the threshold, if this was caused by her own condition and not by the employment the employer is not liable. Stated in another way, if Mrs. Hallett tripped and fell, and this did not arise out of her employment but was caused by her physical or mental condition, or brought about by her exertions in her own affairs or by any cause other than the employment, the husband cannot recover. [3] The expert evidence that the deceased did not die from any internal cause, does not show that her injury resulted from her employment. It does not appear that the board passed on the question of the cause of her injury. They found that the employee fell forward over the threshold, and that the danger of falling was incidental to her employment; but they did not find the cause of the injury, nor is it stated that the cause is unknown. The report does not show the approximate weight of the bags and their contents, how far they had been carried, the condition of the weather on the day of the employee's death, the length of time she was away from the employment, or what she did in the interval. Findings on these questions may have some bearing on the issue to be decided. It follows that the case must be recommitted to the Industrial Accident Board to find the cause of Mrs. Hallett's fall if the cause is found to be unknown, so state; and if the cause is known, to find what that cause was. At such hearing further evidence may be introduced by both parties. So ordered. In the absence of showing whether a workman overcome by sunstroke while working in a gravel or sand pit was required to remain in the pit, and could not leave his work if he felt he was affected by the heat, and there being no finding as to whether he was suddenly overcome by the excessive heat and had no opportunity to escape, the case must be recommitted to the Industrial Accident Board for hearing on the question whether the employee was at liberty to stop work in time to protect himself. * (For other cases, see Master and Servant, Dec. Dig. § 418[7].) Decision rendered, May 28, 1918. 119 N. E. Rep. 697. Vol. II-Comp. 19. A Appeal from Superior Court, Suffolk County. Proceedings for compensation under the Workmen's Compensation Act (St. 1911, c. 751, as amended by St. 1912, c. 571) by John McCarthy, the employee, opposed by the Town of Danvers, the employer, and the Employers' Liability Assurance Corporation, Limited, the insurer. Compensation was awarded, the award affirmed by the superior court, and the insurer appeals. Decree reversed, and case recommitted to the Industrial Accident Board. McSweeney & McSweeney, and F. H. Caskin, all of Salem, and A. Glovsky, of Danvers, for employee. Sawyer, Hardy, Stone & Morrison, of Boston (Gay Gleason, of Boston, of counsel), for insurer. CARROLL, J. John McCarthy, an employee of the town of Danvers, sustained a personal injury from sunstroke while working for the insured in its gravel or sand pit. One witness testified that the pit was low, shielded from the north and west, and while he thought no breeze was blowing on the day of McCarthy's injury, the pit was so located that a breeze would be shut off, and that the day was one of the hottest of the summer. "Sand attracts the sun. * * * On a hot day a sand bank is about the hottest place that can be found. * * *A man working in a trench in the street would not feel the heat so much." "A man would rather work anywhere than in the pit on a hot day." The board found the employee suffered a personal injury which arose out of and in the course of his employment; that by reason of his work in the sand pit "he was subjected to a materially greater danger of sunstroke than an ordinary person or outdoor worker." In McManaman's case, 224 Mass. 554, 113 N. E. 287, it was held that a longshoreman, whose hands were frozen while working on a pier extending into the harbor, where the cold is greater than that to which a person working in the open is ordinarily exposed, could recover under the Workmen's Compensation Act; but it was found as a fact in the case that the petitioner was not at liberty to stop his work to prevent his hands from being frozen, as a person ordinarily would have been at liberty to do. In the case at bar there is no finding that the petitioner was required to remain at work if the heat was too severe; and the foreman testified that the men were told "if it became too hot there that they could quit." The evidence to support the finding that the heat in the gravel pit was any greater than the heat to which an ordinary outdoor worker is exposed, is very slight. There is, however, some evidence to that effect. But because there is nothing to show that the petitioner was required to remain in the pit and could not leave the work if he felt he was affected by the heat, the case must be recommitted to the Industrial Accident Board. It may be that because of the excessive heat he was suddenly overcome and had no opportunity to escape, but there is no finding on this point. The decree is reversed, and the case recommitted to the Industrial Accident Board to hear the parties on the question whether the employee was at liberty to stop his work in time to protect himself from injury. At this hearing both parties may introduce further evidence. So ordered. SUPREME COURT OF MICHIGAN. ANDERSON V. McVANNEL ET AL. (No. 48.)* MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -ACCEPTANCE BY EMPLOYER-DIFFERENT BUSINESSES. An employer, being free to come under the Workmen's Compensation Act (Acts Ex. Sess. 1912, No. 10) or stay out, may accept it as to one or more of several lines of business in which he is engaged. (For other cases, see Master and Servant, Dec. Dig. § 351.) Certiorari to Industrial Accident Board. Proceeding under the Workmen's Compensation Act by Anna AnderSon against William McVannel and another. Award granted, and defendants bring certiorari. Reversed, and award vacated. Argued before Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ. Vandeveer & Foster, of Detroit, for appellants. BIRD, J. Defendant McVannel, who was engaged in the livery business in the city of Marquette, entered into a contract in September, 1914, with the city to improve Specular street. Before commencing the work he accepted in writing the provisions. of the Workmen's Compensation Law for his livery business and street contract work. In July, 1915, he contracted with Charles Dutmer to clear a certain piece of land lying two miles north of the city. To aid him in this work he employed Charles Anderson, a son of the plaintiff. While blasting stumps, Anderson was killed. His mother, the plaintiff, applied to the Industrial Board for an award, and it was granted in the sum of $6.49 per week for 300 weeks. Defendants contended before the board, as they do here, that *Decision rendered, June 3, 1918. 167 N. W. Rep. 360. the board had no jurisdiction to make an award in the premises, because the deceased did not belong to either class of employees which was protected by McVannel's acceptance of the compensation law; that Anderson was neither employed in the livery stable nor on the street contract. The material part of McVannel's acceptance of the compensation law is in the following form: 66 * * * Number of employees: Eight. Location of place of employment: Livery and road contract. (If more than one plant, place of business or work, place, state each fully.) Livery, Baraga avenue; street contract, Specular street, Marquette, Michigan. Nature of employment: Livery and street contract." Plaintiff takes the position that: "An employer of labor in Michigan who accepts the provisions of the Michigan Workmen's Compensation Law accepts it for the benefit of all employees he employs in all the businesses he conducts, except only that his acceptance does not cover household or domestic servants, and farm laborers, unless the acceptance specifially covers such employees, and except, also, that no acceptance includes any person whose employment is but casual, or is not in the usual course of the trade, business, profession, or occupation of the employer." An examination of the compensation act does not disclose that it anywhere in express terms permits an employer to come under the law as to one business and not as to another, nor does it anywhere prohibit it in express term. It does not compel an employer to accept its terms for any of his business activities, unless he chooses to do so. He is free to come under the law or to stay out. This being so, why may he not accept its terms as to one business and not as to another? Inasmuch as the election lies with him whether he will come under the law, I can see no good reason why he should not be permitted to accept its terms for one distinct business and not for another. It may be, and probably is, a reasonable construction of the act to say that, when one elects to come under it, his election covers all employs in the distinct business specified in his application, because, if this were not so, it would lead to much confusion among the employers as to which ones were covered and which were not covered. But no serious confusion would occur if all employees in a distinct business were protected. We think it is doing no violence to the act to hold that it contemplates that an employer with two or more business activities may accept as to one and not as to the others. This question was before the court in Kauri v. Messner et al., 164 N. W. 537. It was there said: "It is contended by defendant that the acceptance of the act and Messner's contract of indemnity cover only the men engaged in his lumbering business, and not the men to whom he gives casual employ in some other business. In other words, that he had a to accept the Compensation Act as a lumber man without doing so as a farmer. This point appears to be well taken. It has already been decided by this court that a man may be engaged in more than one enterprise and may accept the terms of the Compensation Act as to one and not as to the other--[citing Bayer v. Bayer, 191 Mich. 423, 158 N. W. 109]." A suggestion is made that this holding is not conclusive of the present controversy, if the conclusion in the case cited was rested on the fact that the employee was engaged in farming, an Occupation within the excepted class. The language of the opinion clearly indicates that the result reached was not rested upon that ground, but was rested squarely on the fact that the deceased was not within the class of employees engaged in logging. We think the case is ruled by the one cited, and therefore the finding of the Industrial Accident Board must be reversed, and the award vacated. SUPREME COURT OF MICHIGAN. BAASE BANNER COAL CO. ET AL. (No. 82.)* MASTER AND SERVANT-WORKMEN'S COMPENSATIONCLAIM FOR COMPENSATION. In proceedings by an employee for compensation under Workmen's Compensation Act (Pub. Acts 1912 [Ex. Sess.] No. 10), a statement by him to his employer's manager in a casual conversation, that "he would have to make a claim if he did not get better," is not a sufficient compliance with part 2, §§ 15-18, requiring claim to be made within six months. (For other cases, see Master and Servant, Dec. Dig. § 398.) Certiorari to Industrial Accident Board. Proceedings by Charles Baase under the Workmen's Compczation Act, opposed by the Banner Coal Company, employer, and the iners' Liability Assurance Company, Limited, insurer, to recove. compensation for personal injuries. From an award affirmed on appeal by the full Industrial Board, the employer and insurer bring certicrari. Award set aside. Argued before Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ. Angell, Bodman & Turner and C. G. Dyer, all of Detroit, for appel lants. Purcell & Travers, of Saginaw, for appellee. * Decision rendered, June 3, 1918. 167 N. W. Rep. 954. |