The only complaint, or assignment of error, made by the plaintiff in his petition *Page 88 to this court for a writ of review, was that the record showed that the injury which he had suffered was an injury to his hand, and was not confined only to the finger. Hence he contended, in his petition to this court, that the judgment of the district court, allowing him compensation for 51 weeks, was not excessive, because it was less than the amount which the statute allowed for the loss of a hand, and which was allowed in Calhoon v. Meridian Lumber Co., 180 La. 343, 156 So. 412, for an injury causing the loss of the use of a hand.
The plaintiff did not, either in his petition for a rehearing in the Court of Appeal, or in his petition to this court for a writ of review, assign any other error, or make any other complaint, than that the Court of Appeal had erred in holding that the injury which he had suffered was confined to his finger, and did not extend to the whole hand.
In the opinion which has been prepared and submitted for our consideration, it is said: "It is alleged that the hand was crushed, but the testimony shows that only the first or index finger was injured."
On that statement of fact, if we allow the plaintiff compensation for more than 30 weeks for the loss of his index finger, we are allowing him not only more than the statute allows, but more than he is claiming for the loss of his index finger. He has never claimed compensation for more than 30 weeks on the statement or *Page 89 admission "that only the first or index finger was injured."
The attorneys for the plaintiff concede, as I understand, that he is entitled to compensation for only 30 weeks if we find "that only the first or index finger was injured."
It may be thought that the Legislature should allow compensation for more than 30 weeks for the loss of an index finger; but that is a matter for the Legislature to deal with, not the courts.
Section 8, subsec. 1 (d) (2), Act No. 20 of 1914, as amended by Act No. 242 of 1928, p. 357, declares that, for the loss of a first finger, commonly called the index finger, the compensation shall be 65 per cent. of the wages during 30 weeks. And, in a subsequent paragraph (18) subsec. 1 (d), in the same section of the statute, p. 358, it is said that, if compensation has been paid for a temporary total disability, or permanent total disability, or partial disability, under subsection 1 (a), 1 (b), or 1 (c), the amount so paid shall be deducted from the compensation allowed for the loss of a member, such as a thumb, finger, hand, etc., under subsection 1 (d). In another paragraph (14), subsec. 1 (d), of the same section, on the same page, it is said: "A permanent total loss of the use of a member [meaning a thumb, finger, toe, hand, arm, foot, or leg] is equivalent to the amputation of the member."
It would be impossible for the Legislature to say more plainly than the Legislature *Page 90 has said that for the loss of an index finger the compensation shall be paid for 30 weeks, no more and no less, no matter how long the loss of the index finger causes the injured employee to be "laid up." If the injured employee, in this case, had been "laid up" by reason of some additional injury, beyond the injury to the index finger, the case would be different; in fact, it would be such a case as the plaintiff contends it is. But, since the court has found "that only the first or index finger was injured," that ought to be the end of the case, according to the contention of the plaintiff himself.
If the opinion which has been submitted for our consideration is to become the law, hereafter, an employee who suffers the loss of a thumb, finger, toe, or other member, will have the option either to claim the compensation for the fixed period for the loss of such member, or to claim compensation for the period of disability, not to exceed 300 weeks, or 400 weeks, as the case may be. That would be squarely in conflict with paragraph 18 of subsection 1 (d) of section 8, p. 358, Act No. 242 of 1928, viz.:
"18. Where compensation has been paid under subdivision (a), (b) or (c) of this schedule, the amount of such payment shall be deducted from any compensation allowed under subdivision (d) or sub-section 2 of the Section."
Subsection 1 (a) provides for injury producing temporary total disability; subsection *Page 91 1 (b) provides for injury producing permanent total disability; subsection 1 (c) provides for injury producing partial disability, either temporary or permanent; and subsection 2 provides for injury causing death within one year after the accident. Paragraph 18, subsec. 1 (d), which I have quoted, declares that, if payments have been made to an injured employee under subdivision (a), or (b), or (c), for disability resulting from an injury to a thumb, finger, toe, hand, arm, foot, or leg, and if the injury results in the amputation or total loss of the use of the thumb, finger, toe, hand, arm, foot, or leg, and is to be compensated according to subdivision (d), the amount already paid under subdivision (a), (b), or (c) shall be deducted from the amount to be paid under subdivision (d). And paragraph 18, subsec. 1 (d), also provides that, if payments have been made to an injured employee under subdivision (a), (b), or (c), for an injury which results in death within one year, the amount of the payments already made shall be deducted from the payments to be made to the dependent or dependents of the deceased employee.
I favor adhering to the letter of the law, which is very plain in this case, notwithstanding it may seem to give inadequate compensation in this or any other particular instance. Therefore, I respectfully decline to subscribe to the opinion which has been submitted for our consideration. *Page 92