Alabama By-Products Co. v. Landgraff

• Decision Date: 05 March 1946
• Docket Number: 6 Div. 230.
• Citation: 27 So.2d 209,32 Ala.App. 343
• Parties: ALABAMA BY-PRODUCTS CO. v. LANDGRAFF.
• Court: Alabama Court of Appeals

27 So.2d 209

32 Ala.App. 343

ALABAMA BY-PRODUCTS CO. v. LANDGRAFF.

6 Div. 230.

Alabama Court of Appeals

March 5, 1946

Rehearing Denied May 14, 1946.

Cabaniss & Johnston, W. H. Trueman, and E T. Brown, Jr., all of Birmingham, for appellant.

Lipscomb & Lipscomb and W. E. Brobston, all of Bessemer, for appellee.

The finding and decree of the trial court is as follows:

'(1) It appears from the pleadings, evidence and admissions in this case that on November 11, 1943, the plaintiff, James H Landgraff, was an employee of the defendant, Alabama By-Products Company a corporation, and on said date was employed as a trip rider, for the defendant, within the jurisdiction of this Court, and was engaged in such employment, and while riding a trip of cars in defendant's mine, and in the course of his employment for the defendant, on said date, received an injury to his right foot, which said injury grew out of and was in the course of plaintiff's employment for the defendant.

'(2) The evidence and admissions show that the plaintiff and defendant were covered by the Workmen's Compensation Act of Alabama at the time of said injury, and that the plaintiff was and is a married man, with a dependant wife and five dependant children under the age of 16 years, and that his average weekly earnings at the time of said accident and resulting injury, as stipulated by the parties, was $30.67.

'(3) The evidence shows that as a result of such accident the first and second metatarsal bones of the plaintiff's right foot were fractured, and his right foot and leg were put in a cast at the time of the injury by physicians in the defendant's employ, and the defendant admits that it received knowledge of the injury within ninety (90) days. The defendant contended that plaintiff removed the cast contrary to the instructions of the defendant's physician, and that this prolonged plaintiff's disability, but the evidence fails to support such contention. The evidence further shows that the plaintiff was reported for work by the Company physician on December 14, 1943, at light employment and less pay, and continued in such employment until January 20, 1944, at which time he left such employment due to his inability to perform such work on account of the injury that he received to his foot; and was then employed by a Mr. Snead, a lumber contractor, as a truck driver, from January 23, 1944, to February 12, 1944, and left this employment because of his inability to do the heavy work required, and was then employed by Mr. Warren as a truck driver.

'(4) It is contended by the defendant that plaintiff is not entitled to compensation for a temporary total disability or a temporary partial disability because of his failure to furnish the affidavit required by Subsection (B)2, Section 279, Title 26, Code of Alabama, 1940. The Court finds that the injured employee was not receiving compensation at the time his employment terminated with the defendant, and further finds that his employment was terminated by his inability to continue his work on account of the injury he received to his foot by such accident; and that the affidavit was not required, and furthermore, the evidence shows that the plaintiff furnished an affidavit to the defendant about February 26, 1944, specifying the date that he left the employment of the defendant, and the wages he was receiving from Warren, and the nature of his employment. The evidence further shows that there was no demand upon the plaintiff by the defendant to furnish other affidavits under the provisions of this subsection.

'(5) The medical evidence shows that it requires a minimum of six weeks for a fracture such as plaintiff received to the second metatarsal bone to knit. The evidence further shows from X-rays and medical testimony that the second metatarsal bone had not knitted on September 11, 1944 and it is the Court's conclusion from the medical evidence that such bone had not knitted until October 23, 1944. The evidence further shows that where such bone has not knitted plaintiff would be unable to carry on his work, however the testimony shows that the plaintiff received employment of one kind and another but was unable to retain any one employment for a considerable length of time on account of the disability in his right foot; and in some employments he received considerably less wages than he was receiving at the time of his injury; and it is the conclusion of the Court that as a result of the plaintiff's injury from an accident arising out of and in the course of his employment for the defendant that he was totally and temporarily disabled from the date of said accident until December 14th 1943, and thereafter he was temporarily and partially disabled until October 23, 1944, and that such temporary partial disability was eighty percent (80%); that plaintiff was paid by defendant for such temporary total disability the sum of $64.27 from the date of said injury until December 14th 1943, excluding the first week of such disability; but that said defendant has not paid plaintiff any sum for his temporary partial disability, and that such temporary partial disability continued for a period of forty-five (45) weeks.

'(6) The Court finds that the plaintiff is entitled to compensation from the defendant for a temporary partial disability at the rate of sixty-five (65%) percent of the difference between the average weekly earnings of the plaintiff at the time of said injury, to-wit: $30.67, and the average weekly earnings he is able to earn in his partially disabled condition.

'(7) The Court further finds that although the plaintiff has actually earned wages at various employments since his injury this fact would not be conclusive upon his earning ability based upon medical evidence, including the X-ray picture showing that the second metatarsal bone had not knitted until October 23, 1944.

'The Court finds that plaintiff's ability to earn from December 14th, 1943, to October 23, 1944, has been decreased eighty per cent (80%) as a result of said injury, and in his partially disabled condition was physicially able to earn only twenty per cent (20%) of his former earnings, or $6.13 per week. That the difference between plaintiff's average weekly earnings of $30.67 and the amount he was able to earn in his partially disabled condition was $24.54, and 65% of this sum is $15.95 per week.

'It is therefore, ordered, that the defendant pay to plaintiff the sum of $15.95 for each week during the continuance of plaintiff's partially disabled condition, to-wit: forty-five (45) weeks; and all of said time having expired since plaintiff's disability was incurred, it is

'Ordered, that defendant pay the plaintiff the sum of Seven Hundred Seventeen Dollars and Seventy-five Cents ($717.75).

'It is further ordered that fifteen per cent (15%) of the first $300.00 of said sum plus ten per cent (10%) of the balance, or a total of to-wit: Eighty Six Dollars and Seventy-seven Cents ($86.77) shall be paid Lipscomb & Lipscomb out of said sum as Attorneys fee, which said fee is found by the court to be reasonable.

'It is further ordered that Defendant pay the costs in this case, including one-half (1/2) of the medical expenses for the examination ordered by the Court, and the Plaintiff pay one-half (1/2) of the expenses of such medical examination; for all of which let execution issue.'

CARR, Judge.

A certiorari in a workmen's compensation case brings this appeal here for review.

The Reporter will set out the findings and decree of the trial court.

Counsel agreed on certain essential facts, and by these stipulations the controverted issues have been considerably narrowed.

With the innovation of the Workmen's Compensation Act into our jurisprudence came new remedies and changed procedures. The act is sui generis and superseded and replaced many previously existing theories of personal injury damages arising out of common law and statutory actions. The terms and provisions of the Act attempt to make more certain the relief to the employee who comes under its influence. Pow v. Southern Const. Co., 235 Ala. 580, 180 So. 288; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So 530; Pound v. Gaulding, 237 Ala. 387, 187 So. 468; 71 C.J., Sec. 9, p. 234.

The appellate courts of our State have often held that the Act must be liberally construed and all reasonable doubts must be resolved in favor of the employee. Mobile Liners v. McConnell, 220 Ala. 562, 126 So. 626; Boris Const. Co. v. Haywood, 214 Ala. 162, 106 So. 799.

It is well established and generally understood that the primary court's findings of facts in workmen compensation cases are conclusive and will not be disturbed by the appellate courts on review if there is any legal evidence to support the findings. Sloss-Sheffield Steel & Iron Co. v. Keefe, 217 Ala. 409, 116 So. 424; Republic Iron & Steel Co. v. Reed, 223 Ala. 617, 137 So. 673; Ford v. Crystal Laundry Co., 238 Ala. 187, 189 So. 730.

Insistence is made in the instant case that the court below erred in awarding compensation to plaintiff for disability because of a failure to comply with the provisions of Sec. 279(B) 2, Title 26, Code 1940.

The finding of facts set out in paragraph four of the lower court's decree is supported by the evidence. It remains for us to determine whether or not, under these facts, the plaintiff was obligated to furnish the affidavits which are required by said section.

Section 279(B) 1, Title 26, Code 1940, provides: 'In all cases of temporary partial disability the compensation shall be fifty-five percent of the difference between the average weekly earnings of the workman at the time of the injury and the average weekly earnings he is able to earn in his partially...