Central Iron & Coal Co. v. Coker

• Decision Date: 28 January 1928
• Docket Number: 6 Div. 976
• Citation: 217 Ala. 472,116 So. 794
• Court: Alabama Supreme Court
• Parties: CENTRAL IRON & COAL CO. v. COKER et al.

116 So. 794

217 Ala. 472

CENTRAL IRON & COAL CO. v. COKER et al.

6 Div. 976

Supreme Court of Alabama

January 28, 1928

Certiorari to Circuit Court, Tuscaloosa County.

Proceeding under the Workmen's Compensation Act by Clara Criss Coker and others for compensation for the death of Henry Criss employee, opposed by the Central Iron & Coal Company. Judgment denying petition to modify decree of compensation and the employer brings certiorari. Writ denied.

H.A. &amp D.K. Jones, of Tuscaloosa, for appellant.

L.C Bell, of Tuscaloosa, for appellees.

BROWN J.

This is the second review, by certiorari, in this case, and whether such review is authorized is a question not presented, as no objection is made here by the respondent. The case as reported on the former appeal will be found in Ex parte Central Iron & Coal Co., 212 Ala. 367, 102 So. 797, where a summary of the facts, as they then existed, may be found, and the question presented was stated to be that:

"We are here concerned only with the power of the court over the matter of apportionment of the compensation previously fixed, and which is not sought to be changed."

The facts of the case, in so far as they are material to the question now presented, are that the deceased workman left surviving him a dependent widow and more than four dependent children, in fact six, including the posthumous child, presenting a case, so far as the amount of the employer's liability is concerned, under section 7554 of the Code, which provides:

"If the deceased employee leave a dependent widow or dependent husband, and four or more dependent children, there shall be paid to the widow for the benefit of herself and such children sixty per cent. of the average weekly earnings of the deceased." Code 1923, § 7554.

On proceedings filed in the circuit court an award was made, fixing the compensation at 60 per cent. of the weekly wage, ascertained to be $27.50 at $15 per week for all of the dependents.

Since the rendition of the original judgment, the widow remarried and some of the dependent's children have married and others have passed the age of 18 years, without defects which would continue their dependency, until there are only three dependent children left.

The petitioner's contention now is that it is entitled to have the circuit court reopen the judgment and modify it, refixing the compensation to the remaining dependents on the basis of 30 per cent. for one child, and 10 per cent. for each additional child up to three, or, to state it otherwise, on a basis of 50 per cent. of the weekly wage of $27.50--reducing the allowance to $13.65, citing in support of this contention sections 7556, 7562, and 7564 of the Code.

Section 7556 provides the basis of compensation when the deceased workman leaves dependent orphans, or a dependent husband and no dependent children, or no widow, husband or dependent children, but other dependents of the second class.

Section 7562 allows an increase in the award where in the nine preceding sections there is a provision for 50 per cent. as the basis of compensation, or when the weekly maximum or weekly allowance does not exceed $12.

It is too clear to permit of controversy that these sections have no application where, as here, compensation was allowable on the basis of 60 per cent. of the workman's weekly wage. Code 1923, § 7554.

Under the section last cited, the widow was entitled, in her own right, to 30 per cent., and under section 7555, on her remarriage, the unpaid balance to which she was entitled inures to the benefit of the children.

If the three dependents remaining be given the benefit of the widow's share and the compensation be readjusted on the basis of the provisions of section 7556, the first child would be entitled to an additional allowance of 30 per cent. and the other two 10 per cent. each, making a total of 80 per cent., instead of 50 per cent. as contended.

As to the provisions of section 7556, that, "If the compensation is being paid under article 2 of this chapter to any dependent, such compensation shall cease upon the...