107, L. R. A. 1917E, 522, we had before us the case of a workman predisposed to epilepsy, falling in an epileptic fit from a scaffold, causing his death. We there held that the accident did not arise out of deceased's employment, but was due solely to the epileptic fit and denied compensation. But in that case the board found as a fact, and there was evidence and circumstances to support it, that the fall which deceased suffered was caused by the epileptic fit. Here the board has found, and the circumstances permit the inference, that the fall which deceased suffered was caused by tripping on a nail protruding from the floor. While plaintiff testifies that at times he had been dizzy and weak, he also testifies that it was nothing to speak of, but slight, and never sufficient to cause him to lose his balance and fall. His fellow workmen and superiors in the plant who saw him daily never noticed any appearance of dizziness or fainting, and never saw him fall before. The fact that he did not recall just how the accident happened is in no way extraordinary, when we contemplate that in the fall he struck his head with sufficient force to inflict a gash in his scalp. He was over 70 years of age, not as nimble as in his younger years, and had had trouble with his limbs and feet a short time before. We are not persuaded that we should say, as matter of law, that the cause of the accident under the evidence in the case is so conjectural as to require us to set aside the finding and award of the board. See Grove v. Michigan Paper Co., 184 Mich. 449, 151 N. W. 554; Papinaw v. Grand Trunk Ry. Co., 189 Mich. 441, 155 N. W. 545; Kinney v. Cadillac Motorcar Co., 165 N. W. 651; Meyers v. Mich. Čent. R. Co., 165 N. W. 703; Holnagle v. Lansing Fuel Co. et al., 200 Mich. 132, 166 N. W. 843; Wishcaless v. Hammond Standish Co., 166 N. W. 993; S. S. Swansea Vale v. Rice, supra; Fennah v. Middland Great Western Ry., 4 B. W. C. C. 440; Carroll v. Wheat Cheer Stables .Co., 38 R. I. 421, 96 Atl. 208, L. R. A. 1916D, 154. The award will be affirmed. SUPREME COURT OF MICHIGAN. ENGBERG ET AL. V. VICTORIA COPPER MINING CO. (No. 90.)* MASTER AND SERVANT-WORKMEN'S COMPENSATION-DERENDENTS-EVIDENCE. The question of dependency under Workmen's Compensation Act (Pub. Acts 1912 [Ex. Sess.] No. 10), the question must be decided as of the * Decision rendered, June 3, 1918. 167 N. W. Rep. 840. time of the injury, and evidence that father of the deceased employee lost his health after the employee's death and was forced to give up his employment, was immaterial. (For other cases, see Master and Servant, Dec. Dig. § 388.) Certiorari to Industrial Accident Board. Proceedings under the Workmen's Compensation Act by Mary Engberg and another, opposed by Victoria Copper Mining Company, employer, for compensation for the death of Albert Engberg. From an award for claimants, the employer brings certiorari. Reversed and remanded. Argued before Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ. Hanchette & Lawton, of Hancock, for appellant. STONE, J. Albert Engberg, who was the son of Axel Engberg and Mary Engberg, the claimants, was 19 years of age, unmarried, and lived with his parents. On December 6, 1916, Albert was accidentally killed at the mine of the respondent. Claimants made application for compensation under the Workmen's Compensation Act, and the case duly went to arbitration, and at the hearing before the committee of arbitration, the attorney for the respondent stated: "We admit that Albert Engberg, the intestate, was an employee of the Victoria Copper Mining Company, and met with an accident that was the cause of his death while in the company's employ; that the respondent here has elected to abide by the compensation law. The accident arose out of his employment, and in the course of his employment. He has not filed any notice of election not to abide by the act. The only question in dispute is the dependency of Mary Engberg, the mother of deceased, and the extent of such dependency. [Axel Engberg, the father, was by stipulation later admitted as a joint claimant.] The company claims that the father and mother, or neither of them, were dependent upon this young man's wages for their support; that he made no contributions towards their support, as contemplated by law. * * * " Respondent's counsel also stated: "It is admitted that the average weekly wage of Albert Engberg, for the year immediately preceding the accident which caused his death, was $15.11 per week, and for the next preceding year his average weekly wage was $10.84 per week, and that for the next preceding year his average weekly wage was $8.65 per week." After hearing evidence the committee of arbitration awarded to the applicants the sum of $5.148 per week for a period of 300 weeks. From this award respondent appealed to the Industrial Accident Board, and it may be said that the only question in volved is that of dependency. Additional testimony was taken before the full board, and the hearing resulted in a finding and order affirming allowance to claimants, but slightly increasing the amount to $5.24. Among other findings of the Industrial Accident Board are the following: that "The proofs also shows that the father's health is not the best, he having been compelled to give up his employment as an underground miner subsequent to the death of the deceased, although previous to the date of the death he had been employed underground quite steadily, at a daily wage of $3.25; * under the Michigan Workmen's Compensation Law the cost of the board of the deceased should not be deducted from the amounts that the deceased contributed to his father and mother, as there are no provisions in the Workmen's Compensation law under which the cost of board could be deducted." There was testimony to the effect that after the death of Albert, and after the making of the claim in April, 1917, the father changed his job on account of poor health; that instead of working underground, where he had for a number of years earned $3.25 a day, he did surface work at $2.65 a day. Without detailing all of the facts, it sufficiently appears that the Industrial Accident Board in making its award erred in not applying to the facts the proper legal principles. It was improper to take into consideration the changed condition of the father, and the fact that he earned a lower daily wage, after the son's death. What occurred after the death of Albert, as to the earnings of the father or mother, was immaterial. In Miller v. Riverside Storage, etc., Co., 189 Mich. 360, 155 N. W. 462, we said: "Questions as to who constitute dependents and the extent of their dependency, are to be determined as of the date of the accident to the employee, and their right to any death benefit becomes fixed as of such time, irrespective of any subsequent change of conditions." That it is the condition existing at the time of the accident which determines the question of dependency see, also, Finn v. Detroit, etc., Ry., 190 Mich. 112, 155 N. W. 721, L. R. A. 1916C, 1142. The instant clain was acted upon by the board October 31, 1917, about two months before the handing down of the opinion of this court in Moll v. City Bakery, 165 N. W. 649. We think that opinion is decisive of the instant case. Chief Justice Kuhn, speaking for the court in that case, said: "In determining the question of the dependency of the parents, the board refused to take into consideration the cost of the son's support. It is conceded that the cost of maintenance of the deceased son would be, if allowed at a reasonable figure, $4 per week, and it is the claim of respondents that this should have. Vol. II-Comp. 22. been deducted from the family expenses, when the dependency of the parents is considered; and it is their claim that the money devoted to the decedent's own support could not, at the same time, be devoted to the support of his parents. The board was of the opinion that there is nothing in the compensation law which would suggest any deduction for board of a son in a case of this kind.' But in our opinion this overlooks a fundamental principle underlying the law, and that is that it was adopted to compensate for a loss, and that the loss in every case inust be determined by the facts in that particular case." We see no distinction in principle between the cases. In the Moll Case it appeared that, deducting the $4 per week, there was no dependency. Applying the proper rules of law as here indicated, in the instant case there may be a reduced dependency. The amount, if any, we shall not undertake to determine from this record. Applying the rule stated in Carpenter v. Detroit Forging Co., 191 Mich. 45, 157 N. W. 374, the order of the Industrial Accident Board will be reversed, and the case remanded for such further hearing therein before the board as the parties may desire. It is so ordered. WEST BAY CITY SUGAR CO. ET AL. (No. 25.)* 1. MASTER AND SERVANT-FINDINGS OF FACT OF INDUSTRIAL ACCIDENT BOARD-REVIEW. Where, in proceedings for workman's compensation, there is testimony in the record to sustain the finding of fact of the Industrial Accident Board, such findings will not be disturbed in the absence of fraud. (For other cases, see Master and Servant, Dec. Dig. § 418[6].) 2. MASTER AND SERVANT-WORKMAN'S COMPENSATIONDEPENDENTS-EVIDENCE. In a proceeding for compensation for the death of a fireman for a sugar company, evidence held to support a finding that plaintiffs were partially dependent on deceased. (For other cases, see Master and Servant, Dec. Dig. § 405[5].) 3. MASTER AND SERVANT-WORKMAN'S COMPENSATION-CLASSIFICATION. In a proceeding for compensation for the death of a fireman employed by a sugar company which operated about 60 days in the fall of * Decision rendered, June 3, 1918. 167 N. W. Rep. 843. each year, the employment was seasonal, and compensation should have been computed under the fourth classification in Employers' Liability and Workmen's Compensation Act (Pub. Acts [Ex. Sess.] 1912. No. 10) pt. 2, § 11, providing that where the annual average earnings cannot be ascertained by enumerated methods, they shall be such sum as, having regard to the previous earnings of the injured employee, and of others in same or most similar class, etc., shall reasonably represent the annual earning capacity of the injured employee at the time of the accident. (For other cases, see Master and Servant, Dec. Dig. § 385[20].) Certiorari to Industrial Accident Board. Proceedings for compensation under the Workmen's Compensation Act by Peter Cramer and others, dependents, opposed by the West Bay City Sugar Company, employer, and the General Accident, Fire & Life Assurance Corporation, Limited, insurer, to recover for the death of John Cramer. There was an award for partial dependency in plaintiff's favor, and dependents bring certiorari. Award vacated, and cause remanded. Argued before Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ. Arthur Sauve, of Bay City, for appellants. FELLOWS, J. Deceased, John Cramer, was in the employ of defendant sugar company as a fireman during its "campaign" in the fall of 1916. While so employed, using a heavy iron bar weighing about 90 pounds, in breaking clinkers in one of the furnaces, he received an injury to his right hip or leg by the slipping of the bar and its striking him with some force. This eccurred in the fore part of November, but the exact date is in dispute, as is also the length of time he continued to work thereafter. It appears, however, that he became unable to pursue his employment, and remained indoors until Christmas Eve, when he went down town to have his hair cut, accompanied by his brother and a friend. When on the street his crutch slipped and he fell. It is to be inferred that he either received a fracture at or about the place of injury, or that the injury was considerably aggravated by the fall. He does not appear to have received the attention and treatment that his condition required, and not until January 11th following was he taken to the hospital, where he was operated upon on the 13th, but did not recover from the shock, and died the same day. The board found the injury received while in the employ of defendant sugar company was the proximate cause of his death, and made an award for partial. dependency in favor of plaintiffs, who are his father, mother, and young sister, using the so-called "300 rule" in making the computation. [1] Testimony was introduced tending to show that deceased was lame and used a cane prior to his employment by defendant, but this was denied by other witnesses. Members of his family |