149 Pac. 413, it was held that the compensation to be awarded a workman who, before his injury, was earning $12 a week, and after the injury was able to earn but $3 a week, was 50 per cent of the difference, namely, $4.50 per week. The English statute expressly provides that in case of partial incapacity, "the weekly payment cannot exceed the difference between the amount of the average weekly earnings of the workman before the accident, and the average weekly amount which he is earning or able to earn in some suitable employment or business after the accident." In a large number of cases arising under the English statutes, consideration has been given to the earnings of the employee in another "suitable" employment; but these cases turn rather upon the question of the duty of the workman to seek other employment, than on the question whether the wages earned by him are to be considered. Consequently they will not be discussed at this place; they will be found set out and discussed at length in the note on the application and effect of workmen's compensation acts generally, at page 143. The attitude of the English court is well indicated by the decision in Cam mell, L. & Co. v. Fladd (1908) 2 B. W. C. C. (Eng.) 368, where it was held that an unskilled laborer will not be presumed to be incapable of doing any work simply because he is not able to do the old work at which he was employed at the time of his injury. The English court of appeal has held that the expression "average amount which he may be able to earn after the accident" is not limited to earnings under an employer, but includes earnings in a private business. Norman v. Walder [1904] 2 K. B. (Eng.) 27, 73 L. J. K. B. N. S. 461, 68 J. P. 401, 52 Week. Rep. 402, 90 L. T. N. S. 531, 20 Times L. R. 427, 6 W. C. C. 124. But the Scotch court of session has held that profits made in business undertaken by the workman after his injury are not to be taken as the measure of the workman's earning capacity. Paterson v. Moore [1910] S. C. 29, 47 Scot. L. R. 30, 3 B. W. C. C. 541. The Lord President said that the man's wage-earning capacity is a perfectly different thing from the question of what profit he makes in a business, and added: "You cannot get at the man's wage-earning capacity by finding out what he is making in business." W. M. G. MASSACHUSETTS SUPREME JUDICIAL COURT. WILLIAM T. SULLIVAN, Employee. STRATHMORE PAPER COMPANY, Employer. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Insurer, Appt. (218 Mass. 141, 105 N. E. 463.) Master and servant pensation act Ball v. William Hunt & Sons, 5 B. W. C. workmen's comC. 459 [1912] A. C. 496, 81 L. J. K. B. N. S. incapacity for labor. The time during which an employee who 782, 106 L. T. N. S. 911, 28 Times L. R. 428, loses an arm in his employment is unable 56 Sol. Jo. 550; McDonald v. Wilson's & C. to obtain work because of the injury is Coal Co. 5 B. W. C. C. 478, [1912] A. C. within the operation of a statute provid-513, 81 L. J. P. C. N. S. 188, 106 L. T. N. S. ing weekly compensation while the incapacity for work resulting from the injury is total, although he is able to perform labor in much less time after the accident if he could procure it. 905, 28 Times L. R. 431, 56 Sol. Jo. 550, [1912] S. C. (H. L.) 74, 49 Scot. L. R. 708. Mr. James H. Mulcare, for appellee: The act is a scheme to give compensation For other cases, see Master and Servant, II. for inability to earn wages. a, 1, in Dig. 1-52 N. S. Gould's Case, 215 Mass. 480, 102 N. E. 693, Ann. Cas. 1914D, 372, 4 N. C. C. A. 60. The words "incapacity for work" in § 9 of for payment of compensation for injuries, the statute, which contains the provisions are to be construed in their fairest sense and to be given their broadest scope and effect. Opinion of Justices, 22 Pick. 571; Re | for work" was warranted, although he had Kilby Bank, 23 Pick. 93. The words "incapacity for work" have been held to mean inability to obtain work. Ball v. William Hunt & Sons [1912] A. C. 496, 81 L. J. K. B. N. S. 782, 106 L. T. N. S. 911, 28 Times L. R. 428, 56 Sol. Jo. 550, 5 B. W. C. C. 459; Com. v. Kimball, 24 Pick. 366, 36 Cyc. 1108. Sheldon, J., delivered the opinion of the court: a physical capacity to work and earn money. The same principle has been affirmed in other English decisions, that an inability to obtain work resulting directly from a personal injury is an incapacity for work within the meaning of this act, although a like inability resulting from some other cause, such as an altered condition of the labor market, would not be so. The inability to get work is evidence tending to show an incapacity for work, although it will not always be conclusive. Radcliffe v. Pacific Steam Nav. Co. [1910] 1 K. B. 685, 79 L. J. K. B. N. S. 429, 102 L. T. N. S. 206, 26 Times L. R. 319, 54 Sol. Jo. 404, 3 B. W. C. 159 [1911] 1 K. B. 1009, 80 L. J. K. B. This employee sustained an injury which necessitated the amputation of his right arm, and for which it is admitted that he was entitled to compensation. But the insurer contends that on May 31st following the ac- | C. C. 185; Cardiff Corp. v. Hall, 4 B. W. C. cident he was physically able to go to work, and that for this reason his right to be compensated for an incapacity for work ceased on that day, regardless of the question whether he was or was not able to procure work. The facts found by the committee of arbitration, and, on review, by the Industrial Accident Board, are that from May 31st to October 25th he did not work, that he diligently endeavored to secure employment and was unable to obtain work because of the loss of his arm, but that on May 31st he was capable of doing the work which he finally procured, or any work which a onearmed man could ordinarily perform. Upon these facts, and as an inference therefrom, it further was found that he was in fact unable to obtain any work at which he could earn wages during the period from May 31st to October 25th, and he was awarded compensation for a total incapacity for work during that time. Our statute provides for a weekly compensation while "the incapacity for work resulting from the injury is total." Stat. 1911, chap. 751, pt. 2, § 9. The expression "incapacity for work" was taken from the English workmen's compensation act of 1906, in which it was provided that the amount of compensation to be paid "where total or partial incapacity for work" resulted from the injury should be certain weekly payments. Accordingly decisions of the English courts fixing the meaning there to be given to these words are of weight. McNicol's Case, 215 Mass. 499, 501, ante, 306, 102 N. E. 697, 4 N. C. C. A. 522. The same words were used in an earlier English statute; and it was held by the court of appeal in Clark v. Gaslight & Coke Co. 21 Times L. R. 184, that the object of the act was to give compensation for an inability to earn wages, and that if an injured employee after repeated efforts could not get an opportunity to earn wages, a finding that his earning power was gone and therefore that he was under an "incapacity This doctrine of the English courts was settled finally in two decisions of the House of Lords. Ball v. William Hunt & Sons, 5 B. W. C. C. 459, [1912] A. C. 496, 81 L. J. K. B. N. S. 782, 106 L. T. N. S. 911, 28 Times L. R. 428, 56 Sol. Jo. 550, overruling s. c. in the court of appeal [1911] 1 K. B. 1048, 80 L. J. K. B. N. S. 655, 104 L. T. N. S. 327, 27 Times L. R. 323, 55 Sol. Jo. 383, 4 B. W. C. C. 225, and McDonald v. Wilson's & C. Coal Co. 5 B. W. C. C. 478. In our opinion these decisions are correct in principle. The object of our statute was to give compensation for a total or partial loss of the capacity to earn wages. Gillen's Case, 215 Mass. 96, 99, ante, 371, 102 N. E 346. If, as in this case, the injured employeee by reason of his injury is unable in spite of diligent efforts to obtain employment, it would be an abuse of language to say that he was still able to earn money, that he still had a capacity for work, even though his physical powers might be such as to enable him to do some kinds of work if practically the labor market were not thus closed to him. He has become unable to earn anything; he has lost his capacity to work for wages and to support himself, not by reason of any change in market conditions, but because of a defect which is personal to himself and which is the direct result of the injury that he has sustained. He is deprived of the benefit which the statute promises to him if he is told that because he could do some work if he could get it, he is not under an incapacity for work, although by reason of his injury he can obtain no opportunity to work. But we said in Donovan's Case, 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778, 4 N. C. C. A. 549, that the statute was to be construed broadly for the purpose of carrying out its manifest purpose. The Industrial Accident Board had a right to find that the employee was totally incapacitated for work until October 25th, and to award him compensation upon that basis. The decree of the Superior Court must be affirmed. Annotation-Inability to get work because of injury, as "incapacity for work," within the meaning of the workmen's compensation act. As to application and effect of workmen's compensation acts, generally, see annotation, ante, 23. That "incapacity for work" means inability to get work because of the injury, as well as inability to perform the work because of the injury, seems to be fairly established. The decision in RE SULLIVAN is supported by several other decisions of the Massachusetts court. Thus, although a workman has a limited physical capacity to work and earn money, nevertheless a finding that he is totally "incapacitated for work" is justified where it is based upon the further finding that the workman "has endeavored to obtain, and has been unable to find, any work which the incapacity due to the injury will not prevent him from performing." Duprey's Case (1914) 219 Mass. 189, 106 N. E. 686. And a finding of inability to secure employment because of the injury is equivalent to the finding of total incapacity for work. Stickley's Case (1914) 219 Mass. 513, 107 N. E. 350. A finding by the Industrial Accident Board that during the time in question an employee was physically unable to earn anything renders immaterial a finding that the workman did not make any effort to obtain employment. Septimo's Case (1914) 219 Mass. 430, 107 N. E. 63, 7 N. C. C. A. 906. In Gorrell v. Battelle (1914) 93 Kan. 370, 144 Pac. 244, it was held that incapacity for work within the meaning of the Kansas act means inability to perform work and also inability to secure work to do. A number of cases under the English act have held that the employer cannot guarantee work for the workman against the fluctuations of the labor market. Gray v. Reed [1913] W. C. & Ins. Rep. (Eng.) 127, 108 L. T. N. S. 53, 6 B. W. C. C. 43; Cardiff Corp. v. Hall [1911] 1 K. B. (Eng.) 1009, 80 L. J. K. B. N. S. 644, 104 L. T. N. S. 467, 27 Times L. R. 339, 4 B. W. C. C. 159; Clark v. Gaslight & Coke Co. (1905) 21 Times L. R. (Eng.) 184, 7 W. C. C. 119. It is not the inability to get work because of the state of the labor market, but because of the condition of the workman due to the in jury. Dobby v. Pease (1909) 2 B. W. C. C. (Eng.) 370. There is some apparent conflict in the decisions of the court of appeal upon this important question. In Cardiff Corp. v. Hall [1911] 1 K. B. (Eng.) 1009, 80 L. J. K. B. N. S. 644, 104 L. T. N. S. 467, 27 Times L. R. 339, 4 B. W. C. C. 159, and in Guest, Keen & Nettlefolds v. Winsper (1911) 4 B. W. C. C. (Eng.) 289, the court of appeal apparently took the position that when the employer has proved that the workman is able to do work of some kind, he is entitled to have the compensation reduced, and there is no obligation resting upon the employer to show that he can get such work to do. In Carlin v. Alexander Stephen & Sons [1911] S. C. 901, 48 Scot. L. R. 862, 5 B. W. C. C. 486, where it was shown that the workman was able to do light work, and that the employers had offered him such work, Lord Salvesen said that he was of the opinion that the compensation might have been reduced on the first finding alone. But it had previously been held by the court of appeal that where the county court judge has found that the workman was capable of doing "some light work if he could obtain it," there was a burden upon the employer to show that there was work of that character obtainable. Proctor v. Robinson [1911] 1 K. B. (Eng.) 1004, 80 L. J. K. B. N. S. 641, 3 B. W. C. C. 41. And in an earlier case full compensation was restored where the workman, who had injured his hand, had partially recovered and had been earning wages somewhat less than he had formerly earned, but had been discharged and was unable to secure other light work, although, as was expressly found by the county court judge, he was fully capable of doing light work which did not require the full use of his hand. Clark v. Gaslight & Coke Co. (1905) 21 Times L. R. (Eng.) 184, 7 W. C. C. 119. Although some of the judges of the court of appeal found themselves able to distinguish between the cases cited above, the conflict between them is noted and emphasized by Lord Salvesen in his decision in Carlin v. Alexander Stephen & Sons [1911] S. C. 901, 48 Scot. L. R. | L. R. 47, 3 B. W. C. C. 549, in which it 862, 5 B. W. C. C. 486. The House of Lords, however, has apparently settled the question, because they have, in unequivocal terms, laid down the proposition that "incapacity for work" may mean physical inability to do work so as to earn wages, or it may mean inability to earn wages by reason of inability to get employment, due to the belief of employers in the unfitness of the workman to perform work owing to the injuries they perceive he has sustained. Ball v. Hunt [1912] A. C. (Eng.) 496, 81 L. J. K. B. N. S. 782, 106 L. T. N. S. 911, 28 Times L. R. 428, 56 Sol. Jo. 550, 5 B. W. C. C. 459; Macdonald v. Wilsons & C. Coal Co. [1912] A. C. (Eng.) 513, [1912] S. C. (H. L.) 74, 81 L. J. P. C. N. S. 188, 106 L. T. N. S. 905, 28 Times L. R. 431, 56 Sol. Jo. 550, [1912] W. N. 145, [1912] W. C. Rep. 302, 5 B. W. C. C. 478, 49 Scot. L. R. 708. The House of Lords disapproved and overruled the decision in Boag v. Lochwood Collieries [1910] S. C. 51, 47 Scot. MICHIGAN SUPREME COURT. HELEN JENDRUS V. DETROIT STEEL PRODUCTS COMPANY et al., Plffs. in Certiorari. (178 Mich. 265, 144 N. W. 563.) Master and servant workmen's compensation act refusal of employee to consent to immediate operation. Refusal of an injured workman, a foreigner, unable to speak or understand the English language, and suffering great pain, to submit to a serious operation until fifteen or sixteen hours after it was first found necessary, is not, as matter of law, so unreasonable and persistent as to amount to a refusal of medical attention, and defeat his widow's claim for compensation under a workmen's compensation act providing compensation for injuries arising out of and in the course of the employment; nor does such conduct amount to the intentional and wilful misconduct which will defeat a right to compensation. was held that in a case in which there had been an award of compensation based upon the theory that the workman was able to do light work, it was not a ground for review that the employers were unable to give him suitable light work, and that he was unable to obtain light employment elsewhere. If the workman offers to prove that he tried, and was in fact not able, to procure light work, the arbitrator must consider the evidence and act upon it, although he may consider it along with his own local knowledge of the conditions of the labor market. Dyer v. Wilsons & C. Coal Co. (1914) 52 Scot. L. R. 114, 8 B. W. C. C. 367, [1915] S. C. 199. And it has been held that if the workman is not able to do the light work offered him, any award based upon his ability to do such light work may be reviewed. Rex v. Templer (1911; Div. Ct.) 132 L. T. Jo. (Eng.) 203. The facts are stated in the opinion. Messrs. Beaumont, Smith, & Harris, for plaintiffs in certiorari: At common law, it would have been the duty of Jendrus to employ a competent surgeon and to use reasonable care in his selection. Stover v. Bluehill, 51 Me. 441; Reed v. Detroit, 108 Mich. 224, 65 N. W. 967. If the employee unreasonably refuses the medical attention offered by the employer, he forfeits his compensation, and the English law does not burden the employer with the duty of providing this medical attendance. Donnelly v. William Baird & Co. 45 Scot. L. R. 394, [1908] S. C. 536, 1 B. W. C. C. 95; Warncken v. Richard Moreland & Son, 100 L. T. N. S. 12, [1908] W. N. 252, [1909] For other cases, see Master and Servant,│1 K. B. 184, 78 L. J. K. B. N. S. 332, 25 II. a, 1, in Dig. 1-52 N. S. (December 20, 1913.) Times L. R. 129, 53 Sol. Jo. 134, 2 B. W. C. C. 350; Tutton v. The Majestic, 100 L. T. N. S. 644, [1909] 2 K. B. 54, 78 L. J. K. B. 447, 2 B. W. C. C. 346; Paddington Borough Counsel v. Stack, 2 B. W. C. C. 402. Note. As to refusal of injured work-N. S. 530, 25 Times L. R. 452, 53 Sol. Jo. man to have operation performed as bar to compensation under workmen's compensation act, see annotation following this case, post, 387. Mr. William W. MacPherson for de fendant in certiorari. court: you take away from your chances of re- Stone, J., delivered the opinion of the that time, he had about nine chances out of ten of getting well. I thoroughly exThe claimant and appellee is the widow plained that the longer he delayed the operaof Joseph Jendrus, who died on February tion, the so much worse it was for his 19, 1913. Joseph Jendrus, a native of Po- chances; that, if he delayed long enough, land, was on February 14, 1913, an em- there would be no use of operating. Dr. ployee of the appellant Detroit Steel Prod- McLean and Dr. McKean said the same ucts Company, which was then insured thing. I was not satisfied from the atunder the workmen's compensation act by titude of the man I talked with that he had the appellant Michigan Workmen's Compen- told him what I said. I was not sure that sation Mutual Insurance Company. Joseph he did. So I sent down and got one of the Jendrus was, at the date last named, also maids there who spoke English very well, subject to the compensation act. On Friday, and who is Polish also, called her in and February 14, 1913, at about 2 o'clock in the said to her, 'I want you to tell this man afternoon, Jendrus, while in good health and what I say to you.' This was around 8 vigor, was at work for his said employer, o'clock. 'You tell him that, if our diagnopolishing a spring scroll, when the end of the sis is correct, that if he is not operated on, scroll caught on a belt of a machine, and he will surely die.' I said, 'If you are operswung around and struck him violently in ated on now, as soon as we can, your the abdomen. Jendrus was immediately chances of getting well are about nine out of placed on a stretcher and sent to Harper | ten; the longer you delay this, so much Hospital. The insurance company was notified, and its surgeon, Dr. W. H. Hutchings, reached the hospital before the ambulance arrived. He looked at Jendrus before he was taken into the hospital. Before Jendrus was taken into the ward, samples of his urine and his blood were taken, and he was then put to bed. As soon as this was done, the surgeon examined him, and found “a tender-away leaving instructions, if they changed ness, very slight, almost no sign of contusion their minds, they were to call me." on the outside, just a little redness." This was on the right side between the ribs and the hip. This was at 2 P. M. A delay was necessary for the blood examination. At 4 o'clock Dr. Hutchings saw Jendrus again. He then complained of much pain, and there was marked muscular rigidity over the area where the blow appeared to have struck. At 8 o'clock P. M. another examination was made. The area of hardness was then spreading. The blood examination had shown no internal hemorrhage, the urine no blood, and the surgeon, with this information, diagnosed the case as that of a ruptured intestine. At this hour Jendrus's temperature was arising. The surgeon, to confirm his diagnosis, asked Drs. George McKean and Angus McLean to see the injured man. They each examined him at about 8 o'clock, and confirmed Dr. Hutchings's opinion, and they joined him in saying that an immediate operation was necessary. At this time the claimant and an elderly man were at the bedside of the patient. Jendrus spoke very little English, and Dr. Hutchings could not speak Polish. He and the man spoke German, and the doctor explained to him the necessity for an operation. Upon this sub-eration. A room was ordered prepared, and ject Dr. Hutchings testified before the committee of arbitration as follows: "I told him that, if my diagnosis was correct, that without an operation he was, in my opinion, sure to die; that, if he was operated on at While the doctors were there in consultation, the patient vomited a little fluid. Dr. McLean testified: "It was fecal in odor, but was not of a poisonous nature." Dr. McKean testified: "It was almost a fecal vomit, due to reverse acting of the peristalsis. It was just the beginning of peritonitis. It was approaching the fecal vomiting time." The patient was kept quiet during the night. The next morning when Dr. Hutchings again saw him he was worse. The doctor testified: "His pulse was rapid, the whole abdomen was distended and tender, and the typical signs of advanced peritonitis; that is, he was vomiting considerable quantities of fecal matter, which by that time had become markedly fecal." The patient would not consent in the morning to an operation. Dr. Hutchings went to attend to some other operations. Between 11:30 A. M. and 12 o'clock another physician had been called by the Jendrus family, and he testified that when he arrived Jendrus had consented to be operated upon. Dr. Hutchings testified that it was about 12:30 P. M. when he was told by the nurse that Jendrus had consented to an op the patient was operated upon at 1:30 P. M. This was as soon as the arrangements could be made. The house staff was present and assisted. There was testimony that the vomiting had grown worse, and it had been |