While the language of the definition is not so clear as might be desired, it seems to us to be intended to include in abridged form parts of (1) (b) and (2), (a) and (b) | of the first schedule of the English workmen's compensation act. 6 Edw. VII. (1906) chap. 58. It is true that (2) (b) of the English schedule covers a case like the present in express language. But the English act is more minute in many of its provisions, and our act resembles the present English act far more closely than it does the earlier one of Stat. 60 & 61 Vict. chap. 37. Although not stated in precise words, we think that the general import of the act is to base the remuneration to be paid upon | the normal return received by workmen for the grade of work in which the particular workman may be classified. This is a case where it is "impracticable” to reach a result which shall be fair to the workman to the extent intended by the act of giving him compensation for average weekly earnings in any other way than by following the course! pointed out in the final clause of the defi- |

nition. See Perry v. Wright [1908] 1 K. B. 441, 77 L. J. K. B. N. S. 236, 98 L. T. N. S. 327, 24 Times L. R. 186, 1 B. W. C. C. 351; Anslow V. Cannock Chase Colliery Co. [1909] 1 K. B. 352, 78 L. J. K. B. N. S. 154, 99 L. T. N. S. 901, 25 Times L. R. 167, 53 Sol. Jo. 132, s. c. [1909] A. C. 435, 78 L. J. K. B. N. S. 679, 100 L. T. N. S. 786, 25 Times L. R. 570, 53 Sol. Jo. 519.

This is not a case where the usual employment of the employee is only two or three days in a week, as pointed out in White v. Wiseman [1912] 3 K. B. 352, 359, 81 L. J. K. B. N. S. 1195, 107 L. T. N. S. 277, 28Times L. R. 542, 56 Sol. Jo. 703, 5 B. W. C. C. 654, Ann. Cas. 1913D, 1021, but a case where the condition of the workman is continuous labor in regular employment with different employers. The loss of his capacity to earn, as demonstrated by his conduct in such regular employment, is the basis upon which his compensation should be based.

Decree affirmed.

Under the Massachusetts act consideration of the average weekly wages of an injured employee is not restricted to the wages earned from the same employer. GILLEN V. OCEAN ACCI. & GUARANTEE CORP.

Under the Michigan act the term "average annual earnings" means the average annual earnings in the employment in which the workman was employed at the time of his injury, although he was engaged in such employment but a portion of each year, and was engaged in other employments during the remaining part of the year. Andrejwski v. Wolverine Coal Co. (1914) 182 Mich. 298, 148 N. W. 684, 6 N. C. C. A. 807.

Under the English act of 1897, wages earned from an employer other than the one from whom compensation was sought could not be considered in estimating the average weekly earnings of a workman. Price v. Marsden [1899] 1 Q. B. (Eng.) 493, 68 L. J. Q. B. N. S. 307, 47 Week. Rep. 274, 80 L. T. N. S. 15, 15 Times L. R. 184; Williams v. Poulson (1899) 16 Times L. R. (Eng.) 42, 63 J. P. 757, 2 W. C. C. 127; Small v. M'Cormick (1899) 1 Sc. Sess. Cas. 5th series, 883, 36 Scot. L. R. 700, 7 Scot. L. T. 35; Hunter v. Baird, 7 F.

Case Law Dig. (1898-07) Supp. 1570; Bartlett v. Tutton [1902] 1 K. B. (Eng.) 72, 71 L. J. K. B. Ñ. S. 52, 66 J. P. 196, 50 Week. Rep. 149, 85 L. T. N. S. 531,, 18 Times L. R. 35.

But the English statute was greatly extended by the amendment of 1906, and, by the express provisions of ¶ 2 of the first schedule, consideration may be given in a proper case to earnings from employers other than the one from whom compensation is sought. It has been stated that the dominant principle of the amendment is that the earnings are to be computed in the manner best calculated to give the rate per week at which the workman was remunerated. Perry v. Wright [1908] 1 K. B. (Eng.) 441,. 77 L. J. K. B. N. S. 236, 98 L. T. N. S. 327, 24 Times L. R. 186, 1 B. W. C. C. 351.

The provision of the statute relative to earnings under concurrent contracts of employment has no application where compensation is sought by the dependent of a workman who had worked continuously for over three years for the same employer. Buckley v. London & I. Docks (1909) 127 L. T. Jo. (Eng.) 521, 2 B. W. C. C. 327.

And a porter on a wharf working at different times for different shipping companies is not under concurrent con

tracts of employment, where he takes the second job only after the first one is finished, and a third only after the second one has been completed. Cue v. Court of London Authority [1914] 3 K. B. (Eng.) 892, [1914] W. N. 280, 137 L. T. Jo. 211, 83 L. J. K. B. N. S. 1445, 111 L. T. N. S. 736, 7 B. W. C. C. 447. The concurrent contract, however, need not be of an ejusdem generis character. Lloyd v. Midland R. Co. [1914] 2 K. B. (Eng.) 53, 83 L. J. K. B. N. S. 330, 110 L. T. N. S. 513, 30 Times L. R. 247, 58 Sol. Jo. 249, [1914] W. N. 32 [1914] W. C. & Ins. Rep. 105, 7 B. W. C. C. 72 (railroad employee earned money by working in theater at night); The Raphael v. Brandy [1911] A. C. (Eng.) 413, 80 L. J. K. B. N. S. 1067, 105 L. T. N. S. 116, 27 Times L. R. 497, 55 Sol. Jo. 579, 4 B. W. C. C. 307 (retainer fee of stoker in the Royal Naval Reserve taken into consideration in fixing average weekly earnings of stoker).

Money earned by a workman from

Simmons v. Heath Laundry Co. [1910] 1 K. B. (Eng.) 543, 79 L. J. K. B. N. S. 395, 102 L. T. N. S. 210, 26 Times L. R. 326, 54 Sol. Jo. 392, 3 B. W. C. C. 200 (employee in laundry earned money giving music lessons, but not under any regular contract of employment).

But money received as "tips" is to be included in the "average weekly earnings," where the giving and receiving of such tips are notorious. Penn v. Spiers & Pond [1908] 1 K. B. (Eng.) 766, 77 L. J. K. B. N. S. 542, 98 L. T. N. S. 541, 24 Times L. R. 354, 52 Sol. Jo. 280, 1 B. W. C. C. 401, 14 Ann. Cas. 335; Knott v. Tingle Jacobs & Co. (1911) 4 B. W. C. C. (Eng.) 55; Hains v. Corbet (1912) 5 B. W. C. C. (Eng.) 372.

The average weekly earnings do not include weekly payments by way of compensation for a previous accident. Gough v. Crawshay Bros [1908] 1 K. B. (Eng.) 441, 77 L. J. K. B. N. S. 236, 98 L. T. N. S. 327, 24 Times L. R. 186, 1 B. W. C. C. 374.

Nor do "average weekly earnings" include an amount received from the poor fund. Gilroy v. Mackie [1909] S. C. 466, 46 Scot. L. R. 325.

W. M. G.

WISCONSIN SUPREME COURT.

MELLEN LUMBER COMPANY, Appt.,

V.

INDUSTRIAL COMMISSION OF WISCONSIN et al., Respts.

(154 Wis. 114, 142 N. W. 187.)

Master and servant — workman's comtotal disability pensation act earning capacity in other calling. 1. One who, by the loss of a thumb and finger on one hand, is disabled from following the particular calling in which he was engaged, is entitled to compensation for total disability regardless of what he may be able to earn in other occupations, under a statute providing that the weekly loss of wages on which the compensation of an injured employee shall be computed shall consist of such percentage of the average weekly earnings of the injured employee as shall fairly represent the proportionate extent of the impairment of his earning capacity "in the employment in which he was working at the time of the accident." For other cases, see Master and Servant II. a, 1, in Dig. 1-52 N. S.

The facts are stated in the opinion. Messrs. Brown, Pradt, & Genrich, for apellant:

Plaintiff was not totally disabled, and the Commission acted without and in excess of its powers.

Borgnis v. Falk Co. 147 Wis. 360, 37 L.R.A. (N.S.) 489, 133 N. W. 209, 3 N. C.

C. A. 649.

it is to arrive at the actual thought in the legislative mind. Where a statute plainly says, as this one does, that the loss in case of partial disability shall consist of such percentage of the weekly earnings of the employee as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, we fail to see how the court would be justified in adding thereto the following limitation: "Less such sums as the employee might be able to earn in some other calling." This in effect is what the court would have to do if it adopted the construction for which the appellant contends. There is nothing doubtful, obscure, or ambiguous about the language used.

It is argued that a literal interpretation of a statute should not be followed where such interpretation would lead to an absurd consequence. The statute in question may be inequitable, but this does not make it absurd. It was at one time urged that the courts might mitigate the rigor of harsh statutes by adopting a rule of equitable construction by which exceptions might be read into such statutes. It never obtained in this state, nor to any considerable extent in this country. It was disposed of by Chief Justice Dixon in Encking v. Simmons, 28 Wis. 272, 277, in the following language: "The proposition, however it may once have been held or considered, that the courts, upon what is termed an equitable construction or otherwise, may, against the plain language of a statute, and in opposition to the intent clearly expressed by the words, mitigate the 'violence of the letter' by introducing exceptions where the statute itself contains none, so as to relieve in cases of hardship or particular inconvenience, has been too long and too frequently rejected to be now the subject of serious argument or doubt. Such doctrine, if it ever existed, was long since exploded, and the rule now universally recognized and

acted upon is that, whatever else may be done with the words of a statute, they may never, in the language of Lord Bacon, 'be taken to a repugnant intent.'" See further, Harrington v. Smith, 28 Wis. 43.

The law as it reads has the merit of being explicit as to the amount of compensation which the employee shall receive, although it bears rather heavily on the employer in a case like the one under consideration.

Where the language used in a statute is plain, the court cannot read words into it that are not found therein either expressly or by fair implication, even to save its constitutionality, because this would be legislation, and not construction. Rogers-Ruger Co. v. Murray, 115 Wis. 267, 59 L.R.A. 737, 95 Am. St. Rep. 901, 91 N. W. 657.

Courts in construing statutes look to consequences, but only where there is room for construction by reason of ambiguous language being used, and where a literal construction would lead to some absurd result. Berger v. Berger, 104 Wis. 282, 76 Am. St. Rep. 877, 80 N. W. 585; Sauntry v. Laird, Norton Co. 100 Wis. 146, 75 N. W. 985; Gilbert v. Dutruit, 91 Wis. 661, 65 N. W. 511; Battis v. Hamlin, 22 Wis. 669.

The argument that the provision under discussion is violative of the "due process of law" clause of the Federal Constitution cannot prevail. It was optional with the appellant to come in under the compensation act or to stay out. It elected to take the former course. It accepted the provisions of the act as they were, the burdens as well as the benefits, and so long as it remains under the law it must take the statute as it finds it. Daniels v. Tearney, 102 U. S. 415, and cases cited page 421, 26 L. ed. 187, 189; Grand Rapids & I. R. Co. v. Osborn, 193 U. S. 17, 29, 48 L. ed. 598, 604, 24 Sup. Ct. Rep. 310. Judgment affirmed.

As to application and effect of workmen's compensation acts, generally, see annotation, ante, 23.

As is stated in MELLEN LUMBER Co. v. INDUSTRIAL COMMISSION, it is quite probable that the legislature did not have in mind the concrete case presented by the facts in that case, and did not intend to give an employee who had lost only a thumb and finger of the left hand the same compensation that he would have been entitled to receive had he been so

maimed that he was totally incapacitated from doing any kind of work.

In a number of statutes, provision is expressly made for the awarding or compensation based upon the difference between what the workman had been earning at the time of the injury, and what he was able to earn in some suitable employment after his injury.

There is such a provision in the Kansas statute, and in Roberts v. Charles Wolff Packing Co. (1915) 95 Kan. 723,