governed by the same rules and considerations, so far as applicable, as those which govern amputation, because "loss of the member" in this connection can mean only amputation. If it does not mean that, the clause is meaningless. There are only two ways in which a man can "lose" a leg -- he may have all or a part of it amputated, or he may suffer an injury which makes it useless. The latter condition is aptly and property described as the loss "of use of" the leg. There is no third alternative. If the "loss of the member" in Subsec. (18) does not mean amputation, the section would have to read "Compensation for permanent total loss of the use of a member shall be the same as for the loss of the use of the member" -- a nonsensical provision.
Now, Subsec. (15) of Sec. 908 (c) of the Act defines the compensation payable for two different kinds or degrees of amputation of a leg -- one above the knee and the other between the knee and ankle. The framers of the Act no doubt felt, quite reasonably, that the latter (as well as the former) might in popular language be described as the loss of a leg. As a matter of fact, it is not entirely incorrect to say that a man whose leg has been amputated between the knee and ankle has lost his leg. The purpose of Subsec. (15) seems to have been to make sure that amputation of that kind would not be compensated for as loss of a leg.
The two sections are plainly intended to be considered together. Naturally, provisions governing amputations can not be applied literally to disablements in which the disabled member remains attached; but to carry out the intent of the Act, a rule can be stated which may be applied by analogy. It is that the compensation for loss of use of a member shall be fixed, in conformity with Subsec. (15), by the point at which amputation could be made without increasing the disability.
The alternative construction contended for by the defendant would practically abolish any distinction between the permanent total loss of use of a foot and the permanent total loss of the use of a leg, in all cases where amputation was not resorted to. If a foot is so badly injured that it can not be used to stand or walk upon or for any other purpose, it is hard to imagine how the owner can make any use at all of the leg, although it might be perfectly sound and uninjured.
Neither construction is entirely without difficulty, and there are decisions in other jurisdictions both ways. On the whole, However, I think the construction adopted here is more reasonable, and more nearly in accord with the intent of Subsec. (18) of Sec. 908(c).
The motion to dismiss the bill is denied.
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