Yet v. See Sang Co.

• Decision Date: 17 April 1919
• Docket Number: No. 1134.,1134.
• Court: Hawaii Supreme Court
• Parties: CHING HON YET, BY HIS GUARDIAN AD LITEM, WILLIAM T. CARDEN, v. SEE SANG COMPANY AND LONDON GUARANTEE & ACCIDENT COMPANY, LIMITED.

24 Haw. 731

CHING HON YET, BY HIS GUARDIAN AD LITEM, WILLIAM T. CARDEN,

v.SEE SANG COMPANY AND LONDON GUARANTEE & ACCIDENT COMPANY, LIMITED.

No. 1134.

Supreme Court of the Territory of Hawai‘i.

Submitted April 12, 1919.

Decided April 17, 1919.

EXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT. HON. W. S. EDINGS, JUDGE.

Syllabus by the Court

Where an employee is accidentally injured resulting in temporary total disability and permanent partial disability the injured employee should be awarded sixty per cent. of his average weekly wage for the period of his total disability and after reaching the stage of convalescence where he ceased to be totally disabled but remained in a state of permanent partial disability he should receive for an additional definite number of weeks fifty per cent. of his average weekly wage.

Where the notice served by the employee upon the employer contains a statement that the injury consists of the “loss of four fingers of left hand” it sufficiently describes the nature of the injury. The effect of the injury upon the employee became a matter of proof.

Where at the trial the evidence established that the employee had by reason of the accident lost the use of his hand it was not error for the court to award the injured employee compensation for the loss of the use of his hand.

Where the employer or the insurance carrier appeals from an award made by the industrial accident board to the circuit court the statute contemplates the trial of the cause de novo in the appellate court before a jury, if a jury is demanded; otherwise before the court without the intervention of a jury.

W. T. Carden for claimant.

H. Edmondson for defendant London Guarantee & Accident Co., Ltd.

COKE, C. J., KEMP, J., AND CIRCUIT JUDGE DEBOLT IN PLACE OF EDINGS, J., DISQUALIFIED.

OPINION OF THE COURT BY COKE, C. J.

The claimant-appellee, Ching Hon Yet, who appears by William T. Carden, his guardian ad litem, is a boy of about sixteen years of age and at the date of the accident herein referred to, to wit, the 20th day of May, 1918, was employed by the defendant See Sang Company, in operating an electric meat chopper. While in the course of his employment his left hand was caught in the machinery of the meat chopper and all four fingers of that hand were severed close to the body of the hand. The thumb escaped injury. At the time of the injury the appellee was receiving a weekly wage of $9.60. The defendant-appellant, the London Guarantee & Accident Company, Limited, a corporation, is the insurance carrier. As a result of the injuries sustained the appellee was totally incapacitated for work for a period of eight weeks. The appellee duly filed with the industrial accident board of the City and County of Honolulu a notice of his injury and claim for compensation. At the hearing before the industrial accident board appellee was awarded sixty per cent. of his weekly wage for the period during which he was totally disabled beginning with the eighth day following the date of the accident and was further awarded fifty per cent. of his average weekly wage for a period of 116 weeks, payment thereof to run from the termination of his temporary total disability.

The insurance carrier appeared at the hearing before the industrial accident board by its attorney, H. Edmondson, Esq., and argued that while under the facts and circumstances of the case it was legal and proper for the industrial accident board to award to the appellee compensation at the rate of fifty per cent. of his average weekly wage for 116 weeks, it was illegal and improper for it to award any sum whatsoever for temporary total disability. Section 13, Act 221 S. L. 1915, as amended by Act 227 S. L. 1917, provides that: “Total disability. Where the injury causes total disability for work the employer during such disability, but not including the first seven days thereof, shall pay the injured employee a weekly compensation equal to sixty per centum of his average weekly wages,” and section 14 of Act 221 S. L. 1915, as amended by Act 227 S. L. 1917, provides: “Section 14. * * * (b) Permanent partial disability. In case of disability partial in character but permanent in quality the compensation shall be fifty per centum of the average weekly wages and shall be paid to the employee for the period named in the schedule as follows: Thumb. For the loss of a thumb sixty weeks; First finger. For the loss of a first finger, commonly called index finger, forty-six weeks; Second finger. For the loss of a second finger, thirty weeks; Third finger. For the loss of a third finger, twenty-five weeks; Fourth finger. For the loss of a fourth finger, commonly called the little finger, fifteen weeks; * * * Hand. The loss of a hand, two hundred and forty-four weeks; * * * The compensation for the foregoing specific injuries shall be in lieu of all other compensation, except the benefits provided in section 13 of this Act.”

It was and still is the position of the insurance carrier that the last clause of section 14 just recited was intended to refer to section 12 which has to do with the furnishing by the employer to the injured employee reasonable surgical, medical and hospital services and supplies. It was determined by the industrial accident board that this clause in the Act means what its plain and unambiguous language clearly imports, to wit, that the compensation for the specific injuries recited in section 14 should be in lieu of all other compensation except the benefits provided in section 13 of the Act. With this holding we are in full accord. The plain intention of the legislature was to take care of an injured employee whose injury resulted temporarily in total disability and for that period he should receive sixty per cent. of his average weekly wage, and after reaching a stage of convalescence where he ceased to be totally disabled but was still in a state of permanent partial disability he should then receive for an additional definite number of weeks a lesser compensation, to wit, fifty per cent. of his average weekly wage. Any other construction of this statute, it appears to us, would do violence to the intention of the legislature as clearly and unequivocally expressed in the Act.

The insurance carrier being dissatisfied with the order of the industrial accident board perfected an appeal to the circuit court where the case was tried without the intervention of a jury-a jury having been waived by the act of the parties. After the case reached the circuit court Mr. Carden was appointed guardian ad litem of the appellee. When the case came on for trial before the circuit court the appellant offered no evidence but submitted the case upon the record of the proceedings had before the industrial accident board. Mr. Carden, representing the appellee, sought and received permission to have the testimony of the appellee taken, and while appellant's exception No. 1 recites that counsel for the appellant objected to any evidence being adduced at the hearing of said appeal and that the court overruled the objection and that appellant duly excepted to the ruling of the court, the certified record of the proceedings had before the circuit court, which appears to be full and complete, does not disclose that any such proceeding as contained in appellant's exception No. 1 did as a matter of fact take place and we are at a loss to account for the presentation to this court of the exception when the same is wholly unsupported by the record. Appellee gave the details of the injury and exhibited his injured hand to the court. He further testified that by reason of the loss of the four fingers he is unable to use his hand. The appellant made no attempt to contradict this evidence. The circuit court thereupon found in favor of the appellee awarding him sixty per cent. of his average weekly wage for the period of his total disability, to wit, seven weeks from and after the 28th day of May, 1918, and further awarded him fifty per cent. of his average weekly wage for a period of 244 weeks commencing at the expiration of the period of total disability, it having been found by the circuit judge that appellee had suffered the permanent loss of the use of his hand.

The appellant has brought the case to this court by bill of exceptions and reiterates his contention respecting the construction of sections 13 and 14 of Act 221 S. L. 1915 as amended by Act 227 S. L. 1917, which we have disposed of supra, and makes the further claim that because the appellee herein did not appeal from the award of the industrial accident board he is to be regarded as having accepted the award and that while the circuit court might have reduced the amount of the compensation awarded by the industrial accident board it was without power to increase the amount. The determination of this question hinges upon the construction of sections 38 and 41 of Act 221 S. L. 1915, which read as follows:

“Section 38. An award of the board, in the absence of fraud shall be final and conclusive between the parties except as provided in section 37, unless within ten days after a copy has been sent to the parties either party appeals to the circuit court of the circuit in which said board is located. In the County of Hawaii the circuit court shall be that of the fourth circuit. In case of every such appeal the right of a trial by jury shall be deemed to be waived unless claimed within ten days from the date such appeal is entered. Said court may by proper rules prescribe the procedure to be followed in the case of such appeals.

The board may certify questions of law to the supreme court of the Territory for its determination.”

“Section 41. All questions arising under this Act, if not settled by agreement of the parties interested therein with the approval of the board, shall, except as otherwise herein provided, be determined by the board. The decisions of the board shall be enforceable by the circuit court under the...