Appeal from Superior Court, Suffolk County. Proceedings for compensation under the Workmen's Compensation Act (St. 1911, c. 751, as amended by St. 1912, c. 571) by John McCarthy, the employee, opposed by the Town of Danvers, the employer, and the Employers' Liability Assurance Corporation, Limited, the insurer. Compensation was awarded, the award affirmed by the superior court, and the insurer appeals. Decree reversed, and case recommitted to the Industrial Accident Board. McSweeney & McSweeney, and F. H. Caskin, all of Salem, and A. Glovsky, of Danvers, for employee. Sawyer, Hardy, Stone & Morrison, of Boston (Gay Gleason, of Boston, of counsel), for insurer. CARROLL, J. John McCarthy, an employee of the town of Danvers, sustained a personal injury from sunstroke while working for the insured in its gravel or sand pit. One witness testified that the pit was low, shielded from the north and west, and while he thought no breeze was blowing on the day of McCarthy's injury, the pit was so located that a breeze would be shut off, and that the day was one of the hottest of the summer. "Sand attracts the sun. * * * On a hot day a sand bank is about the hottest place that can be found. * * A man working in a trench in the street would not feel the heat so much." “A man would rather work anywhere than in the pit on a hot day." The board found the employee suffered a personal injury which arose out of and in the course of his employment; that by reason of his work in the sand pit "he was subjected to a materially greater danger of sunstroke than an ordinary person or outdoor worker." * In McManaman's case, 224 Mass. 554, 113 N. E. 287, it was held that a longshoreman, whose hands were frozen while working on a pier extending into the harbor, where the cold is greater than that to which a person working in the open is ordinarily exposed, could recover under the Workmen's Compensation Act; but it was found as a fact in the case that the petitioner was not at liberty to stop his work to prevent his hands from being frozen, as a person ordinarily would have been at liberty to do. In the case at bar there is no finding that the petitioner was required to remain at work if the heat was too severe; and the foreman testified that the men were told "if it became too hot there that they could quit." The evidence to support the finding that the heat in the gravel pit was any greater than the heat to which an ordinary outdoor worker is exposed, is very slight. There is, however, some evidence to that effect. But because there is nothing to show that the petitioner was required to remain in the pit and could not leave the work if he felt he was affected by the heat, the case must be recommitted to the Industrial Accident Board. It may be that because of the excessive heat he was suddenly overcome and had no opportunity to escape, but there is no finding on this point. The decrce is reversed, and the case recommitted to the Industrial Accident Board to hear the parties on the question whether the employee was at liberty to stop his work in time to protect himself from injury. At this hearing both parties may introduce further evidence. So ordered. SUPREME COURT OF MICHIGAN. ANDERSON V. McVANNEL ET AL. (No. 48.)* MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -ACCEPTANCE BY EMPLOYER-DIFFERENT BUSINESSES. An employer, being free to come under the Workmen's Compensation Act (Acts Ex. Sess. 1912, No. 10) or stay out, may accept it as to one or more of several lines of business in which he is engaged. (For other cases, see Master and Servant, Dec. Dig. § 351.) Certiorari to Industrial Accident Board. Proceeding under the Workmen's Compensation Act by Anna Anderson against William McVannel and another. Award granted, and defendants bring certiorari. Reversed, and award vacated. Argued before Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ. Vandeveer & Foster, of Detroit, for appellants. BIRD, J. Defendant McVannel, who was engaged in the livery business in the city of Marquette, entered into a contract in September, 1914, with the city to improve Specular street. Before commencing the work he accepted in writing the provisions of the Workmen's Compensation Law for his livery business and street contract work. In July, 1915, he contracted with Charles Dutmer to clear a certain piece of land lying two miles north of the city. To aid him in this work he employed Charles Anderson, a son of the plaintiff. While blasting stumps, Anderson was killed. His mother, the plaintiff, applied to the Industrial Board for an award, and it was granted in the sum of $6.49 per week for 300 weeks. Defendants contended before the board, as they do here, that * Decision rendered, June 3, 1918. 167 N. W. Rep. 860. the board had no jurisdiction to make an award in the premises, because the deceased did not belong to either class of employees which was protected by McVannel's acceptance of the compensation law; that Anderson was neither employed in the livery stable nor on the street contract. The material part of McVannel's acceptance of the compensation law is in the following form: "*.* Number of employees: Eight. Location of place of employment: Livery and road contract. (If more than one plant, place of business or work, place, state each fully.) Livery, Baraga avenue; street contract, Specular street, Marquette, Michigan. Nature of employment: Livery and street contract.” Plaintiff takes the position that: "An employer of labor in Michigan who accepts the provisions of the Michigan Workmen's Compensation Law accepts it for the benefit of all employees he employs in all the businesses he conducts, except only that his acceptance does not cover household or domestic servants, and farm laborers, unless the acceptance specifially covers such employees, and except, also, that no acceptance includes any person whose employment is but casual, or is not in the usual course of the trade, business, profession, or occupation of the employer." An examination of the compensation act does not disclose that it anywhere in express terms permits an employer to come under the law as to one business and not as to another, nor does it anywhere prohibit it in express term. It does not compel an employer to accept its terms for any of his business activities, unless he chooses to do so. He is free to come under the law or to stay out. This being so, why may he not accept its terms as to one business and not as to another? Inasmuch as the election lies with him whether he will come under the law, I can see no good reason why he should not be permitted to accept its terms for one distinct business and not for another. It may be, and probably is, a reasonable construction of the act to say that, when one elects to come under it, his election covers all employs in the distinct business specified in his application, because, if this were not so, it would lead to much confusion among the employers as to which ones were covered and which were not covered. But no serious confusion would occur if all employees in a distinct business were protected. We think it is doing no violence to the act to hold that it contemplates that an employer with two or more business activities may accept as to one and not as to the others. This question was before the court in Kauri v. Messner et al., 164 N. W. 537. It was there said: "It is conter.ded by defendant that the acceptance of the act and Messner's contract of indemnity cover only the men engaged in his lumbering business, and not the men to whom he gives casual employment in some other business. In other words, that he had a right to accept the Compensation Act as a lumber man without doing so as a farmer. This point appears to be well taken. It has already been decided by this court that a man may be engaged in more than one enterprise and may accept the terms of the Compensation Act as to one and not as to the other--[citing Bayer v. Bayer, 191 Mich. 423, 158 N. W. 109]." A suggestion is made that this holding is not conclusive of the present controversy, if the conclusion in the case cited was rested on the fact that the employee was engaged in farming, an occupation within the excepted class. The language of the opinion clearly indicates that the result reached was not rested upon that ground, but was rested squarely on the fact that the deceased was not within the class of employees engaged in logging. We think the case is ruled by the one cited, and therefore the finding of the Industrial Accident Board must be reversed, and the award vacated. SUPREME COURT OF MICHIGAN. BAASE ບ. BANNER COAL CO. ET AL. (No. 82.)* MASTER AND SERVANT-WORKMEN'S COMPENSATION— CLAIM FOR COMPENSATION. In proceedings by an employee for compensation under Workmen's Compensation Act (Pub. Acts 1912 [Ex. Sess.] No. 10), a statement by him to his employer's manager in a casual conversation, that “he would have to make a claim if he did not get better," is not a sufficient compliance with part 2, §§ 15-18, requiring claim to be made within six months. (For other cases, see Master and Servant, Dec. Dig. § 398.) Certiorari to Industrial Accident Board. Proceedings by Charles Baase under the Workmen's Compenzation Act, opposed by the Banner Coal Company, employer, and the Employers' Liability Assurance Company, Limited, insurer, to recove compensation for personal injuries. From an award affirmed on appeal by the full Industrial Board, the employer and insurer bring certic rari. Award set aside. Argued before Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ. Angell, Bodman & Turner and C. G. Dyer, all of Detroit, for appellants. Purcell & Travers, of Saginaw, for appellee. * Decision rendered, June 3, 1918. 167 N. W. Rep. 954. MOORE. J. Charles Baase, prior to October 29, 1915, was in the employ of the Banner Coal Company. The Employers' Liability Assurance Company, Limited, is the insurance company carrying the risk of said coal company. On the date mentioned claimant sustained an injury while in the course of his employment. This injury was duly reported by the employer to the insurance company, which in turn reported the accident to the Industrial Accident Board. After the injury claimant was treated by various doctors. On December 17, 1916, claimant made his first claim in writing for compensation. On December 23, 1916, he filed the regular "Notice to Employer of Claim for Injury." The claim was heard before an arbitration committee on April 27, 1917, and an award made that claimant was entitled to receive and recover from defendants the sum of $7.14 per week for the period of his disability. This award upon appeal was affirmed by the full board. The case is brought here by certiorari. Appellants claim: (1) That the present disability of claimant is not due to the injury of October 29, 1915, and the decision of the board to that effect is based entirely on conjecture and not supported by any competent evidence; (2) that no claim. for compensation with respect to the alleged injury was made within six months after the occurrence of the same, and there was no evidence whatsoever of any physical or mental incapacity on the part of claimant which would extend the statutory period. A determination of the second claim will make it unnecessary to discuss the other. Sections 15 to 18 of part 2 of the Workmen's Compensation Act had the attention of this court in Armstrong v. Oakland Vinegar & Pickle Co. et al., 163 N. W. 897; Podkastelnea v. Michigan Cent. Railroad Co., 164 N. W. 418; Cooke v. Furnace Co. et al., 166 N. W. 1013; Dane v. Michigan United Traction Co., 166 N. W. 1017; and Kalucki v. American Car & Foundry Co., 166 N. W. 1011. In the last three cases opinions were handed down in March, 1918. It is there determined that the claim for compensation must be made within six months of the time of the injury. It is the contention of claimant that, though he did not make a claim in writing within six months, he did so in fact. This claim is based upon his testimony reading as follows: "Q. About that time or shortly after, did you have a conversation with Mr. Carmichael? A. I did. Q. What position did he hold with the Banner Coal Company? A. So far as I know he was manager. * * * Q. When was this conversation with Mr. Carmichael? A. About February 16, 1916. Q. Did you explain to him fully what your injury was? A. I stated that my injury bothered me, and I was sore, and I really had to quit. Q. What was Mr. Carmichael doing at that * * * |