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calendar year. About the first there is no question. The same initial language used in the second and third classifications indicates that the legislature still had in mind employments at which employees worked substantially the whole of the year immediately preceding an injury. The employment in which the injured employee in the instant case was engaged at the time of his injury was not an employment of that character. It was not an employment in an industry which continued operations during substantially the entire year. The record shows that this is the case, not only in the Saginaw valley district, but everywhere in the coal mining industry. It also shows that the miners were paid according to the number of tons of coal mined by them, and that, under the system of operations, the miners worked on numbers; that frequently two or more miners get out coal and send it up to the surface upon one number; that the man to whom the number belonged would receive the pay for the entire output, and the miners would divide it among themselves. It also appears that the coal mines in the Saginaw valley district worked on an average of 211 days in each year. How will it be possible, in fixing the average annual wages of deceased, to adapt these facts to the rules established by the legislature in classes 1, 2 or 3?

In our opinion the "methods of arriving at the average annual earnings of the injured employee" set forth in these classes "cannot reasonably and fairly be applied." We must therefore conclude that it comes within the fourth classification, where such average annual earnings must be determined to be such sum as, "having regard to the previous earnings of the injured employee, and of other employees of the same or most similar class, working in the same or a most similar employment, in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee at the time of the accident in the employment in which he was working at such time." Applying this rule to the undisputed facts in the instant case, we find that he was paid by his employer, in this employment in which he was engaged during the time the mine was operated the preceding year, the

sum of $507.45; that the average time in which the coal mining industry operated in that district was 211 days. It is clear, from the manner in which the men worked on numbers in this employment, that the above sum but approximately represents his entire earnings. The terms of this fourth classification indicate that the amount of compensation in the cases which come within it can only be approximated. We have already intimated that the legislative intent in enacting this legislation was to place the burden of compensation for losses caused by industrial injuries and deaths upon the sev eral industries as part of the cost of production, in this manner to be borne by the public generally.

The foregoing consideration of these four classifications shows that the term "average annual earnings" of the injured employee, as used in this act, means his average annual earnings in the employment in which he was engaged at the time of his injury. This appears so clearly and emphatically that it is impossible to arrive at any other conclusion and preserve what appears to have been the legislative intent to exclude other earnings in different or concurrent employments, and thus be able to distribute the burden of compensation to each of the several industries where in the injuries and deaths may

occur.

In making these classifications which we have been considering, the known and recognized incidents of industrial cmployments were taken into consideration. The first three relate to employments wherein operations are carried on for substantially the entire year, and may be said to include the large majority of industrial employments in the State. That there were well-known industrial employments within this jurisdiction which were not so operated must also have been within the knowledge of the legislative body. That such em ployments were recognized and provided for is apparent from the terms and provisions of the fourth classification. If this conclusion is not correct, we must hold that the legislature has omitted a large class of employees from the benefits of

this statute. Such a construction will never be given, where another and a reasonable construction can be adopted.

Act No. 10, under consideration, both by its title and by the provisions which it contains, indicates that it was general legislation intended to apply to all employees and all industrial employments within this State, and to provide compen sation to all such employees for accidental injuries or deaths resulting therefrom. It is apparent, then, that the legislation was intended to make such provision, and that section 11 of part 2 of this act was intended to apply to all cases of accidental injuries or deaths occurring in such employments.

In our opinion the legislature by this statute did in fact make provision which applied to all cases of such injuries and deaths occurring in all employments, and that, in making such provision, they included the known and recognized incident of the employment of coal mining and other employments that such employments were not carried on during the entire year. Therefore, in determining the compensation to employees injured in such employments and in arriving at a fair and reasonable basis therefor, the computation must be made under the provisions of the fourth classification of this statute, and the amount of the average annual earnings of the injured employee ascertained as near as possible.

To charge this employment with compensation for injuries to its employees on the same basis as employments which operate during substantially 300 days in the year would be an apparent injustice, as such compensation would be based on the theory of impossible earnings by the employee in that employment which operated upon the average a trifle over twothirds of a working year. This was recognized and provided for by the legislature by omitting from the fourth classification any requirement relative to the average daily wage or salary of an injured employee. This construction, in principle, appears to be supported by the English cases involving questions of like character. Kelly v. Spinning Co., Ltd., 43 Ir. L. T. J. 81; Bailey v. Kenworthy, 98 L. T. 333, 334; Carter v.

John Lang & Sons, 16 Sc. L. T. 345-348; Anslow v. Colliery Co., 100 L. T. 786.

In the record is an exhibit showing the annual earnings paid by appellant to the deceased from 1904 to 1912, inclusive, amounting to $5,175.21. From this table we find that the average annual earnings paid to him during that period were $575.02, which we will take as a basis for the computation of the compensation to which the claimant is entitled. Having determined his average annual earnings, there remains nothing further to do, except to determine the average weekly wages, by dividing this sum by 52, the result of which is $11.06, as such average weekly wages. amount, being $5.53, would be the amount to be paid weekly to the claimant for a term not exceeding 300 weeks.

One-half of this

The conclusion of law, therefore, of the industrial accident board, in determining that the average weekly wages of deceased should be computed under the second classification of section 11 of part 2 of this act, was erroneous. Its order in affirming the award made in this cause by the arbitration committee therein is therefrom reversed and set aside; and this court, in cases under this act brought to this court for review, being authorized by section 12 of part 3 of said act "to make such orders in respect thereto as justice may require," does order and determine that said order of the industrial accident board be reversed and set aside, and an order entered by said board in said cause in accordance with the foregoing opinion, but without costs.

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FACTORY RULES-ACQUIESCENCE BY EMPLOYER IN INFRACTION OF RULES. Applicant's decedent was employed in the factory of respondent. It was customary for the respondent to announce the noon hour by blowing a whistle. The employes were required to proceed to the end of the room in which they worked and punch a time clock before leaving for dinner. On the day of his injury decedent started on a run from his bench toward the time clock, which was located about 150 feet away, and collided with a fellow workman, receiving injuries which resulted in his death. There was a rule forbidding the men running to punch the clock, but respon. dent's foreman testified that it was not strictly enforced.

HELD: 1. That the mere fact that such a rule was made is not controlling when its general violation is acquiesced in by the employer.

2. The infraction of this rule by decedent was not such intentional and wilful misconduct as to bar recovery, in view of the fact that it was the general custom of decedent's fellow employes and was tactitly permitted by respondent's foreman.

Appeal of Sligh Furniture Company from the decision of an arbitration committee, awarding compensation to Lyda Rayner for the death of her husband. Affirmed.

Opinion by the Board:

On November 5, 1912, Adelbert Rayner, the applicant's husband, was injured in respondent's factory in the city of Grand Rapids. Mr. Rayner was fifty-nine years of age, was of light build, somewhat active, and on the day of his injury was working in the cabinet department on the third floor of respond

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