Beversed. and remanded June 12, 1917.
On the Merits.
(165 Pae. 576.)
In Banc. Statement by Mr. Justice Benson.
"While working as a carpenter upon a building in Portland plaintiff fell, striking upon his head in such a manner as to produce a partial facial paralysis. The employer and employee had both voluntarily accepted and were acting under the provisions of chapter 112, Laws 1913, commonly known as the “Workmen’s Compensation Act.” The plaintiff in pursuance thereof filed a claim for compensation for the injury above mentioned. After an informal investigation, the commission disallowed the claim upon the ground that the injury existed prior to the accident described. The claimant then appealed to the Circuit Court for Multnomah County where, after a hearing, a judgment was entered in favor of plaintiff from which the commission appeals.
Submitted on briefs under the proviso of Supreme Court Bule 18: 56 Or. 622 (117 Pac. xi).
Beversed and Remanded.
*510For appellant there was a brief presented by Mr. George M. Brown, Attorney General, and Mr. Joseph A. Benjamin, Third Assistant Attorney General.
For respondent there was a brief over the names of Mr. James U, McMenamin and Mr. Eugene Bland.
Mr. Justice Bensondelivered the opinion of the court.
2. The first point for consideration is the fact that the trial court did not give this appeal precedence over certain other cases already set for trial upon days certain, although such cases were not a part of the criminal docket. The act under consideration in Section 32 thereof provides that “such appeal shall have precedence over all other cases except criminal cases.” We cannot believe that the legislature intended that such appeals should be expedited to the extent of disarranging the orderly transaction of business in the Circuit Courts; or that cases already set for trial, with witnesses under subpoena, should be displaced for that purpose.
3. The next assignment of error challenges the power of the Circuit Court to consider other evidence than that submitted to the commission upon the original hearing. The compensation act as it existed at the time of the appeal contained among others the following provision:
“Upon the hearing of such an appeal the court in its discretion may submit to a jury any question of fact involved in such an appeal. The proceedings in every such appeal shall be informal and summary, but full opportunity to be heard shall be had before judgment is pronounced.”
*511Under a very similar statute the Court of Appeals of Maryland in Frazier v. Leas, 127 Md. 572 (96 Atl. 764), holds that the language of the act necessarily implies the taking of testimony by the appellate court and the doctrine there announced was reiterated in American Ice Co. v. Fitzhugh, 128 Md. 382 (97 Atl. 999). We conclude that there was no error in making the hearing practically a de novo trial.
We come then to a consideration of the action of the court in treating the appeal as an original action for damages and giving judgment accordingly. After making findings of fact, the court also filed conclusions of law among which are the following:
“That for the injuries resulting from the fall referred to in Findings VIII the plaintiff is entitled to damages in the full legal sense of that term to the amount of $366.33 to be paid out of the fund created under the provisions of said workmen’s compensation act.
“That in deciding what amount should be awarded to plaintiff, the court is not limited to compensation as provided by the statute creating the State Industrial Accident Commission, Laws 1913, chapter 112; but acts as a jury, and may take into consideration all the elements of damage that a jury might consider.
“That upon the hearing of the appeal herein the court was entitled to hear and consider such testimony only as would have been competent, relevant and material had the case been an action at law to recover damages for a personal injury.
‘ ‘ That in fixing the amount to be allowed to plaintiff for his injuries, the court is not limited by any of the schedules contained in said act, nor by any provision for monthly payments therein contained, nor by any of the methods provided by said act for computing compensation.
“That in making an allowance for surgical and medical services in such cases as this, the court is not *512limited to the surgical scale established by the defendant commission under section 23 of said workmen’s compensation act.”
These conclusions were followed by a judgment for the claimant in the sum of $366.33 and the additional sum of $75 as physician’s fees. We are entirely at a loss to determine the theory or authority upon which the court based such a view of the law. There is nothing in the statute itself to justify such a contention and our attention has not been called to any authority which might sustain it. Its effect would be to repeal the compensation act by the simple process of appeal. Under the provisions of the statute, an appeal from a decision of the commission does not give the appellate tribunal any new cause of action, or any different law upon which to base its judgment. The judgment is therefore clearly erroneous.
4. We have no record of the testimony taken in the Circuit Court and as to the facts of the case are limited to the findings. Upon the questions of injury and disability these findings are as follows:
“That the result of such striking of plaintiff’s head as set out in Findings VIII was partial facial paralysis, so that plaintiff for a long time could not control the muscles of the left side of his face, and the control of the left eye was diminished. Such partial paralysis had largely disappeared at the time of the trial and will probably entirely pass away within a few months. During the continuance of such partial paralysis the plaintiff regularly continued at work ás a carpenter on said building until it was completed, without diminution of wages. That plaintiff’s face was not at all paralyzed prior to said accident.
“That at the time of the accident plaintiff was working as a carpenter, but did not habitually earn his living solely at that trade; nor was he able to find carpenter work during the entire period of his partial *513facial paralysis; that during part of the period of plaintiff’s disablement he worked as an itinerant vendor and canvasser.
“That said condition of partial facial paralysis to a certain extent .but not entirely disabled plaintiff for the performance of the work of a carpenter for a period of several months; and entirely disabled him for a period of viz: one year as an itinerant vendor and canvasser.”
5. These findings are not sufficiently definite to enable us to enter a final judgment and the cause will therefore he remanded to the Circuit Court with directions to take such further proceedings, not inconsistent herewith, as will enable that court to fix claimant’s compensation in accordance with the provisions of the compensation act as it existed at the time of the hearing. Reversed and Remanded.