(dissenting). I concur in reversal but do not agree with Mr. Justice Bushnbll’s construction of the applicable statute. Section 8 of part 7 of the workmen’s compensation law* provides that where an occupational disease is aggravated by any other disease or infirmity not itself compensable, or where disability from any other cause which is not itself compensable is aggravated, accelerated or in anywise contributed to by an occupational disease, the compensation payable shall be such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability as such occupational disease as a causative factor bears to all the causes of such disability, such reduction in compensation to be effected by reducing the number of weekly payments or the amount of *175such payments. In the instant' case the testimony supports the finding of the commission that plaintiff’s disablement arose from silicosis complicated by tuberculosis; the testimony establishes that plaintiff has tuberculosis, caused by silicosis resulting from his many years’ employment in the foundry. The commission properly concluded that there was a direct causal relationship between the silicosis and the tuberculosis. Under those circumstances, I am not in accord with the conclusion of Mr. JusticeBtjshnell that said section 8 of part 7 of the act does not apply.
Plaintiff’s occupational disease (silicosis) is aggravated by or contributes to another disease (tuberculosis) which is not in itself compensable, and this, brings plaintiff’s disability within the purview of' said section. Furthermore, the record is undisputed that plaintiff was hospitalized in September, 1947, at which time he had silicosis and active pulmonary tuberculosis. Plaintiff’s medical testimony was:
“Q. Then it is your opinion when he was admitted here September 4, 1947, he was disabled because of both TB and silicosis?
“A. That is right. .
“Q. Would you say that that disability from the-TB was aggravated, prolonged, accelerated, or in. any way contributed to by the silicosis ? •
“A. Yes, I would say that.”
This brings plaintiff’s compensation within the purview of said section 8, wherein it provides that where any disability from any cause not itself compensable (tuberculosis) is aggravated, accelerated or in anywise contributed to by an occupational disease (silicosis), compensation is payable under the provisions of said section. This question was raised in a brief filed by appellant with the commission and returned here as a part of the certified record and *176it is the only question of law raised here on the appeal.
In Kail v. Field Pontiac-Cadillac Co., 296 Mich 658, a like situation came before us where the commission had failed to apportion the compensation as required by said section and we remanded the ease for the commission to make such determination. We said:
“Under the finding made by the department it was the duty of the department to determine the proportion which the said occupational disease, as a causative factor, bore to all the causes of Herbert Kail’s death and, hence, proportion the compensation as provided by the statute. •
“The finding of the department that monoxide poisoning contributed toward Mr. Kail’s death from pulmonary edema, caused by cardiac failure, brought the necessity of determining the proportion which the occupational disease, as a causative factor, bore to all the causes of Mr. Kail’s death and to proportion the compensation as provided in section 8, part 7, of the act. This was not done, and the case is remanded to the department in order to comply with the mentioned provision of the occupational disease act.
“Defendants were not required to offer proofs on that subject for the burden was,, and is, upon plaintiff to show the measure of the award to be made. It may be difficult to proportion the compensation but the law to do so is on the statute book and must be obeyed.”
See, also, Coombs v. Kirsch Co., 301 Mich 1 (11 NCCA NS 510).
There was proof that the plaintiff was able to earn wages at other work which did not subject him to the hazards of silicosis. While the aforesaid section 8 of part 7 of the act defines the circumstances and lays the foundation on which the commission is required to apportion the compensation in the case *177.at bar, section 3 of part 7* provides the yardstick ■which the commission must nse in snch apportionment. It provides:
“Provided, however, That if it shall be determined that snch employee is able to earn wages at another ■occupation which shall be neither unhealthful nor injurious and such wages do not equal his full wages prior to the date of his disablement, the compensation payable shall be a percentage of full compensation proportionate to the reduction in his earning capacity.”
Under the finding of the commission that silicosis was a causative factor of the tuberculosis, this case should be remanded to the commission to determine the proportion which said occupational disease (silicosis), as a causative factor, bears to the other cause of plaintiff’s disablement (tuberculosis), and to apportion the compensation accordingly. Appellant, having prevailed on the only question involved, should be entitled to costs.
Sharpe, J., concurred with Boyles, J.CL 1948, § 417.8 (Stat Ana 1950 Eev § 17.227).
CL 1948, § 417.3 (Stat Ann 1950 Rev § 17.222).