Agricola Furnace Co. v. Smith, 7 Div. 585.

• Decision Date: 28 March 1940
• Docket Number: 7 Div. 585.
• Citation: 195 So. 743,239 Ala. 488
• Parties: AGRICOLA FURNACE CO. v. SMITH.
• Court: Alabama Supreme Court

195 So. 743

239 Ala. 488

AGRICOLA FURNACE CO. v. SMITH.

7 Div. 585.

Supreme Court of Alabama

March 28, 1940

Rehearing Denied May 9, 1940.

Certiorari to Circuit Court, Etowah County; W. M. Rayburn, Judge.

Proceeding under Workmen's Compensation Act by T. C. Smith against Agricola Furnace Company, to recover compensation on account of injury sustained in line of employment. Judgment awarding compensation, and the employer brings certiorari. The employe cross-assigns error, and the employer moves to dismiss its cause and vacate the writ of certiorari.

Motion denied; reversed and remanded on cross-assignments of error.

London & Yancey and Fred G. Koenig, Sr., all of Birmingham, for appellant.

McCord & Miller and E. O. McCord, all of Gadsden for appellee and cross-appellant.

GARDNER Justice.

The Agricola Furnace Company petitioned for a writ of certiorari to review the judgment of the trial court in awarding compensation to T. C. Smith, its employee, who was injured while working in the line and scope of his employment. For convenience, we shall hereafter refer to petitioner as appellant and the employee as appellee.

Omitting intervening details, which may be considered immaterial to the decision here, the Agricola Furnace Company first submits on its motion to dismiss its cause and vacate the writ objected to by appellee upon the ground that it was prejudicial to his interest, as he has entered cross-assignments of error, which he desired to have considered. So far as concerns appeals, it is of course the generally accepted rule that the dismissal of an appeal by the appellant does not carry the case so far as it is affected by an assignment of cross-errors. 4 Corpus Juris Secundum, Appeal and Error, page 1824, § 1309; Feder v Field, 117 Ind. 386, 20 N.E. 129.

Appellant insists that rule is inapplicable here as the cause is brought for review by common-law writ of certiorari, and not by appeal, citing Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803.

Though the review here is limited, yet bill of exceptions is allowed for a limited purpose, and the authorities generally recognize a similarity of procedure between a review in such cases and causes on direct appeal. 71 Corpus Juris 1276, et seq; 11 Corpus Juris 193, 194. And in Ex parte Sloss-Sheffield Steel & Iron Co., 207 Ala. 219, 92 So. 458 460, it was observed that, as the statute provided the aggrieved party may "by certiorari * * appeal to the Supreme Court," it appeared "to hold the scales evenly between certiorari and appeal." That authority was the first establishing the rule for a bill of exceptions for a limited purpose, which has been consistently followed. Ex parte Woodward Iron Co., 211 Ala. 74, 99 So. 97; Ex parte DeBardeleben Coal Co., 212 Ala. 533, 103 So. 548; Morgan-Hill Paving Co. v. Stewart, 220 Ala. 480, 126 So. 116.

While we recognize that appeal and certiorari are not identical (Ex parte Woodward Iron Co., 211 Ala. 74, 99 So. 97), yet the statute itself by its language indicates a legislative intent that the method of review be considered in the nature of a limited appeal. Section 6091, Code of 1923, was placed in the Code in its present form after the adoption of the Workmen's Compensation Act, Code 1923, § 7534 et seq., and cross-assignments of error are permitted thereunder without appellant's consent. Nelson v. Boe, 226 Ala. 582, 148 So. 311.

True, the above section specifies only appeal and writ of error, but it gives definite recognition to the principle of cross assignments of error. The similarity existing between a writ of error and certiorari should be kept in mind in this connection. This is noted in the following from the text of 4 Corpus Juris Secundum, Appeal and Error, page 69, § 9: "While writ of error and certiorari are distinguishable and a writ of certiorari cannot ordinarily be made to serve the purposes of a writ of error, they are somewhat similar in a number of aspects, certiorari being regarded as in the nature of a writ of error when not ancillary to other process, and as a writ of error within the meaning of some statutes."

Clearly, no sound reason exists for permitting cross-errors in writs of error and denying them in an appeal "by certiorari" as in this class of cases; and we are persuaded that permitting such cross assignment carries out the legislative intent. And this is in harmony with the purpose of the workmen's compensation statute, which looks to a prompt disposition of controversies arising thereunder, and with as little formality as is consistent with its administration. The authorities indicate that in those states where cross-assignments of error are recognized, they are equally applicable, without specific reference, to reviews in compensation cases. Thus the appellate court is enabled to finally adjudicate upon the whole controversy, without multiplication of records, with consequent increase of cost.

The right of appellee to cross-assign error in cases of this character appears to have been recognized and not questioned in Alabama By-Products Co. v. Winters, 234 Ala. 566, 176 So. 183. We therefore conclude appellee had the right to cross-assign errors, and that the motion to dismiss the appeal and quash the writ is due to be denied. This conclusion brings us to a consideration of the merits of the cause.

There is no bill of exceptions, the finding of facts by the trial judge eliminating any necessity therefor as it is full and complete.

That plaintiff suffered an injury for which liability attached is clear enough. Plaintiff, on March 10, 1937, was standing on a scaffold and in a fall therefrom suffered a fracture of the heel bone of each foot. On August 23, 1937, plaintiff returned to work and has so continued as a welder for defendant, receiving the same compensation which he received prior to the injury.

Our statute (General Acts, Extra Session 1936, page 10, amending Code, § 7551,) provides: "For permanent partial disability the compensation shall be based upon the extent of such disability." Then follows a schedule, containing, among other things, a provision for fifty-five per cent. of the average weekly earnings for the loss of two feet, four hundred weeks.

Appellee did not suffer the loss of two feet, but a permanent injury to both, which the trial judge found was equal to a forty per cent. partial disability.

Our statute further provides: "In case of permanent disability, due to injury to a member resulting in less than total loss of use of such member, not otherwise compensated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member, which the extent of the injury to the member bears to its total loss."

Thus it appears our statute provides a definite schedule for the loss of a named member, and an equally definite schedule for a permanent disability to such member which is less than the total loss of such member or a total loss of its use.

The case therefore comes within the last-quoted clause of our statute, and the trial court correctly so determined. But in awarding compensation there was deducted the number of weeks in which the employee worked for the employer and earned his regular wages. In this there was error.

In 71 Corpus Juris 865 is the following: "Payments made to the employee as wages for his services after the injury cannot be deducted from the award." And the authorities cited in the note support the text. See, also, 119 A.L.R. 923-925; 1 Honnold on Workmen's Compensation law, section 155; 2 Schneider Workmen's Compensation Law, section 427; ...