The opinion
Henderson, J.,
filed the following dissenting opinion.
The appellee sustained injuries resulting in the loss of the terminal phalanx of both thumbs. The Commission held that these injuries were not within the schedule of specific injuries set forth in section 36, subsection (3) of the Compensation Act, but fell within subsection (4), which sets up a different measure of recovery for “all other cases of disability, other than those specifically enumerated disabilities set forth in subsection (3)”. On this basis, the Commission’s award was more than twice as great as the sum of the scheduled amounts for the two specific injuries. This Court approved the Commission’s construction of the statute. I think such a construction is strained and untenable.
To my mind, the references in subsection (3) to a thumb, a finger, or a toe were intended to establish a unit price or rate and to limit recovery in the case of each member, to a fixed number of weeks, multiplied by a fixed percentage of the average weekly wage. Specific provision is made for the loss of a first phalanx, for more than one phalanx of a digit of a hand, and for multiple injuries to parts of a hand. Funk and Wagnall’s Dictionary (1949 ed.) notes the use of the indefinite article “a” in such phrases as “one dollar a bushel, with the distributive sense of each, and equivalent to per”. The Oxford English Dictionary notes its use as “denoting the proportion of one thing to another” as in “a penny a day”. It is unnecessary to invoke the rule of construction stated in Code (1957), Art. 1, sec. 8, that the singular includes the plural, and vice versa, although this section is clearly applicable to Art. 101, and this Court has so held. Wheeler v. Rhoten, 144 Md. 10, 12 . I think the distributive sense is implicit in the language employed.
That this was the legislative meaning is suggested by the fact that subsection (3) (b) contains the clause “For the total loss of hearing of one ear, seventy-five weeks; for the total loss of hearing of both ears, one hundred and seventy-five *151 weeks.” Evidently the legislature thought that the loss of hearing in both ears was worth more than the sum of the loss of hearing in each ear, and increased the award by twenty-five weeks. If the dual or multiple loss would have automatically brought the case under “other cases”, and permitted an award based on a percentage of total disability, there would have been no point in adopting the language quoted.
If it be thought harsh to impose a price tag upon human injuries, we must remember that the primary purpose of the Compensation Act, first adopted in 1914, was to substitute for the employer’s common-law liability for negligence, subject to his common-law defenses, an absolute but limited liability regardless of fault. Cox v. Sandler’s, Inc., 209 Md. 193, 198 . The scheduling of injuries, so far as practicable, was an essential part of the insurance scheme, designed to substitute certainty for uncertainty. It is not without significance that most of the cases arising under “other cases” have been back injuries, or injuries to the internal organs, where the schedule could not possibly apply. “Other cases” would seem to import cases not mentioned at all in the schedule of specific injuries.
I find no support for the Court’s conclusion in the prior decisions of this Court, but quite the contrary. In Congoleum Nairn v. Brown, 158 Md. 285 , the claimant lost several fingers of the right hand in an accident, and had lost several fingers of the left hand in a prior accident. It was not contended that “other cases” was applicable. The contentions were that the loss in the current accident should be calculated in terms of the loss of use of the right hand, rather than as the sum of the loss of the fingers, and that the loss of both hands amounted to total, rather than partial, disability, under the precise terms of the statute. In Lisowsky v. White, 177 Md. 377, the claimant had lost three fingers of one hand. The holding was that he could recover for the percentage of loss of use of the hand, rather than for the sum of the three fingers allowance. There was no suggestion that “other cases” would apply, and the Court held applicable another provision of the specified injury section. This holding was cited with approval in Paul v. Glidden Co., 184 Md. 114, 116 . Southern States Marketing *152 Co-op. v. Lippa, 193 Md. 385 , allowed recovery for the loss of use of a thumb, on the scheduled basis, and, in addition, separate compensation for disfigurement of the forearm, independent of the disability and not a part of it. The fact that all of these cases involved multiple injuries, but in no case was a claim based on “other cases”, seems to me to be quite significant. Indeed, it might be argued that these decisions would justify the application of stare decisis, as in Townsend v. Bethlehem-Fairfield Shipyard, 186 Md. 406 , 412 et seq.
When we turn to the cases in other states, Wammack v. Root Manufacturing Co., 336 P. 2d 441 (Kan.) (1959), is directly in point, and supports my view, as does the Minnesota case cited in the majority opinion. See also Herron v. Williams & Voris Lumber Co., 8 So. 2d 593 (Ala.) and Griffith v. Goforth, 195 S. W. 2d 33 (Tenn.). In the case last cited, the sum of the allowances for multiple injuries exceeded the limit for total incapacity. The Dauster case in Missouri involved the loss of both legs, a situation that is covered specifically in our Act. A reading of the New Jersey cases leaves me in some doubt as to the rule there adopted. Apparently the court approved a separate calculation for injuries to a leg and an arm in Flanagan v. Charles E. Green & Son, 2 A. 2d 180 (N. J. Eq.). Cf. Colarusso v. Bahto, 27 A. 2d 210 (N. J. L.). The Orlando case seems to have been distinguished in the Cooper case, where it was said that “separate and distinct classes of partial incapacity, though resulting from the same accident, are individually compensable.” Moreover, the New Jersey statute uses the phrase “lesser or other cases”, in its “other cases” section, and some stress was laid upon the word “lesser”, in connection with provisions covering the loss of one eye and the partial loss of use of the other.
The difficulty of relying too much upon cases in other states is illustrated by the holding in the Arizona case of Williams v. Industrial Commission of Arizona, 237 P. 2d 471 (Ariz.). There the claimant suffered a 45% loss of use of a foot, and 50% loss of use of an arm, and also a 20% loss of earning power. A majority of the court held he was not entitled to anything for the scheduled injuries, but only for the loss of earning power under the “odd lot” section. The dissenting *153 justice thought the claimant was entitled to both. But it was not suggested in either opinion that compensation could be awarded based upon the percentage of disability of the whole body. Similarly, in Porter v. Alfred S. Amer Co., 83 So. 852 (La.), the court increased an award for the scheduled loss of a foot, by adding the maximum allowance under “other cases”, because of the loss of a great toe on the other foot. But the holding was based upon language allowing reasonable compensation in proportion to the scheduled awards “where the usefulness of a member * * * is seriously permanently impaired.” Both of these statutes are quite different from ours.
If the construction of our statute is not settled by the previous Maryland decisions, I should prefer to follow those courts that decline to adopt a construction which does violence to the plain meaning of words in order to produce a “liberal” result. As was said in Townsend v. Bethlehem-Fairfield Shipyard, supra (p. 418), quoting Howard Contr. Co. v. Yeager, 184 Md. 503 , 511: “Judicial construction should only be resorted to when an ambiguity exists. Here, we find none. Whether the act should be amended, and some different provision made for a case such as the one before us, is not for our determination.”