Brown v. Central West Coal Co.

Fellows, J. (after stating the facts). The section, of the employer’s liability act involved in this case is part 2, § 11 (2 Comp. Laws 1915, § 5441). In the case of Andrejwski v. Wolverine Coal Co., 182 Mich. 298, this court had this section under consideration. Speaking through Chief Justice McAlvay, it was there said: [176] “By section 11 of part 2 of this act the legislature specifically provided the manner in which the average annual earnings of each employee should be determined by making four classifications, under one of which every case to be considered and determined under this statute must fall. Attention will now be given to these classifications, quoting and construing them in the order in which they appear in this section: * * * , “Second. ‘If the injured employee has not worked in the employment in which he was working' at the time of the accident, whether for the employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he has earned in such employment during the days when so employed’. “This class is intended to include those cases where an employee who has not worked in the employment in which he was engaged at the time of his injury, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, where his daily wage or salary earned is fixed and known. In such case his average annual earnings will be 300 times such average daily wage or salary earned in such employment during the days when so employed.” In the case of Robbins v. Engine Co., 191 Mich. 122, this court, speaking through Mr. Justice Ostrander, said: “A man may change his employment or the capacity in which he follows it. If he has done so at a time substantially less than a year before his injury then the statute fixes 300 times his daily wages-as his average annual wages.” When the decedent, a locomotive crane operator, left the employ of the coal company on the occasion of a strike, June 21st, the relations of master and servant, of employer and employee, were at an end. It required a new contract, a new employment, to restore such relations. When he entered the service of the coal com [177] pany as a mechanic on August 24th, it was under a new contract, a new employment; in a different capacity, at a different wage. It was in this new capacity, this new employment, that he was working when he met his death. He had not worked in this eim ployment “during substantially the whole of the year immediately preceding his injury.” In fact, he had so worked but a short time. It is clear, therefore, that the decedent belonged to the second class mentioned in the Andrejwski Case, and that compensation should be computed upon the basis of his average daily wage during the days when he was so employed. It was upon this basis that the award was made by the industrial accident board and such award is affirmed. Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.