Bauer v. Hastings Gravel & Construction Co.

McDonald, J. The defendants seek to review by certiorari an order of the department, of labor and industry. The plaintiff is a student and during the summer vacation in 1926 was employed by the Hastings Gravel & Construction Company to operate a gasoline locomotive used in hauling gravel out of a gravel pit. On the 24th of June, 1926, while attempting to couple the engine to a dump car, his hand caught in the coupling and was severely injured. A report of compensable injury was filed, after which the parties entered into an agreement providing for the payment of compensation at the rate of $14 per week during total disability. This agreement was approved by the board, and in pursuance thereof compensation was paid until September 22, 1926. On the 21st of January, 1927, the defendants filed a petition to discontinue the payment of compensation for the reason that the plaintiff had sufficiently recovered to resume the employment in which he was engaged at the time of the accident. A hearing was had before a deputy commissioner. He denied the prayer of the petition. On appeal to the board, the order of the deputy commissioner was affirmed. It is this order that the defendants here seek to review. The sole question presented by the record is whether the board was right ini;, holding that the plaintiff was entitled to compensation because he was totally disabled from performing the work in which he was engaged at the time of the accident. The *21 finding of the board as to the extent of the plaintiff’s injuries and his total incapacity to perform the work in which he was engaged at the time of the injury is amply supported by the evidence. But the defendants claim that the test as to the plaintiff’s right to compensation depends upon his ability to perform the kind of employment rather than the particular work in which he was engaged at the time of the injury. In other words, it is their claim that he is not entitled to compensation because at the time of the accident he was engaged in common labor and his disability is not such as to prevent him from performing other common labor at which he could earn as high a wage as he was earning when injured. It is difficult to formulate a definition of common labor that will apply to all cases, but there is a common understanding of it. Everyone knows that a workman employed in shoveling gravel into a wheelbarrow is performing common labor. It requires no training or experience to do such work. Any of the mass of workmen without previous training in that or any other kind of work can do it. But not every man can care for and operate an engine. To do so he must have had previous training, knowledge, and experience. He must have something more than the common knowledge possessed by common workmen. The gasoline engine which the plaintiff was employed to operate weighed eight tons. It was attached to a dump car and was operated over a rough rail track. Though the plaintiff was familiar with the functions of gasoline engines and had experience in their operation, he was required to spend two. days with an experienced operator before.he was allowed to operate the one in question. It is very clear that the work plaintiff was engaged *22 in at the time of the accidental injury was not common labor. Therefore the test as to his right to compensation is not whether he could perform any kind of common labor but whether he was totally disabled from doing the work he was engaged in when he was injured. This is the test applied in Foley v. Railway, 190 Mich. 507; and Jameson v. Walter S. Newhall Co., 200 Mich. 514. The order of the board is affirmed, with costs to the plaintiff. Fead, C. J., and North, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred.