162 Ky. 387, 172 S. W. 674, L. R. A. 1916A, 402, where, in response to the petition for a rehearing we delivered an extended opinion, stating our conclusions in the following language:

"Second. Any employee, coming within the provisions of the act may voluntarily agree to accept its provisions fixing and limiting his recovery in case of injury.

"Third. He may likewise voluntarily accept the provisions of the act, fixing the amount that shall be recovered in the event of his death, and said sum should be paid to his dependents if he leaves any, and, if not, to his personal representative."

Since the deceased had the power, by voluntary contract, to accept the provisions of the act, fixing the amount that should be recovered in the event of his death, and since the compensation for death provided by the act is in lieu of all other liability, it necessarily follows that the act controls, and that an action for damages will not lie. Hence the demurrer to the petition was properly sustained.

Judgment affirmed.

SUPREME JUDICIAL COURT OF MAINE

IN RE MERCHANT'S CASE.*

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-"LOSS" OF FINGERS.

A painter, who, through laceration of left hand, affecting extensor muscles controlling third and fourth fingers, practically lost use of fingers, though his earning capacity was not diminished, did not "lose" the fingers within the Workmen's Compensation Act, § 16, and was entitled to compensation only under section 15, basis being difference in earning capacities before and after accident; "loss" meaning physical loss of a member.

(For other cases, see Master and Servant, Dec. Dig. § 385[4].) (For other definitions, see Words and Phrases, First and Second Series, Loss.)

Appeal from Supreme Judcial Court, Franklin County, in Equity. Proceedings for compensation under the Workmen's Compensation Act by Clarence N. Merchant, employee, opposed by the Maine & New Hampshire Granite Corporation, employer. Compensation was denied and the employee appeals. Appeal dismissed.

Argued before Cornish, C. J., and Spear, Hanson, Philbrook, Wilson, and Deasy, JJ.

Sumner P. Mills, of Farmington, for appellant.

L. E. Henry, and C. P. Conners, of Bangor, for respondents.

CORNISH, C. J. This claimant under the Workmen's Compensation Act was an employee of the Maine & New Hampshire Granite Corporation, and met with an accident on November 21, 1917. The injury * Decision rendered, April 8, 1919. 106 Atl. Rep. 117.

consisted of a laceration of the back of the left hand, which affected the extensor muscles controlling the third and fourth fingers; the third finger being drawn toward the palm of the hand at an angle of about 45 degrees, and the fourth finger at an angle of about 90 degrees. These two fingers were thereby rendered practically useless.

It is agreed that the injury arose out of and in the course of the employment and that the earning capacity of the claimant, who is a painter, has not been diminished by the accident.

The real and only issue is whether the claimant has "lost" these two fingers within the contemplation of R. S. c. 50, § 16, and should receive the compensation specified therein, to wit:

"For the loss of the third finger, one-half the average weekly wages during eighteen weeks. For the loss of the fourth finger, * * * onehalf the average weekly wages during fifteen weeks"

-or whether he has suffered a partial disability and should be compensated as provided in section 15; the basis of compensation being the difference in his earning capacity before and after the accident.

The claimant contends for the former construction, and urges that the loss of the use of the third and fourth fingers must be construed as a loss of those fingers which entitle him to the specified amounts, without regard to the question whether his earning capacity has or has not been lessened.

The chairman of the Industrial Commission overruled this contention, and fixed the amount of damages under section 15. The correctness of this ruling is before this court in proper proceedings so far as the record shows, and we think it must be sustained.

[1] This question is one solely of statutory construction, and in construing this statute the words are to be interpreted in the sense in which they are commonly understood, "according to the common meaning of the language," R. S. c. 1, § 6, par. 1, taking into consideration the context and the subject-matter relative to which they are employed. Let us apply this familiar rule.

[2] Apart from the context of the statute, the "loss" of a member in the ordinary acceptation of the term implies a physical separation. To lose, in its primary sense, is "to part from or be separated from." Standard Dic. When in ordinary conversation it is said that one has lost his hand or his arm or his leg, nothing else is understood than an actual severance. It is true that for the sufferer the loss of the use of a member may be equivalent to the loss of the member itself so long as the disuse remains, but the two things are quite distinct, and if one has lost the use of a member it would be so described, and never as the loss of the member. "It may be that the disability would be as great as though the hand or foot was gone, but courts have no authority to extend the terms of the law beyond its plain provisions." Bigham v. Clubb, 42 Tex. Civ. App. 312, 95 S. W. 675, a case involving exemption from the payment of a poll tax because of the "loss" of a hand or foot.

Analyzing the statute under consideration, we find that the common meaning of the language is preserved. Section 14 of R. S. c. 50, covers compensation for total disability, that is, while the actual incapacity for work is total and prescribes the method of computation. There is added a petition as to what might be termed, presumptive total incapacity: "In the following cases it shall, for the purposes of this act, be conclusively presumed that the injury resulted in permanent total disability, to wit: The total and irrevocable loss of sight in both eyes, the loss of both feet at or above the ankle, the loss of both hands at or above the wrist, the loss of one hand and one foot, an injury to the spine resulting in permanent and complete paralysis of the legs or arms,"

etc.

This language is most significant as distinguishing sharply between loss and loss of use and as specifying the one or the other according as

the one or the other is intended. Thus the first clause does not say the loss of both eyes, which would mean removal, but the total and irrevocable loss of sight in both eyes, which is but another expression for total loss of use. The loss of the eye is one thing, the loss of sight, which means the loss of the use of the eye, is another. The second clause provides for the loss of both feet at or above the ankle. This admits of no other construction than an amputation at or above a certain point. So of the next clause, "the loss of one hand at or above the wrist"; while the last clause, "an injury to the spine resulting in permanent and complete paralysis of the legs or arms, * again recognizes the loss of use as distinguished from actual loss. Otherwise it might simply have read the loss of the legs or the arms.

*

* *

Section 15 provides for compensation in case of partial disability. In section 16, under which the plaintiff claims the word "loss" is used in the same sense as in section 14, and, as there, is equivalent to severance or amputation. It is entitled "schedule of accidents provided for," and again certain accidents are arbitrarily specified as entitling the injured party to a certain fixed sum during a certain fixed number of weeks, and are deemed to create a total disability for the period specified, whether they do in fact or not. They are injuries of such a nature that they are made to automatically carry with them certain fixed amounts for a stated period, viz, "For the loss of a thumb, one-half the * weekly wages during fifty weeks," and then follow the amounts for loss of the first finger, the second finger, the first toe and second toe, etc. It would be presumed that the word "loss" should have the same meaning in this section as in section 14, as they are parts of the same act, were there no internal and independent evidence to confirm it. But such evidence exists. For instance, not only are there provisions for loss of a thumb, of a finger and of a toe, but also for the loss of the first phalange of a thumb, of a finger or of a toe which shall be considered as a loss of one-half of such thumb, finger or toe, while the loss of more than one phalange shall be considered the loss of the entire thumb or finger or toe. This, as phrased, must contemplate severance.

Here, too, as in section 14, the idea of severance is apparent from the several clauses concerning the loss of an arm or any part above the wrist, for the loss of a leg or any part above the ankle, etc.

* * *

And in the last clause the distinction is again clearly made when it specifies that "for the loss of an eye, or the reduction of the sight of an eye, to one-tenth of the normal vision," one-half the average wages for 100 weeks shall be awarded. Were there no difference between loss and loss of use, there was no need of this careful phrasing

Throughout these sections when loss of use without removal or severance is contemplated, it is so stated in unambiguous words, and when "loss" is used it means loss in the ordinary acceptation of the term; that is, the physical loss of a member.

It may well be that in fixing an arbitrary compensation for the loss of these various parts the Legislature purposely refrained from extending these provisions to loss of use in all but the two excepted instances before referred to, for the reason that a use which might be deemed loss at the beginning might be regained in whole or in part long before the expiration of the arbitrarily fixed period, while the loss by severance is irreparable. Some uncertainly might exist with regard to the one, none in regard to the other.

Our attention has been called by the claimant to various cases where a loss of use has been deemed equivalent to loss. These cases, however, arose under certificates issued by fraternal beneficiary societies, or policies of insurance issued by health or accident associations and the plaintiff's rights were based upon the language of the particular contracts. Such contracts are always held to be construed in favor of the insured. No case has been cited to us, nor have we found any arising under

the Workmen's Compensation Act which holds that the "loss of use" should be given the full effect of "loss."

On the other hand, there is approved authority sustaining our conclusion under Workmen's Compensation Acts. Packer v. Olds Motor Works, 195 Mich. 497, 162 N. W. 80; Adomites v. Royal Furniture Co., 196 Mich. 498, 162 N. W. 965; Northwestern Fuel Co. v. Industrial Commission, 161 Wis. 450, 152 N. W. 856, Ann. Cas. 1918A, 533, and extended note, the introduction of which is as follows:

"The general rule deducible from the cases cited throughout this note is that unless a Workmen's Compensation Act provides that when a member is so impaired as to be permanently incapable of use compensation shall be awarded as for the 'loss' thereof, 'loss' of a member is construed to mean loss by severance only."

See, also, the definitions in Grammici v. Zinn, 219 N. Y. 322, 114 N. E. 397.

Our conclusion, therefore, is that the ruling of the chairman of the Industrial Commission was without error and the entry must be: Appeal dismissed.

COURT OF APPEALS OF MARYLAND.

GRANT ET al.

V.

KOTWALL. (No. 87.)*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -PARTIAL DEPENDENCY OF MOTHER.

Evidence that deceased employee paid mother $8 a week when working, which enabled her to run household, consisting of herself, her husband, the son, a daughter, and other children, more easily than after she was deprived of son's contribution, held legally sufficient to show that mother was partially dependent on son within Workmen's Compensation Act, though her husband was alive and not incapacitated.

(For other cases, see Master and Servant, Dec. Dig. § 405[5].)

Appeal from Superior Court of Baltimore City; John J. Dobler, Judge. Proceedings under the Workmen's Compensation Act for compensation for the death of August Kotwall, the employee, by Anna Kotwall, his dependent mother, against Charles E. Grant, the employer, and the Maryland Casualty Company, the insurer. From an order of the superior court of Baltimore city reversing an order of the State Industrial Accident Commission disallowing compensation, the employer and insurer appeal. Order affirmed.

Argued before Boyd, C. J., and Briscoe, Burke, Thomas, Pattison, Urner, and Constable, JJ.

A. J. Lily and Walter L. Clark, both of Baltimore, for appellants. * Decision rendered, Jan. 15, 1919. 105 Atl. Rep. 758.

Edw. J. Colgan, Jr., of Baltimore (Frank J. Pintner, of Baltimore, on the brief), for appellee.

BURKE, J. This a workmen's compensation case, and is before us upon an appeal by the employer and the insurer from an order of the superior court of Baltimore city reversing an order of the state Industrial Accident Commission, which disallowed compensation to the claimant, and remanding the cause to that commission.

Augustus Kotwall, the deceased, was an unmarried man, and his trade was that of a painter. On the 9th day of May, 1916, he was working as a painter for Charles W. Grant. He died on May 9, 1916, as a result of an injury sustained that day in the course of his employment. His father, John Kotwall, filed a claim for compensation upon the ground of dependency, and after a hearing before the commission the claim was refused. Subsequently, Anna Kotwall, the mother of the deceased, filed a claim for compensation. A hearing was had upon this application, and on the 3d day of November, 1916, the state Industrial Accident Commission passed an order disallowing the claim, upon the finding that "the claimant in this case was not wholly, nor partially, nor in any wise dependent upon the deceased, and she is therefore not entitled to compensation arising out of the death of Augustus Kotwall." From this order an appeal was taken, and the case was heard by the court, without a jury, upon the transcript of the proceedings and evidence taken before commission upon both applications.

At the hearing in the lower court the claimant offered one prayer, and the employer and insurer four. The court granted the claimant's prayer, and also granted the second, third, and fourth prayers of the employer and insurer, but refused their first.

The granted and refused prayers are here inserted:

Claimant's prayer: "The appellant prays the court that if it should find as a matter of fact that Annie Kotwall was partially dependent upon Augustus Kotwall for maintenance and support at the time of said Augustus Kotwall's death, then to rule as a matter of law that she is entitled to compensation therefor."

Employer's and insurer's prayer: "The employer and insurer pray the court to rule as a matter of law that there is no evidence in this case legally sufficient to show that claimant was dependent upon her deceased son, Augustus Kotwall, for support at the time of his death, May 9, 1916."

There is only one exception in the record, and that was taken to the granting of the claimant's prayer, and to the rejection of the employer's and insurer's prayer. It is not claimed that the mother was wholly dependent upon her deceased son, but it is insisted that she was partially dependent upon him.

There is no definition of dependency contained in the Workmen's Compensation Act of this state (Code Pub. Civ. Laws, art. 101), but it is provided that certain enumerated classes shall be presumed to be wholly dependent. The claimant is not one of that class. But it is provided by section 36, art. 101, Code, vol. 3, that:

"In all other cases, questions of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in death of such employee." The question to be decided is this: Is there evidence in the record legally sufficient to show that the claimant was partially dependent upon her deceased son within the meaning of the Workmen's Compensation Act? On some few points the evidence of the claimant and her husband is in sharp conflict, but on the legal question presented by the record it is not our province to determine the credibility of the evidence of these witnesses on controverted questions of fact. The following facts appear to be established by satisfactory evidence: The family of John Kotwall,