which was sold while he was employed by them." He also claimed the further sum of $500 as a "bonus" if one half of the Karlstein property, owned by the plaintiff, was sold, and $1,000 if the whole was sold, during the first year of his employment. He began work November 1, 1912.

The defendants admitted that on January 11, 1913, an agreement in writing was made to sell the Karlstein property (Exhibit 2) and that the deed was delivered January 23, 1913. They contended that while the plaintiff was to receive a commission on sales of all property owned by them, he was to recover no commission or bonus upon the sale of the Karlstein property.

The first item in the account annexed to the plaintiff's declaration is for one per cent commission amounting to $500; the second item is for $1,000, the bonus claimed. The jury found for the plaintiff on the first item, for $452 and interest, this being one per cent of the amount of the sale of the Karlstein property. The defendants excepted to the refusal to give certain requests, and to all parts of the charge inconsistent with these requests.

There was evidence that the commission was to be paid the plaintiff if the sales were made, even if they were not brought about by his efforts. And it was admitted that the Karlstein property had been sold. The first request properly was refused.

The defendants' third request that "The signing of the agreement to buy and sell the Karlstein property did not constitute a sale of the same," was refused. The plaintiff's testimony showed that agreements like the one in question had been treated by the parties as sales. The plaintiff was not an ordinary broker who was to secure a customer in order to earn his compensation. He testified that on January 18, 1913, he was informed by the defendants that the Karlstein property had been sold and "a new working basis was arranged . . . whereby after that date he was paid commissions on all sales made by him;" that "he continued to work on the new basis until March, 1913, when he ceased to be in their employ; that during the period from November 1, 1912, to January 18, 1913, while he was working on the basis of $30.07 per week and one per cent commission on all sales, numerous sales were made on which he was paid his commission; that all sales so made were made upon agreements to buy and sell,

payment under which agreements were made at later periods on a monthly payment plan, and that commissions were paid to him as the amounts payable under agreements for purchase were paid to the defendants, and such commissions were so paid during the time he was in the defendants' employ after January 18, 1913, and for a considerable period after he had ceased to be in their employ." It was a question for the jury whether the contract to "buy and sell the Karlstein property" was a sale, and the third request properly was refused.

The judge instructed the jury that "the agreement to buy and sell as set forth in Exhibit 2 was a sale of the property, and that if the agreement between the parties was that the defendants should pay the plaintiff one per cent on all sales made, then he was entitled to recover one per cent on the sale of the Karlstein property." The agreement to buy and sell set forth in the exhibit was not as matter of law a sale. It was for the jury to decide whether it was or was not a sale within the contract between the plaintiff and the defendants. The instruction given directed the jury, as matter of law, that the agreement to buy and sell was an actual sale. That was wrong, and the defendants' exception to it must be sustained.

By making the request and excepting to that part of the charge which was inconsistent with the request asked for, an exception was properly saved to the instruction given. Ellis v. Block, 187 Mass. 408, 414.

Present: RUGG, C. J., LORING, DE COURCY, CROSBY, & CARROLL, JJ.

Workmen's Compensation Act, Subsequent insanity, Procedure. Insane Person. Evidence, Matters of common knowledge.

If an injured employee to whom an award of compensation has been made under the workmen's compensation act subsequently becomes insane, his insanity does not put an end to his right to compensation.

In passing upon a claim under the workmen's compensation act the arbitration committee and the Industrial Accident Board have the right to act upon their own knowledge in determining what amount can be earned by an ordinary day laborer and are under no obligation to receive evidence on the subject before passing on the question.

APPEAL to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board, awarding compensation to James Walsh, who at the time of his injury was employed as a boiler maker by the Wholley Boiler Works, a corporation.

In the Superior Court the case was heard by Morton, J. The facts found by the arbitration committee are stated in the opinion. The Industrial Accident Board upon an application for a review adopted the findings and decision of the arbitration committee and found that there was due to the employee as compensation for partial incapacity a weekly payment of $3.75, being one half of the difference between the average weekly wages he was able to earn after the injury and the average weekly wages of $15 which he was able to earn before the injury; that the compensation should continue from June 14, 1915, when it was stopped by the insurer, to September 22, 1915, the date of the hearing, namely, fourteen and two sevenths weeks, amounting to $53.57, and that the compensation should continue at the rate of $3.75 a week during the remainder of the statutory period of three hundred weeks, for which he had not been paid previously.

The judge made a decree in accordance with the decision of the Industrial Accident Board; and the insurer appealed.

The case was submitted on briefs.

H. S. Avery, for the insurer.

H. R. Brigham, for the employee.

LORING, J. The main question here is whether subsequent insanity defeats an employee's right to compensation under the workmen's compensation act.

The employee, a boiler maker by trade, was injured on July 1, 1913. In the course of his work as such he had to climb ladders and to work on stagings. The result of the injury was that his right leg was shortened two and one half inches. In the opinion of the physician called by the insurance company (adopted by the

arbitration committee and the board) that prevented him from doing the work of a boiler maker but it left him "able to perform any ordinary, manual labor, such as shovelling or anything of this sort, just as well as other men." The weekly wages earned by him as a boiler maker came to $15. The insurance company paid him one half these wages until he had recovered from the injury except for the shortening of his leg. When this happened the company refused to make further payments. Subsequently he became insane and thereby was prevented from doing any work. The arbitration committee found that the partial incapacity resulting from the shortening of the leg was a permanent one; that he could have earned $7.50 a week as a laborer and awarded him $3.75 a week for the balance of three hundred weeks, with leave to either party to apply under Part III, § 12, and under "the general provisions of the statute."

We are of opinion that subsequent insanity does not deprive an employee of compensation due him under the provisions of the workmen's compensation act. Indeed the effect of subsequent insanity and the only effect of it is to make greater the employee's need to have that compensation which apart from the subsequent disability justice required the employer to pay him. And the cases are to that effect. Harwood v. Wyken Colliery Co. [1913] 2 K. B. 158. McNally v. Furness, Withy & Co. Ltd. [1913]3 K. B. 605. See also in this connection Cory Brothers & Co. Ltd. v. Hughes, [1911] 2 K. B. 738.

The insurance company has argued that the subsequent insanity of the employee stands on all fours with the subsequent death of a dependent. The purpose of the workmen's compensation act is to make a personal injury suffered by an employee an incident of the business in which he is employed when it arises out of and in the course of his employment. To accomplish that purpose it is provided by that act that as matter of justice the resulting burden shall be borne by the employer without regard to the question of fault on the part of the employee. In carrying out that measure of justice the act provides that in case the injury results in the death of an employee compensation shall be made to those dependent upon him. It was decided in Murphy's Case, 224 Mass. 592, that the subsequent death of a dependent ends his right to compensation. But none of the considerations upon

which that conclusion was reached exist in the case of a permanent partial incapacity for work caused by an injury within the act and a subsequent total disability coming from an outside cause. In that case (as we have said) the only effect of the subsequent total disability is to make greater the employee's need to have that compensation which under the act justice required the employer to make to him.

The insurer relies upon what was said by the Supreme Court of Michigan in Winn v. Adjustable Table Co. 193 Mich. 127. In deciding that the loss of a third finger by reason of an injury within the workmen's compensation act should be dealt with as the loss of a finger and not as the loss of a whole arm in a case where the employee before the injury had on that hand the thumb and third finger only that court said: "It is impossible to know how much the claimant might have earned if suffering only from the partial disability, when, as matter of fact, he cannot earn anything because of the total disability." The decision in that case is not of consequence here. See in that connection Branconnier's Case, 223 Mass. 273. We are unable to agree with this reasoning. There is not a court day in the year when some jury is not passing upon a question of fact quite as difficult to decide as the question of what the claimant might have earned when suffering from partial disability only, when as matter of fact he was not able to earn anything because of a subsequent total disability. See in this connection Barry v. New York Holding & Construction Co. 226 Mass. 14; C. W. Hunt Co. v. Boston Elevated Railway, 199 Mass. 220. The decision made is fairly within what was said in Maynard v. Royal Worcester Corset Co. 200 Mass. 1, 8.

We are of opinion therefore that subsequent insanity did not defeat the employee's right to compensation under the act.

The other objection taken by the insurer is that there was no evidence as to what amount an ordinary laborer would have earned and for that reason it was not open to the arbitration committee and the Industrial Accident Board on review to make a finding that he would have earned $7.50. As was said in Carroll's Case, 225 Mass. 203, 208, the proceedings before the committee and the board of review ought not to be hampered by technicalities. We are of opinion that in determining the amount