SUPREME COURT. CHARLES WEAVER, VS. Appellee and Claimant, MAXWELL MOTOR COMPANY, Defendant and Appellant. MASTER AND SERVANT-INJURIES TO SERVANT-COMPENSATION. Act No. 10, Pub. Acts 1912, pt. 2, § 9, provides that, while the incapacity for work resulting from an injury is total, the employer shall pay a weekly compensation equal to one-half of the employe's wages, but not to exceed $10. Section 10 declares that, while the incapacity is partial, the injured employe shall be entitled to compensation equal to one-half the difference between his average weekly wages before the injury and those he is able to earn thereafter, that for the loss of an eye he shall recover as compensation 50 per cent of the average weekly wages during 100 weeks, and that the loss of both eyes or both legs shall constitute a total and permanent disability. The claimant had in a previous accident lost one eye. Thereafter he lost his remaining eye. HELD: That the injury could not be considered as a total disability, and he was entitled only to one-half of his weekly wages for 100 weeks. Proceedings by Certiorari to Industrial Accident Board. Charles Weaver, under the Workmen's Compensation Act, against the Maxwell Motor Company, to obtain compensation for personal injuries. The claimant was awarded compensation by the Industrial Accident Board, and the employer brings certiorari. Remanded for further proceedings. Fred L. Vanderveer of Detroit (Cummins, Nichols & Rhoads of Lansing, of counsel), for appellant. Person, Shields & Silsbee, of Lansing, for appellee. MOORE, J. This case is certiorari to the Industrial Acci dent Board. The facts are stipulated. We quote sufficiently for the purposes of this case: "The character and nature of the injury and the result thereof is as follows: The end of a crowbar struck me in the left eye, causing an injury which has permanently destroyed the sight of this member. Due to an injury received about seven years ago while working in a dye works, applicant received an injury which cost him practically the total loss of sight of the right eye. At the present time the sight of both eyes is limited only to a perception of light. Applicant received no injury to his right eye due to the accident of July 3rd, 1913, to the left eye. "Applicant contends that by reason of the loss of his left eye, due to the accident of July 3rd, 1913, and the loss of the right eye, due to the accident of some seven years ago that he is now totally and permanently incapacitated from work and therefore entitled to compensation up to the limit allowed by the act, viz: four thousand dollars. Respondent claims that it is liable only for the injury which was received while in its employ, viz: the loss of the left eye, and should pay compensation for but one hundred weeks for a total amount of one thousand dollars." The ruling of the Industrial Accident Board was as follows: "This cause having come on to be heard before the full board on stipulation and waiver, agreeing among other things that the applicant by the accident in question lost the sight of his only eye, the result being blindness and total incapacity for labor, and the same having been argued by counsel and written brief filed therein, and due consideration thereof having been had by the board; it is ordered and adjudged that said applicant is entitled to receive and recover from said respondents compensation at the rate of $10.00 per week for a period of four hundred weeks from the date of accident in said cause, said compensation to be paid in weekly payments in accordance with the provision of the Workmen's Compensation Law.” The questions involved call for a construction of portions of Act 10 Extra Session of 1912. Section 9, Part 2 of the Act reads: "While the incapacity for work resulting from the injury is total, the employer shall pay or cause to be paid, as hereinafter provided, to the injured employe, a weekly compensation equal to one-half his average weekly wages, but not more than $10.00 nor less than $4.00 a week; and in no case shall the period covered by such compensation be greater than five hundred weeks, nor shall the total amount of all compensation exceed $4,000." Section 10, of Part 2, provides in part as follows: "While the incapacity for work resulting from the injury is partial, the employer shall pay or cause to be paid, as hereinafter provided, to the injured employe, a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than $10 a week; and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of injury. In cases included by the following schedule, the disability in each such case shall be deemed to continue for the period specified and the compensation so paid for such injury shall be as specified therein, to-wit: *For the loss of an eye, fifty per centum of average weekly wages during one hundred weeks; the loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof, shall constitute total and permanent disability to be compensated according to the provisions of Section 9." ** Counsel, upon the oral argument and in the printed briefs stated that after diligent search they were unable to find a case in point. Since the case was submitted counsel for the claimants has called the attention of the court and opposing counsel to the case of State ex. rel. Garwin vs. District Court, et al., 151 N. W. R. 910, which is a case on all fours as to the facts. It is not a precedent in the instant case however, because the Minnesota Statute contains language not found in the Michigan Statute reading "if an employe receive an injury which of itself would only cause permanent partial disability, but which combined with a previous disability does in fact cause permanent total disability, the employer shall only be liable for the permanent partial disability caused by the subsequent injury," and it was held the compensation should be based upon the permanent partial disability, and not as claimed by the appellant on the basis of permanent total dis ability. It must be confessed that the provisions of the Michigan Statute are so ambiguous as not to be free from doubt as is evidenced by the diverse constructions put upon it by the able counsel employed in the case before us. All of its provisions however should be given effect if possible. The compensation fixed in Section 9 must be based upon the fact that the total incapacity for work resulted from the injury. Section 10 deals with the partial incapacity for work resulting from the injury and fixes the compensation and then proceeds "for the loss of an eye fifty per centum" etc., * of both eyes # * "the loss * * permanent disability." * * * shall constitute total and In the instant case the loss of the first eye was a partial disability for which if our Workmen's Compensation Law had been in existence the then employer would have been liable, and for which disability the present employer was in no degree the cause. The loss of the second eye standing by itself was also a partial disability and of itself did not occasion the total disability. It required that in addition to the results of the disability occasioned by the accident of seven years ago, there should be added the results of the partial disability of the recent accident to produce the total disability. The absence of either accident would have left the claimant partially incapacitated. We think it clear the total incapacity cannot be entirely attributed to the last accident. It follows that the compensation should be based upon partial incapacity and it is so ordered. The case will be remanded for further proceedings. SUPREME COURT. A. HARRY GIGNAC, VS. Claimant and Appellee, STUDEBAKER CORPORATION, Contestant and Appellant. WORK MEN'S COMPENSATION-WILFUL INTENTIONAL MISCONDUCT. Claimant, a car checker, was injured while passing between cars to which an engine was attached. He placed his foot on a coupling and when the engine backed, his foot was caught and injured. HELD: Claimant was not guilty of such wilful misconduct as would preclude his receiving compensation under the terms of the Workmen's Compensation Law. Certiorari to the Industrial Accident Board, to review the order of the board in awarding compensation to A. Harry Gig. nac, while in the employ of the Studebaker Corporation. Affirmed. F. J. Ward, of Detroit for defendant and appellant. No appearance for claimant. BROOKE, C. J. The facts involved in this case may be briefly stated as follows: The claimant, a young man about 20 years of age, was employed by the defendant corporation as a checker. At the rear of the plant operated by appellant was a side-track of the railroad company, running along the side of the platform where empty cars were placed to be loaded with automobiles. It was claimant's duty to check each automobile as it was placed in the car. When the string of cars was loaded it was customary to remove it to another track a short distance away from the platform. On the evening before the accident claimant had checked a string of cars which stood beside the platform. Returning to his work the follow |