 of the statute, unless its provisions for partial incapacity cover such injury, said section providing that the employer shall pay weekly com- pensation for partial incapacity to work. 2. SAME PARTIAL INCAPACITY. No support for an award for the partial loss of an eye can be found in the schedule of injuries found in said section 10; the provi- sions of the statute relate only to the loss of an eye and an award GEORGE HIRSCHKORN vs. FIEGE DESK CO. 207 on the theory of future incapacity must be restricted to claim- ant's earning capacity in the employment in which he was injured at the time of the accident. Accordingly, a claimant who con- cedes that he could do his work as well after his injury as before and is receiving equal wages, could not obtain compensation under the Workmen's compensation law although it was found by the accident board that the usefulness of the injured eye was im- paired to an extent of one-third of its vision. Certiorari to the Industrial Accident Board. Submitted November 24, 1914. Decided January 29, 1915. George Hirschkorn presented his claim to the Industrial Accident Board against the Fiege Desk Company for injuries sustained in its employ. From an order awarding compen- sation contestants, Fiege Desk Company and Michigan Work- men's Compensation Mutual Insurance Company, bring cer- tiorari. Reversed and award vacated. i Person, Shields & Silsbee, for claimant. Beaumont, Smith & Hawis, for contestants. BIRD, J. While the claimant was employed by the Fiege Desk Company at Saginaw, operating a certain machine, a piece of emery flew into his left eye and injured it. The emery was removed, but the eye became inflamed and iritis set in. He was totally incapacitated for work for nine weeks, and full compensation therefor was paid to him by respondents. When claimant returned to work, the inflammation and iritis had subsided and his recovery was complete, save for the fact that the injury left a scar in the center of the cornea, covering the pupil, which causes a blur and prevents him from seeing an object clearly. This condition reduced the vision of his eye nearly one-half, and is permanent, but it is not thought the vision will be further reduced as a result of the injury. Since claimant returned to his work, he has been doing the same work as before the injury, arid is receiving the same wages. On this state of facts, the Board made a further allowance, and in so doing, said in part: 208 MICHIGAN WORKMEN'S COMPENSATION CASES. "That, the usefulness of the left eye of applicant having been destroyed by said injury to the extent of more than one-third, and somewhat less than one-half, the applicant was entitled to an award of 35 weeks' compensation in addition to the amount theretofore paid, that being the fair and reasonable percentage of the 100 weeks' com- pensation which the law provides for the full loss of the eye." This award is questioned by respondents, and it is argued that there is no authority in the law by which such an award can be justified. If the award is to stand, some authority in the law must be found to support it. It is obvious that it can- not be sustained under Act No. 10, part II, 9, Pub. Acts, 1912 (Extra Session), because claimant is not wholly incapa- citated. It must then be sustained, if at all, under section 10, providing for partial incapacity. Section 10 provides that: "while the capacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employe, a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter," etc. There is then added to the section a schedule of specific in- juries fixing the number of weeks for which compensation shall be paid. The partial loss of an eye does not appear in the schedule. It deals with nothing less than the loss of one eye. It is therefore clear that no support can be found for the award in the schedule. Under the general power confer- red by Sec. 10 upon the Board, an award might be made for such an injury on the theory of a future incapacity in other employment, were they not restricted in determining the loss "to his earning capacity in the employment in which he was working at the time of the accident." Section 11. Inasmuch as claimant concedes that he can now do his work as well as before the injury, and that he is receiving the same wages therefor, we are unable to see that the Board had any authority under the general power granted by section 10 to award claimant any relief. The award made by the board was a very equitable one, and is one which we would prefer to sus- MILLER vs. RIVERSIDE STORAGE & CARTAGE CO. 209 tn in. if we could do so without attempting to amend the law by judicial construction. It appears to be, however, an exi- gency which the law has not provided for. We think the relief in such cases lies with the Legislature rather than with the courts. The award must be reversed and set aside. SUPREME COURT. BLANCHE MILLER, Claimant and Appellee, vs. RIVERSIDE STORAGE & CARTAGE COMPANY, and LONDON & LANCASHIRE GUARANTEE & ACCIDENT COMPANY, Contestants and Appellants. 1. WORKMEN'S COMPENSATION ACT DEPENDENCY QUESTION OF FACT. Whether a person not conclusively presumed to be wholly dependent upon the deceased servant for support, but falling within the class which may be partially dependent, under the Workmen's Com- pensation Act, is dependent, is a question of fact to be determined as of the date of the accident to the employe. 2. WORKMEN'S COMPENSATION ACT DEPENDENCY EVIDENCE OF. In a proceeding under the Workmen's Compensation Act for re- covery for the death of a servant, evidence held to warrant a finding that claimant, a sister of deceased, was partially dependent on him for support. Certiorari to Industrial Accident Board. Claim by Blanche Miller against the Riverside Storage 27 210 MICHIGAN WORKMEN'S COMPENSATION CASES. Cartage Company and the London & Lancashire Guarantee & Accident Corporation for compensation for the death of a ser- vant. An award by the committee of arbitration being ap- proved by the Industrial Accident Board, contestants bring certiorari. Affirmed. Clark, Lockwood, Bryant & Klien, of Detroit, for claimant. Florian, Moore & Wilson, of Detroit, for defendants. OSTRANDER, J. Thomas Mille'r was employed by the Riverside Storage & Cartage Company, at a wage of $15.50 per week. He died from an injury found to have been sustained by him in the course of and growing out of his employment, the injury being received September 2, 1914. Claimant is his sister. Whether she was dependent upon him, within the meaning of the statute, is the question presented, it being claimed there was no evidence of dependency. The award of the committee of arbitration was approved by the Industrial Accident Board. The award was: "That the said applicant, Blanche Miller, is entitled to receive and recover from said respondents, Riverside Storage & Cartage Company, and London & Lancashire Guarantee & Accident Company the sum of Three (3) dollars per week for a period of three hundred (300) weeks, from the 2nd day of September, 1914, and that said applicant is entitled to receive and recover from said respondents on this date thirty-three dollars, being the amount of such compensation that has already become due under the provisions of law, the remainder of said award to be paid to said Blanche Miller, applicant, by said re- spondent in weekly payments, commencing one week from the date of the award." Whether one is or is not dependent upon another for sup- port is, of course, a fact. By the terms of the act persons standing in certain relations to a deceased employe are con- clusively presumed to be wholly dependent upon him for sup- port. Claimant is not one of them, nor were there any 'such dependents of the deceased employe. She is, however, a per- son who may be a dependent. It is provided that if the em- ploye leaves dependents only partly dependent upon his earn- MILLER vs. RIVERSIDE STORAGE & CARTAGE CO. 211 ings for support at the time of his injury, the weekly compen- sation to be paid (by the employer) shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employe to such partial dependent bears to the annual earnings of the deceased at the time of his injury. Questions as to who con- stitute dependents and the extent of their dependency are to be determined as of the date of the accident to the employe and their right to any death benefit becomes fixed as of such time, irrespective of any subsequent change of conditions. Testimony for the claimant, who is 22 years old, tended to prove that from the time he was 16 or 17 years old her de- ceased brother, who was seven years her senior, had contrib- uted to her support. Claimant went to Detroit when she was eighteen years of age, and, with her brother's aid, educated herself to be a stenographer. She was employed by one con- cern some two and one-half years, first at eight dollars a week, then at ten dollars, and for some time before her brother was injured at twelve dollars a week. She lost some time, but was paid her full salary. She quit work in August, 1914, go- ing on a visit to her old home in Colorado, and was in Colo- rado when her brother was injured. She testifies that her brother, regularly, gave her six dollars a week until she left Detroit. He then gave her seventy-five dollars for her journey. From February 8, 1913, to August 17, 1914, claimant had on deposit in a savings bank seventy dollars. She took music les- sons "off and on," while in Detroit, and, not being strong, physically, paid out considerable money the last in May, 1914 for medical attention. At the hearing in December, 11H4, she was employed at ten dollars a week. She went to Colorado, she says, for rest, being nervous and not doing her work well. The deceased brother received as much as eight- een dollars a week, at one time, at one place where he worked in Detroit. He received, occasionally, tips, or extras, she says, while employed by the respondent. Claimant paid for room and breakfast and dinner five dollars a week, for lunches twenty-five cents each, for car fare seventy-five cents a week. 212 MICHIGAN WORKMEN'S COMPENSATION CASES. She purchased clothing during the period from September, 1913, to September, 1914, $112.25. She made a visit to Penn- sylvania during the time she lived in Detroit. She did no work while upon her last visit to Colorado, and paid nothing for board or room. She received nothing during that period from her brother. The arrangement they had made was that he was to go to Colorado and return to Detroit with her. Upon cross-examination, she computed her expenses for the year ending in September, 1914, including room, food, cloth- ing and street car fare, at $489.25. And counsel say that, be- ing in a position to earn, and earning, when at work, a sum equal to $520, or more, annually, she was not, upon her own computation and statement, dependent upon any one she was independent. It is probable that in every case where a brother or sister of a deceased employe claims relief under the statute, the evidence of dependency will necessarily be evidence of con- tributions made by the deceased, because in such cases the support furnished by either to the other, or the service ren- dered by either to the other, will be voluntary. But voluntary contributions of money, support, or service, by a brother to a sister, or by a sister to a brother, are not, necessarily, evi- dence of the dependency of either, or of the extent of depend- ency, within the purview of the statute. The Legislature has not denned "dependent"; it is probable that no standard for the determination of dependency in fact can be formulated. In a case in which a father sought compensation on- account of the death of a son who had contributed to his father a cer- tain average sum weekly, it was said the question is whether the father: "Made a loss by the death of his son, in consequence of there no longer being a source of assistance to him from his son's earnings, in the work at which he was killed, and on which source, from his own inability to earn wages himself, he was wholly or partially dependent." Arrol under any appointment, or contract of hire, express or implied, oral or writ- ten, except any official of the State, or of any county, city, township, incorporated village or school district therein." The decision of the Industrial Accident Board can be GERTRUDE L. BLYNN vs. CITY OF PONTIAC. 237 affirmed only if it is found that a policeman of the City of Pon- tiao, under the facts stipulated, is an employe and not a pub- lic officer. Policemen generally are charged with the especial duty of protecting the lives of citizens within certain territorial limits, and of preserving the public peace. The preservation of the public peace being a matter of public concern, it has therefore been said that policemen may be considered as public officers. As a rule, they are appointed under authority given by the State, and therefore have generally not been regarded as servants or agents or as otherwise bearing a contractual re- lation to the municipality. Schmatt v. Dooling, (140 S. W. 197, 145 Ky. 240, 36 L. R. A. (N. S.) 881, and note, Am. & Ehg. Ann. Cas. 1913 B, 1078). Chief Justice Marshall distinguished an office from a sim- ple employment in the case of United States v. Maurice, 2, Brock. U. S. 96, 103, Fed. Cas. No. 15747, as follows: "Although an office is an 'employment,' it does not follow that every employment is an office. A man may be certainly employed under a contract, express or implied, to do an act, or perform a service, with- out becoming an officer. But if the duty be a continuing one, which is denned by rules prescribed by government, and not by contract, which an individual is appointed by government to perform who enters on the duties appertaining to his station, without any contract defining them, if those duties continue, though the person be changed, it seems very difficult to distinguish such a change of employment from an office or the person who performs the duties from an officer." In the case of T.hroop v. Langdon, 40 Mich. 673, Mr. Justice Oooley expresses the distinction as follows : "The officer is distinguished from the employee in the greater im- portance, dignity, and independence of his position; in being required to take an official oath, and perhaps to give an official bond; in the liability to be called to account as a public offender for misfeasance or nonfeasance in office, and usually, though not necessarily, in the tenure of his position." The court of criminal appeal of Texas has decided that "a policeman of a city is a public officer holding his office as a 238 MICHIGAN WORKMEN'S COMPENSATION CASES. trust from the State, and not as a matter of contract betweei himself and the city ; the word applying equally to every mem- ber of the police force," and that "a policeman is a public of- ficer of the State expressly charged by the statutes with en- forcing a large body of the criminal law." Ex parte, Preston, (Tex. Or. App.), 161 S. W. 115. See also WoodJwll v. Mayor, 150 N. Y. 450, (44 N. E. 1038) ; 2 McQuillan on Municipal Coi porations, p. 940 ; 5 Id. p. 5049 ; 28 Cyc. p. 497. Counsel for applicant does not, however, take exception t< these authorities as to the status of a policeman generally, bui says that they do not bear upon the situation here presented, because the City of Pontiac in its charter has determined il and has classified its policemen as employes. Assuming thai the position of counsel for the applicant is tenable, that the city has the authority under the home rule provision of th< Constitution to determine that a policeman, who generall; would be regarded as an officer, should for the purposes of th< workmen's compensation law be regarded as an employe (which we do not decide), we are not satisfied that such a con- clusion is the proper one to arrive at upon a careful study ol the various charter provisions with reference to the police forc< of the city of Pontiac. A study of these various provisions is convincing that it was the purpose therein manifested to leave the policemen in the category of appointive officers, and not to make them merely employees. This, we think, is apparent from the wording of sections 5 and 6 of chapter X of the char- ter, which provides as follows: "Sec. 5. The Police Department shall consist of the chief of police and as many subordinate officers, policemen, and employees as the Commission shall by ordinance determine. "Sec. 6. The commission shall by ordinance make and establisl rules for the regulation and government of the police department, pr< scribe and define the powers and duties of the officers and employees of such department, and shall prescribe and enforce such police regu- lations as will most effectually preserve the peace and good order of the city, preserve the inhabitants from personal violence, and protect public and private property from destruction by fire and unlawful depredation." GERTRUDE L. BLYNN vs. CITY OF PONTIAC. 239 It is clear that in the department of police it is sought to distinguish between officers and employees, and in section 5 policemen are spoken of independently of employes. It is true that section 10 of chapter VII, which provides that each member of the commission shall have authority to em- ploy such employes as may be necessary to conduct their sev- eral departments in an efficient manner, and that such em- ployees may be discharged at the pleasure of the member mak- ing such employment, is the only section in the charter which provides for the appointment of policemen. But, in view of the distinction clearly made in the sections with reference to the police department, the word "employees" used in this sec- tion should not be held to have been used in any other than the comprehensive sense of including all persons serving the public in these departments, whether filling an appointive of- fice or merely occupying a temporary contractual relation to the municipality as an employe; and this use of the word should not be held to deprive a policeman of the city of Pon- tiac of the dignity and importance which it is generally recog- nized attaches to his position. It is said that in the case of Attorney General v. Cain, 84 Mich. 223 on page 227 (47 N. W. 484 on page 485), it was held that a policeman was not a public officer. But that was a quo warranto proceeding, and the court said : "We do not think the position of policeman, under these circum- stances, is such an office as authorizes the Attorney General to file an information by QUO warranto in this Court to test the title to the po- sition. It was said in People v. DeMill, 15 Mich. 182, (93 Am. Dec. 179,) that " 'There are grades of positions denominated "offices" which do not rise to the dignity of being entitled to the notice of the attorney general by information.' See, also, Throop v. Langdon, 40 Mich. 686. "It is certain that the intent of the charter is that these policemen shall be subject to the orders and direction of the common council, and that such council has the power at any time to remove them." This case was referred to in the later case of Trainor v. Board of Auditors, 89 Mich. 162 (50 N. W. 809, 15 L. R. A. 95). While this latter case says that a policeman in the city 240 MICHIGAN WORKMEN'S COMPENSATION CASES. of Adrian is not a public officer, referring to Attorney General v. Cain, supra., it must be said that this decision goes only to the extent of holding that since in that city policemen were removable by the council at pleasure, it would be useless for the attorney general to institute proceedings to determine who was entitled to the position. Under these circumstances it was not such an office as would authorize the attorney general to file an information by quo warranto in this court to test the title to the position. Being satisfied that a policeman is an appointive officer un- der the provisions of the charter of this city, required to take an official oath of office, which it appears was done in this case,, it follows that he came within the exception in subdivision 1,. 7, pt. 1, Act No. 10, Public Acts 1912 (Extra Session 2d Ed, 3945), and is not an employe, as defined by said act, and therefore does not come within its provisions. Any effort to enlarge the scope of this act should be addressed to the Legis- lature. The decision of the Industrial Accident Board will be re- versed, and the claim of the applicant is disallowed. BERT H. GROVE vs. THE MICHIGAN PAPER CO. 211 SUPREME COURT. BERT H. GROVE, Applicant and Appellee, vs. THE MICHIGAN PAPER COMPANY, and FIDELITY & CASUALTY COMPANY OF NEW YORK, Respondents and Appellants. MASTER AND SERVANT PERSONAL INJURIES WORKMEN'S COMPENSATION ACT INDUSTRIAL ACCIDENT BOARD. Upon appeal from findings of the Industrial Accident Board de- termining that claimant received his injuries as claimed by him from a strain which he received in lifting, where there was evi- dence tending to support the finding of the board, the judgment must be affirmed. Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] 3939 et seq.). Certiorari to Industrial Accident Board. Submitted No- vember 13. 1914. Decided March 17, 1915. Bert H. Grove presented his claim against the Michigan Paper Company for compensation to the Industrial Accident Board, which granted the award. Contestant and the Fidelity & Casualty Company of New York, its insurer, bring certiorari. Affirmed. Charles H. Ruttle, for appellants. Person., Shields A Silsbee, for appellee. MOORE, J. This case is brought here by certiorari to the Industrial Accident Board. Mr. Grove claims that while he was in the employe of the Michigan Paper Company he re- ceived an accident which entitled him to compensation. By proper proceedings the case found its way to the Indus- 31 242 MICHIGAN WORKMEN'S COMPENSATION CASES. trial Accident Board, which affirmed that part of the award of the committee on arbitration, which established liability, but modified the amount of compensation allowed. In its return to the writ of certiorari appears the following: "The testimony taken on the hearing before the committee on arbitration was imperfectly taken and imperfectly transcribed; the testimony as actually transcribed, with the notes of the reporter show- ing omissions included, with the exception of qualifying questions being in narrative form, is hereto attached as Exhibit 4." A finding of facts is returned which reads as follows: "(1) The claimant, Bert Grove, was employed by one C. W. Bred- ing of Plainwell, Mich., in February, 1913, and had worked for him for several months prior thereto as a blacksmith. "(2) In March, 1913, the applicant, while so employed by said C. W. Breding, in the regular course of his duties shoeing horses, was suddenly jerked by one of the horses, causing a severe pain in the region of the groin. He continued to work for about two weeks and then went to see Dr. Stuck of Plainwell. Dr. Stuck gave him treat- ment and recommended that he see Dr. McNair of Kalamazoo. He went and saw Dr. McNair on April 5th, rested one day which was Sunday, and then returned to his regular work of horseshoeing, con- tinuing such work until about July 1, 1913. During the month of July he was on his brother's farm spending his time in resting and fishing and was feeling well. The trouble caused by the jerk from the horse, which appears to have been an aneurysm, had practically disappeared. "(3) On August 1, 1913, the applicant entered the employ of the Michigan Paper Company at Plainwell as a helper on the beaters at a wage of $2.00 a day; his duties being the lifting and moving of sacks of alum and sulphite and other material necessary in the manu- facture of paper, such sacks varying in weight from 100 to 200 pounds. "(4) On September 15, 1913, claimant, while loading a truck with the sacks mentioned, sustained the alleged accident, for which com- pensation is claimed in the following manner: 'I had lifted quite a number, but the last two days I was here the man who worked with me was sick and I had to do the work for two men. I was loading the truck, and stooped down to get the alum, and pulled one sack like this (motioned), and then I reached down like this (motioned) *.p pick up another and I felt this artery give way, * * * and I sat down on the floor.' "(5) That the accident of September 15, 1913, caused a rupture of the femoral artery in the right leg, which immediately necessitated BERT H. GROVE vs. THE MICHIGAN PAPER CO. 243 claimant's giving up his duties and undergoing an operation which was performed on September 26, 1913, at Kalamazoo, Mich. The con- dition of the Aneurysm at the time of the operation was very serious, being a pulsating tumor about four to six inches in diameter." It is the claim of the defendants that the condition of Mr. Grove is due to what happened at the blacksmith shop in Feb- ruary, 1913, and not to what happened September 15th, 1913; while it is the claim of Mr. Grove that he had recovered from the strain he received in the blacksmith shop, and that his present condition was due to what happened in September, 1913. It has already appeared that all the evidence taken before the board, is not returned. It also appears there is testimony in the record tending to establish each of these theories. This being the situation disclosed we do not understand that we are to weigh these conflicting claims. In Rayner vs. Sligh Furniture Company, 180 Mich. 168 (146 N. W. 665), JUSTICE KUHN speaking for the court, said: ''There being evidence to support this finding of fact by the terms of the act, (part 3, section 12, Act No. 10. Public Acts, Extra Session, 1912), it becomes conclusive." Counsel for appellants argue many interesting questions which we think it unnecessary to pass upon now. The judgment of the Industrial Accident Board is affirmed with costs against appellants. 244 MICHIGAN WORKMEN'S COMPENSATION CASES. SUPREME COURT. KATE VEREEKE, Claimant and Appellee, vs. CITY OF GRAND RAPIDS, Defendant and Appellant. MASTER AND SERVANT WORKMEN'S COMPENSATION INDUSTRIAL ACCI- DENT BOARD STIPULATION CONTRACTS AMOUNT OF COMPENSATION WAIVER. Where claimant and contestant agreed and stipulated, in order to avoid expense, that the Industrial Accident Board should con- sider a claim for compensation as a full board as if the ques- tions had been arbitrated and decision reached, also stipulating that the deceased earned $19.50 weekly, of which he contributed $12 to claimant, and where evidence was introduced at the hear- ing before the board by the claimant, without relying upon the alleged stipulation, and the board made an order granting $6 a week for three hundred weeks, the order of the board will not be reversed on the theory that it was bound by the amounts stated in the stipulation. Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] 3939 et seq.). Certiorari to the Industrial Accident Board. Submitted Jan- uary 14, 1915. Decided March 17, 1915. Kate Vereeke presented her claim for compensation for the accidental death of David Vereeke while he was employed by the city of Grand Rapids. An order awarding compensation is reviewed by claimant upon certiorari. Affirmed. Ellis d Ellis, for claimant. R. M. Ferguson, for defendant. MOORE, J. This is certiorari to the Industrial Accident Board, brought by Kate Vereeke as claimant against the city of Grand Rapids, for compensation for the death of her son, David Vereeke, who was killed while in the discharge of his KATE VEREEKE vs. CITY OF GRAND RAPIDS. 245 duties as an employe of the city of Grand Rapids. At the in- ception of this cause, the parties, desiring to avoid the expense and delay of arbitration, entered into a stipulation whereby they waived the action of arbitrators. The stipulation con- tained the following: "That the arbitration of the matters in difference between the par- ties hereto, provided for in said Workmen's Compensation Law, be and the same is hereby waived, and the decision of said matters is hereby submitted to the Industrial Accident Board, sitting as a full board, the same as if this cause had proceeded to arbitration under said law and the decision on arbitration therein had been appealed from and said cause thereby brought before the full board on appeal from such decision. It is further stipulated and agreed that- the decision of said board in this cause pursuant to this stipulation, and based upon the facts set forth herein, shall be valid and binding, and shall have the same validity, force, and effect as if said cause had proceeded in arbi- tration in due course, and was brought before the full board on appeal duly taken from the decision of an arbitration committee therein." The stipulation showed the amount earned was $19.50 a week of which he contributed to his mother $12.00 a week. This stipulation was signed on the 5th day of March, 1014. After the signing of it and before action was taken by the In- dustrial Accident Board, the father of the deceased, whom the mother had divorced, attempted to prevent the mother from obtaining any benefit under the Compensation law, and filed with the Industrial Accident Board objections to her claim, in- sisting she was not dependent upon her son. The return of the Accident Board contains the following: "That a petition was filed in said cause by Cornelius Vereeke, the former husband of the applicant, Kate Vereeke, claiming for reasons set forth in said petition that the applicant, Kate Vereeke, was not entitled to receive or recover any compensation in said cause; that said cause came on to be heard before the Board on due notice to all the parties, said hearing being held at the office of the Industrial Acci- dent Board on the 22d day of April, 1914, and that said Cornelius Vereeke did not appear at said hearing and did not offer or file any proofs tending to support his said petition; that on said hearing in said cause, said applicant, Kate Vereeke, was sworn as a witness in her behalf." 246 MICHIGAN WORKMEN'S COMPENSATION CASES. After counsel for Mrs. Vereeke concluded his examination of her the following occurred: "Mr. Reaves: Q. What other income did you have, Mrs. Vereeke,. besides the $12.00 Dave gave you? "A. John, my little boy, just commenced to work about a year ago next June, he ain't very strong, so he just got little odds and ends working in five-cent shows and like that. He went to school and worked after school in the Vaudette; he was usher there. "Mr. Reaves: Q. That was all the income you had? "A. John wasn't getting very much in the Yaudette, I got a little from him, and I had an old man there, I got some from him, too. "Q. The old man boarded there? "A. Yes, sir. "Q. How much did you get from him? "A. Four dollars. "Q. How long was he boarding there? "A. A couple of years. "Mr. Allen: He was your father? "A. Yes sir, he was my pa." No further explanation was made of her relations with her father or her son John. The Accident Board made an order allowing Mrs. Vereeke six dollars a week for three hundred weeks, and a present pay- ment of $124. Mrs. Vereeke seeks a review of this order claim- ing: "First: Assuming that the Board had the right to go outside of the stipulated facts, there was nothing in the evidence that could justify the decision of the Board. "Second: The parties having agreed upon the facts, the statute delegated no authority to the Board to disregard the agreement. "Third: The Board having authorized a stipulation, and the parties having stipulated, the agreement should be treated the same as a case made or a stipulation of facts by the parties in the case." A great many authorities are cited to show that the Indus- trial Accident Board was bound by the stipulation. We think it clear, however, that the purpose of the stipulation was to avoid the necessity of a hearing before arbitrators, and to get the direct action of the Industrial Accident Board. KATE VEREEKE vs. CITY OP GRAND RAPIDS. 247 Section 5, pt. 3, of Act No. 10, Public Acts, Extra Session, 1012. (2 How. Stat. [2d Ed.] 3973), reads: "If the employer, or the insurance company carrying such risk, or Commissioner of Insurance, as the case may be, and the injured em- ploye reach an agreement in regard to compensation under this act, a memorandum of such agreement shall be filed with the Industrial Accident Board, and, if approved by it, shall be deemed final and bind- ing upon the parties thereto. Such agreements shall be approved by said board only when the terms conform to the provisions of this act." Section 11 provides what shall be done if a claim for review is filed. It is apparent from the record that when the di- vorced husband denied the right of the claimant to an order for support growing out of the death of her son, that claimant and her counsel proceeded upon the theory that a hearing be- fore the Industrial Accident Board should be had. It was not then urged that the parties were bound by the stipulation but without objection the hearing was entered upon. It is not necessary to intimate what the situation would have been if the claimant had relied upon the stipulation, nor what the effect would have been if she had explained more in detail her relations with her father and her son John. She did not do either of these things. The order of the Industrial Board is affirmed. 248 MICHIGAN WORKMEN'S COMPENSATION CASES. SUPREME COURT. LILLIAN BAYNE, Claimant and Appellee, vs. RIVERSIDE STORAGE & CARTAGE COMPANY, Defendant and Appellant. MASTER AND SERVANT WORKMEN'S COMPENSATION ACT EVIDENCE CAUSE OF DEATH. Opinion evidence of two physicians that pneumonia did not result from injuries which decedent received in the course of his em- ployment, and which were followed by his decease, contradicted by plaintiff's experts who gave a contrary opinion, held, not to justify the court in reversing the finding of the industrial acci- dent board awarding compensation. Certiorari by the Riverside Storage & Cartage Company and Standard Accident Insurance Company to the Industrial Accident Board to review a finding of the board awarding com- pensation to Lillian Bayne for the death of her husband, Harry Bayne. Submitted April 29, 1914. Affirmed July 24, 1914. Keena, Lightner d Owtoby, for appellants. Frank C. Sibley, for claimant and appellee. OSTRANDER, J. Claimant's intestate, an employee of the Riverside Storage & Cartage Company, died September 9, 1913; the cause of death being pneumonia. Whether the pneu- monia was caused by an accident arising out of and in the course of decedent's employment was a question of fact, pre- sented first to a board of arbitration and afterwards to the commission, both of which bodies answered it in the affirma- tive. Claimant's decedent was apparently a strong and well man and was employed in the labor of lifting and moving household furniture and other objects. He quit work the morn- ing of August 27, 1913, after lifting, at apparent disadvantage, LILLIAN BAYNE vs. RIVERSIDE STORAGE & CARTAGE CO. 249 a heavy article, complaining that in lifting it he had hurt his back. He went to bed, and the next day a physician was called. In five days he became delirious. On September 6th Dr. Stockwell was called and had him removed to the hospital, where he died. Dr. Stockwell testified that when he examined the man on September 6th he displayed symptoms of pneu- monia of two or three days' duration, his vitality was lowered, his condition debilitated, and he was delirious. Both claimant and respondent were of opinion that a con- nection between the injury and the death could be established only by the opinions of men having extra knowledge of the sub- joct, and therefore physicians, other than the one who attended deceased, were called and their opinions taken. Conduct of the deceased prior to the alleged injury was laid before them, H appearing that he had danced on a boat on the evening of August 24, 1913, had become heated, and complained of being chilled ; that on August 25th and 26th he had worked as usual, making no complaints, had lifted and carried a heavy object in the afternoon of August 26th, and had complained that in setting it down he "must have kinked his back," and he said, on the morning of August 27th, that the jar of the wagon hurt his back when it crossed the street car track. Dr. Stockwell and Dr. Hitchcock testified there was no connection between the alleged injury and the pneumonia. Other physicians were of a contrary opinion, asserting the pneumonia to be directly caused by the injury. The case put by the plaintiff in certior- ari, namely, that the employer is not liable to his employee for the consequences of disease superinduced by a physical condition, the result of the labors of the employment, is not the case before us. There is before us opinion evidence, dis- puted it is true, that the direct cause of the pneumonia w^as the hurt or strain of the back suffered by deceased August 27th. We do not understand it to be contended that, if the injury directly caused the cause of death, the employer would not be liable. Assuming that the court would have the right to brush aside w r holly improbable expert testimony or correct the commission for not doing so, we do not feel warranted in 250 MICHIGAN WORKMEN'S COMPENSATION CASES, saying that the opinion evidence favorable to claimant is wholly improbable. There is therefore a dispute of fact, which the commission has determined. We find no error. SUPREME COURT. LEONE H. HILLS, Applicant and Appellee vs. FRANK W. BLAIR, ET AL., Respondents and Appellant. 1. MASTER AND SERVANT INDUSTRIAL ACCIDENT BOARD DEATH WORK- MEN'S COMPENSATION LAW. Where a section hand was killed while he was returning home at noon for dinner, being struck by a passing train, the burden rested on his representatives to show, in proceedings before the accident board, that death resulted from an accident arising out of and in the course of his employment. 2. SAME APPEAL AND ERROR CERTIORARI TO INDUSTRIAL ACCIDENT BOARD. Findings of the industrial accident board which are rupported by facts or inferences from the testimony must be taken as true on certiorari. 3. SAME EMPLOYMENT DINNER HOUR. Accidents to employees in the act of going to or from their work are not usually regarded as arising out of the employment or in the course thereof. 4. SAME RAILROADS. The fact that decedent was still on the premises of his master, at a considerable distance from the place at which his work was done, did not bring him within the exception to the rule which has been recognized in certain cases when the servant was so near the LEONE H. HILLS vs. FRANK W. BLAIR, ET AL. 251 place of his employment as in effect to be within the protection of the law. Certiorari to the industrial accident board. Submitted June 22, 1914. Decided July 24, 1914. Leone H. Hills applied for an award of compensation for the injury and death of her husband, Irwin E. Hills, an employee of Frank W. Blair and others as receivers of the Pere Mar- quette Railroad Company. From the award granted, defend- ants bring certiorari. Reversed. 0. C. Tra$k (McArthur & Dumiebacke, of counsel), for ap- plicant. Parker, Shields & Brown (8. L. Merriam and J. C. Bills, of i-ounsel), for respondents. STEERE, J. This is an appeal by respondents, as receiv- ers of the Pere Marquette Railroad Company, from an award of compensation made by the Michigan industrial accident board for the accidental death of Irwin Hills, at Williamston, Mich., on November 16, 1912, while he was an employee of said railway, as a section hand. The facts in the case as testified to by witnesses are practically undisputed. The controversy is over inferences which may be drawn from the facts proven, and conclusions of law thereon. On the day in question Hills was working during the fore- noon at his regular employment in a section crew along re- spondent's railway track east of Williamston. The crew re- turned to Williamston with their hand car an'd stopped for dinner at the hand car house by the south side of the track shortly after 11 o'clock, standard time, putting the car inside preparatory to taking their meal. As they were returning, the smoke of a train coming from the east was seen in the dis- tance. It was customary for the men to carry their dinners with them and eat together at or near where they were at work; but on this day deceased had not waited in the morn- Ing for his dinner to be put up by his wife, and hurried away 252 MICHIGAN WORKMEN'S COMPENSATION CASES. to his work, saying that if he could get excused he would be home to dinner. After the men had put the hand car into the car house and the others were proceeding to eat their noonday meal, Hills took his coat and told the foreman that he was go- ing home for his dinner, to which the foreman assented, and he hurried away. Just as he left the car house, the foreman, when reaching for his dinner pail, noticed a freight train com- ing from the east "about four or five pole lengths from the car house," meaning the distance between telegraph poles, and told Hills to look out for it. Answering that he would be all right. Hills hurried down the railway track in a westerly di- rection towards the station. The car house at which the sec- tion men ate their dinner was located 1,934 feet east of the station, while Hills' home was about half a block north of it; 225 feet west of the car house a street crossed the railway tracks intersecting a wagon road which ran east and west, parallel with the railroad and just to the north of it. One of the section hands saw Hills go west on the track as far as the street crossing. He could have left the railroad at that point by the public street and gone home along the wagon road on the same side of the railroad as his home. This road, how- ever, though open to the public, was not in good condition for travel. The men employed in the yards were accustomed to enter and leave at the station, going to the car house and else- where along the tracks as they found it most conveni- ent. There was also a footpath along the railroad right of way between the main track and a side track, upon which they could walk in safety. The freight train, which the foreman had noticed and warned Hills of, was coming from the east on the main track of f the railway and passed through the village of Williamston without stopping. It was the custom of such trains when approaching Williamston to shut off steam and slow down to from 8 to 12 miles an hour until they could catch the signal, when, if a stop was not indicated, they would increase their speed and proceed without stopping. No" stop signal was set for this train on the day in question, and it passed through the yards between the car house and the depot LEONE H. HILLS vs. FRANK W. BLAIR, ET AL. 253 at an estimated speed of from 15 to 18 miles an hour. The conductor and fireman of the train testified that before catch- ing the signal the train slowed down to 10 or 12 miles. A witness named Whipple, who was loading a car with hay at some sheds located 12 or 15 rods west of the hand car house, testified that as the train w r as approaching he saw a fellow coming from the west on a run pulling on his coat, and no- ticed him stop on the north side of the track and look to the cast: from his actions witness thought he was a brakeman waiting for the train, and that the train stopped, but "they hit up quite a clip just as soon as the engine got by there;" that this w r as about 50 rods from the place where the man was killed by the switch. Being asked if the man he then saw was deceased, he replied: "It was a man with a fur cap on, and when I see who was lying on the ground it looked just like the coat he was putting on and the cap he had on, and, that is all I know about it." A short time after the train had passed, the body of Hills was found lying beside the main track approximately 950 feet west of the hand car house and about 1,000 feet east of the depot near a stub switch, a lantern prong of which was bent to the west. There were no eye witnesses to the accident. The manner in which it occurred was a matter of inference from surrounding facts and circumstances proven. It was the theory in behalf of claimant that deceased was accidentally struck by the train as he was traveling along the track towards his home and thrown against the switch stand- ard which stood about 20 feet east of where his body was dis- covered. Respondents contended that shortly after leaving the car house, and near the highway crossing, deceased hoarded the train, which was moving slowest at that point, intending to ride as far as the depot, near his home, and drop off, but that as the train increased its speed on approaching the depot, after ascertaining that there was no signal set for s stop, he either jumped or fell, striking the switch standard, and was theiebv killed. 254 MICHIGAN WORKMEN'S COMPENSATION CASES. The industrial accident board apparently adopted claimant's theory that deceased walked, or ran, along the railway ahead of the oncoming train for a distance of 930 feet from where he left his fellow w r orkmen at the car house, before the train over- took him at the switch, when, as he started to pass by the light standard on the south near the track, he "walked a little too close to the car and was struck by the train and thrown against the light standard ; the force of the impact hurling his body about 20 feet to the west." The board found as a fact that deceased, on his way from the car house to his home for dinner, "was accidentally struck by said train while he was traveling towards the depot and was thrown against the swtich standard mentioned in the evidence, causing death." As a conclusion of law it found that: "He was still his master's servant while so in the act of leaving his employment, and that the employment covers not only the time during which the workman is engaged in his ordinary labor, but also a later time during which he is passing from the surroundings of his employment into surroundings unrelated thereto." Also holding "that deceased was killed by an accident arising out of and in the course of his employment." Under the provisions of this act, only that employee is en- titled to compensation who "receives personal injuries aris- ing out of and in the course of his employment." It is to be borne in mind that the act does not provide insurance for the employed workman to compensate any other kind of accident or injury which may befall him. The language of the Michigan compensation law is adopted from the English and Scotch acts on the same subject, and, in harmony with their interpreta- tions, has been construed by this court, in Rayner v. Furniture Co., 180 Mich. 168 (146 N. W. 665), as meaning that the words "out of" refer to the origin, or cause of the accident, and the words "in the course of" to the time, place, and circumstances under which it occurred. In Ayr Steam Shipping Co., Ltd., v. Lendrum, 6 B. W. C. C. 326, involving a fatal accident attended with uncertainty as to details, the court said : LEONE H. HILLS vs. FRANK W. BLAIR, ET AL. 255 "I think one may deduce from the decisions (1) that the burden is always upon the applicant to prove that death resulted from an accident arising out of as well as in the course of the employment; (2) that such proof need not be direct but may be by circumstantial evidence, but there must be facts from which an inference can be drawn, as distinguished from mere conjecture, surmise, or probability; and (3) that an award by an arbiter cannot stand unless the facts found are such as to entitle him reasonably to infer his conclusion from them." It is contended by appellants that the facts proven here do not in reason support the inference of the board as to the man- ner in which deceased met his death, but, on the contrary, con- clusively show that he was killed in an attempt to board or leave a moving train, precluding any award under the ruling in Pope v. Hill's Plymouth Co., 5 B. W. C. C. 175, in which case a workman in a colliery going home to his dinner on the prem- ises of his employer was killed in attempting to jump on a passing tramcar. It is further urged as a defense that, if it cannot be said as a matter of law a finding of fact should have been made as appellants contend, it should at least be held that the proven facts are equally consistent with either one of the two alternatives, and no inferences can legitimately be drawn to support an award. We are not prepared to hold that the findings of fact, as to the manner of the accident, are entirely without evidential support, either direct of by inference. They are therefore to be taken as conclusive under the statute. Accepting them as such, do they sustain the conclusion of law that Hills' death arose out of and in the course of his employment. It is well settled that the burden rests upon the one claiming compensation to show by competent testimony, direct or cir- cumstantial, not only the fact of an injury, but that it occur- red in connection with the alleged (employment, and both arose out of and in the course of the service at which the in- jured party was employed. While occasional exceptions are noted, as in the case of most rules, it is laid down by the authorities as a general rule that accidents which befall an employee while going to or from 256 MICHIGAN WORKMEN'S COMPENSATION CASES. his work are not to be regarded as in the course or arising out of his employment. Boyd on Workmen's Compensation, 486; Harper on Workmen's Compensation, 34; 1 Bradbury on Workmen's Compensation (2d Ed.), p. 404. This inquiry, therefore, narrows down to whether this is an exception to the general rule. As deceased was doing no work he was required to perform in fulfillment of his contract of employment, the contention that it is an exception rests mainly upon the claim that when killed he was yet on the premises of his employer, going from, and in the vicinity of, his place of employment. No question is involved of exceptions by the terms of hiring, of the employee being required to work over- time, or of any interruption, unusual kind of work being done, or other special circumstances in connection with the employ- ment. The only unusual and special thing shown in that con nection is the fact that at the noon hour, contrary to previous usage and custom, he left his place of employment and fellow workmen to go elsewhere on a mission of his own, not con- nected with his employer's business, but to please himself ; the occasion being that he had failed to bring with him his dinner as was customary with the crew and as he had always done before. Can it be said he was then engaged in his em- ployer's business, discharging any duty or on any errand con- nected with his employment? In applying the general rule that the period of going to and returning from work is not covered by the act, it is held that the employment is not limited by the exact time when the workman reaches the scene of his labor and begins it, nor when he ceases, but includes a reasonable time, space, and oppor- tunity before and after, while he is at or near his place of em- ployment. One of the tests sometimes applied is whether the workman is still on the premises of his employer. This, while often a helpful consideration, is by no means conclusive. A workman might be on the premises of another than his em- ployer, or in a public place, and yet be so close to the scene of his labor, within its zone, environments, and hazards, as to be in effect at the place and under the protection of the act, LEONE H. HILLS vs. FRANK W. BLAIR, ET AL. 257 while, on the other hand, as in the case of a railway stretching endless miles across the country, he might be on the premises of his employer and yet far removed from where his contract of labor called him. The protection of the law does not extend, except by special contract, beyond the locality, or vicinity, of the place of labor. "It is not a sufficient test that the workman should , be on the premises of the employer; but it may be sufficient that he is in such a state of proximity as may be treated as a reasonable margin in point of space." Hoskins v. Lancaster, 3 B. W. C. C. 476. Upon this subject, and leading directly to the protection which the act gives the employee during the noon intermis- sion, it is said in Boyd on Workmen's Compensation, 481 : "A workman's employment is not confined to the actual work upon which he is engaged, but extends to those actions which by the terms of his employment he is entitled to take or where by the terms of his employment he is taking his meals on the employer's premises. (Brice v. Lloyd. 2 B. W. C. C. 26.) In other words a workman does not lose his character as a workman while eating his lunch on his employer's premises at a place where he may safely do so and not at an especially forbidden place or place of obvious danger. But this rule would not apply to cases where the employee leaves the premises of his employer to eat his lunch during the time set apart for this purpose." To the same effect it is said in Ruegg on Employers' Liability and Workmen's Compensation, p. 377 : "In one sense, it may be said to be a part of his duty to get to such place, but if his method of traveling is not controlled by the em- ployer, if he is a free agent, it is thought this qualified duty is not sufficient to raise, at the time, the relation of employer and workman. "The same may be said with respect to the time occupied in re- turning home from work, and of intervals allowed for meals when spent off the employer's premises." The rules of presumption and inference which often go far to assist a claimant in establishing his case where a workman is found dead at the scene of his labor are of scant application 33 258 MICHIGAN WORKMEN'S COMPENSATION CASES. here. When the employee dies at his post of duty, a presump- tion may reasonably be entertained that he was then perform- ing his duty and engaged in the work for which he was em- ployed, from which a causal relation between his employment and the accident may be inferred; but it is shown here that deceased left the locality and sphere of his employment at a time when work was suspended, that he was doing nothing within the scope of his employment, was not under the direc- tion or control of his employer, and went away for purposes of his own, going where and as he pleased. Though he was traveling on his employer's premises when injured, he was then 950 feet away from where any duty in the line of his em- ployment called him, and had selected his own route. But a sbort distance from where he left the car house he could have turned by a public street onto a wagon road along which he could have gone to his home, and a safe footpath was also available to him along the right of way. The custom of em- ployees to travel along, the railroad in going to and from their work, when it is shown that there was another and safe way which they might have taken, is not of controlling import- ance. At the same distance deceased was injured, from the place of employment, they would be at most but mere licen- sees. In Caton v. Steel Co., 39 Scot. L. R. 762, it was held that the injury did not arise out of and in the course of the em- ployment of a laborer who, at the conclusion of his day's work, was knocked down and killed by a passing engine 230 yards from where he had been working, while walking home along a private railway track belonging to his employer, which many of the men employed at the same place were in the habit of using in going to and from thier work. The court there said : "The deceased at the time of the accident had ceased his work, had left the place where he did it, and was on his way home. He had at the time no duty to fulfill to his master, and his master had no duty to fulfill towards him. The relation of master and servant had ended for the day, he having fulfilled his work and left the place wh^re his work was being done." Under the undisputed testimony in this case, and accepting MRS. RUDOLPH RECK vs. FRANK B. WHITTLESBERGER. 259 the findings of fact made by the board as conclusive, claimant has failed to show such relations of cause and effect between the accident and the duties of the party injured to his em- ployer as will support a conclusion of law that the injury arose out of and in the course of the employment. The decision, or award, herein is therefore reversed and set aside. SUPREME COURT. MRS. RUDOLPH KECK, Applicant and Appellee, vs. FRANK B. WHITTLESBERGER, Defendant and Appellant. 1. MASTER AND SERVANT WORKMEN'S COMPENSATION ACT INDUSTRIAL ACCIDENT BOARD EVIDENCE. Findings of fact handed down by the industrial accident board, on hearings pursuant to statute, are conclusive, in the absence of fraud, if any competent, legal evidence is produced to sustain the facts so found. Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] 3939 et seq.). 2. SAME HEARSAY ESTATES OF DECEDENTS. Although statements made by an injured employee relating to his feelings, mental or physical, are admissible in evidence in pro- ceedings under the compensation act, statements made as to the cause of the accident or source of injury are not admissible. But it is not required by the statute that the decision of the board must in all cases be reversed because error may have been committed in the admission of incompetent testimony, when there appears in the record a legal basis for its findings. 2*0 MICHIGAN WORKMEN'S COMPENSATION CASES 3. SAME REFOBT OP Accn&rr. official report of an accident, filed with the industrial board, as required by law. where the employer had ample opportunity to satisfy himself of the facts, and all sou: formation were at bis command when he made the report, may be taken as prim* facie eTidence that an accident occurred in the manner set fortb. which fact the evidence did not und t Certiorari to tbe Industrial Accident Board. Submitted April 30, 1914. Decided July 24 I'M 4 Application to tbe Industrial Accident Board for aii award of compensation against Frank B. Whittlesberger for the death of Rudolph Reck. A judgment for tbe applicant is reviewed by said Wbittlesberger on writ of certiorari. Affirmed. Botcen. Douglas. Eaman d Barbour. for appellant. John Dohrma*. for appellee. J. Tbis case is before us upon a writ of certiorari to review a decision or determination of the industrial acci- dent board of Michigan affirming an award of s-J.CoO made by a committee of arbitration against Frank B. Whittlesberger. tbe appellant, in favor of the widow of Rudolph Reck, whose death is charged to have resulted from an injury sustained while in appellant's employ. Tbe proceedings were insti tnted and conducted under and by virtue of At N<>. 1". Pub. Acts 1912 lExtr - n n>. Pursuant to section 11 of said act the industrial accident board reviewed the decision of said committee of arbitration and such records as were kept by it, including the testimony it had taken. The return to this writ states, with some slight corrections which are made, that all the material testimony is correctly and sufficiently set forth in appellant's petition for a consideration of the questions raised. The record discloses that on January 12. 101. .. said Rudolph Reck, a baker by trade, died at a hospital in Detroit of - pneumonia, which resulted, as his physir-ian testified, from MRS. RUDOLPH RECK vs. FRANK B. WHITTLESBERGER. 3H jk- sepsis developed from an infected wound in hiss hand, Haiim-d TO June been r-ansed. on December 26. 1912, by a nail :ne fur-] with which he was firing an oven in appellant's D Randolph street, in --air] city, where deceased was then employed. .[. or room in which deceased was working at -j tailed the initial injnrr was about I and 40 feet \vjd<-. find on that day two other bak- ;it work in the room with him. a boy also being with Thf-ru in th<- fifiM-noon. Deceased finished his work for the day jsual. and left at the regular quitting time, which anon rn. His daughter testified that he arrived that evening a litle later than his customary time, and showed her an injury where he had hurt his hand at or near the thumb, ing that he chopped up a box and "ran a nail in his thumb/' He worked full time at the shop the next day and until 4 p. m. the succeeding day. During this time the men with whom he worked saw and heard nothing of any accident; neither did they observe anything unusual in his work or con- duct. He did not. however, return to work after December the day on which he quit at 4 o'clock. Dr. Smith, the only medical witness who testified, first treated deceased on January 2. 1913. At that time his em- : (-T- and fellow bakers were first informed of the claim that he had sustained an injury while at his work. Dr. Smith ified. as before stated, that septic trouble originating with wound in the hand spread generally throughout the sys- tem and resulted in pneumonia, which ended fatally. This is not controverted, but it is urged that no competent evidence - produced showing where or how deceased injured his hand, or that the injury arose out of and in the course of his employment. Following a claim regularly made for compensation by the widow under said Act No. 10, generally known as the men's compensation act a committee of arbitration lee-ted, as provided by the act, and hearings were held. One of 1 hearings was at the bakery where the injury was claimed 262 MICHIGAN WORKMEN'S COMPENSATION CASES. to have been received. None of the employees saw the accident or were shown to have personal knowledge of when or how it occurred. The committee then threw the door wide open for hearsay evidence, and, against objection, entertained any tes- timony offered as to what witnesses had heard deceased and others say about it. Appellant's assignments of error are as. follows : "First. In holding that there was sufficient proof that Rudolph Reck received a personal injury arising out of and in the course of his employment to justify a decree in favor of the claimant. "Second. In holding that hearsay evidence offered for the purpose of proving that the deceased received a personal injury arising out of and in the course of his employment was admissible, and denying the objection of your petitioner to its admission. "Third. In determining and ordering your petitioner to pay the said widow the sum of $2,250, and costs, as compensation for the injury and attendant death of Rudolph Reck." The third assignment is manifestly contingent on the other two, and calls for no separate consideration. The first and second present the two questions of whether this unrestricted admission of hearsay testimony was reversible error, and whether there was any competent evidence in the case on which to base a finding that the injury complained of arose out of, and in the course of, deceased's employment. At the threshold of this inquiry we are confronted with the proposition that the board is made by the law creating it the final tribunal as to the facts, and, it having made a finding of facts legally sufficient to support the award, its decision cannot be questioned by the court. Section 12 of part 3 of said act provides: "The findings of fact made by said industrial accident board acting within its powers, shall, in the absence of fraud, be conclusive, but the Supreme Court shall have power to review questions of law in- volved in any final decision or determination of said industrial acci- dent board: Provided, that application is made by the aggrieved party within 30 days after such determination by certiorari, mandamus or by any other method permissible under the rules and practice of said court or the laws of this State, and to make such further orders in respect thereto as justice may require." MRS. RUDOLPH RECK vs. FRANK B. WHITTLESBERGER. 263 As a legal conclusion, no one will deny that in any judicial proceeding the competency of testimony offered in support of or against any material fact is a question of law. It does not follow, however, that the appellate court in all instances must set aside an adjudication because of erroneous admission or re- jection of evidence. The doctrine that prejudice is always pre- sumed from error is not accepted by all students of jurispru- dence with complacency, even in those jurisdictions where the doctrine prevails. Neither do we conceive that in reviewing decisions of this board all technical rules of law, often made imperative by precedent in reviewing the action of regularly constituted trial courts, must be applied. The board is purely a creature of statute, endowed with varied and mixed func- tions. Primarily it is an administrative body, created by the act to carry its provisions into effect. Supplemental to this, in order that it may more efficiently administer the law, it is vested with quasi judicial powers, plenary within the limits fixed by the statute. Along the lines marked out by the act it is authorized to pass upon disagreements between employers and claimants in regard to compensation for injuries, and to that end make and adopt rules for a simple and reasonably summary procedure. Hearings are to be held upon notice to parties in interest; compulsory process for attendance of wit- nesses and power to administer oaths is given; the parties in interest are entitled to notice, to be heard and to submit evid- ence; a review, findings, a decision, and an award of compen- sation are provided for, though in the final test resort must be had to the courts to enforce the awards. In those proceed- ings the board does not act solely as a mere arbitrator. It has various plenary powers well defined, and its status is unique in the particular that it performs in combination both ad- ministrative functions and certain of the duties of a court, a referee, and an arbitration board. Its findings of facts upon hearings are conclusive, and cannot be reviewed, except for fraud, provided, necessarily, that any competent, legal evi- dence is produced from which such facts may be found. Facts cannot be evolved from the inner consciousness of that tribu- 264 MICHIGAN WORKMEN'S COMPENSATION CASES. nal on bare supposition, guess, or conjecture, nor on rumor or incompetent evidence. To so determine the rights of parties would be to act outside the authority conferred by the act, and without jurisdiction. While it was evidently the intent of this law that, by con- cise and plain summary proceedings, controversies arising under the act should be properly adjusted, under a sim- plified procedure unhampered by the more technical forms and intervening steps which sometimes cumber and de- lay regular litigation, yet the language of the act, and pro- vision for review of questions of law, indicate clearly an in- tent that the elementary and fundamental principals of a judi- cial injuiry should be observed, and that it was not the intent to throw aside all safeguards by which such investigations are recognized as best protected. The rule against hearsay evidence is more than a mere arti- ficial technicality of law. It is founded on the experience, common knowledge, and common conduct of mankind. Its principles are generally understood and acted upon in any important business transaction or serious affair in life. In such matters men refuse to reply on rumor or what some one has heard others say, and demand the information at first hand. The common, instinctive weight usually given such evidence is illustrated by this statement of Dr. Smith, after re- lating what deceased told him as to how he hurt his hand, "I don't know anything about it;" and of Mrs. Taylor, a daugh- ter of deceased, who, in connection with her testimony as to what she had been told, said, "I really don't know myself; the only thing I know about this matter is that the night I went home they took him to the hospital." The dan- ger and unreliability of hearsay testimony is well exemplified in her evidence. She testified that Haberstoh, a fellow work- man in the shop, saw the accident and described it to her, as she related it while testifying. This, on the surface, would seem to be about as satisfactory and convincing hearsay evi- dence as could be produced. Had Haberstoh been unavailable, it would have been equally competent and uncontrovertible, MRS. RUDOLPH RECK vs. FRANK B. WHITTLESBERGER. 265 but it was shown by Haberstoh himself that he saw nothing of any accident, and obtained his information from Charles Ruskei, the boy who worked in the shop afternoons, who him- self saw nothing, but heard deceased state how he hurt his hand. Coming directly to this line of testimony as applied to work- men's compensation cases, it is said in Boyd on Workmen's Compensation, p. 1123: "The statements made by an injured man as to his bodily or mental feelings are admissible, but those made as to the cause of his illness are not to be received in evidence. The rule applies to statements made by a deceased workman to a fellow workman as to the cause of his injury." And more fully in Bradbury on Workmen's Compensation, I. 403, as follows: "The statement made by an employee in the absence of his em- ployer, by a deceased man, as to his bodily or mental feelings are ad- missible in evidence, but those made as to the cause of his illness are not admissible in evidence and where there is no other evidence of an accident arising out of and in the course of the employment than statements made by a deceased employee in the absence of his em- ployer, an award cannot be sustained." Tn Gilbey v. Railway Co., 3 B. W. C. C. 135, where a work- man at a meat market on arriving home told his wife that he had broken his rib when trying to save some meat from slip- ping into the dirt, the court said: "To hold such statements ought to be admitted as evidence of the origin of the facts deposed is, I think, impossible. Such a contention is contrary to all authority." This rule is emphasized to the extent of even holding admis sion of such evidence reversible error in Smith vs. Hardman & Holden, Ltd., 6 B. W. C. C. 719, because the mind of the trial court might have been "colored by his admitting statements which are inadmissible as evidence." We do not think, however, that under the language used in our workmen's compensation act the decisions of its adminis- 266 MICHIGAN WORKMEN'S COMPENSATION CASES. trative board must be in all cases reversed under the rule of presumptive prejudice, because of error in the admission of incompetent testimony, when in the absence of fraud, there appears in the record a legal basis for its findings, which are made "conclusive" by statute when said board acts within the scope of its authority. ,As a part of the plan for a practical administration of this law, section 17 of part 3 requires each employer who elects to come under the provisions of said act to keep a record of in- juries "received by his employees in the course of their em- ployment,'' and within ten days after an accident resulting in personal injury to report the same in writing to the industrial accident board, on blanks printed for that purpose. The first knowledge which came to the board of this acci- dent is contained in the report of appellant, made by an ad- mitted agent. It is dated January 9, 1913, and marked "First Report of Accident." It states, amongst other things, that on December 26, 1912, Reck, a baker by trade, was injured; the "cause and manner of accident" being that he "was throw- ing wood in furnace and a nail run in left hand inflicting a deep gash." This report was made three days before Reek's death, and indicates that the employer, or his representatives, had full notice of the injury, with ample opportunity to inves- tigate while Reck was alive, and all sources of information were both fresh and available. A second report, after Reek's death, made on January 15, 1913, giving the same date of the accident, etc., states of its "cause and manner:" "The injured was throwing wood in the fire and a nail scratched his left hand. He worked for two or three days after the accident, when the hand became infected, and he was sent to the hospital. After the hand had started to heal nicely he contracted broncho- pneumonia, which disease caused his death January 13, 1913." We think that such reports from the employer, where all sources of information are at his command when the reports are made, and he has had ample opportunity to satisfy himself of the facts can properly be taken as an admission, and, at ANNA ANDREJWSKI vs. WOLVERINE COAL CO. 257 least, as prima facie evidence that such accident and injury oc- curred as reported. No evidence was offered to impeach the reports or to show Uiat the accident occurred otherwise than as stated in them. Eliminating from consideration the hearsay testimony errone- ously admitted, which could not affect either way the legal significance of such reports, the record furnishes legal sup- port for the findings of fact made. Consequently such find- ings are to be recognized as conclusive under the statute. The decision of said industrial accident board is therefore affirmed. SUPREME COURT. ANNA ANDREJWSKI, Claimant and Appellee, vs. WOLVERINE COAL COMPANY, Defendant and Appellant. 1. MASTER AND SERVANT WORKMEN'S COMPENSATION DEATH CON- STRUCTION OF STATUTE. Act No. 10, Extra Session 1912, providing compensation for in- juries to employees, or for their death -in the course of their employment (2 How. Stat. [2d Ed.] 3939 et seq.), is in dero- gation of the common law and should be strictly construed, although it is a remedial statute and creates a right against one who would not otherwise be liable. 2. SAME AMOUNT OF COMPENSATION. Where a servant has worked in his employment for practically the whole year preceding his injury, his average annual earnings are known or ascertainable and the average weekly wages are to be determined by finding one fifty-second of the annual earnings. 268 MICHIGAN WORKMEN'S COMPENSATION CASES. 3. SAME TERM OF EMPLOYMENT. If the workman has not been employed during substantially the entire year, but his daily wage or salary is fixed, or known, his average earnings as a basis of compensation will be 300 times the daily wage or salary. In case his employment has been limited in term, or there is insufficient data from which to determine his annual earnings, they are to be determined by taking 300 times his daily wage or salary, or the daily wage of similar workmen in like employment. 4. SAME IRREGULAR EMPLOYMENT. Decedent worked in a coal mine in the Saginaw valley. The em- ployment was not continuous, but operations were carried on for an average of 211 days in a year. Payment was fixed by contract on the basis of the number of tons produced, and the amount that each miner received depended on the coal which was sent up on his number. During the year which preceded the death of de- ceased, the mine in which he was employed was operated 148 days, and he received $507.45. While the mine was not in operation, he worked as a cement block layer for another employer, earning nearly the same amount of wages. Held, that the first three classes mentioned under section 11 of the compensation act were intended to include workmen who were employed during sub- stantially the whole year prior to the accident, and that it would not be reasonable or fair to apply such methods of compensation to the case of deceased, and that the average annual earnings should be computed on the basis of the average for the preceding eight years, as provided by the fourth classification under this section of the law. Certiorari to the industrial accident board. Submitted No- vomber 5, 1913. Decided October 2, 1914. Rehearing denied January 29, 1915. Anna Andrejwski presented her claim for compensation for the death of her husband, Joseph Andrejwski, against the Wol- verine Coal Company. From the order entered awarding compensation, contestant brings certiorari. Reduced and judg- ment entered. George M. Humphrey (Humphrey. Grant & Humphrey, of counsel), for appellant. C ouman s tC Gaffneif, for appellee. ANNA ANDREJWSKI vs. WOLVERINE COAL CO. 269 MCALVAY, C. J. This case is brought to this court by the appellant upon a writ of certiorari to review the decision and order of the industrial accident board in affirming an award theretofore made in said cause by the arbitration committee therein. There appears to be but little dispute upon the ma- terial facts in the case. Joseph Andrejwski, deceased, was claimant's husband, em- ployed by appellant in its mine No. 2. On November 18, 1912, in the course of his employment, he came to his death by an accident, which occurred without fault of either party. At this time both the employer and employed had voluntarily made their election to come under and be governed by the em- ployers' liability and workmen's compensation act, being Act No. 10 of the Public Acts of Michigan, Extra Session, 1912. (2 How. Stat. [2d Ed.] 3939 et seq.) Claimant is the sole dependent of deceased entitled to such compensation as may be granted under said act. Deceased had worked as a minor continuously in this mine for ten years before this accident, during all of the time the mine was being worked. This is a coal mine operated by appellant, and is located near Bay City in the Sagiiiaw valley district. This is the principal coal min- ing district in this State, and includes the operation, under similar conditions, of a number of companies and mines. The mine in question and the other mines in this district do not run continuously during the entire year ; some entirely suspend operations for several months during the summer, and others do not operate during 'a portion of each month, in a measure caused by the fact that operations are controlled by the sales of the product, which depend entirely upon orders. Operations also depend upon weather conditions. The record shows that no mine in the district runs or has ever run 300 days in the year. It also appears from the opera- tions of these mines for the years 1909 to 1912, inclusive, that the coal mining industry in this district has been carried on on the average for only 211 days in each year. The miners are paid on contract by the ton and work on numbers. The amount paid depends on the amount each miner 270 MICHIGAN WORKMEN'S COMPENSATION CASES. sends up on his number. Two or three miners may work to- gether and send up the coal on the number of one of them. The price paid miners is regulated by what is called a "scale" made between the operators and the union, and one of the things al- ways taken into consideration in fixing the wages of miners in this district is that the mine does not run steadily and the miner can only work when it does run. For the year immediately preceding deceased's death, mine No. 2, in question, was operated 148 days. On his number coal was sent up 131 days for which he received a total of $507.45. During the time when the mine was idle in this year, deceased was working outside of this employment for another employer as a cement block layer and earned $487.14. It is conceded that compensation is due and payable to the appellee as sole dependent of deceased, and it is also conceded that such compensation is to be paid weekly for the period of 300 weeks. The sole question presented for determination is the amount of the weekly compensation to be paid. The case, therefore, involves the construction of section 11 of part 2 of Act. No. 10, heretofore mentioned, which deals exclusively with the matter of "compensation." This section reads as follows: "SEC. 11. The term 'average weekly wages, as used in this act is defined to be one fifty-second part of the average annual earnings of the employee. If the injured employee has not worked in the employ- ment in which he was working at the time of the accident, whether for the employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he has earned in such employment during the days when so employed. If the injured employee has not worked in such employment during substantially the whole of such immediately preceding year, his aver- age annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class w-orking substantially the whole of such immediately preceding year in the same or a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so em- ployed. In cases where the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such annual earnings shall be taken at such ANNA ANDREJWSKI vs. WOLVERINE COAL CO. 271 sum as, having regard to the previous earnings of the injured em- ployee, and of other employees of the same or most similar class, working in the same or most similar employment, in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee at the time of the accident in the employment in which he was working at such time." The construction of this section of the statute is for the first time before this court, and our statute, although similar in many respects to other statutes of like import in England and some of the United States, differs quite mater- ially from all of them as to the rules provided for determining the amount of compensation to be paid those entitled thereto under it. It will therefore be proper to give consideration at the out- set to the conditions giving rise to the necessity for such legis- lation, and also the objects sought to be accomplished and the radical changes brought about by its enactment. Such legisla- tion has undoubtedly been brought about by present indus- trial conditions which have for years continued to take in- creased toll from the numbers of those employed, on account of the increased hazards connected with manufacturing, trans- portation, and kindred industries. Heretofore if an employee has been injured or killed in any employment in which he was engaged, he, or those represent- ing him or dependent upon him, could recover for such injury or death only when the same could be attributed to the neglig- ence of the employer. Experience has shown that such con- ditions were unsatisfactory, and results arising from such litigation often worked great injustice to one or both parties. From these conditions has been evolved legislation of this character upon the theory that the industry which occasioned such injuries should, as a part of the cost of production, bear the burden by compensation for the same. The act in question, like all similar acts, provides for com- pensation, and not for damages, and in its consideration and construction all of the rules of law and procedure, which ap- ply to recover damages for negligently causing injury or death, 272 MICHIGAN WORKMEN'S COMPENSATION CASES. are in these cases no longer applicable, and there is substi- tuted a new code of procedure fixed and determined by the act in question. This legislation, then, is a new departure and creates a new liability, resting upon one class in favor of an- other, without reference to any negligent conduct of the class upon which the burden is cast. In other words, this legisla- tion is wholly in derogation of the common law. It is legisla- tion which awards compensation for the accidental industrial injuries to be added to the cost of production. This statute, being in derogation of the common law, should be strictly construed, and that fundamental principle must be applied, although it is remedial and provides a remedy against a person who otherwise would not be liable. This act is en- titled: "An act to promote the welfare of the people of this State, relating to the liability of employers for injuries or death sustained by their employees, providing compensation for the accidental injury to or death of employees and methods for the payment of the same, estab- lishing an industrial accident board, denning its powers, etc." This entitling would indicate that this legislation was justi- fied on the ground that it is a proper exercise of the police power of the State. In its construction we enter a new field r to consider only the question of compensation, and to turn ab- solutely away from the idea of damages. The compensation provided for is based upon average weekly wages of the injured or deceased party, 50 per cent, of which is to be paid weekly to him or his dependents, for various per- iods of time, according to the nature of the injury or the length of the disability. The average weekly wages of the employee must always be determined by dividing his average annual earnings by 5 By section 1 1 of part '2 of this act the legislature specifically provided the manner in which the average annual earnings of each employee should be determined by making four classifi- cations, under one of which every case to be considered and determined under this statute must fall. Attention will now ANNA ANDREJWSKI vs. WOLVERINE COAL CO. 273 be given to these classifications, quoting and construing them in the order in which they appear in this section : First. "The term 'average weekly wages' as used in this act is de- fined to be one fifty-second part of the average annual earnings of the employee." While this sentence is in fact a definition, it is also a classi- fication. There is practically no disagreement between the at- torneys for the parties upon this matter. It is admitted that, where an employee has worked in the employment in which he was injured for practically the whole year immediately preced- ing his injury, his average annual earnings are fixed and known, and to determine by this definition his average weekly wages requires but a simple mathematical computation. That this was the legislative intent clearly appears from the initial clauses of the second and third classifications which imme- diately follow, both of which treat cases where the injured em- ployee has not so worked. Second. "If the injured employee has not worked in the employ- ment in which he was working at the time of the accident, whether for the employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary whicn he has earned in such employment during the days when so employed." This class is intended to include those cases where an em- ployee who has not worked in the employment in which he was engaged 'at the time of his injury, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, where his daily wage or sal- ary earned is fixed and known. In such case his average an- nual earnings w r ill be 300 times such average daily wage or salary earned in such employment during the days when so employed. Third. "If the injured employee has not worked in such employment during substantially the whole of such immediately preceding year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class 35 274 MICHIGAN WORKMEN'S COMPENSATION CASES. working substantially the whole of such immediately preceding year in the same or a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed." This class is also intended to include those cases where an employee has not worked in the employment in which he was engaged at the time of his injury during substantially the whole of such year immediately preceding; there being, by rea- son of the limited term of service, no data from which his aver- age annual earnings can be determined. In such case such earnings shall consist of 300 times the average daily wage or salary which an employee of the same class, working substan- tially the whole of the preceding year, in the same or similar employment, in the same or a neighboring place, shall have earned in such employment during the days when so employed. Fourth. "In cases where the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such annual earnings shall be taken at such sum as, having regard to the previous earnings of the injured em- ployee, and of other employees of the same or most similar class, working in the same or most similar employment, in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee at the time of the accident in the employment in which he was working at such time." This classification includes all cases "Where the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied." This is the sole test fixed by the legislature to determine whether or not a case comes within this class. The question in the instant case for the court, upon the facts presented by this record, is to determine under the provisions of which of the four classifications of this statute the averaiiv annual earnings of this employee must be ascertained. It is clear that the first, second, and third classes of cases relate to employments which continue during substantially the entire ANNA ANDREJWSKI vs. WOLVERINE COAL CO. 275 calendar year. About the first there is no question. The same initial language used in the second and third classifications in- dicates that the legislature still had in mind employments at which employees worked substantially the whole of the year immediately preceding an injury. The employment in which the injured employee in the instant case was engaged at the time of his injury was not an employment of that character. It was not an employment in an industry which continued operations during substantially the entire year. The record shows that this is the case, not only in the Saginaw valley dis- trict, but everywhere in the coal mining industry. It also shows that the miners were paid according to the number of tons of coal mined by them, and that, under the system of operations, the miners worked on numbers; that frequently two or more miners get out coal and send it up to the surface upon one number ; that the man to whom the number belonged would receive the pay for the entire output, and the miners would divide it among themselves. It also appears that the coal mines in the Saginaw valley district worked on an aver- age of 211 days in each year. How will it be possible, in fixing the average annual wages of deceased, to adapt these facts to the rules established by the legislature in classes 1, 2 or 3? In our opinion the "methods of arriving at the average an- nual earnings of the injured employee" set forth in these classes "cannot reasonably and fairly be applied." We must therefore conclude that it comes within the fourth classifica- tion, where such average annual earnings must be determined to be such sum as, "having regard to the previous 'earnings of the injured employee, and of other employees of the same or most similar class, working in the same or a most similar em- ployment, in the same or neighboring locality, shall reason- ably represent the annual earning capacity of the injured em- ployee at the time of the accident in the employment in winch he /a/.s- working at such time." Applying this rule to the un- disputed facts in the instant case, we find that he was paid by his employer, in this employment in which he was engaged during the time the mine was operated the preceding year, the 276 MICHIGAN WORKMEN'S COMPENSATION CASES. sum of |507.45; that the average time in which the coal min- ing industry operated in that district was 211 days. It is clear, from the manner in which the men worked on numbers in this employment, that the above sum but approximately represents his entire earnings. The terms of this fourth class- ification indicate that the amount of compensation in the cases which come within it can only be approximated. We have already intimated that the legislative intent in enacting this legislation was to place the burden of compensation for losses caused by industrial injuries and deaths upon the sev- eral industries as part of the cost of production, in this man- ner to be borne by the public generally. The foregoing consideration of these four classifications shows that the term ''average annual earnings'' of the injured employee, as used in this act, means his average annual earn- ings in the employment in which he was engaged at the time of his injury. This appears so clearly and emphatically that it is impossible to arrive at any other conclusion and preserve what appears to have been the legislative intent to exclude other earnings in different or concurrent employments, and thus be able to distribute the burden of compensation to each of the several industries where in the injuries and deaths may occur. In making these classifications which we have been consid- ering, the known and recognized incidents of industrial em- ployments were taken into consideration. The first three re- late to employments wherein operations are carried en for substantially the entire year, and may be said to include the large majority of industrial employments in the State. That there were well-known industrial employments within this jurisdiction which were not so operated must also have been within the knowledge of the legislative body. That such em- ployments were recognized and provided for is apparent from the terms and provisions of the fourth classification. If this conclusion is not correct, we must hold that the legislature has omitted a large class of employees from the benefits of ANNA ANDREJWSKI vs. WOLVERINE COAL CO. 277 this statute. Such a construction will never be given, where another and a reasonable construction can be adopted. Act No. 10, under consideration, both by its title and by the provisions which it contains, indicates that it was general legislation intended to apply to all employees and all indus- trial employments within this State, and to provide compen- sation to all such employees for accidental injuries or deaths resulting therefrom. It is apparent, then, that the legislation was intended to make such provision, and that section 11 of part 2 of this act was intended to apply to all cases of acci- dental injuries or deaths occurring in such employments. In our opinion the legislature by this statute did in fact make provision which applied to all cases of such injuries and deaths occurring in all employments, and that, in making such provision, they included the known and recognized incident of the employment of coal mining and other employments that such employments were not carried on during the entire year. Therefore, in determining the compensation to employees in- jured in such employments and in arriving at a fair and rea- sonable basis therefor, the computation must be made under the provisions of the fourth classification of this statute, and the amount of the average annual earnings of the injured em- ployee ascertained as near as possible. To charge this employment with compensation for injuries to its employees on the same basis as employments which oper- ate during substantially 300 days in the year would be an ap- parent injustice, as such compensation would be based on the theory of impossible earnings by the employee in that em- ployment which operated upon the average a trifle over two- thirds of a working year. This was recognized and provided for by the legislature by omitting from the fourth classifica- tion any requirement relative to the average daily wage or salary of an injured employee. This construction, in prin- ciple, appears to be supported by the English cases involving questions of like character. Kelly v. Spinning Co., Ltd., 43 Ir. L. T. J. 81 ; Bailey v. Kemwrthy, 98 L. T. 333, 334 ; Carter v. 278 MICHIGAN WORKMEN'S COMPENSATION CASES. John Lang d Sons, 16 Sc. L. T. 345-348 ; Anslow v. Colliery Co., 100 L. T. 786. In the record is an exhibit showing the annual earnings paid by appellant to the deceased from 1904 to 1912, inclusive, amounting to $5,175.21. From this table we find that the average annual earnings paid to him during that period were |575.02, which we will take as a basis for the computation of the compensation to which the claimant is entitled. Having determined his average annual earnings, there remains noth- ing further to do, except to determine the average weekly wages, by dividing this sum by 52, the result of which is $11.06, as such average weekly wages. One-half of this amount, being $5.53, would be the amount to be paid weekly to the claimant for a term not exceeding 300 weeks. The conclusion of law, therefore, of the industrial accident board, in determining that the average weekly wages of de- ceased should be computed under the second classification of section 11 of part 2 of this act, was erroneous. Its order in affirming the award made in this cause by the arbitration committee therein is therefrom reversed and set aside; and this court, in cases under this act brought to this court for review, being authorized by section 12 of part 3 of said act "to make such orders in respect thereto as justice may re- quire," does order and determine that said order of the in- dustrial accident board be reversed and set aside, and an or- der entered by said board in said cause in accordance with the foregoing opinion, but without costs. LYDA RAYNER vs. SLIGH FURNITURE CO. 279 LYDA RAYNER, Applicant, vs. SLIGH FURNITURE COMPANY, Respondent. FACTORY RULES ACQUIESCENCE BY EMPLOYER IN 'INFRACTION OF RULES. Applicant's decedent was employed in the factory of respondent. It was customary for the respondent to announce the noon hour by blowing a whistle. The employes were required to proceed to the end of the room in which they worked and punch a time clock before leaving for dinner. On the day of his injury decedent started on a run from his hench toward the time clock, which was located about 150 feet away, and collided with a fellow work- man, receiving injuries which resulted in his death. There was a rule forbidding the men running to punch the clock, but respon- dent's foreman testified that it was not strictly enforced. HELD: 1. That the mere fact that such a rule was made is not controlling when its general violation is acquiesced in by the employer. 2. The infraction of this rule by decedent was not such in- tentional and wilful misconduct as to bar recovery, in view of the fact that it was the general custom of decedent's fellow em- ployes and was tactitly permitted by respondent's foreman. Appeal of Sligh Furniture Company from the decision of an arbitration committee, awarding compensation to Lyda Rayner for the death of her husband. Affirmed. Opinion by the Board: On November 5, 1912, Adelbert Rayner, the applicant's hus- band, was injured in respondent's factory in the city of Grand Rapids. Mr. Rayner was fifty-nine years of age, was of light build, somewhat active, and on the day of his injury was work- ing in the cabinet department on the third floor of respond- 280 MICHIGAN WORKMEN'S COMPENSATION CASES. ent's factory. About 100 carvers and cabinet makers were employed in that room, and on the blowing of the noon whistle each was required to proceed to the end of the room and punch the time clock before leaving for dinner. The distance from the bench where Mr. Rayner was working to the time clock was about 150 feet, and when the noon whistle blew on the day of the injury, he started on a run from his bench towards the time clock to punch it. After proceeding about 30 feet towards the clock he collided with one Martin De Vos, a fellow-employe, fracturing or injuring one or more of his ribs. Rayner con- tinued to work after the injury, evidently thinking that it was not serious and no doctor treated him for four or five days. No notice was given the defendant of the injury until after Mr. Rayner's death, which occurred on December 26. It is claimed on the part of the applicant that the injury to Mr. Rayner's side and ribs punctured or affected the pleura of the lungs and that from the inflammation or irritation that followed the lungs became affected, resulting in Mr. Rayner's death, and that the original injury was the cause of such death. The respondent contends that Mr. Rayner's death was not the result of the accident, that it did not arise out of and in the course of his employment, and that he was guilty of in- tentional and wilful misconduct. The Board has carefully examined all of the evidence and has reached the conclusion that the accident above referred to was the proximate cause of Mr. Rayner's death. It is a re- grettable feature of the case that notice of the injury was not seasonably given the respondent by Mr. Rayner, but under the circumstances shown in the evidence this failure to give no- tice would not be a bar to the applicant's claim. It is clear that Mr. Rayner was acting in the course of his employment at the time he received the injury. In fact there is no serious dispute on this point. He was required to pro- ceed from his workbench to the time clock, and to punch the time clock before leaving the room in which he was working. This was a duty imposed upon him by the employer and he was in the act of performing that duty at the time he received LYDA RAYNER vs. SLIGH FURNITURE CO. 281 the injury, having proceeded part way from his bench to the clock. We are also of the opinion that the injury rose out of his employment, within the meaning of Act No. 10, Public Acts of 1912. The evidence fairly shows that it was custom- ary for the men to run for the time clock when the whistle blew and crowding and collisions resulted and were likely to result in going to and punching the clock and leaving the room on such occasions. The evidence on this point is more fully referred to in the following paragraph of this opinion : Did the action of Mr. Kayner in running toward the time clock amount to intentional and wilful misconduct within the meaning of the compensation law? The evidence shows that respondent had forbidden such running by rule, but it was also shown that such rule was not enforced. Frank Lardie, who was Mr. Rayner's immediate foreman, testified that he had notified the men several times not to run to the clock, and that only a part of the men did the running when the whistle blew (R. 35), acknowledging that the rule against running is not enforced. Charles Hicks, foreman of the carvers in the room in which Rayner worked, testified that there was crowding and jamming at times in going to the clock ; that the rule not to run to the clock was made about a year before the accident, but witness would not say that the rule was so enforced as to stop the running (R. 47). Martin De Vos tes- tified that people used to run to the clock most every day and that was the case right up to the time Mr. Rayner was hurt (R. 47). and Mr. Landegand, another foreman of respondent, testified that the biggest share of the men ran to the clock each day. notwithstanding the rule; "they insist on running. I have discharged men because they run, but it did no good, the rest of them keep it up just the same. You cant' let them all go. It has been the practice there to run." The mere fact that a rule was made forbidding running to the time clock is not controlling when its general violation is acquiesced in by the employer. The action of Mr. Rayner in running to the clock did not differ materially from the action of a considerable number of other employes, and such 282 MICHIGAN WORKMEN'S COMPENSATION CASES. conduct was acquisced in and tactitly permitted by respond- ent's foremen. It did not amount to intentional and wilful misconduct. The decision of the committee on arbitration is affirmed. SUPREME COURT. LIDA RAYNER, Applicant and Appellee, vs. SLIGH FURNITURE COMPANY, Respondent and Appellant. 1. APPEAL AND EREOB CERTIOBABI INDUSTRIAL ACCIDENT BOARD Cois TRIBUTOBY NEGLIGENCE PERSONAL INJUBIES MASTER AND SEBVANT. In reviewing a decision of the industrial accident board, awardin compensation for the accidental injury and resulting death o an employee, a finding that the injury did not arise from th intentional and wilful misconduct of the deceased will not b reviewed, if there was evidence to support it. Act No. 10, Extr Session 1912, 12, pt. 3, (2 How. Stat. [2d Ed.] 3980). 2. MASTEB AND SERVANT INDUSTBIAL ACCIDENT BOARD COURSE OF PLOYMENT. Injuries resulting in the death of an employee, in the factory o defendant, from colliding with another servant while the d( cedent was running to punch the time clock, a duty impose by the master, was an industrial accident, within the mean- ing of Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] 3939 et seq.). McAlvay, C. J., dissenting. 3. SAME PROXIMATE CAUSE. If not the proximate cause of decedent's injuries, the performance of such duty so contributed to the accident as to constitute a con- curring cause. Certiorari to the industrial accident board by the Sligh Furniture Company to review an order awarding compensa- tion to Lida Rayner for the accidental death of her husband, LYDA RAYNER vs. SLIGH FURNITURE CO. 283 Adelbert Eayner. Submitted January 8, 1914. Affirmed April 7, 1914. Francis D. Cam/pan, (William A. Miilhern, of counsel), for appellant. Norris McPherson <& Harrington, for appellee. KUHN, J. This case is brought here by certiorari to the industrial accident board. Adelbert Eayner, the applicant's husband, was injured while in respondent's factory in the city of Grand Eapids. About 100 carvers and cabinet workers were employed on the third floor of the factory, and, on the blow- ing of the noon whistle, each workman was required to proceed to the end of the room and punch the time clock before leav- ing for dinner. Mr. Eayner, who was working on this floor, about 150 feet from the time clock, on November 5, 1912, when the whistle blew at noon, started on a run from his bench to the clock to punch it. After proceeding about 30 feet, he collided with Martin De Vos, a fellow employee, whom he could not see because of drawers which were piled up on the floor. This resulted in Eayner fracturing or injuring one of more of his ribs. The injury to his side and ribs affected the pleura of his lungs, and from the inflammation or irritation which fol- lowed the lungs became affected, resulting in Mr. Eayner's death. There had been no general notice printed or posted of a rule against running to the time clock, but, about a year previous to the accident, Eayner had been told by his foreman, Hicks, not to run to the clock. There was testimony that the rule against running had not been enforced, and no employee had been discharged because of doing so. An award to claimant, who was left as his dependent, was made by a committee on arbitration, and upon review was affirmed by the industrial ac- cident board. It is the contention of the respondent and appellant that the facts indicate that the accident and the resulting injury arose out of an act independent of the employment, in direct 284 MICHIGAN WORKMEN'S COMPENSATION CASES. violation of a rule of the company, and solely for his own pleasure or convenience. With reference to the rule, the com- mission made a finding that such a rule had not been enforced and its general violation had been acquiesced in by the em- ployer. There being evidence to support this finding of fact, by the terms of the act (part 3 12, Act No. 10, Public Act* Extra Session 1912) (2 How. Stat. [2d Ed.] 3939 et seq.) i1 becomes conclusive, and as a result eliminates the considera- tion of the question as to whether the injury arose by reasoi of the intentional and wilful misconduct of Rayner. Rumboll v. Colliery Co., 80 L. T. 42, 1 W. C. C. 28. At the time of the accident, Kayner was in the performan< of a duty imposed upon him by his employer. When the nooi whistle blew, it was obligatory upon him, before leaving th< place of his employment, to punch the time clock. The pei formance of this duty, if not the proximate cause, was a con- curring cause of his injury. In Fitzgerald \. Clarke & 801 (1908) 99 L. T. 101, 1. B. W. C. C. 197, Buckley, L. J., state< the rule as follows: "The words 'out of and in the course of the employment' are us conjunctively, not disjunctively; and upon ordinary principles ol construction are not to be read as meaning 'out of/ that ? s to say, 'in the course of.' The former words must mean something different from the latter words. The workman must satisfy both the one an( the other. The words 'out of point, I think to the origin or cause oi the accident; the words 'in the course of to the time, place and ci] cumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The lattei words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the acci- dent as conveyed by the words 'out of involves, I think, the idea that the accident is in some sense due to the employment." We are well satisfied that the accident was an industrial accident within the meaning of the compensation act, and arose "out of and in the course of his employment." Whitt Jiead v. Reader, 2 K. B. 48 (1901). The judgment and decision of the industrial accident b< is affirmed, with costs against appellant. ESTATE OF P. D. BECKWITH vs. ALDEN SPOONER. 285 BROOKE, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred with KUHN, J. MCALVAY, C. J. I do not think that this was an industrial accident within the statute. SUPREME COURT. ESTATE OF P. D. BECKWITH and FIDELITY & CASUALTY COMPANY, Applicants and Appellants, vs. ALDEN SPOONER, Respondent and Appellee. 1. WORKMEN'S COMPENSATION PETITION TO TERMINATE PAYMENTS RES JUDICATA. On the hearing of an employer's petition to the Industrial Acci- dent Board to terminate compensation awarded to an injured servant by the contract of employer approved by the accident board, the essential elements leading up to the award are to be taken as concluded and are not open to review. The physical condition of the injured employee is the subject of inquiry and is legally open to adjudication. Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] 3939 et seq.). 2. SAME CONTRACTS RES JUDICATA. An employer's agreement filed with and approved by the accident board, granting compensation to a servant for injuries sustained in the course of his employment, is a substitute for, and under the statute is the legal equivalent of, a final award of the Board, and has equal force and standing, when, to enforce recovery, it becomes necessary to put them in judgment in the circuit court. 286 MICHIGAN WORKMEN'S COMPENSATION CASES. 3 APPEAL AND ERROR CERTIORARI WORKMEXS COMPENSATION. Upon review of the findings and determination of the Industrial Accident Board by writ of certiorari, the findings of fact are to be taken as final and conclusive if there is evidence to support them, in the absence of fraud. 4. SAME INDUSTRIAL ACCIDENT BOARD REVIEW. Where an employee received compensation from his employer by a written agreement approved by the accident board, after a full opportunity to investigate the facts, and no fraud was alleged, the agreement was conclusive as to a subsequent claim of the employer that the loss of the eye, afterward, by a cataract, was not produced by the injury, which the medical testimony tended . to show might have resulted from the injury, the employer claim- ing that the cataract resulted from a cataract on the ether eye that had been removed by an operation, or was caused by senility, and that the injury did not cause the loss of sight. 5. SAME. Where different inferences may be drawn from the testimony be- fore the Industrial Accident Board, and inferences which are favor- able to their finding that a petition to terminate compensation should not be granted are deducible from the record, the court on certiorari will not disturb the result. Certiorari to the Industrial Accident Board; submitted No- vember 13, 1913. Decided December 18, 1914. The estate of P. D. Beckwith, a corporation, and Fidelity & Casualty Company of New York petitioned the Industrial Ac- cident Board for an order terminating the right to compensa- tion of Alden Spooner, under an agreement with the peti- tioner, and from an order denying the petition they appeal. Affirmed. Charles H. Ruttle, for appellants. Persons, Shields d Silsbee, for appellee. STEERE, J. Plaintiff, ancT appellants herein seek, by certiorari review and reversal of certain "Proceedings and De- cisions and Awards," had and made before and by the Indus- trial Accident Board of this state, which culminated in the following final order: ESTATE OF P. D. BECKWITH vs. ALDEN SPOONER. 287 Alden Spooner, Claimant, v. "Estate of P. D. Beckwith and Fidelity & Casualty Company of New York, Respondents. "This matter having come on to be heard upon the petition of the respondent filed herein, praying for relief and to stop compensation for reasons set forth in said petition, and, after full examination of the proofs, upon said petition, and hearing argument thereon, and due consideration thereon having been had, and it appearing to the Board that the facts alleged in said petition as reason for stopping compensation are not sustained by the proofs, it is ordered and ad- judged that the said petition be, and the same is hereby dismissed." It appears, undisputed, that said Alden Spooner was reg- ularly employed as a molder by the above corporation, known as the "Estate of P. D. Beckwith," of Dowagiac, Mich., which, as an employer of labor, had, with approval of the Industrial Accident Board, elected to come under the provisions of Act No. 10, Public Acts of 1912, extra sesion, (2 How. Stat. [2d Ed.] 3939, et seq.) While regularly engaged in its employ- ment as a molder Spooner suffered an accident resulting in an injury to his right eye, described by his employer, in its re- port made under the requirements of section 16, part 3, of said act, as follows: "Molten iron splashed into right eye, right eye burned." Section 5 of part 3 of said act provides: "If the employer, or the insurance company carrying such risk, or Commissioner of Insurance, as the case may be, and the injured em- ploye reach an agreement in regard to compensation under this act, a memorandum of such agreement shall be filed with the Industrial Accident Board, and, if approved by it, shall be deemed final and binding upon the parties thereto. Such agreement shall be approved by said Board only when the terms conform to the provisions of this act." Pursuant to the provisions of this section the following was filed with the Industrial Accident Board, on November 14, 1913: 288 MICHIGAN WORKMEN'S COMPENSATION CASES. "AGREEMENT IN REGARD TO COMPENSATION. "We, Al Spooner, residing at city or town of Dowagiac, Mich., am Fidelity & Casualty Co., of N. Y., have reached an agreeement in n gard to compensation for the injury sustained by said employe whil in the employ of Estate of P. D. Beckwith, Inc., Dowagiac. "The time, including hour and date of accident, the place where il occurred, the nature and cause of injury and other cause or groun< of claim, are as follows: "Mr. Spooner was injured Oct. 22, 1913, about 4:30 p. m. Moltei iron splashed into right eye, causing bad burn in corner of eye. "The terms of the agreement follow: $17.60 wages earned; $! compensation agreed upon. "Al Spooner, "Fidelity & Casualty Co., of N. Y., "By Leo A. Donahoe. "Witness: Wm. Hurst. "E. A. Miecham. "Dated at Dowagiac, Mich., this 12th day of November, 1913." This agreement was approved by the Industrial Accidenl Board on November 14, 1913, and thereafter compensatioi was paid accordingly from October 22, 1913, to January 14, 1914. On January 21, 1914, appellants filed with the Industrial Accident Board a petition asking to be relieved from furthei payments, based upon the following letter or report, ad- dressed to Dr. Jones, the local physician who attended Spooner professionally at the time of his injury, and who had referred him to Dr. Bonine, an eye specialist: "January 15, 1914. "Dr. J. H. Jones, "Dowagiac, Mich. "Dear Sir: I have had Mr. Spooner under my careful scrutiny and find the following condition: Some years ago I operated for catara< on one eye and obtained good results above the average. The othei eye shows signs of the same trouble at this time. That, however, not strange as it is the rule with senile cataracts if they come 01 one eye they are quite certain to grow on the other, as you know. "Therefore there is nothing unexpected about the remaining lem filling in, so can't see where any one could be held responsible foi ESTATE OF P. D. BECKWITH vs. ALDEN SPOONER. 289 present conditions, as no other pathological condition of the orbit is in evidence. (Signed) F. N. Bonine, M. D." Upon the hearing of said petition depositions of Drs. Jones .and Bonine were introduced in evidence. The board there- after made the following: "FINDINGS OF FACT. "(1.) The respondent, Alden Spooner, was employed in the plant of the Estate of P. D. Beckwith, Inc., as a molder, and had worked there for several years in that capacity. He was 65 years old and at the time of the injury was receiving wages of $17.60 per week. "(2.) That on October 22, 1913, respondent while attending to his duties as a molder, received an injury to his right eye by having hot sand and other substances splashed into the same, producing an in- flammation necessitating immediate medical attention and causing disability to do work. "(3.) That in 1905 respondent had a cataract removed from his left eye by Dr. F. N. Bonine and that such operation was successful and the result thereof above the average. "(4.) That respondent's right eye, being the one injured in Octo- ber, 1913, has now developed a cataract, which is so far advanced that he can discern light but has practically no vision. His left eye, oper- ated on in 1905, is of little use, and he is in a condition of total disability on account of the condition of his said eyes. "(5) That the claim of petitioners, that the present condition of respondent's right eye is due not to the injury thereof on October 22, 1913, but that such condition is due to senile cataract, is not .sustained by the evidence. "(6.) That the present condition of respondent's right eye and his resulting disability is due to the injury received by him October 22, 1913. "(7.) That all of the proposed findings of fact of petitioners, not included in these findings are refused." Against the action of the Industrial Accident Board in this matter, appellants urge two major grounds of reversal: First that the controlling findings of fact are unwarranted and un- supported by evidence; and second, "insufficiency of proceed- ings." In explanation of the latter it is stated that not the legality, but the sufficiency, of the proceedings is questioned, 37 290 MICHIGAN WORKMEN'S COMPENSATION CASES. in the particular that, although appellants in support of theii petition produced proof which established "Spooner was suffering with a senile cataract, and that his dis- ability was not a result of his injury of October 22, 1913, yet the Industrial Accident Board refused to accept the unchallenged testi- mony of the physicians and without any further evidence whatsoever,, as to Spooner's precise condition, with respect to his eyes, er-tered an order denying appellants' petition, which order is so vague, uncertain and indefinite that it may work irreparable damage to appellants. * * * " and "that appellee has never produced any proof that he sustained an injury while in the employ of the Estate of P. D. Beck- with, Inc.; that there is no evidence that his disability or impair- ment of eyesight were a result of his accident of October 22, 1913, as well as that it did not exist for some time prior to the date mentioned; that at no time has any admissible evidence been offered relative to his present condition, whether the sight of the left eye operated on in 1905 is good, or in any degree impaired, and if impaired to what extent, nor is there any testimony as to the exact condition of the right eye, in which grains of sand lodged on October 22, 1913, and whether the sight in that eye is impaired, permanently or partially, or to what degree." In the latter particular appellants disregard the signifi- cance of the report and agreement as to compensation filed by them, which eliminate the various statutory steps of arbitra- tion now urged as imperative. The agreement, filed with and approved by the board, is a substitute for, and, under the statute, the legal equivalent of, an arbitral award. They have equal force and like standing when, to enforce recovery it be- comes necessary to put them in judgment in the Circuit court for the county where the accident occurred (section 13, part 3 of said act). The power of the board to act upon a peti- tion such as appellants presented in this case is found in the- following section (14), which authorizes it to review any weekly payment at the request of the employer, insurance company carrying the risk, commissiner of insurance, or em- ploye, "and on such review it may be ended, diminished or in- creased, subject to the maximum and minimum amounts -above provided, if the board finds that the facts warrant such ac- tion." ESTATE OF P. D. BECKWITH vs. ALDEN SPOONER. 291 On the hearing of such a petition for review it can be stated as a general rule that the essentials leading up to the award, or its equivalent, are to be taken as res a-djudicata, except the physical condition of the injured employe, which naturally and legally remains open to inquiry. Mead vs. Lockhart, 2 B. W. C. C. 398. We discover no claim in this record that appellants were induced to enter into the agreement regarding compensation by fraudulent misrepresentations of the other party. It is established beyond question by their own representations that Spooner was injured on October 22, 1913, while working as a m older for the Estate of Beckwith by '"molten iron splashed into right eye; right eye burned;" that he was treated by Dr. Jones, one of their witnesses, on October 23d, 27th, 30th and 31st. Dr. Jones, a physician in general practice, testified that he found small, black particles of foreign substance in the right eye and inflammation in the conjunctiva, but neither it nor the cornea were abrased or penetrated; that the inflam- mation was slow in disappearing and continued over several weeks four or five weeks before it disappeared that lie thought it a case which needed the service of a specialist, and referred the patient to Dr. Bonine. The only reference in Dr. Jones' testimony to a cataract is found in this answer to a question on cross-examination, whether he thought the injury he treated would cause, or help cause a cataract. "A. Well, upon technical points, the substance of special matters bearing upon the interior conditions of the eye, I don't make a spe- cial work of it. I would state, however, severe injuries to the eye do cause cataracts. I do not make a practice of treating conditions that involve the interior of the eye, but I refer them to a specialist." We see no force in the contention that at the time of settle- ment Spooner was not suffering from an injury which arose out of and in the course of his employment. The manner of the accident and condition of the eye were then open to ap- pellants' investigation, and unquestioned. After ample time and opportunity to learn fully of the accident and history of 292 MICHIGAN WORKMEN'S COMPENSATION CASES. the case from the physician in charge, the injured employe and all other sources, the agreement was made on November 12 following. We find no testimony tending in any manner to show that prior to the accident there was any cataract or im- pairment of vision in, or trouble with, this right eye. There- after its vision was inpaired, and a state of inflammation, slow in healing, led the local physicians to refer the patient to a specialist, who, on December 20, 1913, discovered an im- mature, developing cataract, the existence of which was un- disputed at the time of hearing. Dr. Bonine testified that when he examined the injured eye, on December 20, 1913, "there was irritation of the eye that could be attributed to an inflammatory state of traumatism producing it, or hardness of the eye ball would cause a large- ness of the vessels of the eye, would give it that appearance;" that he found a pretty well-advanced cataract on that eye, but could not tell how long it had been forming, because he had not seen Spooner, except casually, since he operated on his left eye for a cataract eight years previous, in 1905. In ex- plaining the nature of cataracts, witness stated that there were three distinct ways in which they are formed, the sim- plest being a traumatic cataract, caused from an injury, the second a senile cataract, caused by an interference with the nourishment of the lens through diseases of the inner tissues, and the third hereditary or resulting from hereditary tend- ency; that a traumatic cataract would usually come in from one to three or four weeks after an injury, or sometimes in- stantly if the lens was pierced so that the aqueous humor came in contact with it; asked if this was a traumatic or sen- ile cataract he answered: "A senile. * * * It is the rule that when a cataract comes on one eye the tendency is to form on the other; not necessarily, but it is the rule, and not concurrent. * * * "Q. Could you determine, in saying, whether this was a senile or traumatic cataract? "A. The stage of inflammation had gone on until it would be a difficult matter to do that. The only indication had was irritation or flushed eyeball and that I spoke of at first; that was traumatism. ESTATE OF P. D. BECKWITH vs. ALDEN SPOONER. 293 "Q. Has the cataract grown since you first saw Mr. Spooner in December? "A. From the first to the last the vision has decreased decidedly. * * * "Q. If this was a traumatic cataract, would it have been probably fully developed by December 20th, in. 8 weeks? "A. Depending upon the severity of the injury. If the injury was slight, it would develop slowly." Being asked on cross-examination, "In your opinion, doctor, is there any connection between the catar- act on the left eye and on the right?" He answered: "The only connection established would be the rule of the forma- tion of cataracts, as over 80 per cent of cataracts that form first in one eye would later form on the other, 20 per cent of one eye will be cataracts, and the other eye not at all, so that is the only rela- tion one eye could have to the other." The doctor nowhere testifies that the cataract removed by him from the left eye over eight years before was senile, but such possibly may be inferred from his testimony, especially when considered in connection with his letter to Dr. Jones. Section 12, part 3 of said Act No. 10, under which these proceedings are had, empowers this court to review only ques- tions of law; all questions of fact determined by the Board from competent evidence being conclusive, in the absence of fraud. It must be conceded, as urged by appellants, that the record discloses no testimony, competent or otherwise, to sus- tain the finding: "His left eye, operated on in 1905, is of little use, and he is in a condition of total disability on account of the condition of his said eyes." This finding, however, tends only to confuse, and must be eliminated from consideration, not only because it has no evidential support in the case, but no claim was ever made for injury to the left eye, and its condition is not in issue. With it eliminated there is sustaining evidence for the re- 294 MICHIGAN WORKMEN'S COMPENSATION CASES. maining findings of fact essential to support the order sought to be reversed. The controlling issue raised before the Board by appellant's petition for review was whether they had by their evidence conclusively established that the cataract which appeared in claimant's right eye after the injury was senile, and therefore not connected with, or attributable to, such injury. To sus- tain appellant's contention here this court must, therefore be able to say, from the whole record, as a conclusion of law, that the Industrial Accident Board must find, not could find, as a conclusion of fact, that the cataract in the injured right eye is senile and not traumatic, and that Spooner was not, at the time of hearing said petition, under any incapacity attributable to the accident, and resulting injury to that eye, on October 22, 1913. We conclude that upon such issue different inferences of fact could legitimately be drawn from what the record dis closes and, in such case, where the Board does not find "that the facts warrant such action" as may be requested under sec- tion 14, part 3, of the act creating said Board, the court can- not disturb its findings and orders thereon, made while act- ing within the authority there conferred. The order complained of is therefore affirmed. McCOY vs. MICHIGAN SCREW CO. 295 SUPREME COURT. WILLIAM McCOY, Applicant and Appellee, vs. MICHIGAN SCREW COMPANY, Respondent and Appellant. 1. MASTER AND SERVANT INDUSTRIAL ACCIDENT BOABD PERSONAL IN- JURIES PROXIMATE CAUSE. Where an employee's eye received an injury from pieces of steel flying from a lathe that he was operating and the eye became infected with gonorrhea with which the employee was afflicted, the loss of his eye, resulting from the disease,- did not arise out of and in the course of his employment under the workmen's compensation law, Act No. 10, Special Session 1912 (2 How. Stat. [2d Ed.] 3939 et seq.). 2. SAME EVIDENCE BURDEN OF PROOF. The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose out of and in the course of his employment rests upon the claimant. Certiorari by the Michigan Screw Company to review an award of the industrial accident board to William McCoy, claimant. Submitted January 23, 1914. Reversed June 1, 1914. Stevens T. Mason, for appellant. Edmund C. SMelds, for appellee. KUHN, J. The claimant, William McCoy, was employed by the contestant and appellant as an operator on a lathe ma- chine. On February 1, 1913, several small pieces of steel from the machine on which he was working lodged in his eye. This, it is claimed, caused an irritation and caused him to rub his eye. At the time, claimant was being treated by Dr. ,A. M. Campbell for gonorrhea. On February 7th he went to Dr. Oochrane, who removed four pieces of steel from the eye. The 296 MICHIGAN WORKMEN'S COMPENSATION CASES. next day the doctor removed another piece of steel and dis- covered that the eye had become infected with gonorrhea. He was then sent to a hospital and subsequently lost the sight of the eye. The industrial accident board affirmed an award made claimant by an arbitration committee of |6.49 per week for 100 weeks. It is the claim of contestant and appellant that the loss of the eye was not the result of a personal injury arising out of and in the course of claimant's employment, but was the di- rect result of a disease unconnected in any way with his em- ployment. At the hearing before the industrial accident board, four physicians were sworn, who testified as to the effect upon the eye of gonorrheal infection. Claimant contends that the germs would not have entered the eye had not the steel caused "(a) an inclination to rub the inciting cause (b) inflamed condition which made the eye susceptible to the entry of the germs, as in the case of blood poison and erysipelas." A careful reading of the testimony of the physicians shows that the infection can easily be caused to a normal eye by rub- bing the eye with a hand infected with the gonorrheal germ. Dr. Bret Nottingham testified: "Mr. Mason: And will you say as an expert how gonorrhea can be communicated to the eye? Is it by germ or otherwise? "A. Yes; it is a contagious disease of course, produced by this germ, and a person, in caring for themselves as they have to, get some of this pus on their finger containing the germs, and of course, the eye being irritable, would rub the eye with the finger contain- ing this pus. "Mr. Mason: No doubt that infection of the eye was caused by the entering of gonorrhea germs. Could that infection occur if there was no injury in the eye? "A. Yes. "Mr. Mason: Therefore, if a perfectly normal eye will be rubbed by a hand infected with the germ, it will infect the eye. "A. It might be very easily infected; a normal eye can be infected in this same manner. "Mr. Mason: Suppose this boy had not had an injury to his eye. McCOY vs. MICHIGAN SCREW CO. 297 and had rubbed his eye; would it be possible that he could have lost his eye? "A. Yes; the same result might have been obtained." Dr. Cushman testified : "Gonorrhea is one of the most common conditions that there is perhaps, and it is an admitted fact, without any argument upon what we are supposed to know, that the gonorrhea germ will attack and penetrate the unaffected covering of the eye. I have heard it said on reasonably good authority that it is perhaps the only germ that will attack an uninjured eye; but the fact of there having been this injury to the eye from the steel, without any question in my mind, has lowered the resistance of the eye, that is, weakened it, and made it less resistant to the infection. With the inflammation, it was much more probable that the eye become affected. Now, if the infection of gonorrhea was easier transmitted to the eye, there would be probably about 50 per cent of us running around blind. That is, gonorrhea is common, and you don't see many blind. I have heard that 90 per ) 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 pay- ment of one-half (_) his wages for 125 weeks for the loss of the lower right limb by amputation as aforesaid, less six weeks - dis- ability incident to such amputation, provided that such weekly pay- ments shall not in any event extend over a greater period than 500 weeks." LIMRON vs. FRANK M. BLAIR, ET. AL. 301 The board found that, from the date of the injury to the time of making the award, the employee had been totally dis- abled, and that such disability would continue for an indefi- nite period; that the main cause of disability was an injured shoulder. The act (Act No. 10, Pub. Acts Extra Session 1012, 2 How. Stat. [2d Ed.] 3939 et seq.), provides that when, as the re- sult 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 per- iod 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 per- iod than 125 weeks, compensation continues until disability is removed, or the maximum of compensation is paid. The stat- ute 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 dis- ability is deemed to continue. It does not provide a specific indemnity for the loss of a member in addition to compensa- tion for disability. The aim of the statute is to afford com- pensation 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. 302 MICHIGAN WORKMEN'S COMPENSATION CASES. SUPREME COURT. EMMA FITZGERALD, Claimant and Appellee, vs. LOZIER MOTOR COMPANY, Defendant and Appellant. 1. APPEAL AND ERROR REVERSAL FOR IMPROPER ADMISSION OF TESTI- MONY. Under the Workmen's Compensation Act, the decision of Indus- trial Accident Board need not be reversed for error in the ad- mission of incompetent evidence when another and legal basis for its findings appears in the record. 2. EVIDENCE REPORT OF FOREMAN. Where it was the duty of the foreman of the department in which claimant's husband worked to report all accidents, and, upon learning that decedent had scratched his hand on a n.anifold, he made an entry to that effect and reported it to the general fore- man, in proceedings under the Workmen's Compensation Act for compensation for the servant's death, the foreman's memorandum was admissible in evidence against the employer, establishing a prima facie case supporting the widow's contention that her husband was injured in the course of his employment 3. SUFFICIENCY OF EVIDENCE. Evidence in proceedings before the Industrial Accident Board to recover compensation for death of claimant's husband in the course of his employment by defendant, held sufficient to support finding that the injury occurred in the course of deceased's em- ployment and proximately caused his death. Certiorari to Industrial Accident Board. Proceedings under the Workmen's Compensation Act by Emma Fitzgerald to obtain compensation for the death of her husband, opposed by the Lozier Motor Company, employer. Compensation was awarded in the sum of $7.21 per week for 300 weeks, and the employer brings certiorari.. Affirmed. FITZGERALD vs. LOZIER MOTOR CO. 303 F. J. Ward, of Detroit, for appellant. Charles Wagner, of Detroit, for appellee. KUHN, J. This is a proceeding brought before us by cer- tiorari to the Industrial Accident Board of this State, to re- view a decision rendered by said Board October 22, 1913, wherein it affirmed an award by a board of arbitration grant- ing the claimant and appellee the sum of $7.21 per week for a period of three hundred weeks. The record discloses that William J. Fitzgerald, deceased, a machinist about forty-five years of age, went to work in the assembling department of the Lozier Motor Company on or about January 20, 1913. He worked in this department a few days, and then was transferred to the carburetor department, where he continued to work until about February 4, 1913. Sometime in the last of January, 1913, the wife of the de- ceased saw a scratch on his hand, at which time the hand was badly swollen and inflamed, and the deceased told her that he received it on the carburetors in the assembly room of the Lozier Company. During the latter part of January the de- ceased went to see Mr. Whitehead, an employee of the Lozier Motor Company, to have the scratch on his hand dressed. His hand at the time was badly inflamed, and it looked as if it had been infected for at least forty-eight hours, and the deceased received medical attention from Mr. Whitehead. About the 30th of January Mr. Brown, an employee of the Lozier Motor Company, and the foreman of the department in which the deceased was employed, noticed him at work with a bandage on his thumb. He asked the deceased what was the trouble with his thumb, and the deceased informed him that he had scratched it about a week prior to that date, that is, on January 23. Working on the same bench about six feet from the deceased was a Mr. Anderson, who stated that he did not see nor did he know anything of an accident until the deceased told him he had hurt his hand on the manifold on the day before he had the talk with him. On the 5th of February the condition of Mr. Fitzgerald's 304 MICHIGAN WORKMEN'S COMPENSATION CASES. hand was such that he was obliged to quit work and was never afterwards able to go back to his work, and continued medical treatments until the day of his death, which was March 8, 1913. The deceased treated with Dr. Hayes until about the 12th of February, at which date he went to the office of Dr. Kaymond C. Andries, who continued to treat him until the time of his death. The doctor gave as the cause of his death "Arterio- sclerosis and Myocarditis." Myocarditis the doctor explained to mean inflammation of the heart muscle, and testified it might be caused by a toxic infection, and that such an infec- tion would tend to lower bodily resistance to other disease. He also testified that when he first saw the deceased it was appar- ent that he had an infection, and that the condition of the hand showed that there had been an entrance of micro-organ- isms into it in way from some cause. A nurse, who stated that she had had some experience in the treatment of cases of blood-poisoning, testified as to the con- dition of the deceased on the day before and up to the time of his death, and stated that the discoloration in spots on his body, in her opinion, indicated symptoms of blood-poisoning,, and that she also saw the wound on the hand. The assignments of error relied upon by appellant are as follows : That the Industrial Accident Board erred: 1st. In holding that said William J. Fitzgerald, deceased, received a personal injury arising out of and in the course of his employment while he was employed by your petitioner. 2nd. In holding that said William J. Fitzgerald, deceased, died as the result of a personal injury arising out of and in the course of his employment. 3rd. In holding that a personal injury arising out of and in the course of his employment was the proximate cause of the death of the deceased, William J. Fitzgerald. 4th. In holding that the death of said William J. Fitzgerald was not the result of a disease unconnected in any way with his employ- ment with your petitioner. 5th. In holding that the death of said William J. Fitzgerald was the result of a personal injury sustained on or about January 23rd, 1913, while in the employ of your petitioner. FITZGERALD vs. LOZIER MOTOR CO. 305 6th. In admitting into evidence and considering as part thereof the evidence of the claimant, Emma Fitzgerald, the witnesses, Wil- liam Brown and Burns L. Whitehead, as to conversations they had with the deceased, which were not in the presence of your petitioner or any officer thereof and not at the time of the alleged accident. 7th. In admitting as evidence and considering as part thereof the memorandum made by the witness, William Brown, of a conversation had between said William Brown and said deceased, William J. Fitz- gerald, in regard to what said William J. Fitzgerald had told him pertaining to said alleged accident and personal injury. 8th. In determining and ordering your petitioner to pay said claim- ant, Emma Fitzgerald, the sum of Seven and Twenty-one Hundredths Dollars ($7.21) per week for three hundred weeks as compensation scause of the death of said William J. Fitzgerald. It may be noticed that the assignments of error relate prin- cipally to three questions : whether the unrestricted admission of hearsay testimony was reversible error, and whether there was any competent evidence in the case on which a finding could be based that the injury complained of arose in the course of the deceased's employment, and whether it can be said that the injury complained of was the proximate cause of the death of the deceased. It is urged by the appellee that the hearsay rule should not be held to apply to arbitration under the provisions of the Workmen's Compensation Act. This question has quite re- cently had the consideration of this Court, in the case of Reck v. Wittleberger, 21 D. L. N. 713 (found also in 5th Negligence and Compensation Cases Annotated, p. 917), and the rule against hearsay evidence and its applicability to proceedings under this Act are very fully discussed, and this conclusion is arrived at: "We do not think, however, that under the language used in our Workmen's Compensation Act the decisions of its administrativ3 board must be in all cases reversed under, the rule of presumptive prejudice, because of error in admission of incompetent testimony, when in the absence of fraud, there appears in the record a legal basis for its findings, which are made 'conclusive' by statute when said board acts within the scope of its authority." 39 306 MICHIGAN WORKMEN'S COMPENSATION CASES. The question then is, was there any competent evidence offered to make a prima facie case in support of the claimant's contention? Mr. Brown who was the foreman in charge of the department of the factory in which the deceased was employed, testified that it was his duty to inquire about all accidents that occurred in the factory, and that he first noticed that Mr. Fitzgerald had sustained an injury on January 30, that after inquiring of Mr. Fitzgerald concerning the nature of the in- jury he immediately made a memorandum in writing of the information which he obtained, which was offered in evidence, and which read as follows: "W. J. Fitzgerald, last Thursday afternoon, scratched on manifold, right hand, on top of the thumb joint. January 23rd, 1913." that he immediately thereafter notified Mr. Anderson, the general foreman of the Lozier Motor Company of the fact of the accident. It appears that it was the duty of the employee, as soon as he was injured, to report his injuries however slight to the foreman of the shop in which he was employed, and that notice of this was given to all the employees by signs posted throughout the shop. It also appears that the Lozier Motor Company made a report of the accident to the Koyal In- demnity Company, which report was submitted to counsel during examination before the arbitrators but was not offered in evidence. It is the contention of counsel that the memorandum made by the Company's foreman is competent proof as an admission on the part of the Company by its agent. On the other hand, it is claimed that the information therein contained is based purely on hearsay, and is inadmissible for that reason. In our opinion, under the circumstances of this case, the memo- randum was admissible as an admission. Under the rules it was the duty of the employee to immediately notify the fore- man in charge of the particular division of the factory in which he worked of the fact of an injury. It thereupon be- came the duty of the foreman of the factory to immediately notify his superior and also to refer the employee to another FITZGERALD vs. LOZIER MOTOR CO. 307 foreman who had charge of the "first aid" work in the plant. It clearly appears that Fitzgerald, the deceased, after having received the injury reported to the foreman in charge of the shop in which he was working, and this foreman thereupon perpetuated the information received by him by putting it in writing, and thereupon notified his superior of the fact of the injury. That these steps \vere taken was further evidenced by the fact that the defendant company notified the indem- nity company. It may be said that admissions of this kind, which are not made upon the party's personal knowledge of the facts, have little probative force, but the weight of such an admission in the trial of an ordinary case, and the circumstances under which it was made, would be for the consideration of the jury. In the proceeding before us, in our opinion, the admission may be considered at least as prima facie evidence that such an accident and injury occurred as reported, and this makes a legal basis for the findings of the board. See 17 Cyc. 814. Without considering the purely hearsay testimony, which it may be said was erroneously admitted, and considering merely the testimony of the physician and the nurse and the admis- sion of the Company's foreman, we think that there is suffi- cient to support the inference that the injury arose out of and in the course of the deceased's employment, and was the proximate cause of his death. We therefore affirm the decision of the Industrial Accident Board. 308 MICHIGAN WORKMEN'S COMPENSATION CASES. SUPREME COURT. WILLIS M. CLARK, Claimant and Appellee, vs. DAVID S. CLARK and UNION CASUALTY INSURANCE COMPANY, Respondents and Appellants. INJURIES IN THE COURSE OF EMPLOYMENT FIGHT KEEPING OFF TREJ PASSERS. The applicant was a carpenter foreman and was in the employ ol his brother engaged in erecting a dwelling house. He engagec in a fight with men who were attempting to unload brick 01 his employer's property, forcing them to desist from so doing. On the following day the men returned with reinforcements am with the evident intention of renewing the fight. In the alter- cation that ensued, applicant was struck in the eye by a piece oi iron thrown by one of the attacking party and severely injured. HELD: That the injury did not arise out of the employment. Certiorari to the Industrial Accident Board to review th< action of that Board in awarding compensation to Willis M. Clark for injuries received while in the employment of David S. Clark. Reversed. Frederick J. Ward, of Detroit, for claimant. Walters d Hicks, of Detroit, for defendants and appellants. BIRD, J. Claimant was a carpenter foreman in the employ of his brother, David Clark, who was erecting a dwelling 01 Churchill Avenue, in the City of Detroit. David also owne< the adjoining lot upon which he intended to erect a dwelling, and had let the contract to excavate for the cellar. Claimain received instructions from him to permit no building materials CLARK vs. CLARK. 309 for other dwellings being erected in the vicinity, to be depos- ited on the adjoining lot. On March 23rd two men with a wagon load of bricks drove on to the adjoining lot and began unloading them. Claimant advised them that the bricks were not for his employer, and warned them to desist. They re- fused to obey the instructions and then a fight ensued, in which the claimant got the better of it. The following day the teamster returned with a reserve force, with the evident purpose of "getting even." Some intemperate language passed between them, and claimant, who was at work on the rear porch. David overheard the talk in the basement and came out and ordered them away. They refused to go and he en- gaged in a fight with them. Claimant thinking that his brother David needed help went to his aid and kept back some of the reserve force, but did not himself engage in the fight. While so engaged, one of the assailants, threw an iron missile and struck claimant in the eye, thereby permanently destroy- ing the sight. Compensation was demanded by him under Act 10 of the Laws of 1912. The insurance company refused to respond and he thereupon made an application to the Indus- trial Accident Board. The claim took the usual course before the Board, and resulted in allowance being made of flO per week for one hundred weeks. Eespondents have brought the proceedings here for review with the claim that the award should be set aside on the ground that the injury did not arise out of and in the course of claimant's employment within the meaning of said Act. The theory upon which claimant seeks to bring his claim under the statute, is that he received the injury while protect- ing his master's property against trespassers. Testifying as to his duties claimant said: "I was in fact over all of the excavating, and from then on up until the work was finished, representing my brother when he wasn't there and when he was there." Conceding claimant's authority and duty as are stated, he fails to make a satisfactorv connection between them, and his 310 MICHIGAN WORKMEN'S COMPENSATION CASES. acts at the time he received the injury. Had he received the injury on the previous day while he was endeavoring to pro- tect his master's property against trespassers, the connection would be obvious. That incident happened the previous day, and appeared to be a closed incident except for the ill feeling which it engendered. The following day the same parties re- appeared, not for a like purpose as on the previous day, but evidently for the purpose of getting revenge, although they claimed to be in search of a lost work ticket. They assailed claimant with words only, but their attitude toward him was threatening. David overheard it and came out of the base- ment and took charge of the controversy himself. After he had engaged in the fight and appeared to be succeeding, claim- ant, who had been an observer, came unsolicited to his broth- er's aid by keeping off the reserve force, and while doing so was hit with a flying missile and injured. It may have been commendable in him to volunteer to assist his brother against such great odds, but that does not satisfactorily answer th< question what connection his acts had with his employment. He was not called upon to protect his master's property, as 01 the previous day. He was not asked to assist his master in th< fight on the second day. His action w r as purely a voluntary one, and it seems to us no different than as though he had discovered the same men fighting with his brother a week aft- erward ten blocks away, or as though claimant had observe a fight going on across the street and had gone there to gel a better view, and while there had been hit by a flying missih and injured. Had claimant remained at his work he would not have been injured. His presence at the place of fighting was in pursuance of no demand of his employment. Neither was it in aid of any material interest of his master. His pres- ence there and the assistance which he rendered was solely in the interest of his master's personal safety. An injury ceived under such circumstances cannot be said, under a fail construction of the act, to have arisen out of and in the cou] of his employment. OPITZ vs. CHARLES HOERTZ & SON, ET AL. 311 See Collins v. Collins, 2 Ir. R., 104. Mitchinson v. Day Bros., 6 Butterworth's C. C. 100. But claimant says he was in charge of his brother's work while he was away, and also while he was present. If his brother David were present and did not assume to act, claim- ant probably had the authority to act, but when the master was present, and took personal charge of the matter himself, it necessarily excludes the idea of claimant's having charge of it. The finding of the Industrial Accident Board must be re- versed and the award set aside. FEIEDA OPITZ, Applicant, vs. CHARLES HOERTZ & SON, Et Al., Respondents. EMPLOYER INDEPENDENT CONTRACTOR INSURANCE. Applicant's decedent was killed while engaged in clearing up the wreckage of a fire which destroyed the plant of Brown & Sehler, his death being caused by the falling of a brick wall of the burned building. The work was being done under the immediate direction of Hoertz & Son, a firm of building contractors, pur- suant to an agreement entered into with Brown & Sehler, pro- viding for the clearing up of the debris and the erection of new . buildings on the site. It was contended by respondents that Hoertz & Son were employed merely to superintend and direct the work and that Brown & Sehler were in fact the employers of deceased. 312 MICHIGAN WORKMEN'S COMPENSATION CASES. HELD: 1. That Hoertz & Son had full and unrestricted charge of the work, together with the men employed thereon, and that under all the facts and circumstances of the case they were in- dependent contractors and liable as the employer of decedent for the payment of compensation to the widow. 2. That under the provisions of the Workmen's Compensation Law, the insurance carrier is directly liable to the injured work- man or his dependents, and that the Board has authority in making its award to determine and fix the liability of the insurer. Application to Industrial Accident Board to decide who were the actual employers of Carl Opitz, who was killed while at work. Opinion by the Board : On February 1, 1915, Carl Opitz, applicant's husband was killed while working on the premises of Brown & Sehler in Grand Eapids, he being engaged with other men in clearing up the wreckage of the fire that destroyed the Brown & Sehler buildings. The site was being cleared for the purpose of erect- ing new buildings thereon. The work was commenced on the morning of February 1st with a force of about 35 men. At one-thirty in the afternoon of that day a brick wall of the burned building fell, causing the death of Carl Opitz and sev- eral other men, besides seriously injuring a number of the workers. It is conceded that the accident arose out of and in the course of the employment of deceased and that the appli- cant in this case was wholly dependent. It is also conceded that both Hoertz & Son and Brown & Sehler were under the Michigan Workmen's Compensation Law, and that the South- western Surety Insurance Company was insurer of Hoertz & Son under such Compensation law. The question as to who was the employer is the main point in dispute in the case, and the settlement of this point will be conclusive as to the other cases pending before the Board for injury and death growing out of this accident. It is claimed OPITZ vs. CHARLES HOERTZ & SON, ET AL. 313 on the part of Hoertz & Son that Brown & Sehler wore the em- ployers and that Hoertz & Son were merely acting as superin- tendent and agent for such owners in clearing the site and erecting new buildings following the fire. On the other hand it is claimed by Brown & Sehler that Hoertz & Son were inde- pendent contractors in the performance of the work in ques- tion, and that said Hoertz & Son were the employers of the men killed and injured, and therefore liable to pay the com- pensation. The question of the liability of the Insurance Com- pany and the right of the Board to make an award against it is also involved. Brown & Sehler were engaged in manufacturing and selling harnesses, saddlery and leather goods, their business being carried on in the three and four-story building owned by said firm, located on the west bank of the Grand River and front- ing on Bridge Street in Grand Rapids. The firm had been engaged in this business for a number of years, having a con- siderable number of employes, and operating under the Work- men's Compensation Law without insurance, having been per- mitted to carry their own risk by the Board. On the night of January 15th, their building and plant were destroyed by fire, the interior of the building being a complete wreck, but leaving a portion of the brick walls standing. The firm was desirous of clearing up the site and erecting new buildings, and entered into negotiations for that purpose with Hoertz & Son, who were extensively engaged in the business of contract- ing and building in the city of Grand Rapids and elsewhere, and such negotiations resulted in the following written pro- posal being made to Brown & Sehler on January 29th, viz.: "January 29, 1915. Brown & Sehler Company, Grand Rapids, Michi- gan: Gentlemen: We hereby propose to superintend and furnish a superintendent for the clearing of your site, and any new buildings you will build immediately, for 10% the actual cost of labor and new mater- ial required in re-construction. It is the understanding that we are to co-operate with you in the purchase of any new material and work in accordance with your wishes, or the hiring of teams and men. This proposition carries with it that Hoertz & Son will furnish all the necessary tools required to carry on this work in first class shape, 314 MICHIGAN WORKMEN'S COMPENSATION CASES. and that the owner pays all bills, and that the 10% is figured from the net cost price. Respectfully yours, Chas. Hoertz & Son, W. C. Hoertz." This proposal was made to Brown & Sehler on January 29th, which was Friday. On Saturday morning, January 30th, both Charles Hoertz and William C. Hoertz called at the tem- porary office of Brown & Sehler and discussed the matter with Mr. Sehler, discussing general matters and some details. Mr. Sehler, on the part of his firm, accepted their proposal verb- ally, and told them to go ahead with the work. Hoertz & Son thereupon made preparations to commence the work on Mon- day morning, February 1st, and among other things placed their advertisement in some of the Grand Rapids papers for men wanted at the Brown & Sehler building for work, and on Monday morning they put about 35 men to work on the job, all of them being hired for the purpose, except the superintend- ent and timekeeper who were regular employes of Hoertz & Son. Before commencing work on Monday morning, William C. Hoertz made out, dated, signed and had posted on the prem- ises notices to employes that their employer was operating un- der the Michigan Workmen's Compensation Law, the same be- ing the blank notices furnished employers for this purpose by the Industrial Accident Board, 12 by 18 inches in size, such notices reading as follows : "NOTICE TO EMPLOYES. All workmen or operatives employed by the undersigned in or about this establishment are hereby notified that the employer or employers owning or operating the same have filed with the Indus- trial Accident Board, at Lansing, notice of election to become sub- ject to the provisions of Act No. 10 of Public Acts, Extra Session, 1912. (This Act is commonly known as the Workmen's Compensation Law.) You are further notified that unless you serve written notice on your employer of your election not to come under the law, the act will immediately apply to you. OPITZ vs. CHARLES HOERTZ & SON, ET AL. 315 If you do notify your employer that you elect not to come under said act, you may afterwards waive such claim by a notice in writing, which shall take effect five days after it is delivered to the em- ployer. At the expiration of which period the law will apply to you. INJURY NOT RESULTING IN DEATH NOTICE OF (How to Proceed, etc.) INJURY RESULTING IN DEATH NOTICE OF (Provisions as to notice, etc.) LIMIT OF PERIOD OF NOTIFICATION. (Provisions of Law given, etc.) Date 2/1-1915 7 A. M. Chas. Hoertz & Son, Employer. By Wm. C. Hoertz. (For Brown & Sehler Co.)" The words ''for Brown & Sehler Co." are given in paren- thesis above, for the reason that they are written in a different hand-writing and smaller than the signature, "Chas. Hoertz & Son, By Win. C. Hoertz." Hoertz & Son or their superintendent selected the men who were put to work, employed them, fixed their wages, and di- rected and controlled their work. It is true that Mr. Sehler was desirous that some of the old employes of Brown & Seh- ler be given work, and a couple of these men were set to work by Hoertz Son at his request. It is also true that Mr. Seh- ler made some suggestions as to where to begin the work and the handling of some of the material, but we think the record fairly shows that this was by way of suggestion and for the purpose of enabling him to look after salvage if any property was found in the debris worth saving. The work of clearing the site and debris occupied something more than two weeks time, and the erection of the new buildings thereafter required a couple of months. Hoertz & Son had been engaged in the 316 MICHIGAN WORKMEN'S COMPENSATION CASES. business of contracting and building for 15 years and upward* in Grand Kapids and vicinity, had offices, tools and applianc< for the work, and were engaged in the business of contracting and building as an independent business, which appears t( have been carried on successfully by them on a large scale. As such contractors they had other buildings in the course ol erection at the time of the accident, some being done on basis of a percentage of the cost of labor and material. Saturday forenoon, January 30th, some talk was had tween Wm. C. Hoertz and Brown & Sehler relative to insui ance, which resulted in Mr. Hoertz calling up the office of the Southwestern Surety Insurance Company in Detroit and tall ing with Mr. Evans, the agent of said company. Mr. Hoerl testified that the purpose of the call was to arrange for lii bility insurance for Brown & Sehler's employes, and that sue] arrangement was made by telephone, he to send on a check foi $25 on behalf of Brown & Sehler as a binder. He further te* tified that the check was sent before noon on Saturday an< that the insurance was to be in effect at 12 o'clock Januai 30th. It appears that the check was in fact sent on the da1 referred to, and was received by the insurance company an< cashed. It further appears that Mr. Evans, representing tin Surety Company, came to Grand Eapids on February 3r< immediately saw Wm. C. Hoertz and attached to his liabilil insurance policy a rider, the principal portion of which is follows : "January 30, 1915. It is understood and agreed that this policy hereby extended to cover operations as listed in the schedule of policy in connection with the contract for Brown & Sehler building, Bridge and Front Streets, Grand Rapids, Michigan. Subject otherwise to all the conditions, agreements and limitations, etc. * * * Counter- signed at Detroit, Michigan, this 30th day of January, 1915. Morlc & Coleman, General Agents, per Warren A. Morley." After attaching this rider to the policy, Mr. Evans and Wi C. Hoertz went around to the families of all of the men wh< suffered from the accident, and Mr. Evans, who assumed speak for the Surety Company, told the injured men and th< OPITZ vs. CHARLES HOERTZ & SON, ET AL. 317 dependents that the compensation provided for by the law would be paid, etc., explaining to all of them that Chas. Hoertz & Son were covered by the policy of the Surety Company. The work was in progress less than a day before the occur- rence of the accident, but no claim is made by respondents that it was handled or conducted differently from what was originally intended by the parties, or that any changes were made in the manner of handling the work or the men after the occurrence of the accident. Hoertz & Son, it appears, got right onto the job with their tools and appliances, organized their force and proceeded to do the work in the manner usual with contractors. They planned the ways of doing, and the means as well, purchased the materials and employed and directed the men, and in the end delivered the complete result to the owners, receiving therefor, in addition to the actual cost of labor and material, 10% thereof. It fairly appears that Brown & Sehler had no expert knowledge of building and did not as- sume to do any part of the work or direct the manner of handl- ing or performing it, they being apparently not qualified by knowledge or experience so to do. Hoertz & Son discharged the men and fixed or changed their wages as they saw fit, and handled the entire work and the men employed thereon with as full and complete control and authority as if they were the sole owners or employers. It also seems clear that the parties at the time of entering into the contract understood and in- tended that the matters would be so handled, and that the parties would conduct themselves with reference to is sub- stantially as they did. The written proposal at first blush would seem to imply that Hoertz & Son were only to supervise and act as agent for Brown & Sehler in doing this work. The writing, how- ever, is to be read in the light of the surrounding circumstances and conditions, and the actions of the parties with reference to the same. The true purpose in the interpretation of con- tracts is to ascertain the intent of the parties, the writing be- ing an aid to this end and in many cases conclusive. The cor- rect rule, we think, is declared by the U. S. Court of Appeals, 318 MICHIGAN WORKMEN'S COMPENSATION CASES. Sixth Circuit, in the case of Mishawxtka Woolen Manufactur- ing Company vs. Westveer, 191 Federal Keporter 467; as fol- lows: "The Court looks not merely to the whole instrument, but also to the acts and circumstances attending its execution and performance." Keeping in mind the fact that Hoertz & Son were exercising and following an independent business of their own, maintain- ing an office, tools, appliances, and equipment, and accustomed to take jobs on a percentage basis, and applying the broad rule of interpretation above-referred to, we are forced to the conclusion that the status of Hoertz & Son was that of inde- pendent contractors, and that they were in fact the employers. It might further be said that the conduct of Hoertz & Son in advertising for men to do this work, posting the notices with reference to the Compensation Law, and employing and direct- ing the men as in this case, would go far to preclude them from denying to such men the right to claim compensation from Hoertz & Son when injured. Naturally the men who an- swered the advertisement, who were met by Hoertz & Son and their superintendent and hired, and who saw the notices with reference to the Compensation Law posted, would enter upon the work in the belief that they were the employes of Hoertz & Son and entitled to compensation from that firm, if injured in the course of their employment. The Workmen's Compensation Law provides that the insur- ance carrier shall be directly liable to the injured workman or his dependents, and that such liability may be enforced against such insurer. It also provides that all questions aris- ing in the administration of the Workmen's Compensation Law shall be determined by the Industrial Accident Board. We are therefore, of the opinion that the Board has authority to make an award against the insurance carrier, as was done in this case. Award affirmed. OPITZ vs. CHARLES HOERTZ & SON, ET AL. 319 PIETTERNELLA VISSER, Applicant, vs. MICHIGAN CABINET COMPANY, Respondent. FRIGHT OB SHOCK ABSENCE OF PHYSICAL INJURY. Applicant's decedent was loading some stock on an elevator when it suddenly started up. The elevator was stopped and the stock was replaced on the truck, and after wheeling it about 40 feet applicant fell to the floor and expired a few minutes after he was picked up. A post mortem examination disclosed that he was suffering from organic disease of the heart and it was the opinion of the medical witnesses that while deceased received no physical injury the shock and excitement resulting from the sudden start- ing of the elevator prohably caused his death. HELD: Where death or disability results from fright, unaccom- panied by any immediate physical injury, no compensation can be had. Appeal of Pietternella Visser from decision of an arbitration committee refusing to make an award for the death of her husband. Affirmed. Opinion by the Board : Gerrit Visser was working in the employ of respondent as a lugger in its factory at Grand Rapids. Part of his duties re- quired him to move the unfinished stock from various floors in the factory to the lower floor by use of a truck, and in pass- ing from one floor to the other a large elevator was used. On November 26, Visser was moving a truck loaded with drawers from the second floor to the first floor of respondent's factory. He wheeled the truck load on to the elevator at the second floor, then descended with the elevator to the first floor and proceeded to wheel the truck from the elevator. The 320 MICHIGAN WORKMEN'S COMPENSATION CASES. elevator started upward when the truck was partly off, causing it to tip so that some of the drawers fell off. Other employes of the respondent stopped the elevator, which was large and slow moving, when it was about two and one-half feet above the floor. The truck was then adjusted and the drawers which had fallen off were replaced by Visser and another employe. Visser then proceeded to wheel the truck from the elevator shaft to another portion of respondent's factory, and after wheeling it about forty feet he fell to the ground. He was picked up and carried into the office and died a few minutes afterward. A post mortem examination was held which showed that he was suffering from organic disease of the heart. While he received no physical injury, it is apparent that the nervous shock and excitement resulting from the up- ward movement of the elevator affected his heart in its dis- eased condition, and in the opinion of some of the medical witnesses probably caused his death. The case presents squarely the question, whether compensa- tion can be recovered where death or disability results from fright unaccompanied by any immediate physical injury. Un- der the authority of Nelson vs. Crawford, 122 Michigan, 486, and Schroeder vs. Railway Company, 20 D. L. N., 251 recovery could not be had in such cases. The case of Yates vs. Collars, Ltd., 3 B. W. C. C., 419, seems to establish the oppo- site rule under the British Workmen's Compensation Law. The question is one of great importance. If the Compensa- tion Law is held to cover cases of fright or nervous shock un- accompanied by physical injury, it will bring under the Com- pensation Law a large class of cases for which compensation by w r ay of damages has heretofore been denied in Michigan. While the question is not free from doubt, we are of the opin- ion that our statute was not intended to cover the ci-ass of cases above mentioned. We also think that it is desirable to have this question finally settled by an early decision of the RIDER vs. THE C. H. LITTLE COMPANY. 321 Supreme Court. The decision of the committee on arbitration is affirmed. IACOB RIDER, Applicant, vs. 'HE C. H. LITTLE COMPANY, Respondents. TEAMSTER NOT REGULARLY EMPLOYED OWNER OF TEAM AND WAGON. The applicant was the owner of a team and wagon, and was en- gaged in hauling dirt for respondent, receiving for the work of himself, team and wagon $6 per day. While so engaged he re- ceived injuries to two fingers by which he was totally disabled for 2y 2 months, and which resulted further in causing a per- manent stiffness by reason of which the applicant has only partial use of such fingers. An arbitration committee awarded the applicant compensation for 43 weeks at 50% of his average weekly wage. Respondent's contention is that Rider was not their employe within the meaning of the act and that the award of compensation was excessive. HELD: 1. The fact that the applicant worked under orders of respondent's foreman, and was required to conform in detail to the regulations and system of work of defendant was sufficient to make him an employe of defendant within the meaning of the compensation law. 2. The fact that applicant was totally disabled for 2^ months, and that the injury resulted in a partial loss of the use of his fingers, which condition was permanent, is such as to make the compensation award a reasonable one. 41 322 MICHIGAN WORKMEN'S COMPENSATION CASES. Opinion by the Board: The applicant, Jacob Rider, was the owner of a team and wagon, and had been engaged in the general teaming business in Detroit for a number of years prior to his injury. He had worked on and off with his team for respondent during a per- iod of about six years. He had been working steadily for res- pondent for about seven weeks prior to his injury, which oc- curred on November 7th, and was receiving $6.00 per day for himself, his team and wagon. The work in which he was en- gaged was hauling dirt for respondent. There were from twelve to fifteen teams engaged in the same work, and the wagons were loaded with a mechanical device called a "clam" which was operated in practically the same way as a steam shovel. The clam would be let down and filled with dirt and closed by the machinery. It would then be raised and swung around over the wagon which was to be loaded. The teamster would steady the clam so as to be over the portion of the wagon that needed filling, and the operator of the machine would then cause it to open and drop the dirt in the wagon. The injury in this case was caused by the clam closing on Mr. Eider's fingers after the dirt had dropped in the manner above indicated. The first and second fingers were badly broken and lacerated. Defendant w r as totally disabled from work by the injury for two and one-half months, and the injured fingers have become stiff and have lost to a large degree their power of closing and their usefulness. The committee on arbitra- tion awarded the applicant compensation for forty-three weeks at fifty per cent of his average weekly wages. This decision is appealed from by the respondent upon the following grounds : 1. That Rider was not an employe of respondent within the meaning of the compensation law. 2. That the award of compensation is excessive. It appears from the evidence that Rider was licensed as a teamster in the city of Detroit, and that he engaged in doing such various jobs of teaming and transfer work as he could get to do from time RIDER vs. THE C. H. LITTLE COMPANY. 323 to time. It is also shown that he was required to have a license under the city ordinance, and that such licenses are re- quired of teamsters except in some instances where firms like respondent use their own teams and teamsters in their bus- iness, and have their names printed on their wagons. It also appears that Elder worked for respondent from time to time during the past six years, and that he worked for respondent steadily with his team and wagon from about the 14th of Sep- tember until the date of the injury, doing the same work as the other teamsters of respondent, and doing no other work with his team and wagon during that time. He was hired for $6.00 a day. It is undisputed that the regular wages of a teamster for that class of work is $2.50 a day and the regular wage for a team and wagon $3.50 a day, and Mr. Kider claims that he was employed at $2.50 a day for himself and $3.50 for his team and wagon. He worked under the orders of respond- ent's foreman, who directed him how to do the work, where to go, how to make deliveries, and required Rider to conform to all of the regulations as to the w r ork done and the manner and system of doing it and was required of the other teamsters of respondent. It clearly appears that respondent through its foreman kept a close supervision over the work and move- ments of Mr. Rider and directed and controlled the same in every particular. In the opinion of the Board, Mr. Rider was an employe of respondent within the meaning of the compen- sation law at the time he was injured, and the fact that his team and wagon was also employed in the work did not make him a contractor nor in any way change his status as such employe. The fact that he w r as totally disabled for two and one-half months is undisputed, and the fact that the first and second fingers of his hand are permanently injured is also undisputed in the case. In the opinion of the board it is fairly shown that the injury (w r hich is permanent in its character) to appli- cant's first and second fingers has caused a loss to him of one- half of the use of such fingers. The board has held in other cases that where the use of a finger is destroyed by an injury, 324 MICHIGAN WORKMEN'S COMPENSATION CASES. that it is equivalent to the loss of such finger whether the same is amputated or not. That the real test is not the ac- tion or non-action of the surgeon as to cutting off the finger, but it is whether the injured person has been deprived perma- nently of the use of such finger even though it was not am- putated. Upon the same principal an injury which destroys one-half of the beneficial use of a finger should be rated as the loss of a half finger, and if that rule is applied in the pres- ent case the award of forty-three weeks' compensation will be correct. Substantially the same result would be reached, we think, by treating the permanent injury to the fingers as a permanent partial disability. The award of the committee on arbitration is affirmed. X. B. KONKEL, Applicant, vs. FORD MOTOR COMPANY, Respondent. BURIAL EXPENSES CONTRACT FUNERAL. An employe of respondent was killed while at work and left no de- pendents. In accordance with Sec. 8, Part II, of the compensa- tion law, respondent was liable for the funeral expenses not ex- ceeding $200. Respondent made a contract with an undertaker, the applicant, to furnish and conduct the funeral for $75, and further agreed to pay $15 for the cemetery lot. Applicant pre- sented a bill for $104, stating that the extra $14 was for three carriages furnished for friends of the deceased who attended the funeral. Respondent refused to pay the extra $14, claiming that it was an overcharge and that the agreement practically ex- cluded carriages. KONKEL vs. FORD MOTOR COMPANY. 325 HELD: 1. That the right to the custody and burial of the dead belongs to the family, next of kin, near relatives and friends of the deceased, and that the compensation law does not assume to take away or interfere with this important right. 2. That the employer has no authority to contract for funerals with an undertaker in such a way as to arbitrarily fix the num- ber of carriages or to decide in certain cases that no carriages shall be provided. These are matters for the family or next of kin to decide and arrange for, provided the expense is reasonable and does not exceed the limit fixed by law. Appeal of X. B. Konkel to compel the Ford Motor Company to pay his claim for funeral expenses incurred in the burial of one of respondent's employes. Opinion by the Board : This case involves the question of funeral expenses, the de- ceased workman, John Ovczieneko, having left no dependents. Section 8, Part II, of the act provides that in cases where the employe leaves no dependents, the employer shall pay or cause to be paid the reasonable expenses of his last sickness and burying, which shall not exceed $200. It is claimed by res- pondent that it entered into a contract with the undertaker, X. B. Konkel, to furnish and conduct the funeral of deceased for f 75, the respondent to pay in addition thereto the cost of the cemetery lot, which was $15. After the funeral was had the- claimant presented a bill to respondent for $104, being $15 for the cemetery lot and $89 for the funeral. The precise claim of respondent is that the claimant had made an overcharge of $14, claiming $89 for the funeral when the agreed amount was $75. The claimant admits that the price agreed upon for the funeral was $75, but claims that the relatives and friends of the deceased w T hen the funeral came on required him to fur- nish three additional hacks and that the $14 additional charge is for those hacks, which were actually furnished and used at the funeral. The only -relative of the deceased who resided 323 MICHIGAN WORKMEN'S COMPENSATION CASES. here and attended the funeral was a brother, but many friends and acquaintances of the deceased attended, and some of them rode in the three hacks to the cemetery. The agreement be- tween the claimant and respondent with reference to the fu- neral practically excluded hacks, the precise contention of res- pondent being stated as follows : "The deceased had absolutely no family nor friends in this country, outside of his brother, and this company will not pay for pleasure carriages for fu- neral purposes and if people desire to go for a ride or an un- dertaker desires his friends to go for a ride, they must pay for their carriages. * * * That after an absolute contract was made the undertaker should not go ahead and incur ad- ditional expenses." It will be seen that this case involves the fundamental ques- tion, has the employer the right to order and contract for the funeral in cases of this kind, and can he limit the item of ex- pense and the character of the funeral. If he has this power then the contract entered into with claimant would be con- trolling and the additional expense incurred for carriages would be unauthorized. The Board, however, is clearly of the opinion that the employer has no such power. The right to the custody and burial of the dead belongs to the family, to the next of kin, to the near relatives and friends. The right is inherent and universally recognized. They may make the funeral as to form, rites, procession and burial whatsoever their sentiment, judgment and traditions dictate. The com- pensation law does not assume to take away or in any manner interfere with this important right of the family and relatives of the workman in death cases like this. The law merely pro- vides that the employer shall pay the expense, or cause it to be paid, and that the amount of his liability for such expense shall not exceed |200. It does not give him the right to con- tract with the undertaker, or even to select the undertaker. Much less does it give him the right to arbitrarily fix the num- ber of carriages, or to decide that in certain cases no carriages shall be provided. These are matters for the family and next of kin to decide and provide for, and 'if the expense is reason- JANKOWSKI vs. AMERICAN CAR & FOUNDRY CO. 327 able and does not exceed the limit fixed by law, it should be paid by the employer. In this case the extra hacks were or- dered by the next of kin and friends of deceased, and were used to convey his friends to the place of burial. In the opin- ion of the Board they were reasonably necessary, and the bill of claimant for f 104 is allowed and ordered paid. TOHN JANKOWSKI, Applicant, vs. 3IERICAN CAR & FOUNDRY COMPANY, Respondent. [NTENTIONAL AND WILFUL MISCONDUCT. The applicant was working under a car in the process of con- struction in such a position that he. would be seriously injured by the moving of the car while so engaged. The usual signals pre- ceding such movement were given and applicant had been in- structed in the same. HELD: That the failure of the applicant through inattention, lack of mental alertness or on account of the noise, to hear and comprehend the signals did not under the facts in this case, constitute intentional and wilful misconduct. Opinion by the Board: The applicant, John Jankowski, was severely injured in one )f the factories of respondent in Detroit, by the moving of a *ar under which he was working. He was employed as a "sweeper" in respondent's factory which is known as the 328 MICHIGAN WORKMEN'S COMPENSATION CASES. 'Peninsular Department," where the respondent was engaged in the construction of cars of various types. He was working in a large room on the floor of which there are approximately 16 railroad tracks which are used for cars in the process of construction. From time to time as different parts of the con- struction work are finished, the cars are moved along the tracks to other parts of respondent's plant. Applicant's duties were to maintain order throughout the shop by sweeping and picking up rubbish from the floor and also from under the cars. Shortly before he was injured, he went under one of a string of three cars to clean up, that is, to pick up some pieces of wood and iron from the floor. Work was being done at that time by carpenters and others upon these cars and also upon the cars on an adjoining track, the men using heavy hammers in their work and making considerable noise. There were certain rules promulgated by respondent's fore- man in charge of the train under which applicant was injured. One of these rules provided for the blowing of certain warning whistles before moving the cars along the track. The fore- man in his testimony states the rule, as follows: "I just blow once and then I look around and see if everything is clear; "then blow twice and wait a few seconds and then blow three times; that is the last, for the men all know when the third whistle comes the car is going to be pulled in a very short time. I have no fixed time between whistles. Most of the time there is between three and five minutes between first whistle and the next two whistles; I never take out my watch." The rule as established and understood by the men was that all persons working inside or around the cars should get out of danger upon the sounding of the first whistle, and it was so understood by the applicant. No printed or written rule to this effect was posted in the factory, but the rule was communicated to the men by the foreman working in and about the cars. There is a whistle for each track, and the one in use in connection with the track on which applicant Vas injured was strong enough to be heard for some distance be- yond the limits of the room in which the work was being done, JANKOWSKI vs. AMERICAN CAR & FOUNDRY CO. 329 and at the time the signals were given for the movement of the cars in question no other whistle was being blown. While there was considerable noise in the room from the general occupation, it was not enough to prevent one from hearing and understanding the signals. A few minutes before the accident applicant went under one of the string of cars above referred to at a point about 60 feet! from where the whistle was located, and with a broom and keg was engaged in pick- ing up pieces or iron and wood which had dropped under the car in the course of the construction work. Before the cars were moved, the usual whistle signals were given. Appli- cant's hearing was normal. He remained under the car and was seriously injured when it w r as moved. The signals that the cars were about to be moved were in fact given by blow- ing the whistles according to rule, and the applicant was fam- iliar with and instructed in such signals. It is claimed that his failure to heed the signals and promptly go to a place of safety before the cars w r ere moved constituted intentional and wilful misconduct within the meaning of the law. In the opinion of the Board this contention cannot be sus- tained. Through inattention, lack of mental alertness, or on account of the noise, or for some other reason, applicant failed to hear and comprehend such signals, in the sense that said signals did not convey to his mind on the occa- sion in question a realization of the fact that the car under which he was working was about to be started. An alert, careful man in the position occupied by applicant would have heard and understood the signals, but under the facts and conditions in this case where applicant must have known that serious injury would result to him from the moving of the car while he was so working under it, the Board cannot believe and therefore cannot find that applicant heard and understood the signals in the sense above stated. 330 MICHIGAN WORKMEN'S COMPENSATION CASES. SAMUEL J. MALZAC, Applicant, vs. BRULE TIMBER COMPANY, and AETNA LIFE INSURANCE COMPANY, Respondents. DEPENDENTS PARENT AND CHILD. The applicant, a minor whose parents had separated, was living with his grandparents and being supported by them at the time of his father's death. The father was not contributing to his son's support or maintenance except that he provided for him clothing, some life insurance, and at times assisted the grand- parents on the farm. On the death of the father as a result of an accident while in the employ of respondent, the child ap- plies through his guardian for compensation as a dependent under the statute. HELD: 1. That the law does not limit dependency of minor chil- dren to cases where actual support was being furnished or con- tributions made, as such a rule would in many instances exclude children from the benefits of a' law that was clearly intended for their protection. 2. Where there is a direct legal obligation to support, as in the case of a father to his minor children, coupled with the reasonable probability of such obligation being fulfilled, depen- dency is established even though no support was in fact being furnished at the time of the workman's death. Application by Samuel J. Malzac for compensation for the death of his father, as a dependent within the meaning of the Workmen's Compensation Law. Granted. Opinion by the Board : Samuel Malzac, the father of applicant, while working as a teamster for defendant Lumber Company, was instantly killed MALZAC vs. BRULE TIMBER CO. 331 by the fall of a gin-pole used in skidding logs. It is conceded that his wages amounted to |50 per month and that the acci- dent arose out of and in the course* of the employment. The remaining facts are stipulated by the parties as follows: "Deceased left surviving him a wife, Blanche Malzac, with whom he had not lived since September, 1912, and to whose support he did not contribute since that date, and said wife makes no claim for compensation." The stipulated facts then proceed as follows: "Deceased also left surviving him a minor son, Samuel Malzac, Jr., who was born December 25th, 1909, but said minor son, when about 4 or 5 months old, was left with Alphonse Malzac, his grandfather, and has since that time been making his home with said Alphonse Malzac; that the father, the deceased, has not in any way contributed to the support or maintenance of Samuel Malzac, Jr., since this minor son went to the home of his grandfather, excepting that dur- ing the summer of 1913, deceased bought a complete outfit of clothing for his son, worth approximately $9.00; excepting that during the months of March and April, 1911, said Samuel Malzac, deceased, and Blanche Malzac, his wife, lived together for a period of four or five weeks, during which time said Samuel Malzac supported and cared for said child, and that again in the months of August and September, 1912, said Samuel Malzac and said Blanche Malzac, his wife, lived together for a period of four or five weeks, and during said time the said Malzac supported and cared for said child. That deceased did not in any way pay any money to Alphonse Malzac, for the support or maintenance of his son. That deceased carried a life insurance policy for $1,000 in the Brotherhood of American Yeoman, the bene- ficiaries as named therein were Lucy Malzac, his mother, and Samuel Malzac, Jr., his son, each to receive one-half of said $1,000 at de- ceased's death. That the grandfather, Alphonse Malzac, caused to be issued a life insurance policy in the Metropolitan Life Insurance Com- pany, Policy No. 48107514, premium 10 cents per week, beneficiary named therein being Alphonse Malzac, grandfather, said policy being on the life of Samuel Malzac, Jr. That at the time said policy was issued, Samuel Malzac, deceased, signed a paper authorizing the Metropolitan Life Insurance Company to issue the said policy to said Alphonse Malzac, as beneficiary. That at said time said Alphonse Malzac attempted to adopt said Samuel Malzac, Jr., but said adoption proceedings were not completed. That deceased at various times, when out of work, would make his home with Alphonse Malzac, his father, but at said times would not in any way contribute to the sup- 332 MICHIGAN WORKMEN'S COMPENSATION CASES. port of his minor son, nor would he pay anything to his father, Alphonse Malzac, except by assisting a little around the small farm owned by said Alphonse Malzac. Therefore the only question in dis- pute is as to whether or not Samuel Malzac, Jr., is a dependent, under the terms of the Michigan Workmen's Compensation Law, here- in described." The accident in question happened on December 13, 1913. It is contended by respondents that no dependency is shown in this case and therefore no compensation is payable, the contention being based upon the claim "that no contributions were being in fact made by the father for the support of ap- plicant at or immediately prior to the time of his death. It is contended on behalf of the applicant that he is wholly de- pendent. This squarely presents for determination the question of the application of the Workmen's Compensation Law in cases of minor children who do not fall within the class covered by the conclusive presumption of dependency, when the father or other parent is taken away by an industrial accident. Where the father is entirely supporting such child or chil- dren, or has been making material contributions for their sup- port, little difficulty is experienced in applying the law. How- ever, many cases arise where by reason of moving, financial difficulties, changes in families, or any of the numerous ar- rangements under which chidren are cared for by relatives, friends or organizations, dependency cannot be determined on the basis of past contributions and support furnished by the deceased parent, as no such basis exists. It seems clear that the law does not intend to limit dependency of minor chil- dren to cases where actual support was being furnished or contributions made, as such a rule would in many instances leave infant and posthumus children outside of the benefits of the law, which was clearly intended for their protection. The English courts, including the House of Lords, have es- tablished the rule that posthumus children are dependents within the meaning of Ihe I'ritish Act, which in this respect is substantially the same as ours, holding that a reasonable MALZAC vs. BRULE TIMBER CO. 333 anticipation that the children would be maintained is a suffi- cient basis. Orrell Colliery Company ys. Schotield, 2 B. \V. C. C. 295. From a careful examination of the authorities it seems clear that the word "dependent" is used in Workmen's Com- pensation Laws to describe or designate a state or condition of the person referred to, haying regard to his class and posi- tion, and not one who merely derived a benefit from the earn- ings of the deceased workman. Boyd's Workmen's Compensa- tion, 490 ; Lloyd v. Powell Coal Co., 7 B. W. C. C., 333. The confusion on this point that seems to haye arisen in connec- tion with the case of New Monckton Collieries, Ltd. v. Keeling, 4 B. W. C. C., 332, is in the judgment of the Board cleared up by the case of Young v. Niddrie & Benhar Coal Company, Ltd., G P>. W. C. C. 782, the latter case being decided by the House of Lords in July, 1913, some two years after the decis- ion in the Keeling case. The Keeling case is referred to in some of the text books as "the great case * * that finally settles the law on the whole subject." Bradbury's Workmen's Compensation Law, 573. The conclusion there reached by the House of Lords that the dependency of the wife, who was not being supported by her husband, was not established by the mere fact of the existence of a legal obligation to support, is made prominent. The Young case above cited distinguishes the Keeling Oa-se and supplements it particularly with refer- ence to minor children. In the Young case, it was contended that the true question is "Was the applicant actually receiv- ing support from one who was under an obligation to give support, and who was also the servant of the master whom it is proposed to make liable in compensation?" As to this proposition the Court say: "I cannot agree with this view of the true question. I agree that a mere legal right may not, in certain circumstances, be sufficient. * * The true question in the present case is, in my opinion, whether there was, as one of the facts to be taken into account, an effective and valuable legal right. If there was such a right, and there was no legal difficulty in the way of enforcing it, then the mere fact that a want of opportunity to resort to it, which might have proved only 334 MICHIGAN WORKMEN'S COMPENSATION CASES. temporary, had reduced the mother and children for the time to liv- ing on charity, cannot affect the conclusion that by the father's death they lost something on which they could depend. * * I am of the opinion that these children were wholly dependent. They had the right to look to their father for maintenance. * * It was only by assistance from their brothers, assistance which might have ceased at any moment, that they were saved from actual want." Again in the same case, Page 782, it is said: "There may be cases in which the husband's legal obligation to support his wife may be held to be suspended, but when that legal obligation, not discharged by the husband, concurs with total destitu- tion on the part of the wife and inability to support herself, the bare fact that at the date of his death the husband was not imple- menting his obligation is not sufficient to prevent us from holding that the wife was wholly dependent on him. Neither, in my opinion, is the question affected by the fact that during the husband's ab- sence and neglect the wife was kept from starvation by the casual charity of strangers, or even relatives." The rule laid down in the Young case may be fairly sum- med up as holding that where there is a direct legal obliga- tion to support, as in the case of a father to his minor chil- dren, coupled with the reasonable probability of such obliga- tion being fulfilled by furnishing such support either volun- tarily or involuntarily, dependency is established, even though no actual contributions or support were in fact being fur- nished prior to the death of the workman. This is not in con- flict with the case of Pinel v. Eapid Railway System, 184 Mich., 169, as in that case the obligation of the deceased to support the applicant, who was his mother, was indirect, and did not in fact become a legal obligation until made so by proper legal proceedings. On the other hand, the obligation of a father to support his children is direct and immediate. The rule is also in harmony with the case of Ingersoll v. De- troit & Mackinac Kailway Co., 163 Mich., 268. In the latter case, suit was brought for a wife and infant child who were residing in another state and receiving no contributions or support from the deceased workman. The trial court directed a verdict for defendant on the ground that there was no de- MALZAC vs. BRULE TIMBER CO. 335 pendency and plaintiffs suffered no pecuniary loss by the death. The Supreme Court, in a well considered opinion cit- ing many authorities, reversed the judgment, holding that the legal right to support coupled with a reasonable probability of receiving it was sufficient to establish plaintiff's case, and that the wife and child could recover for the contributions, voluntary or forced, that .would probably have been made by deceased in their favor. In the case at bar, it is apparent that the wife had separated from the husband under such circumstances as to exclude any claim by her, and that no support or contributions from her could be expected by the applicant. On the other hand, the applicant's father up to the time of his death provided cloth- ing for his son, also life insurance, and assisted the grand- rents on the farm. Apparently the grandparents were en- irely willing to support the applicant, and we think it fairly appears that had it been otherwise the father would not have permitted him to want. While the father lived the probabil- ity of furnishing support together with the legal obligation so to do would continue, and upon this the applicant had a right to depend. By the father's death this guaranty of sup- port is taken away, and the support that was being furnished by the grandparents might be withdrawn at any moment. We think under the- facts and authorities that the applicant was wholly dependent. He had a right to look to his father for support, and the probability of receiving it, in the judgment of the Board, was so strong as to amount almost to a cer- tainty. The theory that this four year old child cannot be considered a dependent under the law when his father is taken away by an industrial accident, on account of the fact that he was being supported by his grandparents, such support be- ing voluntary and perhaps temporary, is unsound in the judg- ment of the Board and must be rejected. While the fact of support being actually furnished by the deceased workman prior to his death is an important circumstance bearing upon the question of dependency, it is not controlling. Such cir- cumstance does not create the dependency in cases of this 336 MICHIGAN WORKMEN'S COMPENSATION CASES. kind, but is merely an element tending to show that a state of dependency in fact existed. KEYES-DAVIS COMPANY, .Applicant, vs. LEE E. ALDERDYCE, Respondent. LIABILITY FOR ACCIDENT OCCURRING OUTSIDE OF THE STATE. Respondent was employed as a traveling salesman by applicant, and was injured in Buffalo, N. Y., while in the active discharge of his duties. HELD: That respondent is not entitled to compensation, on the ground that the provisions of the compensation law do not cover accidents occurring outside of the state of Michigan, even though both parties are residents of this state. Application of Keyes-Davis Company for ruling on question of injury occurring in another state. Both parties stipulated the facts and waived arbitration proceedings and case was heard by full Board. Opinion by the Board : The applicant and respondent are both residents of Battle Creek, Michigan. The respondent was in the employ of the applicant as a traveling salesman, and was injured at Buffalo, New York, by a fall received in the office of the Larkin Com- KEYES-DAVIS COMPANY vs. ALDERDYCE. 337 pany, where he was on the business of his employer. The sole question involved in this case is whether the Michigan Work- men's Compensation Law is operative beyond the boundaries of the state of Michigan. The applicant contends that it is not and that there is no liability for the payment of compen- sation for an accident occurring outside of the state. It is a general rule of law that every statute is confined in its operations, to persons, property and rights which are with- in the jurisdiction of the legislature which enacted it; and if a citizen of the state leaves it and goes into another state he is left to the protection of the laws of the latter state. Black on Interpretion of Laws, Page 91; Lewis Sutherland's Statutory Construction, Sections 13 and 14. This, however, seems to be based upon a rule of statutory construction, rather than upon a lack of legislative power to make such a law operative outside the limits of the state. Un- der this rule of construction there is a strong presumption in case of every statute that it is intended to operate and be effective only within the limits of the state or country which enacted it, and in the absence of evidence in the law itself that it was intended to have an extra-territorial operation, the presumption seems to be conclusive. From our examination of the Michigan Workmen's Compen- sation Law we find no internal evidence of an intent that the law should be operative outside of the boundaries of Mich- igan. The language used in the act is general and broad enough to include injuries occurring without the state, but under the above rule of construction such general language is limited and held to be intended for application only to per- sons, property and rights within the state. There is another feature of the act which reinforces this position and indi- cates affirmatively the intention of the legislature to so limit the operation of the law, and that is the requirement in Sec- 43 338 MICHIGAN WORKMEN'S COMPENSATION CASES. tion 8 of Part III that the hearings to adjudicate disputed claims for compensation "shall be held at the locality where the injury occurred." If the act is held to be operative out- side of the state, this requirement might make it necessary for members of the Board to go to the most distant portions of the United States, or even to foreign countries, to hear and adjudicate disputed claims for compensation. The fact that both parties are residents of Michigan and the contract of employment was a Michigan contract will not, we think, change the rule. The obligation to pay compensation is not a matter of contract, or based upon contract, but is a statutory duty, created by statute and existing only by force of such statute. If this is correct, and the statute is inopera- ive at the place where the accident happens, the happening of the accident creates no obligation to pay compensation. 2 B. W. C. C. Page 1. It is therefore held by the Board that respondent is not en- titled to compensation. In re HARRY HART. MEDICAL SERVICES RENDERED MORE THAN THREE WEEKS AFTER ACCIDENT. Claimant was injured while in the exercise of his ordinary duties, but serious effects did not develop until more than eight weeks after the accident occurred. Payment for medical and hospital services was disputed on the ground that such services wei rendered more than three weeks after the accident. HELD: 1. Sec. 4, Part II, ot the Compensation Act, an employer shall furnish the injured employe medical and hospital service IN RE HARRY HART. 339 not exceeding three weeks in point of time, and the commence- ment of such service should be at the time the injury requires it. 2. The words, "injury" and "accident" as used in the act are distinguished thus: the "accident" is the cause of the "injury" and the time is computed from the date of the injury resulting from an accident. Opinion by the Board : The question as to the liability of an employer to pay for the hospital and medical services furnished the injured em- ploye is involved in this case. The employe, Harry Hart, on November 16, 1912, while acting in the course of his employ- ment, caught hold of and attempted to stop a barrel of sugar which was rolling down a slight incline. His effort in stop- ping it caused a strain or rupture in the groin. He experienc- ed some pain at the time, but it did not appear to be serious, and he kept on at work until January 6, when the hernia be- came more clearly developed and its condition so serious that it necessitated an operation. The operation was succesful and he returned to work three weeks after the sixth of January fully recovered. The doctor's bill for the operation is dis- puted by the employer upon the ground that it was incurred more than three weeks after the injury. The determination of this question involves the construction of Section 4, Part II of the Compensation Act, which is as follows : "During the first three weeks after the injury the employer shall furnish, or cause to be furnished, reasonable medical and hospital services and medicines when they are needed." The claim is made on the part of the employer that the in- jury having occurred on November 16, the three weeks during which medical and hospital service is required to be furnished commenced on that date, and such three weeks' period had expired before any part of the medical and hospital service claimed for in this case was rendered. In the opinion of the Board it is the clear intent of the law that in all cases the 340 MICHIGAN WORKMEN'S COMPENSATION CASES. employer shall furnish the injured employe hospital and medi- cal service if the injury requires such, but not exceeding three weeks in point of time. That the commencement of such ser- vice to be furnished should be at the time when the injury re- quires it, which in a vast majority of cases is immediately fol- lowing the accident. There are, however, certain kinds of ac- cidents where the injury or disability does not develop or be- come serious until some time after the accident occurs and the medical and hospital service in this class of cases is not required immediately after the accident, but becomes neces- sary at a later time. It seems apparent that it was not the legislative intent to deprive persons sustaining injuries of the kind last above mentioned of such medical and hospital ser- vice for the mere reason that the disability did not immediately follow the accident; and from a careful examination of the language of the statute we are of the opinion that such con- struction is not required. The language used in the statute is ''during the first three weeks after the injury." The word "injury" in its ordinary signification is distinguished from the word "accident," and differs materially from it in meaning. The word "accident" is generally used to designate the cause, and the word "injury" is used to designate the effect. The effect of the accident, (which is the injury) may be and gener- ally is immediate, but in a considerable number of cases the effect of the accident (which is the injury) does not imme- diately follow in point of time, but develops and produces dis- ability at a later time, in some instances weeks or months after the accident. It is apparent that if we give the word "injury," its ordinary significance as distinguished from acci- dent, the "first three weeks after the injury" would commence to run from the time the accident in cases like this pro- duces the actual disability requiring medical or hospital ser- vice. We hold in this case that such service should be paid for by the employer. KENNELLY vs. STEARNS SALT & LUMBER CO. 341 SUPREME COURT. JOHN KENNELLY, Applicant and Appellee, vs. STEARNS SALT & LUMBER COMPANY, and NEW ENGLAND CASUALTY COMPANY, Defendants and Appellants. EMPLOYMENT EXTINGUISHING FOREST FIRE UNDER ORDER OF STATE FIRE WABDEN. Applicant, an employe of the Stearns Salt & Lumber Company was working with a gang of men constructing a logging railroad, when he and his co-laborers were ordered by the fire warden to aid in extinguishing a forest fire. While engaged in fight- ing this fire, applicant was struck by a falling tree and the sight of his left eye destroyed. HELD: That at the time of the injury he was not engaged in his regular employment, but was working for the state under the direction and authority of the fire warden. Certiorari to the Industrial Accident Board to review the action of that Board in awarding compensation to John Ken- nelly for injury received while in the employ of the Stearns Salt & Lumber Company. Reversed. John C. Myers, of Detroit, Attorney for Applicant. Frank J. Riggs, of Detroit, Attorney for Defendants. BIRD, J. While claimant was in the employ of the defend- ant, the Stearns Salt & Lumber Company, with a gang of men constructing a railroad, he with several of his co-laborers was ordered by the Fire Warden to go with him and assist in ex- tinguishing a forest fire. The claimant complied with the or- der, and while engaged in that work, he was struck by a fall- ing tree, and the sight of his left eye was destroyed. He pre- 342 MICHIGAN WORKMEN'S COMPENSATION CASES. sented his claim to the Industrial Accident Board as a ser- vant of the Stearns Salt & Lumber Company. The Board of Arbitration allowed his claim at $5.02 per week for one hun- dred weeks. Subsequently, on appeal this award was ap- proved by the Industrial Accident Board. Defendant insur- ance company has removed the proceedings to this court by certiorari, claiming that the award should not have been made, because claimant at the time of his injury was engaged in work for the State, and not for the defendant, Stearns Salt & Lumber Company. Counsel for claimant insist that that question was one of fact, and the fact having been found by the decision of the Board, it is not reviewable in this court. (1) The real question presented is whether there is any testimony in the record to support the finding of the Board. The testimony is brief, and is set out in the record and there is no disagreement concerning it. It shows that while the claimant was engaged in work for the Stearns Salt & Lumber Company, the Fire Warden came along and ordered him to go with him to assist in extinguishing a forest fire. The rec- ord shows that he was not only ordered to go by the Fire War- den, but that his work was directed by the Fre War- den after he arrived there. It is further shown that he was paid his regular wages by the Stearns Salt & Lumber Com- pany, and that it was reimbursed by payment from the state and county, as the law provides in such cases. Section 6 of Act 249 of the Laws of 1903 as amended by Act 317 of the Laws of 1907, confers upon the Fire Warden the following authority : "It shall be the duty of each Fire Warden to take precautions to prevent the setting of forest fires, and when his district is suffering or threatened with fire, to go to the place of danger to control such fires, and each forest fire warden shall have the authority to call to his assistance in emergencies any able-bodied male person " over eighteen years of age, and if such person refuses, without reasonable justification or excuse, to assist, * * * * he shall be deemed guilty of a misdemeanor and shall upon conviction thereof, be punished KENNELLY vs. STEARNS SALT & LUMBER CO. 343 by a fine of not more than $100 or imprisonment in the county jail not to exceed three months." This provision of the statute clearly authorizes the Fire Warden to exercise the power which he did on this occasion. We do not think it can be said that while claimant was en- gaged in this service he was engaged in his regular employ- ment. He was ordered by a state officer to leave his work and go to the assistance of the State. After he arrived there he was directed by a State officer, and for his time spent in such work he Avas paid by the county and State. It would hardly be contended that if he were impaneled to sit on a jury and had met some accident while engaged in that service his em- ployer would be liable therefor. Nor could that contention be made had claimant been injured while assisting the sheriff at his command in quelling a riot. We think this situation is no different. When he was ordered to go with the Fire Warden, he left his work temporarily to discharge a duty which was incumbent upon him as well as upon every other citizen sim- ilarly situated. We do not think it can be said that his in- jury arose out of his employment or during the course of it. The testimony does not support such a finding. Some point is made by claimant that he was paid his reg- ular salary by his employer for the time spent in fighting fire. We do not regard this as of importance as the record explains that it was done as a matter of convenience and that his em- ployer was afterwards reimbursed from the public funds for his services. Some point is also made because his foreman or superintendent directed some of his acts while at the fire. This quite likely was the result of habit, rather than of au- thority upon the part of the foreman or superintendent. The claimant's own testimony shows that his work was directed by the Fire Warden. The conclusion of the Industrial Accident Board must be reversed and the award set aside. 344 MICHIGAN WORKMEN'S COMPENSATION CASES. SUPREME COURT. JAMES F. ROBBINS, Applicant and Appellee, vs. ORIGINAL GAS ENGINE COMPANY and ZURICH GENERAL .ACCIDENT and LIABILITY INSURANCE COMPANY, Respondents and Appellants. HERNIA ACCIDENT WITHIN THE MEANING OF THE COMPENSATION LAW. Applicant with the assistance of another man was moving a gasoline engine weighing some 600 pounds, this being a part of his regular work. He was suddenly and accidentally put at a disadvantage in moving the engine by the act of his fellow workman and the sticking of the engine on the concrete floor, and the rupture and immediate protrusion of the abdominal sac were caused by his efforts to retrieve his position and do his work. HELD: An injury by accident within the meaning of the Work- men's Compensation Law. Certiorari to the Industrial Accident Board to review the action of that board in awarding compensation to James F. Robbins for injuries sustained while in the employ of Original Gas Engine Company. Modified. SMelds & Silsbee, of Lansing, for appellant. Clark, Lockwood, Bryant & Klein, of Detroit, for respond- ents. OSTRANDER, J. It is the contention of respondents, plain- tiffs in certiorari, that the testimony fails to prove accidental injury. The testimony introduced on the part of claimant tended to prove that on January 22, 1915, while he assisted another in moving a gasoline engine weighing some 600 ROBBINS vs. ORIGINAL GAS ENGINE CO. 345 pounds, be suddenly had pain in his left groin, noticed a small swelling in the groin that night, consulted a physician, was ad- vised that he had a hernia and was operated upon for hernia. His claim is for compensation for time lost from February 6, 1915, to April 5, 1915, for medical attendance, hospital and ambulance fees, a total of ^167.08. This mount was allowed by arbitrators, and, upon appeal, the allowance was affirmed. Claimant had worked for the Original Gas Engine Company for about nine years, painting gasoline engines. For three years the conditions under which he worked and the method of doing the work were the same. Claimant described the in- jury, as well as the conditions, as follows: "Q. What happened, Mr. Robbins? "A. Well, in the course of painting the engines, we have to wash the grease off, and where we wash them there is a slope down to a drain, and pulling that engine up out of there, putting it where we are going to paint them, a man takes hold of each side of the engine, on tfce shaft, pulls them up out of there. "Q. And the engine stuck? "A. Naturally, on the hump there. Two of us were working on the engine, Mr. Carr, the gentleman here, and myself. In order to move the engine Mr. Carr would take hold of one shaft in a stooping posi- tion. On the 22nd day of January when we were pulling the engine up out of there, Mr. Carr had the long end of the shaft and I had the short end, gave him a little advantage but we don't look at that. Any way my side seemed to get behind and I used extra effort to start it and at that time I felt pain. "Q. Just describe, if you will, the position you were in, what doing, and where the pain was? "A. Well, we were stooping over, in a stooped position (indicat- ing), pulling, and the pain shot up across my side of my body in the groin. As near as I can figure, the engine we were pulling weighed somewhere in the neighborhood of 600 pounds. I have never previously suffered similar pain in the region of my groin. I have never had any attacks similar to what developed after this pain. The pain I suffered was simply a pain that shot around there and I felt weak afterwards. I did not do anything concerning the pain immediately, but noticed it once in a while. I looked my body over that night to see whether there was any injury and I noticed a small swelling in the left groin. This swelling was not there when I went to work that morning. I do not know of anything that occurred to me that would have caused the swelling, except this strain and lifting 346 MICHIGAN WORKMEN'S COMPENSATION CASES. the time I felt the pain. When I discovered the swelling I was wor- ried about it and consulted Dr. P. A. Jones, that would be on Satur- day evening. He did not make any investigation of niy body at that time, although I described the sense of pain that I bad and the swelling. He did not see the swelling that night, neither did he prescribe anything for me. He said, I don't remember the doctor's exact words, something to the effect that a cold had settled in the glands and it would pass away in a day or two. I went back to the same doctor again on Monday after that Saturday night. I worked Saturday and the following Monday, I went back to the doctor because the swelling was larger. The doctor at that time made an examina- tion and said that I had hernia." On cross-examination he testified: "Prior to January 22nd, 1915, I did not have a hernia. I know what a hernia is in a way. It is the breaking of the lining of the stomach, and while I don't really know whether I had a hernia before or not I never had any pain or swelling down there. Never had any trouble there. "Q. You don't know whether you had a hernia or not? "A. Well, according if that is what I had, I never had one be- fore. I have been employed with the Original Gas Engine Company for almost nine years. "Q. And how long had you been doing this particular class of work? "A. Ever since I have been there. "Q. The very same kind of work? "A. Exactly. The conditions of the factory during the nine years period was not exactly the same as on January 22nd, 1915, 'cause the Original Gas Engine Company have moved into these quarters about three years ago and previous to that time, of course we did not have the same floor to work on. "Q. Then for three years you had been doing the work in the exact manner you were doing the work under date of January 22nd? "A. (Witness nods yes.) "Q. The engine weighed, you say, in the neighborhood of 300 to 600 pounds? "A. Somewhere in the neighborhood of 600. "Q. You have been handling the same make of engine right along? "A. Yes; of course you understand these engines are not the same size. "Q. And when you were lifting the engine on this particular day, at this particular time, you merely felt a pain? "A. A sharp pain, ye t s. ROBBINS vs. ORIGINAL GAS ENGINE CO. 347 "Q. That was all out of the ordinary that happened at that time? "A. Yes. * * * * "Q. You were doing the same class of work you had been doing for nine years? "A. Yes, sir. "Q. There was nothing whatever out of the ordinary that you did on that particular day? "A. No, sir." And on redirect: "Q. Mr. Robbins, do you ever remember any other occasion where any engine weighed as much as this one stuck and you had to exert yourself as you did in this case to move it? "A. I couldn't state any particular case, but there has been en- gines it is a cement floor, and cast iron has a tendency to stick. "Q. Had it occurred before that day at all, that you remember? "A. Well, I presume there has been engines sticking down there, but I couldn't name any particular time. "Q. Could you say for sure whether they stuck so you had to exert extra strength? "A. I couldn't do it." The history of the particular case excludes the idea of the use, with violence, of an instrument, or substance, puncturing or rending the abdominal wall. A physician, the one first consulted by claimant, testified that in his opinion the hernia was caused by the strain in mov- ing the engine. He further testified that when he first ex- amined claimant he was able to reduce the hernia with his finger; that there were no adhesions. In these circumstances he found support for his conclusion that this was a new and not an old hernia. The surgeon who operated upon claimant testified that in his opinion the hernia was produced by the exertion described by claimant. All the experts seem to agree that the visible evidence of the hernia is the protrusion through the inguinal ring of the peritoneum and its contents : "the hernia is the peritoneum going through, accompanied by the intestines or some other substance." But the testimony for respondents is to the effect that the peritoneum is incapable of sudden, and is capable of very 348 MICHIGAN WORKMEN'S COMPENSATION CASES. gradual, extension, that the sudden complete development of hernia in a pathological sense is impossible, but the hernia may be felt the sudden projection of hernial contents into the performed sac for the first time during a straining effort. Various medical authorities to which the court is referred ap- pear to sustain the proposition that hernia is of slow forma- tion and can never arise from a single augmentation of intra- abdominal tension, however great it may be. It may be said that the testimony of claimant's experts does not deny this proposition; that they regarded the condition which they found the condition they undertook to relieve as caused by the strain and exertion of the claimant. They found a hernia, a protrusion, to be reduced, and found cause for it in the de- scribed strain and exertion of claimant. The Michigan law does not award compensation for all per- sonal injuries suffered by an employe, but for accidental in- juries only. Adams v. Acme White Lead, etc. Works, 182 Mich. 157. The vital question which the Industrial Accident Board had to determine was not whether on January 22, 1915, it was discovered that claimant had hernia, but was whether claimant on that day suffered an accidental injury, arising out of and in the course of his employment. Accept- ing respondents' proposition as true, it may be said that upon the occasion in question, by reason of a strain, or effort, of claimant, in performing his duties, an undiscovered and uu- discoverable, but previously formed, sac was pushed through the left inguinal ring and muscles. So much injury claimant then and there suffered, to alleviate, if not to cure which, med- ical attention and treatment were required. It is compensa- tion for that injury which is claimed and was allowed. Was it an accidental injury within the meaning of the law? It has been said of the expressions "accident" and "accidental," em- ployed in an act having a purpose similar to ours, that they were used with their popular and ordinary meaning. Hap- pening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected. ROBBINS vs. ORIGINAL GAS ENGINE CO. 349 "If a result is such as follows from ordinary means, voluntarily em- ployed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but if in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means." Mut. Benefit Asso. v. Barry, 131 U. S. 100, 121. This is a case relied upon by respondents. It has been held that death resulting from a ruptured artery was not accidental when the rupture occurred while the in- sured was reaching from a chair to close a window, did not slip or fall or lose his balance and nothing unforeseen occur- red except the bursting of the artery. Feder v. Iowa State Trav. Men's Asso., 107 Iowa, 538. An examination of cases arising principally upon accident insurance policies, some of which are collected in a note to Lehman v. Great Western Acci. Asso., 42 L. R. A. (N. S.) 562, discloses that in the opin- ions which seem to be best considered the distinction is ob- served between the means by which an injury is produced and the result of the producing cause or causes. It is not sufficient that there be an unusual and unanticipated result; the means must be accidental involuntary and unintended. There must, too, be some proximate connection between accidental means and the injurious result. It is doubtful, however, if in applying our statute, its general purpose being considered, the court should exactly follow the rules suggested and ap- plied in the cases referred to. The statute seems to contem- plate that an accidental injury may result by mere mischance ; that accidental injuries may be due to carelessness, not wil- ful, to fatigue, and to miscalculation of the effects of volun- tary action. There is testitmony in the record, although it is not very conclusive, to support a finding that claimant was suddenly, and accidentally, put at disadvantage by the act of his fellow workman and the sticking of the engine on the con- crete floor, and that the rupture and immediate protrusion of the abdominal sac were caused by his efforts to retrieve his position and do his work. It is assumed that it was the first time the sac had been forced through the abdominal wall. If 350 MICHIGAN WORKMEN'S COMPENSATION CASES. it is also assumed that there was a certain lack of physical integrity in the parts where the injury was manifested, still I think claimant may have compensation for the injury he suf- fered. I decide only the particular case, and in doing so de- cline to hold, upon this record, that claimant suffered from disease and not from accidental injury. See, Grove v. Michi- gan Paper Co., 184 Mich. 440. The method employed by the Board to ascertain the amount of claimant's wages is questioned. Claimant had been em- ployed by the Original Gas Engine Works for nine years. During the period from February 6, 1914, to February 6, 1915, he worked the entire time except seven weeks 42 working days. His wages were $19.50 per week. He earned and re- ceived $790.15 during the year. The average weekly wages actually earned during the year was $15.20, one-half of which is $7.60. But claimant was awarded $8.76 a week, or an average weekly wage of $17.52. It was ruled that, having lost seven weeks, claimant had not worked substantially the whole year, in the same "employment, immediately preceding his injury and that 300 times the average daily wage was the average annual earning. The statute, so much of it as is ma- terial, provides: "Sec. 11. The term 'average weekly wages' as used in this act is defined to be one fifty-second part of the average annual earnings of the employe. If the injured employe has not worked in the employ- ment in which he was working at the time of the accident, whether for the employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he has earned in such employment during the days when so employed. If the injured employe has not worked in such employment during substantially the whole of such immediately preceding year, his aver- age annual earnings shall consist of three hundred times the average daily wage or salary which an employe of the same class working substantially the whole of such immediately preceding year in the same or a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so em- ployed. In cases where the foregoing methods of arriving at the average annual earnings of the injured employe cannot reasonably and fairly be applied, such annual earnings shall be taken at such ROBBINS vs. ORIGINAL GAS ENGINE CO. 351 sum as, having regard to the previous earnings of the injured em- ploye, and of other employes of the same or most similar class, work- ing in the same or most similar employment, in the same or neighbor- ing locality, shall reasonably represent the annual earning capacity of the injured employe at the time of the accident in the employment in which he was working at such time." Claimant had worked in the employment, that is, in the capacity and line of work in which he was working at the time of his injury, for many years not only substantially, but wholly. It was therefore manifestly improper to employ the factor of average daily wages in determining the average weekly and annual wages. It is obvious, too, that the aver- age annual wages of one employed for years in the same capac- ity and line of work cannot be determined except by compar- ing the wages of two or more years. A man may change his employment or the capacity in which he follows it. If he has done this at a time substantially less than a year before his injury, then the statute fixes three hundred times his average daily wages as his average annual wages. For the man who works for years in the same employment and is injured, the statute fixes average weekly wages at one fifty-second part of his average annual earnings. This is the rule which should be applied in this case. The record does not supply the in- formation required to make a finding. It is assumed that the parties in interest can easily ascer- tain and agree about the annual earnings of claimant for a period of at least three years. It is, of course, possible that the award made is substantially a correct award, but, the rule applied being inapplicable, it must be set aside. 352 MICHIGAN WORKMEN'S COMPENSATION CASES. SUPREME COURT. PATRICK FOLEY, Applicant and Appellee, vs. DETROIT UNITED RAILWAY, Respondent and Appellant. REOPENING CASE AUTHORITY OF BOARD TEST IN DETERMINING DIS- ABILITY. Applicant was employed by respondent as motorman, and on July 22, 1913, suffered a compound fracture of his left leg above the ankle in a collision. Medical and hospital service was fur- nished and compensation paid for a time. In February, 1914, he was put to work as a watchman at respondent's car barn and signed a settlement receipt, which was filed with the Board. His injured leg was still disabled so as to prevent him from resuming his regular work as motorman, and by reason of cer- tain misconduct he was discharged from his position as watch- man at the car barn. He filed a petition praying that his case be reopened and that he be awarded further compensation, the petition being granted by the Board. HELD: 1. That the action of the Board in reopening the case and granting further compensation was within its authority. 2. That the test in determining the question of disability is capacity to earn in the same employment in which the em- ploye was injured. Appellant seeks by writ of certiorari to review and reverse an order of the State Industrial Accident Board reopening applicant's case and awarding him additional compensation. Affirmed. Beaumont, Smith & Harris, of Detroit, Attorneys for Ap- plicant. , Leete cC- Moody, of Detroit, Attorneys for .Appellant. FOLEY vs. DETROIT UNITED RAILWAY. 353 STEERED J. Claimant was employed by respondent as a mo- tornian working 10 hours per day at an average weekly wage of $16.25. On July 22, 1913, his car was in a collision which resulted in a compound fracture of his left leg above the ankle. He was at once taken to a hospital and there re- mained until February 17, 1914. While there he was paid one- half his average weekly wages and provided with doctors, spe- cial nurses when needed, medicine, general hospital attend- ance and his wants all supplied, at appellant's expense. When his condition became such that he said he was well enough to go back to work and desired to do so he was discharged from the hospital. He testified that he was kept there until he re- covered and prior to his discharge he walked out for exercise, and k 'used to come down town and walk around lots of times." He returned to work on February 22, 1914, as a watchman at one of respondent's car barns, receiving $2.50 per working day of 9 hours each for 7 days in the week, which amounted to more than the wages he had been receiving as a motorman prior to his injury. While he was yet in the hospital, on Sep- tember 16, 1913, an agreement for compensation was entered into between him and appellant in accordance with provisions of Act 10 Public Acts, 1912, extra session, using a form of the Industrial Accident Board as follows: "AGREEMENT IN REGARD TO COMPENSATION. We, Patrick Foley, residing at city or town of Detroit, Michigan, and Detroit United Railway, have reached an agreement in regard to compensation for the injury sustained by said employe while in the employ of Detroit United Railway, 12 Woodward ave., Detroit, Michi- gan, 8:50 p. m. July 22, 1913, Jefferson and Cadillac ave., Detroit, Michigan. Collided with car ahead when he ran his car too close to it. Leg broken. The terms of the agreement follow: $8.13 per week payable under act. Average weekly wage $16.25." (Duly dated, signed and witnessed.) This agreement was approved by the Industrial Accident Board on the following form: 354 MICHIGAN WORKMEN'S COMPENSATION CASES. "STATE OF MICHIGAN INDUSTRIAL ACCIDENT BOARD Oakland Building Lansing Members of Board: John E. Kinnane, Chairman, Bay City; Richard L. Drake, Secretary; J. A. Kennedy, Sault Ste. Marie; Ora E. Reaves, Jackson. December 6, 1913. IN RE D. U. R.: PATRICK FOLEY. Detroit United Railway Co., Detroit, Michigan. Gentlemen: The Agreement in regard to compensation in the above case has been passed upon by the Industrial Accident Board and app-oved. Yours very truly, Secretary. Note: It is required by the Industrial Accident Board that receipts on Account of Compensation (Form No. 11) be taken when weekly payments are made, same to be submitted to the Board monthly. A settlement receipt (Form No. 12) will be signed when last payment is made and will be accompanied by Final Report of Accident (Form No. 7a). If above forms have already been submitted kindly disre- gard this clause." On February 17, 1914, when claimant applied to return to work, he was paid in full the compensation then due him ac- cording to previous agreement and signed a receipt therefor, but he did not resume work until five days later, for which intervening time he was also paid on the basis of their agree- ment, after which he gave appellant a receipt in full as fol- lows: "SETTLEMENT RECEIPT. Received of Detroit United Railway the sum of ($4.65) four dol- lars and sixty-five cents, making in all, with weekly payments already received by me, the total sum of ($248.55) two hundred forty-eight dollars and fifty-five cents, in settlement of compensation under the Michigan Workmen's Compensation Law, for all injuries received by me on or about the twenty-second day of February (July), 1914, while FOLEY vs. DETROIT UNITED RAILWAY. 355 in the employ of Detroit United Railway, 12 Woodward ave., Detroit, Michigan, subject to review and approval by the Industrial Accident Board. Witness my hand this 4th day of March, 1914. Witness: Nell S. McDonald, Patrick Foley, Detroit, Michigan. 242 Lycaste St., Detroit, Michigan. Being in addition to the settlement receipt signed by said- Foley Feb. 17, 1914, he having been ready to work Feb. 18, but not actually starting to work until Feb. 22, 1914." The $248.55 paid claimant for the intervening time between his injury and resuming work was clear to him and in addi- tion to all expenses of his care and medical attendance which were assumed and paid by appellant. On April 17, 1913, claimant filed a petition with the Indus- trial Accident Board, reciting briefly the facts of his injury, the compensation and care received until discharged from the hospital, his resumption of work as watchman for appellant, stated that in attempting to perform his duties in that capac- ity his leg became swollen at the end of the day's work and was so weak that he was unable to walk any great distance or be on his feet any great part of the day and "That he consulted an eminent physician in the city of Detroit, who states that while the results obtained by the Detroit United Rail- way's physician have been good, still the -injured leg, as a result of the aforesaid injury, is now one-half inch shorter than the other leg, and that your petitioner will not be able to follow any occupation in which it will be necessary for him to be on his feet any great portion of the day, or in which much walking or lifting is required." For which reason he asked the Board to adjudge him fur- ther compensation. The return of the Industrial Accident Board to this writ of certiorari does not traverse nor deny the facts stated in ap- pellant's affidavit on which the writ was allowed. It briefly states that claimant made application for a reopening of the case and an award of further compensation; that testimony was taken thereafter by deposition at the instance of both 356 MICHIGAN WORKMEN'S COMPENSATION CASES. parties, after which a hearing was had on July 8, 1915, and the award complained of was made. "A resume of such testi- mony," copies of claimant's petition and the order of said board are attached to said return as exhibits and part of said return. Counsel for the respective parties also stipulated in writing to the same as "the return of said Board," with ex- hibits attached to the affidavit for writ of certiorari consid- ered as a part thereof. The material parts of those exhibits (3 in number) are quoted above. No findings of fact or con- clusions of law are returned and, so far as shown, none were made or filed by the Board. Appellant's two principal contentions against the validity of this order are that the agreement between the parties after being approved by the Board was "final and binding" under the statute and the Board had no authority to re-open the case after claimant had signed a final settlement receipt in full, "in the absence of fraud, duress or mistake being alleged and prov- en as a basis for such re-opening," and "That there is no evidence in the record which would warrant an award to claimant of any further compensation as it is undisputed that at the time of the filing of the petition claimant was earning in respondent's employ in a shorter period of time, an amount equal if not greater than that earned by him prior to the accident." The act clearly favors and contemplates an agreement be- tween the parties as to compensation in case of an industrial accident and that the Board in its supervisory control shall favor and approve such agreements when understandingly made, without fraud, duress or undue advantage. (Section 5 part 3). An attempt to reach such an agreement is a prere- quisite to an application to the Board for an arbitration and award. (Section 6 part 3). It is questions arising under the act, "not settled by agreement," which the Board is author- ized to determine, except as otherwise provided. (Sectioi 10 part 3). Section 14 of part 3 provides: "Any weekly payment under this act may be reviewed by tl industrial accident board at the request of the employer,, or the ii FOLEY vs. DETROIT UNITED RAILWAY. . 357 surance company carrying such risks, or the Commissioner of In- surance as the case may be, or the employe; and on such review it may be ended, diminished or increased, subject to the maximum and minimum amounts above provided, if the board finds that the facts warrant such action." At the time the agreement in regard to compensation, which the Board approved, was entered into claimant was lying in the hospital totally incapacitated for work as the result of a compound fracture of his left leg sustained while in appel- lant's employ. Under Sec. 9 part 3 of the act he was entitled to receive from his employer one-half his weekly wages while his incapacity for work resulting from the injury was total, not to exceed 500 weeks. This agreement stated his average weekly wages and provided he should receive one-half of that amount "per week payable under act." This was just what the law provided as applied to the undisputed facts and then existing conditions, and nothing more. It did not specify how long such weekly payments should continue, though an intent to cover the period of total incapacity might be infer- red. So far as it went it was according to law and fixed a weekly basis of compensation for the ascertained total inca- pacity. This the Board approved. But it made no provision for the unascertained future partial incapacity which might follow the total, or for any lump sum which should be paid in final settlement. The approval by the Board of this manifestly incomplete agreement, in view of the time when made and the nature of the injury, did not divest the Board of jurisdiction nor de- prive it of its general supervisory powers in material matters necessarily left open for adjustment before final disposition of the case. The settlement receipt in full, given by claimant before he resumed work, is not shown to have been filed with or approved by the Board. Had it been, a different question would confront us under said sec. 5 part 3 of the act. The last matter in the case brought to the attention of the Board, so far as shown, before claimant filed his petition for additional compensation under a claim of partial incapacity, 358 MICHIGAN WORKMEN'S COMPENSATION CASES. was an agreement for weekly payment under the act on a basis of total incapacity, which it approved. Section 14 part 3 gives the Board the right, if it finds that the facts war- rant such action, to end, diminish or increase "any weekly payment under this act." It is said the parties interested had settled this question by agreement, as evidenced by the set- tlement receipt claimant signed, but to "be deemed final and binding upon the parties thereto" under the act it was neces- sary that it should be filed with and approved by the Board. Defendant's second contention is that, if it be found the Board had authority to reopen the case, no award could be made by it for further compensation as it is conceded claim- ant at the time of filing his petition, and when the testimony was taken as to his physical condition, was and had been since February 22, 1914, earning as much or more wages than he did before the accident causing his injury, and sec. 10 part 2 of the act provides: "While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employe a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, * * * If this were the only and controlling provision in the act upon that subject appellant's contention could not be ques- tioned; but the last sentence of the next ensuing section (11), which concludes a long series of provisions in it and preceding sections classifying injuries, treating total and partial inca- pacity, specifying and defining weekly rates, time payments shall continue, amount of compensation, methods of arriving at the same, etc., is as follows: "The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured em- ploye, computed according to the provisions of this section, as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, but to be determined in view of the nature and extent of the injury." FOLEY vs. DETROIT UNITED RAILWAY. 359 Appellant urges that the provision is directly contradictory of Sec. 10 and an interpolation which means nothing, as ''weekly loss of wages" is not mentioned in the act. While not referred to in exact language, in substance it is inevitably connected with and treated in what goes before touching com- pensation for incapacity resulting from the injury. Although this provision is apparently restrictive, we do not find it directly contradictory of Sec. 10, and if it were, being the last of the two provisions it should prevail under the general rules of construction, provided either must be dis- regarded. The language of this last provision is plain, and has but one obvious meaning, designating as the test capac- ity to earn in the same employment in which the employe was injured. That under this rule instances may arise where it works inequitably does not authorize the court to read excep- tions into it or modify its plain language defining the basis for estimating incapacity, which at best can only be approxi- mated. If the method ought to be changed or exceptional cases provided for the remedy rests with the legislature. A ready disposition of this case is embarrassed by total ab- sence of any findings of fact by the Board, which the statute appears to contemplate though not in express language com- manding; (see. 12 part 3). Counsel have stipulated to the return as satisfactory and "a resume of such testimony" with the order of award made by the Board have been passed up for this court to help itself to what it can find. Technically the order contains an implied finding of facts legally suffi- cient to support it and in that view the court may search the testimony to ascertain if the necessarily inferred facts pre- sumptively found have evidential support. The dates when the testimony was taken are not disclosed though it appears to have been taken at intervals between the time of filing claimant's petition and the hearing and most of it while claim- ant was in appellant's employ. But wheij recalled for fur- ther examination some weeks later, near the conclusion of the proofs, claimant disclosed that he had been ''let go" about the time he "blackened this fellow's face," which episode re- 360 MICHIGAN WORKMEN'S COMPENSATION CASES. suited, as he stated, in his taking a ride to the county jail in a patrol wagon, where he asserts, however, he was only de- tained from Saturday night until 2 o'clock Sunday afternoon. It is stated without denial in appellant's affidavit that an investigation of charges made by county officials and a ''pas- senger upon whom he had committed a trespass" led to claim- ant's discharge from its employ. Just what appellant claims for the fact that claimant had misbehaved and been dis- charged is not clear, and what weight the Board gave the fact he was not shown to be employed at the time of the hear- ing is not apparent. It would be equally competent to show that after claimant filed his petition appellant had arbitrarily discharged him, if such were the fact. In either case his inca- pacity to engage in the employment in which he was working at the time of the accident would be the same, and the pos- sibility of either contingency but illustrates that the rule ap- pellant contends for is also fallible, and open to contingencies which might operate inequitably. To sustain its award the Board must have been able to find from competent testimony a continuing partial incapacity to properly perform the work of a motorman, in which claimant was engaged at the time of the accident. There is testimony tending to sustain such a finding. Aside from claimant's own testimony as to continuing pain, weakness and swelling in his leg which rendered it difficult for him to be upon his feet long and get around readily, the physicians called by both sides agree that he had a shortening of the leg of from an half to three-quarters of an inch which would be permanent, and that otherwise it would be months if not years before it would be strong and normal, if ever; that in its condition at the time they testified the lost percentage of normal use and strength was from 25 to 75. Dr. Dolman, the physician who attended and .operated upon claimant at the time of the acci- dent and cared for him until he was discharged from tl;e hos- pital, called as a witness by respondent, testified the brokei limb was so seriously injured that "under usual circumstam the injury would undoubtedly have caused him to lose his 1( FOLEY vs. DETROIT UNITED RAILWAY. 361 by amputation;" that he however decided to perform an oper- ation and try to save the limb, which started to improve some live weeks after the operation and ultimately made a very .successful recovery; that the injured leg was about half an inch short and the impairment of function at the time wit- ness was testifying was presumably 25 per cent, and not more ihan 33 1-3 ; that when claimant left the hospital he "was able to w T alk about on his leg with difficulty. He could put his foot down and bear his weight on the broken limb ;" that per- fect union was not restored and circulation had not fully es- tablished itself in the leg; witness would say it would re-es- tablish itself so that claimant would be able to work event- ually as a laborer, in perhaps a couple of years. The testi- mony of physicians called by claimant was somewhat along the same lines but on the whole tending to show a greater de- gree of impairment than that of Dr. Dolman, and touching his ability to work as a motorman was to the effect that his condition would detract from efficiency and it would be dif- ficult for him to work in that capacity successfully, various reasons being given therefor. The agreement approved by the Board only provided for a weekly payment of indefinite duration, which was discon- tinued without its approval. Under such circumstances we conclude authority yet remained with the Board to review the matter of weekly payment and diminish, or approve of end- ing the same, as it found the facts warranted, as provided in Sec. 14 part 3 of the act ; and having such authority its order has support in testimony tending to sustain facts essential to its validity. Its order is, therefore, affirmed. 362 MICHIGAN WORKMEN'S COMPENSATION CASES. SUPREME COURT. GEORGE BISCHOFF, Applicant and Appellee, vs. AMERICAN CAR AND FOUNDRY COMPANY, Defendant and Appellant. COURSE OF EMPLOYMENT ARISING OUT OF. Applicant was employed as a moulder in respondent's plant, being in charge of one of the "floors," consisting of a row of moulds. About 15 feet above the floor was a crane run by electricity and operated backwards and forwards and up and down by appli- cant, as might be necessary in his work. The crane got out of order on the day of the accident and applicant notified the elec- trician whose duty it was to make repairs. The men spoke dif- ferent languages and applicant, being unable to satisfactorily ex- plain the trouble to the electrician, went up onto the crane to point out the trouble to him. In some way the crane was set in motion, catching plaintiff's hand and practically destroying it. HELD: That applicant went outside the limits of his employment by climbing upon the crane, and compensation denied. JJ. BIRD, KUHN, and MOORE, dissenting. Certiorari to the Industrial Accident Board to review the action of that Board in awarding compensation to George Bischoff for injuries received while in the employ of the American Car and Foundry Company. Reversed. Harbour, Field d Martin, of Detroit, for Applicant. Angell, Bodman & Turner, of Detroit, for Defendant. PERSON, J. On the 16th day of September, 1913, the claim- ant was, and for more than a year had been, employed by the American Car and Foundry Company, as a moulder. In the forenoon of that day his right hand was caught in the gear wheels of an electric crane and so crushed as to require the BISCHOFF vs. AMERICAN CAR AND FOUNDRY CO. 363 amputation of the larger portion of it. The committee of ar- bitration appointed under Act No. 10 of the Public Acts of the Extra Session of 1912, having found the claimant entitled to compensation, and the amount of such compensation hav- ing been increased on appeal to the Industrial Accident Board, the employer brings the case here for review, insisting that the injury received by the employe did not arise "out of and in the course of his employment ;" -that it was the result of his own "intentional and wilful misconduct," and that the com- pensation allowed is excessive. As this Act provides compensation only for such injuries as are received in the course of the employment, and then only when they grow out of the employment, and as injuries received outside the employment are not within the provis- ions of the Act at all, it must follow that the "intentional and wilful misconduct" which operates to debar the employe from the compensation which he might otherwise receive, refers to such misconduct Avithin the scope of his employment. If the injury to the employe was not received "in the course of his employment," it is immaterial whether it was caused by his "intentional and wilful misconduct," or not. The first question, therefore, to be determined, is whether the injury received by claimant arose out of and in the course of his employment. And in this connection the findings of fact made by the Industrial Accident Board and .returned to this court, being well supported by the evidence are controll- ing so far as they go. Such findings are as follows: "I. On the 16th day of September, 1913, George Bischoff, claimant and appellee was employed as a car wheel moulder at the Detroit plant of the American Car & Foundry Company, a New Jersey corpo- ration, engaged in the manufacture of cars, car wheels, etc. He was at that time twenty-nine years of age and had been in the employ of the appellant three and one-half years, two of which he had spent working as helper to a moulder and one and a half of which he spent working as a moulder. "2. The foundry in which appellee worked at the time of the acci- dent was divided into fourteen 'floors' about nine feet apart. Each 'floor' consisted of a row of moulds, 25 moulds in length, located on one level or general ground floor of the foundry. A moulder was in 364 MICHIGAN WORKMEN'S COMPENSATION CASES. charge of each one of these 'floors.' At a distance of about fifteen feet above each 'floor' was located a crane, the motive power of which was electricity, 240 volts being required to operate it. Appellee was in charge of a 'floor' over which was located crane No. 8, three photographs of which were introduced in evidence as appellant's Ex- hibits 'A, B, C.' Prom the floor appellee, as part of his work, oper- ated the crane forward and backward and up and down as might be necessary in doing his work. The crane could be reached only by climbing a brace located near it or by a ladder which must be espec- ially placed for the purpose. "3. There is nothing in the occupation of a moulder which would require him to go upon the crane for the purpose of repairing it should it be out of order, a machinist and electrician being employed by appellant to make the necessary repairs. Appellee understood that he was employed as a moulder and in no other capacity. That all his duties relative to such employment were ordinarily to be performed on the floor, that he must use the crane to do his work; that if the crane was out of order and he could not use it or operate it, he should report it to the machinist or electrician and if they could not be found be should sit down or go home. "4. Instructions had been given by the superintendent to the fore- man to allow no one but the men designated for such work to go upon the crane, and these instructions had been given to the moulders by the foreman, but appellee could not speak nor fairly understand either English or the language of his foreman. Appellee had in fact gone up to fix or oil the crane several times before the date of his injury. "5. A short time before t the injury, appellee discovered that the crane was out of order and reported to the machinist, who was also a foreman, that the crane was not working well, because the brake was too loose. Appellee is a German and the machinist is a Croatian; appellee could not talk with the machinist very well, because they did not speak the same language, yet he could indicate in broken English that 'the brake is too loose,' and by showing the machinist say enough in English to inform him what the trouble with the crane was. "6. While the machinist was up on the crane looking for the trouble, appellee not being able to make him fully understand in English, went up the ladder and got off where the machinist was, to point out to him where the trouble was. "7. After being on the crane five minutes appellee started to go down the ladder. In some way the machinist, or appellee, set the machinery in motion and appellee's hand was caught in certain gear wheels and all that part including the four fingers was amputated from a point on the metacarpal bone of the little finger about an inch BISCHOFF vs. AMERICAN CAR AND FOUNDRY CO. 365 and three-quarters below the wrist joint diagonally across the hand to a point two and a half inches below the wrist joint, leaving the thumb entirely uninjured. "8. It was mutually conceded by the parties, that, if appellee is en- titled to anything, he is entitled to the maximum compensation of $10.00 a week." If a workman is injured while voluntarily doing something quite outside the scope of the work he is employed to do, it cannot well be said that such injury "arises out of and in the course of his employment." This is illustrated by the old case of the boy who was engaged to .hand balls of clay in moulds to a moulder, and was told not to touch the machin- ery; but having nothing to do for the moment, he did at- tempt to clean the machinery, and was injured. It was neces- sarily held that the injury did not "arise out of and in the course of his employment,' 7 Lowe vs. Pearson, W. C. O. 5. It was also held that the injury did not arise out of and- in the course of the employment where a girl left her work to start an engine when the person whose particular duty it was to do so happened for the moment to be absent, Losh v. Evans & Company, 5 W. C. C. 17. In other words the work which one is employed to do, when construed in a reasonably broad and comprehensive way does limit and mark out "his employment,"- within the meaning of the statute. Of course, the scope of such particular employ- ment may be enlarged for the time being by the directions of some superior who has authority ; and in the case of an actual emergency it may be held that any reasonable attempt to pre- serve the employer's property is within the general lines of an employe's duty. But, ordinarily, the scope of a workman's employment is defined by the things he is employed to do, and the things reasonably and fairly incident thereto. Notice must be taken that a factory of today usually in- cludes within the field of its operations many fairly distinct lines of work, from that of the roustabout engaged in the or- dinary labor that almost any one may perform, to that of the expert mechanic which can be done safely by those only with 366 MICHIGAN WORKMEN'S COMPENSATION CASES. skill and experience. The difference between these various kinds of work was always recognized by the common law, and it was held to be negligence for the master to require of the servant, without warning and instructing him, the perform- ance of work outside of and more dangerous than that which the latter had contracted to perform. Such classification of work exists in the very nature of things, and as much under the statute as at common law. Its recognition is required by any proper organization of a factory, not only for efficiency, but as well for the purpose of guarding against accident and injury. And if a workman, when there is no emergency, should, of his own volition, see fit to intermeddle with some- thing entirely outside the work for which he is employed, he ought not to be allowed compensation upon the mere plea that he thought his act would be for the benefit of his employer. That plea may be of value under some circumstances, but it cannot authorize an employe to voluntarily take upon him- self the performance of work for which he was not employed. In the case at bar the crane, in connection with which the accident occurred, was located on beams some 15 feet above the floor where the claimant was required to work. It could be reached only by use of a ladder to be obtained and placed for that purpose, or by climbing upon a brace which was not intended for such use. Its location was as separate and dis- tinct from the floor where the claimant worked as if it had been in another room, or in another building. The crane was operated by electricity, and 240 volts were required for that purpose. It was dangerous to get upon it, or to intermeddle with it, as is stated repeatedly in the testimony and is shown by the accident itself. And this the claimant must have known as well as anybody. Two experts were employed by the com- pany for the particular purpose of repairing the cranes if they should get out of order. It is expressly found by the Industrial Accident Board, and \vc are bound by the finding, that the claimant understood he was employed as a moulder, and in no other capacity; and that there was nothing in the occupation of a moulder which BISCHOFP vs. AMERICAN CAR AND FOUNDRY CO. 36 1 ; r ould require him to go upon the crane for the purpose of re- >airing it should it be out of order. A more definite and ex- )licit finding as to what was within the scope of his duties, and what \vas without such scope, could not well be made. The Industrial Accident Board also finds that instructions i ad been given by the superintendent to the foreman to allow LO one but the men designated for such work to go upon the >rane, and that these instructions had been given to the moul- iers by the foreman. The superintendent testifies that one reason for these instructions was the safety of the moulders. It is true the Board also finds that the claimant could not speak nor fairly understand either English or the language )f the foreman, but it makes no express finding as to whether claimant did or did not actually and in fact understand these instructions. Whether the claimant really understood hem or not, he certainly did understand from the foreman that he was to report to the machinist or to the electrician any defect in the operation of the crane, and if they could lot be found that he should sit down or go home. This is found by the Board from his own testimony. On the day of the injury the crane used by claimant in his work did not operate properly and he reported it to the ma- chinist. It does not appear from the claimant's testimony that he had any difficulty in making the machinist understand the trouble with the crane. He says that he told the machinist [hat it was not good and that the brake was too loose. There- upon the machinist got a ladder and climbed upon the crane to repair it. After the machinist had got upon the crane the claimant followed him up the ladder and also up on the crane. No communication whatever between the two had been at- tempted after the machinist had started up the ladder, and while the claimant was on the floor. In other words the claim- ant did not climb up to and upon the crane because of any failure to make the machinist understand anything he was try- ing to tell him at the time. What the claimant did, after get- in;.' upon the crane, was to point out to the machinist what claimant thought ought to be done in making the repairs. He 368 MICHIGAN WORKMEN'S COMPENSATION CASES. did not, apparently, go up for the purpose of reporting the condition of the crane, but to suggest to the machinist what the latter ought to do to remedy the difficulty. The claimant appears to have fully understood the danger of being on the crane, because he says that as soon as he found the switch had not been opened he at once started to go down. In doing this he placed one hand upon the large wheel, when in some way the machinery was started, and his hand was crushed. The very thing that the claimant attempted to do, was the very thing that the Industrial Accident Board has expressly found to have been outside the limits of his employment. The finding of the Board is "'There is nothing in the occupation of a moulder which would require him to go upon the crane for the purpose of repairing it should it be out of order, a machinist and an electrician being employed by appellant to make the necessary repairs. Appellee understood that he was employed as a moulder and in no other capacity." The very thing he did do was to climb upon the crane, not for the pur- pose of reporting that it was out of order, but to direct the machinist in the performance of his duty. And he did this, well knowing the danger to which he was subjecting himself. In the face of the express findings of the Board, which, as we have said, are warranted by the evidence, it does not help claimant any that on several previous occasions also he had gone outside the limits of his employment by climbing upon the crane. The orders allowing compensation must be reversed and set aside. BROOKE, OSTRANDER, STONE and STEERE, JJ. concurred with PERSON, J. BIRD, J. (Dissenting). The sixth finding of fact of the In- dustrial Accident Board was: "While the machinist was up on the crane looking for the trouble, appellee not being able to make him fully understand in English, went up the ladder and got off where the machinist was, to point out to him where the trouble was." BISCHOFF vs. AMERICAN CAR AND FOUNDRY CO. 369 This finding of fact seems to me to be justified by the rec- ord. Claimant did not go up on the crane to repair the de- fect in violation of the rules. He went there merely to point out the defect which he was unable to describe in words to the machinist. To do so was to hasten the repair of the machine, which ordinarily would be to the advantage of both claim- ant and master. I am of the opinion that claimant's conduct should not be characterized as "intentional and wilful mis- conduct." Neither am I of the opinion that we should hold that claimant, in going upon the crane, under such circum- stances, was acting outside of the scope of his employment. The cases cited by Mr. Justice Person on this question were instances where the servant left his particular work and med- dled with machinery with which he had nothing to do. The machine in the present case was operated by claimant. When it was out of repair his work stopped. He knew where the de- fect was; the machinist did not for the moment. In an at- tempt to point out the defect claimant was injured. His effort was made in furtherance of the master's business, and it should not deprive him of the award. The finding of the Industrial Accident Board is affirmed. KUHN, and MOORE, JJ. concurred with BIRD, J. 47 370 MICHIGAN WORKMEN'S COMPENSATION CASES. SUPREME COURT. MARY LINDSTEADT, Applicant and Appellee, vs. LOUIS SANDS SALT & LUMBER COMPANY, Respondent and Appellant. CIRCUMSTANTIAL EVIDENCE. Applicant's decedent was employed in a building called the "hog- house" in respondent's plant, his duties being to keep the saw- dust and refuse passing into the conveyor which carried the same to the fireroom for use under the boilers. The refuse was brought from the mill into the hog-house by a conveyor which dropped it from a point about 53 feet above the floor, naturally forming itself into a conical pile and slipping down as the size of the pile in- creased. On the day of decedent's death, respondent's foreman went into the hog-house at 20 minutes to 3 o'clock in the morning and talked with decedent about 5 minutes he being apparently in normal health. At 5 minutes past 3, respondent's foreman re- turned to the hog-house, and not seeing decedent made search for him and found his body under the refuse, it being covered at the head by a depth of about 6 inches and at the feet to a depth of 36 inches. The evidence as to how decedent's death was caused was entirely circumstantial. HELD: That the circumstances shown were sufficient to justify and support the conclusion of the Board that death was caused by a sudden fall of the refuse which covered the body and apparently caused death from suffocation. Certiorari to the Industrial Accident Board to review the action of that board in awarding compensation to Mary Lind- steadt for the death of her husband while in the employ of Louis Sands Salt & Lumber Company. Affirmed. Howard L. Campbell, of Manistee, for applicant. P. T. Glassware, of Manistee, for respondent. LINDSTEADT vs. LOUIS SANDS SALT & LUMBER CO. 371 BROOKE, J. In this proceeding defendant reviews the de- termination of the Industrial Accident Board by the terms of which they are compelled to pay to the applicant the sum of $6.17 per week for a period of 300 weeks, as compensation for the death of one William Lindsteadt, husband of the appli- cant. The findings of fact and law made by the Industrial Ac- cident Board follow: "1. That the defendant, the Louis Sands Salt & Lumber Company, is a corporation with its principal offices and place of business in the City of Manistee, Michigan, and is and has been for a number of years engaged in the manufacture of lumber and salt at its mill and plant in Manistee, and was so engaged in carrying on said business on and before the 9th day of May, 1914. "2. That a large part of the sawdust from the logs sawed in de- fendant's mill, as well as certain other refuse from said logs was used by said defendant as fuel under its boilers in its fire room for the purpose of generating steam for operating said plant and for this purpose said refuse was passed through a grinding hog at or near said saw-mill and said refuse after being so ground, was carried from said hog by a conveyor to a building nearby, designated and called a hog or fuel house, into which said refuse was dropped to the floor beneath, a distance of about 53 feet from said conveyor, which ex- tended inside of said hog house about six feet and at the top of the same and near to the west wall thereof, said hog house being of wrought iron construction, and 30 feet wide and 50 feet long, and oval in shape. "3. That said refuse carried into said hog house by said conveyor was removed therefrom to the fire room for use under said boilers by means of another conveyor underneath the floor of said hog house, by which said refuse was carried to said fire room; that said refuse coming into said hog house through said conveyor from the mill con- sisted of about one-third sawdust, the rest of said material being small pieces of wood and shavings as it was ground in said hog; that as said refuse fell from the conveyor at the top of said fuel house to the floor thereof it assumed a cone-shape, piling up against the west wall of said building and slanting toward the opposite wall thereof near the entrance to the same; that over the conveyor underneath the floor of said fuel house, which said conveyor extended along the east side or wall thereof, were several loose planks about three feet long and ten inches wide, which were moved forward in such a way as to permit the refuse in said building to fall by its own weight through the spaces between said planks and into the conveyor underneath. 372 MICHIGAN WORKMEN'S COMPENSATION CASES. "4. That said refuse was usually damp, having come from logs which were taken out of the lake day by day and into the mill for sawing; that as said loose planks over said conveyor were removed, the said refuse fell into said conveyor by its own weight, thereby leaving a pile or bank of said refuse on each side of said conveyor which, as the volume of said refuse in said building decreased, would be scraped or raked into said conveyor by a "man employed for that purpose; that said refuse was conveyed into said building during the day time while said sawmill was in operation and was carried out of said building to the fire room during the night by the night opera- tions; that is, from six o'clock in the evening until six o'clock the next morning; that no refuse was coming into said fuel house at night. "5. That the entrance to said fuel house is shown on the map or diagram which was marked Respondent's Exhibit A, and received in evidence upon the hearing of said cause before the Board of Arbitra- tion, and it was conceded by counsel that said plat or diagram was substantially correct as to measurements and as to such other things as it pretended to show. "6. That the deceased, William Linsteadt, had been employed in and about the defendant's mill for a period of three years and up- wards prior to May 9th, 1914, and for 42% days prior to said date was employed by said defendant in said fuel house on the night shift and was so employed on May 8th and 9th, 1914; that said de- ceased was nearly 65 years of age and had been regular in his work during the said 42% days. "7. That the work and duties of the deceased required him to keep said refuse in said fuel house passing and falling in said conveyor to be carried to the fire room for use under said boilers and for this purpose he was furnished a hook with which to scrape, pull or rake said refuse from said pile into the conveyor when the volume of the same had so diminished that it would not fall into said conveyor by its own weight; that the planks over said conveyor near the en- trance or door of said fuel house were usually first removed so that said refuse at or near that side of said building would first fall into said conveyor and as further planks were removed approaching further into said pile of refuse, the said refuse would continue to fall into said conveyor of its own weight, so that as the quantity or volume of said refuse diminished in said building the said deceased was required to pull, scrape or rake said refuse at the sides of said conveyor down into the same so that it would be carried by said conveyor to said fire room and that the said deceased during the night of May 8th and the early morning of May 9th was so engaged in performing the said duties in the fuel house. LINDSTEADT vs. LOUIS SANDS SALT & LUMBER CO. 373 "8. That one Christ Radtke, foreman of the night shift at defend- ant's mill, went into the hog house at 20 minutes of three in the morning of May 9th, and talked with Lindsteadt about five minutes, who, at that time was standing over or near said conveyor raking said refuse into the conveyor, the floor at or near the entrance at that time being clear for a considerable space of said refuse, said refuse being about 8 feet high on one side of said conveyor and 3 feet high on the other side, and that the deceased then stood about 15 feet from the entrance door and apparently was in normal condition and health. "9. That at five minutes after three, said Radtke returned to the fuel house with one Patulski and deceased was not then visible, his body was found by Radtke and Patulski a minute or two afterwards underneath said refuse with his head about six inches from the door and his feet about six feet from the door or entrance and about nine feet from where he stood when Radtke had last seen him alive about twenty minutes previous. "10. That the deceased lay on his back with face upwards, his mouth was lightly open, with a chew of tobacco therein, into which sawdust had fallen; there was also sawdust in his nostrils, eyes and ears; there was about six inches of said refuse over his face and about 36 inches deep over his feet, the entire body being covered with said refuse; both legs were straight, one heel resting over or near a space between said loose boards, both arms were straight alongside of his body, the hook he had been using in his work lay near him in said refuse; the floor underneath his body was clear and free from saw- dust and he was found to be fully clothed. "11. That said refuse at, near or over the body of said deceased, showed no indications of any disturbance or any struggle en the part of deceased. "12. That there was no injury, wound, cut, abrasion or external injury of any kind or nature upon the body of deceased. "13. That the features, limbs or body of said deceased were not distorted in any manner whatsoever. "14. That an inquest was held at the mill of defendant soon after the body was discovered and after said inquest said body was removed to undertaking parlors where at about 6:00 in the morning an arterial injection of standard embalming fluid was made into said body im- mediately after the face of the said deceased had been washed and shaved by one Cron, licensed embalmer. "15. That the defendant company during the morning of May 9th, 1914, made three requests of the claimant and the family of deceased that an autopsy be held for the purpose of determining the cause of death of deceased which were denied and refused by said claimant and said family although the said defendant offered to pay the entire expenses of the same. 374 MICHIGAN WORKMEN'S COMPENSATION CASES. "16. That application was made by the President of defendant's company, R. W. Smith, to this Board by telephone and by letter during the morning of said May 9th, 1914, asking said Board to order and direct that an autopsy be held for the purpose of determining the cause of death of said deceased, and that this Board advised the said defendant that it had no authority to order an" autopsy. "17. That the body of said deceased between the hours of six o'clock in the morning and noon of the said 9th day of May, was ex- amined by three physicians and that it was the opinion of the medi- cal witnesses that said deceased died from one of the forms of heart disease and not from strangulation, suffocation, or asphyxiation. "18. That the deceased had never complained to the claimant or their family of having any trouble with his heart, and had never been treated therefor as far as his family know. "19. That the average daily wage of said deceased during the 42% days he was employed by said defendant in said fuel house was $1.90; that previous to the time deceased was employed in the fuel house he was employed at various work about the mill and plant of defend- ant company and from May 10th, 1913, to May 10th, 1914, deceased had received a total of $540.49, or an average weekly wage of $10.39, dur- ing the year prior and immediately preceding his injury. "20. That it was agreed by counsel that one cubic yard of the refuse in said fuel house w r ould weigh 600 pounds. FINDINGS OF LAW. "From the foregoing we find that the injury or death of deceased arose out of and in the course of his employment in accoi dance with Part 2 of Sec. 1, Act 10, Public Acts of 1912, and that compensation shall be awarded accordingly; that his average daily wage during the 42% days deceased was employed in said fuel house was $1.90, and the award of the Committee of Arbitration is accordingly affirmed." The evidence taken before the arbitrators is made a part of their return by the Industrial Accident Board. The following additional facts may be gathered from a perusal of the evi- dence. The coroner who conducted the inquest testified: "The face of Mr. Linsteadt was discolored, pretty much black." The undertaker who prepared the body for burial, gave the following testimony: LINDSTEADT vs. LOUIS SANDS SALT & LUMBER CO. 375 "I found the mouth packed with sawdust, not exactly tight, but as much as could be gotten into it. There was some in his throat, eyes and nostrils. The sawdust in his eyes was between the lid and the eye ball. I did not notice much out of the ordinary as far as any dis- coloration of the man's face. * * * The effect of embalming fluid when injected in the human body has a tendency to bring it back to a natural color. * * * I could not state what he died from. My idea is that suffocation is what I understood. My common sense would tell me that. * * * I have never studied medicine and wouldn't be able to state what he died from." Dr. King, sworn on behalf of the defendant, testified: "I would say that it would be very strong evidence that he did not die of strangulation or asphyxiation. * * * There would be dis- coloration of the features. * * * There would be no way of finding out whether he died of heart disease without an autopsy. There may be or may not be a struggle from death of heart disease." Dr. Kamsdell, a witness for the defendant, testified: "Without an autopsy it would be impossible to determine whether he died from heart disease or other cause. * * * I have attended persons dying of heart failure at their bed side and the cessation of breathing usually starts immediately. A very slow intake of air, you can hardly recognize it. They will breathe very slow and then (illustrating) out, with just a natural exhaustion. The lungs will suck in a little air, but there will be no decided breathing. "Q. Mouth usually open or closed? "A. It relaxes. "When I saw the deceased he had no sawdust in his mouth. A man dying of heart trouble, I doubt whether his breathing would be of sufficient force to draw sawdust into his mouth and thoroughly clog it." The claimant's daughter testified: "I examined father's face and body after the body was returned to the house. I looked at him the next morning and his face looked very nice. It was white but under his arms, he was in the casket, and I pushed back his coat sleeve, and the skin was dark looking and back of his ears had a purple look." It is the claim of the appellant that the record contains ab- solutely no evidence from which the Industrial Accident Board 376 MICHIGAN WORKMEN'S COMPENSATION CASES. could lawfully draw the inference that the deceased met his death as the result of an injury arising out of and in the course of his employment. Reference is made to the case of McCoy v. Michigan Sugar Co., 180 Mich. 454, where we said: "The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose 'out of and in the course of his employment' rests upon the claimant. * * * If an inference favorable to the applicant can only be arrived at by a guess the appli- cant fails. The same thing happens where two or more inferences equally consistent with the facts arise from them." See also Hills v. Blair, 182 Mich. 20. Appellant's contention is stated in the following language: "In applying the foregoing principles to the facts in the case at bar, the inquiry arises, do the facts as contained in the Board's find- ings of facts establish by the burden of proof the right of applicant to compensation for the death of deceased? The right of the parties to this appeal is determined by this finding of facts by the Indus- trial Board. They are binding and conclusive upon the parties in this proceeding for review, unless there is no evidence at all upon which to base them. It is not claimed by the appellant, however, that these findings of fact are not warranted by the evidence. On the contrary, no other findings were possible. It is the contention of the appellant, however, that the Board erred in finding these facts sufficient to award compensation to applicant under the Act in question, for the reason that they fail to establish by any preponderance of the proof that the death of the deceased arose out of his employment. The Board arrived at an erroneous, conclusion of law from the facts as found by them." It seems to be the contention of the appellant that the claim- ant must establish the fact that the injury giving rise to the demand, arose out of and in the course of his employment, by n preponderance of the evidence, as in a case at law. Judged by this standard it may perhaps be said that claimant failed to sustain the burden. The Act, however, does not cast this burden upon the claimant. It provides, Sec. 12, Part 3: "The findings of fact made by said industrial accident board act- ing within its powers, shall, in the absence of fraud, be conclusive, but the supreme court shall have power to review questions of law in- LINDSTEADT vs. LOUIS SANDS SALT & LUMBER CO. 377 volved in any final decision or determination of said industrial acci- dent board." In two recent cases we have determined that where there is any competent evidence to support the finding of the Board, this court will not undertake to weigh the evidence or disturb that finding. Rayner v. Sligh Furniture Co., 180 Mich. 168; Bayne v. Riverside Storage & Cartage Co., 181 Mich. 378. While this court might reach a different conclusion as to the cause of the death of the claimant's decedent than that reached by the board, we do not think it can be said that there is no evidence in the record justifying that conclusion. It will be noted that the award provides for the payment of |6.17 per week for a period of 300 weeks. This sum is based up- on the earnings of the deceased for the 42% days preceding his injury. The record discloses, however, that his average weekly earnings covering the year prior to his death amounted to but $10.39. Under Section 11, Part 2, this sum should have been made the basis of the award. The finding of the Industrial Accident Board on the question of liability is affirmed, and the case is remanded to that Board for the entry of an order in the proper amount, which would be one-half of f 10.39 per \veek for 300 weeks. 378 MICHIGAN WORKMEN'S COMPENSATION CASES. SUPREME COURT. ROY CARPENTER, Applicant and Appellee, vs. DETROIT FORGING COMPANY, Defendant and Appellant. PARTIAL Loss OF HAND BASIS OF COMPENSATION PARTIAL DISABILITY RESULTING NOT PERCENTAGE. Applicant while employed in the shop of respondent was injured by a steel sliver entering the third finger of the right hand near the second joint. Blood-poisoning and inflammation followed, leaving the hand in a partially disabled condition, so that the fingers can only be partially closed. A settlement agreement was made and approved by the Board and full payment made under the same, but it was shown that such agreement was made before the extent of the injury was fully known. Later, applicant filed a petition praying for reopening of the case and an award of further compensation, and on the hearing of such petition, 60 weeks' additional compensation was granted. Re- spondent, contends that the reopening of the case and an award for the partial loss of a hand were not authorized by law. HELD: 1. That under the facts, the Board acted within its authority in reopening the case and awarding further com- pensation. 2. That the law does not authorize an award on the basis of a percentage of the specific indemnity for the loss of a hand, and that the additional compensation awarded should be on the basis of partial disability and resulting loss in earnings. This case is here on certiorari to review the action of the Industrial Accident Board in setting aside a compensation agreement and awarding additional compensation to the em- ploye. Modified. Benjamin & Betzoldt, of Detroit, Attorneys for the Appli- cant. CARPENTER vs. DETROIT FORGING COMPANY. 379 Douglas, Eaman d Barbour, of Detroit, Attorneys for the Defendant. This case is here on certiorari to review the action of the Industrial Accident Board in setting aside a compensation agreement and awarding additional compensation to the em- ployee. On September 26, 1913, the claimant was working in the shop of the Detroit Forging Company. While taking steel sockets out of a box or tray, a steel sliver entered the third finger of the right hand near the second joint. It is admitted that this was an accident arising out of, and in the course of his employment. The wound became infected and claimant was totally disabled for about ten weeks. The fingers, hand and entire arm were swollen, and as the swelling and infec- tion subsided they caused adhesion of muscles and tendons of the right hand which prevented the entire closing or bending )f the fingers. We shall refer later to the testimony relating to the labor performed by claimant after the accident. On the 26th of December, 1913, an agreement calling for compensation upon the basis of one-fifth of the loss of the four fingers of the right hand, that is, calling for twenty weeks' compensation, was signed by the claimant and the Globe In- demnity Company and forwarded to the Industrial Accident Board, which refused to approve the same unless ten weeks more were added to compensate claimant for the time he was disabled from performing any work, on account of said injury. On January 26, 1914, another agreement was signed by said claimant and said indemnity company, by which said claimant was to receive, as full compensation, $9.00 per week for twenty weeks, on the basis of one-fifth of the loss of four fingers of the right hand, and in addition ten more \yeeks at $9.00 per week for the time the claimant was unable to do any work on account of said injury. The last-named agreement was duly approved by the Indus- trial Accident Board on Januarv 29, 1914, and the whole of 3SO MICHIGAN WORKMEN'S COMPENSATION CASES. said thirty weeks of compensation was promptly paid to claimant. At the time claimant was injured his average weekly earnings were f 18.00. After the payment of the 30 weeks' compensation, claimant made demand upon respondent for payment to him of addi- tional compensation for said injury, and respondent disclaimed liability for further or additional compensation. On June 24, 1914, claimant filed a sworn petition with the Industrial Acci- dent Board, praying that his agreement aforesaid of January 26, 1914, be set aside, and that further compensation for the above injury be awarded him. In said petition, said claimant, among other things, stated : "3rd. That by reason of the injuries to his right hand and right arm, your petitioner is unable to follow his occupation of that of polisher and is unable to earn said wages of $18.00 per week, but, on the contrary, at the present time and for some time past, has been unable to earn any wages whatsoever. That your petitioner is unable to make use of said right hand and arm, and he avers that the in- juries to said right hand and right arm will be permanent, and that he will be deprived of the use of said right hand and arm, for and during the remainder of his natural life. "4th. Your petitioner further avers that on or about the 26th day of January, 1914, at the request and relying upon the representations of the Globe Indemnity Company, he then and there signed a certain alleged agreement in regard to compensation, reference to which agreement is hereby had, and which said agreement is now on file in this cause. "5th. Your petitioner further avers that before signing said agree- ment, he then and there asked the representative of said Globe In- surance Company that if his said injuries as aforesaid continued for a longer period than anticipated, or became permanent, if petitioner would be entitled to additional compensation; that said Globe In- demnity Company, through its said representative, then and there informed your petitioner that if his injuries were more serious than at first anticipated, your petitioner would receive compensation until he would have the use of said right hand and arm, as provided for under the so-called compensation law; that said representative further stated that said agreement so to be executed was merely preliminary and not binding upon your petitioner if said injuries continued - for a longer time than contemplated by the agreement and became per- manent; that said representative further stated that in such event, the Industrial Accident Board would re-open and set aside said agree- > CARPENTER vs. DETROIT FORGING COMPANY. 381 ment and give your petitioner such additional compensation as would properly compensate your petitioner for his injuries so sustained; that your petitioner, relying upon such various representations and believing them to be true, then and there signed said alleged agree- ment in regard to compensation." On September 15, 1914, testimony was taken by deposition in support of, and in opposition to said petition. Said claim- ant and his wife (the latter testifying that she was present when said agreement was made) gave testimony tending to support the claim set forth in the petition relating to the statements made by the representative of said indemnity com- pany at the time said agreement was signed. E. T. Pocklington, the adjuster who made the alleged set- tlement with claimant, testified in part as follows: Q. "State whether or not you said anything to him about his hand. I think he has admitted that you did being permanently injured at that time? A. "Yes, that was the basis upon which we made the settlement. First, I started him out on the loss of time basis, paying him $9.00 a week, just simply because of the fact that he was disabled, and not acknowledging any permanent disability. The reason I did that was because at first Dr. Blain told me he thought there might not be any permanent disability, and that is customary anyway with all where we make payments under the compensation law, and I paid him along for probably eight weeks, when the doctor told me that there was a permanent injury, there would be a permanent stiffening. Q. "Of what, the fingers? A. "Of the fingers, partial stiffening, and this reply of the doctor was made to my inquiry because I had decided myself, seeing the hand week after week, it was "permanent, so I took it up with the doctor and he said it would be permanent, and over the telephone he told me a fifth would be a fair percentage upon which to base the loss of function; and the next time Mr. Carpenter came in I told him that there wasn't any question at all but what his injury was per- manent. I said, it may get a little better; there may be some im- provement, but nevertheless it will never be like it was before and the only thing we can do is to adjust the loss on the lasis of the present condition. 'Now,' I says to Mr. Carpenter, 'if you had lost all of those fingers you would be entitled to compensation for one hun- dred weeks,' and I explained that as he has already attempted to ex- plain it, giving him the number of weeks for each finger, 'but now,' I said, 'you haven't lost all, there is considerable amount of use left,' 382 MICHIGAN WORKMEN'S COMPENSATION CASES. I says. 'Is it half as bad as though you had lost all?' and he ad- mitted that it wasn't; was quite vehement in his denial; and I said, 'is it a quarter as bad?' No, it wasn't a quarter as bad. 'Well,' I said, 'Isn't it about, or wouldn't it be about one-tenth part as bad?' And Mr. Carpenter allowed that it would be about a tenth, and then I said: 'If I allow you twice as much, or a fifth, you will be satis- fied,' and he was perfectly satisfied; that is the way that Mr. Car- penter and I talked the matter over. It was strictly on the basis of a permanent disability, and based on the present condition of the hand, and then at that time, the condition at that time, and so far as his future trouble is concerned, I told him. He asked me: 'If the hand gets stiff so I cannot do anything with it, what can I do then?' And I said: 'If you should lose the hand, the entire usefulness of the hand, you will get paid for the hand. The Board will see that you get paid.' I was very particular to impress upon his mind at the time of signing the agreement, that was an agreement between us. I am very particular to see that everyone who signs an agreement or settlement understand what they are signing." From the evidence produced before the Board, it found the facts to be in substance as follows: (a) That on December 26, 1913, when the claimant and Mr. Pocklington came to an understanding or agreement, that the amount of said claimant's injuries would be one-fifth of the loss of the four fingers of said right hand, that said right hand was then in a splint and that it was impossible for either party, at that time, to fully know whether there would be any permanent stiffness of the fingers or hand, or the extent of claimant's injuries, but both parties expected said injuries would be permanent to some extent, but to what extent was not then known. (b) That on January 26, 1914, when the last agreement be- tween the parties was signed, it was then expected by Mr. Pocklington, adjuster, that the injuries sustained by claimant, were permanent, and he so informed the said claimant, and that said settlement agreement was signed by claimant upon the understanding and basis that the injuries he had received did not, and would not amount to more than one-fifth the 1( of the four fingers of the right hand, and if it afterwards de- veloped that the injuries were more serious, the claimant CARPENTER vs. DETROIT FORGING COMPANY. 383 would have the right to petition the Board for further com- pensation. (c) The Board found, as a matter of fact, that the injury sustained by claimant was permanent, and affected the use of the entire. hand; that the condition of claimant's hand had improved since January 26, 1914; that, however, claimant had lost 60% of the normal use of said right hand. (d) That the evidence disclosed that on account of this in- jury the average weekly earnings of the claimant, from the time he was able to return to work, had been greatly de- creased, and that he was, and would be, unable in the future to do metal grinding and polishing, (the work which he was engaged in when injured,) or other skilled work requiring the full use of both hands, and that as to common labor, he would be partially incapacitated, all on account of his injuries, and the permanent nature thereof. (e) . That the then condition of claimant's hand and arm, and his resulting disability, were due to the injury received by him September 26, 1913. Thereafter the said Board entered an order, in writing, granting the prayer of claimant, and adjudging that he was entitled to receive and recover from the said respondent, in ad- dition to all sums theretofore received by him, compensation for sixty weeks at the rate of f 9.00 per week ; that the portion of such compensation as that had accrued from the time of the stopping of payments to .said claimant, should be due and payable on the date of said order, the remainder thereof to be paid weekly in weekly payments, in accordance with the provisions of the Workmen's Compensation Law, the amount thus awarded to be in full of all claims of said applicant against said respondents. Thereafter the appellant filed a motion for a rehearing, con- tending that the award and order of the Board granted com- pensation on the basis of a certain percentage of the loss of the hand or arm, which loss of use was less than total loss of use of same, and that this basis was erroneous, which motion was denied. 334 MICHIGAN WORKMEN'S COMPENSATION CASES. The said Board further stated in its return to the writ, that there was no claim made upon the hearing of the matter that Mr. Pocklington, adjuster for the Globe Indemnity Company, intended to act fraudulently. As a finding of law, said Board found that under the facts in the case the applicant was, as matter of law, entitled to sixty weeks' additional compensation. The assignments of error are as follows: (1) In holding that the agreement with regard to com- pensation was not final and binding upon claimant. (2) In basing the award on a partial loss of four fingers of the right hand, and not on one-half the difference between claimant's average weekly wages before the injury, and the average weekly wages which he was, -and is able to earn after the injury. (3) In basing the award on a partial or percentage loss of a hand instead of on the extent of disability, viz.: one-half the difference between claimant's average weekly wages before the injury, and the average weekly wages which he was, and is able to earn after the injury. (4) In basing the award on a partial or percentage loss of the right arm, and not on one-half the difference between claimant's average weekly wages before the injury, and the average weekly wages which he was, and is able to earn after the injury. (5) In determining and ordering respondent to pay to claimant the sum of $540, in addition to the amount already* paid as further compensation for the accident and injury to claimant. The followng request was made by counsel for respondent and appellant at the hearing to settle the return to the writ herein : 1. That the return state, and show upon what clause and provision of Act No. 10 Public Acts of 1912 the award arrived at by the Board, in this case was determined and base4- 2. That the basis of the award be shown in the return to the writ. CARPENTER vs. DETROIT FORGING COMPANY. 385 Which request the Board refused, for the reason that the indiug of law made by it, and set forth in the return, is suffi- iently definite. Counsel for appellant state that there are but two general questions presented in the case: 1. Did the Board err in setting aside the settlement agree- ment of January 26, 1914? 2. Was the award based on a percentage loss of the right iand? (1) Upon the first point counsel rely principally upon section 5 of Part 2 of the Act. They concede that such an agreement as the statute contemplates, may be set aside for fraud, mistake or undue influence. In our opinion the statute contemplates an agreement and settlement made without con- tingency or condition; and not one based upon a possible or probable event that may render it inoperative. ,An agree- ment and settlement based on the strength of such a condition or contingency is not such as the statute contemplates. Here, according to the testimony of the adjuster Pocklington, the settlement was based upon the understanding that if claim- ant's hand got worse so that he should lose the usefulness of the hand, the Board would see that he got paid for it. The testimony of the claimant and his wife went much fur- ther, and was to the effect that if the hand and fingers did not get better, he could put the matter before the Board, and that the agreement would not be binding, or final. It does not meet the question to say that Mr. Pocklington did not intend to act fraudulently. The material question is, what was the effect of what he said? Ordinarily one cannot successfully ask for affirmative relief on the bare ground that he was either ignorant of the law, or mistaken as to what it prescribed. But it is now well settled that this rule is not invariably to be applied. In many cases where injustice would be done by its enforcement, this has been avoided by declaring that a mistake as to the existence of certain particular rights, though caused by an erroneous 49 386 MICHIGAN WORKMEN'S COMPENSATION CASES. idea as to the legal effect of an instrument, or as to the duties or obligations created by an agreement, was really a mistake of fact, and not strictly one of law, and so did not constitute an insuperable bar to relief. Keggio v. Warren, 207 Mass., 525, as reported in Vol. 20 A. & E. Ann. Cases, 1244, and cases cited in note. The rule is that a release may be rescinded for a mutual mistake of law. Kirchner v. New Home Sewing Mach. Co., 135 N. Y., 189. Whether placed upon the ground of constructive fraud, or mistake of fact as well as of law, the law forbids that a party, who, with full knowledge of the ignorance of the other con- tracting party, has not only encouraged that ignorance, but has knowingly deceived and led that other into a mistaken conception of his legal rights, should shield himself behind the doctrine that a mere mistake of law affords no ground for re- lief. We think that placing its action upon either ground, the Board did not err in acting, notwithstanding the so-called set- tlement agreement. (2) The remaining assignments of error may be consid- ered together. It should be stated that the order of the Board was made before the opinion of this court in Hirschkorn v. Fiege Desk Co., 150 N. W., 851, was rendered. That case has been fol- lowed by Cline v. Studebaker Corporation, 135 N. W., 519. Those cases hold that as the Act (Section 10 Part 2) under the schedule of specific indemnity provides compensation only for the loss of an eye, an award cannot be arrived at upon a basis of a partial loss of the same. \\V think that this principle, and the reasoning of the cases apply as well in the case of an injury to a hand as to an eye. Although there is no special finding upon the point, it is evi- dent from the language used by the Board that it made its CARPENTER vs. DETROIT FORGING COMPANY. 3S7 allowance under the schedule of fixed liabilities contained in the above cited section, instead of under the first clause of that section, which is as follows: "While the incapacity for work resulting from the injury is par- tial, the employer shall pay, or cause to be paid as hereinafter pro- vided, to the injured employe a weekly compensation equal to one- half the difference between his average weekly wages before the injury, and the average weekly wages which he is able to earn thereafter, but not more than ten dollars a week; and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of injury." It was our first impression that the amount awarded was no greater than could have been given, by the evidence, under the clause above quoted, and that appellant had not been in- jured in the amount of the award. A more careful examina- tion of the evidence leads us to doubt the correctness of that impression. Under the practice as stated in Andrejwski v. Wolverine Coal Co., 182 Mich. 298, and Finn v. Detroit, Mt. C. & M. City Ky., 155 N. W., 721 ; 22 Det. L. N., 1204, the order of the said Industrial Accident Board is therefore reversed, and the case hereby remanded for such further hearing therein before said Board, as the parties may desire. 388 MICHIGAN WORKMEN'S COMPENSATION CASES. ARTHUR L. BE VANS, Applicant, vs. STEWART LAUNDRY COMPANY, Respondent. BABNYAED INFECTION EVIDENCE SUFFICIENCY OF. Applicant claimed that the disease from which he suffered was con- tracted by infection caused by contact with and caring for sick horses of his employer and that it was an injury by accident within the meaning of the law. HELD: Evidence insufficient to establish the claim. Opinion by the Board: Applicant claims compensation for disability resulting from what is termed barnyard infection which he claims was caused by contact with and caring for sick horses of his em- ployer, the respondent in this case. It is claimed that the in- fection is a germ disease and that its communication to ap- plicant from the horse constituted a personal injury by acci- dent within the meaning of the Law. We have given very careful consideration to the case, and while convinced that a disease contracted by infection from the lodgment of germs or bacilli in the system constitutes an industrial accident, we are not convinced that the proofs will sustain the claim here made. The evidence shows that the first horse was taken sick on April 7th and two other horses became sick within the next 30 days. I>evans took care of the horses, administered medicine with a syringe and later, in the month of June, experienced a swell- ing in the throat. On August 3rd he consulted Dr. Colver who treated him, operated on the throat and later, December 3rd, took him to Ann Arbor for examination by Dr. Oanfield.- H< was operated on by Dr. Canfield at Ann Arbor on December Dth, and returned home January Oth. Bevans says in his tes- BEVANS vs. STEWART LAUNDRY CO. 389 timony that his disease was just the same as the horses had, so far as he could observe. The medical testimony is given by Dr. Mix, the veterinary who treated the horses, and Dr. Col- ver. Dr. Mix had no knowledge of the disease Bevans suffered from or of its nature. Dr. Canfield was not called as a wit- ness. Dr. Colver testified that he did not know what Mr. Bev- ans' disease was or from what germ he was suffering. His testimony when fully examined does not make a reasonable showing in support of the claim that Bevans contracted the disease from the horse by accidental communication of the germ while caring for the horse or administering medicine. In the absence of evidence tending to prove that Bevans con- tracted this disease from the horse by showing the substantial identity of the germ and disease, there is no substantial basis for awarding compensation. Dr. Colver was not present at the operation performed by Dr. Canfield. The only evidence as to what Dr. Canfield found is the hearsay evidence of Dr. Colver as to what was said by Dr. Canfield. We are convinced that the proofs do not fairly establish the claim and that no compensation can be awarded. 390 MICHIGAN WORKMEN'S COMPENSATION CASES. JOSEPH KALUCKI, Applicant, vs. AMERICAN CAR & FOUNDRY COMPANY, Respondent. Loss OF EYE RESULTING SEVERAL MONTHS AFTER ACCIDENT LIMITATIONS. Applicant received an injury to his left eye which was not con- sidered serious and did not prevent him from doing his work and earning the same wage for several months following the accident. About 8 months from the date of the accident the eye was ex- amined by an expert and the sight was found to be entirely gone. Respondent claims that compensation is barred by the failure to make claim within 6 months after the happening of the accident. HELD: 1. That while the accident set in motion agencies which ultimately destroyed the sight of the eye, no right to compensation accrued and no compensable injury existed until the point of time was reached where the eye was a total loss. 2. That the injury complained of is the loss of the eye which did not result until several months after the accident, and that the right to compensation is not barred by failure to make claim. Opinion by the Board: Applicant's left eye was injured on July 29, 1914, while he was in the employ of respondent and engaged in his usual work, the injury being caused by bits of steel entering his eye. The accident was reported to the company's doctor, and appli- cant was furnished medical service for a few days, after which he returned to work, it being thought that the eye was not seriously injured. He was able to do his usual work and re- ceive the same wages, although the eye caused him some trou- ble and inconvenience. He continued in the employ of the company until the work on which he was employed was fin- ished. The eye continued to cause him more or less trouble, and being treated and cared for with the expectation that the KALUCKI vs. AMERICAN CAR & FOUNDRY CO. 391 I trouble would be overcome. On April 7, 1915, applicant had the eye examined by Dr. Don M. Campbell, and it. was then found that the vision of the eye was gone and the eye useless. Claim was made for compensation for the loss of an eye and the case proceeded to arbitration. The principal contention of respondent is the want of notice of injury and that no claim for compensation was made within six months after the accident. The formal claim for compensation was filed and served on the employer on June 10, 1915. It appears that the employer had knowledge of the acci- dent and caused the injury to the eye to be treated and cared for by its physicians. The serious question in the case arises with reference to the claim for compensation. The furnishing of medical service and treatment by the employer would seem to constitute a waiver of its defense based on failure to make such claim. The defense is a tehcnical one and is interposed in this case to defeat applicant's claim for a very serious in- jury which is otherwise concededly meritorious. The claim put forward in this case, that applicant should have made formal claim for compensation for the injury to the eye within six months from the date of the accident, raises some important considerations. It has been held by the Su- preme Court that no compensation is recoverable for injury to an eye where the sight is not wholly lost, and where the in- jured man is aWe to perform his work and earn the same wages. Under these rulings, the applicant had no claim that could be asserted under the Compensation Law during the first six months following the accident. It seems that it could not reasonably be held that his failure to go through the formality of making a claim during this period, forever bars his right to recovery for the injury. Under the rulings above referred to, the applicant had no enforcible claim under the Compensation Law until the sight of the eye was gone. Hirsch- korn vs. Feige Desk Company, 184 Mich. 239. Not until the examination made by Dr. Campbell on April 7, 1915, was he aware that the eye was lost. Up to that time he could not have known that he had a claim for compensation under the 392 MICHIGAN WORKMEN'S COMPENSATION CASES. Law. It is true that he knew a portion of the sight had been lost, but .this did not entitle him to compensation, as our Law does not permit recovery for the loss of a percentage of the eye which is less than total. It seems therefore that a distinction must be made in cases of this kind between the accident and the resulting injury. It is apparent that the ac- cident set in motion agencies which ultimately destroyed the sight of the eye, but the loss of the eye which would be the only compensable injury in the case did not occur until sev- eral months after the accident. A similar question has been recently passed upon by the Supreme Court of Nebraska in the case of Johanson v. Union Stockyards Co., 156 N. W. Rep. 511. The injury was the loss of an eye which occurred several months after the accident, the principal defense being the failure to file claim for injury within the six months period. The Court say: "It is conceded that the accident happened more than six months before this claim was made (the date of the accident being December 18, 1914). The trial court found 'that said accident resulted in a total disability to plaintiff on December 25, 1915.' * * The plaintiff went to his home the night after the accident, and he testified that, with the help of his niece, he washed his eye with warm water, and they appear to have so continued treating it, without realizing what might result from the accident, for several days, until the 25th day of December, when he was induced to consult a physician, who ad- vised him to go to a hospital and consult an expert. This he accord- ingly did, and was informed that his eye was in a serious condition and might result very unfavorably. During this time, apparently, the injury resulting from the accident gradually became developed, and it cannot be said that the injury resulted from the accident, within the meaning of the statute, before the time it was discovered that it might become permanent, which was some time after the 25th of December. This evidence clearly justifies the finding of the trial court under this statute, that the accident resulted in a total disability to plaintiff on December 25, 1915. It also appears from the evidence that the plain- tiff's foreman knew of the accident at the time, or very soon after it occurred. He so testifies himself. He could not, of course, then have known of the injury as it finally developed." While the distinction between "accident" and "injury" in the case cited is based to some extent upon the definition of INTER-INSURANCE EXCHANGES. 393 these terms given in the Nebraska Act, substantially the same distinction exists independent of statute, as pointed out by us in the opinion filed in the Harry Hart case. It seems that this is the only reasonable interpretation of the law in case of injury to an eye which does not disable the workman from continuing his employment and earning his former wages, but which ultimately results in the loss of the eye. No valid right to compensation exists for which claim could be made until the point of time is reached where the eye is a total loss. It would be most unreasonable to require that the injured work- man file claim for compensation before a legal right to such compensation accrued to him. On the other hand, it would be a harsh rule of interpretation to cause the forfeiture of a meritorious claim for such a serious injury, on the ground that the injured man did not claim compensation for the loss of an eve before he was aware that it was lost. INTEE-INSURANOE EXCHANGES. The Inter-Insurance Exchanges licensed to do business in Michigan under Act 278, Public Acts of 1913, are so organized that the power to assess their membership is limited and the liability of the mem- bers several. It is a fundamental requirement of workmen's com- pensation insurance that the liability of the insurer be limited only by the amount necessary to pay all lawful claims of the workmen covered, and their dependents. Therefore, such Exchanges must provide for emergency losses and any deficiencies by re-insurance in a company or companies of such responsibility as shall meet the approval of the Industrial Accident Board. Under the provisions of Act No. 278 of Public Acts of 1913, n number of Inter-Insurance Exchanges have been licensed to do business in Michigan. These Exchanges all operate on sub- 394 MICHIGAN WORKMEN'S COMPENSATION CASES. stantially the same system, viz., through an attorney in fact to whom each member of the Exchange gives a power of attor- ney. This power of attorney authorizes the person or corpo- ration to exchange contracts of indemnity with and for the benefit of other members of the Exchange. The attorney in fact controls the operation of the Exchange, carries on the business, adjusts the losses and collects the funds from the members for such losses and the expenses of the operation. The Exchanges admitted by the insurance department of the state to do business in Michigan, have, through their re- spective attorneys in fact, adopted and attached to their policies or certificates the Eider prescribed by the Industrial Accident Board, and used by all of the liability companies in Michigan which are carrying compensation insurance. If the action of such attorneys in fact in so adopting the Eider pre- scribed by the Board is within their powers and their sub- scribers are thereby made liable for all losses according with the provisions of such Eider, then they would be entitled to the approval of the Board in carrying the risk of employers of labor in this state. But an examination of the powers of at- torney of the different Exchanges raises a very serious ques- tion as to the authority of the several attorneys in fact to so bind their subscribers. Immediately after the compensation law went into effect in 1912, the Board required all liability companies and mutual companies carrying compensation insurance to remove from their policies the clause placing a limitation upon the amount of the company's liability resulting from any one accident. This ruling at first met with serious objection from the in- surers, but all have complied with it; and it is now estab- lished as a part of the system in Michigan that the liability of the insurer growing out of any one accident is limited only by the amount necessary to pay compensation to all workmen injured and the dependents of all who are killed thereby. Hav- ing held from the beginning that any company assuming to carry the risk for an employer of labor must assume and carry all risk, the Board could not now properly approve contracts INTER-INSURANCE EXCHANGES. 395 of Indemnity Exchanges unless they fully meet the require- ments that other companies and organizations have been re- quired to meet. The fundamental purposes of the law in pro- viding for insurance is to make certain the payment to each injured workman of all of the compensation which he is en- titled to receive under the law. The necessity for the action taken by the Board in requiring that the obligations of the insurer be unlimited is demonstrated by the explosion in the plant of the Mexican Crude Rubber Company of Detroit, where nearly a dozen workmen were killed and a number injured. While the powers of attorney of the Exchanges referred to differ in some respects, they are alike in their essential feat- ures. They provide that the attorney shall have no power to bind the subscribers jointly, and that he can only bind such subscribers severally, and that no subscriber shall be liable to pay during any one year more than double the (advance) pre- mium for that year. That the power of the attorney in fact is entirely limited, and further that the power of attorney may be terminated by the subscribers at will. Sections 5 of Act No. 278 of Public Acts of 1913, provides for the filing of a statement under oath in the insurance department of the state by the attorney in fact of each Exchange admitted to do bus- iness in the state, setting forth among other things the maxi- mum liability for any one accident occurring in the business of any of its subscribers. Such statements have been filed with the insurance commissioner, some of them limiting the liability to f 10,000 and some to |20,000, which latter sum is the highest amount specified in any of the certificates. In view of the provisions of the several powers of attorney and such certificates, the action of the attorneys in fact, in assuming to adopt the Eider prescribed by the Board, is clearly beyond and in conflict with the powers of such attorneys. Their au- thority is derived entirely from the powers of attorney, which constitute the sole grant of power from their subscribers. We are therefore of the opinion that the action of the attorneys in fact of such Exchanges in attaching to their policies the Rider required by the Industrial Accident Board is in each 396 MICHIGAN WORKMEN'S COMPENSATION CASES. case ultra vires and does not bind the subscribers beyond what is covered in the express grant of power. The provisions of the powers of attorney that none of the subscribers shall incur a joint liability, but shall only incur a limited several liabil- ity, clearly makes impossible the assumption of the unlimited risk required. For the above reasons we deem it necessary to withhold approval of all applications where the risk is to be carried by indemnity Exchanges under the limitations above mentioned. The entire structure being built upon the powers of attor- ney, the structure itself cannot be broader than its founda- tion. It seems therefore that the remedy must come from a change in system, particularly in the powers of attorney, which should be so changed as to provide that the liability of the Exchange to injured workmen and their dependents is limited only by the amount that is necessary to satisfy their claims under the compensation law. They should also provide that emergency losses should be covered by re-insurance, and that such re-insurance should be carried in a company or com- panies of such responsibility as to meet the approval of the In- dustrial Accident Board. Another reason why re-insurance in the line above suggested is necessary is the fact that the lia- bility of members of the Exchange is limited and is merely a several liability, not a joint liability such as is the case in mut- ual insurance companies. Under this limitation of the liability of the members of the Exchange, there would be no means of compelling the payment by such members of the money neces- sary to meet the emergency losses, and therefore such emerg- ency losses would have to be provided for by re-insurance. In the arguments presented to the Board by the representatives of the Inter-Insurance Exchanges, it was claimed that these emergencies would in actual practice be rare, which is prob- ably true. But this fact would be no reason why the emerg- encies should not be provided for so as to make certain that the employe injured would receive his compensation. If the emergencies are rare as claimed, this ought to result in a very low rate for re-insurance for emergency losses, and the re- CONVICTS. 397 quirements of such re-insurance would not be a considerable burden. The requirements of Act No. 278 of Public Acts of 1013 could be met by having the verified statement filed with the insurance department by the attorney in fact of each Ex- change, set forth that the maximum liability for any one acci- dent is the amount necessary to pay all lawful claims of the workmen or their dependents who are injured by such acci- dent. It is the opinion of the Board that if the conditions here enumerated can be met by the Inter-Insurance Exchanges, that the question of their carrying compensation insurance in Michigan can be worked out. CONVICT, INJURED WHILE AT WORK DURING PRISON TERM, NOT ENTITLED TO COMPENSATION. Opinion by the Attorney General: It is my opinion that a prisoner working on state account is not to be considered as an employe within the meaning of the act. It can scarcely be said that there is any contractual relation between the State and such prisoner, in view of the fact that the latter is restrained of his liberty as a punishment for crime, neither could such prisoner be considered as being in the employ of any contractor with the State for his services, for between such contractor and such prisoner there is no *A number of the Inter-Insurance Exchanges have complied with the above and are doing compensation business in the State. 398 MICHIGAN WORKMEN'S COMPENSATION CASES. privity whatever, consequently, it follows that a prisoner of the State who is injured while working on state account or while working on contract would have no redress under the liability Act. Respectfully yours, GRANT FELLOWS, Attorney General. VOLUNTEER FIREMEN ARE EMPLOYES WITHIN THE MEANING OF THE COMPENSATION L>AW T . Opinion by the Attorney General: Cities and Villages are authorized by the laws relating thereto to employ men to protect property located within their confines from fire. Section 3277 Etseq, Compiled Laws; and Section 2878 Etseq, Compiled Laws. This can be accomplished either by a permanent fire depart- ment or by paying for the help as needed, namely, by the so- called volunteer system. In very many cities and villages the work of controlling and extinguishing fires is done by volun- teer firemen who are paid at a given rate for each fire as it occurs. The provisions of the Workingmen's Compensation Law which seem to be applicable are as follows: VOLUNTEER FIREMEN. 399 Part 1, Section 5 "The following shall constitute employers subject to the provisions of this Act: 1, The State and each County, City, township, incorporated Village and school district therein." ***** Part 1, Section 7 "The term 'employe' as used in this Act shall be construed to mean: 1, Every person in the service of the State, or of any County, City, township, incorporated village or school district therein under any appointment, or contract of hire, express or im- plied, oral or written, except any official of the state, or of any county, city, township, incorporated village or school district therein: Pro- vided, that one employed by a contractor who has contracted with the County, City, township, incorporated village, school district or the state, through its representatives, shall not be considered an employe of the State, County, city, township, incorporated village or school district which made the contract." There can be no doubt that as the regularly employed fire- men in cities and villages, where a fire department with a paid force is maintained would come within the provisions of the law, the same as other employes of the cities or villages; this because cities and villages are expressly declared to be employ- ers within the meaning of the act, and employes of cities and villages are declared to be employes within the meaning of the act. As a general proposition, an employe is one who works for another. The definition of employer and employe as given in the Act does not seem to carry with it any particular requirement as to the period of employment, nor does it import continuous employment. I am of the opinion that any appreciable period of time in which one person is in the employ of another would be suffi- cient to constitute the relation of employer and employe be- tween them. Neither does the act, except in Section 2 of Part II, place any restrictions on the kind of work that con- stitutes employment within the meaning of the law. The prin- cipal desideratum is that the relationship exists and that in- injury is received in the course of the employment. These facts being established and the employer or employe not being within the excepted classes, the right to the benefits conferred by the Act follow the injury. 400 MICHIGAN WORKMEN'S COMPENSATION CASES. Although the matter is not free from doubt, I am inclined to the opinion that your inquiry should be answered in the affirmative. The exact or approximate compensation to which an injured volunteer fireman would be entitled to, would in my opinion be rather difficult of computation under the pro- visions of section 2 of part II, but as that only affects the amount recoverable and not the right to recover I shall not further enlarge upon it in this opinion. Respectfully yours, GRANT FELLOWS, Attorney General. STATE MILITIA, MEMBER OF, NOT AN EMPLOYE WITHIN THE MEANING OF THE COMPENSATION LAW. Opinion by the Attorney General: Section 47 of Act 84 'of the Public Acts of 1909 was un- doubtedly intended to cover cases of this kind and to invest the Board of State Auditors with discretion in connection with the granting of relief to the families of officers or en- listed men suffering permanent injury or death while engaged in actual service within the State. The section referred to reads as follows: "In case any officer or enlisted man shall be wounded or disabled while in service in case of riot, tumult, breach of the peace, resistance of process, or whenever called in aid of the civil authorities, he shall be taken care of and provided for during such disability at the ex- pense of the county where such service shall have been rendered; and in case of death or permanent disability in consequence of such ser- STATE MILITIA. 401 vice, he or his widow and children or next of kin shall receive such relief as the Board of State Auditors shall determine to be just and reasonable, payable out of the moneys in the general fund of the State not otherwise appropriated." If the section above quoted is still in full force and effect relief may be afforded in accordance with its provisions. Not having* been expressly repealed by any subsequent enactment it must be deemed to be operative now and applicable to this and similar cases unless repealed by implication by Act No. 10 of the Public Acts of 1012, First Extra Session, commonly referred to as the Employers' Liability Act. I am impressed however, from an examination of the latter statute that it was not intended to cover and does not in fact apply to members of the National Guard when engaged in service in accordance with the provisions of Act No. 84 of the Public Acts of 1909. The term "employe," as used in the Employers' Liability Act, is expressed to mean "every person in the service of the state under airy appointment, or contract of hire, express or implied, oral or written * * * *." It is thus clearly indicated that the relation of employer and employed under this Act must be based upon a contract within the usual meaning of that term. It is extremely doubtful in my opinion if the relation existing between the state and a member of the National Guards may properly be so considered so far as the case before us is concerned. It is a general proposition that the meaning of terms used in any particular legislative enact- ment should be determined in accordance with the spirit and general provisions of the entire measure. I find nothing in the Employers' Liability Act that would indicate that it was the intention of the Legislature that the same should be ap- plied to persons engaged in Military service under the ordi- nary rules and regulations governing the same. Had this class been within the contemplation of the law making body at the time of the passage of the statute, it is highly probable, to say the least, that provision would have been made for the extraordinary liability that might be incurred as a result of 51 402 MICHIGAN WORKMEN'S COMPENSATION CASES. such inclusion. A serious disturbance in any section of the State of such a nature as to require the presence of any con- siderable portion of the State Guards might naturally be ex- pected to result in injury and perhaps death to a considerable number. To meet such a contingency the Act of 1912 makes no suitable provision, thus suggesting the inference that cases of this kind were not intended by the Legislature to be within the purview of the Act. It is a well settled rule of statutory construction that re- peal by implication will not be favored by the courts. Con- sidering in connection with this general rule the underlying purpose of the Employers' Liability Act the conclusion seems unavoidable that Section 47 of Act 84 of 1909 is still opera- tive. Under this Section full and adequate provision may be made for the families of those permanently injured or suffer- ing death while engaged in Military service. The Act of 1912 under consideration before us was unquestionably designed to provide for the relief of those employes, and their families who were not, under the laws of the State, at the time of the passage of said Act, adequately protected. Construing the Act therefore in the light of the purpose for which it was passed additional strength is afforded to the conclusion that members of the National Guard are not affected by its pro- visions. I am strongly impressed that a contrary interpreta- tion would do violence to both the spirit and the letter of the statutes. Very Respectfully yours, GRANT FELLOWS, Attornev General. WARDS OP STATE. 403 (WARDS OF STATE INMATES OF BLIND SCHOOL NOT EMPLOYES. Opinion by the Attorney General: The Employment Institution for the Blind was established in accordance with the provisions of Act No. 169 of the Pub- lic Acts of 1903. Undoubtedly the purpose of this Act was to provide for the instruction, care and maintenance of blind persons who are capable of receiving the instruction afforded by said institution and by their labor or services to earn in part at least the cost of their own support. I am impressed that none of the blind inmates of the institution regardless as to whether they are classed as apprentices, wards or wage- workers should be regarded as employes within the meaning of the Workman's Compensation Act. Clearly these inmates are not employes of the state in the usual sense in which the term is used; such people are not given employment with the idea of making a profit for the state out of their labor but rather that they themselves may be properly cared for in a state institution established for purely charitable purposes. Very respectfully, GRANT FELLOWS, Attorney General. 404 MICHIGAN WORKMEN'S COMPENSATION CASES. RULES OF PROCEDURE. I. SELECTION OF ARBITRATORS. It is a maxim of the law that no man can act as judge in his ,own case, and this principle extends to and excludes all persons financially interested in the outcome of the case, to- gether with their agents, officers, and attorneys. Persons so nearly related to any of the parties in an arbitration case that they may be fairly deemed to be financially interested in the decision are also excluded under this principle. The rule is therefore established by the Board that all persons who fall within any of the above named classes are disqualified from acting as arbitrators in cases to be heard before committee on arbitration under the Workmen's Compensation Law. II. POSTPONEMENT OF CASES. The compensation law provides that arbitration be had in the locality where the accident occurred. This is for the ac- commodation of parties interested and to save expenses for travel and mileage for themselves and witnesses. In all arbi- tration cases one member of the Board goes to place of acci- dent, frequently traveling hundreds of miles to hear the case. It is apparent under these conditions that a postponement of such hearings cannot be had, and it is necessary for the parties to be prepared for arbitration and to proceed with the same at the time and place set. Any other rule would make the administration of the compensation law expensive and inef- fectual. The parties must also have their witnesses ready at the time and place set for arbitration so as to make their proofs complete. RULES OF PROCEDURE. III. 405 INSURER DEEMED PARTY. When arbitration is ordered in the case of any employer who is insured, notice of the time and place of such arbitration shall be given both to the employer and the company or or- ganization carrying the risk ; and a copy of the award or judg- ment on such arbitration shall be sent by mail from the offices of the Industrial Accident Board to such employer and also to the insurance carrier. In all such cases if an award of compensation is made it shall be against the employer and also against the insurance carrier, both of whom shall be deemed parties to such proceeding. IV. AGREEMENTS AND AWARDS. In all cases where an award has been made, or -agreement in ^ai-d to compensation entered into by the parties and ap- proved by the Board, such award or agreement, as the case may be, shall continue in force until modified by the order of the Board, or by a written agreement of the parties approved by the Board. The employer may not stop or in any way change the rate of compensation provided for in such award or agreement except as herein provided. In cases where the employe returns to work at the termination of his disability the filing of the final receipt for compensation will be deemed an agreement terminating the period of disability. V. GROUNDS FOR DENYING LIABILITY TO BE STATED. If the employer denies liability in case where a claim for compensation is filed by an injured employe or his depend- ents, such denial shall be filed with the Board in writing by 403 MICHIGAN WORKMEN'S COMPENSATION CASES. such employer and shall set forth with reasonable detail and certainty the facts and circumstances upon which he relies as a defense to such claim. Upon the filing of such denial in the office of the Board, a copy of same shall be furnished to the claimant, so that he will have such seasonable information as to the nature and particulars of the employer's defense as may be reasonably necessary to enable him to procure wit- nesses and prepare for the hearing. Eespondents will be limited to the grounds of defense so stated on the arbitration hearing and also on review before the full Board. Provided, that in exceptional cases and for good cause shown respond- ents may be permitted to amend such denial of liability, which is in the nature of a plea, but such amendment will not be allowed in cases w r here it would be inequitable or result in surprise to the opposite party. Failure or refusal to season- ably file such denial shall be deemed an admission of liabil- ity. 1 VI. WITNESSES AND PROOFS. The arbitration is the first and fundamental hearing in con- tested cases, and is held at the place where the accident oc- curred in order to make such hearing reasonably convenient and inexpensive to the parties. The proofs should be fully taken at such arbitration, and such proofs in general form the record and basis for the hearing on review before the full Board. Where cases are taken before the full Board for re- view, additional testimony may be taken when necessary by deposition under the provisions of the general statutes of the State. The party appealing should furnish the Board with a copy or transcript of the proofs. Witnesses will not be heard orally before the full Board except on extraordinary occa- sions, and then only in cases where permission to produce and examine such witnesses has been granted by the Board on ap- plication prior to the date of the hearing. 'One of the fundamental purposes of this rule is to prevent parties from concealing their defense in a case until the opposite party has submitted his proofs, thereby misleading him to his injury. RULES OF PROCEDURE. 407 VII. FULL BOARD HEARINGS. I Hearings on review and other matters coming before the full Board will be held at the office of the Board in the city of Lansing, except in cases where the Board deems it advisable that they be held elsewhere. On such hearings the time al- lowed to each side for argument or oral presentation of the case shall not exceed one hour, or thirty minutes on each side. In matters heard on petition before the Board, the time for oral argument is limited to one-half hour, or fifteen minutes on each side. In hearings on Stipulation and Waiver the time for oral argument will be the same as in cases heard upon review. Briefs or written arguments may be filed with the Board at or before the time of such hearing. If conditions seem to re- quire it, the Board may permit the filing of briefs or written arguments within a limited time after the hearing on review. Either or both of the parties, as they choose, may present their case on such hearing by briefs or written arguments without being present at the hearing. VIII. CONTESTED MEDICAL AND HOSPITAL BILLS. The provision of law authorizing the Industrial Accident Board to pass upon bills for medical and hospital services applies only in cases where there is a real, bona fide dispute. Before such matter can be brought to the Board for adjust- ment, the parties are required to make an earnest effort to reach a settlement of the matter between themselves, and may appeal to the Board only after they have exhausted the ordi- nary means of bringing about such settlement. In all mat- ters of this kind which are brought before the Board, the per- son, firm, or corporation applying must show by satisfactory proof that they have made an earnest and adequate effort to reach a settlement, and that the settlement failed through no 408 MICHIGAN WORKMEN'S COMPENSATION CASES. fault of theirs. Where bills of the above class are brought be- fore the Board for adjustment by persons objecting to same, their objections will be considered only in cases where they have exhausted the ordinary means of reaching a settlement before making application; and in all cases where such bills are presented by claimants without having first exhausted the usual means of reaching a settlement, the same will be dis- missed without prejudice and without investigation of their merits. IX. POSTPONEMENT OP HEARINGS. At all hearings on review or petition before the full Board the docket is so arranged that the cases will follow each other in regular succession. The arbitration cases require a large portion of the time of the members of the Board away from Lansing, and when cases are set for hearing on review or pe- tition such hearings must proceed in accordance with the docket and be disposed of. Parties may not stipulate to post- pone such cases after the same are set for hearing, and post- ponement will be granted by the Board only in exceptional in- stances. In case any of the parties or their attorneys can- not be present or represented at such hearing, a reasonable time will be given to file a brief or written argument in the case. X. LUMP SUM PAYMENTS. It is manifest that the clear purpose of the legislature was to provide that the compensation receivable under this law should go to the persons or families entitled to the same in weekly payments, it being the judgment of the legislature that when so paid it would more effectually meet and relieve the wants of the injured employes and their families, than if paid in a lump sum. This view has the full endorsement and con- RULES OF PROCEDURE. 409 currence of the Board. Therefore, lump sum payments .will only be authorized in exceptional cases where circumstances create a necessity for such action. Application for lump sum payments can only be made after an "Agreement in Regard to Compensation" has been filed with and approved by the Board, or an award of compensation made; and such application is required to be in the form of a sworn petition setting forth in detail the facts and circumstances on which application is based. Desire of the applicant to go to another state or coun- try, or to buy property, or to invest in business, etc., do not constitute reasons for lump sum payment. In general, condi- tions created by the acts of the injured employe or his depend- ents after the accident, do not constitute ground for such pay- ment. As a general rule, the circumstances and conditions that will justify such payment are those existing prior to the accident or created by it, such as mortgage indebtedness on the home of the employe. In such case both the indebtedness and attendant conditions must be set forth in detail, and if se- cured by mortgage, the location and description of the prop- erty must be given, the name and address of the mortgagee, and the office or place where the mortgage is filed or recorded. XI. APPEALS TO SUPREME COURT. In case an appeal is taken to the Supreme Court by cer- tiorari, it is incumbent upon the appellant to prepare the re- turn to such writ in much the same way that a bill of excep- tions is prepared in cases appealed by writ of error. Such pro- posed return should be submitted to and served upon the op- posite party, or his attorney, so as to give opportunity to pre- pare and submit amendments in substantially the same way as in settling bills of exceptions. The appellant at the time of serving the proposed return on the opposite party should serve such opposite party with notice of the time when the proposed return will be presented to the Board for settlement. 410 MICHIGAN WORKMEN'S COMPENSATION CASES. This practice will give both parties an opportunity to be heard and to have all matters which they deem important included in such return. In cases where the proposed return is agreed upon between the parties, such agreement may be signified by a stipulation in writing attached to the proposed return. XII. OATH OP ARBITRATORS. In all cases the arbitrators appointed by the parties shall, before entering upon their duties as such, be sworn by the chairman of the committee on arbitration, and shall subscribe the following oath to be filed with the other papers in the case, viz: "I, do solemnly swear that I will faithfully perform my duty as arbitrator in this cause and will not be in- fluenced in my decision by any interest, or feeling of friendship or partiality toward either party, and that I am not attorney or agent of any of the parties, or financially interested in the result of the case, so help me God." MISCELLANEOUS RULINGS. 411 MISCELLANEOUS RULINGS. COMPENSATION FOR LOSS OF MEMBERS DOES NOT DEPEND ON LOSS OF TIME. The injured employe lost two fingers, which under the provisions of the Michigan statute is deemed equivalent to disability for 65 weeks. He in fact returned to work some three weeks after the accident, resuming his accustomed occupation at the same wages as before the injury. The employer objects to paying the 65 weeks' compen- sation, and is of the opinion that the specific amount provided for the loss of said fingers should not be paid in this case because the employe is earning the same wages as before the accident. By the Board: "Under the statement of facts in your let- ter the injured employe is entitled to receive f 10.00 per week for a period of 65 weeks, such payments to be made weekly. The moment that the accident occurred, causing the loss of fingers as stated the company became indebted to him in the sum of |650.00, payable weekly as above, and his right to re ceive said sum in compensation for the loss of his fingers does not depend on his loss of time and whether he returns to work or the wages he receives thereafter. The law is so framed be- cause of the fact that throughout the remainder of his life he will be deprived of the fingers so lost. The Industrial Acci- dent Board has no authority to either vary or waive the ex- pressed provision of this law. The law imposes upon the Board the duty to see that the law is carried out in every re- spect, and does not permit any compromises to be made. While the injury may not keep the employe from his work for any considerable length of time, still the injury will result in his being handicapped by being deprived of the fingers so lost for the remainder of his life, and the law expressly fixes the sum that he is entitled to receive as compensation for such loss without reference to his employment or subsequent relations to his employer." 412 MICHIGAN WORKMEN'S COMPENSATION CASES. PLACE OF MAKING PAYMENT. Questions as to the manner and place of making weekly pay- ments under the compensation law to injured employes have arisen in so many cases, a general ruling by the Board on the point seems desirable. In some instances complaint is made by persons receiving compensation that they are required to go an unreasonable distance to the place of payment designated by the employer, and that much time and effort each week is thus expended in going to and from such place of payment. The compensation law is silent as to the place of payment, the language of the statute being, < 4 The employer shall pay or cause to be paid to the injured employe, etc." The obligation to make payment being imposed by law on the employer with- out specifying the manner and place of payment, the common law rule established in Michigan and elsewhere would apply, and this rule requires that payments be made at the place where the person entitled to receive such payment resides. 30 Cyc, page 1185; Mclntyre vs. State Ins. Co. 52 Mich. 194. It is the opinion of the Board that all friction on this point should be avoided as far as posible by mutual arrangement between employer and employe as to the place of payment, and that neither should be arbitrary or unreasonable in the matter. Pointing out in this manner the legal rights of the employe entitled to receive weekly payments of compensation will no doubt cause the removal of any arbitrary requirements by employers as to the place of payment, and thereby remove the apparently needless friction that has arisen in that re- gard. Some employers and some of the liability companies have already adopted a payment voucher, similar in kind to those which have long been used by fire insurance companies for payment of losses, having attached duplicate receipts. The payee must indorse the voucher and sign the receipts before The same can be cashed, and in practice the genuineness of such signature is in most cases guaranteed by local banks and business men through whose hands the voucher passes. When MISCELLANEOUS RULINGS. 413 ie voucher is returned paid, one of the receipts can be filed >y the employer and the other sent to the Industrial Accident toard. This plan seems to furnish a system for making pay- lents of compensation through the mails which is apparently ife and satisfactory to all parties. PAYMENT OF COMPENSATION TO MINORS. The question has been frequently raised before the Indus- ial Accident Board as to whether a guardian should be ap- >ointed before payment of compensation can be made to an ijured employe who is under 21 years of age. A large nuin- jr of cases have arisen where the injured employes are minors md in some of these cases the injuries were comparatively slight and the compensation would scarcely more than pay the expense of a guardianship. The Board has carefully examined ie provisions of the statute upon this point, and has reached te conclusion that in the majority of cases at least the com- msation should be paid direct to the injured minor. The >rovision of the law upon which this conclusion is based is found in subdivision 2, section 7 of part 1 of the act, and is as >llows : "Including minors, who are legally permitted to work under the iws of the State, who, -for the purposes of this act, shall be considered the same and have the same power to contract as adult employes" The evident purpose of this provision of the statute was to i.void all unnecessary delay and expense to minors in the col- lection of and receipting for compensation to which they might entitled. This, of course, contemplates that the pay- of compensation will be made strictly in accordance ith the statute, in weekly installments, and will go to the in- jured minor in substantially the same manner in which his r ages were paid before his injury, without the intervention of guardian or trustee. In cases where any question arises be- reen the injured minor and his parents, w r e think the matter :-an be readily arranged so as to have the receipts for compeu- 414 MICHIGAN WORKMEN'S COMPENSATION CASES. sation signed by the parents as well as by the injured minor. It seems to be the plain intention of the act to make the pay- ments of compensation to injured minors a matter as simple and expeditious as was the payment of their wages before the injury. The provisions of section 14, part 3, of the Compensation Law are not necessarily in conflict with the above construc- tion. The latter section was intended to apply in cases where the injury resulted in the mental incompetency of the employe, and in death cases where the dependents are minors, as in these cases a guardian or- next friend would be clearly neces- sary. The legislature has power to fix the age at which a per- son becomes competent to enter into contracts and transact business, and there seems to be no legal reason why that age should not be fixed below 21 years with reference to the opera- tion of this particular act and collection and receipting for compensation thereunder. LOSS OF USEFULNESS OF MEMBER. The question in this case relates to the payment of a specific amount for the loss of a portion of a finger, claimed to be less than one phalange. The employer contended that the point of amputation was controlling. By the Board : The action of the surgeon in amputating a finger, or in failing to amputate it, or in choosing the point of amputation is not controlling in all cases of this kind. Each case depends for its decision upon the particular facts relat- ing to the finger, and these might relate to the point of ampu- tation, or the fact that the finger or a portion thereof had been rendered useless without being amputated. The statute rela- tive to the loss of the first phalange cannot reasonably be con- strued to apply only in cases where the finger in unjointed and the amputation is precisely on the joint. The place of ampu- tation should be determined on the principles of what -consti- tutes good surgery, the controlling thought being to obtain the best result for the injured person. This might result in (MISCELLANEOUS RULINGS. 415 he point of amputation being a little below or a little above he first joint. If the loss, in case of such amputation, is sub- tantially the first phalange, it should be treated as such ven though in some cases it was a trifle more and in others a rifle less. The real test in such cases is, as to whether, by reason of the amputation, the injured person has lost all that * is useful of the first phalange. The Board is further of the opinion that in case no part of the finger is amputated and the injury is such as to entirely destroy the usefulness of the first phalange or the entire finger, in that event the injured person has lost the first phalange or the finger, as the case may be, as completely as if the same had been amputated. PAYMENT OF HOSPITAL EXPENSE AFTER FIRST THREE WEEKS. In this case the injured employe was being treated at the hospital and could not be discharged at the end of the first three weeks. The hospital authorities wish to know the source from which they are to be paid for further service rendered. The employer writes as fol- lows: "It was agreed that we withhold payment of the weekly compensation until such a time as the injured could be discharged. We would then pay the first three weeks ourselves, and for the re- maining time we would pay the hospital from the amount of the em- ploye's weekly compensation, and then turn over to him the balance, if any." By the Board: "The Industrial Accident Board feels that your suggestion to withhold payment of weekly compensation and to pay hospital and medical charges after the first three weeks therefrom, and then turn over the balance, if any, to the injured employe, cannot be approved. If you will consider for a moment the rights of the injured man granted to him by the statute, we think that it will be apparent that neither your company nor the Industrial Accident Board have any power to expend or appropriate the money to which he is en- titled for compensation. The law provides that this compen- sation shall be paid direct to the injured man and this Board has no power to divert such payment from him or authorize 416 MICHIGAN WORKMEN'S COMPENSATION CASES. 11 to be done. We think that the payment by you of any part of this compensation to the hospital, or to the doctors or others, would be no defense to a claim for such compensation that the injured man might afterwards assert against you. He ip entitled to payment of compensation without waiting for his recovery or for an adjudication of the amount, and if it is paid he will in most cases be able to make provision for his treatment and care." MEDIQAL AND HOSPITAL TICKETS. Under the law the employer is liable for the first three w r eeks medical and hospital service and medicine, when the same are needed. The employer cannot avoid his duty in this respect by deducting from the wages of his employe small sums of money at intervals to pay for a hospital ticket or membership in a hospital or medical association which is to furnish the above service in case of accident. The effect of such procedure would be to shift the burden of paying for such service from the employer to the employe. In this case the hospital ticket was paid for by money deducted from the wages of the em- ploye, and when injured, the medical and hospital service was furnished through said ticket and membership. The physicians and hospital have already been paid through the ticket, and therefore they have no further claim. The employe in fact paid for the hospital and medical service, and the fact that he paid for the same through a hospital ticket or some hospital organization, is no concern to the employer. The employe bought and paid for it, and owned it as much as his coat or hat. It therefore seems to leave the plain question of the em- ployer paying to the injured employe the reasonable value of the medical and hospital treatment which he received during the first three weeks following the injury. The employer is liable for the payment of the same, in the opinion of the Board, and the case is not essentially different from what it would be if the injured employe had in fact paid the regular rates for such hospital and medical service at the time the same were furnished. MISCELLANEOUS RULINGS. 417 MINERS RECEIVING PART PAY IN SUPPLIES. Miners in the coal region are accustomed to buy supplies from the company. A form of ticket is issued and the amount of purchases is deducted from the miner's earnings. When supplies are purchased from time to time the amount is punched in the ticket. Question: Is the rate of compensation in case of an injury to a coal miner to be based on his earnings less the cost of supplies so purchased? By the Board: "As a general proposition, the amount of money the miner is entitled to receive for the work he does constitutes his wages or earnings. If he gets from the company during the week articles of clothing, tobacco, etc., and the same are charged against and deducted from his wages for that week, this would not constitute a reduction of the amount of money earned by the miner during the week, but would merely be the spending of a portion of the amount earned. In general, it seems that this same rule would apply to other and different articles furnished a miner from the company's store and charged and deducted from his wages. This might per- haps be modified by the contract or scale in force between the miners and the company, if there are any agreements in such scale that would have the effect of causing such modification, which we do not asume to decide. There may be special cir- cumstances also in some cases, and in all disputed cases the parties on both sides will be given a full hearing both on the facts and the law, before the Board will render a final de- cision." RE-EMPLOYMENT NO PART OF SETTLEMENT. After the employe in question recovered from a serious injury a settlement was proposed for less than the full amount of compensa- tion provided for in the law, the further consideration for such settlement being that the employe was to be reinstated by the em- ployer to the position which he occupied before the injury. When this proposed settlement was submitted by the employer, approval was refused for the following reasons: 53 418 MICHIGAN WORKMEN'S COMPENSATION CASES. By the Board: The matter of reinstating an employe to the position he occupied before the injury should not enter into the matter of settlement and cannot, under the law, be in any way considered by the Board. When an accident occurs to an employe as in this case, causing the loss of cer- tain fingers, the employer immediately becomes indebted to such injured employe for an amount fixed by the law, which indebtedness it becomes his duty to honorably discharge by payment. In such case, if the employer discriminates against the injured employe by refusing to reinstate him because he insisted on the payment of the amount so due him for the in- jury, such action would be morally and legally wrong. LUMP SETTLEMENT DURING DISABILITY. The employe's hand was severely injured and the ultimate result of the injury uncertain. The employe and employer desire to enter into an agreement as to the probable period of disability and make settlement therefor by a lump sum payment. Held that the Board will not approve settlement where period of disability is presumed or estimated. As a result of the injury, the employe's right hand has been rendered practically useless, but there is a prospect of making the hand useful, and perhaps as good as ever, by a surgical operation. However, the Board cannot act upon probable re- sults of such operation, and cannot make an order that will discharge entirely the employer from liability upon any show- ing as to the prospects of removing the disability that now exists. Time alone will determine whether such disability can be removed. The Board advises that the employer advance enough money to defray the expense of the proposed opera- tion. If such operation is successful and removes the disabil- ity both the employer and employe will be benefited. PARTIAL DISABILITY; DUTY TO SEEK EMPLOYMENT. An employe who is recovering from an injury, and who has recovered so far that the disability is only partial, cannot rea- sonably be required in his partially disabled condition to go MISCELLANEOUS RULINGS. 419 imong strangers looking for work. Such requirement would lot be reasonable, and the probabilities of his obtaining work if required to so seek it would be very remote. On the other tand if his employer has work suitable for him to perform in iis partially disabled condition, and which he can do without causing suffering or inconvenience, and offers to give him such work, then it is the duty of such employe to accept the work tendered and thereby reduce the liability for compensation. Thai if the employer has no such suitable work, or having such work fails to tender it to the injured employe, the compensa- tion cannot be reduced upon the theory that there are classes of work which he is able to do and which he might obtain per- haps if he diligently sought for it, and which on the other hand lie might not be able to obtain at all. METHOD OF PAYING COMPENSATION FOR LOSS OF MOEE THAN ONE FINGEB. Injured employe lost index (35 weeks), second (30 weeks) and third (20 weeks) fingers. Question raised as to whether payment should be made at the rate of 50% of wages for each finger each week or 50% of salary for 85 weeks. Held, that latter is correct method. The Industrial Accident Board has considered the question as to the manner of payment in a case where three fingers are lost by an accident to an employe. The conclusion reached by the Board is that the rate of payment in such a case is one- half of the weekly wages of such employe, and that the num- ber of weeks for which such weekly payments shall continue is to be determined by the number of fingers and the schedule of compensation for the particular fingers lost. There is no pro- vision of law by which more than Ten (flO.OO) Dollars per week could be paid, and this fact would make improbable and unworkable the theory that weekly payments for each finger lost should be made each week, continuing until the claim of the less valuable fingers drop out of the account, and until the one most valuable is fully paid for. The same rule would ap- ply in case of toes or other members. 420 MICHIGAN WORKMEN'S COMPENSATION CASES. PAYMENTS TO BE MADE WEEKLY. The Board has carefully considered the question raised by a considerable number of employers of labor in the State, as to whether payments of compensation under the law may not be made monthly or bi-weekly instead of being made in weekly payments. The provision of the law is plain requiring such payments to be made weekly. There is no power vested in the Board to suspend or modify this provision of the law or to substitute for it bi-weekly, monthly or quarterly payments. From the language used throughout the Act, it seems appar- ent that the clear purpose of the legislature was to provide that compensation receivable under this law should go to the persons or families entitled to the same in weekly payments, and that it was the opinion of the legislature that compensa- tion paid weekly would more effectually meet the wants and relieve the distress of injured employes and their families than if a greater interval of time elapsed between such pay- ments. The question of changing the time of making payments is one for the legislature, if there is real ground for complaint on account of the present provisions. COMPENSATION NOT PAYABLE TO ADMINISTRATOR. There is no provision of the compensation law authorizing the payment of compensation in death cases to an adminis- trator of the estate of a deceased employe. The statutes of this state commonly known as the "death act" and as "sur- vival act" expressly provide for suit and recovery by an ad- ministrator in cases brought for causing wrongful death, un- der the above acts respectively, but this right of the adniinis- Iralor is created by such statutes. Such administrator has no right to claim or receive any compensation payable under the Michigan Workmen's Compensation Law. The act expressly provides that in death cases the compensation shall be paid to the dependents of the employe, and such payments shall be made direct to them without the intervention of an adminis- MISCELLANEOUS RULINGS. 421 ator or trustee. In case any of such dependents are minors >r mentally incompetent, a guardian may be appointed by the >roper Probate Court. PARTIAL INCAPACITY AFTER FOURTEEN DAYS. ie employe was totally incapacitated for fourteen days and re- turned to work on the fifteenth day at a reduction of wages. He has received 50% of his loss in salary for six weeks and the ques- tion that arises is, should he receive compensation for the first two weeks, and if so, how much? It is the opinion of the Industrial Accident Board that inas- luch as the incapacity resulting from the accident (part be- ig total and rest partial disability) continued for more than iight weeks, as it did under the statement of facts, the em- )loye would be entitled to compensation for the first two .'eeks under Section 3 of Part II of the Act. Inasmuch as the [isability for the first two weeks was total, it is the opinion of the Board that for said first two weeks he .should receive compensation for total disability. VIOLATION OF SHOP RULES. It is the opinion of the Board that a mere violation of rules or instructions of the employer would not constitute wilful and intentional misconduct within the meaning of the act. It would have to be shown at least that the violation was inten- tional and wilful, and not through inadvertance or inatten- tion. The question as to what constitutes wilful and inten- tional misconduct, will in most cases be a question of fact, de- pending upon the nature of the act complained of and the cir- cumstances surrounding the particular accident. POSTING OF NOTICES BY EMPLOYERS. On the question of posting notices, no fixed rule can be laid down that will be applicable to the infinite variety of circum- stances and conditions found in the various industries of the 422 MICHIGAN WORKMEN'S COMPENSATION CASES. state. The employer should in good faith endeavor to so post these notices as to effectually bring to the knowledge of his employes the fact that he is operating under the workmen's compensation law. The provisions directing the manner and place of posting notices found in Sec. 6, Part 1 of the law shall be closely followed, and will be found applicable to the situa- tion in most industries. POSTING OF NOTICES BY MUNICIPALITIES. It is the opinion of the Board that the posting of notices in case of the erection of a building or other work done by a municipality, is not required or contemplated by the law. The municipality comes under the provisions of the law not by election but by force of the statute itself. All persons dealing with a municipality are bound to take notice of this fact, just the same as they are bound to take notice of any other law which by its own force becomes binding and operative. The office and purpose of the notices to be posted under certain provisions of the law is to bring to the employe knowledge and notice not of the law itself, but of the action taken by the em- ployer, to-wit, his election to be subject to its provisions. OFFICER OF A CORPORATION MAY BE EMPLOYE; PARTNER, NOT. The question whether an officer of a corporation who is employed by it as a workman is entitled to compensation if injured, is raised in this case. The employer is the corporation, which is the artificial per- son created by law, and which is a distinct entity entirely separate and different from its officers. The injured man un- der the facts shown in this case was working as engineer and general all-round machine man, was receiving wages for his work, which were paid by the corporation. The fact that he also held the office of Vice-President in the opinion of the I MISCELLANEOUS RULINGS. 423 Board would not in any way effect his right to compensation. The term "employe" is defined in Section 7, Part I of the Act as "Every person in the service of another under any contract of hire, express or implied, oral or written." There seems to be no question but that the injured man was at the time of the injury in the service of the corporation under a contract of hire. The rule is different in cases where the injured man is a member of a partnership, because there the partners are in fact the employers and each separately must be treated as an employer rather than an employe. MUNICIPALITIES, INSURANCE BY, OPTIONALMAY INSURE FART. The question is raised as to whether a county may take out insurance covering only a portion of its employes, for instance its County Road Department. By the Board: "A municipality comes under the opera- tion of the Workmen's Compensation Law without filing an acceptance, the Law being compulsory as to it. The munici- pality is not required to carry any insurance, but may insure all or any portion of its employes as it may desire. There is no objection whatever from a legal standpoint to the County Road Commission carrying insurance covering its employes. The insurance carrier in such case would be liable only in case of the injuries to the class of employes covered by the contract of insurance. STATUS OF FOREIGN CONSULS IN COMPENSATION CASES. The leading authority on the status of foreign consuls in death cases is Rocca v. Thompson, 223 U. S., 333. This case was decided by the United States Supreme Court on February 19, 1912. It came up from the State of California and was 424 MICHIGAN WORKMEN'S COMPENSATION CASES. argued and briefed by able counsel. The point at issue was whether the Italian Consul or the Public Administrator of California was entitled to administer the estate. The treaties are cited and construed, the general rule being that the treaty provision itself gives authority to the consul to act only in cases where there is no known resident heir, executor or trus- tee, and then said right is to intervene, protect and preserve the estate until proper administration can be taken out in the local courts, and to intervene in such administration for the purpose of safe-guarding the rights of foreign subjects. It holds that there is no right of administration in the foreign consul without a judicial grant of such authority, and this rule applies to all treaties with all of the foreign countries, inasmuch as most of them contain the "most favored nation clause" under which one country is entitled to claim all of the rights and privileges granted to any other nation by treaty. As conclusive on the right of administrators it is stated on page 333, that in 1894 the Italian Ambassador took up with the United States and urged a treaty arrangement under which the Italian Consuls in the United States be authorized to administer and settle estates of their deceased country- men. Edwin F. Uhl of Grand Rapids, Michigan, was then Acting Secretary of State and declined to favorably consider such proposal, his action being based mainly upon the follow- ing grounds, viz: (1) That the administration of estates in this country is under the control of the respective states, and for that reason the proposed international agreement should not be made. (2) That the practical difficulties made it inadvisable, such as the fact that the consular officers are often remotely located from the place where the estate is situated. The latter consideration is entitled to much weight in the practical determination of the question, as appears from the fact that one consul residing at Chicago handles 13 states am that the foreign consuls handling the upper peninsula of Mich- igan reside either in Duluth, Minneapolis, or Chicago. MISCELLANEOUS RULINGS. 425 ELECTION WHEN EMPLOYE SUBJECT TO LAW. We have examined the provisions of section 8 as to the em- ploye being subject to the provisions of Act No. 10 of Public Acts of 1912, with special reference to the thirty-day provision in subdivision 2 thereof. Our conclusions are as follows: That the acceptance of the employer is a first requisite to the employe coming under the act. In addition to the accept- ance by the employer the following is required in order to bring the employe under the provisions of the act: (1) That employe did not at hiring give notice in writing of elec- tion to to be subject to act; or (2) In case of any old employe, whose contract of hiring ante- dates the employer's acceptance, such employe gives notice in writ- ing of election to be subject to the provisions of the act; or (3) In case of an old employe as above, after employer has accepted and posted notices, continuing to work without expressing his elec- tion either way for a period of thirty days or more. The evident intent of the law is as follows: (a) Where a man comes to a factory working under the act with notices posted, etc., seeks and secures employment, walks into the shop and sees the posters, and does not go back to the office and sign and serve a notice that he elects not to come under the act, is deemed to have accepted it and ac- quiesced to the conditions of employment in the institution where he goes to work. (b) In case of an old employe working in a shop, and while so employed notices are posted announcing that the employer has accepted the law, etc., if the foreman comes round and passes out his blank acceptances to be signed by the men who desire to come under it, and the employe signs it and files with the employer his written acceptance of the law, then such em- ploye is subject to the law, and becomes subject to it from the time he signs and delivers to his employer such acceptance. (c) That in case of an old employe, who when notices are posted in the shop as above, continues to work without giving 425 MICHIGAN WORKMEN'S COMPENSATION CASES. notice that he will be subject or that he will not be subject to the law, and so continues to work for a period of thirty days, then his action in continuing to work for such period of time is equivalent to an actual acceptance, and he is deemed sub- ject to the law. But if he is injured after having continued to work twenty days as above, then we think he would retain the right to decide whether to make claim under the Common Law or under the Compensation Law. If he made claim un- der the Common Law and brought suit, the employer would retain his former defenses, the same as if the employe had made his election not to come under the act before the time of his injury. PRACTICE IN ARBITRATION CASES WHERE APPLI- CANT DOES NOT APPEAR OR IS WITHOUT EVIDENCE. Section 8 of Part III of the Compensation Law provides that "The committee of arbitration shall make such inquiries and investigations as it shall deem necessary," at the time and place set for arbitration. The failure of the applicant to ap- pear or produce evidence does not dispose of the matter or preclude the committee from calling witnesses, taking proofs and making inquiry and investigation as to the merits of the claim. In such case the proper course is for the respondents to produce their witnesses and make a full showing on the merits so that a decision of the case on the merits may be had. If respondents refuse to do this and insist upon a dismissal of the case, the same may be reset for arbitration at a later date if in the opinion of the Board such course is proper. CLAIM FOR COMPENSATION PHYSICAL INCAPACITY TO MAKE. In the case of Podkastelnea vs. Michigan Central Railroad Company the principal defense was based upon the failure of the applicant to make claim for compensation within six MISCELLANEOUS RULINGS. 427 lonths after the accident. It appeared in the evidence that Cor several weeks after the accident the applicant was con- fined to the hospital, most of the time being in bed and under the care of doctors and nurses. That claim was made within six months after he was able to leave the hospital, but not within six months after the occurrence of the accident. The clause providing for the six months limitation is Section 15, Part II of the Act, which contains the following exception : "in the event of his physical or mental incapacity, within six months after * * the removal of such physical or mental incapacity." The incapacity referred to is of two kinds viz., "physical" or "mental." A proper construction of the section requires that both of these words be given effect, and by giving effect to the phrase "physical incapacity," it must be held that the six months period did not commence to run until the appli- cant was physically able to make out and deliver the claim to respondent. This brings the claim within the six month limi- itation and entitles the applicant to compensation. FOREIGN DEPENDENCY PAYMENT OR TRANSMIS- SION OF MONEY THROUGH CONSULS. The matter of the payment and transmission of money to foreign dependents and the function to be performed by the consuls in relation thereto was found to be an important prob- lem, and for the purpose of reaching a reasonable and satis- factory basis for the handling of matters of this kind, invi- tation was extended to all foreign consuls having jurisdiction in Michigan to meet with the Board for a full discussion of the entire subject. A largely attended meeting was had and after thorough consideration and discussion of the matter the following plan was approved: (1) That in cases where a duly authenticated power of attorney to the consul is filed, that payment in the first instance be made to the consul, taking his consular receipt therefor duly authenticated by his consular seal attached thereto, and to file the same with the Indus- trial accident Board. 428 MICHIGAN WORKMEN'S COMPENSATION CASES. (2) The consul thereupon to transmit the money through the usual governmental channels the distribution and payment to be made to the dependents by the local county courts where the identity of the persons will be proven to the Court and certified by the judge, and the receipts signed by the dependents procured through such courts and properly certified and authenticated through the consulate to be filed with the Board, the latter receipt to be the final receipt accepted in settlement of the matter. (3) That in case of the failure of any consul to procure and file the final receipts aforesaid the Board will direct that no further payments of money be made through him in any cases. (4) That the above applies only in cases where duly authenticated power of attorney is given to the consul. In cases where the parties in interest give power of attorney to somebody other than the consul, we are of the opinion that we should recognize the party so chosen, using reasonable precaution in seeing that the interests of the per- sons dependent are protected. It was conceded by all of the consuls that the dependent had the right to choose the person who would represent her and that ordinarily the Board would have no right to disregard her choice. (5) That in cases where two different persons have filed powers of attorney, both claiming the right to recognition, the matter is easily adjusted by having the dependent choose which of the two will be retained as her representative. This can be done by revoking one of the powers of attorney and leaving the other one in force. It is not the function of the Board to decide between rival claims of this kind, but merely to put the question up to the dependents to make such choice by executing and filing a proper revocation of one of the powers of attorney. FOREIGN DEPENDENTS LETTERS ROGATORY AND PROOFS, PRACTICE IN. The following practice in the above cases is approved and established by the Board: (1) In case it is necessary to take the testimony of witnesses in a foreign country, the person desiring such testimony shall apply to the Board for the issuance of letters rogatory by petition to which shall be attached the interrogatories which he desires to have pro- pounded to the witnesses whose testimony is to be taken; he will also attach thereto a copy of the order proposed in the case, and shall serve copies of all of said papers upon the opposite party or his attorney, the time for such service to be the same as provided in the Circuit MISCELLANEOUS RULINGS. 42,) >urt rules of Michigan. A notice should also be attached to the ipers so served stating the time when the same would be presented to the Board for issuance, and further stating that the opposite party may propose and submit at the time aforesaid cross-interrogatories to be attached to said letters, and propounded to the witnesses whose testimony is to be taken. (2) That at the time fixed in said notice such original petition with proof of service attached thereto may be presented to the Board, and also any proposed cross-interrogatories, or objections or motions whether made orally or in writing, and the same will be passed upon by the Board. (3) The Board will issue as of course such letters in all cases except where substantial reasons are affirmatively shown against said issuance, the same to be authenticated by the Secretary of the Board signing the same and attaching the seal of the Board thereto. That in such cases the cross-interrogatories proposed by the opposite party will be attached to the letters as of course except where it is made to appear that they are impertinent or irrelevant. This gives the opposite party an opportunity to be heard and to submit cross-interrogatories to be propounded, and while under the notice to be served such opposite party need not appear, still it affords him full opportunity to so appear and be heard. FOREIGN DEPENDENTS POWER OF ATTORNEY- HOW EXECUTED. In all cases of foreign dependency, the original Power of Attorney should be made in the language and upon the forms of the country where such dependents reside. It should be acknowledged before the proper local officer, having authority to acknowledge and certify such papers, and should be authen- ticated by the seal of the American Consul. Accompanying same and attached thereto should be a translation of said Power of Attorney into English, and attached also should be an affidavit made by the translator, (who should be a person within reach and responsible), stating that the translation an- nexed was made by him and that same was carefully and cor- rectly made, and that it is a true and accurate translation of 430 MICHIGAN WORKMEN'S COMPENSATION CASES. the Power of Attorney. A proper way to designate these would be to state in the affidavit that the original Power of Attorney is attached hereto and marked "Exhibit A," and that the translation is attached hereto and marked "Exhibit B." In all cases where the Power of Attorney does not com- ply with this rule it should be returned for correction, or at least called to the attention of the Board before further action is had on same. Generally the Board will not accept or act upon a Power of Attorney executed in a foreign country which is written in English, or upon blanks printed in English. DEATH AFTER APPROVAL OF AGREEMENT IN REGARD TO COMPENSATION. In cases where an agreement in regard to compensation is made and approved by the Board, and afterwards death of the injured person follows resulting from the injury, a new right of action arises from the death in favor of the widow or others who may be dependent. This cause of action did not exist until the death, and arose from the death, and is in no way affected by any agreement or action of the deceased, except that the amount of the payments of compensation that he act- ually received prior to his death are to be deducted from the 300 weeks' compensation payable in death cases. In disputed cases where it is contended that the death was not the result of the injury, or where other defenses are in- terposed, the widow or the dependents are entitled to make application for arbitration, as the case is an original one and not affected by the agreement in regard to compensation made bv the deceased before his death. LATE DECISIONS BY THE SUPREME COURT 1 JUNE AND JULY, 1916. SUPREME COURT. ASAPH HILLS, Claimant and Appellee, vs. THE OVAL WOOD DISH COMPANY and MICHIGAN WORKMEN'S COMPENSATION MUTUAL INSURANCE COMPANY, Respondents and Appellants. LATENT DISEASE RETARDING RECOVERY. Claimant while employed in the saw mill of respondent received an injury to his right arm by which the flesh was bruised and the front part of the arm denuded of its skin, exposing the blood ves- sels and muscles underneath. The injury did not heal properly and claimant continued to remain in a disabled condition. Respondents filed petition to be relieved from making further pay- ments on the ground that claimant's continued disability was due to a disease in the system. HELD: That the Compensation Law does not make exception for cases of injured men whose health is impaired or below the nor- mal standard. That it does not exclude from its benefits the man who carries in his body a latent disease which, in case of injury, may retard or prevent recovery. Certiorari to the Industrial Accident Board to review the order denying respondents' petition to be relieved from pay- ing further compensation. Affirmed. J The opinions under the above heading were handed down by the Supreme Court after the type was set and printing for this volume nearly completed. 432 MICHIGAN WORKMEN'S COMPENSATION CASES. Robert R. Gale, of Muskegon, for claimant. Beaumont, Smith & Harris, of Detroit, for respondents. PERSON, J. While claimant was employed in the sawmill of the Oval Wood Dish Company, at Traverse City, he met with an accident by which his right arm was injured above the elbow. As found by the Industrial Accident Board, "the flesh was bruised and torn, and the front part of the arm de- nuded of its skin, exposing the blood-vessels and muscles underneath." An agreement for compensation was reached and approved, and payments were made in compliance there- with for a period of nineteen weeks. At the end of that period the payments were discontinued, and presently the respondents filed with the Industrial Accident Board a peti- tion asking that they be relieved from making further payments upon the ground that claimants' continued disa- bility was due to a venereal disease, viz., syphilis, which re- tarded the healing of the injury. The claimant filed an an- swer to this petition in which he denied that he had ever con- tracted such disease, or been afflicted with it. And we do not understand it to be claimed that he was suffering from syphilis in any active stage. As found by the Industrial Ac- cident Board: "The evidence in this case does not suggest any active disease in applicant's body prior to the injury, nor does it disclose any sub- stantial evidence of the existence of a bodily disease except the fact that the wound did not readily heal and that symptoms led the phys- icians to suspect syphilis in the blood, together with some evidence that a Wasserman test of the blood was had and that such test showed the presence of syphilis. In this connection it should be said that the essential part of the evidence as to the Wasserman test is hearsay, as it consisted merely of an unsworn report sent by mail from the Lincoln-Gardner Laboratories in Chicago, where a sample of applicant's blood had been sent to be tested." Under this state of facts it is urged that an order should have been made by the Board relieving the respondents from payment of further compensation, and the argument in sup- HILLS vs. THE OVAL WOOD DISH COMPANY. 433 port of such contention is stated in the brief of their counsel, as follows: "The Compensation Act does not assume to pay for any period of disability beyond that which is traceable to the injury, either di- rectly or indirectly. The case is to be distinguished from the cases where the accident has aggravated or accelerated a pre-existing dis- ease. It has been held, under the English Act, that where the in- jury aggravates a disease, the increased impetus given to that disease being a result of the injury, the disability caused thereby must be compensated for. But upon the record in this case there is no ques- tion of the acceleration of the syphilitic condition. Syphilis from its very nature is not accelerated by a cut or a bruise but its presence on the other hand retards the healing of the cut. We may assume that upon an accident the employer is bound to compensate for the re- sults of the injury and must be assumed to have accepted the em- ployee in whom is a constitutional disease, the ravages of which are increased by the injury. But this does not go to the extent of saying that when the disease prevents the healing of the injury, or in other words this new cause supervenes the injury as a cause of the disability, the industry that contracted only to pay for the dis- ability resulting from injury should pay this additional compensa- tion. "We think it is clear without further argument that if the line can be drawn between the period of disability caused by the accident and that caused by the disease, no question would be made but that com- pensation would only extend over the period caused by the accident. "But even if this period cannot be absolutely segregated, still we contend that the proper rule that should be applied is that com- pensation 'should be allowed only for the period for which the injury complained of would disable a person of average condition not suf- fering' from the disease." The Board made no definite and specific finding as to whether, as a matter of fact, the period of claimant's disabil- ity was or was not being extended by the presence and action of the disease, but declined to relieve the respondent from further payments, for the following reason stated in the written opinion which it filed: "The legal question presented by the petition is an important one. If the correct rule for determining the length of time compensation for disability should be paid in case of an injury of this general character is found to be the one contended for by respondents, the 55 434 MICHIGAN WORKMEN'S COMPENSATION CASES. result will be far-reaching. The question then to be determined in cases of continuing disability would be whether the injury should have healed, or whether it should have healed more quickly than it did, instead of the actual resulting disability. Instead of the plain question of fact as to the nature and duration of the disability which the injured man actually suffered, it would present for decision the question as to how much he should have suffered, and how soon he should have recovered, upon the theory that only a part of the dis- ability was due to the injury and the remaining part due to disea'se. In the opinion of the Board, the respondents' contention must fail. The Compensation Law does not fix any standard of physical health, nor does it make any exceptions for cases of injuries to men whose health is impaired, or below the normal standard. Neither does it except from the benefits of the law the man who carries in his body a latent disease which, in case of injury, may retard or prevent re- covery. The la*w by its expressed terms applies to every man who suffers disability from injury. It does not exclude the weak nor the less fortunate physically, but was intended for the working men of the state generally, taken as they are. "The authorities seem to be strongly against respondent's conten- tion: Boyd's Workmen's Compensation, Sec. 463; Bradbury's Workmen's Compensation, (2d Ed.) 385 and 386; Willoughby vs. Great Western Railway Company, 6 W. C. C. 28 ; Ystradowen Colliery vs. Griffiths, 2 B. W. C. C. 359. "This is not a case where the workman was suffering from some active disease or injury at the time of the accident, as applicant was apparently in good health in every respect up to the time he re- ceived the injury. The difficulties of proving the reasonable duration of disability which should result from an accident is discussed to some extent in the English cases above cited, pointing out the fact that Ward vs. London & Northwestern Railway Company, 3 W. C. C. 193, which attempted to make such determination, is no longer re- garded as authority. They further suggest the danger of attempt- ing to fix the duration of disability on medical prognosis and opinion evidence, when it is conceded by the medical profession itself that it has yet much to learn in such matters." We agree with the Industrial Accident Board that, under the circumstances of this case, the Act does not contemplate any such apportionment of the period of disability as respond- ents ask for. Assuming that such disability is being prolong- BAYER vs. BAYER, 435 ed by the disease, there is yet no point at which the conse- quences of the injury cease to operate. It is the theory of respondents, not that the consequences of the injury cease, but that they are prolonged and extended. There is no part of the period of disability that would have happened, or would have continued, except for the injury. The conse- quences of the injury extend through the entire period. And so long as the incapacity of the employe for work results from the injury it comes within the statute, even when prolonged by pre-existing disease. The order of the Industrial Accident Board is affirmed. SUPREME COURT. MARY BAYER, Claimant and Appellee, vs. CHARLES F. BAYER, and UNION CASUALTY INSURANCE COMPANY, Respondents and Appellants. INSURANCE CARRIES LIMITATION OF POLICY. Where the policy limits the insurer's liability to injuries of em- ployes of the assured occurring while engaged in certain specified labors, the insurer cannot be held liable for an injury to an em- ploye while engaged in undertakings which are clearly outside those specified in the policy. Certiorari to the Industrial Accident Board to review an award made against both respondents. Modified as to insurer. 436 MICHIGAN WORKMEN'S COMPENSATION CASES. Edward S. Qrece, of Detroit, for claimant. Walters d Hicks, of Detroit, for respondents. There was testimony to support the finding that claimant's decedent and husband was employed by respondent Charles F. Bayer and upon his business when he was killed. Whether the risk was one assumed by respondent Union Casualty Com- pany is the debatable question. Eespondent Union Casualty Company issued to respondent Charles F. Bayer its policy of insurance. Upon the policy is a rider which reads: "The policy to which this endorsement is attached is extend- ed to cover, and the undersigned company does hereby agree to assume and perform each and every obligation imposed upon the assured by Act No. 10, Public Acts, Extra "Session, 1912, State of Michigan, and the election of the assured thereunder that is required of the assured to do and perform on account of personal injuries (in- cluding death resulting therefrom), sustained by any employe or em- ployes of the assured while this policy is in force, and arising out of and in. the course of his or their employment by said assured, in the operation of and in connection with the business herein stated." The business of the insured is stated in the policy as fol- lows: "Place where the work is to be done: State of Michigan. Kind of work to be done: Contractors, buildings wooden, or frame private residences, flats, apartment, flats with stores underneath, one story stores and stores with offices above, private stables and private gar- ages, exclusively, and buildings not mercantile or factory; all not ex- ceeding three stories and basement in height, including jobbing work connected therewith; no blasting. This classification does not in- clude the erection of churches, theatres, or buildings intended for city and county or municipal use, such as court houses, city halls or capitol buildings." The policy is not returned, and we have no further informa- tion about its terms. It is contended that claimant's deced- ent was not killed while performing any duty in connection with the said business. The facts may be briefly related. Claimant's decedent was the father of Charles F. Bayer, BAYER vs. BAYER. 437 was employed by him and by no one else. Sometimes he was employed in and about the business described in the policy of insurance. Charles F. Bayer owned a horse and wagon and this, his father driving the horse, was sometimes employed in the said business. Charles F. Bayer had a brother, Wil- liam, a painter. This brother was not his partner nor, ex- cept upon contract relations, employed by Charles F. Bayer. He did business upon his own account, working for others as well as for his brother. They had separate shops. By an arrangement between the brothers, William was to pay one- half the expense of feeding the horse belonging to Charles, and Charles, in consideration thereof, was to move, with the horse and wagon, material and apparatus of William, used in his business, from place to place, as required by William. From time to time, depending upon the jobs secured by Wil- liam, and upon William's request, the horse and wagon and claimant's decedent were so employed. A job of painting had been completed by William at Lakeside. Charles had no in- terest in it; had not constructed or repaired the building, but upon request of William sent his father and the horse and wagon to Lakeside to draw into Detroit, to his brother's shop, the ladders, etc., belonging to William. It was while returning to Detroit with William's material and apparatus upon the wagon that claimant's decedent was killed, upon the tracks of an electric railroad, by a car. The chairman of the arbitration committee said, in the course of the hearing: "It doesn't matter whether he was hauling for a grocery store, as far as this case is concerned. If he was under this man's control and selected by him and paid by him, that is the particular point." Two of the arbitrators awarded claimant six dollars a week for three hundred weeks. The third arbitrator refused to concur. Upon appeal, the Industrial Accident Board modi- fied the action of the arbitrators and awarded $5.50 per week for a like period. 438 MICHIGAN WORKMEN'S COMPENSATION CASES. OSTRANDER, J. (After stating the facts) : It is obvious that the policy of insurance, or of indemnity, is not an undertaking of the insurer to respond in all cases for injuries to, or death of, any employe of the assured, in any employment. The purpose plainly is to limit liability to cases of employment "in the operation of and in connection with the business herein stated." If there is any connection between the carpenter contracting business and the business of draying or hauling personal property for third persons, neither the property nor its owner being in any way connect- ed with the business, it is not pointed out and I am unable to discover it. Whether the assured hauled the property of his brother for a consideration, (as he did), or gratuitously, his agent and employe engaged in the hauling was not em- ployed by the assured in the operation of, or in connection with, the business stated in the policy. Counsel for claimant makes an argument based in part upon the assumption, and assertion, that the statute, Act No. 10, Public Acts, Extra Session, 1912, does not contain the words "arising out of and in the course of his employment," but, unlike the statutes of many states, omits the words "aris- ing out of," and includes only the words "in the course of his employment." This assumption is unwarranted. Part 2, sec- tion 1. It is not contended that the contract of the insurance com- pany is not controlling according to its terms. It is conceiv- able that a man may be engaged in more than one business, and as to one or more may elect to come under the terms of the act, and as to another or others elect not to be governed by the act. The declaration of the assured employer is not before us. Upon this record, and considering only the points pre- sented, it must be held that the order of the Industrial Ac- cident Board, as affecting the respondent insurance company, is invalid. It is vacated. BEAUDRY vs. WATKINS AND RADCLIFFE. 439 SUPREME COURT. CHARLES E. BEAUDRY, Applicant and Appellee, vs. WILLIAM H. WATKINS and BYRON D. RADCLIFFE, Co-partners doing business as WATKINS & RADCLIFFE, Respondents and Appellants. INTENTIONAL AND WILFUL MISCONDUCT. Gordon Beaudry, 15 years of age, was employed as a delivery boy by respondents and was furnished a bicycle with which to do his work. While engaged in his work and riding on a busy street in the city of Detroit, he took hold of the rear end of a motor truck which was proceeding in the same direction. The truck turned suddenly to the right throwing the boy down on the pavement. He was run over and killed by another truck which was following close behind him. HELD: 1. That the accident arose out of and in the course of his employment. 2. That his action in taking hold of the truck did not consti- tute intentional and wilful misconduct within the meaning of the law. Certiorari to the Industrial Accident Board to review an award in favor of applicant. Affirmed. Francis HcGann, of Detroit, for applicant. Ivin E. Kerr, of Detroit, for respondents. MOORE, J. The facts are not complicated. On April 29th, 1914, and prior thereto, Gordon Beaudry, nearly fifteen years of age, was employed by Watkins & Radcliffe as a delivery boy and he was furnished a bicycle with which to do his work. On that date he was to make a delivery on Cass avenue. 440 MICHIGAN WORKMEN'S COMPENSATION CASES. Permission was given him to get his luncheon at home, No. 997 Theodore street, and he was then to call for a package and return to the store. One of his employers testified he "asked my permission to go home to lunch from Theodore street, or whatever the call back might be. I reluctantly gave him permission to make that trip that way on the ground that he would hurry up and come back. I thin* it was about twenty minutes to eleven when I gave him this order and he argued that he could go to Case avenue first, that he could go and make the pick up and get his lunch and get back early. "Q. Making this pick up and making this delivery were in the course of his employment? A. Oh yes. "Q. He was employed to do this very thing Mr. Watkins? A. He was." The boy called at his home at about 11 :30 o'clock and took ten minutes for lunch. He told his mother he had another delivery to make and was in a hurry. As he was proceeding in a westerly direction on Canfield Avenue East, he caught on the right rear end of a motor truck, proceeding in the same direction. This truck overtook and passed another truck also proceeding in a westerly direction. The boy was still hanging on the right rear end of the truck which turned sud- denly to the right. As a result of the truck making this sud- den turn the boy was thrown to the pavement a few feet in advance of the rear truck and before the driver in charge could stop, the left front wheel passed over the boy's body. Death resulted soon. Deceased at the time of his death was earning six dollars a week which he gave to his mother each week for use in the family. Deceased was an expert bicyclist. We quote from the brief : "It is the claim of respondent: 1. Gordon Beaudry, deceased did not receive a personal injury arising out of and in the course of his employment. 2. He was injured by reason of his intentional and wilful miscon- duct." Sections 1 and 2, Part II of Act No. 10 of the Public Acts BEAUDRY vs. WATKINS AND RADCLIFFE. 441 of the Special Session of 1912 are quoted. Under the first grouping it is argued, we again quote: "After it is shown that the accident happened within the time dur- ing which he is employed, and at the place where he may reasonably be during that time, that is within the period and the scope of the employment, the workman must also know, that it was a risk inci- dent to the employment; that it arose because of something he was doing in the course of his employment, or because he was exposed by reason of the peculiar nature of his employment to the partic- ular hazard which caused the injury." and that as the accident happened in the instant case because of decedent taking hold of the truck, there could be no lia- bility. Counsel cite many authorities which it is claimed support his contention. Under the second heading it is argued: "If the Court should hold that in order to constitute intentional and wilful misconduct, it should appear that the workman intended or expected to injure himself, it would be putting interpolating into the statute a limitation upon the clause which cannot be gathered from a plain and obvious meaning of the word." The authorities cited are chiefly those of foreign jurisdic- tions. This court had occasion to consider the language used in sections 1 and 2 of Part II of the Act in Clem v. Motor Co., 178 Mich. 340, and in Rayrver vs. Furniture Co., 180 Id. 168. A construction of section 2 was involved in Oignac vs. Studebakcr Corporation, 22 D. L. N. 587. While the instant case is not on all fours with any one of those cases we think it must be said that the reasoning used in deciding them justi- fied the ruling of the Industrial Accident Board. The judgment is affirmed with costs. Stone, C. J., Kuhn and Person, JJ. concurred with Moore, J. OSTRANDER, J. In my opinion the risk assumed by the boy, 442 MICHIGAN WORKMEN'S COMPENSATION CASES. though the cause of the injury was not a risk incident to his employment. Steere and Brooke, JJ. concurred with Ostrander, J. SUPREME COURT. JAMES BRUCE, Claimant and Appellee, vs. TAYLOR & MALISKEY, and FIDELITY & DEPOSIT COMPANY OF MARYLAND, Respondents and Appellants. DURATION OF DISABILITY INJURY TO FOOT. The claimant received an injury to his right leg below the knee by which he was disabled from working. Respondents paid com- pensation for 124 weeks and tendered payment for one addi- tional week but demanded that claimant sign a settlement re- ceipt closing the case. He refused and respondents petitioned the Board to be relieved from making further payments. HELD: That under the facts, claimant is not limited to the amount of compensation specified for the loss of a foot, but is entitled to compensation during the time that his disability in fact continues, subject to the limitations in the statute. Certiorari to the Industrial Accident Board to review an order denying respondents' petition to be relieved from mak- ing further payments. Affirmed. Lee & Parker, of Flint, for Claimant. BRUCE vs. TAYLOR AND MALISKEY. 443 Shields & Silsbee, of Lansing, Austin J. Spalding, of De- troit, of counsel, for respondents. Claimant was injured, his right ankle being broken. The defendant insurance company entered into an agreement with him to pay him compensation at the rate of $6.75 per week during the period of disability, the agreement being subject to the terms of the Compensation Act. Claimant was paid for 124 weeks, and pay for an additional week was tendered and a receipt in full demanded. Claimant refused to give a receipt and the company applied to the Industrial Accident Board to be relieved from making payments beyond the period of 125 weeks. By the terms of the statute the period of disability for loss of a foot is deemed to be 125 weeks. Claimant testified at the hearing in part as follows: "I am not able to follow any work such as I had been following, that of a common laborer, and there is no work that I have been able to find at which I can earn a livelihood. My leg pains me all the time. I am able to stand on it by using my cane, and: taking the weight off my foot, but when I put the leg on the ground, and try to stand on it, I suffer pain. I have recently noticed that there is a breaking out around the injured portion of the right ankle, which Dr. Tupper says is due to deficient circulation. * * * I am not ready at this time to take any treatment that might be recommended by a competent physician as a step toward improving my condition. I think it has gone so far that there is no use of it. I will let it alone, and see. I will take a treatment, but not an operation. That answer is given in view of the advice given me by my doctor, who said not to have any operation. After Dr. Tupper recommended me to the Murphy operation, I had a talk with Dr. McGregor, and he told me to let it alone and not have the operation. * * * The last time I did any work was at the time I received my injury, and I have not tried to do any work since. I have not made any effort to secure any employment that I am able to do without standing on my feet. * * The reason that I have not done that is because I am not able to. * * * My hands and arms are both in good shape. My left leg is all right. My right leg is all right, down as far as the point where I was struck by the iron. There is a sore there (indicating a point on the leg) down to a point below my knee, my right leg is all 444 MICHIGAN WORKMEN'S COMPENSATION CASES. right. My general health is good, and I have a good appetite, and ex- cept for my leg, I am a perfectly healthy man. * * * I have no education that enables me to take a 1 clerical position, and when I sit down my leg pains me; the pain is with me all the time, and would interfere with me in any sitting down occupation." Testimony of a physician was introduced which tended to prove that the condition of claimant can be, to an appreciable extent, remedied by a surgical operation. In part he said: "In a case similar to Mr. Bruce's case, they get such results that the injured man, at the conclusion of this 12 months, is able to work, and stand on his feet, because they remove the very cause of the condition that is, the removal of this bony tissue that is formed there, which impinges on the nerves, and that would have a tend- ency to cause pain. I believe in this case an operation over a year ago would have remedied the condition from which Mr. Bruce now suffers. Any operation would remedy it I think. I said so then, and I say so now. In my opinion, Mr. Bruce has not got now ten per cent of function in his foot. * * * Poor circulation caused the discolorations breaking out around the wound, a general weakness due to the circulation, which you always find in a wound of that kind. He has recovered so far as nature is comcerned. It has formed a splint. He has recovered as much as he ever will, and so far as the usefulness is concerned, he is practically disabled with that ankle and foot at the present time. He does not appear to have recovered but I contend that the man was totally disabled from work. He has not gotten over the injury, and I see no immediate prospect for his recovery unless he has the operation. That operation is not guess- work. There is a certain per cent, of chances against him. It is not 40 per cent., but it is not guesswork. Murphy has got this work down to a science. * * * * Following an operation on Mr. Bruce, after nature gets in her work of healing and cleaning up things, after the operation, assuming that the operation is not a success, his condition will not be any worse than now. I don't see any reason why it should be. There is no great risk attending the operation. The risk of an operation is due to the anesthetic. They have got it down to an absolute science. There is not one fatality in 40,000." To the writ of certiorari the Board returns as a part of its finding: "The position and claim of said Bruce is set forth in his answer to said petition as follows: 'That the conditions are not the same as BRUCE vs. TAYLOR AND MALISKEY. 445 though the undersigned had lost a foot in which case he could have had recourse to an artificial limb and gone on with some employment. As it now stands he is entirely disabled and denies that the petitioner is entitled to the relief asked.' The Board found from the evidence and the inspection of the injured limb that this claim was sustained. While no parts of the body except the foot and ankle in question are affected, the condition is such as to prevent the use of an artificial limb or appliance and to disable Mr. Bruce from following his customary employment. Such condition so far has prevented him from following any employment. In the opinion of the Board the refusal of the defendant to submit to the proposed operation, referred to in the petition, was not so unreasonable as to justify the stopping of his compensation, the operation being a serious one and the result doubtful." OSTRANDER, J. (After stating the facts) : If claimant is totally disabled, his compensation must con- tinue to be paid, not for longer than 500 weeks. Plaintiffs in certiorari argue that it is anomalous that he should be per- mitted to recover for a period greater than the one fixed for the total loss of his foot, and it is suggested that the statute, section 10, be construed to mean for the loss of a foot, or what is equivalent thereto. Section 9 and the applicable parts of section 10, of Part II, of Act No. 10, Public Acts, Extra Session, 1912, read: "Sec. 9. While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter pro- vided, to the injured employe a weekly compensation equal to one- half his average weekly wages, but not more than ten dollars nor less than four dollars a week; and in no case shall the period covered by such compensation be greater than five hundred weeks, nor shall the total amount of all compensation exceed four thousand dollars. "Sec. 10. While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employe a weekly compensation equal to one- half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than ten dollars a week; and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of the injury. In cases included by the following schedule the disability in each such case shall be deemed to continue 446 MICHIGAN WORKMEN'S COMPENSATION CASES. for the period specified, and the compensation so paid for such injury shall be as specified therein, to-wit: ***** "For the loss of a foot, fifty per centum of average weekly wages during one hundred and twenty-five weeks;" The Board has found that claimant's incapacity for work is total. It would seem that the finding might well have been that his incapacity is partial only, thus limiting payments to 300 weeks, in view of claimant's admission that he had not tried to work since receiving his injury, nor sought any em- ployment other than such as requires him to stand on his feet. However, I think there is some testimony tending to support the finding. We cannot by construction of the statute make a case of partial incapacity for work when the fact is found that the incapacity is total. The conclusion of the Board will not be disturbed. BELL vs. HAYES-IONIA COMPANY. 447 SUPREME COURT. JOSIAH V. BELL, Claimant and Appellee, vs. HAYES-IONIA COMPANY, and MICHIGAN WORKMEN'S COMPENSATION MUTUAL INSURANCE COMPANY, Respondents and Appellants. HERNIA HELD PERSONAL INJURY BY ACCIDENT. Claimant suffered a hernia from exertion in trying to raise a window in the factory where he was employed. The evidence and facts are reviewed in the opinion in detail, the Court holding that the hernia so received constituted a personal injury by accident within the meaning of the Workmen's Compensation Law. Certiorari to the Industrial Accident Board to review an award in favor of claimant on account of a hernia. Affirmed. R. A. Colwell, of Ionia, for claimant. Beaumont, Smith d Harris, of Detroit, for respondents. KUHN, J. The claimant has been awarded compensation under Act 10, P. A., 1912. The award was made in the first instance by a committee of arbitration, and was approved by the Industrial Accident Board, and that decision is brought to this court by certiorari, for a review of the findings. The substance of the testimony which bears on the alleged accident is that the claimant was employed by the respondent in work on automobile bodies which required frequent lift- ing of them; that on May 29, 1914, the window of the room where he was working had been put down during a storm, and had swollen enough to make it stick; after the storm had ceased, Bell put it up again, and it required considerable exertion. He testified that after lifting the window he "felt 448 MICHIGAN WORKMEN'S COMPENSATION CASES. something come down that felt quite painful;" that "when I felt the pain after lifting the window, I went to the toilet and found a lump there. * * * The lump was about like an egg. It was on my right groin. I never noticed the lump be- fore." This happened at 4 o'clock. He continued to work, lifting bodies, until 5 :30 o'clock, closing time. On his way home he felt faint, and complained to his wife of an inclination to vomit. When asked whether he noticed any condition that made him think he had hernia, he said : "It came down Friday night. I got it back Saturday, and Sunday it stayed in place. On Monday when I went to work, it came out again." He did not work Saturday and Sunday, but returned to his usual work on Monday, and suffered pain all day. When he reached home that night, the doctor was called, and after some effort reduced the hernia. An operation proved necessary, and was performed, and the claimant was disabled for 10 weeks. Compensation was awarded him for that period at $6.92 per week, in addition to medical and hospital expenses for 3 weeks, the period of his confinement. Among the several points relied upon by respondents for a disallowance of the claim, the one most extensively dis- cussed is that the injury did not result from an accident. The argument goes upon the theory that a hernia is the result, "not of a single fortuitous event, but either of the anatomical defect of the claimant or of the long continued lifting for a number of months ;" that hernia is the result of a very gradual process; that it is not an accident, but a disease. Medical authorities are quoted from, and the testimony of expert wit- nesses presented, to substantiate the theory. But whether this theory is correct or not, the argument is disposed of by the decision in the recent case of Robbins v. Original Gas Engine Co., 23 P. L. N. 142. There is evidence that the claim- ant felt a pain in the groin after raising the window, and BELL vs. HAYES-IONIA COMPANY. 449 discovered a hernial protuberance immediately afterward. He continued to work, and "both lifting the window and lifting the body caused this pain. I was pulling up the window when the pain came on, and also when I lifted the body." The work on Monday, after he had "got the hernia back/' caused more pain, and brought it down again, so that the physician had difficulty reducing it. It is clear that the com- mittee and the Board were justified in finding that the hernia was pushed through and made so acute by the lifting of the window as to disable the claimant. See La Veck v. Parke, Davis & Co., 23 D. L. N. 13. Such an injury entitled the claim- ant to compensation. See Skinner v. Commercial Travelers' Mutual Accident Association, 23 D. L. N. 121; Robbins v. Or- iginal Gas Engine Co., supra. The respondents offered in evidence the report of Dr. Knapp, who attended the claimant, in which it was stated: "Patient says for 2 or 3 weeks been having pain in groin, and that while closing a window at factory felt strain which in 2 or 3 days resulted in strangulated hernia." It was presented in connection with the following testi- mony of Dr. Knapp: "I would call it a perfectly fresh puncture. It was evidence to me that the hernia was caused as claimed. Indications are to the effect that the act of putting up the window and lifting the body from the work bench caused the bowel to go through and form a sac. * * * "I believe, as near as I can tell, he had no rupture before, and he had it afterwards. The preponderance of evidence seems to show that it came on at that time as the result of his work. "Mr. Smith: Dr. Knapp, did he say anything to you about having had a pain in his side previous to this? "Dr. Knapp: Afterwards I asked him how long he had had it, and he said he did not know anything about it; on Saturday he lifted the window and the body, and felt it cpme on him then. "Mr. Smith: You reported to the Insurance Company, 'Patient says for two or three weeks been having pain in groin.' Is that so, Mr. Bell? "Mr. Bell: I don't remember saying that. "Mr. Smith: The report was made June 9th; where do you suppose the doctor got that idea? "Mr. Bell: I might have told him that. I have tried to be honorable 57 450 MICHIGAN WORKMEN'S COMPENSATION CASES. and truthful, and always have. I don't remember saying that, al- though I might have said it at that time. "Mr. Smith: How do you account for this report? "Dr. Knapp: He must have told me that he had had previous pain there, or I would not have made such report. It might be that this condition arose before if that is the same pain, or it might have been a pain in the abdomen lower down." The Board rejected the report. This evidence might properly have been received, since it contradicted a part of Dr. Knapp's testimony. But the error is not of sufficient importance to invalidate the findings. The presence of a structural weakness or actual pain, antedating the injury alleged, in the region where the injury occurred, does not preclude a recovery if the injury itself is distinct, and the result of a particular strain causing a sudden pro- trusion of the intestine. As in Robbins v. Original Gas En- gine Co., supra, there was testimony to support a finding that the claimant made a distinct and unusual exertion, that he immediately felt unusual pain, and presently discovered a protrusion through the abdominal wall about the size of an egg. And it may be appropriately said here also, that "it is assumed that it was the first time the sac had been forced through the abdominal wall. If it is also assumed that there was a certain lack of physical integrity in the parts where the injury was manifested, still I think claimant may have compensation for the in- jury he suffered." Robbins v. Original Gas Engine Co., 23 D. L. N., p. 144. See also La Veck v. Parke, Davis & Co., supra, and recent decisions of the Massachusetts court, Re Madden, 111 N. E. 379, and Crowley v. City of Lowell, id. 786, for an application of the same principle. The rejected evidence could be given its due weight and accorded belief, without requiring a find- ing of no accidental injury on May 29 resulting from the opening of the window. Complaint is made of the action of the Board in excluding the extracts from medical textbooks, offered by the respond (Mils jis evidence of the true nature of hernia. As the only BELL vs. HAYES-IONIA COMPANY. 451 object of offering such evidence could have been to prove that hernia is not an accidental injury, in view of what has been said on this subject it is unnecessary to discuss this question. It is contended that the finding of the Board that there was an accident is not conclusive on this court, under a cor- rect construction of the provision that the "findings of fact made by the Industrial Accident Board acting within its power shall, in the absence of fraud, be conclusive." Fraud is not averred or shown. But respondents' counsel, treating this as a finding of fact, contend that the Board acts within its power only when it deals with an accident to an employee arising out of the employment, and that since such facts (viz., that the injury was an accident, the injured person an employee, and the accident one arising out of the employ- ployment) are jurisdictional, the Board's finding of them is not conclusive on this court. "Unless it has before it an ac- cidental injury arising out of and in the course of the em- ployment, it is beyond its power and authority." If counsel mean that the Board's findings of fact are conclusive only when the Board is dealing with an accidental injury arising in the course of the employment, it is equivalent to saying that such findings of fact are conclusive only when made after the facts justifying an award have already been established. From this point of view, it is difficult to see what facts are to be found, or what the purpose of the findings could be. Manifestly, something else was intended by the words, "act- ing within its power." Undoubtedly the Board has no jurisdiction to make an award until it has decided upon the facts found by it that the injured person was an employee, that the injury was the result of an accident, and that the accident arose in the course of the employment; and counsel doubtless means to assert only that the conclusions of the Board on these points are not binding on this court. Perhaps it is sufficient to say that since we agree with the conclusion of the Board on these points, any discussion of the question is unnecessary. 452 MICHIGAN WORKMEN'S COMPENSATION CASES. However, an apparent confusion in the recent decisions de- serves some attention. While the Board's findings of fact are undoubtedly con- clusive on this court (see Rayner v. Sligh Furniture Co., 1*30 Mich. 168; Lindsteadt v. Sands Salt d Lumber Co., 23 D. L. N. 45), it is clear that the legal conclusions of the Industrial Accident Board, when based upon findings of fact, are subject to the supervision of this court. See recent cases: Bischoff v. American Car & Foundry Co., 23 D. L. N. 132; Robbins v. Original Gas Engine Co., id. 142. If it is clear upon the facts found by the Board that as a legal conclusion an injury was not accidental, or that it did not arise in, the course of the employment, a contrary conclusion awarding compensation will not be allowed to stand. The Act does not make the Board's legal conclusions binding on this court. It was said in La Veck v. Parke, Davis & Co., 23 D. L. N. 13, that "where there is testimony upon which the accident board can base its conclusion we will not review its action," and cases were cited to support this rule. But we were referring then to a conclusion of fact. In Redfield v. Compensation Insurance Co., 183 Mich. 633, the findings of the Board which were treated as final when supported by any evidence were mat- ters purely of fact. In Bayne v. Riverside Storage & Cart- age Co., 181 Mich. 378, the question whether the pneumonia which caused the death was caused by a particular straining was one purely of fact, and since the testimony was conflict- ing, it was a matter for the determination of the Accident Board. It was not intended to hold that whether that which caused the pneumonia was an accident, and whether the accident, if it was one, arose in the course of the employment, were purely questions of fact for the Board. Since it has not been shown that the Board exceeded its power or acted fraudulently, we must conclude that the hernia was caused by the strain on the 29th of May, and the order allowing compensation is affirmed. ROBERTS ET AL. vs. WHALEY AND EDWARDS. 453 SUPREME COURT. INNIE ROBERTS, Incompetent, and GLADYS ROBERTS, Minor, !y W. HENDERSON, Guardian, 5LARA FACKLER, Applicants and Appellees, MURNA ROBERTS and ELLIS ROBERTS, Minors, by CARL H. REYNOLDS, Guardian, Applicants and Appellants, vs. r ILLIAM H. WHALEY and GEORGE W. EDWARDS, Co-partners, as WHALEY & EDWARDS, and UNITED STATES FIDELITY & GUARANTY COMPANY, Respondents and Appellants. DEPENDENTS ILLEGITIMATE CHILDREN HELD TO BE. Decedent at the time of his injury and death was living in Grand Ledge, his family apparently consisting of a wife and two minor children. It later developed that his legal wife was insane and confined in the Pontiac State Hospital and an infant daughter by the insane wife was being cared for and supported by relatives. The woman with whom he was living at the time of his death was not his wife and the two children by her were illegitimate. HELD: That the illegitimate children were entitled to the com- pensation being members of his family and dependent upon him at the time of his decease. Certiorari to the Industrial Accident Board to review the order granting compensation to the wife and daughter. Re- versed and award made in favor of illegitimate children. F. H. Duseriberry, of Mt. Pleasant, for applicants and ap- pellees. 454 MICHIGAN WORKMEN'S COMPENSATION CASES. Cunt minx, Xicltols d Rhoads, of Lansing, for applicants and appellants. Clark, Lockwood, Bryant cC Klein, of Detroit, for respond- ents. BIRD, J. N. H. Roberts was killed while working in a sewer in Grand Ledge. Application for an allowance was made to the Industrial Accident Board on behalf of his in- sane wife and daughter, and also on behalf of his two illegiti- mate children and his housekeeper. Upon a stipulation of facts, an award was made and divided between the wife and daughter. We are asked to review the proceedings on behalf of the illegitimate children, and the defendant insurance ' company. The record discloses that Roberts was married to Minnie Fox in the year 1903. In the following year, 1904, the daughter Gladys was born. Two years later, in 1906, the wife became insane and was taken to the asylum. After the mother was taken away, Gladys went to live with a Mr. Henderson, where she has since resided and been cared for by him in his family. Roberts being left alone, employed a housekeeper. He appears to have become enamored of her, and later lived with her openly as a wife, and two children were born .to them, Murna and Ellis, the appellants. At the time Roberts was killed, he was living with and supporting these children and their mother. The wife, Minnie, was still in the asylum at the time of his death, and had been sup- ported there at the expense of the State, and Gladys had. been supported by Henderson, and it appears that Roberts had contributed nothing to the support of either during their ab- sence. The position taken by the defendant insurance company is that no award should have been made, because neither the wife nor Gladys was living with, nor was either depend- ent on Roberts at the time of his death, and further, that the law will not encourage the immoral relation of the par- ents by recognizing their illegitimate children. On behalf I ROBERTS BT AL. vs. WHALEY AND EDWARDS. 455 of the illegitimate children, it is urged that they are the chil- dren of the deceased, and that they actually lived with him, and as a matter of fact, were wholly dependent upon him, and are, therefore, by reason of such dependency, entitled to ._ fl the award. (1) Is the wife entitled to share in the award? It appears without dispute that the wife was not living with her husband at the time of his death, and had not lived with him for nine years prior thereto. Therefore, it is ob- vious that if she is entitled to the award, it must be by rea- son of her dependency on him. That question is one of fact. The stipulation of facts shows that she has been sup- ported by the State for upwards of 9 years, and that the de- ceased has contributed nothing. I am unable to see how upon this record it can be said that she was dependent upon her husband for support at the time of his death. The record simply shows that she was not. For cases supporting this view, see: New Monckton Collieries Ltd. vs. Keeling, 4 B. W. C. 0. 332. Lee vs. "Bessie," 1 K. B. 85; 81 L. J. K. B. 114; 105 L. T. 659, 5 B. W. C. C. 55. Potted vs. Great Northern Ry. Co., 5 B. W. C. C. 620. Devlin vs. Delaw Main Collieries, 5 B. W. C. C. 349. Niddrie d Benhar Coal Co., Ltd. vs." Young, 5 B. W. C. C. 552. In Re Nelson (Mass.), 105 N. E. 357. In Re. Bentley (Mass.), 104 N. E. 342. Batista vs. West Jersey & Seashore R. R. Co., (New Jersey), 99 Atl. 954. In Re. Jones, Ohio-Ind. Com. 6 N. C. C. A. 250. Finn vs. Ry. Co., 22 D. L. N. 1201. Counsel's argument in effect amounts to this, that a pre- sumption of dependency arises from the fact of marriage, and the consequent duty of her husband to support her. 456 MICHIGAN WORKMEN'S COMPENSATION CASES. Where the issue of dependency is one of fact, proof that claimant is the wife of the deceased is of course, admissible, and in connection with other facts, may be of help in determ- ing that issue. Or, if the issue is whether the wife is con- clusively presumed to be dependent, proof of the fact of mar- riage standing alone, might raise a presumption that she was living with the deceased at the time of his death, be- cause wives usually live with their husbands. But where proof of marriage is followed by a concession that she had not lived with the deceased for nine years prior to his death, that she had been supported by the State, and that her hus- band had contributed nothing toward her support during that period, the value of such proof, either on the question of dependency, or in aid of the presumption, has very little force. The fact that claimant did not voluntarily separate from -her husband, is urged as a reason why she should be regarded as constructively living with him during her ab- sence. Were this proceeding one to recover for necessaries furnished her by another, or a divorce proceeding, in which permanent alimony was to be awarded to her, this considera- tion would be important. This proceeding, however, is based upon a statute which provides a fund, not for the benefit of the workingman's estate, not for the benefit of his creditors, not for those equitably entitled to be supported by him, but the fund is provided for the benefit of those dependent on his labor at the time of his death. The act provides: "If death results from the injury, the employer shall pay, or cause to be paid, subject, however, to the provisions of Section 12 hereof, in one of the methods hereinafter provided, to the dependents of the employe." (Laws 1912, Act 10, Part 2 Sec. 5). Unless the claimant is actually dependent upon the em- ploye at the time of his death, she does not come within the class designated by the statute, however unjust or inequitable it may appear. What may have led to the separation is of little importance, if it results in the claimant ceasing to be ROBERTS ET AL. vs. WHALEY AND EDWARDS. 457 a dependent upon the employe. For instance where claim- ants were being cared for in the Work House, Reformatory and Asylum, see: Rees vs. Penrikyber Nav. Colliery Co., 1 K. B. 259, 72 L. J. K. B. 85, 87 L. T. 661, 19 L. S. R. 113. Trainer vs. Robert Addis & Sons Collieries, Ltd., 42 So. L. R, 85, 7 F. 115, 12 S. C. L. S. 460. Berlin vs. Chesky, Wis. Ind. Com. Dec. 22, 1913. In putting this construction on the act, we do not mean to hold that a wife who is temporarily absent for travel, business, pleasure or health, as indicated by Mr. Justice Steere, in Finn v. Ry. Supra, would be excluded from the bene- fits of the act, if she has not ceased to be dependent. Our conclusion on this record is that the wife was not a depend- ent within the meaning of the act, and therefore, is no.t en- titled to participate in the award. (2) Is Gladys entitled to share in the fund? What has been said with reference to her mother, in the main, applies to Gladys. No presumption of dependency in her behalf, can be indulged. In order to indulge the presump- tion of dependency in her behalf, it must appear that she was living with the deceased at the time of his death, and that there was no surviving parent. Neither one of these conditions was present, and therefore, she is not within the class presumptively entitled to the fund. If she is entitled to participate in the fund, it must be by reason of her hav- ing been dependent upon her father at the time of his death. The record conclusively shows that she was not dependent upon him at that time, therefore, she is not entitled to partici- pate in the award. (3) Are the illegitimate children entitled to share in the award? It appears to be conceded upon the record that Murna and Ellis are the children of the deceased. It further appears that they lived with him and were members of his family, 458 MICHIGAN WORKMEN'S COMPENSATION CASES. and that they were dependent upon him at the time of his decease. They were actually cared for and supported by the deceased, and they had a right to expect a continuation of the support and care had he lived. This brings them clearly within the statute, and establishes as a matter of fact, that they were dependent, and therefore, entitled to the fund. But it is said they are illegitimate children, and that the law will not encourage the immoral and unlawful relation of the parents by recognizing them. The children are in no wise responsible for their existence or status. They are here, and must be cared for. and supported. They were cared for and supported by the deceased up to the time of his death. It was his legal and moral duty to support them, and he was responding to that duty when death overtook him. We think they are clearly within the class entitled to the fund, and it must be passed to them. The award made by the In- dustrial Accident Board must be set aside, and the fund awarded to them. SCHREWE vs. NEW YORK CENTRAL RAILROAD CO. 459 SUPREME COURT. FRANCIS SCHREWE, Claimant, vs. NEW YORK CENTRAL RAILROAD COMPANY, Defendant. SUPREME COURT WHEN APPEAL WILL NOT LIE. Writ of certiorari to review the award of a committee of arbitration is dismissed on motion, the court holding that a party feeling aggrieved by such award must first take the matter before the full Board for review as provided by statute; and that it may be taken to the Supreme Court on questions of law only after such hearing on review. OSTRANDER, J. Part III of Act No. 10, Public Acts (Extra Session 1912), is entitled Procedure. If an injured employe and his employer or the indemnitor of the employer agree con- cerning the compensation to be paid the employe under the act, their agreement, reduced to writing, may be filed with the industrial accident board and, if approved, is final and bind- ing. If an agreement is not reached, the precedure is, first, the formation of a committee of arbitration, one member of which shall be a member of the industrial accident board. The committee, having made an investigation and award, files its decision with the industrial accident board, and, "Unless a claim for a review is filed by either party within seven days, the decision shall stand as the decision of the industrial accident board." If a claim for review is filed, the board shall promptly re- view the decision of the committee "and such records as may have been kept of its hearings," hear such additional evidence as the parties wish to submit, "and file its decision therein with the records of such proceedings." "The findings of fact made by said industrial accident board act- 460 MICHIGAN WORKMEN'S COMPENSATION CASES. ing within its powers, shall, in the absence of fraud, be conclusive, but the supreme court shall have power to review questions of law involved in any final decision or determination of said industrial acci- dent board." Either party may present to the circuit court of the county in which the accident occurred the approved agree- ment settling the compensation to be paid, the unappealed from award of the committee or the decision of the in- dustrial accident board upon review, and the court is em- powered to enter judgment in accordance therewith without notice. It appears that, although the writ of certiorari issued in this proceeding is addressed to the industrial accident board, the board has not, in fact, been asked to review the award of the committee. The question presented is whether this court should review, in certiorari proceedings, the unappeal- ed from award of a committee of arbitration or whether a party claiming to be aggrieved by the action of the commit- tee should first seek a review of the committee action by the industrial accident board. The proceeding is a special and peculiar one. It may or may not be an adversary proceeding with respect both to the facts and the law. To the industrial accident board is confided, finally, the determination of the facts according to which an award of compensation is made, or is refused. There is involved, in every case, the application of the statute to the determined facts. The decision, whether of the committee or of the board, involves such an application of the statute. It is the decision of the committee which upon seasonable application may be reviewed by the board and, upon such review, corrected, if correction is required. It is questions of law involved in any final decision or determination of the board which may be determined by the court. It is plain, I think, that the act secures to parties claiming to be ag- grieved by the decision of a commitee, first, an appeal, second, a review of questions of law involved in the decision on ap- KILGREN vs. STAFFORD COMPANY. 461 peal, lu any event, such a construction of the law is war- ranted by the terms of the law and, being warranted, should be adopted because it makes, first, for uniformity and sim- plicity of procedure, and second, it prevents setting aside and amending by the court decisions which have, in fact, never received the attention of the body charged with the execu- tion of the law; a body which it is presumed will, upon re- view, correct the decision complained about. In my opinion, the motion to dismiss the writ of certiorari should be granted, with costs. BY THE BOARD. FRANK KILGREN, Applicant, vs. E. H. STAFFORD MANUFACTURING COMPANY, and MICHIGAN WORKMEN'S COMPENSATION MUTUAL INSURANCE COMPANY, Respondents. AVERAGE WEEKLY WAGE. Applicant had been in the employ of respondent company for a num- ber of years as a molder at a wage of more, than $20 a week. In the summer of 1915 he left the company and entered the employ of the traction company at Lansing as a conductor where he worked for about two months at a daily wage of $2.07. He re- turned to the company and asked for and was promised his old job. The molding floor was being repaired and he was put to work in the veneer room at work commanding a wage of 20c an hour, and while at this work he was injured. HELD: That his compensation should be based upon the wage for the veneer room work in which he was engaged at the time of the injury. 462 MICHIGAN WORKMEN'S COMPENSATION CASES. The applicant, in the summer of 3915, was in the employ of respondent as a molder at a wage of twenty ($20.00) dol- lars per week and upwards, having been in such employ for about three years. He left this employment and came to Lansing and worked for the Traction Company as a con- ductor for about two months at an average daily wage of two dollars ($2.07) and seven cents. Before going to Lansing he talked with the Superintendent about keeping his job open, so that he might come back if he did not like the work on the railroad, and was assured by the Superintendent that he would get the job back if he wanted to return. In the early part of October he came back to respondent's foun- dry at Ionia, saw the Superintendent, and asked if he could have his old job back. The Superintendent told him he would see the foreman, which he did, and then told appli- cant, "You will get your job back again," and that he could come to work Monday. Applicant came on Monday to go to work, but was informed that certain changes were being made on the molding floor and that they could not put him to work as a molder for a day or two, and that he should go to work in the veneer room until such time as the foundry floor was in shape for use. He worked about a day and a quarter in the veneer room when he met with an accident re- sulting in the loss of the four fingers of his right hand, which were cut off by a saw. The principal question in the case is the rate of wages. The wage in the molding room was in access of twenty ($20.00) dollars per week, while the wage in the veneer room was twenty (20c) cents an hour, it being claimed that at the time he was put to work his wages were fixed at twenty (20c) cents per hour by the timekeeper. We think that at the time applicant went to Lansing to work as a conductor he terminated the relation of employer and employe between himself and respondent. The talk of holding the job open for him, if he should want to come back, did not amount to a contract continuing that relation, but was more in the nature of a friendly assurance of re-employ- KILGREN vs. STAFFORD COMPANY. 463 ment if he should desire to return. Upon his return, the Superintendent proceeded to make arrangements to give him back his old job as molder, intending that he should com- mence work as such on Monday, October 11, 1915. Condi- tions in the foundry were such that he could not commence on that day, as the floor would not be ready for use for a day or two. Under those circumstances, it would be natural to postpone the commencement of work until the floor was ready, or to find or suggest some other work to do in the interim. The latter course was followed, and applicant was put to work in the veneer room at a class of work command- ing a much lower wage. It is claimed that the wage was fixed in the presence and hearing of applicant, but this he denies having heard. The true status of the parties at the time of the accident seems to be that applicant was put to work temporarily in the veneer room, the understanding of the parties being that he would be transferred to the molding room as soon as the floor was in readiness for use. The employment in which he was engaged at the time of the injury was the work of the veneer room, that being the beginning of a new employment by respondent. Though it was contemplated that he would later be em- ployed as a molder, that point was never reached on account of the occurrence of the accident, which he claims disables him from doing molding work. The fact that the company intended to give him the work in the molding room and that he expected to be given such work, we think does not change the situation. His actual employment, and we may say his only employment, was that in the veneer room where the wage was twenty cents per hour. Even if he did not hear the con- versation purporting to fix his wage in the veneer room, from his experience in the shop and plant of the company, he pre- sumably had a fair knowledge of the rate of wages paid for that class of work. If the wages were not fixed by agree- ment, then he would be entitled to the going wage for the 464 MICHIGAN WORKMEN'S COMPENSATION CASES. class of work that he was doing. He was at liberty to accept this employment in the veneer room, or to wait until condi- tions were such that he could go to work in the molding room. The case is different from what it would be if he had been previously working as a molder and was temporarily transferred to the veneer room. His going to work as a con- ductor completely severed his relation with the company and he came back a new employe. The only work that he did after his return was the veneer room work, in which he received his injury. We think that the award on arbitration should be affirmed. Petition for writ of certiorari denied in this case July 21, 1916. HENRY ROBINSON, Applicant, vs. WAYNE COUNTY MOVING & STORAGE COMPANY and MICHIGAN WORKMEN'S COMPENSATION MUTUAL INSURANCE COMPANY, Respondents. ARISING our OF. Applicant was a teamster in the employ of the moving and storage company but working on the streets of the City of Detroit haul- ing sweepings which were gathered in piles along the street. As a part of his work he was required to move teams when necessary to get at and load the sweepings. His action in moving a certain team was resented by its driver, who struck and injured appli- cant with a pick-hammer. ROBINSON vs. WAYNE COUNTY ETC. COMPANY 465 HELD: 1. That the injury arose out of the employment and flowed from a danger reasonably incident to it. 2. That under the facts in the case applicant was an employe within the employ of the moving and storage company notwith- standing the fact that he did his work on the streets under the direction of the ward boss. Applicant had been in the employ of the moving and stor- age company as a teamster doing general teaming work con- nected with the moving and storage of goods and such other teaming as he was from time to time directed to do. At the time of the injury, he was working with his team on a certain street in the city of Detroit, hauling away "sweep- ings" under the direction of the ward boss. The nature of the work and the order under which Robinson was acting re- quired him to move teams standing in the street in order to get all of the piles of dirt or sweepings as they went along. Shortly before he was injured, he moved a team which was standing in the street, against the protest of its driver, who became angry and used abusive language. He then proceeded to pick up the dirt and while so engaged the driver of the team which he had moved came up behind and struck him over the head with a pick-hammer inflicting the injuries com- plained of. It seems clear from the evidence that applicant was an employe of the moving and storage company within the meaning of the Workmen's Compensation Law. The company was his general employer and directed him where to work and could call him off from the city job at any time. Each day after his work for the city was finished he was required to take his team to the office of the company for further directions, and frequently required to haul loads and do jobs for the company after finishing his day's work on the streets. The fact that he was hauling sweepings for the city and while so doing was under the direction of the ward boss does not change the character of the employment. It was essentially the same as if lie was hauling garbage or material for any other person having work of that character to do. The busi- 59 466 MICHIGAN WORKMEN'S COMPENSATION CASES. ness of the company was handling and hauling material for others, such work being done generally in accordance with the wishes of the persons owning the material and under such orders and directions as they desired to give. This case dif- fers from Kennelly v. Stearns Salt & Lumber Company, as in that case the relation of employer and employe was tem- porarily and completely severed by the command of the State Fire Warden. Kennelly was drafted into the service of the State by such order and entirely taken out of his regular employment. In the Kobinson case, the authority and con- trol of his employer continued without interruption, while in the Kennelly case such authority and control was entirely extinguished and so remained until the man was discharged from further duty by the Fire Warden. Did the injury arise out of and in the course of the em- ployment? It is clear that it arose in the course of appli- cant's employment, it having occurred while he was engaged regularly in his work. The remaining question is whether it resulted from one of the dangers incident to such employ- ment. His work involved the moving of teams where it was necessary in order to get at the sweepings, and this part of the work caused him to incur the possible danger of coming in conflict with the drivers of some of these teams and possi- ble reprisals such as occurred in this case. We think it fairly appears that the risk of injury from irrate drivers of teams so moved in the work was one that arose out of his employment. The case In Re Reithel, 109 N. E. Rep. 951, decided by the Supreme Court of Massachusetts strongly sus- tains this view. In the Reithel case it was the duty of the deceased employe to order from his master's premises any person who entered without permission, and in discharging this duty he was shot and killed by one who resented his action in causing him to remove from the premises. In pass- ing upon the question the Court say: "An element inherent in the performance of the duty of excluding trespassers from property and mischief-makers from the company of KUNZE vs. DETROIT SHADE TREE COMPANY. 467 employes, is that there may be some degree of violence encountered. The precise form which that risk may take is not of consequence. Its unexpectedness and gravity is not the test. * * That murder resulted instead of a broken bone is of slight, if, indeed, it is of any signifi- cance. This injury was one to which the employe was exposed by reason of his employment, and, but for the special duty imposed on him respecting Bombard, he would not have been in the way of re- ceiving it. The causative danger was peculiar to his work. It was incidental to the character of the employment and not independent of the relation of master and servant. Although unforeseen and the consequence of what on this record appears to have been a crime of the highest magnitude, yet now, after the event, it appears to have had its origin in a hazard connected with the employment and to have flowed from that source as a rational consequence." The award of the committee on arbitration will be reversed and compensation granted. SUPREME COURT. AUGUSTA KUNZE, Applicant, vs. DETROIT SHADE TREE COMPANY, Respondent. EVIDENCE REASONABLE INFERENCE STREET TRAFFIC ARISING OUT OF. Applicant's husband, Frederick Kunze, was in the employ of respondent as foreman, his duties requiring him to go from job to job about the city. Having completed his inspection on one job about nine o'clock in the morning of July 18, 1914, he left the work in charge of another employe and started to another part of the city, where it is claimed that he was to inspect another job for his employer. While so traveling he was struck and injured by an automobile and died on the following day. HELD: 1. That the performance of his duties in supervising dif- ferent jobs of work required him to travel from one to the other, using such means of locomotion as he might deem desirable; 468 MICHIGAN WORKMEN'S COMPENSATION CASES. and that it is to be reasonably inferred from the evidence that when the injury occurred he was about to take a car to go to another locality to inspect work for his employer. 2. That where an employe in the course of his employment is compelled to travel about the streets as in this case, the danger of being struck by street cars, automobiles, or general traffic is prop- erly held to arise out of the employment. (Hopkins vs. Michigan Sugar Company distinguished.) Certiorari to Industrial Accident Board. Proceedings by Augusta Kunze against the Detroit Shade Tree Company under the Workmen's Compensation Act for compensation for the death of her husband. Compensation was awarded by the Industrial Accident Board, and respond- ent brings certiorari. Affirmed. E. D. Alexander, of Detroit, Attorney for applicant. Thos. M. Cotter, of Detroit, Attorney for respondent. KUHN, J. This case is brought here by cretiorari to review an award made by the State Industrial Accident Board. Frederick Kunze, whose widow is the claimant herein, was employed by the Detroit Shade Tree Co., the defendant, as a tree trimmer and planter. Having been with the defendant company for about two years, on July 18, 1914 he was em- ployed as a foreman; and in the course of this employment it was his duty to go from job to job about the city. On the day aforementioned he had inspected a job on Virginia Park, a street in the city of Detroit, and having completed this in- spection at about 9 o'clock in the morning he left the work in charge of another employee and started east on Virginia Park to the intersection of Woodward Avenue, where it is to be reasonably inferred from the evidence that he was about to take a car to inspect another job north of Virginia Park at the corner of Josephine Avenue and Woodward Avenue ; and it also appears that there was another job for inspection KUNZE vs. DETROIT SHADE TREE COMPANY. 469 at the corner of Mount Vernon and John R. streets, which was also north of Virginia Park. While at the intersection of Virginia Park and Woodward Avenue he was knocked down by an automobile, seriously injured, and died the fol- lowing day. It is the contention of the appellant that there is no evi- dence in the record that the deceased was at the time of his death engaged in any business for his employer. Mr. Al- fred Gibson, the president of the defendant company, was sworn and testified as to the character of the employment. It appears from his testimony that the deceased was employed by the week, and he stated that in the summer time "He went around trimming trees, doing tree surgery work, taking down trees, and so on, with other men in my employ that he had charge of." He also testified that at the time of his injury the deceased had on his person a list of places to go, one after the other, and stated that he had finished his work on Virginia Park. We think it is clear from the record that the employment of the deceased was to go from place to place to trim trees, and that in the discharge of those duties it was not only neces- sary for him to supervise the work but it was necessary, in the course of his employment, to proceed from one job to the other, adopting such means of locomotion as he might desire. It is strongly urged by counsel for appellant that the death of the deceased was not due to any accident "arising out of and in course of his employment," and that there was no causal connection between the employment and the injury, and in support of this contention the recent decision of this court in Hopkins v. Sugar Co., 184 Mich. 87, is relied upon. In the opinion in that case Mr. Justice Steere, speaking for the Court, quoted from the rule announced by the Massa- chusetts court, in which it was stated: "If the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person 470 MICHIGAN WORKMEN'S COMPENSATION CASES. familiar with the whole situation as a result of the exposure occa- sioned by the nature of the employment, then it arises 'out of the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workman would have been equally exposed, apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence. Being clearly of the opinion that the record warrants the conclusion that at the time of the injury the deceased was within the ambit of his employment, we also think that it is a justifiable conclusion that the accident can be fairly traced to his employment as a contributing and proximate cause. It is true that in going from one place to another, as was his duty, he naturally was compelled to assume risks not in any- wise connected with the trimming, planting, and treating of shade trees. But his employment extended further than this and necessarily obliged him in the discharge of his duties to go from place to place, and in so doing to assume the risks of traffic upon the streets. Where employes are compelled .during the course of their employment to travel about the streets it does not seem to us to be unreasonable to say that the danger of being struck by street-cars, automobiles, and traffic of every description should be taken account of. We think it must be said that the very nature of the occu- pation of the deceased itself exposed him to the unusual risk and danger of an accident of this nature, and believe that the instant case is readily distinguishable from Hopkins v. Sugar Co., supra, where this court said that: "No direct causal relation is claimed in the particular that the nature of the business of manufacturing sugar in itself exposes its employes to unusual risk or danger of accident of this nature." It appears that in that case the deceased at the time of the accident had finished his duties of the day and had re- TUTTLE vs. EMBURY-MARTIN LUMBER CO. 471 turned safely to his home city, Saginaw, and was injured be- cause of slipping on the ice while passing on foot along a highway. In this case the deceased received his injury dur- ing the hours of employment while actively engaged in per- forming work for his master in accordance with duties im- posed upon him by his employment. See Beaudry v. Watkins, 23 D. L. N. 378. We are of the opinion that the order and award of the Industrial Accident Board should be and is hereby affirmed. SUPREME COURT. SARAH TUTTLE, Applicant, vs. EMBURY-MARTIN LUMBER COMPANY, and LUMBERMEN'S MUTUAL CASUALTY COMPANY, Respondents. LOGGING INDEPENDENT CONTRACTOR. Applicant's husband, Ephriam Tuttle, was killed while hauling logs for respondent lumber company from the skidway to the mill. He was to be paid $2.00 per thousand for hauling the logs. The hauling was along a private road built and maintained by the lumber company, and his was one of a number of teams engaged in the work. The contract did not provide that he should haul any particular logs or any specific amount, and the manner of doing the work and the control was practically the same as the men and teams employed by the company in this work by the day or month. HELD: 1. That deceased was not an independent contractor, but an employe of the company. 472 MICHIGAN WORKMEN'S COMPENSATION CASES. Certiorari to the Industrial Accident Board. Proceeding by Sarah Tuttle against the Embury-Martin Lumber Company under the Workmen's Compensation Act for compensation for the death of her husband. Compensa- tion was awarded by the Industrial Accident Board, and re- spondents bring certiorari. Affirmed. James F. Shepherd, of Cheboygan, Attorney for applicant. Adams, Crews, Bobb & Wescott, Attorneys for respondents. STONE, C. J. The question involved in this case is whether Ephriam Tuttle, the deceased husband of Sarah Tuttle, the applicant, was an independent contractor, or an employe with- in the provisions of the Workmen's Compensation Act. The Industrial Accident Board found that his relation was that of employe, and from that finding the respondents have brought the case here by certiorari. Ephriam Tuttle, for whose death applicant claims compen- sation, was engaged in hauling logs for Embury-Martin Lum- ber Company, near Cheboygan, on January 8, 1915, and met his death by being thrown from a load of logs while he was driving- the team drawing the load between the skidway, where the logs were loaded, and the mill, where they were to be delivered. Tuttle was working for the company under the following agreement, as testified to, on direct examination, by E. L. Slade, woods superintendent of the company: "Mr. Tuttle came to the office in the afternoon I can't tell you the date it was in the neighborhood of ten days or two weeks before this accident occurred and wanted to haul logs, and he wanted to know how we were hiring and I told him. I told him we had all the teams by the month that we could use, on account of our barn room our barn was full and was hired ahead. He said he could stay at home and haul by the thousand, and I hired him to haul by the thou- sand, at two dollars a thousand, and we were to furnish the sleighs, and there was a certain pair of sleighs that the company had that he had hauled on the winter before, that had a short tongue, that he wished to use, and he came to town and brought those sleighs back TUTTLE vs. EMBURY-MARTIN LUMBER CO. 473 with him. He used those sleighs one day, on the Monday before * * * Later in the week Mr. Tuttle called me up by phone. He fixed our telephone line the wind blew it down, blew a tree across it or some- thing. Anyway, he fixed the line up voluntarily; he done it of his own accord, but he received his pay for it from the office; I guess he got some tobacco and things that the clerk gave him for his services. I guess he was coming over to the office on purpose to .see about hauling." Q. "What was the conversation over the telephone?" A. "He wanted to know if he could start hauling again, and I told him yes, to start on in the morning." Q. "When was that?" A. "That was the evening of the 7th." Q. "Was that all that was said over the phone?" A. "That is all I remember being said. It was a very short con- versation." Q. "Now, when hauling was done for you by the thousand feet, was it done on any particular days?" A. "No, it was any day they are a mind to come after a load." Q. "Or with any regularity at all?" A. "No, they were loaded in turn as they came." Q. "Were there any specifications made on a man's haul on any particular day?" A. "No sir." Q. "Did you determine did the Embury-Martin Lumber Company or anybody in its behalf determine the size of his loads?" A. "No sir." Q. "Who did?" A. "He did himself." Q. "Does the Embury-Martin Lumber Company determine the size of the loads hauled by your employes?" A. "It is simply up to the foreman and condition of his roads." Q. "Do you give does the Embury-Martin Lumber Company or any of its employes give persons who are hauling by the thousand feet any directions as to how they shall haul as to the manner of their hauling as to how rapidly they shall haul, or anything at all?" A. "One trip a day. We haul from that job one trip a day." Q. "You mean that is all you can haul?" A. "That is all you can haul one trip a day." Q. "But you don't have any requirements by which they haul one trip a day?" A. "No sir." Q. "Or any particular number of trips?" A. "No sir." Q. "You simply tell them to haul from the skid way?" 474 " MICHIGAN WORKMEN'S COMPENSATION CASES. A. "To the mill." Q. "To the mill?" A. "Yes sir." Q. "These people who haul by the thousand feet handle the logs at that end to where they are hauling, did they?" A. "Yes sir." Q. "They come and go where they please and haul such loads as they please?" A. "Yes sir." Q. "When are they paid?" A. "They are paid whenever they call for their money at the office." Q. "At any time?" A. "The load is scaled there and they are given a slip or scale sheet and they can get their money then or let it stand for a week. They can have it any night after it is scaled." Q. "That is the practice is it?" A. "That is the practice." Upon cross-examination the following testimony was given by this witness: Q. "Did you employ Mr. Tuttle to haul any particular number of thousand feet?" A. "No sir." Q. "Did you hire him to haul any designated lot of logs, I mean, outside of the general mass that you had out there?" A. "No sir." Q. "He didn't agree that he would haul one hundred thousand or fifty thousand, or any particular quantity?" A. "No sir; we didn't let any jobs of any kind in that way." Q. "Whose employes load the sleighs?" A. "Embury-Martin Lumber Company's." Q. "What would he, Mr. Tuttle, be doing I am taking him as one hauling by the thousand what would he be doing as the logs were loading?" A. "We load the sleighs with a jammer and they use the team on the cable at the jammer." MR. KENNEDY: "Whose team do you use?" A. "The team we are loading whosever team is on the sleigh." Q. "Did you use Mr. Tuttle's when he was there?" A. "Yes sir." MR. SHEPHERD: "So that Mr. Tuttle would be busy while the sleigh was loading, then?" A. "Yes, his team would be busy, and he would be busy, yes. The team they place on the sleighs their own, yes." Q. "He would be handling the team?" ' TUTTLE vs. EMBURY-MARTIN LUMBER CO. 475 A. "Yes sir." Q. "Who fastens the chains around the logs and sees that they are secure on the load?" A. "The laborers." Q. "Embury-Martin Lumber Company's employes?" A. "Yes sir." Q. "Mr. Liddy, for instance?" A. "Yes sir, there is three men in the gang." Q. "How many men usually ride on a load down town I mean in the course of business I dont mean anybody that might catch on?" A. "One man, the driver." Q. "Is there any difference in that regard as between men who are paid by the thousand and the men who work by the day?" A. "In regard to how many ride?" Q. "Yes." A. "Why no. That is his own option." Q. "You said the man handled the haul himself after the load was on the sleighs?" A. "Yes sir, after he left the skidway after he got on his load, why that was his load to go with he handled that to the mill. Q. "That was so of those who hauled by the thousand as well as those that worked by the day?" A. "Yes sir." Q. "So far as that was concerned there wasn't any difference be- tween the two classes of men?" A. "Not in regard to handling the load." * * * * * Q. "Let me ask this: Was this haul on which he was found dead on one of the Embury-Martin logging roads? Was that a road that was built by them?'' A. "Yes." Q. "For the purpose of hauling their logs from camp to the mill?" A. "Yes." Q. "At Cheboygan?" A. "Yes sir." Q. "It was not a public highway?" A. "No sir." Q. "Was there any other place for men to haul logs from your camps, except the mill at Cheboygan?" A. "No sir." Q. "And you didn't haul logs from any other spot to the mill, except from those camps?" A. "No sir." The man who loaded the sleighs, and was called the "top londer," testified, among other things, as follows: . 476 MICHIGAN WORKMEN'S COMPENSATION CASES. Q. "Did you put any logs on the sleighs of Mr. Tuttle?" A. "I did." Q. "When was that?" A. "The 8th of January the morning of the 8th." Q. "Do you know how many logs how many loads of logs he hauled that day?" A. "That was his first trip that he made to our gang." Q. "Who directed him where to get the logs?" A. "I couldn't tell you. I presume the foreman did though, it would be his place to." Q. "Was the team brought up to the loads, or did you roll the logs to the team?" A. "Well, the sleighs were set there, and what didn't roll we dragged up." Q. "The logs were in a certain place?" A. "They were on a skidway, yes sir." Q. "Whose logs were they?" A. "Embury-Martin Company's." Q. "Do you know who they were put on the skidway by?" A. "I do not, they were skidded before I went there." * * * * * Q. "Mr. Tuttle told you when to stop loading, didn't he?" A. "Sure." Q. "That is, he said when he had enough logs?" A. "Certainly." Q. "There were some men working there by the month and others working ha,uling by the thousand, were there not?" A. "Yes sir." Q. "There were about twenty-one or twenty-two teams there at that time hauling by the thousand, weren't there?" A. "I couldn't say for that." Q. "There were quite a number?" A. "Quite a number of teams?" Q. "They wouldn't necessarily, with any regularity, would they, that is, some might come one day and then not come for a day or so, and then come another day?" A. "Some that way, and some wouldn't." Q. "That is some would come on off and on?" A. "Yes, some of them would." Q. "And those that hauled by the thousand would determine for themselves how many logs they would haul, would they not?" A. "Yes, and also the whole of them tried Q. "Eh?" A. "The most of them." MR. KENNEDY: "That is you wouldn't load more on one team if" A. "If they didn't want to take it, I wouldn't try it." TUTTLE vs. EMBURY-MARTIN LUMBER CO. 477 Q. "Well, it is true isn't it, that if some one who was hauling by the day came up with a sleigh, or someone who was employed by the month or by the day, he wouldn't be allowed to go off with just a small load would he, with a few logs on?" A. "If I will be permitted I would like to explain, I can explain it better than you can ask the questions." Q. "All right, go on." A. "The morning he came there, being the first trip the foreman told me to put on a certain number of logs I asked him whether he was hauling by the thousand or by the day, and he told me he didn't know until he saw Mr. Slade; so I put on logs until I got the sleigh loaded." MR. KENNEDY: "They all got their loads at the same place?" A. "No, we had out other teams that morning, there was other teams to the other gangs." Q. "The logs were all from the same land and from the same company?" A. "Yes sir." It further appeared that Mr. Tuttle did not live in the camp as did the other men, but lived at home. He fed and cared for his own horses. The load tipped over a short distance from the skidway, and deceased was crushed between two logs and died from his injuries on the same day. The Embury-Martin Lumber Company k had three classes of men hauling logs from their camp to the mill at Cheboygan. The first class used company teams and the men were paid by the month ; the second class used their own teams, were boarded at the camp and were also paid by the month; the third class used their own teams and company sleighs, and were paid by the number of thousand feet of logs they hauled to Cheboygan. As already appears, the work of hauling logs, at the time and place where Tuttle was employed, consisted of loading the logs upon the sleighs, which was done by a loading crew at the skidway under the direction of the foreman or top loader. The logs were placed on the sleighs by an apparatus called a "jammer," which consisted principally of a wire cable run- ning through a block. A sleigh could only be loaded at a skidway where a jammer was set. The team on the sleigh 478 MICHIGAN WORKMEN'S COMPENSATION CASES. to be loaded was hitched to one end of the cable and the other to the logs to be loaded. The team was then handled and driven by the driver, whether working by the month or by the thousand, tinder the direction of the foreman or top loader in charge of the loading crew. The logs were then fastened on the sleighs by the loading crews. The driver then drove to Cheboygan with the load of logs. No one accompanied the driver on the road to the mill. Where the injury occurred Mr. Tuttle was using a road built and maintained by the Embury-Martin Lumber Company. At the mill the driver placed the load of logs wherever directed by the company's foreman. The logs were unloaded by an unloading crew. The person hauling by the thousand did nothing with respect to unloading unless he so desired. Sometimes he assisted in unloading, but it was not required of him. The manner in which the work of transporting logs from the skid ways at the camps to the mill was the same, whether the driver was paid by the month or by the thousand. Neither Mr. Tuttle, nor those Avho hauled by the thousand, agreed to haul any particular kind, quantity or designated load of logs. They took logs from the same general mass which the others hauled from. The vice-president of the company testified, among other things, that the foreman could prevent a man working by the thousand from taking a load if he so desired. Nothing was specifically said to Mr. Tuttle when he was employed about any custom among those who hauled by the thousand, nor was there any evidence that he knew of any custom. The appellants contend that the conditions surrounding Tuttle's relation with the Embury-Martin Lumber Company contain eight elements which marked him as an independent contractor, and not an employe; and that in cases of this character the courts of this State, and of England, and the Industrial Boards and courts in the United States, have d< termined that a man in Tuttle's relationship, as defined by TUTTLE vs. EMBURY-MARTIN LUMBER CO. 479 these eight elements, is an independent contractor. The eight elements are as follows: (1) Furnishing own equipment Tuttle used Ms own equip- ment, horses, etc. (2) Compensation by amount of work done Tuttle re- ceived |2.00 per thousand for the logs he hauled. (3) Control of Working hours Tuttle worked when he wished to and not otherwise. He could start work any time of the day. (4) Control of the amount of work done Tuttle could determine the size of the loads he hauled. (5) Control of the manner of the work Tuttle got his logs where he wished and was under no control while hauling. (6) Freedom from supervision Tuttle did not live in camp under the supervision of the foreman or other persons. He did not have to unload his logs as did the employes of the company. (7) Control and care of equipment. Tuttle controlled and cared for his own team and equipment. (8) Eight to hire substitute or assistant. Tuttle could have sent a substitute or another man with another team if he had one. It is urged by appellants that the distinction of the com- mon law, between an employe and an independent contractor exists under the Workmen's Compensation Act and it has been so held in other jurisdictions, citing Massachusetts, Cali- fornia, Illinois and rulings of State Boards; also Curtis v. Plumtree, (Court of Appeals of England) 6 B. W. C. C., 87, and the following Michigan cases are also cited: De Forest v. Wright, 2 Mich., 368; Riedel v. Moran, Fitzsimmons Co., 103 Mich., 262; Wright v. Big Rapids Door & Blind Mfg. Co., 124 Mich., 91; Lenderiiik v. Village of Rockford, i:>r> Mich., 531; Burns v. Michigan Paint Co., 152 Mich. 613; 480 MICHIGAN WORKMEN'S COMPENSATION CASES. McBride v. Jerry Madden Shingle Co., 173 Mich., 248, and numerous cases in foreign jurisdictions. The appellee calls attention to Sec. 5, Part 1 of the Work- men's Compensation law of this State, which provides that the following shall constitute employers subject to the pro- visions of the act: "Every person, firm and private corporation, including any public service corporation, who has any person in service under any contract of hire, express or implied, oral or written." * * * * The appellee further contends that there is not only suffi- cient evidence in the record upon which the Accident Board could properly find claimant's husband was "in service under a contract of hire," but also that under the rules of law he was a servant as distinguished from an independent contractor; that the testimony of Mr. Slade, the woods super- intendent, is to the effect that there was a contract of general employment. The following Michigan cases are cited by ap- pellee : Lewis v. Detroit, etc. Brick Co., 164 Mich., 489; Ripley v. Priest, 169 Mich., 383; and the following authorities are cited from other jurisdic- tions : Knicely v. W. Va. Midland R. E. Co., 17 L. B. A. (N. S.) 370, and note; State ex rel. Va. & Rainy Lake Co. v. District Court, 128 Minn., 43; 150 N. W. 211. The opinion in the last cited case is quoted from at length. Appellee's counsel urges that the eight elements set up by the appellants are not supported by the record, or are not controlling. We quote from appellee's brief: TUTTLE vs. EMBURY-MARTIN LUMBER CO. 481 (1) "Furnished own equipment. Tuttle used his own team and company sleighs. Under Lewis v. Detroit Vitrified Brick Co., supra, and State ex rel. Virginia & Rainy Lake Co. v District Court, supra, this factor is immaterial. Furnishing his own team was analagous to the laborer who used his own lights and explosives in the Lewis case, and the woodsman using his own tools in the Minnesota case." (2) "He was compensated by the amount of work done. Piece- work does not constitute the laborer who does it an independent con- tractor. Lewis v. Detroit Vitrified Brick Co., and State etc. v. District Court, supra; Knicely v. W. Va. etc. R. R. Co., 17 L. R. A., (N. S.) 371; Ripley v. Priest, 169 Mich. 383." (3) "Control of own working hours. This is not true. He could only work when and where the jammers were set. He could only haul one load a day and that is all anyone could haul from the camps to the mill in Cheboygan. He could only get a load when the load- ing crew gave it to him, and they could refuse him a load if the company wished." (4) "Control of the amount of work done. See Lewis v. Detroit Vitrified Brick Co. and the other cases cited. Like any other laborer he could quit. The employer could also discharge him. In the Lewis case the court held the plaintiff to be a servant notwithstanding 'They (the laborers) furnished lights and explosives, or the cost .of them,' and were generally masters of the time and the efforts they should make.' " (5) "Control of the manner of work. The statement in appellants' brief, 'Tuttle got his logs where he wished and was under no control while hauling,' is not borne out by the record as to getting the logs where he wished. He could only get logs at the skidways where the jammers were set. He did not control the manner of work done. Embury-Martin Lumber Company's woods superintendent testified: 'Q. And where they loaded was under your direction was it?' 'A. Yes sir, they couldn't load any other place only where we had our jammers set to load.' As to control while hauling no one controlled any of the drivers either by the month, day or thousand, except when loading or unload- ing. There is no difference in this respect between admitted employes of the lumber company, paid by the month, and Mr. Tuttle. 'You said the man handled the load himself after the load was on the sleighs?' 'A. Yes sir, after he left the skidway after he got on his load, why that was his load to go with he handled that to the mill.' 'Q. That was so of those who hauled by the thousand as well as those that worked by the day?' 'A. Yes sir. 61 482 MICHIGAN WORKMEN'S COMPENSATION CASES. 'Q. So far as that was concerned there wasn't any difference be- tween the two classes of men?' 'A. Not in regard to handling the load.' " (6) "Freedom from supervision. This is not true. At the only points where drivers came in contact with any necessity of super- vision, they were controlled and directed. They could only get loads where the jammers were set; they loaded the sleighs with their own teams under the direction of the employer's foreman or top loader, the employer's servants fastened the load on the sleighs, he drove over roads built and maintained by the employer to its mills at Cheboygan, where he was directed where to place the load for unloading. None of the drivers, either by the thousand or day or month unloaded or were required to assist in unloading. They could be controlled by the power of the employer to discharge. There is no testimony in the record to bear out the statement in appellants' brief: 'he did not have to unload his logs as did the employes of the company,' if by employes is meant drivers by the month. As far as living in the company's camps are concerned, living in camps or out of them does not bear on the question. The control of the means which the employer has over a servant does not go to the extent of controlling anything but the doing of the work which he has been engaged to do. One may be and is a servant of another without the control of the employer over his meals, lodging and personal conduct outside of working hours. I have failed to find any case anywhere, or any semblance of authority for the statement, that there is any rule or law that control of any- thing except work itself in which the laborer is engaged, has any bear- ing whatever on the question. As far as doing the work was con- cerned, that is, hauling logs to Cheboygan from these camps, there was no difference whatever between those who were paid by the day or month and Mr. Tuttle. Both were employed generally, although the rate of pay was different." (7) "Tuttle owned the team he used and as owner had the right to manage it subject to the direction of the employer while doing the employer's work. He drove the team in loading and went ahead and backed up as directed by his employer's foreman. Any pieceworker who uses his own tools naturally cares for them. Tuttle's tools were a team of horses." (8) "Right to hire substitute or assistant. This statement that Mr. Tuttle could have sent a substitute or another man with another team is not borne out by the record in any manner whatsoever. The contract between himself and the employer hereinbefore stated was for Tuttle to haul logs. No one else was mentioned. He, himself, per- sonally, with his team was hired to haul logs. He asked for work and it was given to him. He had no more right to send a substitute or employ assistants at his employer's expense than a ditch digger has who sends a man in his place. If the employer accepts the sub- TUTTLE vs. EMBURY-MARTIN LUMBER CO. 483 stitute, of course he would have to pay him, but the contract gave Tuttle no such privilege. If it did, however, Tuttle was killed and not a substitute or assistant. The testimony in the record that some men had more than one team hauling, or brought a load in and were paid for it, is beside the point. In one instance they made arrange- ments before hauling and in others they were volunteers whose labor was accepted and paid for." In the recent case of Gall v. Detroit Journal Co., 158 N. W., 36 we had occasion to examine this question, and many authorities in our own court and some from other jurisdic- tions are cited in the opinion of Mr. Justice Person. There is a vast amount of learning upon this subject. In the exami- nation of this question our attention has been called to more than one hundred cases in other jurisdictions. The copious note to Richmond v. Sitterding, 65 L. R. A., 445, and the notes to Messmer v. Bell, etc. Co., 133 Ky., 19; Vol. 19 Am. & Eng. Anno. Cas., 1, and Cochran v. Rice, (S. D.) reported in Am. & Eng. Anno. Cas., (1913-B) at page 570, will furnish an abundance of authority upon the subject. In some cases much stress is laid upon the fact that the work to be performed is of an indefinite amount subject to discharge and control in that regard. Others, whether the employment is of a general, independent character, like that of draymen and common carriers, becomes the controlling question. We are of the opinion that the test of the relation- ship is the right to control. It is not the fact of actual in- terference with the control, but the right to interfere that makes the difference between an independent contractor and a servant or agent, 26 Cyc., 1547. In our opinion there was such control over the work of Tuttle, by the company, as makes it inconsistent to say that Tuttle was an independent contractor. His work was limited by the right of the company to termi- nate it at any time, and it was for no definite period, or amount. The loading and unloading were under control of the company, both as to time and place. True, he was in charge of his team while going from the skidway to the mill, 484 MICHIGAN WORKMEN'S COMPENSATION CASES. but that was true of all the drivers, whether working by the month or the thousand. The most that can be said for the respondents is, that upon the evidence in the record, it might be for a jury to say, un- der proper instructions, whether the company participated and directed in the work of Tuttle to such a degree that the relation of master and servant existed, or whether he was an independent contractor. There was some evidence tending to show a custom. There was no evidence that Tuttle knew of any custom. Such evidence was admissible only on the ground that the parties were both cognizant of it, and must be presumed to have made their engagement with reference to it. There was no such evidence. Pennell v. Transportation Co., 94 Mich., 247. The real question in this case is, what was the relation which Mr. Tuttle sustained to the Embury-Martin Lumber Company ? In our opinion he was a person in service under employ- ment of that company, and comes within the provisions of the Workmen's Compensation law. Whether or not the re- lation of master and servant exists in a given case, under oral contract, is often a question of fact, or of mixed law and fact, and it is to be proved like any other question. In our opinion there was evidence in the case that warranted the Industrial Accident Board in reaching the conclusion which it did, and the proceedings of that board must be affirmed. RAMLOW vs. MOON LAKE ICE CO. 485 SUPREME COURT. MYRTLE RAMLOW, Applicant, vs. MOON LAKE ICE COMPANY, and OCEAN ACCIDENT & GUARANTEE COR- PORATION, LTD., Respondents. PROXIMATE CAUSE DELIRIUM TREMENS INTENTIONAL AND WILFUL MIS- CONDUCT. Applicant's husband, William Ramlow, was injured while in the employ of respondent ice company, the injury consisting of a severe fracture of two bones of his right leg just above the ankle. Two days after the injury he suffered an attack of de- lirium tremens and died. HELD: 1, That the fact that his system had been so weakened by intemperate habits that it was unable to withstand the effects of the injury, does not shift the proximate cause of his death from the injury to such intemperate habits. 2. That his failure under the circumstances of the case to inform the attending physician that he was a drinking man did not amount to intentional and wilful misconduct. Certiorari to Industrial Accident Board. Proceeding by Myrtle Ramlow against the Moon Lake Ice Company under the Workmen's Compensation Act for com- pensation for the death of her husband. Compensation was awarded by the Industrial Accident Board, and respondent brings certiorari. Affirmed. Hatch, McAllister & Raymond, of Grand Rapids, Attor- neys for applicant. 486 MICHIGAN WORKMEN'S COMPENSATION CASES. Klemhans, Knappen & Uhl, of Grand Rapids, Attorneys for respondents. BIRD, J. William Ramlow, husband of claimant, was an employe of the defendant, Moon Lake Ice Company, of Grand Rapids. On June 3rd, 1914, while attempting to remove a Imr from the axle of one of the company's wagons, he slipped and fell, causing a severe fracture of two bones in his right leg just above the ankle. He was removed to the hospital where the fracture was reduced and he was placed in bed. There was nothing unusual about his condition until the evening of June 5th, w^hen he suffered an attack of delirium tremens, and died on the following morning. Application was made by the widow for an allowance, and the same was granted at the rate of $6.40 a week for 300 weeks. (1) Counsel for the ice and insurance companies contend that the award should not have been made for the reason that the testimony shows that the attack of delirium tremens, and not the injury, was the proximate cause of his death. The record contains the testimony of four physicians who appeared to be qualified to speak on such matters, and they gave it as their opinion that the attack of delirium tremens was caused by the injury; further that it was not unusual for delirium tremens to develop about sixty hours after an injury, when the secondary shock sets in with pa- tients who had been in the habit of using alcoholic liquors. Two physicians who testified for the defendants, disagreed with this view, but the record, taken as a whole, is very persuasive that the deceased would not have developed de- lirium tremens when he did, had it not been for the injury and the shock which followed it. The fact that his system had been so weakened by his intemperate habit that it was unable to withstand the effects of the injury, does not there- by shift the proximate cause of death from his injury to his intemperate habit. McCahill v. N. Y. Transportation Co., 20 N. Y., 221. RAMLOW vs. MOON LAKE ICE CO. 487 It is said by counsel that this case is similar to that of McCoy v. Michigan Screw Company, 180 Mich., 454. The cases are dissimilar in the material respect, that in the case cited, the claimant by his own act, after receiving the in- jury, communicated gonorrheal germs to his eye by rub- bing it, in consequence of which, he lost the use of it. It was clearly his own act after the injury which caused the loss of his eye. We are of the opinion that the finding of the Board upon this question should not be disturbed. (2) A further contention is made that the conduct of Ramlow was unreasonable, amounting to wilful and inten- tional misconduct within the meaning of Section 12, Part II, of the Compensation Act. This is based upon the claim that deceased when asked by his attending physician if he was an alcholic, replied that he was not; that had he an- swered truthfully that he was, the treatment would have been different, and the attack might have been averted. Touching the habit of deceased in this respect, his foreman testified that he had known the deceased for 23 years, and that he had worked with him off and on for about 16 years, and that the deceased "used to take a drink once in a while, and sometimes quite often' 7 but that "he never saw him in a state when he thought he had been drinking while on duty, and that his drinking did not interfere with his work, and that during the sixteen years he had known him, he had not known him as a drinking man." There is nothing in the record to show that the .deceased understood to what extent a person must be addicted to the use of intoxicating liquors to become an alcoholic, neither is there anything to show that he knew that the question propounded had any bearing upon the treatment of his injury. We cannot say as a matter of law that the record discloses any wilful or inten- tional misconduct concerning his answer to the doctor's question. The extent to which he was addicted to the use of intoxicating liquors was a question of fact and the same having been determined by the Board, it is not within our 488 MICHIGAN WORKMEN'S COMPENSATION CASHS. power to review it. Boyne v. Storage & Cartage Co., 181 Mich. 278; Redfield v. Ins. Co., 183 Mich. 633. The award must be affirmed. SUPREME COURT. SIDNEY DYER, Applicant, vs. JAMES BLACK MASONRY & CONTRACTING COMPANY, and EMPLOYERS' LIABILITY ASSURANCE COR PORATION, LTD., Respondents. EMPLOYE INDEPENDENT CONTRACTOR CASUAL EMPLOYMENT. The applicant was injured while assisting in unloading glass. He was doing work for the principal contractors on the David Stott Building in Detroit, pursuant to a sub-contra6t which he held from them. He was doing the work of unloading the glass at the time of his injury pursuant to a verbal arrangement with such principal contractors to assist in such unloading from time to time, said principal contractors to pay him for the work so per- formed. HELD: 1. That the employment was not casual within the mean- ing of the Workmen's Compensation Act, the applicant being em- ployed to do a particular service recurring somewhat regularly with the fair expectation of continuance for a reasonable period of time. 2. That the work done was individual labor performed for respondent by the applicant and entirely outside the terms and scope of the glazing contract. Certiorari to the Industrial Accident Board. DYER vs. BLACK MASONRY & CONTRACTING CO. 489 Proceedings by Sidney Dyer against the James Black Masonry & Contracting Company under the Workmen's Com- pensation Act for compensation for injuries sustained. Compensation was awarded by the Industrial Accident Board, and respondent brings certiorari. Affirmed. Choate, Robertson & Lehman, of Detroit, Attorneys for applicant. Frederick T. Witmire, of Detroit, Attorney for Respond- ents. STONE, C. J. This case is before us upon certiorari to the Industrial Accident Board; the case in its progress having regularly reached the Board, which granted compensation to the claimant, from which order the respondent appeals. Claimant was injured December 10, 1914, at the David Stott Building in Detroit. He and his partner, John Ross, were, at the time of the accident, engaged in doing the glaz- ing on the building in question under the following written contract with the principal contractor: "Detroit, Nov. 19, 1914. "Sidney Dyer & John Ross, City. Gentlemen : We hereby accept your proposition for furnishing all labor and ma- terials necessary (with the exception of the glass) for glazing all the glass in the David Stott Building, as called for in the revised Specifications dated June 2nd, 1914 and the plans, for the sum of Three hundred and twelve ($312.00) payable on the completion of the work and the acceptance of the Architects, Marshall & Fox. It is understood between us that the glass is. to be furnished you at the site of the said building and you are to take it from there and glaze it. It is also understood that you are not to glaze any glass which is called for to be done by any other contractor rather than the glaz- ing contractors. The glazing contractors are Sidney Dyer and John Ross, working under the name of Dyer & Ross. It is mutually understood that the glazing contractors are to be 490 MICHIGAN WORKMEN'S COMPENSATION CASES. responsible and will replace all glass broken by them in handling or setting the glass. James Black Masonry & Contracting Co., By A. E. Black, (Signed) EAB : CVR Vice-President. Nov. 19, 1914, Accepted by Dyer & Ross, By Sidney Dyer (signed), Glaz. Contractors." The principal contractor finding that it was necessary in the progress of the work to have some person assist in, and look after the delivering of the glass at the building and see to the unloading of the glass, arranged with the claim- ant to do this work, from time to time, as the glass arrived, for which services claimant was to receive, and did receive payment from the principal contractor. The glass was in fact delivered, from time to time, at the building, under the contract between the principal contractor and the Pitts- burgh Plate Glass Company. The Industrial Accident Board found that in doing the work of glazing under said written contract the claimant and his partner were independent contractors. The Board further found as follows: "The arrangement made with the applicant under which he was to look after the delivery and unloading of the glass fairly includes giving such reasonable assistance in unloading as he might deem necessary. It cannot reasonably be restricted to merely overseeing and directing, but fairly included any reasonable assistance in un- loading the glass which was reasonably necessary to accomplish the object for which he was employed. The injury therefore which he received in assisting in the unloading arose out of and in the course of his employment. The arrangement - under which applicant was to look after and assist in the unloading of the glass was no part of his contract work. While it is doubtless true that the arrangement was made with him because he was doing the glazing on the building, it might have been made by the principal contractor with any other person who happened to be in the vicinity and who could conveniently do the work at such times as the loads of glass arrived at the building. It seems clear that the applicant was the employe of the principal con- tractor for the work in question, and that he is entitled to compensa- DYER vs. BLACK MASONRY & CONTRACTING CO. 491 tion for the injury unless the employment was casual within the meaning of the Workmen's Compensation law. It should be noted that this work was being done by Sid Dyer individually, and not by the firm of Dyer & Ross. It was billed as an individual account with Mr. Dyer and paid as such. The date of the contract for the glazing work was November 19, 1914; the injury occurred December 10, 1914; and it appears from the evidence that the work was not finished until the latter part of March. It also appears that the work to be done was periodic in its nature, that is, from time to time, as the loads of glass arrived at the building. The building was a large one and the time during which this work would have continued had it not been for the accident, would extend over a number of months. While it is true it was not steady work, or work that consumed a larger portion of his time, yet it recurred at intervals with the progress of the work and would have continued until the job was finished. Under these facts we think that the employment was not casual." There was testimony of the claimant to the following effect : Q. "Now, you were working there on this contract were you?" A. "Yes sir." Q. "While you were working on this contract state whether or not you were engaged to do other work?" A. "I was engaged to do' other work, that is Mr. Brennan asked me to look after the delivering of the glass, which was not in the contract. I told him. I says, 'Well,' I says He says, 'I am pretty busy and I would like to have you look after that work.' I said 'You will have to do the signing; you will have to sign for the glass when it is delivered.' " Q. "Did you help with the delivery of the glass?" A. "Yes sir." Q. "Do you know when the first load was delivered?" A. "Why, I cannot say when the first load was delivered. It was prior to December it was probably somewhere around Thanksgiving that the first glass was delivered there." Q. "Did you help with the delivery of that?" A. "Yes sir." Q. "Did you help unload it?" A. "Yes sir." Q. "Put it in the" A. "(Interrupting! Put it in the building." Q. "Was that part of your duty under this contract?" A. "No sir, it was not part of my duty at all." 492 MICHIGAN WORKMEN'S COMPENSATION CASES. Q. "Was Mr. Brennan around at that time when you were doing this?" A. "Yes sir, Mr. Brennan passed through the building while I was doing that." Q. "When did the second load come?" A. "Well, it might have been ten days after." Q. "Did you help with the delivery of that?" A. "Yes sir." Q. "Help unload it?" A. "Yes sir, I put my hands on the case steadying it." Q. "Was there help needed there at that time?" A. "Why, it is always in taking off glass, it requires somebody that is accustomed to that kind of work, for to do it, and they were kind of shorthanded, and I naturally helped out. I thought that was what Mr. Brennan wanted me to do, he asked me to look after the delivering of it." Q. "State whether or not you were injured at the time that you were assisting in unloading the second load?" A. "I was." Witness then proceeded to describe the injury. The substance of this testimony was repeated upon the cross-examination of the witness. No question was raised that Mr. Brennan, who was the superintendent of the re- spondent, made the arrangement with the claimant, as testi- fied to by the latter, that he had authority to do so, and that claimant was personally paid for such extra services by cheek signed in the name of the respondent, by Mr. Brennan as superintendent. The questions raised by the assignments of error relied upon by appellant are as follows: (1) Whether applicant was an employe within the mean- ing of the Workmen's Compensation Act, or one whose em- ployment was but casual, and whether the finding of the Industrial Accident Board that applicant was an employe at the time of the injury was justified by the evidence? (2) Whether applicant was an employe or independent contractor at the time of the injury? A part of Sec. 7 of Part I, of Act No. 10 of the Public Acts of 1912, defines the term "employe" as follows: DYER vs. BLACK MASONRY & CONTRACTING CO. 493 "Every person in the service of another under any contract of hire, express or implied, oral or written, * * * but not including any per- son whose employment is but casual or is not in the usual course of the trade, business, profession or occupation of his employer." (1) It is urged by appellant that the employment of claimant in doing the work in which he was engaged was but casual; and it is said that the word "casual," as used in the section quoted, should be taken in its ordinary sense. That there is nothing in the context of the law to indicate that the legislature intended to give it an enlarged or un- usual meaning. The following definition is quoted from 6 Cyc., 701: "Casual. Not designedly brought about; happening by accident or brought about by an unknown cause." The following definition is quoted from the laws of Ne- braska : "The word 'casual' shall be construed to mean 'occasional'; coming at certain times without regularity; in distinction from stated or regular." It is the claim of counsel for appellant that the instant case is controlled by Gaynor's Case, 217 Mass., 86; and Oheever's Case, 219 Mass., 244, which were decided under a statute exactly like ours. We are unable to agree with counsel that those cases are controlling of the instant case, and we think they are readily distinguished. In Gaynor's Case the deceased employe was a waiter em- ployed at the time his injuries were received by T. D. Cook & Company, Incorporated, a caterer, having a regular place of business in Boston. It had a contract to serve a banquet at Mount Holyoke College, South- Hadley, and on the day before engaged deceased for service at that banquet. Its agent told the deceased that if he would report at the South Station, Boston, the next morning, he could go to South Hadley at its expense with the other waiters. The wage for the service was to be $4.00, together with transportation 494 MICHIGAN WORKMEN'S COMPENSATION CASES. from Boston to South Hadley, and return. The deceased re- ported at seven o'clock on the morning of the next day, reached South Hadley at half-past eleven o'clock of the fore- noon, and was injured while preparing to serve the banquet. This was the first time he had ever worked for this employer. The work was finished at five o'clock in the afternoon, and the decedent then would have been entitled to $4.00, and would have been at liberty either to return to Boston at the expense of his employer, or to go elsewhere on his own ac- count. It was a part of the regular business of the em- ployer to provide and serve banquets, but for such service no men were regularly employed. The custom of the catering business is that such banquets are served by waiters secured for the particular occasion. Such a waiter might work for different employers on the same day, or for many different employers on successive days. The court, after stating the above facts, said: The point to be decided is whether the deceased was an employe as defined in the Workmen's Compensation act." Quoting language exactly like that contained in our own statute, the court further said: 4 'The crucial words to be construed are those contained in the ex- ception out of the class of employe of 'one whose employment is but casual.' The word 'casual' is in common sense. Its ordinary signification, as shown by the lexicographers, is something which comes without regularity and is occasional and incidental. Its meaning may be more clearly understood by referring to its antonyms which are, regular, systematic, periodic and certain." * * * "It would be difficult to conceive of employment more nearly casual in every respect than was that of the employe in the case at bar. The engagement was for a single day, and for one occasion only. It in- volved no obligation on the part of the employer or employe beyond the single incident of the work for four or five hours at the college. That would have had its beginning and ending, including the outward and returning journeys (but for the unfortunate accident), within a period of less than twenty-four hours. The relation between the waiter and the caterer had no connection of any sort with any events In the past. Each was entirely free to make other arrangements for DYER vs. BLACK MASONRY & CONTRACTING CO. 495 the future, untrammelled by any express or implied expectations of further employment." We think the. Gaynor case is so clearly distinguished from the instant case that further comment is unnecessary. In Cheever's Case, supra, a teamster, having three or four separate horses and teams, who was sent for whenever he was needed by the proprietor of a coal yard doing a retail coal business, and at such times was employed by such coal dealer for periods of a number of successive days, but "for no fixed duration of time and for no specified job," and while so employed "worked the same as any other (of the coal dealer's regular men,)" was injured in the course of such employment. It was held that he was not entitled to com- pensation, because his employment was but casual within the meaning of the Massachusetts statute then in force. It will be observed that in Cheever's case the employment was for no fixed duration of time, and for no specified job, thus distinguishing it from the instant case. Our attention is also called by appellant's counsel to numerous English cases. While they can all be distinguish- ed, it should be borne in mind that the English act differs from ours. In the English act is the following language: "Workman does not include a person whose employment is of a casual nature, and who is employed otherwise than for the purpose of the employer's trade or business." Under the English act, to constitute a defense it must ap- pear that the employment was of a casual nature, and that it was not in the usual course of the employer's trade, oc- cupation or profession. Our statute uses the word "or," where the English has the word "and," so that while under the English statute both defenses must exist together in or- der to defeat liability, it is sufficient under the Michigan act if either exists without reference to the other. Can it be said that the employment of the claimant in the instant case was purely a chance employment? Was it not 496 MICHIGAN WORKMEN'S COMPENSATION CASES. rather regular, stated or periodic? Judge Ruegg, in his work entitled ''Employer's Liability and Workmen's Com- pensation," in discussing the English cases at page 276, says: "A person who is employed one or more days in each week to do work which must be done, or. which it is known it will be advisable to do at these times, is not casually employed." "Indeed, whenever the same person under contract with an employer to do work at recurring times which must, or which it is known be- forehand it will be convenient to do at such recurring times, the em- ployment of such person it is believed, is not of a casual nature. * * * * To take one or two illustrations: If A employs B to work one day, or half a day a week in his (A's) private garden subject to his control, B is not casually employed; he is regularly employed at re- curring ascertained times." "Further, if, in the same illustration, the times are not strictly denned, but the contract is that B shall do the work required in the garden, as it is required from time to time, no fresh contract or en- gagement being contemplated between the parties, though a discretion may be left in the workman to select the time or times of work, it is believed the employment is not casual, for though the work may be of a casual nature, B is under contract to do it as and when it arises, consequently his employment is not casual." "Much must depend upon the certainty of the work recurring at times which, though they cannot be fixed definitely, yet can be fixed generally, and the work when it arises having to be done by the same person." In the instant case it is fair to suppose that the general contractor knew how much glass was to be delivered at the building. It became necessary in the interest of the busi- ness of the general contractor to have the delivery of the glass looked after, and supervised, and claimant was em- ployed for that purpose. That, as the glass was to be de- livered as the work progressed on recurring occasions, it certainly cannot be said any of the necessary work to be done in furthering the job or enterprises was casual, for it was sure to occur and recur in the operation of the job. There was an element of certainty in the work recurring at times which, though they could not be fixed definitely, yet were fixed generally by the agreement to look after and assist in unloading the glass as it arrived, from time to time. DYER vs. BLACK MASONRY & CONTRACTING CO. 497 In our opinion the employment of the claimant was not casual. It has been held that the employment is not casual within the meaning of that term as used in the Employers' Liability act, where one is employed to do a particular part of the service recurring somewhat regularly with the fair ex- pectation of the continuance for a reasonable period. Sabella v. Brezileiro, (N. J. L.) 91 Atl., 1032; Howard's Case, 218 Mass., 404. In Thompson v. Twiss, decided by the Supreme Court of Errors of Connecticut, on April 19, 1916, (97 Atl., 328,) un- der a statute like the English act, it was held that the term "casual employment" means occasional or incidental em- ployment, the employment which comes without regularity, and, if the employment be upon an employer's business for a definite time, as for a week, or a month, or longer, or if it be for a part of one's time at regularly recurring periods of time, it is not a casual employment, whether the contract of service or the nature of the service be regarded ; and hence a claimant, employed by defendant in the development of several tracts of land, who, if he satisfied his employer, would remain to the end of the work, requiring at least a number of weeks, was not engaged in a casual employment. (2) We think that the Industrial Accident Board was correct in its finding that the work being done at the time of the accident was not under the terms of the written con- tract of November 19, 1914, but was individual labor being performed by the claimant in the employment of the respond- ent, and entirely outside the terms and scope of the written contract. We find no error in the conclusion reached by the Industrial Accident Board, and its order is affirmed. 63 498 MICHIGAN WORKMEN'S COMPENSATION CASES. BY INDUSTRIAL ACCIDENT BOARD. DEPUTY SHERIFF AN OFFICER. In Button vs. Chippewa County the applicant was a Deputy Sheriff of Chippewa County, and while attempting to make an arrest in the regular discharge of his duty he was shot and killed. The sole question in the case is whether a deputy sheriff is an officer within the meaning of the Michigan Work- men's Compensation Law. Held, That he was an officer within the meaning of the Act, and that his dependents were not entitled to compensa- tion. LONGSHOREMEN EMPLOYES UNDER THE LAW. It was claimed by the employer that the longshoreman in- jured in unloading lumber from a vessel at Bay City was not an employe within the meaning of the law. That the company contracted with a business agent of the Longshoremen's Union to unload the cargo of lumber from the vessel at a certain stipulated price per hour for the men engaged. That the business agent was. to employ the men and perform the work, the employer merely to pay for the result. Held, That the men employed in unloading the vessels were employes within the meaning of the Workmen's Compen- sation Law, and that they were hired through the business agent of the organization for the purpose of doing the work in question. Compensation awarded. RULES FOR REPORTING OF ACCIDENTS. 499 PARTIAL DEPENDENTS NO DEDUCTION FOR BOARD. Where the wage earner is a minor child, and compensation is claimed by parents as partial dependents, no deduction is to be made for the board of such child. This position is supported by the decision of the Supreme Court of Massachusetts in the case of Gove vs. Royal Indemnity Company, 111 N. E. Rep. 702. RULES AND SYSTEM OF REPORTING ACCIDENTS AND THE MAKING AND KEEPING RECORD OF ADJUSTMENT AND PAYMENT OF COM- PENSATION. WHAT ACCIDENTS TO BE REPORTED. Rule 1. All accidents which result in disability continu- ing for more than one full working day shall be reported to the Board ; all accidents involving the loss of a member shall be so reported irrespective of the question of disability resulting; all accidents causing death shall be reported to the Board. WHEN TO BE REPORTED. Rule 2. All employers subject to the Compensation Law shall make reports to the Board weekly of all accidents to their employes which come within the classes of accidents designated in Rule 1. Such reports shall be on and in ac- cordance with the requirements of the weekly report blank, Form No. 5-a. 500 MICHIGAN WORKMEN'S COMPENSATION CASES. FIFTEENTH-DAY REPORT. ilule 3. In all cases where the disability resulting to the injured employe continues for more than fourteen days, a further report, on and in accordance with the requirements of report blank, Form No. 6, shall be made to the Board on the Fifteenth day of such disability: Provided, That in all cases where the accident causes the loss of a member or death, such report on Form No. 6 shall be made to the Board within ten days after such accident or such death, as the case may be. IMMEDIATE REPORT REQUIRED. Rule 4. In all cases where a claim for compensation is filed with the Board by an injured employe, if it appears that the report required by Rule 3 has not been made by the employer on account of disagreement as to the continuance of the disability or for any other reason, the Board shall thereupon require such employer to forthwith file a report of the accident on and in accordance with the requirements of blank Form No. 6. AGREEMENT IN REGARD TO COMPENSATION. Rule 5. When an agreement in regard to compensation is made between the employer and the injured employe or his dependents, the same shall be in writing on and in accord- ance with Form No. 10, and submitted to the Board for ap- proval. SUPPLEMENTAL REPORT. Rule 6. In cases where death occurs, a supplemental report shall be forthwith filed on Form No. 7, giving information as to dependents of deceased. RULES FOR REPORTING OF ACCIDENTS. 501 RECEIPTS FOR COMPENSATION. Rule 7. After an agreement in regard to compensation is made between the employer and the injured employe or his dependents, and approved by the Board, and also in cases where an award of compensation is made, receipts for weekly payments of compensation on Form No. 11, signed by such employe or his dependents, shall be filed in the office of the Board from time to time as such payments are made. FINAL REPORT. Rule 8. When the disability of the injured employe termi- nates; also, when the payment of the compensation for the loss of a member, or death, has been fully made, final report thereof shall be filed with the Board, on and in accordance with Form No. 7-a, together with settlement receipt on and in accordance with Form No. 12, signed by the employe or his dependents, as the case may be. Rule 9. Wherever the word "employer" is used in the foregoing rules, numbered from 1 to 8 inclusive, it shall be construed to cover the employer, also the insurance company carrying the risk, or the Commissioner of Insurance, as the case may be. HOW TO REPORT ACCIDENTS. On the following pages will be found a concrete case, dis- playing the correct method of reporting an accident, and also the procedure to be followed when payment of compen- sation is made. It will be observed that ALL accidents re- sulting in disability of one full working day or more are recorded on the weekly report form (No. 5-a). If incapacity exceeds fourteen days, a detailed report on form No. 6 will be filed on the fifteenth day, and the latter will be followed at an interval of not to exceed fifteen days by an agreement 502 MICHIGAN WORKMEN'S COMPENSATION CASES. in regard to compensation, executed on form No. 10. When an " Agreement in Regard to Compensation' 7 is reached, pay- ments are to be made weekly, and receipts taken for the same upon form No. 11, entitled "Keceipt on Account of Compen- station," which are to be filed with the Industrial Accident Board. When the final payment is made a "Settlement Ke- ceipt" is taken upon form No. 12, and this is submitted to- gether with form No. 7-a, "Final Report of Accident,' 7 show- ing that the case is closed and completing the files of the Board. Form No. 7 will be filed if death results so that in- formation may be had as to dependents. THINGS TO REMEMBER. Employers, and agents who are handling the reporting and adjusting of accidents, will facilitate the work of the In- dustrial Accident Board by paying careful attention to the "Rules and System for Reporting and Handling Accidents" and guiding themselves accordingly. The personal signature of the injured employe, or depend- ents to whom compensation is to be paid, is required and must always appear on the "Agreement in Regard to Com- pensation," "Receipts on Account of Compensation" and "Set- tlement Receipts." Typewritten signatures will not be ac- cepted, and all papers so signed will be returned for correc- tion. The mark of an employe who cannot write will, when properly witnessed, be accepted. An "Agreement in Regard to Compensation" must bear the signature of the injured man or his dependents. It must also bear the signature of the employer, and when such signature is made by an officer or agent of the employer, the signature of such officer or agent must be accompanied by an appropriate designation of his official position or agency. The execution of the agreement must be attested by two witnesses, as indicated in the form. RULES FOR REPORTING OF ACCIDENTS. 503 Incomplete or improperly executed papers will be returned for correction. Illegible signatures should be written in duplicate on re- ceipts and agreements to facilitate the work of the filing de- partment, so that confusion in the indexing of and reference to cases can be avoided. This will be helpful to employers as well as to the Board. ''First Report of Accident" submitted on Form No. 6 should give the correct name, address, (street and number) and age of the injured employe, as well as a concise descrip- tion of the accident, the nature of the injury, and all other information called for on the blanks. All of the other reports required should be equally full and accurate. The Board has prepared blanks for reports required to be made to it, specifying the information to be given by appro- priate spaces, headings and questions. ALL OF THESE MUST BE FILLED IN AND SUITABLY ANSWERED IN EVERY REPORT. THE MERE FILLING IN OF PART OF THE BLANK DOES NOT CONSTITUTE A REPORT AND WILL NOT BE ACCEPTED. The fundamental rule everywhere in the matter of reports is, that ALL QUES- TIONS MUST BE ANSWERED. The person making the report is not at liberty to select a few of the matters or to decide for himself those that will remain unanswered. If in a few instances (and these instances should be few), it is impossible to give the answer, it should be so stated in the report. WHEN COMPENSATION IS DUE SEE THAT THE IN- JURED EMPLOYE OR HIS DEPENDENTS RECEIVE SAME WITHOUT DELAY. SEE THAT INJURED EMPLOYE RECEIVES IMME- DIATELY THE MEDICAL AND HOSPITAL SERVICE TO WHICH HE IS ENTITLED UNDER THE ACT. 504 MICHIGAN WORKMEN'S COMPENSATION CASES. SAMPLE CASE, REPORTS, ETC. 1. Weekly Report Form. 2. Report of Accident. 3. Supplemental Report of Accident. 4. Final Report of Accident. 5. Agreement in regard to Compensation. 6. Receipt on account of Compensation. 7. Settlement Receipt. 8. Notice to Employer of Claim for Injury. Properly made on the blanks of the Board, the matter printed on the blank being in Roman type, and the jnatter written into such blanks in preparing the same for execution is printed in Italics. FORMS. 505 WEEKLY REPORT FORM.* For week ending May 16, 1916. Form No. 5A Date received (Do not fill in.) Name of Employer Sherwood Motor Company, Address (Street and Town) 767-73 Water Street, Franklin, Michigan Nature of Business Motor Manufacturing Signature of person making report F. M..CRANDELL Position Chief Clerk. Date of Injury . Name. Nature of Injury. Occupation. i Time lost Days. Medical Expense. Accidents Reported for the First Time. 6/12 Alex Sherbrook Broken Ribs Trucker 40 4 $35 5/15 John Flanagan Strain of Left Wrist Bench Hand 20 1 00 5/13 E. II. Gladstone Cut on 4th finger Drill Press Man 18 2 1 . | \ . Accidents Reported on Previous Weekly Report, Disability Continuing (but less than fifteen days.) 0/4 John K. Ledyard Contused right foot Grinder 29 12 $45 5/6 Samuel Reed Broken Arm Tester 35 10 65 5/5 Edward Murray Broken Leg Trucker 19 11 48 A ccidents Previously Reported but included here for the purpose of giving Medical Expense which we were unable to furnish at date of former report. 5/11 R. M. Huff Lacerated Scalp Foreman 45 5 94 I FORWARD WEEKLY TO INDUSTRIAL ACCIDENT BOARD, LANSING, MICH. 506 MICHIGAN WORKMEN'S COMPENSATION CASES. REPORT OF ACCIDENT WHERE COMPENSATION IS INVOLVED. Form No. 6 is to be filed only in compensation cases, i. e., when temporary disability has exceeded fourteen days, or when an accident results in the loss of a member, or in death, or permanent disability. When No. 6 is filed, it should be submitted promptly on the fifteenth day following the injury, and it should be followed at an interval of not to exceed fifteen days by an ''Agreement in Regard to Com- pensation" on form No. 10. When form No. 6 is filed the Board will take notice that compensation is involved and request for an agreement in regard to the same will be made if form No. 10 is not then on file in the office of the Industrial Accident Board. FORMS. 507 Form No. 6. Date received (Do not fill in.) MICHIGAN INDUSTRIAL ACCIDENT BOARD. Report of Accident. (To be made only in cases involving loss of a member, or death, or disability continuing more than fourteen days.) 1. Name of employer Sherwood Motor Company 2. Address of employer 767-73 Water Street, Franklin, Michigan 3. Nature of business M-otor Manufacturing 4. Location of plant or place of work where accident occurred, if not at office address Same as No. 2 5. Name of injured employe John K. Ledyard 6. Address of injured employe (including street No.) 303 Main Street, Franklin, Mich 7. Occupation of injured Grinder 8. Department or branch of work No. 8 of Shops 9. Was this regular occupation? Yes 10. If not, state regular occupation 11. How long so employed? 16 months 12. Age 29 yrs 13. Sex Male 14. Place of birth England 15. Single, married, widowed or divorced Married 16. Number of children under 16 years Three 17. Date of accident May 4, 1916 18. Hour of accident ... .3 P. M. 19. Hour injured person began work that day 7 A. M 20. Was full wage paid for day of injury? Yes 21. Wages or average earnings per day . . . . S3 . . . . 22. Working hours per day . . 9 hrs. 23. Days worked per week Six >. 24. Place of accident in detail Department No. 8, Sherwood Motor Company Shops 25. Cause and manner of accident Large piece of steel fell on his foot, crushing same .... 26. Nature and extent of injury Severe contusion of right foot, bones of second and third toes broken 27. Name and address of attending physician E. J. Parker, 121 Atwater St., Franklin 28. Was injured taken to hospital, if so, give name and address? City Hospital Saginaw Street 'Signature of person making out report F. M. CRANDELL (Original signature in ink required, otherwise will be returned.) Position Chief Clerk (State clearly your position, official or otherwise, with the employer or insurer.) Date of report May 18, 1916 INSTRUCTIONS. The time for making this report in cases where the accident involves the loss of a member, or death, is within ten days after the accident. Where the accident results in disability only, this report is to be made on the fifteenth day after the accident. In case the accident causes the loss of a member, state exactly what, and the precise point of amputation: For example, the index finger of the right hand at the second joint, or the left arm at the elbow; the right eye, etc. ANSWER THE QUESTIONS ON THIS BLANK FULLY. INCOMPLETE OR INDEFINITE REPORTS WILL BE RETURNED FOR CORRECTION. 506 MICHIGAN WORKMEN'S COMPENSATION CASES. SUPPLEMENTAL REPORT. The following form, No. 7, "Supplemental Report of Ac- cident," is to be submitted in addition to form No. 6 if death results so that knowledge as to names of all known depend- ents and such other information as desired may be on record in the offices of the Industrial Accident Board. Form No. 7. Date received File No. of accident (Do not fill in.) (Do not fill in.) MICHIGAN INDUSTRIAL ACCIDENT BOARD Supplemental Report of Accident 1. Name of employer Sherwood Motor Company 2. Address of employer 767-73 Water Street, Franklin, Michigan 3. Name of injured person Peter Jones 4. State whether injury resulted in death, or in temporary, partial or total disability Death 5. If at hospital give name and location City Hospital, Saginaw St., Franklin- 6. If not yet resumed work, state probable period of further disability 7. Did you furnish all medical aid required during first three weeks? 8. Amount of compensation paid to date 9. No. of weeks 10. Has injured employe returned to work? 11. If so, give date 12. Date of accident May 4, 1916. 13. If injury resulted in death, give names, ages, relationship and address of ALL dependents: Name. Age. Relationship. Address. Mary Jones 3d Wife Franklin, Michigan . . George Jones 13 Son Franklin, Michigan . . Muriel Jones 6 Daughter Franklin, Michigan . . 14. Signature of person making report F. M. C RAN DELL 15. Position Chief Clerk Date of report May 18, 1916. The report called for in this blank is required to be made one month after first report is sent in. Use this form for final report if death results during interim. INSTRUCTIONS. In case the accident causes the loss of a member, state exactly what, and the precise point of amputation: For example, the index finger of the right hand at the second joint, or the left arm at the elbow; the right eye, etc. ANSWER THE QUESTIONS ON THIS BLANK FULLY. INCOMPLETE OR INDEFINITE REPORTS WILL BE RETURNED FOR CORRECTION. FORMS. 509 REPORT AT CLOSE OF CASE. "Final Report of Accident" is to be sent in after the last payment of compensation is made and is to accompany the "Settlement Receipt." In addition to giving the date of ac- cident and date of return to work it will also contain in- formation as to the total amount of compensation paid and the total medical and hospital cost. The latter is no incon- siderable item in the cost of administering a compensation law and for statistical purposes in displaying total costs is invaluable and should therefore never be omitted. Form No. 7 A. Date received File No. of Accident (Do not fill in.) (Do not fill in.) MICHIGAN INDUSTRIAL ACCIDENT BOARD Final Report of Accident. 1. Name of employer Sherwood Motr Company 2. Address 757-75 Water St., Franklin, Mich 3. Name of person injured John K. Ledyard 4. Occupation Grinder ; 5. Wages 18.00 per week 6. Total amount of compensation paid $81 .00 7. Number of weeks Nine 8. Total medical and hospital cost $45.00 (Exclusive of services of company surgeon.) 9. Date payment completed July 6, 1916 10. Date of accident. ... May 4, 1916. . 11. Date of return to work. .July 6, 1 91 6. 12. Signature of person making report F . M. CRANDELL 13. Position Chief Clerk 14. Date of report July 8, 1916 AGREEMENT. The "Agreement in Regard to Compensation" is to be ex- ecuted in all cases involving compensation. If payment is to be made for specific indemnity, such as the loss of a finger, etc., so specify giving thereon the number of weeks involved. If injuries other tham specific loss have been sustained, 510 MICHIGAN WORKMEN'S COMPENSATION CASES. specify that payment of compensation will be made during period of disability. Specific loss is not limited to amputa- tion. There may be permanent loss of function resulting from the injury, and agreement should cover such permanent loss. Form No. 10. AGREEMENT IN REGARD TO COMPENSATION.* We John K. Ledyard (Name of the injured employe or dependents) residing at city or town of Franklin, Mich and . . ^ Sherwood Motor Company (Name of employer, insurance company or commissioner of insurance) have reached an agreement in regard to compensation for the injury sustained by said employe while in the employ of Sherwood Motor Company Franklin, Michigan (Name and address of employer) The time, including the hour and date of accident, the place where it occurred, the nature and description of the injury, and other cause or ground of claim, are as follows: The accident occurred May 4, 1916, 10:30 A. M. Department No. 8 Sherwood Motor Company Shops. A large bar of steel fell on the foot of the injured causing a seiere con- tusion, the bones of the second and third being broken , The terms of the agreement follow: The average weekly wage being Eighteen ($18.00) DOLLARS, it is agreed that compensation be paid at the rate of Nine ($9.00) ' DOLLARS, per week, during disability ( ) (If permanent injury results cross out "disability" and insert specific number of weeks) in accordance with the provisions of the Michigan Workmen's Compensation Law. WITNESS. (2 witnesses required when signature is made by mark) M. R. REMINGTON JOHN K. LEDYARD. . . . ..120 John St., Franklin, Mich (Signature of employe or dependent) A. R. BLAKSLEY SHERWOOD MOTOR CO.:. . .9n Oenetee .. Fr.Min, Mic* . . (N.m.j* em^ye^. ^insurance mission) By J. C. SHERWOOD, Secy (Signature of agent or representative) Secretary (Position) Dated at Franklin, Michigan this. . 18th. .day of. . May. . . .1916. *NOTE If the employer, or the insurance company carrying such risk, or Com- missioner of Insurance, as the case may be, and the injured employe reach an agreement in regard to compensation under this act, a memorandum of such agreement shall be filed with the Industrial Accident Board, and if approved by it, shall be deemed final and binding upon the parties thereto. Such agreement shall be approved by said board only when the terms conform to the provisions of this act Section 5, part III. AGREEMENT NOT ACCEPTED UNLESS WITNESSED AND SIGNED IN INK. FORMS. 511 COMPENSATION RECEIPTS. "Receipts on Account of Compensation" are to be taken when payments are made, the same to be filed with the In- dustrial Accident Board. Form No. 11. RECEIPT ON ACCOUNT OF COMPENSATION. RECEIVED OF Sherwood Motor Company the sum of (Name of employer, insurance company or commissioner of insurance.) Nine dollars and No cents being the proportion of the weekly wages of my* self from the 18th day of May 1916, to the 25th day of May 1916, under the Michigan Workmen's Compensation Law, subject to review by the Industrial Accident Board, said accident occurring on the fourth day of May , 1916, while in the employ of Sherwood Motor Company, Franklin, Michigan $ 9.00 JOHN K. LEDYARD Witness M. R. REMINGTON (Signature of employe.) (Signature.) 303 Main Street Address 120 John St., Franklin, (Street and number.) Mich Franklin, Michigan Date. . '.'.I: May 26^1916. \\\\\" ".'.*.'". (City r ^^ If the employer, or the insurance company carrying such risk, or commissioner of insurance, as the case may be, and the injured employe reach an agreement in regard to compensation under this act, a memorandum of such agreement shall be filed with the Industrial Accident Board, and, if approved by it, shall be deemed final and binding upon the parties thereto. Such agreement shall be approved by said board only when the terms conform to the provisions of this act. Section 5, part III. *Self, husband, or other, as the case may be. RECEIPTS NOT ACCEPTED UNLESS WITNESSED AND SIGNED IN INK. 512 MICHIGAN WORKMEN'S COMPENSATION CASES. RECEIPT WHEN LAST PAYMENT IS MADE. The " Settlement Receipt" is evidence, when signed by the recipient of compensation and a witness, that all payments have been made in accordance with the "Agreement in Re- gard to Compensation," and should contain not only the amount for the current week, but also the entire amount paid by the employer as relating to the particular accident. This receipt should be accompanied when sent to the Board by a "Final Report of Accident," form No. 7-A. Form No. 12. SETTLEMENT RECEIPT. This receipt means a final settlement. Do not sign it unless you intend to end payments of compensation and close the case. RECEIVED OF Sherwood Motor Company (Name of employer, insurance company or commissioner of insurance.) the sum of Nine dollars and No cents, making in all, with weekly payments already received by me, the total sum of 81 dollars and 00 cents in settlement of compensation under the Michigan Workmen's Compensation Law, on account of injuries suffered by my* self on or about the fourth day of May , 1916, while in the employ of Sherwood Motor Company, Franklin, (Name of employer, city, or town, street and number.) Michigan subject to review and approval by the Industrial Accident Board. Witness my hand this eighth day of July , 1916. Witness A. R. BLAKSLEY , . . JOHN K. LEDYARD (Signature of employe.) Address 917 Genesee St., Franklin, _ .303 Main Street Mich (Street and number.) Franklin, Michigan (City or town.) If the employer or the insurance company carrying such risk or commissioner of insurance, as the case may be, and the injured employe reach an agreement in regard to compensation under this act, a memorandum of such agreement shall be filed with the Industrial Accident Board, and if approved by it, shall be deemed final and binding upon the parties thereto. Such agreement shall be approved by said board only when the terms conform to the provisions of this act. Section 5, part III. *Self , husband, or other, as the case may be. RECEIPT NOT ACCEPTED UNLESS WITNESSED AND SIGNED IN INK. FORMS. 513 NOTICE TO EMPLOYER OF CLAIM FOE INJURY. The following form No. 5, "Notice to Employer of Claim for Injury" is to be filled out by the injured employe or his dependents and one copy served upon the employer and a copy mailed to the office of the Board within the time limits noted at the foot of the blank. Form No. 5. NOTICE TO EMPLOYER OF CLAIM FOR INJURY Under Act No. 10 of Public Acts Extra Session 1912. (Employers' Liability and Workmen's Compensation Law.) To Sherwood Motor Company (Write name of employer plainly on above line.) 767-73 Water Street, Franklin, Michigan (Write address of employer plainly on above line.) You will take notice that according to the provisions of Act No. 10 of Public Acts, Extra Session 1912 John K, Ledyard hereby makes claim for com- pensation for injury received by Him while in your employ. Name of employe John K. Ledyard Postoffice address 303 Main Street, Franklin, Michigan The accident occurred the 4th day of May 1916, at Franklin , Michigan. The nature of the injury is as follows : Severe contusion of right foot bones of second and third toes broken Signature ". . .JOHN K. LEDYARD.. . . Address SOS Main Street, Franklin, Mich Dated at Franklin, Michigan .... this. . . .18th. . . .day of . . . .May. . .,1916. NOTE This notice should be filled out by injured employe or some one in his behalf. In case of death of employe notice is to be filled out by dependents, or some person in their behalf. Notice of accident should be served on the employer within three months. Claim for compensation should be made within six months by delivering a copy of the above notice to employer personally or by registered mail. FILL OUT IN DUPLICATE. HAND OR MAIL ONE COPY TO EMPLOYER, MAIL THE OTHER COPY TO THE INDUSTRIAL ACCIDENT BOARD, LANSING, MICHIGAN. 65 INDEX. INDEX. ABILITY TO EARN : Page Compensation for partial disability, based on 352 Same Wages, no effect on specific indemnity 17 Same Wages, with partial loss of one eye 206, 214 ACCELERATION: Of condition of arterial sclerosis 39 Heart condition, not due to physical injury 319 ACCEPTANCE OF ACT : When effective XII ACCIDENT: As distinguished from injury 338 Assault on teamster held to be 464 Definition of 125 Hernia by, is injury within meaning of act 344 Hernia must have essentials of 1 Is controlling word in act 125 Sets in motion agencies which ultimately give right- to compensa- tion 390 What to be reported, rule relative to 499 When to be reported, rule relative to 499 ACT: Acceptance of, when effective XII Applies to all who suffer disability from accidental injury 11 As to filing of claims, not technically construed 92 Does not apply to those injured outside of state 336 Does not automatically apply to constitutional bodies 102 Does not include all personal injuries 125 Does not include occupational diseases 125 Does not provide for percentage of loss of vision 206 Giving right of election, not unconstitutional 77 Held to be constitutional XI Is in derogation of common law 267 Municipalities, subject to XII Officer, no compensation 231 Repeals all acts or parts of acts inconsistent with 72 Scope of, compensation for accidental injuries 125 518 MICHIGAN WORKMEN'S COMPENSATION CASES. ACT. Con. Page Title of, includes municipalities 72 Unconditional acceptance, effect of 7 ADDITIONAL COMPENSATION: Awarded on re-opening of case 378 Board has authority to award 352 Due employe, on proofs submitted 48 ADMINISTRATOR: Compensation accrued at death, payable to 32 Current compensation, not payable to 420 AGREED STATEMENT OF FACTS: Case submitted on 330 Submitted in 244 AGREEMENT: Attempt to reach, prerequisite to arbitration 352 Death after approval of, new right of action 430 In regard to compensation, right to review 352 In regard to compensation, rule relative to 500 Rule relative to 405 To pay when approved, equivalent to award 285 When not binding or final 37& AGRICULTURAL COLLEGE: Constitutional Body 17, 98 APPEALED TO SUPREME COURT: Rule as to settlement of return to writ 409 APPLIANCES: Duty of employe to minimize injury by aid of 214 APPROVAL BY BOARD: After, case may be re-opened on showing 378 Agreements for compensation must have 352 Of acceptance of law effect of XII Of agreements, legal equivalent of award 285 Settlements for compensation must have 57 APPROVAL OF AGREEMENT: Board may review after 352 By Board, legal effect of 285 Not bar to re-opening' and review 370 ARBITRATION HEARINGS: Committee may determine facts upon inference 167 Where applicant does not appear 426 ARBITRATORS: Selection of. . 404 INDEX. 519 ARISING OUT OF: Page Accident causing death on premises during noon hour 250 Assault on street laborer whose duty required him to move teams in the street 464 Barnyard infection, claim not sustained 38& Circumstantial evidence justified finding that 164 Coniraction of lead poisoning, not acc'dent ; 125 Death by drowning 21 Death by falling wall 311 Death by lightning stroke 194 Death by suffocation 370 Death caused by electrical shock 244 Death caused by injury while descending from roof 175 Death of coal miner 267 Death of engineer while running elevator 154 Death of engineer resulting from boiler explosion 222 Death resulting from arterial sclerosis 302 Death resulting from septic pneumonia 259 Death, result of injury on way to time clock 279 Death from shock unaccompanied by physical injury 319 Definition of 185 Delivery boy run down by truck while riding bicycle in street, is . . 439 Disability from inhalation of cyanide fumes 56 Falling on ice 185 Fall resulting in concussion of brain 219 Fractured femur as a result of kick by horse 7 Hernia as result of strain 447 Hernia, personal injury by accident 344 Hernia occurring without strain, not 1 Hernia with essentials'of accident, is 1 Hysterial neurosis, following injury 61 Injury resulting from street risk 467 Injury to eye 200 Injury to eye, due not to senile cataract, but to accident 285 Injury to eye, followed by gonorrheal infection 214 Injury to foot 204 Injury to intestines resulting in death 108 Injury to leg of street sweeper ." 65 Injury to teamster on street 464 Injury received in unloading glass 52 Insurer not liable for injury, when 435 Loss of eye did not 295 Loss of leg and other injuries 300 Molder injured assisting in repairing crane, not 362 Partial paralysis due to over-exertion and temperature of room unusually high 35 520 MICHIGAN WORKMEN'S COMPENSATION CASES. ARISING OUT OF. Con. Page Pneumonia following injury 248 Recovery from injury, retarded by latent disease 431 Rupture of femoral artery, result of strain 241 Slipping on ice, generally not 14 ARTERIAL SCLEROSIS: Condition of, acceleration by heat and exertion 39 Follows injury to finger 302 ASSAULT: Injury by, held not arising out of employment 308 On teamster employed in street work, held to be 464 ATTORNEY FEES: Right to determine and direct payment of 45 ATTORNEY, POWER OF: How to be executed 492 Executed within six months but delivered afterwards 29 AVERAGE WEEKLY WAGES: How determined 267 Method of computation in mining industry 267 Of molder while employed in veneer room of factory 461 Rule to be applied in determination of 344 AWARDS: Rule relative to 405 Blank forms 505 BLINDNESS: (see eye injury) Compensation for 100 weeks for loss of only eye 200 BOARD: No deduction to be made for, of minor child 499 BOARD (see Industrial Accident Board) : BUKDEN OF PROOF: Meaning of 217 On applicant to show that the accident arose out of employment . . 250 On employer, where natural and reasonable inference is contrary evidence of deceased not available and natural inference tends to support claim of dependent 167 Rests upon claimant 295 BURIAL: Right of, belongs to next of kin, relatives and friends 325 BURIAL EXPENSES: Employer has no right to arbitrarily fix 325 INDEX. 521 CAPACITY TO EARN : Page Does not affect right to specific indemnity 17 Same wages, precludes award based on percentage of loss of vision 206 CASES: Postponement of 404 CASUAL EMPLOYMENT: Definition of 488 Not applicable to municipalities or state employes 98 Where work is intermittent, but occurs at intervals, not 52 , 488 CATARACT: Condition of eye, not due to senile 285 CEREBRAL ARTERY: Rupture of, from over-exertion and heat 35 CERTIORARI, RETURN TO WRIT OF: Findings in, taken as final in absence of fraud 285 Must be taken as true by 'the Supreme Court 250 Practice in settling, rule governing 409 CHAIN OF CAUSATION: Arterial sclerosis follows injury to finger 302 Fall to floor, resulting in concussion of brain 219 Gonorrheal infection following injury to eye 214 Hysterical neurosis following injury 61 Pneumonia as result of injury 248 Septic pneumonia following injury to finger 259 CIRCUMSTANTIAL EVIDENCE (see Evidence): Sufficiency of, to justify findings 370 That death arose out of employment 164 That gonorrheal germ entered eye as result of accident 214 CIRCUIT COURT: Agreement to pay compensation, approved by Board is legal equivalent of final award, to enforce recovery in 285 Judgment in, by ex parte action of respondent, does not affect right to additional compensation 48 CLAIM: And notice, act supersedes city charters 65 , XII Cannot claim both compensation and damages 63 Evidence insufficient to establish 388 Filed by attorney within statutory period, sufficient 92 Not necessary that claim be filed by authorized agent 89 CLAIM FOR COMPENSATION: Filing with Board and transmission by Board to employer suffi- cient ! 25 Injury to eye not valid, exists until eye is total loss 390 522 MICHIGAN WORKMEN'S COMPENSATION CASES. CLAIM FOR COMPENSATION. Con. Page Made by letter to respondent company within time required by law .. 7 Physical incapacity to make 426 Provisions of charters, as to, superseded by Act 57 COALMINING: Determination of average wages in, industry 267 COMMON LAW RIGHTS: Employe may elect, where injury is caused by third party 63 COMPENSATION: Awarded after settlement receipt and case re-opened 352 Awarded during disability as result of injury to leg 442 Awarded for death as result of fall from roof 179 Awarded for injury sustained while on way to punch time clock . 279 Awarded for death by suffocation 370 Awarded for death by pneumonia following injury 248 Awarded for death by septic pneumonia following injury to finger. . 259 Awarded for death from arterial sclerosis 302 Awarded for death as result of concussion of brain 219 Awarded for death of delivery boy 439 Awarded for death of employe returning home 164 Awarded for death of teamster 471 Awarded for injury the result of strain .241, 248 Awarded for hernia 1,350 Awarded for loss of leg 300 Awarded for loss of toes 204 Awarded for loss of use of member 17 Awarded illegitimate children 453 Awarded mother for death of son 244 Awarded sister as partial dependent 209 Awarded teamster injured by assault 464 Awarded widow as partial dependent 222 Awarded widow of employe of municipality 51 Board given jurisdiction to review payment of 48 Cannot be awarded for percentage of specific indemnity 378 Depends on injured's earning capacity in case of partial loss of vision 208 Denied for death by accident outside scope of employment 154 Denied for death as result of fall on street 185 Denied for death as result of lightning stroke 194 Denied for death by accident on premises during noon hour 250 Denied for death caused by shock in the absence of physical inj ury 319 Denied for death of deputy sheriff 498 Denied for loss of eye from gonorrhea 295 Denied for injury of eye, remaining sight being 10% normal. . . . 214 INDEX. 523 COMPENSATION.-Con. Page Denied for total disability resulting from loss of only eye 200 Denied in case of injury from barnyard infection 388 Denied molder injured while assisting in repairing crane 362 Denied mother for death of son 192 Denied to employe of State Board of Agriculture 104 Denied when disability caused by cyanide fumes 56 Denied where injury occurred out of State 336 Denied widow of officer (policeman) 231 Denied widow who is ward of State 453 For loss of members does not depend on loss of time 411 Insurance company held for payment of 311 Method of computation 267 Method of paying compensation for loss of more than one finger. 419 No claim for, exists until eye is total loss 390 Not limited to loss of foot 442 Not payable to administrator 420 Paid employe previous to death, deducted from award in favor of widow 57 Payable for accidental injuries 125 Petition to be relieved of payment of, denied 11 Petition to stop, denied -. 285 Taxes may be levied by municipalities to pay 77 CONCLUSIVELY PRESUMED: Daughter living with relatives, held not 453 Mother, not 192 Sister, not 206 Wife confined in insane asylum, held not 453 Wife living apart at time of injury, not 222 CONFINEMENT, IN PRISON: If injured during, not entitled . . 397 CONSULS: Status of foreign 423 ' CONSTITUTIONAL LAW: The Act as relates to constitutional bodies 102 The Act as relates to municipalities 77 CONTRACT: Written, construed in connection with surrounding circumstances 311 CONTRACT OF HIRE: Evidence will sustain finding of 154 Required employe to be ready to respond at all times 167 Surrounding circumstances to be taken in connection with 311 CONVICTS: Injured during imprisonment, not entitled 397 . ; 524 MICHIGAN WORKMEN'S COMPENSATION CASES. CORPORATION: Page Officer of may be employe 422 CORPORATION, NOT FARMER: When running farm is part of its manufacturing business 7 DEATH (see Fatal Injury) : As a result of boiler explosion 222 As result of fall 179 By drowning 21 Due to street risk 467 From arterial sclerosis following injury to finger 302 From concussion of brain as result of fall 219 From lightning 194 From peritonitis, not due to injury 32 From pneumonia due to injury 108 From pneumonia following injury 248 From septic pneumonia as result of injury to finger 259 From shock, unaccompanied by physical injury 319 From suffocation did arise out of employment 370 If result of the accident, new right of compensation arises to de- pendents 430 Not result of accident arising out of employment 185 Oh premises, going to dinner 250 Performance of duty imposed by master is proximate cause of . . . 282 DEDUCTION: Compensation paid before death 57 No deduction for board, partial dependent 499 Payment in lieu of damages to be deducted from compensation ... 63 DELIRIUM TREMENS: Resulting two days after injury 485 DENIAL OF LIABILITY: Rule relative to 405 DEPENDENCY: Case remanded to determine extent of 222 Of minor child, not determined solely by contributions 330 Question of fact, to be determined as of date of injury 209 DEPENDENT: Aunt wholly dependent on nephew Illegitimate children held to be 453 Minor child not living with parent held to be 330 Mother held partial 244 Mother not 192 Partial no deduction for Board 499 Sister held partial 209 Widow living apart at date of injury held partial 222 INDEX. 525 DEPOSITIONS: Page To be taken under statute 406 DEPUTY SHERIFF: Officer and not entitled 49& DIABETES: Claim that death was due to, not sustained 13$ DINNER HOUR: Going to and from work on premises of employer during 250 Injury received while on way to time clock during 279^ DISABILITY: In case of partial loss of hand, compensation 37& Loss of only eye, total for 100 weeks 200 Result of injury 431 Subject to limitation of statute 442 Test of is ability to earn in same employment 352 DISEASE: Cyanide poisoning, is 56 Death due to 319 Latent, not a bar to recovery . . . 11 , 431 Lead poisoning, is , 125 Loss of eye due to 295 DROWNING: Death caused by 21 DURATION OF DISABILITY: Injury to foot where disability in fact continues, not limited to 125 weeks 442 Not to be estimated 11 Prolonged by pre-existing disease 431 EARNINGS: Compensation for partial loss of vision depends on 206 Disability to be determined by 352 ELECTION: Constitutional bodies may elect to accept Act 102 Law in giving private employers right of, not unconstitutional. . . 77 *When employe becomes subject to the law 425 ELECTRIC SHOCK: Death caused by 244 EMPLOYEE: Member of state militia, not an 400 Of State Board of Agriculture, not employe of state 102 On call at all times 167 Owner of team working under direction of foreman, is 321 Policeman not .... 231 526 MICHIGAN WORKMEN'S COMPENSATION CASES. EMPLOYEE. Con. Page Right of control determines whether 471 Volunteer fireman is, within meaning of Act 398 EMPLOYMENT: Compensation based on, at time of injury 461 Evidence sufficient to show contract of 154 Held not to be casual 488 Irregular 267 Partially disabled, duty to seek 418 Ringing of time clock, part of contract of 279 Surrounding circumstances to show contract of 311 Test of disability, is capacity to earn in same 352 ESTATE: Compensation accrued at death, payable to administrator of 32 EVIDENCE: Additional taken- for review 244 As to cause of death, fair preponderance 21 As to feelings, mental or physical, is admissible 259 Brought question as to cause of within domain of fact 219 Burden of furnishing, rests upon claimant . . . . 295 Circumstantial evidence, death cases, inference 370 Circumstantial evidence sufficient to justify finding 167 Definition of preponderance of 214 Established rules of, govern XIII Finding of extent of dependency supported by 209 Hearsay 259, 302, XIII Inference of, justified finding 167 Insufficient to sustain claim 388 Justifies finding disability the result of strain 241 Justifies finding of relation of employer and employe 471 Lack of direct .' 21 Not conclusive as to success of operation 108 Not sufficient 388 Not sufficient to justify reversal of finding 248 Not sufficient to show that accident arose out of employment . . . 250 Not sufficient to establish conclusive presumption of dependency . 222 Reasonable inference, in ambit of employment 467 Report of accident by employer, when prima facie 259 Sufficient to support claim that injury was cause of death 57 Sufficient to support finding. 302 That death was due to diabetes, not sustained by 139 That hernia was caused by accident 29 That paralysis resulted from rupture of blood vessel 35 To support a finding of fact, is sufficient 154 INDEX. 527 EVIDENCE. -Con. Page To support a finding that misconduct was not intentional and wilful 282 Warrants finding 467 EXERTION: Accelerating arterial sclerosis, resulting in paralysis 35 Cause of injury to back followed by pneumonia 248 EYE INJURY: As result of assault 308 Infection after injury 214 Loss of eye due to disease 295 No valid claim exists until eye is lost 390 Partial loss of, where person is able to earn same wages 206, 214 Senile cataract, not cause of 285 To only eye 200 EXTRA-TERRITORIAL OPERATION: Act does not cover-outside of State 336 FARM LABORERS: Act does not exclude farmers 7 FATAL INJURY: (see Arising out of) As result of fall causing concussion of brain 219 Did not arise out of employment 154, 185 Received during noon hour 279 Result of lightning stroke 194 FEES: Power to determine, attorneys and physicians 45 FINDINGS: Court will not disturb, in absence of fraud 167, 285 Evidence, sufficiency of 219, 302 Extent of dependency, question of fact 209 Of fact, conclusive where supported by evidence 143, 259, 282 Of fact as to contract of employment 154 Of fact by Board, conclusive 241 FOOLING (see Assault) : FOREIGN CONSULS: Status of ! 423 FOREIGN DEPENDENTS: Letters rogatory, practice in 428 Power of attorney, how executed 429 Transmission of money 427 FRIGHT: Unaccompanied by physical injury, no compensation 319 528 MICHIGAN WORKMEN'S COMPENSATION CASES. FUNERAL: Page Right of belongs to next of kin, relatives and friends . 325 FUNERAL EXPENSES: Employer has no right to arbitrarily fix 325 FULL BOARD HEARINGS: Rule relative to 407 HEALTH: Condition of, when retards recovery 431 No standard of, required by law > 11 ,431 HEARING: Additional testimony taken at 244 Application to take cumulative testimony after, denied 139 Case remanded for further, if parties desire 222 Postponement of, rule of Board ' 408 HEARSAY EVIDENCE: As to feelings, mental or physical, is admissible 259 Case will not be reversed because of admission of 302 HEART DISEASE: Cause of death 319 Not cause of death . '. 219 HEMORRHAGE: 35 HERNIA: An injury within meaning of Act 344 As result of strain 447 Caused by lifting crank case 29 Held personal injury by accident 344 Must have essentials of an accident 1 HIRE, CONTRACT OF (see Contract of Hire) : Evidence not sufficient to sustain finding 154 Surrounding circumstances to be taken in connection with 311 HOSPITAL EXPENSES: After three weeks 338 Source of payment of 415 HUSBAND AND WIFE: Living apart at date of injury 222 ICE, SLIPPING ON: Not an accident arising out of employment 185 On premises of employe 14 ILLEGITIMATE CHILDREN: When members of deceased's family, entitled to compensation . . 453 IMPRISONMENT: Convict injured during confinement, not entitled 397 INDEX. 529 INCAPACITY FOR WORK: Page None shown in case of partial loss of vision 206 INCIDENT TO EMPLOYMENT: Assault held to be 464 Assault not '. 308 Death by lightning stroke, not always 194 Falling on street, not 185 Hazard must be " 14 Ringing of time clock, is 279 INDEPENDENT CONTRACTOR: Distinguished from employe 471 Employe owning team working under directions of foreman, not. 321 Employe owning team and hauling logs, held not 471 Employe performing individual labor outside contract, held not . 488 Written contract, taken in connection with surrounding circum- stances, sufficient to establish status of , 311 INDUSTRIAL ACCIDENT BOARD: Appeal to Supreme Court will not lie from award of committee on arbitration 459 Findings of, conclusive, if suppoited by competent evidence. .143, 259 Has right to review agreement and settlement 352 Is administrative body vested with quasi judicial powers 259 May determine facts upon reasonable inference 167 May refuse to grant time to file additional evidence 143 Rule as to hearings before 407 Will not be reversed on theory of being bound by stipulation. . . . 244 INFECTION : Accidentally contracted 388 Cause of myocarditis 302 Condition of eye due to gonorrhea 295 Contracted as result of accident to eye 214 INFERENCE: As to cause of death justified by circumstantial evidence 370 Court will not disturb findings where different, may be drawn . . . 285 Evidence sufficient to support finding, drawn from 302 From evidence that injury arose out of employment 467 Of fact conclusive in absence of fraud 167 ' That death resulted by drowning, justified 21 That deceased was within ambit of employment, justified 467 INJURY: By accident 125 Disability the result of 431 Distinguished from accident 338 To arm 11,431 67 530 MICHIGAN WORKMEN'S COMPENSATION CASES. INJURY. Con. Page To eye, followed by gonorrheal infection 214 Pneumonia following as result of - . 248 INSURANCE: Law provides that, carrier is directly liable 311 Municipality may insure part of employes 423 Optional as to municipalities 423 INSURER: Deemed party 405 Liable under provisions of Act 311 Not liable when undertaking not covered by policy 435 INTENTIONAL AND WILFUL MISCONDUCT: A question of fact . 282 Delivery boy riding bicycle in street, takes hold of rear of motor truck, proceeding in same direction, held not 439 Disregarding of warning signs, when not 139 Failure to tell physician of intemperate habits, not 485 Failure to use ladder, held not 179 Inattention, lack of mental alertness, failure o hear signals, not . 327 Infraction of rules, when not 279 Negligence not 204 , Refusal to submit to operation, held not 108 INTER-INSURANCE EXCHANGES: Must have approval of Board 393 INTRODUCTION: XI JURISDICTION: Injuries occurring out of State not within 336 LATENT DISEASE: Act does not except from its benefits, those who carry Retarding recovery 431 LETTERS ROGATORY: Practice in LEGISLATURE: May not interfere with Michigan Agricultural College 102 Relief for defects in law, lies with 206 LIABILITY: Of employer, for compensation accrued at time of death Of insurance carrier 435 Rule relative to denial of 405 LIGHTNING, DEATH FROM : Did not arise out of employment 194 INDEX. 531 LIVIXC; APART: , Page At date of injury, widow is, partial dependent 222 At date of injury, widow held not dependent 453 LONGSHOREMEN: Employes within the meaning of law 498 LOSS OF MEMBER: Act does not authorize award for partial 378 Act does not provide for percentage of specific indemnity 206, 214 Additional compensation for, after general disability ceases 300 Specific indemnity does not depend on loss of time 17, 411 Specific indemnity, when payable 17 LOSS OF USE OF MEMBER: Compensation awarded for 65 Entitles injured to compensation 17 Point of amputation not controlling 414 LUMP SUM: Rule relative to ; t 408 Settlement during disability 418 LUNCHEON: Death as result of injury while on way to 175 M ASTER A,ND SERVANT: Evidence not sufficient to justify finding of 154 Xo relation of, at time of injury 341 Right of control determines relation of 471 Surrounding circumstances sufficient to establish 311 MEDICAL AND HOSPITAL TICKETS 416 MEDICAL EVIDENCE: Did not conclusively establish that operation would effect cure . . 108 Petition to introduce additional, denied 139 Sufficient to sustain finding 302 Sufficient to sustain finding that injury caused pneumonia 248 Sufficient to sustain inference drawn 285 Supported circumstantial evidence 370 Supported the finding of Board 241 That condition is due to disease 295 That death was due to diabetes, not sufficient to sustain claim . . 139 That vision could be increased with aid of glasses 214 To effect that shock and not physical injury caused death .319 MEDICAL SERVICES: Liability for 29 Refusal to accept, not unreasonable 108 Rule relative to contested bills for 407 To be furnished for three weeks from time injury requires 338 68 532 MICHIGAN WORKMEN'S COMPENSATION CASES. MEMBER, LOSS OF (see Loss of Member) : Page Act does not provide for percentage of 206, 214 Compensation for partial, to be determined on loss of earnings . . 378 Disability not limited to specific indemnity for 442 Specific indemnity does not depend on loss of time 17 MEMBER OF STATE MILITIA: Not an employe 400 MINOR: Child dependent upon parent 330 Payment of compensation to 413 MISCONDUCT: Intentional and wilful is question of fact - 282 MOTHER: Entitled to compensation as partial dependent 244 Not entitled to compensation 192 MUNICIPAL CHARTERS: Policeman, an officer within meaning of 231 Provision as to filing claims, superseded by compensation law . . 57, 65, 72 MUNICIPALITY: May insure part of employes 423 May levy taxes to pay compensation 77 Subject to Act XII The Act as relates to 77 Title of Act broad enough to include 72 NEGLIGENCE: Does not defeat compensation unless amounting to intentional and wilful misconduct 204 Liability of city not affected by lack of . . . . , 65 NEUROSIS: Disability due to hysterical 61 NOON: Accident during, did arise out of employment 279 Accident during, did not arise out of employment 250 NOTICE OF-IN JURY: Failure to give, not a bar where city officials have knowledge ... 72 Letter from attorney, sufficient 89 Notice in section 16, Part II, what 72 Sufficient when reported to superintendent To department of municipality sufficient 57 NOTICES: How posted by employers 421 Not required to be posted by municipalities 522 Posting of, in determining status of employer 311 INDEX. 533 OATH OF ARBITRATORS : Page Rule relative to 410 OCCUPATIONAL DISEASE: Cerebral hemorrhage, not 39 Held law does not cover 122, XIII Definition of 125, XIII Inhalation of cyanide fumes, is 56 Lead poisoning, is 125 Not covered by the Act 125 OFFER OF EMPLOYMENT 418 OFFICER: Deputy sheriff, is 498 Of corporation, may be employe 422 Policeman is, under charter City of Pontiac 231 ON THE PREMISES: Of employe 14 Of employer 164 Of a railroad during noon hour 250 OPEN AWARD: Board may enter 29 OPERATION: Refusal to submit to, not unreasonable. . 106 PARALYSIS: Accident within meaning of act 35 PARENT: Minor child dependent on 330 Minor child, held not dependent on 453 Mother not dependent on son 192 Mother partially dependent on son 244 PARTIAL DISABILITY: Award to be based upon loss of earnings in case of 378 Compensation for, measured by lessened earnings 214 Duty to seek employment 418 Entitled to compensation during continuance of 61 To be determined by ability to earn in same employment 352 PARTIAL INCAPACITY: After fourteen days 421 PARTNERSHIP: Partner not an employe : 422 PAYMENT: Method of making, for more than one finger . 419 Of compensation to minors 413 534 MICHIGAN WORKMEN'S COMPENSATION CASES. PAYMENT. Con. Page Of hospital expense after first three weeks 415 Place of making 412 To be made weekly 420 PERCENTAGE: Act does not provide payment for percentage of loss of vision. .206, 214 Award based on percentage of loss, not authorized 378, 390 Of loss of vision increased by aid of glasses 214 PERITONITIS: As a result of injury 108 PERSONAL INJURY (see Arising out of and in the Course of) : Act does not include all 125 Evidence insufficient to establish claim that, was result of an accident 388 Out of State, not compensable 336 Pneumonia following injury is 248 In fight held not to arise out of employment 308 To finger results in death 302 PERSONAL INJURY BY ACCIDENT: Barnyard infection, not, on proofs submitted 388 Cyanide poisoning, not 56 Lead poisoning, not 125 PLACE OF MAKING PAYMENT 412 POISONING: Lead, not an accident 125 Cyanide, not personal injury by accident 56 POLICEMAN: An officer not an employe ". 231 POSTING OF NOTICES: By employer 421 By municipalities 422 POWER OF ATTORNEY: How executed 429 In effect at time of mailing 89 PRACTICE: Testimony after case is heard and submitted before the full Board 139 Rules of procedure 404 In arbitration hearings where applicant does not appear 426 PREMISES OF EMPLOYER: Not trespassing on 167 PRISON (see Confinement in Prison) : INDEX. 535 PROOFS: Page Rule relative to taking of 406 PROXIMATE CAUSE: Fall to floor, resulting in concussion of brain 219 Injury and not disease, of disability 431 Injury, followed by pneumonia 248 Injury to eye, resulting in cataract, is 285 Injury to eye, not 295 Not shifted from injury to intemperate habits 485 Performance of duty, imposed by employer, is 282 Pneumonia as a result of operation 108 Shock and not physical injury, cause of death 319 QUESTION OF FACT: Cause of death, is -. 219 Duration of disability, is 442 Extent of dependency, is 209 Intentional and wilful misconduct, is 282 RECOVERY: Retarded by latent disease 431 RE-EMPLOYMENT NO PART OF SETTLEMENT 417 RE-OPENING: Additional compensation 352 Authority of Board to grant 378 Board acted within authority in 378 REMANDING OF CASE: After hearing by Supreme Court 222 REPORT OF ACCIDENT: When prima facie evidence 259 By foreman, to employer, admissible as prima facie evidence .... 302 Employer to make 125 Rules relative to 499 RESADJUDICATA: What constitutes, award 285 REVIEW BEFORE BOARD: Rule relative to 407 REVIEW OF WEEKLY PAYMENTS: Board has jurisdiction of 48 RIGHT TO REVIEW: Board has 352, 398 Is vested in 352 536 MICHIGAN WORKMEN'S" COMPENSATION CASES. RISK: Page Boy making deliveries on bicycle, street 439 Must be incidental to employment 185, 194 Street and traffic 467 RUPTURE: (see Hernia) Of femoral artery 241 Of intestine 106 RULES OF PROCEDURE 404 Rules and system for reporting accidents, etc 499 SALESMAN: Traveling out of state and injured, not entitled 336 SETTLEMENT/ Board has right to review 352 Lump sum settlement during disability 418 Not binding until approved by Board 57 Re-employment no part of 352, 417 SETTLEMENT RECEIPT : After filing of, Board may reopen case 352 SHOCK: In absence of physical injury, not compensable 319 SHOP RULES: Violated through inadvertence or inattention 279 Mere violation of instructions of employer, held not intentional and wilful misconduct 327, 421 SISTER: Partial dependent 209 SON: Mother not dependent on 192 Mother partially dependent on 244 SPECIAL RISK OF EMPLOYMENT: Lightning stroke, not 194 Slipping on ice, not 14, 185 SPECIFIC, FOR LOSS OF MEMBER: Act does not provide, in case of partial loss of vision 206, 214 Ceases upon death of injured 32 Does not depend on loss of time 411 STATE FIRE WARDEN: Workman called to assist 341 STIPULATION: Case on, of facts : 330 Case submitted by ' ' 194 INDEX. 537 STIPULATION. Con. Pj.gr Of facts submitted 200 Testimony taken in addition to 244 STREET SWEEPER: For injuries to leg entitled to compensation 65 STREET TRAFFIC: Danger from, held to arise out of employment 467 SUPPLIES AS PART PAY: Miners receiving supplies in part payment 417 SUPREME COURT: Appeal to does not lie, from award of arbitration committee .... 459 Dissenting opinion filed by 362 , 439 Rule relative to appeals from decision of Board 409 SUPPORT: . Mother not dependent on son for 192 Sister dependent on brother for partial 209 SYPHILIS: Question of, raised 1 1 , 431 TABLE OF CASES V THIRD PERSON: Settlement by, for damages to injured workmen 63 TITLE OF STATUTE: Not broad enough to include occupational diseases 125 TRESPASSER: Injured by, did not arise out of employment 308 TRESPASSER ON RAILROAD PREMISES: Foreman of section not 167 Injured workman not 164 UNIVERSITY: Regents of constitutional body XIV USE OF MEMBER, LOSS OF: Compensation awarded for 65 . Equivalent to loss of member 17 VIOLATION OF SHOP RULES 421 VISION: Increased from 10% of normal to 50% with aid of glasses 214 Percentage of loss of, does not permit award 206, 214 VOLUNTEER: Engineer running elevator held to be 148 Fireman entitled to compensation 398 538 MICHIGAN WORKMEN'S COMPENSATION CASES. VOLUNTEER. Con. Moulder going up on crane to assist trouble man, is To assist in ejecting trespasser Page 362 308 WAGES (see Average Weekly) : Ability to earn same, not affected by injury to eye 206, 214 Based on work engaged in at time of injury 461 Rule of determination 267 WAIVER: Claim for compensation waived by carrying on negotiations for a settlement 25 WARDS OF STATE: Not entitled 403 WEEKLY PAYMENTS: Board has right to review 352 WHOLLY DEPENDENT (see Dependency) : Mother held not 192 Sister held not 209 WIDOW (see Dependency) : Compensation denied 194 Entitled to compensation for death of husband returning to his home 164 Held not entitled to compensation 453 Not conclusively presumed to be dependent 222 Not entitled to compensation for death of husband returning home 185 Of policeman, not entitled 231 WITNESSES: Rule relative to 406 WORK: Ringing of time clock, part of 279 t VSSB***' 25