a right legally given by the legislature, unless by a fair construction of the act it can be said that such limitation was in furtherance of legislative intent. Such a limitation as is contended for by plaintiff in error can not be placed on this act, without reading into the act that which is not to be found either in its language or spirit. The right to compensation being a vested right of the beneficiary, the liability of the employer, on the vesting of that right, becomes fixed, and in the absence of an act of the legislature under which such right becomes divested, we are unable to see wherein the conduct of the beneficiary can be said to affect such, liability on the part of the employer.

WORKMEN'S COMPENSATION-DEPENDENTS-RIGHTS OF CHILD ON TERMINATION OF PAYMENTS TO WIDOW-Catlin v. William Pickett & Co., Supreme Court of Pennsylvania (Oct. 7, 1918), 105 Atlantic Reporter, page 503.-Charles Catlin was killed while in the employ of the defendant company and left surviving him a widow and a minor child. The law limits payments to the widow to 300 weeks, and a dispute arose as to whether the child could be given an award to commence after the expiration of payment of compensation to the widow. The commission made such an award, which the trial court refused to disturb. The supreme court affirmed the decision of the court below, rendering the following decision:

The question which is squarely raised on the record is this: If both a widow and a dependent minor child survive a workman killed in the course of his employment, under the workmen's compensation act can an award be made in favor of such dependent minor child, to begin after the expiration of the 300 weeks during which the widow is to receive compensation and to continue until the child reaches 16 years of age? We think that such an award is required under section 307 of said act.

That section provides for compensation to be paid to a decedent's children, including therein those "to whom he stood in loco parentis," "if there be no widow or widower entitled to compensation," and, subject to certain contingencies, not necessary to be considered here, further provides that payments to children shall continue until each reaches 16 years of age, and as to all others shall continue for 300 weeks. This section then proceeds:

"Should any dependent of a deceased employee die, or should the widow or widower remarry, or should the widower become capable of self-support, the right of such dependent, or of such widow or widower, to compensation under this section shall cease. If the compensation payable to any person under this section shall, for any cause, cease, the compensation to the remaining persons entitled thereunder shall thereafter be the same as would have been payable to them had they been the only persons entitled to compensation at the time of the death of the deceased."

The contention of the appellant is that the above-quoted words “for any cause" are to be limited to the causes stated in the preceding sentences. We do not so construe them. An additional word or words

would have to be interpolated in order to reach that conclusion, and we are not at liberty to add them unless it is clearly necessary so to do in order to effectuate the legislative intent. No such necessity exists here. On the contrary, we are convinced that the addition of limiting words would defeat that intent. Compensation to decedent's children until they reach 16 years of age is expressly given "if there be no widow or widower entitled to compensation." At the expiration of 300 weeks the compensation to the widow or widower" ceases," and because of that "cause" the compensation to children still under 16 years of age arises, with the same effect as if they had "been the only persons entitled to compensation at the time of the death of the deceased."

The judgment is affirmed.

WORKMEN'S COMPENSATION-DEPENDENTS-WIFE NOT LAWFULLY WEDDED-Temescal Rock Co. et al. v. Industrial Accident Commission et al., Supreme Court of California (June 24, 1919), 182 Pacific Reporter, page 447.-This is a proceeding by the Temescal Rock Co., employer, and others against the commission to have annulled an award granted under the workmen's compensation act to Dolores Lopez. One Silviano Lopez was killed by an accident arising out of and in the course of his employment with the Temescal Rock Co. Silviano and Dolores were both ignorant of the marriage laws, and when they had received a marriage license they both thought they had become man and wife and proceeded to live together as such. The commission allowed an award in favor of Dolores and the employer appealed on the ground that she was not the deceased employee's lawfully wedded wife. In affirming the award the court quoted the following subsection of section 14 of the workmen's compensation act of 1917 (Stats. 1917, p. 844):

"(b) In all other cases, questions of entire or partial dependents and the extent of their dependency shall be determined in accordance with the fact, as the fact may be at the time of the injury of the employee."

Continuing, the court rendered in part the following opinion:

Dolores Rodriguez does not come within the provisions of subdivision 1 of subsection (a). That part of the subsection includes only those who stand in the relation of husband and wife. Its language necessarily implies that the relation must be lawful, and therefore it excludes persons who, though not lawfully married, live together believing themselves to be husband and wife.

Subsection (b), however, clearly empowers the commission to inquire into the actual conditions of dependency and to ascertain whether or not the applicant was in fact dependent upon the decedent for support at the time of the injury, and finding such dependency complete or partial, thereupon to award compensation accordingly. Standing alone, this clause would authorize compensa

tion to any person, regardless of relationship or place of abode. But it is expressly qualified and limited in these particulars by the provisions of subsection (c). The latter attaches two conditions to the powers given by subsection (b). The first one is that the person claiming to be a dependent must be " in good faith a member of the family or household of such employee. The facts found bring Dolores Rodriguez within these conditions.. Lopez had a dwelling house and a household, consisting of himself and said Dolores. She was a member of that household. Both the findings and evidence show that she was living there and was such member in the utmost good faith, believing that she was the lawful wife of Lopez. The conditions are fully met by the facts.

WORKMEN'S COMPENSATION DISABILITY-IMPAIRED FUNCTIONDEGREE-Globe Indemnity Co. et al. v. Industrial Commission of Colorado et al., Supreme Court of Colorado (Jan. 5, 1920), 186 Pacific Reporter, page 522.-This is an action to review an award of the Industrial Commission of Colorado in favor of one Matt Kamby, a miner, who was injured while in the employ of the Colorado Mining & Development Co. The Globe Indemnity Co. is the employer's insurer under the workmen's compensation law. Kamby was injured by a falling timber which broke his left leg about 2 inches above the knee. The result of this injury was so to impair the function of the leg as to render Kamby incapable of ever again. engaging in the work of a miner, in which occupation he had been engaged for nearly all of 28 years. He was not a man of very high mentality. Three doctors testified as to the degree of Kamby's disability. Dr. Buchtel stated that Kamby would be disabled about 10 months, and thereafter the degree of disability would be 5 per cent. Dr. Stuver stated that "considering this man's occupation I believe that his permanent partial disability is not less than from 15 to 20 per cent." Dr. Hegner was of the opinion that Kamby would never be able to resume his occupation as a miner, and that his disability amounted to 70 per cent, which he believed might in time become greater, inasmuch as Kamby's usefulness was limited to his occupation as a miner. The award was granted in favor of Kamby on the basis of 70 per cent disability, and the employer and its insurance carrier appealed. The opinion of the court is in part as follows:

It appears that the rule contended for by plaintiffs in error for determining the "impairment of earning capacity of claimants," and which we will designate as "Rule No. 1," is. "The degree of disability is to be determined by the claimant's general impairment of earning capacity without respect to any particular kind of labor," to support which the following, among other authorities, are cited: Grammici e. Zinn, 219 N. Y. 322, 114 N. E. 397; Goscarino et al. v. C. & D., Inc., 220 N. Y. 323, 115 N. E. 710; Modra v. Little, 223 N. Y. 452, 119 N. E. 853. Whereas the rule contended for by defendants

in error, and which we will designate as "Rule No. 2," is, "The degree of disability is to be determined by the claimant's impairment of earning capacity as it relates to the kind of labor at which he was employed when injured," to support which the following, among other authorities, are cited: Duprey v. Md. Cas. Co., 219 Mass. 189, 106 N. E. 686; Gillen v. O. A. & G. Corp., 215 Mass. 96, 102 N. E. 346. We are of the opinion that the widest possible discretion is vested in the commission to determine whether, under a given set of circumstances and a particular state of the evidence, the first or second rule, or a combination of both, should be applied. Age, education, training, general physical and mental capacity, and adaptability may, and often should, be taken into consideration in arriving at a just conclusion as to the percentage of impairment of earning capacity.

The claimant in the instant case testified before the commission. They were thus enabled to make an application of these tests which is impossible to us. It will be observed that Dr. Hegner in his tes timony gave due weight to these considerations, and that Dr. Stuver did not claim to do more than fix a minimum per cent of impairment of earning capacity. There is sufficient in the record as it comes before us to demonstrate that the commission was justified in finding, and may have found that, as to claimant's ability to change his occupation or perform general physical labor, he was a much older man than his years would indicate; that he was a person of low mentality and scant adaptability; that a 70 per cent impairment of his earning capacity as a miner, which might have been nothing more than a 5 per cent impairment of the general earning capacity of many men, was in fact, by reason of his special limitations, a 70 per cent impairment of his general earning capacity. It thus appears that the alleged error in the instant case goes solely to a finding of fact made by the commission upon conflicting evidence. That this court will not disturb such a finding so made is too well settled to admit of further discussion.

The judgment is therefore affirmed.

WORKMEN'S COMPENSATION DISABILITY-INJURY TO FINGERSLOSS OF USE OF HAND-Updike Grain Co. v. Swanson, Supreme Court of Nebraska (Nov. 15, 1919), 174 Northwestern Reporter, page 862.— Albert Swanson was employed by the grain company as a carpenter and millwright. While engaged at his duties a heavy plank fell upon his hand, badly cutting and crushing it, so that he was totally disabled from working at his trade. Upon suit for compensation the court found that Swanson's third, fourth, and fifth fingers of his left hand were injured and awarded him compensation at the rate of $12 per week for 30 weeks, basing the award on the schedule relating to injuries to fingers. Two physicians testified that a fair percentage of loss of the use of the hand was 50 per cent. Swanson was dissatisfied with the award and appealed, claiming that he should have compensation for 50 per cent of the loss of the use of

his hand. The court reversed the award and advised the entering of an award in accordance with Swanson's contention. The opinion in part is as follows:

We think the court erred in holding that the injuries were confined to the fingers alone. The evidence discloses that in its present condition Swanson's hand presents a case "involving permanent partial loss of the use or function" of that member and comes clearly within the provisions of section 3662, Rev. Stat. 1913, as amended, Laws 1917, ch. 85, sec 7.

This section provides two-thirds of the wages for 150 weeks for loss of the hand, and proportionate amounts for partial loss or loss of use.

Respecting the present condition of Swanson's hand, and that is the time to which the inquiry should be directed, the evidence is clear and seems to show that under the act, on the ground of permanent partial loss," at the present time he is entitled to $12 a week for 75 weeks from the date of the injury.

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WORKMEN'S COMPENSATION-DISABILITY-"Loss" OF FINGERS Loss of Use-In re Merchant's case, Supreme Judicial Court of Maine (Apr. 8, 1919), 106 Atlantic Reporter, page 117.-Clarence N. Merchant was by occupation a painter, and while in the employ of the Maine & New Hampshire Granite Corporation he met with an accident which inflicted an injury upon him consisting of a laceration of the back of the left hand, and resulting in the loss of the use of two fingers but not in their amputation. Compensation was refused, and on appeal the decision was affirmed, the court saying in part:

It is agreed that the injury arose out of and in the course of the employment, and that the earning capacity of the claimant, who is a painter, has not been diminished by the accident.

The real and only issue is whether the claimant has "lost" these two fingers within the contemplation of R. S. ch. 50, sec. 16, and should receive the compensation specified therein, to wit:

*

*

"For the loss of the third finger, one-half the average weekly wages during eighteen weeks. For the loss of the fourth finger, one-half the average weekly wages during fifteen weeks"or whether he has suffered a partial disability and should be compensated as provided in section 15: the basis of compensation being the difference in his earning capacity before and after the accident.

The court, after reviewing the context of the statute, continued:

Throughout these sections when loss of use without removal or severance is contemplated, it is so stated in unambiguous words, and when "loss" is used it means loss in the ordinary acceptance of the term; that is, physical loss of a member.