The conclusion of fact in the judgment of the trial court is: "The Court finds as a proximate result of said piece of stone falling on the plaintiff he suffered a permanent partial disability to his leg amounting to 40 per cent of the use thereof and that he suffered a permanent partial disability tohis eyesight, and a permanent partial disability to hishearing, that his nervous system is permanently impaired andhis general health is permanently impaired. * * * The Court further finds that the plaintiff had a wife and four minor children at the time of the accident who were wholly dependent upon the plaintiff for support and have been dependent upon him for support continuously since that time. That the average weekly earnings of the said N.J. Phillips for several months immediately prior to the time of the accident was $35.00 per week and that because of his said injury and as a proximate result thereof he is permanently partially disabled to the extent that he is able to earn only $15.00 as his average weekly earnings." [Italics supplied.]
The contention of appellant is, to state it in the language of the brief: "That the evidence does not justify a finding that the workman suffered any permanent injury other than a 40% loss of the use of his leg and that accordingly he is entitled to compensation at the rate of 65% of his average weekly earnings for a period equivalent to 40% of 175 weeks, which are [is] 70 weeks. It is further our contention that in determining whether or not the workman is suffering from any disability other than loss of use of the leg, it must be considered that all pain, inconvenience, awkwardness, loss of confidence and all other disabilities which are incidental to and whichnaturally and ordinarily follow from the loss of a leg are included within the prescribed compensation for that specific disability and are not themselves to be considered as bases for additional compensation." [Italics supplied.]
The conclusion of fact does not show affirmatively that the enumerated injuries and disability indicated by italics were incidental and naturally resulting from the partial permanent loss of the use of the leg, but they show that said disabilities were in addition to such loss, and proximately resulted from the accident, and there was evidence supporting these conclusions, showing a permanent partial disability not otherwise provided for, and which is clearly within the general provision of subsection (c)6 of § 279, Tit. 26, Code of 1940, which is the same as the provision of the Act of 1935, p. 834, amending § 7551 of the Code of 1923. Said subsection provides:
"All other permanent partial.
"In all other cases of permanent partial disability not above enumerated, the compensation shall be fifty-five percent of the difference between the average weekly earnings of the workman at the time of the injury and the average weekly earnings he is able to earn in his partially disabled condition subject to the same maximum as stated in subsection (A)."
The percentage of the allowance is increased by the provision of the subsection (h), p. 837, Acts 1935, carried into the Code of 1940, Tit. 26, p. 510, § 279 (H): "Wherever in this section there is a provision for fifty-five percent, such percent shall be increased five percent for a dependent wife and five percent for each dependent *Page 540 child of the employee under the age of eighteen years at the time of the injury to the employee until such percent shall reach a maximum of sixty-five percent." See Code 1940, Tit. 26, p. 507, § 279, Subsection (c)6 and 7, Ib. p. 510, Subsection (H).
The circuit court followed the statute in the ascertainment of the amount payable.
The conclusion and finding of fact supports the award.
Application for rehearing overruled.