"I found the mouth packed with sawdust, not exactly tight, but as much as could be gotten into it. There was some in his throat, eyes and nostrils. The sawdust in his eyes was between the lid and the eye ball. I did not notice much out of the ordinary as far as any discoloration of the man's face. * * The effect of embalming fluid when injected in the human body has a tendency to bring it back to a natural color. * * * I could not state what he died from. My idea is that suffocation is what I understood. My common sense would tell me that. * I have never studied medicine and wouldn't be

able to state what he died from."

Dr. King, sworn on behalf of the defendant, testified:

*

"I would say that it would be very strong evidence that he did not die of strangulation or asphyxiation. * There would be discoloration of the features. * *There would be no way of finding out whether he died of heart disease without an autopsy. There may be or may not be a struggle from death of heart disease."

Dr. Ramsdell, a witness for the defendant, testified:

"Without an autopsy it would be impossible to determine whether he died from heart disease or other cause. * * I have attended persons dying of heart failure at their bed side and the cessation of breathing usually starts immediately. A very slow intake of air, you can hardly recognize it. They will breathe very slow and then (illustrating) out, with just a natural exhaustion. The lungs will suck in a little air, but there will be no decided breathing.

"Q. Mouth usually open or closed?

"A. It relaxes.

"When I saw the deceased he had no sawdust in his mouth. A man dying of heart trouble, I doubt whether his breathing would be of sufficient force to draw sawdust into his mouth and thoroughly clog it."

The claimant's daughter testified:

"I examined father's face and body after the body was returned to the house. I looked at him the next morning and his face looked very nice. It was white but under his arms, he was in the casket, and I pushed back his coat sleeve, and the skin was dark looking and back of his ears had a purple look."

It is the claim of the appellant that the record contains absolutely no evidence from which the Industrial Accident Board

could lawfully draw the inference that the deceased met his death as the result of an injury arising out of and in the course of his employment. Reference is made to the case of McCoy v. Michigan Sugar Co., 180 Mich. 454, where we said:

* *

"The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose 'out of and in the course of his employment' rests upon the claimant. If an inference favorable to the applicant can only be arrived at by a guess the applicant fails. The same thing happens where two or more inferences equally consistent with the facts arise from them."

See also Hills v. Blair, 182 Mich. 20.

Appellant's contention is stated in the following language:

"In applying the foregoing principles to the facts in the case at bar, the inquiry arises, do the facts as contained in the Board's findings of facts establish by the burden of proof the right of applicant to compensation for the death of deceased? The right of the parties to this appeal is determined by this finding of facts by the Industrial Board. They are binding and conclusive upon the parties in this proceeding for review, unless there is no evidence at all upon which to base them. It is not claimed by the appellant, however, that these findings of fact are not warranted by the evidence. On the contrary, no other findings were possible. It is the contention of the appellant, however, that the Board erred in finding these facts sufficient to award compensation to applicant under the Act in question, for the reason that they fail to establish by any preponderance of the proof that the death of the deceased arose out of his employment. The Board arrived at an erroneous, conclusion of law from the facts as found by them."

It seems to be the contention of the appellant that the claimant must establish the fact that the injury giving rise to the demand, arose out of and in the course of his employment, by a preponderance of the evidence, as in a case at law. Judged by this standard it may perhaps be said that claimant failed to sustain the burden. The Act, however, does not cast this burden upon the claimant. It provides, Sec. 12, Part 3:

"The findings of fact made by said industrial accident board acting within its powers, shall, in the absence of fraud, be conclusive, but the supreme court shall have power to review questions of law in

volved in any final decision or determination of said industrial accident board."

In two recent cases we have determined that where there is any competent evidence to support the finding of the Board, this court will not undertake to weigh the evidence or disturb that finding. Rayner v. Sligh Furniture Co., 180 Mich. 168; Bayne v. Riverside Storage & Cartage Co., 181 Mich. 378.

While this court might reach a different conclusion as to the cause of the death of the claimant's decedent than that reached by the board, we do not think it can be said that there is no evidence in the record justifying that conclusion.

It will be noted that the award provides for the payment of $6.17 per week for a period of 300 weeks. This sum is based upon the earnings of the deceased for the 4234 days preceding his injury. The record discloses, however, that his average weekly earnings covering the year prior to his death amounted to but $10.39. Under Section 11, Part 2, this sum should have been made the basis of the award. The finding of the Industrial Accident Board on the question of liability is affirmed, and the case is remanded to that Board for the entry of an order in the proper amount, which would be one-half of $10.39 per week for 300 weeks.

ROY CARPENTER,

VS.

SUPREME COURT.

Applicant and Appellee,

DETROIT FORGING COMPANY,

Defendant and Appellant.

PARTIAL LOSS OF HAND-BASIS OF COMPENSATION PARTIAL DISABILITY RESULTING-NOT PERCENTAGE.

Applicant while employed in the shop of respondent was injured by a steel sliver entering the third finger of the right hand near the second joint. Blood-poisoning and inflammation followed, leaving the hand in a partially disabled condition, so that the fingers can only be partially closed. A settlement agreement was made and approved by the Board and full payment made under the same, but it was shown that such agreement was made before the extent of the injury was fully known. Later, applicant filed a petition praying for reopening of the case and an award of further compensation, and on the hearing of such petition, 60 weeks' additional compensation was granted. Respondent contends that the reopening of the case and an award for the partial loss of a hand were not authorized by law.

HELD: 1. That under the facts, the Board acted within its authority in reopening the case and awarding further compensation.

2. That the law does not authorize an award on the basis of a percentage of the specific indemnity for the loss of a hand, and that the additional compensation awarded should be on the basis of partial disability and resulting loss in earnings.

This case is here on certiorari to review the action of the Industrial Accident Board in setting aside a compensation agreement and awarding additional compensation to the employe. Modified.

Benjamin & Betzoldt, of Detroit, Attorneys for the Appli

cant.

Douglas, Eaman & Barbour, of Detroit, Attorneys for the Defendant.

This case is here on certiorari to review the action of the Industrial Accident Board in setting aside a compensation agreement and awarding additional compensation to the employee.

On September 26, 1913, the claimant was working in the shop of the Detroit Forging Company. While taking steel sockets out of a box or tray, a steel sliver entered the third finger of the right hand near the second joint. It is admitted that this was an accident arising out of, and in the course of his employment. The wound became infected and claimant was totally disabled for about ten weeks. The fingers, hand and entire arm were swollen, and as the swelling and infection subsided they caused adhesion of muscles and tendons of the right hand which prevented the entire closing or bending of the fingers. We shall refer later to the testimony relating to the labor performed by claimant after the accident.

On the 26th of December, 1913, an agreement calling for compensation upon the basis of one-fifth of the loss of the four fingers of the right hand, that is, calling for twenty weeks' compensation, was signed by the claimant and the Globe Indemnity Company and forwarded to the Industrial Accident Board, which refused to approve the same unless ten weeks more were added to compensate claimant for the time he was disabled from performing any work, on account of said injury. On January 26, 1914, another agreement was signed by said claimant and said indemnity company, by which said claimant was to receive, as full compensation, $9.00 per week for twenty weeks, on the basis of one-fifth of the loss of four fingers of the right hand, and in addition ten more weeks at $9.00 per week for the time the claimant was unable to do any work on account of said injury.

The last-named agreement was duly approved by the Industrial Accident Board on January 29, 1914, and the whole of