Alabama By-Products Corporation v. Winters

• Citation: 234 Ala. 566,176 So. 183
• Decision Date: 24 June 1937
• Docket Number: 6 Div. 95
• Parties: ALABAMA BY-PRODUCTS CORPORATION v. WINTERS.
• Court: Supreme Court of Alabama

176 So. 183

234 Ala. 566

ALABAMA BY-PRODUCTS CORPORATION v. WINTERS.

6 Div. 95

Supreme Court of Alabama

June 24, 1937

Rehearing Denied Oct. 14, 1937

Certiorari to Circuit Court, Jefferson County; J.Q. Smith, Judge.

Proceeding under the Workmen's Compensation Act by H.L. Winters claimant, opposed by Alabama By-Products Corporation employer. From an order of the circuit court granting an award, the employer brings certiorari and the employee files cross-petition.

Affirmed in part and in part reversed and remanded with directions.

Cabaniss & Johnston and Jos. F. Johnston, all of Birmingham, for appellant.

Altman Abele & Hawkins, of Birmingham, for appellee.

KNIGHT Justice.

Petition of Alabama By-Products Corporation for certiorari to the circuit court of Jefferson county to review and revise the finding and judgment of that court in a proceeding by H.L Winters against the petitioner, under the Workmen's Compensation Act (Code 1923, § 7534 et seq., as amended).

It is claimed that the workman lost the sight of his right eye entirely, and a substantial percentage of the vision of his left eye by an accident arising out of and in the course of his employment, as a mine worker in one of the defendant's mines.

In brief of petitioner--Alabama By-Products Corporation--it is stated: "The only question involved here is as to the proper amount of compensation due, as it is admitted that plaintiff received an injury which arose out of and in the course of his employment by petitioner."

It is earnestly insisted by petitioner that the trial court erred in awarding compensation for the loss of plaintiff's right eye, for the reason that there is no evidence in the record which could justify a finding that the loss of that eye was the result of an accident arising out of and in the course of plaintiff's employment.

The court held that the plaintiff was entitled to compensation for the total loss of the right eye, and for the loss of approximately 23 I/3 per cent. of the vision of the left eye; that plaintiff should be paid $9.54 per week for 120 weeks, said $9.54 being 65 per cent. of the employee's weekly earnings.

The plaintiff was also dissatisfied with this finding and judgment, and has joined in the petition for writ of certiorari to the circuit court, and here insists for error that for an injury causing permanent partial disability, due to the loss of one eye and the impairment of the vision of the other, compensation should be allowed under that part of paragraph (c), section 7551 of the Code, as amended by the General Acts of 1935, p. 832, § 2, which reads:

"In all other cases of permanent partial disability not above enumerated, the compensation shall be fifty-five per cent. 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 disabled condition subject to the same maximum as stated in sub-section (a). Compensation shall continue during disability, not, however, beyond three hundred weeks."

We have repeatedly held, in cases arising under the Workmen's Compensation Act, and which came before us for review on certiorari, that we will not look to the bill of exceptions to find the weight of testimony as to any fact found by the trial court, but simply to see if there is any evidence, or reasonable inferences, to support facts found by the court, and if on any reasonable view of the evidence it will support conclusion reached by trial court, the finding and judgment will not be disturbed.

We have with care read all the evidence in this case and are of the opinion that there was evidence before the court sustaining the findings of fact of the trial judge, and, therefore, under our uniform ruling, we will not disturb his conclusion on the evidence. Whether the finding of the court is sustained by the weight of the evidence is not a question to be determined, since we are of the opinion that there was legal evidence before the court tending to support the decree. Ex parte Little Cahaba Coal Co., 213 Ala. 596, 105 So. 648; Ex parte Coleman, 211 Ala. 248, 100 So. 114; Ex parte Shaw, 210 Ala. 185, 97 So. 694. A discussion of the evidence would serve no useful purpose, and we refrain.

The decree or judgment of the trial court, in so far as it found that plaintiff sustained an injury, the result of an accident arising out of and in the course of his employment, and as a proximate result of which accident the plaintiff permanently lost the sight of his right eye, and permanently lost approximately 23 1/2 per cent. of the vision of his left eye must be and is affirmed.

The injury so sustained by the plaintiff, the court found, has resulted in his permanent partial disability, and the only remaining question to be here determined is, Did the court, in awarding compensation, based upon its finding of fact, proceed under the applicable rule furnished by the statute for awarding compensation to plaintiff?

It is evident that the court allowed compensation at the rate of $9.54 for 100 weeks for the eye totally lost, and 20 weeks for the partial loss of the vision of the other eye. In this there was error.

The statute, section 7551, as amended by the Legislature of 1935 (Acts 1935, pp. 832, 835, § 2), provides (e) "The total and permanent loss of the sight of both eyes *** shall constitute permanent total disability." For loss of one eye, compensation shall be paid for 100 weeks, at the rate fixed by statute, and based upon the average weekly earning of the employee.

It is true that the Legislature has fixed specific compensation, based upon average weekly earnings for certain specific injuries, and the amount so fixed is binding upon the courts. However, the Legislature has recognized that the injuries scheduled are not all that may befall an employee, and in recognition of this fact has made ample provision to take care of those injuries, which may produce permanent partial disability, and which are not specifically provided for.

The provision to which we allude reads:

"In all other cases of permanent partial disability not above enumerated [and plaintiff's case does not fall within any of the classes enumerated], the compensation shall be fifty-five per cent. 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 disabled condition subject to the same maximum as stated in sub-section (a). Compensation shall continue during disability, not, however, beyond three hundred weeks. [ Parenthesis ours.]"

The precise question here presented, which involves the total loss of one eye, and a partial loss of the other has not heretofore been before this court. Nor does the act in question make any specific provision for such a situation, and the question must be determined by a consideration of the whole act, which bears upon the question.

This statute was, as heretofore many times pointed out, taken from the Minnesota statute, and the general rule is, that where the Legislature enacts a provision taken from the statute of another state, where the act has secured a settled construction, it is presumed that such provision should be understood and applied in accordance with that construction. 36 Cyc. 1154-1156; Kennedy's Heirs v. Kennedy's Heirs, 2 Ala. 571. Such a construction "is at least persuasive that our Legislature intended to adopt it as construed in the jurisdiction from which it was borrowed."

This court has applied this rule several times with reference to provisions...