HELD: 1. That the right to the custody and burial of the dead belongs to the family, next of kin, near relatives and friends of the deceased, and that the compensation law does not assume to take away or interfere with this important right.

2. That the employer has no authority to contract for funerals with an undertaker in such a way as to arbitrarily fix the number of carriages or to decide in certain cases that no carriages shall be provided. These are matters for the family or next of kin to decide and arrange for, provided the expense is reasonable and does not exceed the limit fixed by law.

Appeal of X. B. Konkel to compel the Ford Motor Company to pay his claim for funeral expenses incurred in the burial of one of respondent's employes.

Opinion by the Board:

This case involves the question of funeral expenses, the deceased workman, John Ovczieneko, having left no dependents. Section 8, Part II, of the act provides that in cases where the employe leaves no dependents, the employer shall pay or cause to be paid the reasonable expenses of his last sickness and burying, which shall not exceed $200. It is claimed by res pondent that it entered into a contract with the undertaker, X. B. Konkel, to furnish and conduct the funeral of deceased for $75, the respondent to pay in addition thereto the cost of the cemetery lot, which was $15. After the funeral was had the claimant presented a bill to respondent for $104, being $15 for the cemetery lot and $89 for the funeral. The precise claim of respondent is that the claimant had made an overcharge of $14, claiming $89 for the funeral when the agreed amount was $75. The claimant admits that the price agreed upon for the funeral was $75, but claims that the relatives and friends of the deceased when the funeral came on required him to furnish three additional hacks and that the $14 additional charge is for those hacks, which were actually furnished and used at the funeral. The only relative of the deceased who resided

here and attended the funeral was a brother, but many friends and acquaintances of the deceased attended, and some of them rode in the three hacks to the cemetery. The agreement between the claimant and respondent with reference to the funeral practically excluded hacks, the precise contention of respondent being stated as follows: "The deceased had absolutely no family nor friends in this country, outside of his brother, and this company will not pay for pleasure carriages for funeral purposes and if people desire to go for a ride or an undertaker desires his friends to go for a ride, they must pay for their carriages. That after an absolute contract was made the undertaker should not go ahead and incur additional expenses."

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It will be seen that this case involves the fundamental question, has the employer the right to order and contract for the funeral in cases of this kind, and can he limit the item of expense and the character of the funeral. If he has this power then the contract entered into with claimant would be controlling and the additional expense incurred for carriages would be unauthorized. The Board, however, is clearly of the opinion that the employer has no such power. The right to the custody and burial of the dead belongs to the family, to the next of kin, to the near relatives and friends. The right is inherent and universally recognized. They may make the funeral as to form, rites, procession and burial whatsoever their sentiment, judgment and traditions dictate. The compensation law does not assume to take away or in any manner interfere with this important right of the family and relatives of the workman in death cases like this. The law merely provides that the employer shall pay the expense, or cause it to be paid, and that the amount of his liability for such expense shall not exceed $200. It does not give him the right to contract with the undertaker, or even to select the undertaker. Much less does it give him the right to arbitrarily fix the number of carriages, or to decide that in certain cases no carriages shall be provided. These are matters for the family and next of kin to decide and provide for, and if the expense is reason

able and does not exceed the limit fixed by law, it should be paid by the employer. In this case the extra hacks were ordered by the next of kin and friends of deceased, and were used to convey his friends to the place of burial. In the opinion of the Board they were reasonably necessary, and the bill of claimant for $104 is allowed and ordered paid.

JOHN JANKOWSKI,

VS.

Applicant,

AMERICAN CAR & FOUNDRY COMPANY,
Respondent.

INTENTIONAL AND WILFUL MISCONDUCT.

The applicant was working under a car in the process of con. struction in such a position that he would be seriously injured by the moving of the car while so engaged. The usual signals preceding such movement were given and applicant had been instructed in the same.

HELD: That the failure of the applicant through inattention, lack of mental alertness or on account of the noise, to hear and comprehend the signals did not under the facts in this case, constitute intentional and wilful misconduct.

Opinion by the Board:

The applicant, John Jankowski, was severely injured in one of the factories of respondent in Detroit, by the moving of a car under which he was working. He was employed as a "sweeper" in respondent's factory which is known as the

"Peninsular Department," where the respondent was engaged in the construction of cars of various types. He was working in a large room on the floor of which there are approximately 16 railroad tracks which are used for cars in the process of construction. From time to time as different parts of the construction work are finished, the cars are moved along the tracks to other parts of respondent's plant. Applicant's duties were to maintain order throughout the shop by sweeping and picking up rubbish from the floor and also from under the cars. Shortly before he was injured, he went under one of a string of three cars to clean up, that is, to pick up some pieces of wood and iron from the floor. Work was being done at that time by carpenters and others upon these cars and also upon the cars on an adjoining track, the men using heavy hammers in their work and making considerable noise.

There were certain rules promulgated by respondent's foreman in charge of the train under which applicant was injured. One of these rules provided for the blowing of certain warning whistles before moving the cars along the track. The foreman in his testimony states the rule, as follows:

"I just blow once and then I look around and see if everything is clear; then blow twice and wait a few seconds and then blow three times; that is the last, for the men all know when the third whistle comes the car is going to be pulled in a very short time. I have no fixed time between whistles. Most of the time there is between three and five minutes between first whistle and the next two whistles; I never take out my watch."

The rule as established and understood by the men was that all persons working inside or around the cars should get out of danger upon the sounding of the first whistle, and it was so understood by the applicant. No printed or written rule to this effect was posted in the factory, but the rule was communicated to the men by the foreman working in and about the cars. There is a whistle for each track, and the one in use in connection with the track on which applicant was injured was strong enough to be heard for some distance beyond the limits of the room in which the work was being done,

and at the time the signals were given for the movement of the cars in question no other whistle was being blown. While there was considerable noise in the room from the general occupation, it was not enough to prevent one from hearing and understanding the signals. A few minutes before the accident applicant went under one of the string of cars above referred to at a point about 60 feet from where the whistle was located, and with a broom and keg was engaged in picking up pieces or iron and wood which had dropped under the car in the course of the construction work. Before the cars were moved, the usual whistle signals were given. Applicant's hearing was normal. He remained under the car and was seriously injured when it was moved. The signals that the cars were about to be moved were in fact given by blowing the whistles according to rule, and the applicant was familiar with and instructed in such signals. It is claimed that his failure to heed the signals and promptly go to a place of safety before the cars were moved constituted intentional and wilful misconduct within the meaning of the law.

In the opinion of the Board this contention cannot be sustained. Through inattention, lack of mental alertness, or on account of the noise, or for some other reason, applicant failed to hear and comprehend such signals, in the sense that said signals did not convey to his mind on the occasion in question a realization of the fact that the car under which he was working was about to be started. An alert, careful man in the position occupied by applicant would have heard and understood the signals, but under the facts and conditions in this case where applicant must have known that serious injury would result to him from the moving of the car while he was so working under it, the Board cannot believe and therefore cannot find that applicant heard and understood the signals in the sense above stated.