to work on August 13, 1915, than he had been receiving before he was hurt; that before he was hurt he had been receiving 24 cents per hour, but the record does not show how many hours per day he worked. As he only worked a few days before the reinjury, the board will disregard the time while he was working, and not attempt to give him any compensation for that time, although he was then partially disabled.

"(g) That when the employee went back to work on August 13, 1915, he was put at easy work for the reason that his leg was not fit for him to use; that his employer knew this.

"(h) That there was really not a second accident, but that the rebreaking of the leg on August 28, 1915, was a direct result of the accident of April 5, 1915, and that the employer and its insurer are responsible.

* * *

"(j) That the employer has never signed any papers ending his compensation in this case, and that the board has never approved any final settlement of the matter, and that said matter has never been finally settled and has never been closed, but that the agreement between the parties, which was not approved by this board until September 21, 1915, is still in full force and effect.

"(k) That the laborer is entitled to receive from both the respondents compensation at the rate of $7.50 per week beginning August 28, 1915, during the entire period of his total disability." We have quoted only a small portion of the return. There was very considerable testimony upon which to base the findings of the Industrial Accident Board. See Reck v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771.

The decision is affirmed, with costs to the applicant.

SUPREME COURT OF MICHIGAN.

HOLNAGLE
V.

LANSING FUEL & GAS CO. ET AL. (No. 46.)*

1. WORKMEN'S COMPENSATON-FINDINGS OF INDUSTRIAL ACCIDENT BOARD.

Where there is competent testimony on which to base a conclusion of the Industrial Accident Board, proceeding under the Workmen's Compensation Act such conclusion will not be disturbed on certiorari.

*Decision rendered, March 27, 1918. 166 N. W. Rep. 843.

2. WORKMEN'S COMPENSATION ACT-INJURIES TO SERVANT.

In proceeding under the Workmen's Compensation Act for compensation on account of the death of an employee of a gas company, evidence held to support the finding of the Industrial Accident Board that the deceased servant met his death through accidentally inhaling illuminating gas.

Certiorari to Industrial Accident Board.

Claim by Nellie Holnagle under the Workmen's Compensation Act against the Lansing Fuel & Gas Company and the Fidelity & Casualty Company of New York for compensation for the death of a servant. The Industrial Accident Board awarded compensation, and defendants bring certiorari. Award affirmed.

Argued before KUHN, C. J., and STONE, OSTRANDER, BIRD, MOORE, STEERE, BROOKE, and FELLOWS, JJ.

Rhoads & Reynolds, of Lansing, for applicant.

Guy W. Moore and Hal P. Wilson, both of Detroit, for respondents.

MOORE, J. Claimant's decedent, on January 16, 1917, was discovered unconscious, if not dead, lying on the ground near and partly upon a small box in which was a stopcock from which illuminating gas was escaping. He did not regain consciousness and was pronounced dead. The premises belonged to the Lansing Fuel & Gas Company, whose employee claimant's decedent was. A process in the manufacture of illuminating gas is washing it with water, and when delivered into the purifying tank the water which collects at the bottom of the tank is drained through a pipe leading to the outside, having its opening controlled by the stopcock referred to, in the little wooden box. The stopcock was manipulated with a monkey wrench or Stillson wrench, and it was the daily duty of claimant's decedent to open it and drain the tank of water. The quantity of water varied from day to day, and so the time required to drain the tank varied. On the particular occasion, a fellow employee had, at the request of claimant's decedent, opened the stopcock at about 9, o'clock in the forenoon. The same man had also, a few moments later and a few moments before the body was found, given the deceased man the wrench, upon his request therefor. When the body was found, the water had been drained away and the force of escaping gas was blowing the water in the form of vapor several feet into the air.

Illuminating gas contains carbon monoxide and marsh gas (methane), in considerable quantities--of carbon monoxide 30 per cent and more. These are poisonous gases, and inhaled may cause sudden death. Claimant contends a committee of arbitration and the Industrial Accident Board found that her husband, the deceased, accidentally inhaled enough gas to kill him. Defendants contend there is no evidence supporting this conclusion, and none from which the necessary inference may reasonably be

Vol. I-Comp. 65.

drawn. They contend, further, that the evidence quite as well and better sustains the conclusion that deceased died from chronic gas poisoning, an occupational disease, or from other disease. [1, 2] After the body of deceased had been embalmed, in the evening of the day of his death, an autopsy was held, at which six physicians, all of whom gave testimony, attended. The most of a very large record consists of the testimony of these physicians. At the autopsy an examination was made of organs of the chest and abdomen and of the brain. It was a gross examination-examination by inspection-as distinguished from a miscroscopic examination. The valves of the heart were somewhat hardened. We will not attempt to recite the evidence in detail. Dr. Crissey's testimony is very long. In it appears the following:

"A Illuminating gas contains carbon monoxide. Q. That is true; we are working upon the theory, from your statements, that there is carbon monoxide and marsh gas in illuminating gas? A. Yes, sir. Q. And that illuminating gas does not break up of its own accord into its several parts? A. Yes, sir. Q. Now, is it your opinion that one breath of illuminating gas- A. Yes, sir. Q.-will cause instant death, such as occurred in the case of Mr. Holnagle? A. Why, certainly. Q. Will you explain your reason for that? A. You take a certain volume of carbon monoxide gas and a certain volume of marsh gas, or methane, and mix them and put them in a box, or put them in a condenser, and let a man breathe that in a certain concentration; it will kill him immediately, just the same as a man going down a well; a man goes down a well, and he is found dead, clinched to the ladder. What killed him? It is the marsh gas, methane, of which we find something like 30 per cent. in ordinary illuminating gasfrom 20 to 30 per cent."

Dr. Davey took part in the autopsy. In his testimony appears the following:

"Q. From your examination, Doctor, state whether or not there was any indication of anything being abnormal about any of the organs that you examined? A. There was not. Q. Did you examine the heart? A. Yes, sir. Q. Was there any indication of anything abnormal about the heart? A. Not that I could find or see. Q. From your examination of the organs, are you able to say whether there was any indication of anything that would cause death- anything being wrong with them? A No. Q. What conclusions did you come to as to the cause of death from your examination? A. The only conclusions were those of the history of the case. Q. What were your conclusions? A. Conclusions were that the man had inhaled a sufficient amount of gas that could be the cause of his death. Q. There was no indication from your examination, of any other cause of death? A. No, sir."

If the owner of an automobile was found unconscious in his

closed garage, with the engines to his car running, would not one familiar with like situations at once say he had been overcome by inhaling the exhaust from the engines? The inferences to be drawn from the circumstances in the instant case are of like kind to that drawn in the supposititious case, though perhaps differing in degree.

We have so often held, as to not require the citation of authorities, that, if there is competent testimony upon which to base the conclusion of the Industrial Arbitration Board, we will not disturb it. In the instant case there was such testimony. The award is affirmed, with costs.

SUPREME COURT OF MICHIGAN.

ALBERT A. ALBRECHT CO.

ບ.

WHITEHEAD & KALES IRON WORKS. (No. 70.)*

1. WORKMEN'S COMPENSATION-CONSTRUCTION.

Under Workmen's Compensation Law (Pub. Acts 1912 [Ex. Sess.] No. 10) pt. 3, § 15, declaring that, where the injury for which compensation is payable was under circumstances creating liability in some person other than the employer to pay damages, the employee may proceed either at law against that person to recover damages, or against the employer for compensation, but not against both, and, if compensation be paid, the employer may enforce for his benefit, or that of the insurance carrier, the liability of such other person, an employer cannot, where a servant, who was injured through negligence of a third person, elected to receive compensation, recover an amount in excess of the sum paid to such employee, for any other ruling would allow the employer to speculate at the servant's expense, or, if the excess were held in trust for the 'servant, would give the servant two remedies, where the statute declares one only.

2. WORKMEN'S COMPENSATION-ACTION BY EMPLOYER.

Under such section, an employer, having made a payment to his injured employee, may recover against a third person guilty of negligence, regardless of whether the payment is in full or only a partial pay

ment.

Error to Circuit Court, Wayne County; Charles B. Collingwood, Judge.

Action by the Albert A. Albrecht Company against the Whitehead & Kales Iron Works. There was a judgment for plaintiff, and defendant brings error. Remanded, with directions to affirm, on ascertainment of the amount paid by plaintiff, and, in default of such ascertainment, judgment to be reversed, and new trial ordered.

*Decision rendered, March 27, 1918. 166 N. W. Rep. 855.

Argued before KUHN, C. J., and STONE, OSTRANDER, BIRD, MOORE, STEERE, BROOKE, and FELLOWS, JJ.

Goodenough & Long, of Detroit (Albert M. Kales, of Chicago, Ill., of counsel), for appellant.

Keena, Lightner, Ostoboy & Hanley, of Detroit, for appellee.

BIRD, J. Both parties to this suit are building contractors, and both assisted in the construction of the Morgan & Wright Building in Detroit in the year 1913. Plaintiff had the contract to construct the masonry, and defendant had the contract to erect the structural steel. During the progress of the work one John Debinski, a servant of plaintiff, was injured by what is claimed to have been negligent acts of defendant's servants. Debinski demanded compensation of plaintiff, who was subject to the provisions of the Workmen's Compensation Act, and was paid a total of $1,408.33 up to the commencement of this suit. This sum was increased to $2,215 at the time of trial. Plaintiff was permittted by the trial court to recover the sum which Debinski would have been permitted to recover, had he elected to pursue his common law remedy. The jury returned a verdict for plaintiff of $10,000. Defendant contends that a recovery on this basis was wrong; that the recovery should have been limited to the sum paid to Debinski in discharge of plaintiff's obligations imposed by the Compensation Act; in other words, that the question is one of indemnity only.

[1] A solution of this question depends upon the construction to be given to section 15, part 3, of the Compensation Law:

"Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages, or against the employer for compensation under this act, but not against both, and if compensation be paid under this act the employer may enforce for his benefit or for that of the insurance company carrying such risk, or the commissioner of insurance, as the case may be, the liability of such other person."

After Debinski was injured he had his choice of two remedies. He could pursue his common-law remedy against the company, whose negligent acts caused his injuries, or he could demand compensation from his employer, through the Industrial Accident Board. He chose the latter, and received an award of $10 per week for 400 weeks. This election by him under the terms of the act would amount to a waiver upon his part of his common-law remedy. Section 15, supra. The common-law action having been extinguished by Debinski's election, an assignment of it could not furnish a basis for this suit, and we do not understand it is now so claimed, although one count of the