Zinken v. Melrose Granite Company

• Decision Date: 08 August 1919
• Docket Number: 21,193
• Citation: Zinken v. Melrose Granite Company, 143 Minn. 397, 173 N.W. 857 (Minn. 1919)
• Parties: W. ZINKEN v. MELROSE GRANITE COMPANY AND ANOTHER
• Court: Minnesota Supreme Court

173 N.W. 857

143 Minn. 397

W. ZINKEN v. MELROSE GRANITE COMPANY AND ANOTHER

No. 21,193

Supreme Court of Minnesota

August 8, 1919

Proceeding in the district court for Stearns county under the Workmen's Compensation Act in which judgment was entered in favor of the workman and against his employer and the insurer of the employer.Upon the relation of the employer and its insurer the supreme court granted its writ of certiorari directed to the district court for Stearns county and the Honorable John A. Roeser, judge thereof, to review the proceedings in that court.Affirmed.

SYLLABUS

Workmen's Compensation Act -- finding of injury supported by evidence.

1.A finding that lime was splashed into the eyes of a stone mason by a fellow workman and that both eyes were injured is sustained by the evidence.

Workmen's Compensation Act -- release for loss of one eye not a bar to claim for the other eye.

2.A settlement made by the workman with his employer and the insurer of the employer on the mutual assumption that he was entitled to compensation for the loss of one eye only, and a release executed on the same assumption, do not bar him from thereafter claiming compensation for the injury to the other eye.

Workmen's Compensation Act -- permanent partial disability.

3.A workman's left eye had been injured so that one-half of his ability to see with it was lost.Thereafter, in the course of his employment, both eyes were injured, the right so badly that it became necessary to remove it, and the left to such an extent that, although he is not totally blind, he can no longer follow any occupation.Held, that he is entitled to the compensation for permanent partial disability which is fixed by the schedule found in section 4, c. 209,Laws 1915, that the amount of compensation is not determined by the clause in the schedule covering the loss of one eye but by the clause which provides that the compensation shall be 50 per centum of the difference between the wage of the workman at the time of his injury and the wage he is able to earn in his partially disabled condition, for a period not exceeding three hundred weeks.

L. N. Foster and John D. Sullivan, for relators.

Paul Ahles, for respondent.

OPINION

LEES, C.

This was a proceeding under the Workmen's Compensation Act, in which Zinken, an employee of the Melrose Granite Company, was awarded compensation, and his employer and its insurer, The Travelers Insurance Company, by writ of certiorari, bring here for review the judgment entered for the amount awarded.

Zinken was a stone mason employed on July 20, 1915, by the granite company in laying the foundation walls of a building it was erecting.Mortar was brought to him by a fellow workman, whose duty it was to deposit it on a mortar board.In doing so, he carelessly splashed some of the mortar into Zinken's face and eyes and the lime burned his right eye so badly that it became necessary to remove it, and also injured his left eye as hereafter stated.Several years before, Zinken's left eye had been struck with a hammer and quite seriously injured.It healed, but the pupil was elongated, there was some adhesion of the iris to the cornea, some scar tissue formed over the cornea, and the eye lacked the power of accommodation.In consequence of this injury, it had lost one-half of its normal power of vision.Zinken's wages were $24.30 per week.The accident totally disabled him from thereafter earning any wages.Eleven hundred dollars was paid him in instalments of $22 each, pursuant to an agreement for a settlement executed in August, 1915.On June 16, 1917, when the final instalment was paid, he executed a release of all further claims he might have against his employer and the insurance company.

In July, 1918, he commenced this proceeding.The trial court found that his left eye, as well as the right, was burned by the lime, and that the scar tissue over the cornea was thereby enlarged to such an extent that he had lost all practical vision, being only able to have light perception through a small section of the cornea.It was found that he was entitled to receive $3,300 total compensation, less $1,100, which had been paid, and that the release given in consideration of the payment of the latter amount was not binding upon him, for the reason that he signed it because he was told and believed that it was a receipt like the other receipts he had signed as the several installments were paid.

As presented in argument, the questions are: (1) Was the court justified in finding that lime was splashed in Zinken's left eye?(2) Was it justified in disregarding the settlement and release?(3) If both questions are answered in the affirmative, was the correct amount awarded as compensation?

1.No useful purpose would be served by a review of the evidence bearing on the question of whether lime was or was not splashed in Zinken's left eye.His own testimony, if credited, would support a finding that it was.The testimony of Dr. Whiting to the contrary is quite persuasive.There might have been a finding either way, hence we are not required to hold that the finding in his favor is manifestly against the clear preponderance of the evidence, and it cannot be disturbed.State v. District Court of St. Louis County,137 Minn. 435, 163 N.W. 755, L.R.A. 1917F, 1094.

2.Zinken testified that Dr. Whiting, who was employed by the insurance company to attend him, told him, after removing his right eye, that he would be paid $11 per week for 100 weeks, that this was the amount allowed by law for the loss of one eye, and that in a short time he would be able to use his left eye as well as ever.Compensation was agreed upon on that basis and payments were made at intervals of two weeks.He was required to sign a receipt for each instalment when it was paid.When he received the last instalment his employer's bookkeeper told him to sign a paper, saying it was the same as those he had signed before.This paper was the release already referred to.Dr. Whiting testified that he told Zinken not to go to the expense of employing a lawyer because the law provided a maximum of $1,100 for the loss of an eye, and that the insurance company would pay him this amount voluntarily.There was no other testimony relating to the signing of the agreement for settlement or the release.It is apparent that both parties acted throughout on the assumption that Zinken was legally entitled to receive compensation only for the loss of his right eye.There was no pretence of compensation for the injury to the left eye.Under these circumstanceswe think the court was clearly right in holding that neither the agreement for a settlement nor the release barred Zinken from asserting his present claim.

3.The amount of compensation to which Zinken was entitled must be ascertained by referring to the following provisions of the Compensation Act.

Section 8209, G.S. 1913,...