Ketchikan Lumber & Shingle Co. v. Walker

• Decision Date: 22 November 1926
• Docket Number: No. 4946.,4946.
• Parties: KETCHIKAN LUMBER & SHINGLE CO. v. WALKER.
• Court: U.S. Court of Appeals — Ninth Circuit

15 F.2d 772 (1926)

KETCHIKAN LUMBER & SHINGLE CO. v. WALKER.^*

No. 4946.

Circuit Court of Appeals, Ninth Circuit.

November 22, 1926.

A. H. Ziegler, of Ketchikan, Alaska, for plaintiff in error.

George B. Grigsby, of Ketchikan, Alaska, and E. Coke Hill, of San Francisco, Cal., for defendant in error.

Before GILBERT and RUDKIN, Circuit Judges, and JAMES, District Judge.

JAMES, District Judge.

While employed in the mill of plaintiff in error, Walker, defendant in error, suffered accidental injury by having his right hand cut by a trim saw, which he was at the time operating. He claimed an allowance as for partial and permanent disability under the terms of the last two provisions of section 1, subd. 7, of the Workmen's Compensation Act of Alaska (Session Laws of Alaska 1923, p. 235). The employer disputed the claim as made, and insisted that the allowance could not be for a greater sum than fixed for the loss of a hand in the schedule contained in the act. In its answer to the complaint of the employee, plaintiff in error offered to allow judgment to be taken for the sum of $2,340, less $218.40 which had been theretofore paid the claimant.

The jury, sitting at the trail, answered the special questions submitted to them by the District Judge as follows:

"Question No. 1: Has the injury to the plaintiff's hand, as complained of, diminished his earning capacity more or less than if the hand had been completely severed between the wrist and elbow?

"Answer: More.

"Question No. 2: If the injury to plaintiff's hand has diminished his earning capacity more than if the hand had been completely severed between the wrist and elbow, what is the percentage of loss of earning capacity of plaintiff by reason of such injury?

"Answer: Sixty-five per cent. (65%)."

Judgment was entered against plaintiff in error for the sum of $4,852, with costs; the principal sum representing 65 per cent. of a maximum of $7,800, which would have been recoverable by the employee had he suffered total and permanent disability as provided in that portion of the Compensation Act first referred to.

Various exceptions were saved, several referring to the rulings of the court on the evidence, and also to the order of the court allowing the claimant to amend his complaint after the evidence was in and change the description of his injury to "partial and permanent" rather than "total and permanent," as the original complaint stated it. However, only one of the assignments of error need be considered; that refers to the correctness of the rule adopted by the court as a measure of recovery. Plaintiff in error asked the court to give to the jury the following instruction:

"You are instructed under the law of Alaska that according to the evidence in this case plaintiff cannot recover for more than the loss of a hand."

This instruction was refused, and the court, on the contrary, advised the jury that it should determine, as the questions submitted to it indicated, what percentage of the employee's earning power had been diminished. The Compensation Act of Alaska provides, in injury cases, that when the employee is totally and permanently disabled, "he or she shall be entitled to receive compensation as follows: (a) If such employee was at the time of his injury married he shall be entitled to receive six thousand two hundred forty dollars ($6,240.00) with seven hundred eighty dollars ($780.00) additional for each child under the age of sixteen (16) years, but the total to be paid shall not exceed seven thousand eight hundred dollars ($7,800.00)."

It further provides that where the employee is injured and the injury results in "his or her partial disability, he or she shall be paid in accordance with the following schedule." The schedule stating the several allowances to be made for loss of body members provides, under the head, "For the loss of a hand, * * * (c) In case the employee was either married or a widower and had one child, $2,496.00 and $312.00 additional for each of said children, not to exceed, however, the total sum of $3,120.00."

The District Judge, in refusing to instruct the jury or so regulate his judgment that the maximum that could be allowed would be not to exceed the fixed amount covering the loss of a hand only, looked to other provisions of the act, being those first above referred to. Those provisions are now quoted:

"Whenever such employee receives an injury, arising out of and in the course of employment, as a result of which he or she is partially disabled, and the disability so...