pottery company, and as its employee "was covered by said policy of insurance"; (3) that on said day. "while in the course of his employment, said Prater sustained injuries resulting in his death"; (4) that the "average weekly wage of the said O. L. Prater at the time and prior to sustaining said injuries was $14.92; (5) that Mrs. Talitha Prater, widow of said O. L. Prater, and Harry Prater. his minor son, as his "legal beneficiaries, were entitled to receive of and from the Western Indemnity Company a weekly compensation of $8.65 for the death of said O. L. Prater for a period of 360 weeks, beginning August 21, 1917." The ground upon which appellant sought to have the award set aside was that said O. L. Prater at the time he was injured was not an employee of said pottery company, and "was not covered by said policy of insurance as such employee or in any other capacity." It appeared from testimony before the court that the pottery company obtained clay it used in its business of making jugs, etc., from a pit about half a mile from its plant. The company employed four or five men with teams to haul the clay, paying them 35 cents per ton for the service. O. L. Prater was one of the men employed, and had been engaged in the work during about a year before August 21, 1917, when he was killed. He did not himself always drive the team he used, but hired a man to drive it during part of the time. He had nothing to do with mining or excavating the clay. It was mined by men employed by the pottery company for the purpose. Those men, or others employed by the pottery company, loaded or assisted Prater as they did other haulers, in loading the clay on his wagon. He unloaded same without assistance at places the company designated at its plant. It was while his wagon was being loaded at the pit that the clay caved in on him so injuring him as to cause him to die a short time thereafter. A man named Hunt was the pottery company's foreman at the pit, and as such hired Prater to haul clay. Hunt testified:

"Mr. Prater and the other hands employed like him loaded their wagons or had them loaded under my specific directions. They were liable to be discharged at any time for misconduct. They were supposed to do what I wanted them to do or be discharged. They were just to do what I said. All of those hands that worked at that place did what I said. I done the hiring of the men. * * * Sometimes Mr. Prater drove himself, and then again he would have a hand.

I done the hiring and run that part of the business right there. The extent of my business there was to direct them where to get the clay, tell them what to do, show them what to do. Mr. Prater had something else to do except to haul clay. He had to do what I told him to. If I didn't want him to haul clay, I would put him at something else. I had them scraping, had them plowing, and had them doing lots of things. I didn't have Mr. Prater doing other things, just hauling clay, the day he was killed. But all of them does scrape, plow, anything I say for them to do. I hired Mr. Prater to haul clay. He was to get 36 cents per ton for hauling clay. When I wanted him to do anything else, I paid him 30 cents an hour for it, paid him 30 cents an hour for his team and driver. * * * Mr. Prater didn't keep a driver all of the time, but he usually kept a driver. * * If the driver didn't suit, I would send him back home. * * I had nothing to do with the driver, except if an incompetent driver was sent I stopped him. If they sent a man that wouldn't do a day's work, we didn't have anything to do with him. As to its being a fact that Mr. Prater could work or lay off a day or two if he wanted to they always asked me if they wanted to lay off. If we wanted them to haul, they hauled, and if they don't want to haul, they stay at home. We have got to have it hauled. We wouldn't keep one in our employ that did insufficient work."

*

*

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.

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 mean:

* *

"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 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."

man

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 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 Simaeys 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 In dustrial 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: "Any * * * workman * * 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 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."

questions of fact,

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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:

* *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 closciy 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