Certiorari to Industrial Accident Board. Proceedings for compensation under the Workmen's Compensation Act by Thomas Thornton, the employee, opposed by the Grand TrunkMilwaukee Car Ferry Company, the employer. To review an award by the committee of arbitration, confirmed by the Industrial Accident Board, the employer brings certiorari. Award set aside. Argued before OSTRANDER, C. J., and STONE, BIRD, MOORE, STEERE, BROOKE, FELLOWS, and KUHN, JJ. W. A. Geer and R. R. Weaver, both of Detroit (Harrison Geer and W. K. Williams, both of Detroit, of counsel), for appellant. Louis H. Osterhous, of Grand Haven, for appellee. BIRD, J. While plaintiff was engaged in his work as a "coal passer" on the car ferry Milwaukee he was struck in the eye by a piece of flying coal, resulting in an injury thereto, which later made it necessary to remove it. He filed his claim with the Industrial Accident Board, and an award was made by the committee of arbitration, and afterwards approved and confirmed by the board. From the stipulation of undisputed facts it appears: (1) That defendant is a Wisconsin corporation, and filed its written acceptance of the Michigan Compensation Act on September 12, 1912. (2) That defendant owns and operates the car ferries, Milwaukee and Grand Haven, between the ports of Milwaukee and Grand Haven, and is exclusively engaged in interstate commerce. (3) That the accident occurred to plaintiff on the 8th day of January, 1917, just as the Milwaukee was leaving the port of Grand Haven, and at that time she was loaded with interstate freight. The defendant takes the position that the award made by the Industrial Accident Board is of no force because it had no jurisdiction in the premises for the reasons: (1) That plaintiff was engaged in interstate commerce at the time he received his injury, and therefore his sole remedy is under the federal act. (2) That the accident having occurred while plaintiff was employed on the Great Lakes, his remedy, if he has one, must be pursued in the admiralty court. Both counsel have filed briefs showing great industry on the question whether the admiralty court has exclusive jurisdiction of the question involved in this case. The briefs do not discuss the other ground, although the point is made that the Industrial Accident Board has no jurisdiction because the plaintiff was employed in interstate commerce at the time the accident occurred. We think the case should be disposed of on this ground in accordance with the ruling of Carey v. Grank Trunk Western Railway Company, 166 N. W. 492, which was recently decided by this court. Mr. Justice Stone, the writer of the opinion in that case, went so fully into the propositions involved that it would be without profit to again enter on a discussion of them. The award must be set aside. SUPREME COURT OF MICHIGAN. MILLER V. GRAND TRUNK WESTERN RY. CO. (No. 60.)* WORKMEN'S COMPENSATION—JURISDICTION OF ACCIDENT BOARD-INTERSTATE COMMERCE. The Industrial Accident Board was without jurisdiction to entertain the claim for compensation under the Workmen's Compensation Act of a widow whose husband, a railroad's employee, was killed in working on an interstate train used in interstate commerce; if the widow was entitled to recover, her only remedy was under the federal act (Act April 22. 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]). Certiorari to Industrial Accident Board of Michigan. Proceedings by Annie Miller under the Workmen's Compensation Act for compensation for death of her husband, James L. Miller, the employee, opposed by the Grand Trunk Western Railway Company, the employer. Compensation was awarded by the Industrial Accident Board, and the employer brings certiorari. Award vacated. Argued before OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, FELLOWS, STONE. and KUHN, JJ. Stewart & Jacobs, of Battle Creek (Harrison Geer, of Detroit, of counsel), for appellant. Verner W. Main, of Battle Creek, for appellee. BIRD, J. On October 30, 1916, plaintiff's husband, James L. Miller, was employed by the defendant as a car inspector at the City of Battle Creek, one of the defendant's divisional points. It is claimed that while deceased was inspecting and repairing an air hose on one of defendant's trains he was injured, and that his death afterward resulted from such injuries. A death award was made by the Industrial Accident Board, and defendant has brought the proceedings to this court with the claim that the award is without authority of law because the Michigan Workmen's Compensation Board was without jurisdiction to entertain the case. This contention is based upon the claim, which does not appear to be disputed, that the train upon which the deceased was working at the time his injuries were received was an interstate train, and was being used in interstate commerce, and that if plaintiff is entitled to recover she must do so under the federal act. We think the point is well taken. The case is ruled by Carey v. Grand Trunk Western Railway Company, 166 N. W. 492, recently decided by this court. See, also, Thornton v. Grand Trunk-Milwaukee Car Ferry Company, 166 N. W. 833. *Decision rendered, March 28, 1918. 166 N. W. Rep. 833. The award made by the Industrial Accident Board must be, and is hereby vacated. SUPREME COURT OF MICHIGAN. JAMESON V. WALTER S. NEWHALI. CO. ET AL. (No. 153.)* WORKMEN'S COMPENSATION - TOTAL DISABILITY — EVIDENCE. In a proceeding under the Workmen's Compensation Act compensation for personal injuries suffered by a pile driver operator, evidence that he was unable to pursue the same kind of employment as before the accident he'd to justify an award for total disability under the Workmen's Compensation Act, pt. 2. § 11 providing that the weekly loss of wages 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. Certiorari to the Industrial Accident Board. Proceedings under the Workmen's Compensation Act by Berton Jameson to obtain compensation for personal injuries, opposed by the Walter S. Newhall Company, employer, and the Fidelity & Casualty Company of New York, insurer. Compensation was awarded at the rate of $10 a week, which on appeal of both parties was affirmed by the full Industrial Accident Board, and defendants bring certiorari. Affirmed. Argued before OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, FELLOWS, STONE. and KUHN, JJ. Guy W. Moore and Hal P. Wilson, both of Detroit, for appellants. KUHN, J. On April 17, 1916, the applicant, Bert (or Berton) Jameson, was in the employ of the respondent Walter S. Newhall Company as foreman of certain piledriving operations in connection with the construction of an ore dock at Zug Island, and on the morning of that day, while he was engaged in superintending the moving of a pile driver, the pile hammer was lowered in such a manner that it struck one end of a plank and hurled the other end violently against the right side of his face. The impact rendered him unconscious, fractured the right side of his jaw, destroyed nearly all his teeth, cut a large gash in his right check, *Decision rendered, March 27, 1918. 166 N. W. Rep. 834. severed certain facial nerves, resulting in paralysis of a portion of the right side of his face, and caused a partial ankylosis of the jaw, leaving him with impaired sight and hearing, subject to dizzy spells, and permanently weakened physically. He can now open his jaw only about three-fourths of an inch, and it is impossible for this reason to fit him with artificial teeth. Prior to the accident he was a strong, vigorous man, capable of performing heavy physical labor and able to engage in occupations of a dangerous character. He had expert knowledge of the construction and operation of derricks and other machinery used in construction work and a long experience in that line of employment. It is admitted that pile driving requires physical labor of a very heavy kind, such as the handling of immense timbers, etc., and is, moreover, a dangerous occupation, not only because of the clumsy and ponderous apparatus used therein, but also because it involves the climbing to, and working at, considerable heights, requiring a clear head and steady nerves. The testimony showed that a capable foreman in this line of work should, and that Mr. Jameson did, take an active part in the heavy lifting and in the dangerous part of the work; that he usually set the timbers himself, had tackles to handle, and personally climbed to the top of the pile driver when necessary to adjust the apparatus there. His work included the repairing of the pile driver and other machinery. Since the accident applicant has been unable to resume this line of work, partly because he is greatly weakened by reason of insufficient nourishment, his injury having made it impossible for him to masticate food, and partly because he is now subject to dizzy spells when he attempts to climb to any height and whenever he stoops over. The superintendent of the Newhall Company testified: "I would hesitate to put him in charge of a pile driver crew, or in charge of a crew doing what he was doing the day he was hurt. I would hesitate for two reasons, and the first is physical inability to handle it properly, and the fact is that most always when a man goes through experiences of that kind he loses his nerve for work of a similar character. * * * The machine he was handling was about 65 feet high, and weighed 9,000 pounds, and it requires a man of full judgment and more or less daring to handle equipment of that sort successfully." Ten weeks after the accident Mr. Jameson had recovered sufficiently to be able to do light work, and was given employment by respondent, first as foreman of an excavating gang, involving no physical labor, then as carpenter foreman in connection with some timber work on the dock, later as foreman or superintendent of some concrete bridge construction work near Warren, and afterwards at respondent's carpenter department in North Detroit for about three weeks; the last three positions requiring some light physical labor on his part. Since April or May, 1917, he had no further employment by respondent, and up to the time of taking the testimony in September, 1917, only about three weeks' work, as a carpenter foreman, for another construction company. At the time of the accident applicant was earning $4.75 per day, working ten hours a day and six days per week. When he first went back to work, ten weeks after his injury, the company paid him $4.50 per ten hour day for the lighter and less responsible employment they then gave him, and when they made him foreman of the carpenter work on the dock, they increased his wages to $5 per day of ten hours. He also received this same wage for his bridge work at Warren and the shop carpenter work at North Detroit. Wages generally had increased in the meantime. Both applicant and respondent were under the Workmen's Compensation Act at the time of the accident, and applicant's claim for compensation was, by stipulation, heard before Mr. Ora E. Reaves, deputy commissioner, as sole arbitrator. He awarded $10 per week for a period of ten weeks for total disability and for partial disability from the date of the applicant's return to work to date of hearing, 75 cents per week, and thereafter onehalf the difference between his wage before the accident and what he might earn in the future. Both parties appealed to the full board, who, after hearing, ruled that claimant was totally disabled within the meaning of the act, and granted compensation at the rate of $10 per week, with the proviso, however, that if applicant should become only partially incapacitated, he should receive compensation at the rate of one-half the difference between his average weekly wage before the injury and the average weekly wage he is able to earn during the period of his partial disability. The last sentence of section 11, pt. 2, of the Workmen's Compensation Act, being section 5441, Compiled laws of 1915, is as follows: "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." It is the contention of the respondent and appellant that the board erred in holding that the claimant was permanently disabled because of the fact that he was unable to engage in the specific and identical work that he was engaged in at the time of his injury, and to give the law this construction would result in great inequity. It is also the contention of counsel for claimant that the question here presented has been squarely ruled upon the case |