154 Wis. 114 | Wis. | 1913
This case arises under the Workmen’s 'Compensation Act. One Winters was employed as a shingle sawyer by the plaintiff. While at work he lost' the thumb and index finger of his left hand. He was earning to exceed $750 per year when injured. He applied to the Industrial Commission to fix the amount of compensation which he was entitled to receive. The matter was referred to Hon. A. W. Sanborn to take testimony and make findings and report the same to the Commission. Mr. Sanborn found that the earning capacity of the applicant had been reduced to $9 per week by reason of the injury, and that he was entitled to recover sixty-five per cent, of the difference between the maximum amount allowable for total disability under the compensation act, to wit, $14.42 a week, and what he was capable of earning, thereafter, to wit, $9 a week, or $3.52 a week for a period of fifteen years, or an aggregate of $2,745.60. The Commission made an award in accordance with these findings.
The plaintiff commenced an action to review these findings, alleging among other things that the award had been made without a final hearing before the Commission. This contention was sustained and the record was remanded for further hearing before the Commission. Thereafter the Commission made a second award. It was found as a fact that Winters was totally incapacitated by the accident from again following the occupation of shingle sawyer. It is not expressly found that the injured employee could engage in
Among other things the Commission found:
“That because of the injuries received in said'accident, the said applicant, William H. Winters, is totally and permanently disabled so that he cannot return to the employment in which he was working at the time of the accident, and there is a total permanent impairment of his earning capacity in such employment.”
This second award was confirmed by the court, and plaintiff appeals from the judgment of confirmation.
It is perfectly obvious that the Commission did not find and did not intend to find that Winters was incapacitated from engaging in all gainful occupations. It did find that he was permanently disabled from engaging in the work of shingle sawyer.
The Commission construed the compensation act to mean that where an employee is totally disabled from performing the particular work which he was performing when the injury occurred, he is entitled to recover the maximum allowance for total disability, no matter what his earning capacity may be in other callings. The circuit court came substantially to the same conclusion.
The appeal involves but a single question and that is a question of law, of statutory construction. The appellant urges that the construction adopted is unreasonable and was not within the contemplation of the legislature} that it is
The material provisions of the compensation act (secs. 2394 — 1 to 2394 — 71, Stats. 1911) are the following:
Sec. 2394 — 9. “. . . (2) If the accident causes disability, an indemnity which shall be payable as wages on the eighth day after the injured employee leaves work as the result of the injury, and weekly thereafter, which weekly indemnity shall be as follows:
“(a) If the accident causes total disability, sixty-five per cent, of the average weekly earnings during the period of such total disability; provided that, if the disability is such as not only to render the injured employee entirely incapable of work, but also so helpless as to require the assistance of a nurse, the weekly indemnity during the period of such assistance after the first ninety days shall be increased to one hundred per cent, of the average weekly earnings.
“(b) If the accident causes partial disability, sixty-five per cent, of the weekly loss in wages during the period of such partial disability.
“(e) If the disability caused by the accident is at times total and at times partial, the weekly indemnity during the periods of each such total or partial disability shall be in accordance with said subdivisions (a) and (b), respectively.”
*118 Sec. 2394 — 10. “ 2. The weekly loss in wages referred to in sec. 2894 — 9 shall consist of such percentage of the average weekly earnings of the injured employee, computed according to the provisions of this section, as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, the same to he fixed as of the time of the accident, but to be determined in view of the nature and extent of the injury.”
If sub. (b) of sec. 2394 — 9 above quoted stood alone, there could be little doubt about what it meant. But by sub. 2 of sec. 2394 — 10 the legislature explains how the loss of wages for the partial disability provided for in sub. (b) is to be ascertained and computed. It is “such a percentage of the average weekly earnings ... as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident. ...” This is just what the Commission allowed, it having found that he was totally incapacitated from performing his former work.
This is a new statute containing a large number of provisions which deal with a new and a complex' subject. It may well be that if the legislature had in mind, the concrete case with which we are dealing it would have provided for such a contingency. It is not very probable that it was intended to give an employee who lost a thumb and finger of the left hand the same compensation that he would be entitled to receive had he been so maimed that he was totally incapacitated from doing any kind of work. If this is so, then it is apparent that the legislature overlooked the contingency with which we are dealing, or it in fact has provided that the future earning capacity of the employee must be taken into account. If the former is the correct diagnosis, then the remedy rests with the legislature. It is its function to amend the act where amendment is found necessary. The fact that injustice may result in the instant case is nothing that con
“The proposition, however it may once have been held or considered, that the courts, upon what is termed an equitable construction or otherwise, may, against the plain language of a statute and in opposition to the intent clearly expressed by the words, mitigate the 'violence of the letter’ by introducing exceptions where the statute itself contains none, so as to relieve in cases of hardship or particular inconven*120 ience, Ras been too long 'and too frequently rejected to be now the subject of serious argument or doubt. Sncb doctrine, if it ever existed, was long since exploded, and the rule now universally recognized and acted upon is, that whatever else may be done with the words of a statute, they may never, in the language of Lord Bacon, ‘be taken to a repugnant intent’ ”
See, further, Harrington v. Smith, 28 Wis. 43.
The law as it reads has the merit of being explicit as to the amount of compensation which the employee shall receive, although it bears rather heavily on the employer in a case like the one under consideration. Where the language used in a statute is plain, the court cannot read words into it that are not found therein either expressly or by fair implication, even to save its constitutionality, because this would be legislation and not construction. Rogers-Ruger Co. v. Murray, 115 Wis. 267, 91 N. W. 657. Courts in construing statutes look to consequences, but only where there is room for construction by reason of ambiguous language being used and where a literal construction would lead to some absurd result. Berger v. Berger, 104 Wis. 282, 80 N. W. 585; Sauntry v. Laird, Norton Co. 100 Wis. 146, 75 N. W. 985; Gilbert v. Dutruit, 91 Wis. 661, 65 N. W. 511; Battis v. Hamlin, 22 Wis. 669.
The argument that the provision under discussion is viola-tive of the “due process of law” clause of the federal constitution cannot prevail. It was optional with the appellant to come in under the compensation act or to stay out. It elected to take the former course. It accepted the provisions of the act as they were, the burdens as well as the benefits, and so long as it remains under the law it must take the statute as it finds it. Daniels v. Tearney, 102 U. S. 415, and cases cited at page 421; Grand Rapids & I. R. Co. v. Osborn, 193 U. S. 17, 29, 24 Sup. Ct. 310.
By the OouH. — Judginent affirmed.