3. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS-CONSTRUCTION.

The Workmen's Compensation Act is highly remedial and must be liberally construed.

(For other cases, see Master and Servant, Dec. Dig. § 348.)

4. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACTS-CONSTRUCTION—“BLIND."

One who by accident lost all vision except enough to enable him to recognize a form without distinguishing its outlines is "blind" within Workmen's Compensation Act.

(For other cases, see Master and Servant, Dec. Dig. § 385[11].) 5. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS-REVIEW OF AWARDS-POWERS OF COURT.

Under Workmen's Compensation Act, it is within the power of the district court, in action to modify award of the compensation commission, to determine as a matter of law that the award was not in accord with the findings, and, having done so, to make an award supported by the finding.

(For other cases, see Master and Servant, Dec. Dig. § 417[9].)

In Banc. Error to District Court, City and County of Denver; John I. Mullins, Judge.

Proceedings by Oscar L. Johnson to obtain workman's compensation, opposed by the Spratlen-Anderson Mercantile Company, employer, and the Standard Accident Insurance Company, insurer. There was an award for applicant, which was modified on rehearing, and applicant brought suit in the district court to set aside the award as modified and to reinstate the original award. To review judgment as prayed, the Industrial Commission, the employer, and the insurer bring error. Affirmed.

Leslie E. Hubbard, Atty. Gen., and John L. Schweigert, Asst. Atty. Gen., for plaintiff in error Industrial Commission.

Geo. P. Winters and Fillius, Fillius & Winters, all of Denver, for other plaintiffs in error.

Henry E. May, of Denver, for defendant in error.

TELLER, J. The defendant in error filed with the Industrial Commission a claim for compensation under chapter 179, Laws of 1915, for injury to one of his eyes while in the employ of plaintiff in error the Spratlen-Anderson Mercantile Company. On a hearing on the complaint, the commission found that Johnson had become totally blind in one eye by reason of said injury, and awarded him $7 per week for 104 weeks. Later, a rehearing was granted; the commission found that Johnson still had useful vision, and reduced the period during which compensation was to be paid to 9 5/11 weeks. It found also that claimant, having received $147, was owing the respondents the sum of $80.80. Thereupon the claimant filed suit in the district court of the city and county of Denver to set aside and modify the award on the second hearing, and to reinstate and confirm the award made on the first hearing. The court determined that the claimant's disability amounted to total blindness, and made an award on that basis. The case is now here for review under said statute.

[1] It is contended by the plaintiffs in error that the court's judgment is based upon new findings of fact, which, by the statute, it has no power to make. The several errors assigned are all based upon the proposition that, if the findings of the commission are supported by credible and substantial evidence, they must be accepted by the court; and that the court rejected findings which were thus supported.

That the rule of law is as counsel claim is not to be doubted, but that the trial court violated it is not established.

[2] The commission found that:

*

*.

The claimant, prior to the injury, "had suffered a reduced vision to that eye of 6/66 or 1/11 normal vision; that such diminution of vision due to the accident, is not more than 1/11 of a total loss of vision in said eye, and that claimant still has useful vision in said left eye since the accident; that he is entitled to such proportionate amount of compensation at $7 for 104 weeks, as the diminution of vision that he actually suffered, in this eye by reason of the accident, bears to total blindness, which the commission finds, as aforesaid to be 1/11." The award on that basis, for 9 5/11 weeks, is then made, as above stated. Counsel for plaintiffs in error treat this finding as being that Johnson lost 1/11 of what vision he had when injured, which would be 1/121 of normal vision. That however, is not supported by anything in the record. Nowhere in the evidence is 1/11 of anything mentioned except as a function of normal vision, and Dr. Strickler, testifying for the plaintiffs in error, stated that he could not say what proportion of the vision, which claimant had at the time of the accident, had been lost because of the injury; but that it was more than 50 per cent. He had already testified that, because of trachoma, claimant had lost 10/11 of normal vision before the accident. It clearly appears from the record that the commission was of the opinion that the amount of compensation is to be determined by ascertaining how much an injury contributes to a disability. That is, it is assumed that, if a claimant was partially disabled prior to the injury which forms the basis of his claim, and because of the injury he be found totally disabled, he is not to receive the compensation fixed for disability, because it was not all due to the injury. To illustrate: If claimant before the injury had only one-half of normal vision, and lost one-half of that, he would be entitled to one-quarter of the compensation allowed for total blindness. It is hardly necessary to say that such is not a correct construction of the law. Hills v. Oval Dish Co., 191 Mich. 411, 158 N. W. 314; Duprey v. Maryland Casualty Co., 219 Mass. 189, 106 N. E. 686; and Hartz v. Hartford Faience Co., 90 Conn. 539, 97 Atl. 1020. That being the understanding of the commission, when the claimant is given 1/11 of the compensation for total disability, it is clear,

that the commission based its award on the loss of 1/11 of normal vision.

The evidence showed that at the time of the hearing Johnson was unable to count the fingers on one's hand at any point before the left eye, while before the injury he could distinguish them at a distance of about ten feet, and could read. After the injury, he could distinguish an object between himself and the light, but could not determine what it was. He had what the medical witness called "dodging vision"; that is, he might be able to get out of the way of an approaching object, though he could not tell what it was. On these findings the commission determined that the claimant still had "useful vision," and was not entitled to the compensation allowed for total blindness of one eye. It does not appear how he could have any vision left, if, having only 1/11 of vision, he lost 1/11. Whether or not a condition found to exist amounts to total blindness, as used in this statute, is a question of law, in deciding which the spirit and purpose of the law must be considered.

[3, 4] The act is highly remedial, beneficient in purpose, and to be liberally construed. To say that a man who has only such vision as enables him to recognize a form before him, without being able to distinguish its outlines, is not blind within the meaning of this law, is to apply to it a strict rule of construction and defeat its evident purpose.

[5] The district court held that the award of the commission on the last hearing was "unlawful and unreasonablbe"; that the commission "acted without and in excess of its powers; and that the findings of fact *** do not support the award."

It was clearly within the powers of the court to determine, as a matter of law, that the award was not in accord with the findings, and, having done, and made an award which is supported by the findings, there is no reason for disturbing the judgment. It is, accordingly, affirmed.

Judgment affirmed.

APPELLATE COURT OF INDIANA.

DIVISION NO. 2.

MOBLEY
ย.

J. S. ROGERS CO. (No. 10205.)*

1. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT-FINDINGS OF INDUSTRIAL BOARD-CONSTRUCTION OF CONTRACTS.

Where the construction of an uncertain or ambiguous contract, upon which the relation of employer and employee depends, is one of mixed law and fact for the determination of the Industrial Board, its conclusion, in the presence of some evidence, is binding on appeal.

(For other cases, see Master and Servant, Dec. Dig. § 417[5].)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-EMPLOYEES AND SUBCONTRACTORS.

A contract between one who had charge of the general work of constructing a post office building and one who undertook to supply the stonework, which recited that the latter was a subcontractor, that he was to furnish his own tools, equipment, and laborers, and was to act wholly independent of the general contractor, except that the architect and general contractor were authorized to see that proper results were accomplished, sufficiently showed that the relation was that of subcontractor and contractor, and not employer and employee.

(For other cases, see Master and Servant, Dec. Dig. § 367.)

3. MASTER AND SERVANT-WORKMEN'S COMPENSATION -EMPLOYEES.

In a proceeding under the Workmen's Compensation Act, where it appeared that the person injured, at the time of the injury, was engaged in underdressing a stone according to marks made thereon by the superintendent of the original contractor, such fact did not show that he was an employee, instead of a subcontractor; the contract providing that work of such character was to be paid for at certain rate per hour, not as wages, but as pay for work covered by its terms.

(For other cases, see Masetr and Servant, Dec. Dig. § 405[2].)

Appeal from Industrial Board.

Proceeding by Jacob A. Mobley under the Workmen's Compensation Act, opposed by the J. S. Rogers Company. An award by one member of the Industrial Board was reversed by the full board, compensation denied, and the employee appeals. Affirmed.

Charles E. Henderson and James L. Murray, both of Indianapolis, for appellant.

L. K. Babcock, of Indianapolis, and Forkner & Forkner, of New Castle, for appellee.

IBACH, C. J. Appellant, while engaged in cutting stone for use in the goverment post office building then being constructed * Decision rendered, May 2 1918. 119 N. E. Rep. 477.

at New Castle, Ind., received an injury which resulted in the loss of the sight of one eye. He immediately made application for compensation under the Workmen's Compensation Act, and upon a hearing before one member of the Industrial Board was allowed compensation, but upon a review before the full board such award was reversed, and compensation denied.

The controlling question presented by the appeal to this court is: Was appellant an employee of appellee, or was he an independent or subcontractor? Unless he was an employee no compensation can be recovered under the statute. The evidence discloses that appellee was the general contractor for the construction of the government building referred to. Appellant was also a contractor, engaged in cutting and fitting stone in buildings of that nature, and had in his employ eight or more men who were under his control and supervision, and were paid by him a wage agreed upon between themselves. The agreement with appellee, under which appellant was working when injured, was in writing, and is set out in full in the briefs. We have extracted the portions pertinent to the question confronting us. It begins:

"The Builder's Uniform Subcontract. * * * Paragraph 1. This agreement, made the first day of May, 1916, between J. A. Mobley, * * parties of the first part, hereafter designated the subcontractor, and J. S. Rogers Co., * * * party of the second part, hereinafter designated the contractor." Then follows:

"The subcontractor *

agrees with the contractor as follows: Article 1. The subcontractor shall and will provide all labor and equipment for the erection of all limestone and granite used in the United States post office building in New Castle, Ind. *

*

Article 2 provides that the work shall be done under the direction of the architect and in conformity to certain specified drawings and specifications. Article 4 reads:

* * *

"The subcontractor shall provide * * * facilities for inspection by the contractor, and he shall remove after notice all materials condemned by the architect."

Article 5 provides for the furnishing of a sufficient number of skilled workmen by the subcontractor, and in case of default on his part in this regard the contractor has the right to employ such labor, and all damages occasioned by such default shall be charged to the subcontractor; and in the subsequent paragraph it is provided that the subcontractor shall complete his work so as not to delay the building. Article 7 makes provision for the payment of damages to the subcontractor by the contractor, and by the subcontractor to the contractor, if any is occasioned by delay in furnishing material on the part of the one party, and for delay in the prosecution of the work on the part of the other.