MASTER AND SERVANT-Continued.
5. Under section 15, part 3, of the workmen's compensation
act (2 Comp. Laws 1915, § 5468), the employer has a
right to recover such payments as he is obliged to make
from the third person legally liable for the injury, and
such right would not be affected by any settlement made
by the legal representatives of the injured person with
said third person, since the latter must be held to have
proceeded with knowledge of the fact that he might be
called upon to respond to the employer who is primarily
legally liable under the act. Id.
6. Where an injured employee at the time of his injury was
earning an average weekly wage of $25, and, for the
period covered by the hearing, was earning an average
weekly wage of $22.31, an award by the industrial acci-
dent board of $3.25 per week for partial disability was
unwarranted, since the amount authorized by the statute
(2 Comp. Laws 1915, § 5440) is 50 per cent. of the differ-
ence. Moshinski v. Kay Salt Co., 83.
7. Although the injured employee was offered more than he
was earning before the injury if he would continue in
certain work he was doing, a finding by the board of
partial disability will not be disturbed where he testified
that he could not stand the work because his arm both-
ered him so and he had to quit, and two physicians testi-
fied that the arm was reduced in efficiency about 30 per
cent. Id.
8. Where an employee was engaged in putting strips in
metal frames by the use of a pair of pliers, and a bone
felon developed from the use of the pliers by reason of
the fact that shorter pieces than usual were being used and
required the exertion of greater strength to put them in
place, but there was no abrasion of the skin, and no
evidence of any blow or any untoward or accidental hap-
pening producing said injury, it was not an accidental
injury within the meaning of the workmen's compensa-
tion act. Perkins v. Jackson Cushion Spring Co., 98.
9. While there was testimony that would have justified the
industrial accident board in finding that a previous in-
jury to plaintiff was the proximate cause of the later one,
the finding of the board to the contrary will not be re-
versed where there was competent testimony to sustain
such finding. O'Brien v. Albert A. Albrecht Co., 101.
10. Where an employee, an intelligent man, suffering with
hernia caused by an accident in defendant's employ, re-
fused 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 unat-
tended 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. Id.
MASTER AND SERVANT-Continued.
11. On certiorari to review an award of $10 per week to plain-
tiff 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
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. Id.
12. In an action for personal injuries by an employee against
his employer, evidence that as plaintiff and another em-
ployee were attempting to get into a wagon they accident-
ally bumped together and plaintiff fell and was injured,
held, insufficient to establish negligence rendering defend-
ant liable. Munn v. Michigan State Telephone Co., 201.
13. Where a woman was engaged in hauling milk from farm-
ers, delivering the same to defendant, a manufacturer of
milk products, she furnishing her own team, harness, and
wagon, paying her own bills and controlling her equip-
ment, and receiving her pay from defendant who deducted
it from the amounts due the farmers, she was an inde-
pendent contractor and not an employee within the mean.
ing of the workmen's compensation act. Sawtells v. Eken
berg Co., 246.
14. Where plaintiff, a traveling salesman in the employ of
defendant, suffered partial paralysis of the right side
as the result of the breaking of a blood vessel in the
brain, caused by overexertion and excitement while run-
ning to catch a train, he was entitled to compensation
under the workmen's compensation act as for an acci-
dental injury. Schroetke v. Jackson-Church Co., 193 Mich.
616. Crosby v. Thorp, Hawley & Co., 250.
15. On petition of employer to cease payments to an injured
employee, alleging complete recovery, where the evidence
tends strongly to prove that claimant has recovered, his
refusal to submit to an X-ray examination, held, to de-
mand the application of section 19, part 2, of the work-
men's compensation act (2 Comp. Laws 1915, § 5449),
suspending his right to compensation. Rose v. Desmond
Charcoal & Chemical Co., 294.
16. In proceedings under the workmen's compensation act for
the death of plaintiffs' husband and father in defendant's
employ, testimony by the foreman that deceased was dis-
obeying instructions at the time he was hurt was inad-
missible under section 12553, 3 Comp. Laws 1915, being
equally within the knowledge of deceased. Zoladtz v.
Detroit Auto Specialty Co., 349.
17. Testimony showing that deceased, a metal polisher, was
injured while attempting to put a belt on a pulley with
a stick, held, sufficient to sustain a finding that the acci-
dent arose out of and in the course of his employment. Id.
MASTER AND SERVANT-Continued.
18. Under section 5436, 2 Comp. Laws 1915, the award of the
industrial accident board for the death of a husband and
father properly provided that the payments should be
made to the widow during her life, and at her death, if
any remained unpaid, then to the living minor children
in equal shares. Id. 350.
19. Under the workmen's compensation act, work ordinarily
described as common labor is an "employment." Miller
v. S. Fair & Sons, 360.
20. Where plaintiff's injuries resulted in partial disability, in
that he could use only one hand instead of two in work-
ing at common labor, the compensation to which he was
entitled was properly computed on the basis of partial
disability. Id.
21. Where the order and award of compensation to which
the injured employee is entitled under section 10, part 2,
of the workmen's compensation law, specifies the wages
plaintiff is able to earn since the injury, instead of the
average weekly wages he is able to earn, the award should
be amended accordingly. Id.
22. The burden of establishing a claim for compensation un-
der the workmen's compensation act is upon those seeking
the award. Chaudier v. Stearns & Culver Lumber Co., 433.
23. Where claimant's decedent died as the result of alkaline
poisoning, caused by taking into the stomach a quantity
of lye and wood ashes, and the inference that they were
taken with suicidal intent is at least as reasonable as
that they found entrance to the stomach accidentally,
claimant may not recover under the workmen's compen-
sation law as for an accidental injury. Id.
24. Where two inferences equally consistent with the facts
arise out of established facts, one involving liability on
the part of the employer under the act and the other
relieving him from liability, the claimant must fail. Id.
25. Where the return of the industrial accident board in cer-
tiorari proceedings to review an order of said board deny-
ing the petition of the employer to be relieved from further
payments under the workmen's compensation law, was
inconsistent with the order entered, the return showing
that the board simply meant to keep the case open for
future developments and not to require the payment of
any compensation, whereas the order entered provided for
further payments in accordance with an agreement en-
tered into previously by the employee and employer, the
case will be remanded to the board with instructions to
enter an order in compliance with its answer in the
return. Rudski v. Detroit Wire Spring Co., 443.
26. Where an employee suffered the loss of the index finger
of his left hand and a laceration of the second finger and
palm of the hand, incapacitating him for work at his
former employment as an electrician, he was entitled,
MASTER AND SERVANT-Continued.
under the workmen's compensation act, to pay for the
period of disability subsequent to the expiration of the
specific time for the loss of a hand. Schimmel v. Detroit
Pressed Steel Co., 449.
27. A proceeding under the workmen's compensation act be-
fore the industrial accident board is not a judicial pro-
ceeding and there are, strictly, no pleadings. Kirchner
v. Michigan Sugar Co., 459.
28. The board, in administering the workmen's compensation
act, acts principally as a trier of facts. Id.
29. The provisions of Act No. 41, Pub. Acts 1917, amending
the workmen's compensation act, are not applicable to
an accident occurring in 1916. Id.
30. While the matter of compensation is pending before the
board, it has power to so limit payments, by its orders,
that the statute sum, no more, no less, shall be paid and
received, and may correct any mistake in said amount.
Id.
31. Where the period of payment under the agreement has
ended, and all payments have been made, whether either
party may have recourse against the other, in case of mis-
take in the amount of payments, by action of the indus-
trial accident board or otherwise, quære. Id.
32. Where an employee of a sugar company at the time of
his injury was earning $3 a d' for seven days a week,
but the occupation was seaso approximating 90 days
each year, an agreement mistakenly entered into by the
employer and employee for the maximum compensation
of $10 a week which was paid for over a year, was prop-
erly modified by the industrial accident board to the sum
of $4 a week for the period of claimant's disability, dating
from the day of the accident, in conformity with the
statute. Id.
33. If one employee assaults another solely to gratify his
feelings of anger or hatred, the injury results from the
voluntary act of the assailant, and cannot be said to
arise either directly out of the employment or as
incident of it. Marshall v. Baker-Vawter Co., 466.
34. In proceedings under the workmen's compensation act
where plaintiff, while engaged in his duties as foreman
of defendant's composing room, was shot in the back of
the head by the janitor, also in the employ of defendant,
and the testimony as to the cause of the shooting was in
conflict, both the conflict and the inferences to be drawn
from the testimony were for the industrial accident board.
Id.
35. Where persons of equally good judgment might differ as
to the inferences to be drawn from the testimony, the
206-Mich.-47.
MASTER AND SERVANT-Continued.
finding of the board that it was unable to discover the
reason for the shooting and refusing plaintiff compensa-
tion, will be affirmed, although the inference might have
been drawn that the shooting arose out of the work in
which plaintiff and his assailant were engaged; the bur-
den of proof resting upon plaintiff. Id.
36. Although the assaulting employee had previously been
sent to prison for assault, the finding of the board that
it did not necessarily follow that he was such a person as
defendant would not have the right to employ, held, justi-
fied by the evidence. Id.
37. In proceedings under the workmen's compensation act the
industrial accident board is trier of the facts, and it is
not for the court, on certiorari to review an award for
the accidental death of an employee, to analyze, discuss
or pass upon the arguments of counsel in support of their
respective theories as to how deceased came to his death,
if the facts, disputed or undisputed, give opportunity for
the board in its discretion to draw a natural and rational
inference that his death resulted from an accident while
engaged in his master's business within the scope of his
employment. Gabriel v. A. J. Smith Construction Co., 471.
38. Where a water boy on a high building in process of con-
struction fell down the skeleton elevator shaft used for
hoisting materials and was killed, evidence that he was
in the habit of sending his water pail upon said elevator
to the floor where needed, with the apparent consent of
the employer, while he went up the ladder to said floor
and took the pail from the elevator floor, and there was
no evidence that he ever rode on the elevator contrary to
instructions, or violated any instructions, or was careless
or reckless in the performance of his duties, and no one
saw him when he fell, held, sufficient to justify the in-
dustrial accident board in its discretion in drawing a
natural and rational inference that his fall and death
resulted from an accident while employed in his master's
business within the scope of his employment. Id.
39. In proceedings under the workmen's compensation act,
where claimant was sent with a team by the purchaser
of a monument, in accordance with an agreement with
defendant that a team should be furnished by the pur-
chaser, to haul it from the station to the cemetery, and in
response to a question by defendant's workman, who was
sent to erect the monument, as to whether claimant could
help him erect it and how much he would charge, he
replied $5 a day, and in removing the monument from
the car claimant's thumb was injured, resulting in the
amputation of the first phalange, held, that if claimant
was employed by defendant his employment was casual
under section 7, pt. 1, of said act (2 Comp. Laws 1915, §
5429), the work of erecting the monument consuming less
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