Fern Gold Mining Co. v. Murphy

• Decision Date: 24 August 1925
• Docket Number: No. 4437.,4437.
• Citation: 7 F.2d 613
• Parties: FERN GOLD MINING CO. v. MURPHY.
• Court: U.S. Court of Appeals — Ninth Circuit

7 F.2d 613 (1925)

FERN GOLD MINING CO. v. MURPHY.

No. 4437.

Circuit Court of Appeals, Ninth Circuit.

August 24, 1925.

L. V. Ray, of Seward, Alaska, for plaintiff in error.

Donohoe & Dimond, of Valdez, Alaska (Robert W. Jennings, of San Francisco, Cal., of counsel), for defendant in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge.

The defendant in error, in his complaint in the court below, alleged that, while engaged in mining in Alaska as an employe of the plaintiff in error, he received, through an accident occurring in the course of his employment, an injury to his left hip, which resulted in total and permanent disability. He demanded judgment under the Workmen's Compensation Act of Alaska (Laws 1915, c. 71) for $3,600, less $248.50 which had been paid him. The answer denied that the disability was other than temporary. On the trial, the plaintiff in error introduced no evidence. The jury returned a verdict, finding that as the result of his injuries the defendant in error was totally and permanently disabled and entitled to recover compensation as demanded in his complaint. The plaintiff in error saved no exceptions to the evidence, made no motion for an instructed verdict, took no exception to instructions, and requested none. In this court it claims that the judgment is void as to the amount thereof in excess of $1,800, which it says is the amount allowed under the Compensation Law for the injury described in the complaint under the statute relating to employes partially disabled, which prescribes, in case of an employe unmarried at the time of the injury, "for the loss of leg $1,800," and it is argued that the case in hand is in effect a case of the loss of a leg. We find no merit in the contention. It is obvious that an injury to a leg may be such as to cause total and permanent disability. The Legislature of Alaska, in prescribing $1,800 for the loss of a leg, had in mind the case of the loss or amputation of a leg involving only partial disability, and the statute explicitly so states. Here there was evidence of an incurable and permanent injury, and the jury, under proper instructions from the court, found the disability to be total and permanent.

In Saddlemire v. American Bridge Co., 94 Conn. 618, 630, 110 A. 63, 68, the Supreme Court of Connecticut said: "When the loss of a leg in fact results in partial incapacity, the provision for compensation for the loss of a leg applies. Where the loss of a...