Ex parte Puritan Baking Co.

• Decision Date: 26 October 1922
• Docket Number: 6 Div. 724.
• Citation: Ex parte Puritan Baking Co., 94 So. 347, 208 Ala. 373 (Ala. 1922)
• Parties: EX PARTE PURITAN BAKING CO. v. VOLTON. PURITAN BAKING CO.
• Court: Alabama Supreme Court

94 So. 347

208 Ala. 373

EX PARTE PURITAN BAKING CO.

PURITAN BAKING CO. v. VOLTON.

6 Div. 724.

Supreme Court of Alabama

October 26, 1922

Certiorari to Circuit Court, Jefferson County; J. Q. Smith, Judge.

Proceeding under the Workmen's Compensation Act by Cleve Voltonclaimant, opposed by Puritan Baking Company, employer.Judgment for claimant, and the employer petitions for certiorari.Writ denied.

Cleve Volton recovered judgment against the Puritan Baking Company in an action under the Workmen's Compensation Act, to review which judgment defendantpetitions for writ of certiorari to the circuit court.Transferred from Court of Appeals under section 6, Acts 1911, p. 449.Writ denied.

Cabiniss Johnston, Cocke & Cabiniss and Brewer Dixon, all of Birmingham, for petitioner.

Wood &amp Pritchard and Eugene H. Hawkins, all of Birmingham, for appellee.

GARDNER J.

This cause was tried before the circuit judge without a jury under the Workmen's Compensation Act.We here set out the finding and judgment as follows:

"Comes the plaintiff and defendants in person and by their attorneys, and it being found by the court that plaintiff was in defendant's employ, and while acting in the line and scope of his employment his right hand was caught in one of defendant's machines which the said employé was engaged to operate, that as a result of said accident the said hand was severely mangled, lacerated, cut and bruised, necessitating the amputation of the index finger and the second finger of the said hand, in which amputation part of the second phalange of each of said fingers was removed below the first joint, less than half of the second phalange being amputated, and the second joint of both fingers being permanently stiffened, and it being further found that plaintiff's average weekly wage was $30 per week, and the court being of the opinion that under said facts plaintiff's loss should be computed as the loss of two or more phalanges of each of said fingers, and that he is entitled to compensation as for the entire loss of each of said fingers, whereupon compensation is hereby decreed to plaintiff, and against defendants for 65 weeks at $12 per week, which compensation shall be paid plaintiff as from December 10, 1921, the date of said injury, in the manner and form as provided by the laws of the state of Alabama, and plaintiff's attorneys is [are] hereby allowed the sum of 10 per cent. as attorney's fee on the amount ascertained.This the 7th day of April, 1922."

Petitioner here insists there are errors of law apparent upon the record, as disclosed by the foregoing finding and judgment, and presents this petition for certiorari to review the same.Woodward Iron Co. v. Bradford,206 Ala. 447, 90 So. 803;Ex parte Sloss-Sheffield Steel & I. Co.(Ala. Sup.)92 So. 458.

The cause was submitted to the court below upon one issue only; that question being whether plaintiff was entitled to compensation for the loss of two whole fingers.The pivotal question upon the submission of this cause relates, therefore, to a proper construction of subdivision"c" of section 13 of the Workmen's Compensation Act of this state (Gen. Acts 1919, p. 206) as applied to the facts found by the trial court.So much of said subdivision as here applicable reads as follows:

"The loss of the first phalange of the thumb, or of any finger, shall be considered as equal to the loss of one-half of such thumb, or finger, and compensation shall be paid at the prescribed rate during one-half of the time specified above for such thumb or finger.The loss of two or more phalanges 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."

We are of the opinion that the finding of the trial court, reasonably and fairly construed, suffices for the proper presentation of the question here under consideration.While it does not disclose with exactness how much of the two phalanges of the fingers was removed by the amputation, using only the general description that less than half thereof was removed, yet in reading the entire finding of the courtwe think a fair construction of the language leads to the conclusion that a very substantial portion of the two phalanges was removed.It is further disclosed that the second joint of both fingers became permanently stiffened.It therefore appears that the trial court found from the evidence before it that on account of the amputation of a substantial portion of the second phalanges of these fingers in connection with the further fact that the second joints thereof had become permanently stiffened, plaintiff had in practical effect lost also the second phalanges of said fingers, and therefore was entitled to compensation as for the entire loss of each finger as provided by the foregoing statute.

Counsel for petitioner in a very forcible brief have called to our attention numerous authorities from the Supreme Court of New York to the effect that a loss of a fractional part of a phalange could not be considered as a loss of the phalange under a statute worded similarly to that of this state.

We have read with much care the cases cited by petitioner's counsel, and we find that in many of them stress is laid upon the fact the loss of a small fractional part of the phalange interfered in no manner with its use, as in Baron v. National Metal Co.,182 A.D. 284, 169 N.Y.S. 337, the opinion points out that "the slight chipping off of the second phalanx has not lessened the use of the phalanx," and in Ide v. Faul & Timmins,179 A.D. 567, 166 N.Y.S. 858, the evidence indicated that the injury received was of such a character as not to any extent interfere with the claimant in the labor which he was performing when injured.In Geiger v. Gotham Can Co.,177 A.D. 29, 163 N.Y.S. 678, it was pointed out that there was "no proof of permanent loss or impairment of the use of the joint or of the injured phalange."In other cases, however, from the New York court no reference seems to be made to this particular feature, and the decisions appear to rest upon the fractional quantity of the phalange removed.We make reference to the cases of Stringham v. Ashton,194 A.D. 853, 185 N.Y.S. 554;Tetro v. Superior Printing Co.,185 A.D. 73, 172 N.Y.S. 722;Thompson v. Sherwood Shoe Co.,178 A.D. 319, 164 N.Y.S. 869; and in Forbes v. Evening Mail,194 A.D. 563, 185 N.Y.S. 592, the Supreme Court of New York, interpreting the decision of the Court of Appeals of that state in the Matter of Petrie,215 N.Y. 335, 109 N.E. 549, held that substantially all of a phalange should be removed to justify a holding that the phalange had been lost within the meaning of the statute, and, in effect, held that a major portion thereof, or more than half, must be removed before there can be said to be a loss of the first phalange.

The foregoing authorities are from the intermediate appellate courts of New York, and not from the court of last resort and counsel for respondent earnestly insists that they are in conflict with the decision of the...