198 Iowa 135 | Iowa | 1924
-I. On July 21, 1921, the plaintiff, while engaged in his work as a coal miner and as an employee of the defendant coal company, suffered an injury to his hand by a fall of slate, whereby he became entitled to compensation under the provisions of Section 2477-m9 of the Code Supplement, 1913, and under Subsection (j) thereof, as amended by Chapter 270,
“(j) For disability partial in character and permanent in quality, the compensation shall be as follows:
' “For all cases included in the following schedule, compensation shall be paid as follows, to wit: * * *
“(2) For the loss of a first finger, commonly called the index finger, sixty per cent of daily wages during thirty weeks.
“ (3) For the loss of a second finger, sixty per cent of daily wages during twenty-five weeks.
“ (4) For the loss of a third finger, sixty per cent of daily wages during twenty weeks. * * *
“ (6) For the loss of the first phalange of the thumb or of any finger shall be considered to be equal to the loss of one half of such thumb or finger and compensation shall be one half of the amounts above specified.
“(7) The loss of more than one phalange shall be considered as the loss of the entire finger or thumb; provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand. ’ ’
The injury consisted of the crushing of plaintiff’s three fingers. The deputy industrial commissioner classified the extent of his loss as the loss of one phalange each on the first and third fingers, and of two phalanges of the middle finger. Under the statute, this would fix the compensation as for the loss of half of each of the first and third fingers, and as for the loss of the whole of the middle finger. The contention for the plaintiff is that his loss as to the first and third fingers should have been classified/ as the loss of each finger, in that he lost “more than one phalange” of each finger.
The dispute here involves the injury only to the first and third fingers. The question in dispute is whether in each case the loss should be classified as half a finger or as the entire finger. It appears in each case that the first phalange was crushed, and that complete injury thereof extended to the first joint. In order to get a proper recovery from the injury, „jt
Is “more” intended, to be used in such paragraph as an adjective or as an adverb ¶ There are plausible reasons that can be put forth for either contention, and they have not been overlooked in the able briefs of counsel. Wq reach the conclusion quite readily, however, that the word “more” carries the adverbial character, and not the adjective one. One reason for this conclusion is that the contrary construction is laborious, and requires the supplying of an omitted word, which would result in awkward speech. It would amount to saying that “more than one phalange” necessarily means two phalanges. If such were the legislative intent, it could have been easily and simply expressed. If it were the legislative intent that only the loss of two phalanges should constitute the equivalent of the loss of a finger, such intent could have been easily expressed, and much more easily than by the construction contended for by the defendant. If two phalanges were in the legislative mind, there was no natural reason why they should have been described as “more than one phalange.” The defendant relies upon the authority of the case of In re Petrie, 215 N. Y. 335 (109 N. E. 549), and contends that the Court of Appeals in that case adopted such construction of a similar statute. We do not so read the cited case. It was found in that case as a fact that “substantially all” of the phalange had been lost. Possibly an inference might fairly be drawn from the opinion that, if a lesser portion had been lost, compensation would have been denied; but the court did not commit itself directly to any such holding. Likewise, reliance is placed upon a decision of the Supreme Court of Illinois in McMorran & Co. v. Industrial Commission, 290 Ill. 569 (125 N. E. 284). What was held in this ease was that the loss of one sixteenth of an inch of the first phalange ivas not a loss of the phalange, within the meaning of the statute. The Petrie case from the New York Court of. Appeals was cited as authority. In neither of these eases was the court confronted squarely with the question which confronts us. The very purpose of the Workmen’s Compensation Act is to fix definite rules for the measuring of compensation for specific
II. This leaves for consideration the question of fact, under the evidence, whether a substantial portion of the second phalange was lost. The deputy industrial commissioner made no finding of fact on that question. A reversal of his order on the question of law by the district court was proper and inevitable. That court was thereupon confronted with the necessity of looking to the evidence for a finding of fact at this point. Under the evidence of the X-ray experts, the district court could have found either that one fourth of the second phalange was lost or that one half thereof was lost. Such was the variance in the evidence of the experts. Upon either hypothesis, there was a substantial portion of such phalange lost, and such was the finding of the district court. Its judgment is, accordingly, affirmed. — Affirmed.