I am not prepared to hold that an accident which scrapes off one-tenth of the distal phalange as matter of law causes the loss of that phalange. With the statutes of many States before it when this act was passed, the Legislature has provided a certain compensation for the loss of a phalange, and not for the loss of part of a phalange. Notwithstanding the limitation in the statute under that part of subdivision 3 of section 15 which treats of the “ loss of use,” it seems to me a fair interpretation of the statute must give to a claimant compensation as for the loss of a distal phalange under a finding by the Commission that an injury thereto did cause the substantial loss of the use of that phalange. But there is no such finding in the case at bar, and we are called upon to decide whether the loss of a very small part of a phalange as matter of law constitutes the loss of that phalange, where there is other provision in the statute for compensation in cases not specifically provided for. I vote for a reversal of the determination and the remission of the case to the Commission for their determination of the question of fact as to whether in the case at bar the loss of a portion of the distal phalange has caused the substantial loss of the use of the whole thereof.
Kellogg, J. (dissenting):The statute fixes the compensation for particular losses and then provides that in all other cases in this class of disability *566the compensation shall be sixty-six and two-thirds percentum of the difference between the average weekly wages and the wage-earning capacity thereafter in the same employment, or otherwise,- payable during the continuance of such partial disability, etc. The question here, therefore, is not wdiether there is a compensation for the loss of one-third of the first phalange of the finger, hut relates to the particular compensation for the loss. If the first phalange is lost the compensation is fixed; if a lesser injury occurs to the finger the compensation depends upon the loss of earning power. The Legislature has fixed the compensation for the first phalange — not for any part of the first phalange. This means a substantial loss of that phalange. Here the loss is one-third. If the loss of one-third of the phalange comes within the schedule, perhaps the loss of one-sixth or one-tenth would also be within it. If that was the intention the Legislature could easily have said “ for the loss of the first phalange or any part thereof,” or “ any substantial part thereof.” I, therefore, think the claimant is entitled to compensation not for the loss of a phalange, as fixed by the schedule, but under the provision relating to “ other cases,” which entitles him tobe compensated according to the loss of earning power. (See § 15, subd. 3.)
Award of Workmen’s Compensation Commission confirmed, with costs.