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method by which the settlement receipt was obtained is questioned by plaintiff, and also by the board. We see no occasion to discuss this question further than to say that, inasmuch as the settlement receipt was not filed and approved, the board would be in no wise concluded by it. [4] It appears to be conceded that plaintiff was injured and entitled to compensation. The disagreement arises over the length of time he was entitled to it. In the event the parties could not agree as to this, it was a proper question for the board to determine. This the board did do, but counsel argue that its finding is not supported by the testimony.

[5] It appears without question that plaintiff was severly injured on April 23d, and that on July 17th he was still under the doctor's care and his left arm was in a sling, and that he was unable to make any use of it. The doctor advised him, at about this date, that he thought he could resume his work of watchman if he were careful. The doctor does not say he had fully recovered. Acting on the doctor's suggestion, plaintiff started for his place of employment, but was injured before reaching there. He submitted this third injury to Dr. Hall, defendant's physician, and he remarked "that it was as bad as ever," and continued to treat him for several weeks thereafter. Dr. O'Donell, who treated him for the injury of March 7th, testified that the numbness of the fingers was probably due to an injury to the nerves when the shoulder was dislocated; that at the end of five or six weeks of treatment the injury was progressing nicely, with good prospects for complete recovery. He also testified he had examined him within two or three days of the hearing, and his arm at that time had lost 100 per cent. of its usefulness, and, in his judgment, would never be any better. Measuring plaintiff's condition as described by Dr. O'Donell before his employment with defendant with his condition as described on July 17th, we think it is open to a reasonable inference that plaintiff had not recovered on July 17th from his injuries of April 23d. Neither do we think the inference of the board that the injury of April 23d contributed to the injury of July 17th and was aggravated by it is unsupported by the evidence.

[6] Just to what extent plaintiff's present condition is due to the original injury is somewhat difficult to determine. It may be inferred from Dr. O'Donell's testimony that the effect of the injuries of March 7th would have disappeared had it not been for the injury of April 23d. This, however, was a question of fact, and we must assume that due consideration was given to it by the board.

The order of the Industrial Accident Board is affimed.

SUPREME COURT OF MICHIGAN.

GAFFNEY
ບ.

GOODWILLIE BROS. (No. 82.)*

1. MASTER AND SERVANT - WORKMEN'S COMPENSATIONREVIEW OF FINDINGS OF INDUSTRIAL ACCIDENT BOARD. That reviewing court is satisfied that it would not reach the conclusion reached by the Industrial Accident Board is not conclusive in determining whether there is testimony supporting finding and conclusion of such board.

(For other cases, see Master and Servant, Dec. Dig. 417[7].)

2. MASTER AND SERVANT — WORKMEN'S COMPENSATION— AWARD-REVIEW.

Disputed question being whether accident caused employee's illness and death, award will not be set aside by reviewing court, where, although testimony cannot be harmonized, there is ground for saying that Industrial Accident Board had before it some evidence tending to prove that accident set up a train of physical disturbances, affecting an existing pathological condition in such way as to cause death.

(For other cases, see Master and Servant, Dec. Dig. 417[7].)

3. MASTER AND SERVANT - WORKMEN'S COMPENSATIONCERTIORARI-MATTERS REVIEWABLE.

Contention that imposition of penalty, pursuant to Workmen's Compensation Act (Pub. Acts [Ex. Sess.] 1912, No. 10) pt. 3, § 17, upon defendant employers for failure to report accident, is wrong, will not be considered by reviewing court, where order made by Industrial Accident Board makes no reference to penalty; court being concerned only with orders made by board.

(For other cases, see Master and Servant, Dec. Dig. § 417[5].)

Certiorari to Industrial Accident Board.

Proceeding for compensation under the Workmen's Compensation Act by Ellen Gaffney, widow of John Gaffney, deceased employee, opposed by Goodwillie Bros., employers. The Board of Arbitration refused to award compensation. Upon a review by the Industrial Accident Board, the finding was reversed, and compensation allowed, and the employers bring certiorari. Affirmed.

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

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James C. Wood, of Manistique, for appellants.
Virgil I. Hixson, of Manistique, for appellee.

PER CURIAM. The Board of Arbitration refused, two to one, to award compensation. Upon a review by the Industrial Accident Board, the finding was reversed and compensation allowed. It is admitted that the claimant's widow of the deceased, John Gaffney, that John Gaffney was employed by Goodwillie Bros., and that both the employer and em* Decision rendered, Dec. 27, 1918. 169 N. W. Rep. 849.

Vol. III-Comp. 21.

ployed were governed by the Workmen's Compensation Law; that on October 20, 1916, John Gaffney suffered an accidental personal injury arising out of and in the course of his employment; that John Gaffney has since died; that, if the claimant is entitled to compensation, the award should be for 300 weeks at $5.77 per week. It is not admitted, but is denied, that John Gaffney upon the said occasion received any considerable injury, one that disabled him or resulted in his death. What happened, and the testimony is not in dispute, was that, in taking a board from a machine, another board following it through, the machine pushed the board in Gaffney's hands with such force that he was obliged to step back from the machine, or was pushed back from the machine, against and over and upon a truck, from which he fell or rolled to the floor. He immediately arose and resumed work, without complaint, except to say that his right hip was hurt. This was early in the forenoon. He worked the remainder of the day. He died December 29, 1916, having been ill from and after October 20, 1916. All the testimony supports the conclusion that he was a sick man on Monday, October 23, 1916, suffering acutely, and thereafter, with variations of acute symptoms, until he died. Whether what happened to Gaffney at his work, on October 20th, caused his illness and death, is the subject to which a considerable mass of testimony, medical and other, is addressed. In a lengthy finding and opinion, the board has set out its reasons for awarding compensation, in the course of which occurs the following:

"It is pretty difficult to say just how hard the man was struck, shoved, or pushed, but the fact remains that he was struck, shoved, or pushed, and went backward 3 feet, and fell upon a truck 12 or 15 inches high, and rolled over it and fell upon the floor. The board is convinced that the accident was a somewhat serious one, taking all of the testimony into consideration, and that it did injure the deceased very seriously and severely.

* * *

"We are all satisfied that the factor which caused this man's death was the accidental, personal injury he received in the respondent's plant, on October 20, 1916. *

* *

"In this case it is probably impossible to say, with absolute surety, what caused John Gaffney's death; but the Board is satisfied that the most probable cause is the accidental personal injury he received in the employ of the respondents. That injury might or might not have caused the death of a young, strong, healthy, normal individual. Taking the testimony as a whole, the board is of the opinion that the accidental personal injury was the cause of his death."

And the board finds specifically:

"That on October 20, 1916, John Gaffney, deceased, suffered an accidental personal injury, arising out of and in the course of his employment, by being struck, shoved, or pushed by a machine and a board, causing him to fall upon and over a truck and to the floor of the mill in which he was working.

"(c) That, as a result of said accidental personal injury, he was disabled from and after October 20, 1916, until his death on December 29, 1916."

[1] We are concerned only to ascertain, it being asserted to the contrary, whether there is testimony supporting the finding and conclusion of the board. We are not all of us satisfied that we would reach the same conclusion, which, of course, is not the controlling thing. We shall not set out the testimony. Any analysis of it leaves some ultimate facts to depend upon inferences. But it remains that Mr. Gaffney, a man more than 65 years old, was in fact diseased, suffering from an advanced stage of arteriosclerosis. He had been able to work, but to quote from the medical testimony:

"A person with arteriosclerosis, as I discovered upon post mortem this

man had had, would be more likely to be affected by a fall than if he was not suffering with that."

And again:

"A man suffering with arteriosclerosis, in the advanced stage which we found in this man, must have a weak heart. He is living, more or less, in the balance, and waiting for some cause to intervene to throw him in a state of acute illness; then any trivial influence, whether exposure or whatever else it might be, might give him broncho-pneumonia, or produce evidences of congestion of the kidneys, or any other acute disease which takes these people off."

[2] The testimony cannot be harmonized. 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 his death. We therefore decline to set aside the award.

[3] The board, at some length, enters into a discussion of the conduct of the employer, and concludes:

"(e) that the respondents, without any cause or reason, failed and neglected to report this accident to the Industrial Accident Board, in accordance with section 17, part 3, of the Workmen's Compensation Law, and subjected themselves to the imposition of the penalty of $50 mentioned in said section of the law."

The law provides that an employer who refuses or neglects to make the_report "shall be punished by a fine of not more than fifty dollars for each offense."

Counsel for appellants directs our attention to this finding of the board, discusses the facts relating to it, and adds that "the imposition of a penalty upon defendants is wrong, and should be reversed."

We are concerned only with the order made by the board, which makes no reference to the matter. The board has not imposed a penalty or levied a fine. Upon this subject there is no order to be reversed or affirmed. We therefore do not regard the point as one for decision.

SUPREME COURT OF MICHIGAN.

GINSBERG
ບ.

BURROUGHS ADDING MACH. CO. (No. 16.)*

3. MASTER AND SERVANT

WORKMEN'S COMPENSATION

ACT-REVERSAL FOR HARMLESS ERROR.

Supreme Court should not reverse award of compensation by Industrial Accident Board for admission or hearsay evidence, if there is competent evidence to sustain the board's finding, but should affirm.

(For other cases, see Master and Servant, Dec. Dig. § 417 [8].)

* Decision rendered, Dec. 27, 1918. 170 N. W. Rep. 15..

4. MASTER AND SERVANT WORKMEN'S COMPENSATION ACT-BURDEN OF PROOF.

Burden to establish claim under Compensation Act rests on those seeking award, who may prove their case by circumstantial evidence, as other cases are established.

(For other cases, see Master and Servant, Dec. Dig. §§ 403, 405[1].) 5. MASTER AND SERVANT WORKMEN'S COMPENSATION ACT-PROVINCE OF INDUSTRIAL ACCIDENT BOARD.

In a compensation case, the Industrial Accident Board is the trier of facts, and weighs conflicting testimony, medical as well as lay, having province to draw legitimate inferences from established facts, and to weigh probabilities from them, though inferences must be from established facts, and inference may not be built upon inference.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].)

6. MASTER AND SERVANT

WORKMEN'S COMPENSATION

ACT-ESTABLISHMENT OF CASE-INFERENCES FROM

FACTS.

If inference favorable to applicant under Compensation Act can be arrived at by Industrial Accident Board only by conjecture or speculation, applicant may not recover, and also must fail if there are two or more inferences equally consistent with facts arising from established facts.

(For other cases, see Master and Servant, Dec. Dig. § 405[1].)

7. MASTER AND SERVANT WORKMEN'S COMPENSATION ACT-AWARD-LACK OF SUPPORT IN EVIDENCE.

Where only witness, in widow's proceedings for compensation for husband's death, who saw accident, testified falling box only struck husband's toe, but death was caused by blood clot in intestines which originated in thigh, testimony of husband's statements being only evidence that falling box struck thigh, award could not stand.

(For other cases, see Master and Servant, Dec. Dig. 405[4].)

Moore, Bird, and Kuhn, JJ., dissenting.

Certiorari to Industrial Accident Board.

Proceedings for compensation under the Workmen's Compensation Act (Pub. Acts 1912 [Ex. Sess.] No. 10) for death of her husband by Dina Ginsberg, opposed by the Burroughs Adding Machine Co., the employer. Compensation was awarded by the Industrial Accident Board, and to review the award the employer brings certiorari. Award vacated.

Plaintiff's husband, the decedent, was in the employ of the defendant on June 6, 1917. He and others were unloading boxes of steel from box cars. The boxes of steel were about 1% feet square and from 61⁄2 to 7 feet long. They weighed from 400 to 800 pounds. They were loaded in the ends of the car. The other workmen employed with decedent were named Trzienski and Schacht. The manner of conducting the work in hand was that Trzienski and Schacht with Iron hooks, similar to ice tongs, would take down the boxes from their places in the car; with the aid of a roller, consisting of a two-inch gas pipe, they would be conveyed to the door; there decedent would attach a similar hook which was connected with rope and pulley; he would put the hooks or tongs in the center of the boxes, and they would be lifted by the operation of the rope and pulley and slid out of the car. Schacht was not called as a witness, but Trzienski was. He testified that in the afternoon of the day in question he was trying to raise a box which he estimates would weigh about 600 pounds; decedent was ready to put the roller under it; that he was un

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