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"The respondent claims that the applicant put a potato poultice on his eye while it was sore, and that he should not have done so, and that said potato poultice may have cost the man his eye. There is some conflict in the testimony as to whether or not a potato poultice was used. He and his daughter claim none was used. One or two other witnesses claim that he once told them that he used a potato poultice."

The committee on arbitration refused the applicant compensation, which findings and award were reversed by the Industrial Accident Board.

[1] The first claim made by the respondents is that the injury which it is conceded the applicant sustained in no way contributed to the loss of the eye. The Industrial Accident Board determined against this contention of the appellant, and that the loss of the eye was attributable to the accident complained of, and the question for us to determine is whether there is any evidence to support this finding, as we will not undertake to weigh the evidence or disturb the findings, even though we might have reached a different conclusion on the facts.

It is the claim of the applicant that the original injury caused the development of a corneal ulcer, and, as a result thereof, the applicant lost his eye. As to whether or not the corneal ulcer would result as it did in the case of applicant is a question upon which the medical witnesses sworn differ. The board based its conclusion upon the testimony of Dr. T. S. Conover, and their finding with reference thereto is thus stated by them:

"Dr. T. S. Conover was sworn and testified that at a date which he could not give the applicant came into his office suffering with a corneal ulcer of the right eye; that the man was then blind, and permanently blind; that the cause was an infection; and that it might result from getting emery dust into the eye and from the inflammation attendant upon it. This doctor testified that a corneal ulcer depends upon the abrasion of the corneal surface, and that it was usually secondary to an injury, and that the infection must gain entrance to the cornea through an abrasion and through lowered resistance, and that you would not get an ulcer without an abrasion to the cornea. He was asked: 'Q. Do you not sometimes get an ulcer without an abrasion to the cornea? A. Well, no; I would not say that was possible. I believe in this case there was an abrasion, may not be seen, but it is there, that is, it may not be plain to the naked eye, but there is disturbance of the epithelium before your infection can gain entrance to do its damage. Q. Now, did you find, however, any corneal abrasion, it having been determined upon carefully by examination by an expert that there was no corneal abrasion. for weeks prior to the time that he came to you; what would you say? A. Well, I would think the expert just simply-his expertness was not sufficient to locate the site of his abrasion by his investigation. Q. Then, Doctor, there is no question what

soever but what there was a corneal abrasion in this case? A. Yes; in all corneal ulcers you must have an abrasion of the corneal substance before infection can gain entrance to do damage to the substance of the eye.' We do not think it necessary to quote more of the testimony of his physician, but we rely considerably upon his testimony. It seems to the board that this foreign substance caused an abrasion to the cornea, and that the ulcer resulted, and that the man lost his eye because of the abrasion and the ulcer.",

[2] Being satisfied that the question presented was one of fact, and that applicant's claim in regard thereto finds support in the evidence, we are unable to disturb the finding of the board with reference thereto.

[3] The second contention of the respondents is that the loss of the applicant's eye was not due or traceable to accidental injury, but to flagrant personal neglect in refusing to have it treated in accordance with the directions of the physicians. If the board believed the testimony of the applicant and his witnesses, we are of the opinion that it cannot be said that his conduct was so willful and unreasonable that he should, because thereof, be denied compensation. We must take the applicant as we find him. He was a man apparently of very limited education, and no more knowledge should be expected of an employee than he actually possesses. His claims with reference thereto have been set forth in the findings above quoted, and we do not think that this case is one that should come within the ruling of the court in Kricinovich vs. American Car & Foundry Co., 192 Mich. 687, 159 N. W. 362. It is rather more like the case of Poniatowski vs. Stickley Bros. Co., 160 N. W. 569. It is not a case where the applicant refused all treatment, nor has he been guilty of a failure to exercise "the primary duty owing to himself and society to make use of every available and reasonable means to make himself whole," which is the language used in the opinion of Kricinovich vs. American Car & Foundry Co., supra, in which case it was conceded that the applicant refused to submit to a minor operation, which in the judgment of all the physicians was not dangerous in itself and would in all probability bring relief. We believe that there is sufficient testimony to support the conclusion of the board that in this case the applicant's conduct was not unreasonable or willful.

[4] The respondents make a further contention that the method adopted by the Industrial Accident Board in computing the applicant's average weekly wage was contrary to the provisions of the law; it being claimed that, under the undisputed evidence, the applicant entered the employ of the Mason Motor Company May 23, 1916, and continued there until October 6, 1916, during which period he worked a portion of 78 days, and that he did not work regularly, and that there were during this period 32 working days when he did not report at all to his employer for

service. The record discloses, however, that in September there was a slacking up in the factory, and it also appears that applicant's irregular work after September 19, 1916, was probably due to the fact that he was suffering from his injury. Section 11 of part 2 of Act No. 10, Public Acts of 1912 (Workmen's Compensation Law), provides in part:

"If the injured employee has not worked in such employment during substantially the whole of such immediate preceding year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or a similar employment in the same or neighboring place, shall have earned in such employment during the days when so employed."

We are of the opinion that the Legislature had in mind that in every employment the employees work more or less irregularly, and that the annual earnings of any employee shall be determined by taking 300 times the average daily wage or salary which the employee has earned in such employment during the days so employed. This was undoubtedly the best method that could be provided for compensating a person; for if the employee does not work often enough to satisfy his employer, the employer has the option to discharge him. We see no error in the method adopted by the board in measuring the compensation.

Being of the opinion that there is no error in the proceedings of the board, the award is affirmed in all respects, with costs in favor of the applicant.

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TRACTORS. Where the deceased was employed by defendant on various jobs of moving heavy machinery from one floor to another, and was paid the cost of the work, plus 10 per cent, and for his own time when he worked, and he provided workmen for the job over whom he personally exercised control, the defendant having no control or supervision or right of inspection, merely making suggestions as to the methods of work, deceased was an independent contractor and not a servant, and his widow was not entitled to compensation.

* Decision rendered, Dec. 27, 1917. 165 N. W. Rep. 816.

Certiorari to Industrial Accident Board.

Application by Elizabeth J. Carleton for workmen's compensation for death of her husband, opposed by the Foundry & Machine Products Company, employer, and the Michigan Workmen's Compensation Mutual Insurance Company, insurer. On certiorari to review a determination of the Industrial Accident Board in favor of the applicant. Reversed.

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

Beaumont, Smith & Harris, of Detroit, for Appellants.
Keen, Lightner, Oxtoby & Hanley, of Detroit, for Appellee.

FELLOWS, J.

Counsel for plaintiff so clearly stated the issue in this case to the arbitrators that we quote it :

"The chief testimony as I understand it is as to whether Mr. Carleton was an employee or an independent contractor. He was doing this work on a time and percentage basis; that is, he hired the men. The usual procedure of doing the work was, when the Foundry & Machine Products Company wanted any work of this particular kind done, such as moving machinery or anything along that particular line, they would call Mr. Carleton up, and he would go over and they would go over the work to be done together, and map out some plan of doing it, and then after this was done Mr. Carleton brought men and put them to work, and they would do the work. When the work was all done he was paid on the basis of the amounts he had paid out to his helpers, plus 10 per cent. When he worked himself, as he did at times, his own time was put in at a 50 to 55 cents an hour. This raises the question, of course, as to whether he was an independent contractor or an employee."

The work in hand consisted in lowering some heavy machinery from the third to the first floor of defendant's plant. Defendant's plant was not provided with the necessary appliances to do such work, and whenever it had such work to do it let the job to decedent who was in that business. The method adopted was that if defendant had a job of this character to be done its plant manager would communicate with decedent who would come over to the plant and they would discuss the matter together, the manager informing decedent what the company wanted done, they going over the job under consideration; there were no plans. or specifications prepared. The contract was not reduced to writing, but rested in parol; by its terms decedent was to furnish all tools and appliances, some of which he owned, and some of which he borrowed; he was to furnish all material, was to furnsh all labor, either men in his regular employ, and at times he had as high as 20, or those employed by him for the special job. Carleton's men did not punch the time clock of defendant, and their hours differed from those of defendant's employees. They were paid by Carleton.

Upon completion, or during its performance, if extended, he rendered a bill which included the cost of all material and labor, plus 10 per cent. There was no stated periods for rendering these bills during the progress of the work. They were rendered on regular statement forms, the heading of which was, "F. E. Carleton Construction Company, Teaming and Carpenters, 623 Fourth Avenue, Telephone, Grand 2715." If he performed any labor himself, his time was charged in the account at regular wage per hour. He was not required, however, by the terms of his contract to personally do any work, and frequently had several jobs running at the same time for different companies. The company had the right to change the plans; this is said to be of mutual benefit, permitting the work to be done as the company desired it, and decedent getting the percentage for the additional work the change entailed. The decedent received his fatal injury on Decoration Day at defendant's plant. On this day none of defendant's employees were at work, and decedent had informed defendant's manager that he could get his whole gang together on that day and could also borrow tackle from the Russell Wheel & Foundry Company. There was testimony that defendant's manager made suggestions with reference to the work, but there is no testiomny that he did this as matter of right, or other than he would have done had the compensation for doing the job been fixed at a lump sum. The board evidently thought that defendant had the right to hire and discharge the employees selected by Carleton, as it states that at least on one occasion one of Carleton's employees was discharged or sent away. There is an absence of evidence to support such conclusion. On one occasion one of Carleton's men appeared at defendant's plant looking, as the manager expresses it, "all in." He inquired of the workman what the trouble was and was told that he had "been working all night over to the Detroit Foundry." Under these circumstances he was not required to work that day. This act of humanity is not evidence of the right to hire and discharge, and we emphasize the word "right" because, as we shall presently see, it is not what control was exercised, but what right of control existed.

Three recent cases decided by this court under this act (Pub. Acts 1912 [Ex. Sess.] No. 10), are relied upon by the parties as being decisive of this case. The appellant relies upon the case of Perham vs. American Roofing Co., 193 Mich. 221, 159 N. W. 140, while appellee insists that the case of Tuttle vs. EmburyMartin Lumber Co., 192 Mich. 385, 158 N. W. 875, and Opitz vs. Hoertz, 161 N. W. 866, are more directly in point.

In Perham vs. American Roofing Co., supra, Perham agreed with defendant to lay the roof on the Webber residence at $1.75 per square. He arranged with another workman to work on the job with him, and they hired a helper. In the execution

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