Claude H. Perkins presented his claim for compensation against the Jackson Cushion Spring Company for injuries received in defendant's employ. From an order awarding compensation, defendant and the General Accident, Fire & Life Assurance Corporation, Limited, bring certiorari. Reversed, and award vacated.

Kerr & Lacey, for appellant.

FELLOWS, J. Defendant Jackson Cushion Spring Company is an employer of labor operating under the employers' liability act with defendant General Accident, Fire & Life Assurance Corporation, Ltd., as its insurer. They here contest an award of $45 for disability and $26 for hospital and medical expenses allowed to claimant who had worked for the employer for nearly six years. Claimant's work consisted in putting strips in metal frames by the use of a pair of pliers. In this work a bone felon developed, resulting in disability for six and one-half weeks, and necessitating hospital and medical expenses to the amount of $26. The testimony shows that the strips were shorter than usual and required the exertion of more strength to put them in place. There was no abrasion of the skin resulting in infection but the infection developed between the bone and periosteum, the covering of the bone. This might have resulted from a blow or by continued pressure. There was no evidence of a blow. Was this an "accident" within the meaning of the act? I am unable to distinguish this case upon principle from that of Roach v. Kelsey Wheel Co., 200 Mich. 299. In that case the workman was employed in tearing down brickwork from around a boiler. The place had a temperature of 136 degrees. The workman suffered a heat stroke resulting in death. A majority of the court entertained the view that the workman

"Was doing the work which he and his associates

were employed to do exactly in the manner they expected to do it"

-and upon the authority of Kutschmar v. Briggs Manfg. Co., 197 Mich. 146 (L. R. A. 1918B, 1133), and Johnson v. Mining Co., 199 Mich. 218, vacated the award. On the same day the Roach Case was decided opinions in Tackles v. Bryant & Detwiler Co., 200 Mich. 350, and Guthrie v. Detroit Shipbuilding Co., 200 Mich. 355, to the same effect were handed down. In the case of Kutschmar v. Briggs Manfg. Co., supra, Mr. Justice BROOKE, speaking for the court, said:

"We are of opinion that an employee who receives an injury in the nature of a hernia, while engaged in his usual and ordinary employment, without the intervention of any untoward or accidental happening, is not within the provisions of the compensation act, which as we have held provides compensation for accidental injury only."

In the case of Adams v. Color Works, 182 Mich. 157 (L. R. A. 1916A, 283, Ann. Cas. 1916D, 689), it was said in the unanimous opinion of the court, written by Mr. Justice STONE:

"We are of opinion that in the Michigan act it was not the intention of the legislature to provide compensation for industrial or occupational diseases, but for injuries arising from accidents alone."

See, also, Stombaugh v. Peerless Wire Fence Co., 198 Mich. 445.

In the instant case the workman was doing the work he was employed to do, had done for nearly six years, in the way he was employed to do it, and in the way it had been done by him for a long time. That the work done by a laborer one day is harder than on other days is not an accident within the meaning of the act. There is no evidence in the record of the intervention of any untoward or accidental happening producing the injury. There was no blow or sudden

strain. The felon was developed by the continuous use of the pliers.

Under the authorities cited we are constrained to reverse the case.

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

O'BRIEN v. ALBERT A. ALBRECHT CO.

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-FINDING BY INDUSTRIAL ACCIDENT BOARD-CONCLUSIVENESS.

While there was testimony that would have justified the industrial accident board in finding that a previous injury to plaintiff was the proximate cause of the later one, the finding of the board to the contrary will not be reversed where there was competent testimony to sustain such finding.

2. SAME-HERNIA-REFUSAL OF OPERATION-RELEASE OF EMPLOYER FROM LIABILITY.

Where an employee, an intelligent man, suffering with hernia caused by an accident in defendant's employ, refused the employer's offer of an operation, which was advised by his own physician as well as by the employer's physician, said operation being a minor one and unattended with danger to life or health, affording the only reasonable prospect of restoration of plaintiff's capacity to labor at his trade, said employer was relieved, for the time being, at least, from liability to pay further compensation for said disability.1

3. SAME TOTAL DISABILITY-EXCESSIVE AWARD.

On certiorari to review an award of $10 per week to plaintiff for total disability to work at his trade of carpenter while he was already receiving $7 per week from a former employer for partial disability to work at the same trade, said award will be reversed and the case remanded for

'On duty of injured employee to submit to surgical operation or other medical treatment, see notes in L. R. A. 1916A, 139, 259, L. R. A. 1917D, 174.

further proceedings, since the total compensation received by plaintiff for total disability is in excess of the amount authorized by the workmen's compensation act, whether paid by one employer or two.

Certiorari to Industrial Accident Board. Submitted May 1, 1919. (Docket No. 67.) Decided May 29, 1919.

Thomas C. O'Brien presented his claim for compensation against Albert A. Albrecht Company for injuries received in defendant's employ. From an order awarding compensation, defendant and the General Accident, Fire & Life Assurance Corporation, Limited, insurer, bring certiorari. Reversed, and remanded.

Kerr & Lacey, for appellants.

Frederick T. Witmire (E. G. Martin, of counsel) for appellee.

On December 28, 1914, plaintiff, a carpenter, then in the employ of Bryant & Detwiler Company, received a severe accidental injury to both feet and both ankles. Following the accident the Bryant & Detwiler Company, and its insurer, entered into an agreement with plaintiff for compensation for total disability at the rate of $9.45 per week. This agreement was approved by the board. This payment was continued for some time. It would appear that plaintiff's condition improved somewhat and on January 18, 1916, the Bryant & Detwiler Company and its insurer entered into another agreement with plaintiff to thereafter pay for partial disability at the rate of $7 per week. This agreement was likewise approved by the board. The insurer of the Bryant & Detwiler Company continued payments under this agreement down to the time of the hearing of this case before the industrial accident board, and so far as this record discloses are still making such payments. On September 27, 1917, plain

tiff, while in the employ of defendant Albert A. Al-, brecht Company, as a carpenter, and while earning $30 per week, suffered another accidental injury, resulting in a hernia. The testimony clearly establishes the tender of an operation for the hernia, that it could be performed without administering a general anaesthetic, by application of a local anaesthetic, that it would not endanger life and that plaintiff could not be cured of the hernia without it. The testimony also clearly establishes plaintiff's refusal to submit to the operation. At the time of the hearing before the committee of arbitration, plaintiff was wearing a truss, getting along fairly well with it and was earning $18 per week for work other than as a carpenter. The industrial accident board awarded him $10 per week against defendant here for total disability. To review this award this writ of certiorari was allowed.

FELLOWS, J. (after stating the facts). Counsel for the defendants insist that the original accident which occurred while plaintiff was in the employ of Bryant & Detwiler Company was the proximate cause of the second injury and that there can be no recovery against the defendants, that the recovery should be against the Bryant & Detwiler Company under the holdings of this court in Cook v. Charles Hoertz & Son, 198 Mich. 129, Reiss v. Northway Motor & Manfg. Co., 201 Mich. 90, Cramer v. West Bay City Sugar Co., 201 Mich. 500, and Adams v. W. E. Wood Co., 203 Mich. 673. In each of these cases the industrial accident board found as a fact that the original accident was the proximate cause of the subsequent injury. There being testimony in each case to sustain such finding, this court affirmed the awards. In the instant case, while there is testimony that would have justified the board in finding that the original accident was the proximate cause of the second injury,