computed in accordance with the terms and provisions of the compensation law, and the construction placed thereon by the honorable Supreme Court of the state of Michigan. Also that said respondents and petitioner should be entitled to receive and recover from said claimant the amounts which were paid to him through aforementioned mistake of law and fact."

There was a hearing, and thereafter a finding and final order, which order the claimant reviews here. Certain recitals and conclusions appearing in the order are:

"The board finds as a fact from the entire files and testimony in the case that the agreement approved December 21, 1916, was entered into by respondents through a mistake, and that said agreement provides for compensation in excess of the amount for which said respondents are liable; that the employment in which applicant was engaged was seasonal, and in computing the compensation to be paid said applicant the only wages that could be considered were those earned by applicant during the period said respondents' plant was in operation, said period being approximately 90 days each year; that said applicant was earning $3 a day, employed seven (7) days a week, and that when the compensation in this is computed properly said applicant should receive as for total disability $4 per week, instead of the amount specified in the agreement on file; that said respondents have the right to set off the moneys, viz. $4, the proper weekly rate of compensation, viz. $4 and which the applicant was not entitled to receive against the compensation to which the said applicant is now or may hereafter be entitled under the terms of this order until the total amount of moneys overpaid is consumed. The board further finds that said applicant is at the present time totally disabled in the employment in which he was engaged when injured, and that said applicant should receive compensation at the rate of $4 per week during the period of such total disability.

"It is therefore ordered and adjudged that said petition should be, and the same is, hereby granted so far as the modification of the agreement is concerned, and that weekly rate of compensation should be, and the same is, hereby fixed at $4 during the period of applicant's total disability, dating from the day of the accident November 16, 1916; and that the total sum overpaid by said respondents shall be applied on the future compensation payable to said applicant until such overpaid amount is entirely consumed."

The position of plaintiff in certiorari is shortly stated in his brief as follows:

"The petition asks defendants be entitled to receive and recover from said claimant the amounts which were paid to him through aforementioned mistake of law and fact.

"What mistake? Who made it? Are they mistakes of law or fact? Upon what facts are these conclusions in pleading made? Taking out the 'fact' found by the board, that claimant is and has been totally disabled by the accident, what fact is pleaded or proven to warrant the order of November, 1918? Nothing. It is too fundamental for doubt that in all judicial proceedings the pleader must state facts clearly and broad enough to sustain proofs of the claims alleged, and establish them. In no pleading should one be required to be more definite and specific than in asking to be relieved from his agreements. If defendants claim mistake in fact (in absence of fraud) they should be required to plead properly, and then establish by proof that the agreement should be avoided through mistake of fact. The only claim in either petition of defendants is that claimant had recovered. The board settled that issue in claimant's favor. Disability is established by the agreement and by two orders of the board. This point covers the facts and reduces the

claim of defendants to one of law. This claim is not pleaded except by inference, and cannot avail, because mistakes of law are not sufficient to impair contract obligations.

It is also claimed for him that the provisions of Act 21, Public Acts of 1917, are controlling here.

[1] Of course, the proceeding before the Industrial Accident Board is not a judicial proceeding, and there are, strictly, no pleadings.. The board is set up to administer the compensation law, in doing which it acts principally as a trier of facts. It did not, in the first instance, in this case, determine the facts. The parties agreed that there had been an accident; that claimant was then totally disabled and was entitled to compensation. Without any fraud, so far as is claimed or disclosed, upon the part of either, the rate of weekly compensation was fixed at the maximum because claimant's weekly wages were more than twice the amount of the statute maximum. But they were mistaken in supposing that claimant was entitled to receive one-half his weekly wages, but not more than $10. They were mistaken because, while the Michigan Sugar Company employed men all of the year, it employed many more men for a brief season only, the season of the campaign. Claimant was not employed by the year, but for the campaign only. He had no such employment at any other time. His employment, yard boss, was peculiar to the work of the campaign. He is claiming that he is still disabled, not because he cannot do work-he admits in his testimony that he has done and can do many things-but because he is still disabled from doing the work which that particular employment required. The average season for the employment is 90 days; his wages were $3 a day. Beyond these, there are no factors which may be properly used in applying the statute to ascertain what his average annual earnings in that employment were. The Industrial Accident Board determined, and with their computation, according to the theory stated, no fault is found, that claimant's average weekly wage was less than $4.

There is evidence to sustain the findings and conclusion of the board. The law as announced in Andrej wski v. Wolverine Coal Co., 182 Mich. 298, 148 N. W. 684, Ann. Cas. 1916D, 724, supports the final conclusion and order of the board. The amendment of the law of 1917 (Act 41) is not applicable, because the accident in question occurred in 1916.

[2] But if the agreement of the parties, though made by mistake, is conclusive, compensation must still be paid at the agreed rate. We think it is not conclusive. The purpose of the compensation law is compensation at rates which the law itself, directly or indirectly, but certainly, fixes. Claimant is entitled to receive, and his employer is obligated to pay, no more and no less than the statute compensation. We are not called upon to decide whether, an agreed but a too large or too small compensation having been paid by agreement, and the period of payment having ended, and all payments having been made, by commutation or otherwise, either party may have recourse against the other, by action of the Industrial Accident Board or otherwise. But so long as the matter is depending before the board we are of opinion that in the due administration of the law it has power to so limit payments, by its orders, that the statute sum, no more, no less, shall be paid and received, and to make such an order as was made in this proceeding to bring about, so far as possible, such desired and lawful result. The order reviewed in terms and in fact takes nothing from plaintiff in certiorari to which, under the law, he is entitled. It may leave him possessed of a larger sum than the one to which he was entitled. If its effect shall be to give him no less than the compensation which the law has said he shall have, his rights, under the law, have been duly respected.

The order is affirmed, with costs to the defendants in certiorari.

An award of the State Industrial Accident Board allowing a servant $6 a week for 23 weeks and fixing the amount of compensation already due at the time of award must be considered, not as an award in a lump sum, but an award for weekly payments, which the Industrial Board is authorized to review under Workmen's Compensation Act, pt. 3, § 14, and not res adjudicata.

(For other cases, see Master and Servant, Dec. Dig. § 416.)

2. MASTER AND SERVANT-WORKMEN'S

COMPENSATION ACT-REVIEW OF AWARD-CONCLUSIVENESS OF INDUSTRIAL BOARD'S FINDING OF FACT.

On certiorari to the State Industrial Accident Board the Supreme Court will not review a finding of fact nor weigh the evidence where there is evidence to sustain the findings.

(For other cases, see Master and Servant, Dec. Dig. § 417 [7].)

Certiorari to Industrial Accident Board.

Application by Isaac F. Shaffer to review a former order of the Industrial Accident Board awarding him weekly payments and to increase and extend the same on account of his failure to recover from his injuries, opposed by the D'Arcy Spring Company, employer, and the Prudential Casualty Company, insurer. Award made increasing and extending such payments, and the employer and insurer bring certiorari. Award affirmed.

Argued before Bird, C. J.; and Ostrander, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ.

Jackson, Fitzgerald & Dalm, of Kalamazoo, and Fred J. Ward, of Detroit, for appellants.

Charles L. Dibble, of Kalamazoo, for appellee.

KUHN, J. The facts which are necessary to understand this proceeding, which is certiorari to the Industrial Accident Board, can be had by reading the opinion of this court reported in 199 Mich. 537, 165 N. W. 825. By that opinion it was held that, because of the fact that with reference to certain depositions that were offered in evidence it was found that the notice was clearly irregular under the recent holding of this court in Hamilton v. Macey Co., 195 Mich. 747, 162 N. W. 289, the proceeding must be vacated, “and the case remanded for further action in accordance with the rules and practice of the board." Subsequently a motion for rehearing was filed, which was denied, and the case being then before the Industrial Accident Board, a new petition was filed, bearing date January 31, 1918, with the intention, and upon the theory, of reinstating the proceedings before the

*Decision rendered, July 17, 1919. 173 N. W. Rep. 201.

board in the same manner as the petition of April 8, 1916, which appears from the petition itself, and the petition was so regarded by the board. After filing the petition of January 31, 1918, the parties proceeded again to present evidence to the board. It was stipulated through the respective attorneys that the testimony of all the witnesses who had previously made depositions upon the first hearing of this case, in order to avoid expense, might be used upon the new hearing. Both parties also took voluminous additional testimony by deposition, which was submitted. The Industrial Accident Board, after consideration of the evidence, on September 12, 1918, entered an order for the payment of $6 a week compensation from the date of the last payment made to the claimant in this cause up to the time of that order and for the same amount for the future so long as he seemed to be totally disabled. It is this order which is now before us for review.

The claims of the respondents for a reversal of the action of the Industrial Accident Board are stated in their brief as follows:

"First. Because the claimant and respondents submitted claimant's claim to a committee on arbitration, which committee met on the 9th day of December, 1914, and awarded claimant the sum of $138 and a physician's bill in amount of $4.50, all of which has been paid, and that neither the claimant nor the respondents appealed from said order, in accordance with the provisions of section 8, pt. 3, Act No. 10 of the Public Acts of 1912, and in consequence thereof the decision of said committee on arbitration became resadjudicata of the rights of said claimant for compensation for the injury alleged to have been suffered by him while in the employ of the D'Arcy Spring Company on the 15th day of June, 1914.

"Second. No order has ever been made or entered extending the time within which the claimant might appeal from the award of the committee on arbitration.

"Third. No determination has been made by the board or showing made by the claimant which would entitle claimant to an extension of time within which to review the action of the committee on arbitration.

"Fourth. No appeal was ever taken by the claimant or respondents from the order dismissing claimant's petition filed on or shortly after the 9th day of April, 1915, and which petition is known as Exhibit D, and appears in the record on pages 53 to 55.

"Fifth. The evidence does not show that varicose veins, being the only disability under which claimant suffers at the present time, and for which he now seeks compensation, grew out of the alleged injury on June 15, 1914, that such disease known as varicose veins existed previous to June 15, 1914, and that the claimant has entirely recovered from any effects resulting from the alleged injury suffered by him while in the employ of the D'Arcy Spring Company."

[1] With reference to the first four assignments of error above set forth, it seems that the contentions of counsel for defendants and appellants are based upon the claim that the award on arbitration of December 9, 1914, was an award for a lump sum payment instead of for weekly compensation. The award reads in part as follows:

"Isaac Freeman Shaffer is entitled to receive and recover from said respondents the sum of $6 per week for a period of 23 weeks from the 2d day of July, 1914, and that said applicant is entitled to receive and recover from said respondents on this date $138, being the amount of such compensation that has already become due under the provisions of law, being all of said compensation, the same being now due; also for medical bill the sum of $4.50."

The order of the board of November 2, 1916, which was referred to in the previous opinion of this court, reads as follows;

"It is ordered and adjudged that said applicant is entitled to receive and recover from respondents compensation at the rate of $6 per week from the date of the last payment to November 22, 1916, making a total now due of $624; this to close the case."

The latter order was clearly considered by this court as an order for weekly payments, because in considering the claims of counsel Mr. Justice Bird, in writing the opinion, says:

"Because the board refused to reopen the case in June, 1915, it is said that order is res judicata of the present application. The compensation act (part 3, § 14 [2 Comp. Laws 1915, § 5467]) provides that 'any weekly payment under this act may be reviewed by the industrial accident board at the request of,' etc. There appears to be no restriction on the power given to the board to review its former orders for weekly payments, and we think it was contemplated that it should have this power."

In our opinion this determined that the order of November 2, 1916, was an order for weekly payments, and it necessarily follows under this holding that the award of December 9, 1914, must be also considered as an award for weekly payments, thus bringing it clearly under the previous decision of this court and making section 14, pt. 3, of the Compensation Law applicable. It follows, therefore, that the contention now urged by counsel must be considered as having been ruled upon adversely to the contention of the respondent by our previous decision.

[2] By the fifth assignment of error it is urged that the claimant's present condition is not the result of the injury of June 15, 1914. It is the claim of counsel for claimant that, while this question was not pressed by the respondents upon the previous appeal, it is very obvious that, if the condition of the claimant had not been due to the injury which is the basis for his compensation, then this court should have, and would have, entered an order dismissing the entire proceeding. However that may be, a careful reading of the record satisfies us that there was sufficient evidence to sustain the finding of the board upon this question. We have often held that this court will not review a question of fact found by the board, unless there is no evidence upon which to base such finding. With reference to this contention, it is only necessary to quote the following testimony of Dr. Cook:

"Q. Now you said a moment ago in answer to Mr. Dibble's question that this varicose condition which you found there might have resulted from an injury? A. Yes.

"Q. Would you say that it was reasonably certain that it did? A. My belief is that it resulted from an injury.

"Q. That is not just the question. In your opinion, is it possible to say with reasonable certainty that it did? A. In view of the history of this particular case, I would say it is reasonably certain that the ulceration was produced by injury."

This evidence was rebutted by the opinion evidence of other experts summoned by respondents. We will not weigh the evidence, which is the sole province of the Industrial Accident Board.

Finding no error in the proceedings, it follows that the award made by the board must be affirmed.