Benson-Jackson-Mathers Post No. 5106 v. Donaldson

• Decision Date: 19 December 1957
• Docket Number: 1 Div. 718,BENSON-JACKSON-MATHERS
• Citation: 267 Ala. 60,99 So.2d 688
• Parties: POST NO. 5106, also known as Local Post V. F. W., Thomasville, Alabama v. Mrs. J. F. DONALDSON.
• Court: Alabama Supreme Court

Page 688

99 So.2d 688

267 Ala. 60

BENSON-JACKSON-MATHERS POST NO. 5106, also known as Local Post V. F. W., Thomasville, Alabama v. Mrs. J. F. DONALDSON.

1 Div. 718.

Supreme Court of Alabama.

Dec. 19, 1957.

Rehearing Denied Jan. 23, 1958.

Lange, Simpson, Robinson & Somerville, Birmingham, and Adams, Gillmore & Adams, Grove Hill, for appellant.

Paul S. Jones, Grove Hill, for appellee.

MERRILL, Justice.

Appellee filed suit under the Workmen's Compensation Law for the death of her husband as an employee of appellant, allegedly arising out of and in the course of his employment, and the circuit court made an award to appellee.

Motion to dismiss appeal.

Appellee moves that the appeal should be dismissed because the record shows there was no citation of appeal served on appellee or her attorney and there is no certificate of appeal in the record.

A review of dates is necessary to understand fully our holding on the motion. Appellee's husband died July 20, 1951; the complaint was filed November 23, 1951; testimony was taken on February 7th and 12th, 1957, and judgment was rendered on February 12, 1957. The appeal was duly taken and the record, minus the citation and certificate of appeal, was subsequently filed in this court. Appellant's brief was filed May 20, 1957, in which oral argument was requested. This request automatically, deferred submission of the cause until the call of the First Division in the week of November 11, 1957. Appellee's brief and her motion to dismiss were filed on June 17, 1957. A supplemental transcript was filed here on June 28, 1957, showing belated compliance with the deficiencies pointed out in the motion to dismiss. The cause was argued and submitted on November 12, 1957.

The attitude of this court on such matters is stated in Louisville Fire & Marine Ins. Co. v. St. Paul Fire & Marine Ins. Co., 252 Ala. 532, 41 So.2d 585, 586, as follows:

'The insistence of appellant is that the provisions of the statute (Tit. 7, § 801) as to the time of service before the appeal is returnable are mandatory and, therefore, the appeal should be dismissed. An examination of the authorities cited discloses that the courts have held that the service of a citation on the adverse party is essential to the jurisdiction of the appellate court and unless notice is so served the appellate court has no jurisdiction. To that extent the statute is mandatory, but as to the time specified unless some injury or inconvenience is shown, the court will not dismiss an appeal merely because the citation was served later than the time when the appeal is returnable. Maya Corp. v. Smith, 239 Ala. 470, 196 So. 125. It appears from the record that the citation on the appellee was served more than 10 days before the case was subject to call. We are, therefore, of opinion that the motion to dismiss the appeal is not well taken and it will be overruled.'

Here the citation, although belated (June 20, 1957), was given nearly five months before submission of the cause to this court and no injury or inconvenience is shown. It follows that the motion to dismiss the appeal must be overruled. See also, Mutual Sav. Life Ins. Co. v. Osborne, 242 Ala. 19, 7 So.2d 319; Faust v. Baker, 31 Ala.App. 596, 20 So.2d 727, certiorari denied 246 Ala. 378, 20 So.2d 731.

On the merits.

The pertinent part of the trial court's findings of fact reads:

'The Court finds that the late J. F. Donaldson was employed by the defendant on the 20th day of July, 1951, and several weeks prior thereto as a superintendent or supervisor of its works in the construction of a swimming pool in the Town of Thomasville, Clarke County, Alabama, and on said 20th day of July, 1951, the said J. F. Donaldson was an employee of the defendant in contemplation of the Workmen's Compensation Laws of the State; that on said date while in the actual discharge of his duties as such employee the said J. F. Donaldson suffered a heat stroke or heat exhaustion and as a result of such accident arising out of the course of his employment he died on his job of all of which the defendant had actual notice; that at the time of his death the average weekly earnings of the said J. F. Donaldson were Forty and No/100 Dollars, * * *'

This court has applied consistently these two principles in workmen's compensation cases, (1) that the act should be given a liberal construction to accomplish its beneficent purposes, and (2) that if there is any reasonable view of the evidence that will support the conclusion reached by the trial court, the finding and judgment will not be disturbed. Baggett Transportation Co. v. Holderfield, 260 Ala. 56, 68 So.2d 21, and cases therein cited. But we are forced to the conclusion that there is a total lack of evidence to support the finding that the employee died as a result of a heat stroke or heat exhaustion.

The undisputed evidence showed that the deceased, 75 years of age, had been employed by the Benson-Jackson-Mathers VFW Post at Thomasville to supervise the building of a swimming pool. His immediate superior was one Gillespie. The excavation was several feet deep. The weather was very hot and it was hotter in the excavation than it was at ground level. It was also cooler in the excavation in the morning than it was around noon. On July 19, the day before his death, deceased and other workmen went to a chicken dinner at noon. Between two and three o'clock, deceased went down into the excavation, became hot, felt ill, went to the shade, lay down for a few minutes and then resumed his work. He did no manual labor. At four o'clock that afternoon, deceased quit work, attended a watermelon cutting, ate one slice of watermelon, went home, made no mention of feeling ill, got up the next morning, ate breakfast as usual, went to the job where work started at seven A.M. and, while standing in the excavation a few minutes after seven A.M. talking to Gillespie, he collapsed and was dead within three minutes. A Dr. Henry was called and she pronounced deceased dead upon her arrival. Dr. Henry signed the death certificate and gave heart disease as the cause of death, particularizing that deceased suffered a coronary occlusion due to coronary arterio-sclerosis.

Dr. Henry testified by deposition, under a stipulation that objections to any of her testimony could be made at the trial. When her deposition was read at the trial, several of her statements that it was her opinion that deceased died of a heart ...