wages he was receiving at the time he was injured, and for six weeks prior thereto, from the respondent. The record does not show any agreement at the arbitration, or elsewhere, as to the daily wage, except for the period named. It is undisputed that when he was injured, and for four years immediately preceding that time, claimant's decedent had no other employment than that of carpenter, unless it should be said that while performing certain contracts he is said to have made he was not employed as a carpenter. It, of course, is immaterial how many employers he had during the last or any year if his employment was the same, viz. that of carpenter. The record affords no information upon the subject of his contracts for the year preceding his death; indeed, it is not clear that during that year he made and performed any contract. The man who worked with him for the last four years testified:

"We took contracts, but we didn't contract very steadily. We would take a building by the job and do that, and maybe the next one would be by the day, and that is the way we did."

The claimant testified:

"He was employed during the last four or five years before his death at carpenter work and contracting."

[1] The record further shows, without dispute, that carpenters in Cadillac, where the deceased lived, worked all the year at their employment if they can find work to do, but that in the winter season outside work is not generally practicable. This may be said to be the rule in this latitude. Two months or more in the winter are dull months for those in the building trades, although it is common knowledge that inside finishing and repairing of buildings may be and is carried on during the winter. It is a fair inference from the testimony that in Cadillac carpenters are usually idle for the most part for two or more months in the winter.

Findings A, B, and C of the board, so far as they relate to employment, rest upon the testimony referred to. In any event, there is none which contradicts it. The record shows, too, by the testimony of the man who worked with him, that during the last four years before the injury occurred "the rate of wages paid was 30 cents, and 10 hours constituted a day's work."

The findings A and B are not supported by testimony, because the testimony does not show, and there is none supporting the inference, that the deceased was not working substantially the whole of the year preceding the injury in the employment (carpenter) in which he was working when injured. The finding C is also unsupported, except as to the fact that during a substantial portion of the year immediately preceding the injury the deceased was working for himself.

What is the meaning of that part of finding C which reads, "that during a substantial portion of the year immediately preceding the in-jury which caused the death of Edward Campbell he was working for himself"? If it means that he was working by the job, and not by the day, the testimony does not support the finding, because, as has been pointed out, there is no testimony from which it can be found what, if any, portion of the time he was employed in doing work by the job.

[2] We think the rule generally to be applied in cases like this is the one first laid down in the statute, namely, that the fifty-second part of the average annual earnings is the average weekly wages. One may be forced to apply the fourth rule (see Andrejwski v. Woverine Coal Co., 182 Mich. 298, 148 N. W. 684, Ann. Cas. 1916D, 724), because none of the others can be reasonably applied. It appears that claimants decedent here sometimes took a building by the job. The natural inference from this language, and perhaps the necessary one, is that he furnished the materials as well as labor for a building. But, as has been pointed out, the testimony does not show whether a large or a very small proportion

of the time was employed in job work, and does not show with certainty that during the last year any jobs taken.

The statute, as we said in Adrej wski v. Wolverine Coal Company, "did in fact make provision which applied to all cases of such injuries and deaths occurring in all employments."

The committee of arbitration and the Industrial Accident Board act, necessarily, upon the evidence produced to them. We realize the difficulty which arises in cases like this one in applying the statute rule. But we think that there it is a matter of failure of proof and of proof which the respondent company is not in a position to produce. The rules of the statute are based upon the discovery of the amount of average annual earnings of the injured employee. The testimony does not furnish a complete basis for making this discovery. The fourth rule is:

"In cases where the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such annual earnings shall be taken at such sum as, having regard to the previous earnings of the injured employee, and of other employees of the same class, working in the same * employment, in the same * locality, shall reasonably represent the annual earning capacity of the injured employee at the time of the accident in the employment in which he was working at such time."

What the board did not do was to discover and state the average or any annual earning capacity of the deceased employee, or that of a carpenter working in Cadillac. We are of opinion that from the evidence produced it is not possible to state with certainty the average or any annual earning capacity of the injured man, and the necessary evidence is not in the possession of the respondent. There is a failure of evidence for which respondent is not responsible. We agree with counsel for respondent that it is unfair, upon this record, "to hold that Mr. Campbell's temporary employment for a period of six weeks by the defendant should automatically put him on a full time basis as to compensation under the statute.” It is not, we think, improper to suggest that probably evidence may easily be procured to show the average earn ing capacity of a carpenter in Cadillac. It is not unlikely that the witness Mr. Ready, who worked with the deceased during the last four years of his life, can, from memory, furnish data from which it can be ascertained whether deceased worked any of the time by the job during the last year; can, in any event, furnish data for ascertaining the average annual earnings of a carpenter in Cadillac. Engberg v. Victoria Co., 201 Mich. 570, 167 N. W. 840.

The award must be set aside, and the cause remanded for further proceedings. The costs of this appeal will be evenly divided between the parties.

SUPREME COURT OF MICHIGAN.

MILLER
V.

S. FAIR & SONS et al. (No. 64.)*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-"EMPLOYMENT."

The work of one engaged in what is ordinarily described as common labor is an "employment" within the meaning of the Workmen's Com*Decision rendered, April 3, 1919. 171 N. W. Rep. 380.

pensation Act, so that a servant employed in shoveling, requiring two hands, at the time of his injury. was not wholly disabled, but was only partially disabled, where he could do other work with one hand.

(For other cases, see Master and Servant, Dec. Dig. § 385[10].) (For other definitions, see Words and Phrases, First and Second Series, Employment.)

2. MASTER AND

SERVANT—WORKMEN'S COMPENSATION

ACT-COMPUTATION OF COMPENSATION.

In computing compensation for one partially disabled, average weekly wages that injured servant has been able to earn since his injury is a factor, but not wages he has been able to earn since the injury.

(For other cases, see Master and Servant, Dec. Dig. § 385[8].)

Error to Industrial Accident Board.

.16

Proceedings by John Miller, under the Workmen's Compensation Act, to obtain compensation for personal injuries, opposed by S. Fair & Sons, employer, and the Fidelity & Casualty Company, insurer. From an award which he considers insufficient, the applicant brings error. Award amended and affirmed.

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

R. L. Crane, of Saginaw, for appellant.

Cummins & Nichols, of Lansing, for appellees..

OSTRANDER, J. Claimant was injured March 23, 1916. His average weekly wages were $12.70. The rate of compensation agreed upon by claimant and the insurance company carrying the risk, and approved by the industrial accident board, was $6.35 per week, "subject to the terms of the act." The statute (Act No. 10, Public Acts 1912 [Ex. Sess.] pt. 2), so far as it applies reads:

"Sec. 9. While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half his average weekly wages. * * *

"Sec. 10. While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter.

*

"Sec. 11. ✶✶✶ The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee, computed according to the provisions of this section. as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, the same to be fixed as of the time of the accident, but to be determined in view of the nature and extent of the injury." We have held that, reading these provisions together:

"The language of this last provisions is plain, and has but one obvious meaning designating as the test capacity to earn in the same employment in which the employee was injured. That under this rule instances may arise where it works inequitably does not authorize the court to read exceptions into it or modify its plain language defining the basis for estimating incapacity, which at best can only be approximated. If the method ought to be changed or exceptional cases provided for, the remedy rests with the Legislature." Foley v. Detroit United Railway, 190 Mich. 507, 515, 157 N. W. 45, 48.

And in Jameson v. Walter S. Newhall Co., 200 Mich. 514, 166 N. W. 834, when claimant was permanently disabled from pursuing the employment in which he was engaged when injured, but was nevertheless later on able to secure other and different employment, a finding that he was permanently wholly disabled, within the meaning of the act, was sustained. See, also, Mellen Lumber Co. v. Industrial Commission, 154 Wis. 114, 142 N. W. 187, L. R. A. 1916A, 374, Ann. Cas. 1915B, 997.

In the case now before us, the Industrial Accident Board made the following finding and award on March 16, 1918:

"A petition having been filed by the applicant in the above-entitled cause, praying for reasons therein set forth that payments of compensation -be continued therein, and the same having come on to be heard before the board on February 14, 1918, and proofs and briefs having been filed and due consideration having been had thereon, the board finds as a fact from the files and testimony that said applicant is partially incapacitated as a result of the accidental injury received while in the employ of said respondents on March 23, 1916; that he has been employed part of the time since the date of the completion of the last payment of compensation, May 18, 1917; that while employed, with the exception of about two weeks following May 18, 1917, he has received reduced wages; that said applicant should receive compensation while employed at the rate of onehalf the difference between his wages before the accident and the wages he has received thereafter from the time he resumed work, May 16, 1917; that if said applicant should be at any time, either before or after the date of this order, unable to continue his work or unable to secure employment because of any disability resulting from his accidental injury, then he should be paid compensation at the rate of $6.35 per week in accordance with the terms of the agreement approved by the board April29, 1916, during such periods; that there is now due and payable to said applicant by said respondents compensation from the time payments were stopped, May 18, 1917, to the date of this order in conformity with the foregoing, which sum shall be paid presently.

"It is therefore ordered and adjudged that said applicant is entitled to receive and recover from said respondents compensation equal to onehalf the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, during his partial disability, in the employment in which he was engaged at the time of his injury, said pay ats to commence on May 18, 1917, the date of the last payment made to applicant by respondents.

"It is further orderd that at the present time applicant is entitled to receive compensation from 'May 18, 1917, to the date of this order, less amounts earned during that period and the sum due shall be paid forthwith.

"It is further ordered that, if at any time applicant, during his disability, is unable to perform or secure work in view of said disability, then he shall receive compensation at the rate of $6.35 per week in accordance with the terms of the agreement approved by the board April 29, 1916."

Upon further application in the nature of application for a rehearing, and upon the whole record, the board made the following finding and award:

"(a) That the expression 'less amounts earned during that period' used in the third paragraph of the order of March 16, 1918, was intended to mean that the applicant was not to be paid workmen's compensation during any time he was able to work and earn full wages, and that said expression was not intended to mean that the earnings of the applicant should apply upon the compensation to which he should be entitled.

"(b) That the applicant was injured while doing the work of a com

mon laborer, such as wheeling, shoveling, and mixing sand and carrying things necessary to be carried around the foundry.

"(c) That the applicant at the time he was injured was not engaged

in employment as a molder, and that he was not a molder.

"

(d) That his average weekly wage at the time he was injured was $12.70; that his compensation rate during total disability was and is $6.35 per week.

"(e) That at a time about 14 months after the man was injured he returned to the employment in which he was injured, but only worked a couple of weeks, or some such time, and that it does not affirmatively appear that he worked steadily during that time, and hence it may be that during all the time since the man was injured he may be entitled to receive compensation either for total or as for partial disability.

"(f) That during all of the time since March 23, 1916, during which the applicant has not been able to earn at all he shall be paid $6.35 per week.

“(g) That_running an elevator is in the judgment of the board common labor, and that during any of the time since the applicant was injured in which the applicant has been able to earn some wages at common labor he is entitled to be paid one-half of the difference between the wages he has been able to earn at common labor and $12.70 per week, his average weekly wages at the time he was injured.

"(h) That it appears to the board that the hand of the applicant is in quite bad condition and that it is likely that the applicant will be either totally or partially disabled for some considerable time to come. That during a part of the immediate future he may be totally disabled and during a part of the time he may be partially disabled, and it is impossible for the board to say at present just what the future will develop in his case. That it cannot be said to a certainty that he will be totally disabled nor that he will be only partially disabled, and therefore the order of the board should provide for either condition."

There was evidence supporting the finding that when injured the employment of claimant was that of common laborer. The labor he was performing, shoveling and wheeling a barrow, required the use of both hands. He can and does perform labor which does not require the use of the right hand and arm. It is the contention of claimant that because he cannot do the work he was doing when he was injured his case is governed by the decisions above referred to, and that he should be allowed compensation as for total disability while the disability continues.

Employing the language of claimant's brief the contention is: "Claimant being incapacitated from doing the kind of work, or similar employment, being done when injured, or any part of it, entitles him to what compensation during the disability? We contend full compensation not exceeding 500 weeks."

[1] The award must stand unless, as claimant contends, one who is a common laborer, and is disabled while doing some particular labor requiring the use of both of his hands and arms, is totally disabled if on account of an injury he cannot perform the same labor or labor which requires the use of both arms and hands, but can perform other common labor. We are unable to make the required distinction, being of opinion that the work of one engaged in what is ordinarily described as common labor is an employment within the meaning of the act. The act does not classify persons employed at labor, but it does recognize that there are different kinds of employment. The act was intended to affect and apply to existing conditions, one of which generally recognized, is that persons are employed as common laborers-that the employment of certain wage-earners is, and is known as, common labor. A definition of common labor, exclusive and inclusive, is not easily formulated, but the common understanding is, for the purposes of this de