fore the injury, his capacity to earn may have been diminished; and under various American statutes it has been held, accordingly, that the incapacity of an injured workman is not to be measured solely by the wages which he receives after the injury. (For illustrations under the English statute, see III. infra.)

Thus, it was held in WOODCOCK V. DODGE BROS. (reported herewith) ante, 203, that the fact that an employee injured so as to prevent his following the particular employment in which he was engaged at the time of the injury, is able to earn greater compensation in other employments, does not prevent his receiving compensation for diminished earning power in the employment which he followed when injured.

In Frankfort General Ins. Co. v. Pillsbury (1916) 173 Cal. 56, 159 Pac. 150, the court said: "The ability of the workman to do the exact work for which he had been employed at the time of the injury is not the sole measure of disability."

So, in London Guarantee & Acci. Co. v. Industrial Commission (1921) Colo., 199 Pac. 962, the court said that the amount of wages paid by the former employer to the workman after the injury, as compared with the wages received previously, is not conclusive of the question of the workman's disability; that the question is whether the latter's physical and mental efficiency has been substantially impaired, and to what extent, and for what time this impairment will continue.

And it has been held under the New Jersey act that the word "disability" is not restricted to mere loss of earning power, and that the mere fact that an injured workman is employed at the same work and at the same wages as before the injury will not disentitle him to compensation under the act, if his physical efficiency has been substantially impaired. Burbage v. Lee (1915) 87 N. J. L. 36, 93 Atl. 859. In this case the employee sustained permanent injuries through fractures and dislocations. The court said: "The term 'disability' is not restricted to

such disability as impairs present earning power at the particular occupation, but embraces any loss of physical function which detracts from the former efficiency of the body or its members in the ordinary pursuits of life."

To the same effect, that there may be a statutory "disability," although it appears that the earnings of the petitioner have not been impaired, is De Zeng Standard Co. v. Pressey (1914) 86 N. J. L. 469, 92 Atl. 278, affirmed without opinion, in (1915) 88 N. J. L. 382, 96 Atl. 1102. In this case the employee, through the fracture of a bone in a forearm, sustained an injury which it was admitted caused the permanent loss of 30 per cent of the use of his arm. The court said: "The prosecutor's principal claim is that there cannot be a statutory 'disability' when it appears that the earnings of the petitioner had not been impaired. With this we cannot agree. It may well be that for a time an injured employee might be able to earn the same wages as before the accident; but, as we read the act, the disability intended thereby is a disability due to loss of a member, or part of a member, or of a function, rather than to mere loss of earning power. Even if this were not so, it does not follow that the injured employee had not sustained a distinct loss of earning power in the near or not remote future, and for which the award is intended to compensate. If it were a question of damages at common law, the elements of damage would consist of present loss of wages, probable future loss of wages, pain and suffering, and temporary or permanent disability, which loss the jury would be at liberty to assess quite independently of the fact that the plaintiff was earning the same wages, except so far as that fact might be evidential with regard to the extent of the disability."

And in Hercules Powder Co. v. Morris County Ct. (1919) 93 N. J. L. 93, 107 Atl. 433, the rule was laid down that the sole criterion of a disability, partial in character and permanent in quality, under the statute of that state, was not limited to the

loss of earning power. And in this case, where the injured employee lost one of his testicles, it was held that the loss was a "permanent injury" within the meaning of the statute by which compensation was awarded, "where the usefulness of the member is permanently impaired," or "where any physical function is permanently impaired."

In Foley v. Detroit United R. Co. (1916) 190 Mich. 507, 157 N. W. 45, the court held that it is the "capacity to earn," and not the mere amount of wages which the employee may be earning after the injury, that determines his right to compensation. In this case a motorman on a street railway, who sustained an injury in a collision which rendered him partially unfit for this particular work, subsequently obtained employment as a watchman at the street car barns, receiving a larger amount as wages than he had received as motorman. Yet it was held that the industrial accident board had authority to award compensation for partial disability, where the statute provided that the weekly loss. in wages referred to in the act should consist of such percentage of the average weekly earnings of the injured employee as should 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."

And in Jameson v. Walter S. Newhall Co. (1918) 200 Mich. 514, 166 N. W. 834, 18 N. C. C. A. 855, where an expert pile driver was physically incapacitated by an accident from pursuing that employment, although after his injury he received higher wages for a time at lighter work, wages having generally increased in the meantime, an award on the basis of total disability was sustained.

Also, in Geis v. Packard Motor Car Co. (1921) Mich. —, 183 N. W. 916, where one employed by an automobile manufacturer as a motor tester suffered an injury by the fracture of his right arm, rendering him unable to perform his duties in that capacity, but was afterwards employed by the same company as a motor inspector,

it was contended that the subsequent employment was skilled work of the same class as he had been performing previously, and that the employer should be permitted to discontinue payment of compensation on the ground that the employee was able to earn more in his new position than in the old. In holding that recovery of compensation was not precluded, the court said that it was asked to hold that if a skilled laborer was so injured as to debar him from ever continuing the same employment, yet if his skill and training and acquired knowledge fitted him for doing work somewhat allied thereto, which he could perform without diminution of earnings, then, from the time he entered upon such new work and earned thereat as much or more than before the injury, his compensation on account of the injury must stop. It was said: "No precedent for such a holding has been called to our attention, and counsel for defendant say the point is one of first impression in this state. Just how skilled labor is to be classified is not made apparent. If classification is to proceed upon the theory of employments closely allied in skill and training, then the statute making the test the impairment of his earning capacity in the employment in which he was working at the time of the accident does not mean what it says. The board found from the evidence that 'said applicant at the time of his injury was employed as a motor tester, which employment the board finds to be a skilled work and a distinct and particular employment, requiring years of experience in motor building and dismantling in order to become competent thereat.' That plaintiff was wholly incapacitated as a motor tester is established. . . . Defendant claims to have no quarrel with such holdings, but asks us to place a meaning upon the occupation in which an employee is injured commensurate with ability to turn his skill, training, and knowledge acquired in one employment to use in another closely related thereto. The argument is ingenious, but to accede to it would start the thin edge of the wedge to a riving of the clear

terms of the statute, and open the field to equitable and conjectural considerations now closed by the statute. We must stick to the statute and leave defendant to present the equity of its position to the legislature."

The holdings in several other Michigan cases are here set out, for the reason that it appeared that after the injury the employee received a larger wage than he was receiving at the time of the injury, although this does. not appear to be a controlling factor, the cases turning on the nature of the employment, and being to the effect that an award as for total disability should not be made where the employee is a common laborer, and is merely incapacitated by the accident to perform the particular kind of common labor he was performing at the time of the accident.

Thus, in Leitz v. Larabie Ice Co. (1920) 211 Mich. 565, 179 N. W. 291, where the plaintiff sustained an accidental injury while in the employ of the defendant ice company as a common laborer, release from the payment of an award as for total disability was asked on the ground that the employee's incapacity to earn wages had ceased, and that he was in fact earning more at manual labor than he received at the time of the accident. It appeared that the plaintiff was, at the time of the hearing, in the employ of an automobile company, operating a punching machine, for which he was receiving a larger wage than at the time of the accident. The industrial board, however, had found that he was totally disabled in the employment in which he was engaged when the accident occurred. It was held that on these facts an award on the basis of total disability should be set aside, the court holding that under the statute in that state the fact that a common laborer was not able to do exactly the same particular kind of common labor he was doing when injured was not the test of total disability-citing Miller v. S. Fair & Sons (1919) 206 Mich. 360, 171 N. W. 380. The same principle was applied in Smith v. Stevenson Co. (1920) Mich. 180 N. W. 384, where a workman

in a logging camp obtained work after his injury in a paper mill at unskilled manual labor, earning more than he had before the injury. And it was held that a continuance of an award on the basis of total disability, on the theory that the employee was still totally disabled in his particular employment as a "woodsman" could not be sustained.

And in Kling v. National Candy Co. (1920) Mich. -, 180 N. W. 431, the same doctrine was applied, where a youth employed in a candy factory as a "candy mixer" sustained an injury to his hand, resulting in the loss of part of a finger and otherwise injuring the hand, and was subsequently offered employment by the same company at a larger wage than he was receiving at the time of the injury; it being held that an award on the basis of total incapacity, on the ground that he was totally incapacitated for work in the particular employment in which he was engaged at the time of the accident should be set aside.

The fact that there had been no loss of wages was held in Clark v. Kennebec Journal Co. (1921) Me., 113 Atl. 51, not to preclude recovery of compensation under the Maine statute, where the applicant, in cranking an automobile, was struck on the arm and sustained a permanent impairment to his hand, the court saying that he had suffered a distinct loss of earning power in the near or not remote future. The statute provided: "In all cases in this class where the usefulness of a member or any physical function thereof is permanently impaired, the compensation shall bear such relation to the amount stated in the above schedule as the incapacity shall bear to the injuries named in this schedule, and the commission shall determine the extent of the incapacity."

And under the provision of the Louisiana statute that payments should not be made in any case "after the employee is able to earn as much as he did before the acident," it was held in Norwood v. Lake Bisteneau Oil Co. (1919) 145 La. 823, 83 So. 25, that recovery of compensation was not precluded merely because the employee,

upon returning to his work two months after the accident, was paid the same wages as before, where he was not fully capable of attending to his work in caring for pumping machinery, which was started by other workmen for him, and he was discharged at the end of eight months.

Also, in Gailey v. Peet Bros. Mfg. Co. (1916) 98 Kan. 53, 157 Pac. 431, it is held that an employee partially incapacitated by an injury from performing his labor does not lose his right to compensation by remaining in the employment of his master at his former wages. It was said: "The defendant argues that within two weeks after the injury the plaintiff was employed by the defendant at the same wages at which he had been employed previous to receiving the injury, and that he voluntarily quit the defendant's employ. If this employment relieved the defendant of liability, then any employer can escape liability for compensation by retaining the injured employee and paying him wages, although he may not be able to do as good work after the injury as he did before. An injured employee may not wish to continue to work for the one in whose employ he was injured, and, because of his injury, he cannot obtain as good wages in another place. The injured employee has a right to compensation for his injury. It does not matter that his employer continues to accept his services and pay him regular wages, unless that employment continues for the entire period for which compensation might be allowed."

So, the court in Raffaghelle v. Russell (1918) 103 Kan. 849, 176 Pac. 640, laid down the rule that "an injured workman, who, only in pain and distress and with the friendly help of his fellow workmen, can earn as much as he did before his injury, may main-. tain an action against his employer for permanent partial incapacity under the Workmen's Compensation Act." The court applied this rule in a case where a miner received such injuries as diminished his earning capacity, although it appeared that he had gone to another state and con17 A.L.R.-14.

tinued mining, being helped with heavy lifting by his fellow workmen, and his wages were sometimes as large or larger after the injury than they had been previously.

And where there was evidence tending to show that as a result of the injury the plaintiff was less able to perform his work as a car repairer, and the jury made a finding that he was partially incapacitated, and awarded him the minimum compensation of $3 per week for the period during which they found his partial incapacity would probably continue, it was held in Hood v. American Refrigerator Transit Co. (1920) 106 Kan. 76, 186 Pac. 977, that the judgment should be affirmed, notwithstanding it appeared that within a few months after the plaintiff received his injury he obtained employment elsewhere in the same kind of work, and had been earning almost double the amount of his average earnings at the time of the injury. The statute provided that in case of partial incapacity the payments should be computed so as to equal 50 per cent of the difference between the amount of the average earnings of the workman before the accident and the average amount "which he" is most probably able to earn in some suitable employment or business after the accident," subject to a specified minimum. The court said: "Since there was evidence to sustain the finding of partial incapacity, the plaintiff cannot be deprived of his right to the minimum compensation fixed by the statute, merely because such incapacity is slight. The fact that he has obtained employment from another employer in the same kind of work, and has been able to earn a great deal more than his average earnings at the time he received the injury, must be regarded as accounted for by unusual conditions, of which the courts will not decline to take notice, and which have resulted in a general increase in the wages paid to laborers."

*

Also, in Sauvain v. Battelle (1917) 100 Kan. 468, 164 Pac. 1086, where the plaintiff sustained an injury while engaged in car repair work, which

totally incapacitated him for this kind of work at least for a year, and secured employment as foreman of a section gang, the duties of which required no manual labor or much physical exertion, receiving therefor a larger remuneration than at the time of the injury, although his subsequent employment was of uncertain duration, it was held that compensation was properly awarded him under the statute. The court said that it was settled that when one is totally or partially incapacitated for hard manual labor, he is not to be denied compensation because he obtains employment, even at better wages, at a task which he is physically able to perform.

And in Lombard v. Uhrich Planing Mills Co. (1918) 102 Kan. 780, 172 Pac. 32, the court said that the fact that the plaintiff, after he quit the employ of the defendants, was employed in a like capacity, for other parties, at a more remunerative wage, did not defeat his right to recover under the Workmen's Compensation Act.

The Kansas statute providing that when partial incapacity for work results from injury, periodical payments during such incapacity shall not be less than 25 per cent, nor exceed 50 per cent, based upon the average weekly earnings computed as provided in the act, but in no case less than $3 per week, has been construed, it was said in Seckman v. Monarch Cement Co. (1917) 100 Kan. 463, 165 Pac. 278, as meaning that if a workman suffers a permanent injury which substantially reduces his earning capacity, he is entitled to receive at least $3 a week until the end of the eight-year period specified in the statute, regardless of what he could earn or did earn during that time.

And in Dennis v. Cafferty (1917) 99 Kan. 810, 163 Pac. 461, the court held that the minimum of $3 a week allowed by the Kansas statute for partial disability was a sum fixed by the legislature, with the general view and purpose of compensation, and should not be withheld merely because, in a given case before the expiration of the period of parital incapacity, the workman found other employment

and was earning more wages than before the injury. It was said: "A minimum of $3 a week was prescribed, not because it would in each case be in accord with precise justice, but because as a general thing this was deemed a fair lower rung for the ladder of allowances. While aiming at a thing named 'compensation,' no way was found to avoid, in every instance, certain inequities, or to provide in advance that judgments of courts might never turn out to be, in the light of subsequent developments, slightly excessive or slightly lacking in sufficiency. Although the method of settlement and adjustment should have been, and was doubtless intended usually to be, without resort to the courts, it seems to have been considered that in any case of partial incapacity the traffic-otherwise the public-could and should bear at least $3 a week. While partially disabled, should a workman by some happy revolution of the wheel of fortune, by entering a profession or by obtaining a light but lucrative position, be placed beyond the need of the $3 allowance, no means has been provided for its detachment from the aggregate of his income."

It was held in Hanley v. Union Stock Yards Co. (1916) 100 Neb. 232, 158 N. W. 939, that if a workman is disqualified to continue his regular employment, the fact that he may procure temporary employment in a different occupation for a few days at equal or greater wages is not conclusive that his disability has ceased.

If, however, the employee returns to his former work at the same or higher wages, or the employer makes a bona fide offer so as to restore him to work, these facts may be evidence that his earning capacity has not been impaired, and if there is no showing of a loss of earning capacity due to the injury, compensation, under some of the statutes, is precluded.

Thus, under the Rhode Island statute, if the petitioner has presented no evidence showing loss of earning capacity, the court cannot make an award of compensation. Weber v. American Silk Spinning Co. (1915) 38