Rice v. Denny Roll & Panel Co.

• Decision Date: 02 July 1930
• Docket Number: 417.
• Citation: 154 S.E. 69,199 N.C. 154
• Parties: RICE v. DENNY ROLL & PANEL C0., et al.
• Court: North Carolina Supreme Court

154 S.E. 69

199 N.C. 154

RICE v. DENNY ROLL & PANEL C0., et al.

No. 417.

Supreme Court of North Carolina

July 2, 1930

Appeal from Superior Court, Guilford County; McElroy, Judge.

Proceeding for compensation under the Workmen's Compensation Act by John Rice, employee, opposed by the Denny Roll & Panel Company, employer, and the London Guarantee & Accident Company, insurance carrier. From a judgment reversing an award of compensation by the Industrial Commission, claimant appeals.

Reversed.

Industrial Commission's rulings of law are persuasive and entitled to weight on appeal.

The court below held that the Industrial Commission committed error in its conclusions of law in allowing the plaintiff compensation for the period of temporary total disability under section 29 of the Workmen's Compensation Act (Pub Laws 1929, c. 120) in addition to specific compensation under section 31 of said Act, and reversed the award of the commission for temporary total disability. Plaintiff excepted and assigned error, and appealed to the Supreme Court.

Austin & Turner, of High Point, for appellant.

Peacock & Dalton, of High Point, for appellees.

CLARKSON J.

This matter has been fully discussed in Rice v. Roll & Panel Co vol. 1, p. 341, advance sheets, North Carolina Industrial Commission, opinion by Wilson, commissioner for full commission. The opinion, in part: "This cause came on for review before the full commission, February 24, 1930, at Raleigh, North Carolina, upon the appeal by the Carrier from the decision of the Commissioner Dorsett, filed January 31 1930, to decide the one issue, to-wit: Has the Commission the right to award compensation for temporary total disability in addition to specific where there is an amputation? Statement of Case: On Oct.

30, 1929, John Rice, the claimant, was regularly employed by the Denny Roll and Panel Company, at an average weekly wage of $25.13. On that date the claimant suffered an injury by accident resulting in some badly lacerated and amputated fingers on his left hand. The evidence tends to show that the fingers were either amputated at the time of the accident, or immediately thereafter. Dr. Burrus of the Burrus Clinic of High Point, North Carolina, was the attending physician, and testified that because of plaintiff's injury it was necessary to amputate the distal phalange of the second finger, and to amputate more than half of the distal phalange of the third and fourth fingers. Upon the evidence, the full Commission makes the following findings of fact: 1. That the parties to this proceeding are bound by the provisions of the North Carolina Workmen's Compensation Act. 2. That John Rice, the claimant, on Oct. 30, 1929, suffered an injury by accident that arose out of and in the course of his employment, and that as the result of said accidental injury, plaintiff has lost the distal phalange of the second and more than half of the distal phalanges of the third and fourth fingers of his left hand. 3. That the plaintiff was temporarily totally disabled for a period of seven weeks and two days immediately following the accident; and that plaintiff is entitled to compensation for temporary total disability in addition to the specific award for the loss of part of members. 4. That the average weekly wage was $25.13." The conclusions of law are set forth, which we need not repeat. The award: "For temporary total disability the plaintiff is entitled to receive sixty percent. of his average weekly wage for seven weeks and two days, in addition to this, for the specific loss of parts of the fingers as per schedule of injuries set out in section 31, the plaintiff is entitled to receive sixty percent. of his average weekly wage for a period of fifteen weeks to cover the loss of one-half of the second finger; for a period of ten weeks to cover the loss of one-half of the third finger; and for a period of seven and one-half weeks to cover the loss of the fourth finger."

The sole question for our determination: Where an employee, by accident arising out of and in the course of his employment, loses by immediate amputation certain parts of three fingers, is he entitled to compensation under section 29 of the Workmen's Compensation Act for the period of this temporary total incapacity or disability during the healing period, in addition to the amount allowed for loss of the members under section 31 of the said Act, the payment of compensation under section 31 starting on the termination of payment under section 29? We think so.

Section 29 is as follows: "Where the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such total disability, a weekly compensation equal to 60 per centum of his average weekly wages, but not more than eighteen dollars, nor less than seven dollars, a week; and in no case shall the period covered by such compensation be greater than four hundred weeks, nor shall the total amount of all compensation exceed six thousand dollars. In case of death the total sum paid shall be six thousand dollars less any amount that may have been paid as partial compensation during the period of disability, payable in one sum to the personal representative of deceased."

In Smith v. Light Co., 198 N.C. at page 621, 152 S.E. 805, 809, it is held that "the last clause of section 29 is totally repugnant to the definite method of settlement prescribed in sections 38 and 40." Compensation for "death by accident arising out of and in the course of the employment" whether dependents or not are relegated to sections 38 and 40. Reeves v. Parker-Graham-Sexton, Inc., 199 N.C. 236, 154 S.E. 66.

Section 31 has a schedule of injuries and fixes the rate and period of compensation.

This matter has been up several times before the Industrial Commission, and the unanimous decisions of the commission sustain plaintiff's contention. Adams v. Buffalo Snowbird Co., vol. 1, p. 232; Kennedy v. Collins Granite Co., vol. 1, p. 346, advance sheets, North Carolina Industrial Commission.

The defendants contend, and correctly so, quoting 25 R. C. L. p. 964: "There is a marked distinction between liberal construction of statutes, by which courts, from the language used, the subject matter, and the purposes of those framing them, find out their true meaning, and the act of a court in ingrafting upon a law something that has been omitted, which the court believes ought to have been embraced. The former is a legitimate and recognized rule of construction, while the latter is judicial legislation, forbidden by the constitutional provisions distributing the powers of government among three departments, the legislative, the executive and the judicial."

In Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591, 593, speaking to the subject, it is said: "It is generally held by the courts that the various compensation acts of the union should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow, and strict interpretation."

Under section 60 the findings of...