Lynch v. Gleaner Combine Harvester Corporation

• Decision Date: 20 May 1929
• Docket Number: No. 16642.,16642.
• Parties: LYNCH v. GLEANER COMBINE HARVESTER CORPORATION et al.
• Court: Missouri Court of Appeals

17 S.W.2d 554

LYNCH v. GLEANER COMBINE HARVESTER CORPORATION et al.

No. 16642.

Kansas City Court of Appeals. Missouri.

May 20, 1929.

Error to Circuit Court, Jackson County; Willard P. Hall, Judge.

Proceedings under the Workmen's Compensation Act by W. H. Lynch, claimant, opposed by the Gleaner Combine Harvester Corporation, employer, and the Zurich General Accident & Liability Company, insurer. Judgment affirming an award of the Workmen's Compensation Commission, and the employer and insurer bring error. Reversed and remanded, with directions.

Shughart & Johnson, of Kansas City, for plaintiffs in error.

J. H. & Harvey Roney, of Kansas City, for defendant in error.

BLAND, J.

This is a proceeding by Writ of Error involving a judgment of the Circuit Court affirming an award of the Missouri Workmen's Compensation Commission.

The facts show that defendant in error, on July 7th, 1927, was employed in operating a punch press by the Gleaner Combine Harvester Company at Independence. In the course of his work the glove on his right hand was caught in the machine and when the die came down the end of the distal phalanx of the second finger on his right or major hand was crushed off. As a result he lost a third of the distal phalanx of the finger.

Plaintiff's employer carried a liability insurance policy in the Zurich General Accident & Liability Insurance Company, one of the plaintiffs in error in this case. Lynch, the defendant in error, was being paid a wage of $45.96 per week at the time of his injury. Lynch ceased work immediately following the accident. On July 23rd, 1927, the Gleaner Combine Harvester Company, the insurer and Lynch entered into an agreement under the terms of which he was to be paid compensation under the Compensation Act. It was agreed that under the terms of the Act he was entitled to receive compensation at the rate of $20.00 per week during the period of his disability after the first three days. Compensation was paid Lynch by the insurance company at the rate of $20.00 per week.

On August 6th, 1927, the employer, the insurer and Lynch entered into a final agreement concerning Lynch's injury. By the provisions of this final agreement the parties decided that Lynch suffered the loss of half of the distal phalanx of the middle finger of the right hand. For this injury the employer and the insurer agreed to pay compensation at the rate of $20.00 per week for a total of thirteen weeks. Lynch having been paid at that time compensation at the rate of $20.00 per week for three weeks six and one-half days or a total of $78.54, the employer and the insurance company agreed to continue payments at the rate of $20.00 per week for an additional period of 9 1/14 weeks, making a total payment of $260.00, in addition to medical aid as provided in the Act. Section 13, Laws 1925, p. 382.

This final agreement was forwarded to the Commission and was received by it on August 8th, 1927. The Commission refused to approve the agreement, but returned it, stating that under the Compensation Act Lynch was entitled to receive compensation at the rate of $20.00 per week for a total period of 22.285 weeks. The employer and the insurer refused to agree to the ruling of the Commission and the Commission notified Lynch who filed a notice of disagreement and a request for a hearing. The cause was then set down for hearing before the Commission and on September 12th, 1927, a hearing was conducted by one of the Commissioners who determined that Lynch instead of losing a half of the distal phalanx had lost only one-third thereof. The Commissioner then made the following finding of facts:

"In the Act the compensation periods for amputations of the major second finger are 35 weeks for the whole finger, 30 weeks for half of it and 26 weeks for a fourth of it (distal phalanx). A third of the whole finger is the distal phalanx plus the distal third of the second phalanx, the compensation period for amputation of which is 26 + 1/3 of (30-26)= 27 1/3 weeks. According to Section 17(a) of the Act the period for one-third of the distal phalanx should bear the same relation to that for the whole phalanx as the period for one-third of the finger bears to that for the whole finger. Expressed arithmetically this

                is 1/3 distal = 27 1/3, from which 1/3 distal =
                   -------   -------
                      26      35
                26×27 1/3 = 20.305 weeks."
                ----------
                   35
                

It was determined that Lynch was entitled to compensation for 20.305 weeks at the rate of $20.00 per week. However, the employer and the insurance company were given credit for compensation paid to that date in the amount of $178.59.

A review of the findings of the Commissioner was applied for by the employer and the insurance company and after a hearing before the full Commission a final award was entered by it on December 10th, 1927, affirming the original award made by the Commissioner. The cause was duly appealed to the Circuit Court by the insurance company and the employer. The court, after reviewing the record as certified to by the Commissioner, entered a judgment affirming the award of the Commissioner. The employer and the insurance company have brought the cause to this court by a Writ of Error. Defendant in error has not favored us with a brief.

It is contended by the plaintiffs in error that the court erred in allowing compensation for more than 8 2/3 weeks, as section 17(a) of the Act (Laws 1925, pp. 384, 385) provides for compensation for only 26 weeks for a loss of the middle finger of the major hand at the distal joint and Lynch lost but one-third of the distal joint of his right hand; that consequently he was entitled to compensation for only one-third of the 26 weeks or 8 2/3 weeks.

Section 17(a) of the Compensation Act declares certain injuries scheduled therein to be permanent partial disabilities, including the loss of fingers and thumbs on both hands and the loss of various joints of such fingers. The Act provides compensation for 35 weeks for the loss of the middle finger at the proximal joint of the major hand; for 30 weeks for the loss of such finger at the second joint of the major hand and for 26 weeks for the loss of such finger at the distal joint of the major hand.

After scheduling the various injuries with the number of weeks compensation should be paid therefor, the statute reads:

"For permanent injuries other than those above specified, the said...