course of his employment" by a subscriber under the Workmen's Compensation Act. St. 1911, c. 751. He worked in a cotton mill. The material evidence was that on an unusually hot twenty-fourth of June the deceased, having finished for the day his usual rather light labor performed in a room considerably cooler than the outof-door temperature, undertook the much more severe, continued and active overtime work of lifting heavy pieces of hot, damp cloth in a moist room (ordinarily ventilated by fans, which had stopped with the end of the regular hours of work), where the temperature was materially higher than out-of-doors. He worked under this physical strain for about forty minutes. Shortly afterward his lifeless body was found near a faucet where he had gone to wash his face and hands. Two physicians testified in substance that, in their opinion, the employé died from the combined effects of a heart weakness, probably a valvular trouble, the exertion of his work in the close room, and the high temperature caused by the heat of the room and the especially hot weather, and that he would not have succumbed and met his death with either of these factors absent, and that all were contributing

causes.

[2, 3] As has been repeatedly pointed out in opinions of this court, our Workmen's Compensation Act differs from many other similar statutes in that the injury need not be an accident. The death in the case at bar might well have been found to have resulted from overheating arising from unusually hard labor, after the end of the ordinary work of the day, performed in a close and superheated atmosphere. In principle the case is indistinguishable from McPhee's Case, 222 Mass. 1, 109 N. E. 633; Madden's Case, 222 Mass. 487, 111 N. E. 379, L. R. A. 1916D, 1000. A physical impact is not an essential prerequisite to a personal injury under the act. Brightman's Case, 220 Mass. 17, 107 N. E. 527, L. R. A. 1916A, 321. A direct causal connection might have been found to exist between the conditions under which the kind of labor was performed by the employee and his decease. McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306.

[4] The finding that the wife of the deceased was living with him at the time of his death, and hence conclusively presumed to be totally dependent upon his earnings for support, cannot stand. He came to this country from Armenia three and a half years before his death, and since had worked and lived here continuously. His wife remained in Armenia and lived there. They were not living together. Nelson's Case, 217 Mass. 467, 105 N. E. 357; Gorski's Case, 227 Mass. 456, 116 N. E. 811; Derinza's Case, 118 N. E. 942.

The question of the wife's dependency must "be determined in accordance with the fact" as it was at the time of the injury to the husband. Part II, § 7, last paragraph. McDonald's Case, 118 N. E. 949.

[5] The wife is not debarred from recovery under the act by reason of the fact that she is a non-resident alien. Derinza's Case, 118 N. E. 942.

The decree is reversed. The case must be remanded for further consideration by the Industrial Accident Board.

So ordered.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.
SUFFOLK.

IN RE OSTERBRINK.*

1. WORKMEN'S COMPENSATION-DRINKING ACID FOR WATER.

Where a servant employed to open and shut door of a refrige.ating room was killed by drinking muriatic acid from a bottle, which he took from under the sink in the refrigerating room, mistaking it for his bottle of drinking water, which he was accustomed to keep there, there was a causal connection between the employment and the accident, in view of the fact that the only other means for an employee on the floor to drink were a bubble fountain on the floor below or a rubber tube in the sink in the refrigerating room.

2. WORKMEN'S COMPENSATION-RISK AS INCIDENT OF EM

PLOYMENT-REMOTENESS.

The risk of drinking water from a bottle, which had been exchanged or substituted for a bottle of like appearance containing drinking water, by an employee whose work required the use of such a substitute, was not too remote a danger to create liability.

3. WORKMEN'S COMPENSATION-EQUAL DIVISION OF AWARD BETWEEN DEPENDENT DAUGHTERS.

In proceedings by two daughters for compensation for death of their father, under the act (St. 1911,c. 751), where the evidence was ample to support the findings as to the partial dependency of each of the daughters on the sum of money contributed each week to the family for its support by the father, the Industrial Accident Board's order to the insurer to pay the two daughters equal sums was proper, under Workmen's Compensation Act, pt. 2, § 7, providing that, if there is no one wholly dependent, and more than one person partly dependent, the death benefit shall be divided among them according to the relative extent of their dependency.

Appeal from Superior Court, Suffolk County.

Proceedings under the Workmen's Compensation Act by Mary J. Osterbrink and Anna T. Osterbrink for compensation for death of Henry Osterbrink, the employee, opposed by John P. Squire & Co., employer, and the Security Mutual Casualty Company, insurer. Compensation was awarded by the Industrial Accident Board, the award confirmed by the superior court, and from its decree the insurer appeals. Affirmed.

* Decision rendered, Feb. 27, 1918. 118 N. E. Rep. 657,

Freedom, Hutchinson and Putnam B. Smith, both of Boston, for appellant. Wm. H. Sullivan, of Boston, for appellees.

PIERCE, J. The deceased was 72 years of age, a faithful worker, a person of exemplary habits, and one who never took a drink of liquor of any kind. He was employed as door tender by the subscriber. It was his duty to stand outside the door to the cooling room and to open that door to the men when any one wanted to pass in or out with a truck. His duties began at 7 o'clock in the morning, and he was expected to tend to the door until relieved.

The temperature in the vestibule where he stood was in July the same as out doors, while that in the refrigerating room was at or near freezing. There was a bubble fountain on the floor below from which employés could drink water. There was no provision for drinking water on the floor on which the deceased was stationed. There were two faucets in the cooling room with hose attached; there was not any drinking cup. Some of the men, when working in the refrigerating room, drank from the hose pipe attached to a faucet at the sink or tank, and some used a small tin pail or can hung near the sink by some of the men for this purpose, The deceased at times drank from the rubber pipe and pail as the other men did. The hose pipe was attached to the faucet in order to clean and flush the sink or the products placed therein, as well as adjacent places.

For some time before and on July 7, 1916, the day of the injury, the deceased had kept water for his use in drinking in a bottle, which he placed for cooling on the floor of the cooler under the sink or tank near the wall. During the same time he and other employés, with the knowledge of the foreman had bottles out of which they drank tea or coffee with their lunch. Bottles of tea or coffee were at times placed by some employés in the cooling room to be kept cool for use with the meals. The practice of putting bottles of tea or coffee in the cooler was known and permitted by the superintendent and management; the practice of placing a bottle of drinking water under the sink in the cooler for the personal use of the deceased, was not known to the superintendent or management.

About half past 9 o'clock of the morning of July 7, 1916, the deceased went into the cooler, took a bottle from under the tank and drank from it. The bottle contained muriatic acid, and the injury that followed the draft resulted in the death of the deceased. The deceased mistook the bottle containing muriatic acid, which he took from under the sink, for his bottle of drinking water, which he kept under the sink in or near the same place. The evidence warranted the finding that the bottle of acid had been left by tinsmith employés of the subscriber from their work in soldering, and does not support that contention that it was malici

ously, or in joke, substituted by a tinsmith, for the bottle of the deceased.

[1, 2] We are of opinion there was a causal connection between the employment and the accident. The placing of bottles of coffee or tea in the cooler had the sanction and approval of the subscriber. There is no evidence that it disapproved the cooling of water in bottles in the refrigerator, and it would be a natural and reasonable expectation that employés would place water in bottles in the cooler in summer time to relieve the thirst of the employés or to be drunk by them with their meals, in preference to drinking from the end of a rubber tube or from a bubble fountain after going to the floor below. We are also of the opinion that the risk of drinking acid from a bottle which had been exchanged or substituted for a bottle of like appearance containing drinking water by the employé, whose work required the use of such a substance, was not too remote a danger to be found to be an incident of that employment.

[3] The insurer contends that there was error in ordering the insurer to pay to the two surviving partially dependent daughters equal sums, and claims that under section 7 of part 2 of St. 1911, c. 751, which reads "if there is no one wholly dependent and more than one person partly dependent, the death benefit shall be divided among them according to the relative extent of their dependency," there "must be evidence that the deceased contributed such and such an amount of money to Anna and such and such an amount of money to Mary." The evidence was ample to support the findings as to the partial dependency of each of the daughters upon the sum of money which was contributed each week to the family fund for the support of the family. Decree affirmed.

Where the injured employee began work during the summer, and returned to school in the fall, and each day at the end of the school session worked as a spare weaver, or spare-time worker, for approximately three hours, also working on Saturdays, there was no basis for the Industrial Accident Board to ascertain her "average weekly wages," as defined in Workmen's Compensation Act (St. 1911, c. 751) pt. 5, § 2.

* Decision rendered, Feb. 26, 1918. 118 N. E. Rep. 674.

2. WORKMEN'S COMPENSATION-FINDING AS TO "LOST TIME."

On such facts, the finding of the Industrial Accident Board that all time, except such working hours, was "lost time," within the meaning of the Compensation Act, cannot be sustained.

3. WORKMEN'S COMPENSATION—ASCERTAINMENT OF AVERAGE WEEKLY WAGES.

In absence of evidence to show what average weekly amount during the twelve months previous to the employee's injury was being earned by a person in the same grade, employed at the same work, by the same employer, and of the average weekly wages earned by a person in the same grade, employed in the same class of employment, and in the same district, the average weekly wages of the employee cannot be ascertained by the board, under the act, pt. 5, § 2, providing that, where it is impracticable to compute the average weekly wages as above defined, regard may be had to the average weekly amount which during the twelve months previous to the injury was being earned by a person in the same grade employed at the same work by the same employer, etc.

4. WORKMEN'S COMPENSATION-DETERMINATION OF AMOUNT OF COMPENSATION.

The amount of compensatoin to be awarded an injured employee under Workmen's Compensation Act, pt. 5, § 2, is to be determined, not by what the employee is capable of earning, but by what was actually earned. 5. WORKMEN'S COMPENSATION-DETERMINATION OF AMOUNT OF AWARD.

Compensation to be awarded an injured employee, under Workmen's Compensation Act, could not be determined upon the average weekly wages of a weaver, in the absence of evidence to show the employee was a weaver; it appearing, on the contrary, that she was a spare weaver, or spare-time worker, and there being nothing to indicate the average weekly wages of such a person.

6. WORKMEN'S COMPENSATION-DETERMINATION OF AMOUNT OF COMPENSATION "AVERAGE WEEKLY WAGES."

If there is no such kind of employment recognized in textile manufacturing as that of spare weaver, or spare-time worker (which the injured employee was), the "average weekly wages" actually earned by one working as a spare weaver during the time she was actually employed is the basis of compensation, under Workmen's Compensation Act; "average weekly wages," in such case, not being confined to the definition in part 5, § 2.

7. WORKMEN'S COMPENSATION ACT-AMOUNT OF COMPENSATION-COMPUTATION OF EARNINGS-" A VER A GE WEEKLY WAGES."

Where the definition of average weekly wages in Workmen's Compensation Act, pt. 5, § 2, is not applicable to the case of a particular employee, the words "average weekly wages." in part 2, §§ 9, 10, as to payment. should be interpreted in their common and ordinary sense, and be computed by dividing the total amount earned by the number of weeks of employment.

Appeal from Superior Court, Suffolk County.

Proceedings under the Workmen's Compensation Act by Martha Rice, opposed by the American Mutual Liability Insurance Company, the insurer. Compensation was awarded by the Industrial Accident Board, the