Permission was given him to get his luncheon at home, No. 997 Theodore street, and he was then to call for a package and return to the store.

One of his employers testified he "asked my permission to go home to lunch from Theodore street, or whatever the call back might be. I reluctantly gave him permission to make that trip that way on the ground that he would hurry up and come back. I think it was about twenty minutes to eleven when I gave him this order and he argued that he could go to Case avenue first, that he could go and make the pick up and get his lunch and get back early.

"Q. Making this pick up and making this delivery were in the course of his employment? A. Oh yes.

"Q. He was employed to do this very thing Mr. Watkins? A. He was."

The boy called at his home at about 11:30 o'clock and took ten minutes for lunch. He told his mother he had another delivery to make and was in a hurry. As he was proceeding in a westerly direction on Canfield Avenue East, he caught on the right rear end of a motor truck, proceeding in the same direction. This truck overtook and passed another truck also proceeding in a westerly direction. The boy was still hanging on the right rear end of the truck which turned suddenly to the right. As a result of the truck making this sudden turn the boy was thrown to the pavement a few feet in advance of the rear truck and before the driver in charge could stop, the left front wheel passed over the boy's body. Death resulted soon. Deceased at the time of his death was earning six dollars a week which he gave to his mother each week for use in the family. Deceased was an expert bicyclist. We quote from the brief:

"It is the claim of respondent:

1. Gordon Beaudry, deceased did not receive a personal injury arising out of and in the course of his employment.

2. He was injured by reason of his intentional and wilful misconduct."

Sections 1 and 2, Part II of Act No. 10 of the Public Acts

of the Special Session of 1912 are quoted. Under the first grouping it is argued, we again quote:

"After it is shown that the accident happened within the time during which he is employed, and at the place where he may reasonably be during that time, that is within the period and the scope of the employment, the workman must also know, that it was a risk incident to the employment; that it arose because of something he was doing in the course of his employment, or because he was exposed by reason of the peculiar nature of his employment to the particular hazard which caused the injury."

and that as the accident happened in the instant case because of decedent taking hold of the truck, there could be no liability.

Counsel cite many authorities which it is claimed support his contention.

Under the second heading it is argued :

"If the Court should hold that in order to constitute intentional and wilful misconduct, it should appear that the workman intended or expected to injure himself, it would be putting interpolating into the statute a limitation upon the clause which cannot be gathered from a plain and obvious meaning of the word."

The authorities cited are chiefly those of foreign jurisdictions. This court had occasion to consider the language used in sections 1 and 2 of Part II of the Act in Clem v. Motor Co., 178 Mich. 340, and in Rayner vs. Furniture Co., 180 Id. 168. A construction of section 2 was involved in Gignac vs. Studebaker Corporation, 22 D. L. N. 587. While the instant case is not on all fours with any one of those cases we think it must be said that the reasoning used in deciding them justified the ruling of the Industrial Accident Board.

J.

The judgment is affirmed with costs.

Stone, C. J., Kuhn and Person, JJ. concurred with Moore,

OSTRANDER, J. In my opinion the risk assumed by the boy,

though the cause of the injury was not a risk incident to his employment.

Steere and Brooke, JJ. concurred with Ostrander, J.

SUPREME COURT.

JAMES BRUCE,

Claimant and Appellee,

VS.

TAYLOR & MALISKEY,

and

FIDELITY & DEPOSIT COMPANY OF MARYLAND,

Respondents and Appellants.

DURATION OF DISABILITY-INJURY TO FOOT.

The claimant received an injury to his right leg below the knee by which he was disabled from working. Respondents paid compensation for 124 weeks and tendered payment for one additional week but demanded that claimant sign a settlement receipt closing the case. He refused and respondents petitioned the Board to be relieved from making further payments. HELD: That under the facts, claimant is not limited to the amount of compensation specified for the loss of a foot, but is entitled to compensation during the time that his disability in fact continues, subject to the limitations in the statute.

Certiorari to the Industrial Accident Board to review an order denying respondents' petition to be relieved from mak ing further payments. Affirmed.

Lee & Parker, of Flint, for Claimant.

Shields & Silsbee, of Lansing, Austin J. Spalding, of Detroit, of counsel, for respondents.

Claimant was injured, his right ankle being broken. The defendant insurance company entered into an agreement with him to pay him compensation at the rate of $6.75 per week during the period of disability, the agreement being subject to the terms of the Compensation Act. Claimant was paid for 124 weeks, and pay for an additional week was tendered and a receipt in full demanded. Claimant refused to give a receipt and the company applied to the Industrial Accident Board to be relieved from making payments beyond the period of 125 weeks.

By the terms of the statute the period of disability for loss of a foot is deemed to be 125 weeks.

Claimant testified at the hearing in part as follows:

*

"I am not able to follow any work such as I had been following, that of a common laborer, and there is no work that I have been able to find at which I can earn a livelihood. My leg pains me all the time. I am able to stand on it by using my cane, and taking the weight off my foot, but when I put the leg on the ground, and try to stand on it, I suffer pain. I have recently noticed that there is a breaking out around the injured portion of the right ankle, which Dr. Tupper says is due to deficient circulation. * * I am not ready at this time to take any treatment that might be recommended by a competent physician as a step toward improving my condition. I think it has gone so far that there is no use of it. I will let it alone, and see. I will take a treatment, but not an operation. That answer is given in view of the advice given me by my doctor, who said not to have any operation. After Dr. Tupper recommended me to the Murphy operation, I had a talk with Dr. McGregor, and he told me to let it alone and not have the operation. The last time

*

*

I did any work was at the time I received my injury, and I have not tried to do any work since. I have not made any effort to secure any employment that I am able to do without standing on my feet. * * The reason that I have not done that is because I am not able to. * * My hands and arms are both in good shape. My left leg is all right. My right leg is all right, down as far as the point where I was struck by the iron. There is a sore there (indicating a point on the leg) down to a point below my knee, my right leg is all

*

right. My general health is good, and I have a good appetite, and except for my leg, I am a perfectly healthy man. I have no education that enables me to take a clerical position, and when I sit down my leg pains me; the pain is with me all the time, and would interfere with me in any sitting down occupation."

Testimony of a physician was introduced which tended to prove that the condition of claimant can be, to an appreciable extent, remedied by a surgical operation. In part he said:

"In a case similar to Mr. Bruce's case, they get such results that the injured man, at the conclusion of this 12 months, is able to work, and stand on his feet, because they remove the very cause of the condition-that is, the removal of this bony tissue that is formed there, which impinges on the nerves, and that would have a tendency to cause pain. I believe in this case an operation over a year ago would have remedied the condition from which Mr. Bruce now suffers. Any operation would remedy it I think. I said so then, and I say so now. In my opinion, Mr. Bruce has not got now ten per cent of function in his foot. * * * Poor circulation caused the discolorations breaking out around the wound,-a general weakness due to the circulation, which you always find in a wound of that kind. He has recovered so far as nature is concerned. It has formed a splint. He has recovered as much as he ever will, and so far as the usefulness is concerned, he is practically disabled with that ankle and foot at the present time. He does not appear to have recovered but I contend that the man was totally disabled from work. He has not gotten over the injury, and I see no immediate prospect for his recovery unless he has the operation. That operation is not guesswork. There is a certain per cent. of chances against him. It is not 40 per cent., but it is not guesswork. Murphy has got this work down to a science. * * * * Following an operation on Mr. Bruce, after nature gets in her work of healing and cleaning up things,-after the operation, assuming that the operation is not a success, his condition I will not be any worse than now. I don't see any reason why it should be. There is no great risk attending the operation. The risk of an operation is due to the anesthetic. They have got it down to an absolute science. There is not one fatality in 40,000."

To the writ of certiorari the Board returns as a part of its finding:

"The position and claim of said Bruce is set forth in his answer to said petition as follows: "That the conditions are not the same as