the previous winter, had arteriosclerosis and a weak heart, all resulting in a degree of debility. Dr. O'Brien, who was called to attend him, found his foot so badly crushed that the arteries were broken and the blood supply cut off from the tissues beyond, causing gangrene to develop, which, as the doctor testified, would in such a case be attended by a poisonous, or toxic, absorption into the system affecting the nervous organization and to a certain extent interfere with the secretions of the stomach. As the gangrene progressed, he grew weaker and became delirious, after which vomiting set in with an extension of the abdomen, and his bowels would not move. On the third day after reaching this condition, he died. Dr. O'Brien stated he expected to amputate the foot when the line of demarcation set in and made plain how far the dead tissue extended, but Doherty died before it occurred; that in his opinion the "immediate" cause of death was obstruction of the bowels, the gangrenous condition of his foot being a “contributing cause." No post mortem examination was had. Among the many questions asked of and answered by him are the following:

"Q. What was the cause of death? A. Well, the direct cause would be the obstruction. Q. What was the approximate cause or the contributing cause? A. The contributing cause would be the gangrenous condition of the foot. Q. Resulting from this injury? A. Of course, the gangrene did not result from that, because there were clots of blood formed, completely precluding the circulation of the arteries.

* * *

*

Q. And the severe shock, or the shock, combined with the arterial affliction in this man, and also his nervous condition, might easily have produced, or in a measure contributed to, his stomach trouble? A. Yes, it would be contributory. ** * Q. Could this gangrenous condition so upset the stomach that it would cause vomiting? A. Well, it might-yes, it could. Q. What would you say as to the crushed foot as to whether it was-looked serious in itself if vou had not had other elements of old age and the heart, and the condition of the arteries existing? A. Well, if it was a young person it could be removed the part that was gangrenous, possibly he would have got over it. In a young person, very often they do. * Q. You did not remove the foot in this case, or remove any of it? A. The line of demarcation had not set in. We had to wait for that. We didn't know how far to remove it; you can't tell until you see how far the dead tissue extends. Before the line of demarcation had set in the obstruction came on, and he died."

* *

Without attempting to set out or review in full all the testimony which may be inferentially relevant, the conclusion is reached that the record as a whole gave room for the inference drawn by the board. Of this accident the following reflections in Gaffney v. Goodwillie, 203 Mich. 592, 169 N. W. 850, are well in point:

"We find ground for saying that the board had before it some evidence tending to prove that the fall which Mr. Gaffney had set up a train of physical disturbances, affecting an existing pathological condition in such way as to cause death. We therefore decline to set aside the award."

The order of the Industrial Accident Board will stand affirmed.

SUPREME COURT OF MICHIGAN.

MOSHINSKI
ข.

KAY SALT CO. ET AL. (No. 92.)*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-AMOUNT OF COMPENSATION.

Where injured employe has so far recovered from injury as to be able to work for another employer, order of Industrial Board, refusing to reduce compensation to one-half of the difference between his average weekly wage at time of injury and the wage he is able to earn after injury, was unwarranted.

(For other cases, see Master and Servant, Dec. Dig. § 419.)

Certiorari to Industrial Accident Board.

Proceedings under the Workmen's Compensation Act (Pub. Acts 1912 [Ex. Sess.] No. 10) by Roy Moshinski, for compensation for injuries, opposed by the Kay Salt Company, employer, and the Royal Indemnity Company, insurer. Application by employer and insurer to Industrial Accident Board, asking that compensation provided for by agreement be stopped upon the ground that employe's disability ceased. Order denying application, and employer and insurer bring certiorari. Order set aside, and case remanded with directions.

Argued before Bird, C. J., and Ostrander, Moore, Steele, Brooke, Fellows, Stone and Kuhn, JJ.

John B. Coughlin, of Detroit, for appellants.

Rubin, Fawcett & Dutcher, of Milwaukee, Wis., for appellee.

On Sep

BROOKE, J. Certiorari to the industrial accident board. tember 27, 1916, applicant received a severe injury arising out of and in the course of his employment. A compensation agreement was at once entered into between the parties under which the indemnifying company paid to claimant the maximum compensation of $10 per week from the date of the injury to January 8, 1918. It later developed that claimant had so far recovered from his injury that on June 12, 1917, he obtained employment with the International Harvester Company of Milwaukee, Wis., where his average weekly wages amounted to $18,54. On February 20, 1918, an application was made to the board, praying that compensation be fixed as for partial disability at the rate of $3.23 per week, and that the excess already paid to claimant of $203.10 be credited to the employer upon payments made from and after January 8, 1918, as they became due. It appeared without dispute that the averments in the petition were true, and on the 24th day of May, 1918, the court made an order to the effect that the rate of compensation should be reduced to $3.23 from March 8, 1918, during the period of partial disability, and farther:

"It is further ordered that compensation at the rate of $10 per week be paid applicant from the date of the last payment, January 8, 1918, to March 8, 1918. Should applicant again become totally disabled because of his injury, compensation shall be again paid at the rate of $10 per week. It is further ordered that respondents' prayer that certain *Decision rendered, May 29, 1919. 172 N. W. Rep. 441.

amounts already paid applicant be refunded to them is hereby denied." No appeal was taken from this order. On the 15th day of August, 1918, a second application was made to the board by the insurance company, in which it is set up that after May 31, 1918, claimant was receiving an average weekly wage of $22.37; that therefore he was entitled but to the sum of $1.32 per week partial disability. It is further averred that on August 7, 1918, claimant quit his employment with the International Harvester Company, although he was offered $25 per week. Petitioner asked for an order that compensation be paid to claimant at the rate of $1.32 per week from May 31, 1918, to August 7, 1918, and that all further payments or compensation be stopped on the ground that disability has ceased, and the employe is able to earn the same wages he was earning at the time of the accident. Considerable testimony was taken on the second application and the board, on the 24th of December, 1918, made the following order:

"The board finds as a fact from the files and testimony in the case that said applicant should continue to receive compensation in accordance with the terms of the order entered by the board on May 24, 1918, viz., $3.23 weekly during the period he is partially incapacitated in the employment in which he was engaged at the time of the accident, and $10 weekly should he again become totally incapacitated in such employment; the board further finds that there is no evidence in the testimony submitted in support of said petition, medical or otherwise, which would tend to show that said applicant is able to fully resume his usual employment, and, there being no testimony whatever on this point, the petition must be denied.

"It is therefore ordered and adjudged that said petition should be, and the same is, hereby denied, and said applicant is entitled to receive and recover from said respondents compensation at the rate of $3.23 per week from the time payments were stopped, May 31, 1918, to the date of the hearing on said petition, November 20, 1918, in all the sum of $82.37, which amount shall be paid to applicant forthwith. It is further ordered that after November 20, 1918, said applicant is to continue to receive compensation in accordance with the terms of the order entered by the board on May 24, 1918, said order being in full · force and effect at this time"-which is now reviewed in this court. The record shows conclusively that from May 31, 1918, to August 3, 1918, a period of nine weeks, claimant received an average of $22.31 per week. This, deducted from the sum of $25, which he was receiving when injured, leaves a balance of $2.69, 50 per cent. of which is $1.35. We can find no warrant in the record for the allowance of $3.23 during this period. On August 6th claimant quit working for the International Harvester Company, and started to work for the James J. Swartz Fur Company, where he earned but $12 per week. This employment continued from August 7th to September 24th, when he took employment with the Milwaukee Tanning & Clothing Company, where he was working at the time of the hearing. His wages in the latter employment, according to his own testimony, were $22.05 per week. Fifty per cent, of the difference between that amount and $25 is $1.48. We think the appellant is correct in its contention that the board had no warrant in fixing the compensation at $3.23 as for partial disability. It is asserted by appellant that the board erred in holding that there was no evidence that disability had ceased after August 7, 1918. This assertion is based upon the fact that officers of the International Harvester Company testified that at the time claimant left its employ he was able to continue doing the work he was then engaged in, and his continuance there would have resulted in his receiving from and after August 7th a sum in excess of $25 per week. On the other hand, claimant testified:

"I couldn't stand it any longer, and my arm bothered me so that I had to quit.”

The testimony of the two physicians appearing in the case upon the earlier application tends to show that claimant sustained a very severe and extensive burn, which involved his left arm and left side; that there is a large area of scar tissue, some of it very deep. At the time they testified they gave it as their opinion that claimant's left arm was reduced in efficiency about 30 per cent.

The refusal of the board to grant the order discontinuing all compensation after August 7th will not be disturbed. The order of the board as made is set aside, and the case remanded for further proceedings in accordance with the terms of the act.

SUPREME COURT OF MICHIGAN.

NAERT ET AL.

V.

WESTERN UNION TELEGRAPH CO. (No. 70.)*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-SETTLEMENT OF DEPENDENT MOTHER WITH NEGLI, GENT THIRD PARTY.

The mother of a deceased servant, by accepting settlement as administratrix of her son's estate or as an individual for all claims against the company whose negligence caused his death, did not thereby release the son's employer, in whose employment he was killed, from liability under the Workmen's Compensation Act, in view of part 6, § 1; the employer being left free to proceed against the negligent company under part 3, section 15, as though no settlement had been made.

(For other cases, see Master and Servant, Dec. Dig. § 382.)

Certiorari to the Industrial Accident Board.

Proceedings for compensation under the Workmen's Compensation Act by Romanie Naert and others for the death of Joseph Naert, opposed by the Western Union Telegraph Company, employer. Compensation was awarded by the Industrial Accident Board, and the employer brings certiorari. Award affirmed.

Joseph Naert, son of claimant Romanie Naert, and half brother of claimant Mary Naert, was killed on April 24, 1918. He was a telegraph. messenger working for respondent at the time of his death. In delivering messages he used a motorcycle. On the day of his death he was riding at a high rate of speed in a westerly direction on Mack. avenue. At Baldwin avenue a truck belonging to the Cottage Grove Cemetery Company was being driven north across Mack. The motorcycle struck the truck with such violence that Joseph Naert was, instantly killed. It is conceded by respondent that the accident arose out of and in the course of the employment, and that the average weekly earnings of the boy were sufficient to warrant a maximum award of $10 per week for 300 weeks. The dependency of the mother and sister of the deceased lad likewise is conceded, or, if not conceded, is not seriously questioned. The sole controversy between the parties arises out of the following facts:

*Decision rendered, May 29, 1919. 172 N. W. Rep. 606.

The Cottage Grove Creamery Company at the time of the accident was carrying industrial insurance. On the day after the lad was killed a representative of the insurance company called upon Romanie Naert, mother of the deceased, and, it being ascertained that Mrs. Naert was without funds to defray the funeral expenses of her son, Mr. Frick, the manager of the Cottage Grove Creamery Company, volunteered to "see to it that the funeral was paid for either by them or the insurance company." The negotiations between Mrs. Naert and the Cottage Grove Creamery Company and the insurance company carrying the risk seem to have been carried on by one Gaston Verdon, a friend of the Naerts. Within a day or two the lad was buried, and on April 30th, the arrangements having been completed, an application was made by Mrs. Naert to the probate court for her appointment as administratrix of the estate of her deceased son. She on the same day was appointed such administratrix, and likewise upon the same day filed a petition for leave to accept the sum of $176 from the Cottage Grove Creamery Company for a release of said company “on account of all liability on its part for damages to said estate on account of said accident." An order having been made by the probate judge, said sum of $176 was paid by the creamery company or the insurance company in the form of checks to the undertaker, the florist, and the priest who had rendered services in connection with the funeral. A further sum of $24 was paid by the creamery company directly to the mother in consideration of a release from her to it "of and from all claims, demands, damages, actions and causes of action, including all claims on account of loss of service, now existing or hereafter accruing on account of injuries accidentally sustained by Joseph Naert and death resulting therefrom on or about the 24th day of April." Romanie Naert is a Belgian, unacquainted with the English language. She testified:

"There was a man came there and asked if I straightened up the matter for the funeral, and for the motorcycle; he would give me that. If I did not take that, that I would have nothing. * * A. Thev told me it was for the accident of the boy, to pay his funeral expenses. Q. Did they say anything further, if you did not sign for it? A. They said that he would give me that money; that they would give me that money for funeral expenses. He offered me $200 for the expenses, and the leavings was for me. If I would not take that, I would have nothing. That is what he said. Q. That is all. You had no lawyer representing you, did you? A. No."

All the court proceedings were carried out and the money was paid on the same day, April 30th, which was the sixth day after the death of Joseph Naert. Later, on the 11th day of September, 1918, Romanie Naert applied to the Industrial Accident Board for compensation under the statute. The award on arbitration provided for $10 per week for 300 weeks. This was affirmed by the full board in all things, except that the award was made payable one-half to the mother and one-half to the sister of the deceased boy.

It is the claim of the appellant that Romanie Naert, by executing the releases to the Cottage Grove Creamery Company on April 30th, has deprived the Western Union Telegraph Company of its right to sue the creamery company for the amount of compensation the telegraph company will be obliged to pay to her and to Mary Naert under the award of the board. This contention raises the only question in the

case.

Argued before Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, Stone and Kuhn, JJ.

Corliss, Leete & Moody and Benj. S. Pagel, all of Detroit, for appellant. Edward H. Kennedy, of Detroit, for appellees.