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a power press at the plant of his employer, a manufacturer of brass goods in the city of New York, had his thumb accidentally caught in the press and the end of it crushed. The State Industrial Commission made an award of compensation for the loss of the entire thumb. The appellants claim that the award should have been limited to an award for the loss of one-half the thumb.

There is practically no dispute as to the nature and extent of the injury which the claimant sustained. The first or distal phalanx was amputated. The injury to the second or proximal phalanx consisted of the removal of a small triangular piece of bone about three-eighths of an inch in length on its longest side, running to a point on the inside of the thumb, which had for its base a portion of the apex of the phalanx. An X-ray photograph shows the fleshy covering of the whole proximal phalanx of the injured thumb to be practically the same as that of the uninjured thumb. The report of a surgeon of the medical division of the Commission mentions the injury to the proximal phalanx as being no more than the involvement of a very small portion of the bone.

[1] The Commission has found that the injuries resulted in the amputation and loss of the distal phalanx, together with the oblique loss of the tip of the proximal phalanx of the left thumb, "considered as the loss of the entire left thumb." The evidence, which includes an X-ray photograph showing distinctly the nature and extent of the injury to the proximal phalanx, being undisputed, the finding of the Commission that the injuries should be considered as the loss of the entire thumb is a legal conclusion, subject to review by this court.

[2] Section 15, subd. 3. of the Workmen's Compensation Law (Consol. Laws, c. 67), in force at the time of the injury, provided:

"The loss of the first phalange of the thumb or finger shall be considered to be equal to the loss of one-half of such thumb or finger, and compensation shall be one-half of the amount above specified. The loss of more than one phalange shall be considered as the loss of the entire thumb or finger."

Whether the award should have been for the loss of the entire thumb, or for the loss of only one-half the thumb, depends very much upon the construction which should be given the last sentence above quoted. If the sentence means that the loss, however slight, of more than one phalanx of a thumb or finger, shall entitle a claimant to an award of compensation for the loss of the entire thumb or finger, then the taking off of the most minute sliver of the second phalanx, without regard to whether it in fact disabled the second phalanx, would entitle the claimant to an award for the loss of an entire finger. However, if the sentence should be construed as requiring the loss of more phalanxes than one in order to constitute the loss of an entire finger, then the loss of a portion of the second phalanx must be so substantial

as to entitle the claimant to an award, if it were the only phalanx injured. Apparently it was not the intention of the Legislature that a different rule should be applied to an injury to the proximal phalanx of a thumb or finger from that applicable to the distal phalanx, and that an injury which should be treated as inconsequential when occurring to one phalanx should be treated as creating disability and compensative when occurring to another. The statute makes no such distinction. It treats both alike. In either case the disability to the phalanx, to be compensative, must be, as was said in the frequently quoted portion of the opinion in Grammici v. Zinn, 219 N. Y. 322, 114 N. E. 397:

"That a hand, or the use of it, was not lost, provided it could fulfill, in a degree fair and worth considering, in any employment in which the claimant was physically and mentally fitted or adaptive, its normal and natural functions."

In the Matter of Petrie, 215 N. Y. 335, 109 N. E. 549, it was held that the provisions of the statute for compensation for the loss of a certain part of a finger become operative and applicable when it appears that substantially all of the portion of the finger so designated has been lost.

It is apparent from an inspection of the X-ray picture that the slight chipping off of the second phalanx has not lessened the use of the phalanx. The Commission has made no finding that the injury has so done, or that the loss suffered by the claimant is of a substantial portion of the phalanx. The case is practically identical as to the seriousness of the injury, with the following cases relating to injuries to the distal phalanx: Mockler v. Hawes, 173 App. Div. 333, 158 N. Y. Supp. 759; Geiger v. Gotham Can Co., 177 App. Div. 29, 163 N. Y. Supp. 678, and Thompson v. Sherwood Shoe Co., 178 App. Div. 319, 164 N. Y. Supp. 869, in each of which we held that the injury did not constitute the loss of a phalanx.

The award should be reversed, and the claim remitted to the Commission. All concur.

SUPREME COURT OF NEW YORK.
APPELLATE DIVISION, THIRd Department,

CASTERLINE

V.

GILLEN.

IN RE FIDELITY & CASUALTY CO. OF NEW YORK.*

1. WORKMEN'S COMPENSATION-"EMPLOYER”-“EMPLOYEE.” Under Workmen's Compensation Act (Consol. Laws, c. 67) § 3, subds. 3, 4, defining "employee" and "employer," employee in coal and wood yard, which then was not classed as hazardous employment, is not, where injured spliting wood, entitled to compensation on the theory that it was in connection with operation of a vehicle, because wood would ultimately be hauled by him in such vehicle.

2. WORKMEN'S COMPENSATION-INJURIES.

As section 2, group 41. of the Workmen's Compensation Law, contemplates the operation of vehicles as the principal business or occupation of the employer, compensation in favor of an employee, injured while splitting wood, cannot be allowed on the ground that he was incidentally loading a wagon while spliting wood.

John M. Kellogg, P. J., dissenting.

Appeal from State Industrial Commission.

In the matter of the claim of Edward Casterline for compensation under the Workmen's Compensation Law for personal injuries against James P. Gillen, employer, and the Fidelity & Casualty Company of New York, insurance carrier. From an award of the State Industrial Commission in favor of claimant, the employer and insurance carrier appeal. Award reversed.

Argued before JOHN M. KELLOGG, P. J., and LYON, WOODWARD, COCHRANE, and HENRY T. KELLÖGG, JJ.

Nadal, Jones & Mowton, of New York City (Edward P. Mowton, of New York City, of counsel), for appellants.

Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City, counsel to State Industrial Commission (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

WOODWARD, J. [1] The facts in this case are that the employer was engaged in conducting a wood and coal yard at Port Jervis, at a time when the statute did not include such business as a hazardous employment. The employé appears to have been a general laborer, who drove team in delivering coal and wood whenever the occasion demanded, and who filled in his time when not thus employed in splitting or chopping wood, and doing such other work as was required around the yard, including the * Decision rendered, Mar. 6, 1918. 169 N. Y. Supp. 345.

unloading of coal from cars. The claimant was injured while engaged in splitting or chopping wood, a chip or splinter flying and hitting him in the eye, and for this injury the State Industrial Commission has awarded him compensation. The insurance carrier appeals.

The employer's general business was not within the Workmen's Compensation Law at the time of this accident; it was not rated as a hazardous employment. It seems to have been held in some of the earlier cases that the operation of a vehicle, incident to an otherwise non-hazardous business, was within the statute, and the attempt is here made to extend the principle, so as to embrace the case of an employé who is injured while splitting or chopping wood which he or some one else may at some future time be called upon to load in a wagon and deliver to a customer. "It were infinite for the law to consider the cause of causes, and their impulsations, one of another," says Lord Bacon (Bacon's Maxims, reg. 1): "therefore it contenteth itself with the immediate cause, and judgeth of acts by that, without looking to any further degree." And it would seem that this is a proper place for the application of that principle. An incident to an incident of a non-hazardous employment is too remote for the foundation of an award under the Workmen's Compensation Law. Under the statute, as it existed at the time of this accident, an employer was defined as "a person * * employing workmen in hazardous employments" (section 3, subd. 3), and an employé as "a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same upon the premises or at the plant, or in the course of his employment away from the plant" (section 3, subd. 4), and clearly the employer was not conducting a statutory hazardous business, and the driving or operation of vehicles was only incidental to his business, while the employé, at the time of the accident, was not engaged in a hazardous employment, as that term was defined in the

statute.

[2] There was some effort made to make it appear that the claimant was incidentally engaged in loading the wood, as he split it, into a wagon; but the claimant himself distinctly said that he could not be doing two things at a time, and that he was engaged in splitting wood. But section 2, group 41, does not contemplate an injury resulting from the incidental loading of a wagon under the circumstances of this case. Group 41 contemplates the operation of vehicles as the principal business or occupation of the employer for pecuniary gain.

We are clearly of the opinion that under the circumstances of this case there was no liability, and that the award may not be sustained.

The award appealed from should be reversed, and claim dismissed. All concur, except JOHN M. KELLOGG, P. J., who dissents.

SUPREME COURT OF RHODE ISLAND.

GIANNOTTI

V.

GIUSTI BROS. (No. 400.)*

WORKMEN'S COMPENSATION— LIMITATIONS ON TIME TO
PETITION FOR COMPENSATION.

In view of Workmen's Compensation Act, § 1, providing that, if the employer and employee, or his dependents when death has resulted reach an agreement in regard to compensation a memorandum thereof signed by the parties shall be filed in the office of the clerk of the superior court, and be approved by the justice if the terms conform to the act, etc., where the sister of a deceased employee effectd an agreement in writing for compensation with the employers which was filed in court and approved by the justice, the agreement being the individual and personal agreement of the parties thereto, the petition of decedent's father for compensation for the death, filed more than two years after such death, was barred by section 18, prescribing a two-year period of limitations for filing agreement or petition for compensation, whether regarded as an independent proceeding (which it was in fact), or as an amendment to the written agreement between sister and employers.

Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Petition under the Workmen's Compensation Act by Santi Giannotti for compensation for death of Ezio Giannotti, the employee, opposed by Giusti Bros., the employers. Compensation was awarded by the superior court, and from the final decree, the employers appeal. Decree reversed, and cause remanded, with direction to enter decree dismissing petition.

Albert B. West, of Providence, for appellants.

Sullivan & Sullivan and John J. Sullivan, all of Providence, for appellee.

STEARNS, J. This is an appeal by the respondents from a final decree of the superior court granting the petition for compensation of Santi Giannotti, the father of Ezio Giannotti, deceased.

On July 16, 1914, Ezio Giannotti, an employé of the respondents, was injured in the course of his employment, and as a result of such injury died July 24, 1914. An agreement in writing for compensation under the Workmen's Compensation Act was made between Francesca Giannotti, a sister of the said Ezio, and the respondents on the 21st day of November, 1914, which was filed in court and approved by a justice of the superior court on December 11, 1914.

By the terms of this agreement it was mutually agreed that the said Ezio left no one wholly dependent upon his earnings, and that Francesca Giannotti was partly dependent thereon; that the * Decision rendered, Feb. 20, 1918. 102 Atl. Rep. 887.

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