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sulted, as he stated, in his taking a ride to the county jail in a patrol wagon, where he asserts, however, he was only detained from Saturday night until 2 o'clock Sunday afternoon. It is stated without denial in appellant's affidavit that an investigation of charges made by county officials and a “passenger upon whom he had committed a trespass” led to claimant's discharge from its employ. Just what appellant claims for the fact that claimant had misbehaved and been discharged is not clear, and what weight the Board gave the fact he was not shown to be employed at the time of the hearing is not apparent. It would be equally competent to show that after claimant filed his petition appellant had arbitrarily discharged him, if such were the fact. In either case his incapacity to engage in the employment in which he was working at the time of the accident would be the same, and the possibility of either contingency but illustrates that the rule appellant contends for is also fallible, and open to contingencies which might operate inequitably.
To sustain its award the Board must have been able to find from competent testimony a continuing partial incapacity to properly perform the work of a motorman, in which claimant was engaged at the time of the accident. There is testimony tending to sustain such a finding. Aside from claimant's own testimony as to continuing pain, weakness and swelling in his leg which rendered it difficult for him to be upon his feet long and get around readily, the physicians called by both sides agree that he had a shortening of the leg of from an half to three-quarters of an inch which would be permanent, and that otherwise it would be months if not years before it would be strong and normal, if ever; that in its condition at the time they testified the lost percentage of normal use and strength was from 25 to 75. Dr. Dolman, the physician who attended and operated upon claimant at the time of the accident and cared for him until he was discharged from the hospital, called as a witness by respondent, testified the broken limb was so seriously injured that "under usual circumstances, the injury would undoubtedly have caused him to lose his leg
by amputation;" that he however decided to perform an operation and try to save the limb, which started to improve some tive weeks after the operation and ultimately made a very successful recovery; that the injured leg was about half an inch short and the impairment of function at the time witness was testifying was presumably 25 per cent, and not more than 33 1-3; that when claimant left the hospital he "was able to walk about on his leg with difficulty. He could put his foot down and bear his weight on the broken limb;" that perfect union was not restored and circulation had not fully established itself in the leg; witness would say it would re-establish itself so that claimant would be able to work eventually as a laborer, in perhaps a couple of years. The testimony of physicians called by claimant was somewhat along the same lines but on the whole tending to show a greater degree of impairment than that of Dr. Dolman, and touching his ability to work as a motorman was to the effect that his condition would detract from efficiency and it would be difficult for him to work in that capacity successfully, various reasons being given therefor.
The agreement approved by the Board only provided for a weekly payment of indefinite duration, which was discontinued without its approval. Under such circumstances we conclude authority yet remained with the Board to review the matter of weekly payment and diminish, or approve of ending the same, as it found the facts warranted, as provided in Sec. 14 part 3 of the act; and having such authority its order has support in testimony tending to sustain facts essential to its validity.
Its order is, therefore, affirmed.
Applicant and Appellee,
vs. AMERICAN CAR AND FOUNDRY COMPANY,
Defendant and Appellant.
COURSE OF EMPLOYMENT-ARISING OUT OF.
in charge of one of the “floors," consisting of a row of moulds.
HELD: That applicant went outside the limits of his employment by climbing upon the crane, and compensation denied. JJ. BIRD, Kuhn, and MOORE, dissenting.
Certiorari to the Industrial Accident Board to review the action of that Board in awarding compensation to George Bischoff for injuries received while in the employ of the American Car and Foundry Company. Reversed.
Barbour, Field & Martin, of Detroit, for Applicant.
PERSON, J. On the 16th day of September, 1913, the claimant was, and for more than a year had been, employed by the American Car and Foundry Company, as a moulder. In the forenoon of that day his right hand was caught in the gear wheels of an electric crane and so crushed as to require the
amputation of the larger portion of it. The committee of arbitration appointed under Act No. 10 of the Public Acts of the Extra Session of 1912, having found the claimant entitled to compensation, and the amount of such compensation having been increased on appeal to the Industrial Accident Board, the employer brings the case here for review, insisting that the injury received by the employe did not arise "out of and in the course of his employment;" that it was the result of his own "intentional and wilful misconduct," and that the compensation allowed is excessive.
As this Act provides compensation only for such injuries as are received in the course of the employment, and then only when they grow out of the employment, and as injuries received outside the employment are not within the provisions of the Act at all, it must follow that the "intentional and wilful misconduct" which operates to debar the employe from the compensation which he might otherwise receive, refers to such misconduct within the scope of his employment. If the injury to the employe was not received "in the course of his employment," it is immaterial whether it was caused by his "intentional and wilful misconduct," or not.
The first question, therefore, to be determined, is whether the injury received by claimant arose out of and in the course of his employment. And in this connection the findings of fact made by the Industrial Accident Board and returned to this court, being well supported by the evidence are controlling so far as they go. Such findings are as follows:
"1. On the 16th day of September, 1913, George Bischoff, claimant and appellee was employed as a car wheel moulder at the Detroit plant of the American Car & Foundry Company, a New Jersey corporation, engaged in the manufacture of cars, car wheels, etc.
He was at that time twenty-nine years of age and had been in the employ of the appellant three and one-half years, two of which he had spent working as helper to a moulder and one and a half of which he spent working as a moulder.
"2. The foundry in which appellee worked at the time of the accident was divided into fourteen 'floors' about nine feet apart. Each 'floor consisted of a row of moulds, 25 moulds in length, located on one level or general ground floor of the foundry. A moulder was in
charge of each one of these 'floors.' At a distance of about fifteen feet above each 'floor' was located a crane, the motive power of which was electricity, 240 volts being required to operate it. Appellee was in charge of a 'floor' over which was located crane No. 8, three photographs of which were introduced in evidence as appellant's Exhibits 'A, B, C. From the floor appellee, as part of his work, operated the crane forward and backward and up and down as might be necessary in doing his work. The crane could be reached only by climbing a brace located near it or by a ladder which must be especially placed for the purpose. “3.
There is nothing in the occupation of a moulder which would require him to go upon the crane for the purpose of repairing it should it be out of order, a machinist and electrician being employed by appellant to make the necessary repairs. Appellee understood that he was employed as a moulder and in no other capacity. That all his duties relative to such employment were ordinarily to be performed on the floor, that he must use the crane to do his work; that if the crane was out of order and he could not use it or operate it, he should report it to the machinist or electrician and if they could not be found be should sit down or go home.
“4. Instructions had been given by the superintendent to the foreman to allow no one but the men designated for such work to go upon the crane, and these instructions had been given to the moulders by the foreman, but appellee could not speak nor fairly understand either English or the language of his foreman. Appellee had in fact gone up to fix or oil the crane several times before the date of his injury.
“5. A short time before the injury, appellee discovered that the crane was out of order and reported to the machinist, who was also a foreman, that the crane was not working well, because the brake was too loose. Appellee is a German and the machinist is a Croatian; appellee could not talk with the machinist very well, because they did not speak the same language, yet he could indicate in broken English that 'the brake is too loose,' and by showing the machinist say enough in English to inform him what the trouble with the crane was.
“6. While the machinist was up on the crane looking for the trouble, appellee not being able to make him fully understand in English, went up the ladder and got off where the machinist was, to point out to him where the trouble was.
“7. After being on the crane five minutes appellee started to go down the ladder. In some way the machinist, or appellee, set the machinery in motion and appellee's hand was caught in certain gear wheels and all that part including the four fingers was amputated from a point on the metacarpal bone of the little finger about an inch