The appeal by the indemnity company is from a judgment denying it the relief it sought, and awarding Mrs. Prater, for herself and as guardian of said minor, a recovery in accordance with the findings of said accident board.

W. R. Bishop, of Athens, and Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellant.

A. B. Watkins, of Athens, for appellees.

WILLSON, C. J. (after stating the facts as above). The assignments present only this question: Did the testimony warrant the finding that O L. Prater was an "employee" of the Athens Pottery Company within the meaning of the Workmen's Compensation Law, and engaged in service as such at the time he was killed? Appellant's contention if sustained, would require the question to be answered in the negative, for it insists it appeared from "the undisputed evidence that the deceased at the time of his death was acting as an independent contractor, and not as an employee."

In the law referred to (Acts 1917, p. 291 [Vernon's Ann. Civ. St. Supp. 1918, art. 5246-82]) the word "employee" as used therein is declared to Lean:

"Every person in the service of another under any contract of hire, * * * except one whose employment is not in the usual course of trade, business, profession, or occupation of his employer."

In deciding the question it will be assumed that the definition in the statute does not distinguish the "employee" to which it applies from a "servant" at common law, and therefore that the distinction made by that law between a "servant" and an "independent contractor" applies in the case. Litts v. Lumber Co. (N. Y.) 120 N. E. 730.

"The main test," says Mr. Bailey (1 Master & Servant, p. 170), "in determining whether one is an independent contractor or merely a servant, is whether the employer has the right to control the mode of doing the work. Ordinarily, if the employer retains control, the relation is that of master and servant rather than of contractee and contractor; but if the employee has the right of control he is generally an independent contractor."

"Only such an employee," said the court in Moore v. Kopplin, 135 S. W. 1033. “as is free to do the work he is employed to do in his own way without directions, orders, let, or hindrance from his employer, being responsible to him only for the result, is regarded as" an independent "contractor. In other words, he must be independent and free from the control of his employer."

It cannot be denied that much of the testimony tended to show that Prater, while hauling the clay, was free from control by the pottery company; but we think enough of it was to the contrary of that view to warrant the finding in question.

It will be noted that it appeared from testimony referred to, or set out, in the statement above, that Prater was hired by Foreman Hunt and was "supposed to do what Hunt wanted him to do or be discharged"; that the company had a right to tell him when to begin and when to quit hauling, and that, if Hunt "didn't want him to haul clay" he would "put him at something else"; that Hunt directed him where to get clay, and his wagon was loaded under "specific directions" from Hunt; that he unloaded the clay at places designated by the company; that, while he at times hired a man to drive his wagon instead of driving it himself, if the man he hired was incompetent or did not suit Hunt, Hunt "would send him back home"; and that he always asked Hunt if he "wanted to lay off."

When the testimony pointed out is considered with reference to

the test recognized by the authorities and stated by Mr. Bailey in the excerpt above, we think it must be held to have been sufficient to support a finding that Prater at the time in question was not an independent contractor, but was an employee of the pottery company. If that testimony was true, the pottery company had "the right to control the mode of doing the work" Prater was engaged in doing at the time he was killed. For cases with facts similar to the facts shown by the testimony above referred to in which similar conclusions were reached, see Van Simacys v. George R. Cook Co., 201 Mich. 540, 167 N. W. 925; Tuttle v. Lumber Co., 192 Mich. 385, 158 N. W. 875, Ann. Cas. 1918C, 664.

The judgment is affirmed.

SUPREME COURT OF WASHINGTON.

FOSTER

V.

INDUSTRIAL INSURANCE COMMISSION. (No. 15218.)*

1. MASTER AND

SERVANT-WORKMEN'S COMPENSATION

-AMOUNT OF COMPENSATION-REVIEW.

Award of $150 for permanent partial disability from the loss of a finger amputated at the distal joint, an injury not specified in Laws 1917, p. 81, § 1, subd. f, made according to schedule adopted by Industrial Accident Commission fixing compensation in proportion to compensation for the injuries specified in the statute, held_not_a_capricious and arbitrary award reviewable on appeal under Rem. Code 1915, § 6604-20, notwithstanding circumstances.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].) COMPENSATION

2. MASTER AND SERVANT-WORKMEN'S

-VALIDITY OF AWARD.

That award was made by only one of the industrial accident commissioners, instead of three, does not affect its validity, where it was made from schedule regularly adopted by the commission as a whole.

(For other cases, see Master and Servant, Dec. Dig. § 416.)

Department 2.

Appeal from Superior Court, King County; A. W. Frater, Judge. Proceedings for compensation under the Industrial Insurance Act by Mrs. Ethel Foster. From judgment of superior court setting aside award of Industrial Insurance Commission, the commission appeals. Reversed, and decision of commission affirmed.

W. V. Tanner and D. E. Twitchell, both of Olympia, for appellant. Walter S. Fulton, of Seattle, for respondent.

HOLCOMB, C. J. On the 26th day of April, 1918, respondent filed with the Industrial Insurance Commission her claim for compensation, *Decision rendered, June 12, 1919. 181 Pac. Rep. 912.

alleging that on the 22d day of April 1918, while engaged in an extra hazardous occupation in the city of Seattle, King county, Wash., she sustained an injury which resulted in the amputation of the middle finger of the left hand at the distal joint (that being the joint nearest the finger nail) and a laceration about an inch long over the dorsal surface of her ring finger of the left hand. Her injury was classified by the commission as a "permanent partial disability" of the affected area, who awarded her the sum of $48.45 for time lost and the further sum of $150 for the permanent partial disability. Dissatisfied with the amount of the award, respondent thereupon appealed from the ruling of the commission to the superior court for King county; her appeal being heard on September 18, 1918. At the close of respondent's testimony, the appellant moved to dismiss the appeal, which motion was denied, and, after hearing respondent's evidence, judgment was entered reversing the action of the commission, setting aside the award of the commission, and remanding the claim to the commission with directions to pay the claimant the sum of $400, together with her costs, and allowing an attorney's fee of $25. From the lower court's action the commission brings this appeal.

The question of fact as to the injury being undisputed, the cause presents several questions of law for our determination. The theory. of the appeal basically, is that the award of the commission is inadequate as compensation for the injury sustained. We can readily understand and sympathize with the vigorous protest of his honor the trial judge, for we also regard the award as pitifully inadequate; but, as we shall see, the correction of such insufficiency is neither with the courts nor with the commission, but must be remedied by the legislative function of the state alone. The Industrial Insurance Act is not one designed to award full compensation to each individual for all such damages as such individual would be entitled to in his peculiar circumstances, but is only a system of limited insurance whereby all industrial employees within the statute are paid definite but limited amounts for injuries without regard, as we have said, to the particular individual circumstances or needs of the injured employee. The injury alone is the subject which can be considered by the commission under the statute, and applies to and covers all classes of injuries alike.

* * *

* *

*

*

To consider, now, the first proposition presented for our determination: Section 6604-20, Rem. Code 1915, is very definite as to the matter of appeal from the award of the commission to the superior court: * workman "Any * or person feeling aggrieved at any decision of the department * may have the same reviewed by an appeal in so far as such decision rests upon questions of fact, * * * it being the intent that matters resting in the discretion of the department shall not be subject to review. In all court proceedings under or pursuant to this act the decision of the department shall be prima facie correct, and the burden of proof shall be upon the party attacking the same,"

* * *

To the limitation of appeal made in this statute, this court has suggested the qualification that an award might be reviewed by the courts were the commission charged with "capricious or arbitrary action in fixing the amount of their award." Sinnes v. Daggett, 80 Wash. 677, 142 Pac. 5. The respondent, feeling aggrieved at the inadequacy of the award, based her appeal there from upon the alleged "capricious and arbitrary action" of the commission manifested in two ways: First, in the method it has adopted of scheduling the amount of compensation to be awarded any given injury; and, second, upon the fact that in this particular instance the award was made by a single member of the commission instead of by all three members.

Has the superior court authority to declare that the system of awards

as practiced by the commission is capricious and arbitrary? For this is practically what the superior court in this case has done by substituting its award for that of the commission.

The question may be answered by a reference to the statute. Subdivision "f" of section 1 of chapter 28, Laws 1917, provides, in part:

66 * * *For the permanent partial disabilities here specifically described, the injured workman shall receive compensation as follows: "Loss of one leg amputated so near the hip that an artificial limb cannot be worn, $2,000.00.

"Loss of one leg at or above the knee so that an artificial limb can be worn $1,900.00.

*

"Loss of one leg below the knee, $1,300.00.

"Loss of the major arm at or above the elbow, $1,900.00.

"Loss of the major hand at wrist, $1,600.00.

"Compensation for any other permanent partial disability shall be in the proportion which the extent of such other disability shall bear to that permanent partial disability above specified which most closely resembles and approximates in degree of disability such other disability, but not in any case to exceed the sum of two thousand dollars ($2,000.00).”

[1] Under this statute, the claimant receives compensation for his injury irrespective of his earning ability and irrespective of any other thing except the loss which he has sustained. Appellant introduced in evidence a schedule it has adopted by means of which any given loss, for instance that of the finger, receives a certain definite award, determined by a system of "degree" classifications; injuries not specified by the statute being therein proportionately related to injuries specified by the statute. The respondent was awarded compensation according to this schedule.

It will be seen from the statute that the commission is limited to merely arranging a schedule within limitations carefully laid down. Not only is a total sum prescribed for a specified loss, but, where an injury is not one of those so specified in the statute, the commission is ordered to make an award proportionate to the award specified "which most closely resembles and approximates in degree of disability such other disability" (that is, a specified disability). Of course, under this statute the courts have authority to determine whether or not a schedule adopted by the commission for unspecified injuries is properly proportionate to the most closely related specified injury. That question is not raised in this action.

Obviously, a superior court cannot say that an award made from a schedule so defined and limited by law as is this and of so universal and uniform application is a capricious and arbitrary one; an inadequate one, as in this instance it is, but inadequacy is not synonymous with capriciousness.

The extent and nature of an injury is a matter, of course, for competent medical knowledge to determine. But, as we have indicated, there is no question as to the injury itself; the physician of respondent does not take issue with the physician of appellant who classified the injury.

[2] The question then remains: Was the fact that the award was made by one commissioner instead of three an irregularity sufficient to justify reversing the award? We, of course, agree with respondent's contention that, respecting plural boards and commissions, generally speaking, "the law contemplates that all will meet together so that the public will have the benefit of their combined judgment and discussion." Mechem on Public Officers, § 577. But it is almost to reduce that principle to an absurdity to claim that it applies to ministerial acts merely following an agreed and prescribed course of procedure. The commission by adopting the schedule of awards had, as to an injury

determined by competent medical knowledge to be within a given degree of the schedule, precluded any necessity for "the combined judgment and discussion" of the whole commission on each or any individual award. The fixing of the degree fixed the amount of the award. The one member of the commission in this case merely declared the amount of award allowed by the schedule for an injury such as was certified to the commission by the commission's physician, nor could the commission collectively have done more or less.

The respondent says:

"Had the Legislature intended that a fixed and arbitrary schedule should be applied in the awarding of compensation, it would have embodied it in the compensation act."

As we read the statute, this is precisely what the Legislature did design, namely, to insure that the commission would fix a definite and uniform schedule. We have seen how under subdivision f, § 1, c. 28, Laws 1917, the more common injuries resulting in permanent partial disabilities are specifically set forth and compensated for in exact sums; and for those not therein set forth a very definite principle of compensation is provided, as we have seen, on the proportionate rating of the unspecified injury to the specified injury which "most closely resembles and approximates it." In view of the myriad possibilities of human injuries, this is as definite and comprehensive as a statute could well be. The judgment of the lower court is reversed, and the decision of the commission affirmed.

Mount and Parker, JJ., concur.

Fullerton, J., concurs in the result.

SUPREME COURT OF APPEALS OF WEST VIRGINIA.

ROBERTS

υ.

UNITED FUEL GAS CO. (No. 3668.)*

3. COMMERCE-MASTER AND SERVANT-PIPE LINE-WORKMEN'S COMPENSATION ACT-WORK SUBJECT TO PROVISIONS OF ACT-LIABILITY-DEFENSES.

Excavation of a ditch by an interstate pipe line company, preparatory to laying a gas pipe, parallel to one of its existing main lines and to be connected therewith, for the purpose of increasing its carrying capacity, is no part of its commercial business, but is work clearly separable and distinguishable there from and in the performance thereof such company is subject, unconditionally, to the provisions of the Workmen's Compensation Act (Laws 1915, c. 9), and, if in default, is liable for injury to its servants employed in such work, caused by the negligence of a fellow servant, and is denied the right of the common-law defenses of fellow servant, assumption of risk, and contributory negligence. (For other cases, see Commerce, Dec. Dig. § 16; Master and Servant, Dec. Dig. § 356.)

*Decision rendered, May 27, 1919. 99 S. E. Rep. 549. Syllabus by the Court