I concur with the majority opinion in the reversal of this case because of the error of the commission and court in making no deduction from the award because of the previous loss of respondent's left eye. However, I do not agree with the opinion in the application of paragraph 17 1/2 of the Workmen's Compensation Act to the award for the loss of the right eye.
The question on which I differ is whether the award for the loss of the right eye is subject to deduction under the statute. The provision of the first clause of paragraph 17 1/2, which, as to the eye, reads: "In computing the compensation to be paid to an employee who, before the accident for which he claims compensation, had before that time sustained an injury resulting in a loss by amputation * * * of any member including hand * * * such loss of member * * * or the sight of an eye, *Page 45 shall be deducted from the award made for the subsequent injury * * *." Examining this portion of paragraph 17 1/2, it is perceived that the loss by amputation of a hand for instance is placed upon the same basis as the loss of the sight of an eye. Respondent had not suffered the loss of the sight of his right eye before the accident. He could see dimly without glasses, and well enough with them to operate a machine and to ride a motorcycle. He had an injured or diseased eye, but could see, and, therefore, did not come within the first portion of paragraph 17 1/2, which requires the loss of sight of an eye.
The second clause of paragraph 17 1/2 reads: "In computing compensation to be paid to an injured employee * * * for the total permanent loss of use or the permanent partial loss of use of any such member [eye] for which compensation has been paid, then such loss shall be taken into consideration and deducted from any award for the subsequent injury." This language is clear. To authorize any deduction from the award for the loss of use the previous injury must have been compensated. There has been no previous compensated injury to an eye, and hence, respondent does not come under the concluding portion of paragraph 17 1/2.
I conclude as follows: (1) There could be no diminution of the award for the loss of the right eye because he had not previously lost the sight thereof, as is required by statute; and (2) there could be no diminution of the award for the loss of use of the right eye because he had not suffered a previous injury for which he had been compensated.
The case should be reversed, but should not require diminution of the award for the loss of the right eye. *Page 46