Bell v. Driskill

• Decision Date: 22 August 1968
• Docket Number: 3 Div. 185
• Parties: N. J. BELL, III, et al., d/b/a Whitley Hotel v. Charlie DRISKILL.
• Court: Alabama Supreme Court

Page 806

213 So.2d 806

282 Ala. 640

N. J. BELL, III, et al., d/b/a Whitley Hotel v. Charlie DRISKILL.

3 Div. 185.

Supreme Court of Alabama.

Aug. 22, 1968.

Rehearing Denied Sept. 19, 1968.

Rushton, Stakely & Johnston, Montgomery, for appellants.

Walter J. Knabe, of Capell, Howard, Knabe & Cobbs, Montgomery, for appellee.

SIMPSON, Justice.

This case was initially assigned to the late lamented Justice Goodwyn and, after his untimely death, was assigned to the writer.

The proceeding was commenced in the Circuit Court of Montgomery County on December 18, 1963, for the recovery of benefits under the Alabama Workmen's Compensation Law, Code 1940, Tit. 26, § 253 et seq., as amended by Charlie Driskill, appellee, for disability allegedly resulting from an accident which arose out of and in the course of his employment by N. J. Bell, et al., d/b/a The Whitley Hotel, defendants below and petitioners here. The trial court awarded compensation to the plaintiff and the case is here on certiorari brought by defendants.

The defendants admitted in their answer to the complaint that the parties were subject to the Workmen's Compensation Laws of Alabama, that the plaintiff suffered an injury from an accident arising out of and in the course of his employment with the defendants on the date complained of, that defendants received prompt and immediate notice thereof, and that plaintiff had a dependent wife at the time of the accident.

As to the accident causing the injury, the complaint alleged:

'* * * Plaintiff was moving automobiles in the parking lot or garage operated by the defendants. At said time and place and while on the way to move a car, and while on the premises of defendants, and while plaintiff was acting in the line and scope of his employment, plaintiff's ankle or foot turned and plaintiff's right leg and right knee were severely injured. He was injured to such an extent he is unable to hold any job for which he was or is now qualified; he is totally and permanently disabled. Said injury arose out of and in the course of plaintiff's said employment.'

Plaintiff alleged that at the time of the injury he was receiving a salary of $40.00 per week.

The defendants' answer alleges in part:

'2. Plaintiff has been paid Workmen's Compensation benefits for 78 3/4 weeks at the rate of $24.00 per week and medical expenses on his behalf have been paid up to the statutory limit of $1,200.00.

'3. Plaintiff's average weekly earnings within the meaning of the Workmen's Compensation Laws, at the time of the injury was $37.50. Plaintiff had a dependent wife but not dependent children at the time complained of.

'4. Plaintiff suffered temporary total disability for 78 3/4 weeks and permanent partial disability in the amount of 45 per cent of the right lower extremity. Since the weeks of temporary total disability exceed the number of weeks of compensation to which he is entitled for permanent partial disability, all benefits to which he is entitled have been paid. Defendants deny that plaintiff is entitled to any further compensation under the Workmen's Compensation Laws of the State of Alabama.

'5. Defendants deny that plaintiff has suffered any permanent injury except for the injury to his right lower extremity. Defendants deny that he is totally disabled and allege that he is presently working on a regular basis at regular employment earning regular wages at a permanent job.'

Evidence was taken orally before the trial court from which the court found, as a part of its findings of facts, that plaintiff had suffered a temporary total disability and a permanent partial disability, that his earning capacity has been decreased 90%, that the proximate results of the accident included more than an injury to his leg, and that compensation is payable under § 279(C) 6 of Tit. 26, Code 1940, as amended. It was found that plaintiff had been totally disabled for a period of 80 weeks and that he had already received compensation for 78 3/4 weeks. The court also found that plaintiff is entitled to compensation for a period of 300 weeks for permanent partial disability, less 80 weeks for temporary total disability, or a total of 220 weeks.

The trial court's decree was, in part, as follows:

'1. That plaintiff recover of the defendants compensation for a period of 80 weeks for temporary total disability at the rate of $24.00 per week. Payment for 78 3/4 weeks at $24.00 already made, shall be deducted, leaving an additional 1 1/4 weeks to be paid for at $24.00. In addition, defendants shall pay the sum of $21.60 per week for a period of 220 weeks. As a total of 164 weeks has elapsed as of February 8, 1965, since the accident, and as 80 weeks are accounted for, for total permanent disability, defendants shall immediately pay 84 weekly payments to plaintiff and shall pay him at the rate of $21.60 beginning February 15, 1965, for an additional period of 136 weeks, making a total of 300 weeks to be paid. Amounts now payable are as follows:

                1 1/4 weeks balance temporary
                total disability at $24.00     $  30.00
                84 weeks part permanent
                partial at $21.60               1814.40
                Total compensation to
                February 8, 1965               $1844.40"
                

The facts in this case show that, on or about December 14, 1960, plaintiff was employed by the Whitley Hotel in Montgomery. He had been employed at the hotel since 1932 in various capacities but since 1955 his work had been confined entirely to a garage operated by the hotel. His job consisted of parking cars and working as cashier to collect money from garage patrons. His salary was $150.00 per month plus occasional payments for overtime.

Plaintiff sustained the injury when he turned his foot or ankle while walking down the ramp in defendants' parking garage. Following his injury in December, 1960, plaintiff continued to work until August 25, 1961. Thereafter, he had two operations on his knee. He did not return to work at the garage until January 15, 1964, and then only to temporarily replace a man who had had a heart attack. At that time, he acted as cashier and Directed the parking of cars. He did not park the cars himself. When the man he replaced returned to work, plaintiff was without a job.

He then acquired a job with the State of Alabama as a mailman but quit after four days due to his inability to do the extensive walking the job required.

Through the efforts of one of the defendants, plaintiff was given a job at the First Baptist Church parking lot, acting as cashier and directing the parking of cars. His salary was $32.00 per week and this was the job he held at the time of the trial.

Plaintiff's injuries were as follows, quoting from the trial court's findings:

'The time of hearing was approximately four years or 208 weeks after the injury. At that time he was still suffering from the injury. When he worked his knee would swell, particularly at night, and would be so painful that he could not sleep. His wife would be up much of the night massaging his leg and keeping a hot pad on it. His nervous system was affected, as evidenced by his emotional breakdown during the hearing; he carried a bottle of aspirin tablets with him at all times, which sometimes relieved his pain and sometimes did not; he would suffer pain at times from periods extending from two hours to a day or two; the 15 pound brace absorbed plaintiff's energy, but the energy loss was of less importance than the pain he would suffer without the brace; when he was not working he kept his leg elevated to prevent swelling; he had lost his stability. He was still under the care of a specialist and would continue to be under such care for two months following the hearing; after which time he was expected to be discharged as having received maximum treatment.'

The evidence showed that plaintiff had a sixth-grade education. He had performed manual labor all his life and was not trained or qualified for any other type of work. His physician stated that plaintiff was unable to perform manual labor in his present condition, unless that could be accomplished by a sedentary occupation. The doctor stated that, in his opinion, the plaintiff has a permanent disability of 45% To the right leg.

The basic point of dispute in this case seems to be whether plaintiff's injury should be compensated under the provisions of § 279(C)1 of Tit. 26, or under the more remunerative (for plaintiff) provisions of § 279(C)6. Defendants argue in support of the application of the former, plaintiff for the latter.

Section 279(C)1 provides, in part:

'For permanent partial disability the compensation shall be based upon the extent of such disability. In cases included in the following schedule the compensation shall be fifty-five percent of the average weekly earnings, during the number of weeks set out in the following schedule:

* * *

* * *

'For the loss of a leg, one hundred and seventy-five weeks.'

Section 279(C)6 provides:

'In all other cases of permanent partial disability not above enumerated, 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 disabled condition subject to the same maximum weekly compensation as stated in section 289 of this title.'

Defendants' argument in support of reversal of the trial court's decree is divided into four parts. We will answer these arguments in the order in which presented by defendants' brief.

I.

Defendants contend it was error for the trial court to award compensation to plaintiff under § 279(C)6 of Tit. 26 rather than under § 279(C)1, since plaintiff's only injury was to his right knee.

We should first reiterate the long standing rule in this court that on certiorari to review judgments in compensation cases, this court does not look to the weight of the evidence as to any fact found by the trial court, but looks to see if there is any evidence to...