acts at the time he received the injury. Had he received the injury on the previous day while he was endeavoring to protect his master's property against trespassers, the connection would be obvious. That incident happened the previous day, and appeared to be a closed incident except for the ill feeling which it engendered. The following day the same parties reappeared, not for a like purpose as on the previous day, but evidently for the purpose of getting revenge, although they claimed to be in search of a lost work ticket. They assailed claimant with words only, but their attitude toward him was threatening. David overheard it and came out of the basement and took charge of the controversy himself. After he had engaged in the fight and appeared to be succeeding, claimant, who had been an observer, came unsolicited to his brother's aid by keeping off the reserve force, and while doing so was hit with a flying missile and injured. It may have been commendable in him to volunteer to assist his brother against such great odds, but that does not satisfactorily answer the question what connection his acts had with his employment. He was not called upon to protect his master's property, as on the previous day. He was not asked to assist his master in the fight on the second day. His action was purely a voluntary one, and it seems to us no different than as though he had discovered the same men fighting with his brother a week afterward ten blocks away, or as though claimant had observed a fight going on across the street and had gone there to get a better view, and while there had been hit by a flying missile and injured. Had claimant remained at his work he would not have been injured. His presence at the place of fighting was in pursuance of no demand of his employment. Neither was it in aid of any material interest of his master. His presence there and the assistance which he rendered was solely in the interest of his master's personal safety. An injury received under such circumstances cannot be said, under a fair construction of the act, to have arisen out of and in the course of his employment.

See Collins v. Collins, 2 Ir. R., 104.

Mitchinson v. Day Bros., 6 Butterworth's C. C. 190.

But claimant says he was in charge of his brother's work while he was away, and also while he was present. If his brother David were present and did not assume to act, claimant probably had the authority to act, but when the master was present, and took personal charge of the matter himself, it necessarily excludes the idea of claimant's having charge of it.

The finding of the Industrial Accident Board must be reversed and the award set aside.

EMPLOYER-INDEPENDENT CONTRACTOR-INSURANCE.

Applicant's decedent was killed while engaged in clearing up the wreckage of a fire which destroyed the plant of Brown & Sehler, his death being caused by the falling of a brick wall of the burned building. The work was being done under the immediate direction of Hoertz & Son, a firm of building contractors, pursuant to an agreement entered into with Brown & Sehler, providing for the clearing up of the debris and the erection of new . buildings on the site. It was contended by respondents that Hoertz & Son were employed merely to superintend and direct the work and that Brown & Sehler were in fact the employers of deceased.

HELD:

1. That Hoertz & Son had full and unrestricted charge of the work, together with the men employed thereon, and that under all the facts and circumstances of the case they were independent contractors and liable as the employer of decedent for the payment of compensation to the widow.

2. That under the provisions of the Workmen's Compensation Law, the insurance carrier is directly liable to the injured workman or his dependents, and that the Board has authority in making its award to determine and fix the liability of the insurer.

Application to Industrial Accident Board to decide who were the actual employers of Carl Opitz, who was killed while at work.

Opinion by the Board:

On February 1, 1915, Carl Opitz, applicant's husband was killed while working on the premises of Brown & Sehler in Grand Rapids, he being engaged with other men in clearing up the wreckage of the fire that destroyed the Brown & Sehler buildings. The site was being cleared for the purpose of erecting new buildings thereon. The work was commenced on the morning of February 1st with a force of about 35 men. At one-thirty in the afternoon of that day a brick wall of the burned building fell, causing the death of Carl Opitz and several other men, besides seriously injuring a number of the workers. It is conceded that the accident arose out of and in the course of the employment of deceased and that the applicant in this case was wholly dependent. It is also conceded that both Hoertz & Son and Brown & Sehler were under the Michigan Workmen's Compensation Law, and that the Southwestern Surety Insurance Company was insurer of Hoertz & Son under such Compensation law.

The question as to who was the employer is the main point in dispute in the case, and the settlement of this point will be conclusive as to the other cases pending before the Board for injury and death growing out of this accident. It is claimed

on the part of Hoertz & Son that Brown & Sehler were the employers and that Hoertz & Son were merely acting as superintendent and agent for such owners in clearing the site and erecting new buildings following the fire. On the other hand it is claimed by Brown & Sehler that Hoertz & Son were independent contractors in the performance of the work in question, and that said Hoertz & Son were the employers of the men killed and injured, and therefore liable to pay the compensation. The question of the liability of the Insurance Company and the right of the Board to make an award against it is also involved.

Brown & Sehler were engaged in manufacturing and selling harnesses, saddlery and leather goods, their business being carried on in the three and four-story building owned by said firm, located on the west bank of the Grand River and fronting on Bridge Street in Grand Rapids. The firm had been engaged in this business for a number of years, having a considerable number of employes, and operating under the Workmen's Compensation Law without insurance, having been permitted to carry their own risk by the Board. On the night of January 15th, their building and plant were destroyed by fire, the interior of the building being a complete wreck, but leaving a portion of the brick walls standing. The firm was desirous of clearing up the site and erecting new buildings, and entered into negotiations for that purpose with Hoertz & Son, who were extensively engaged in the business of contracting and building in the city of Grand Rapids and elsewhere, and such negotiations resulted in the following written proposal being made to Brown & Sehler on January 29th, viz.:

"January 29, 1915. Brown & Sehler Company, Grand Rapids, Michigan:-Gentlemen:-We hereby propose to superintend and furnish a superintendent for the clearing of your site, and any new buildings you will build immediately, for 10% the actual cost of labor and new material required in re-construction. It is the understanding that we are to co-operate with you in the purchase of any new material and work in accordance with your wishes, or the hiring of teams and men. This proposition carries with it that Hoertz & Son will furnish all the necessary tools required to carry on this work in first class shape,

and that the owner pays all bills, and that the 10% is figured from the net cost price. Respectfully yours, Chas. Hoertz & Son, W. C. Hoertz."

This proposal was made to Brown & Sehler on January 29th, which was Friday. On Saturday morning, January 30th, both Charles Hoertz and William C. Hoertz called at the temporary office of Brown & Sehler and discussed the matter with Mr. Sehler, discussing general matters and some details. Mr. Sehler, on the part of his firm, accepted their proposal verbally, and told them to go ahead with the work. Hoertz & Son thereupon made preparations to commence the work on Monday morning, February 1st, and among other things placed their advertisement in some of the Grand Rapids papers for men wanted at the Brown & Sehler building for work, and on Monday morning they put about 35 men to work on the job. all of them being hired for the purpose, except the superintendent and timekeeper who were regular employes of Hoertz & Son.

Before commencing work on Monday morning, William C. Hoertz made out, dated, signed and had posted on the premises notices to employes that their employer was operating under the Michigan Workmen's Compensation Law, the same being the blank notices furnished employers for this purpose by the Industrial Accident Board, 12 by 18 inches in size, such notices reading as follows:

"NOTICE TO EMPLOYES.

All workmen or operatives employed by the undersigned in or about this establishment are hereby notified that the employer or employers owning or operating the same have filed with the Industrial Accident Board, at Lansing, notice of election to become subject to the provisions of Act No. 10 of Public Acts, Extra Session, 1912.

(This Act is commonly known as the Workmen's Compensation Law.)

You are further notified that unless you serve written notice on your employer of your election not to come under the law, the act will immediately apply to you.