Crescent Coal Co. v. Simmons

• Decision Date: 29 March 1928
• Docket Number: 6 Div. 4
• Citation: 217 Ala. 367,116 So. 512
• Parties: CRESCENT COAL CO. v. SIMMONS et al.
• Court: Alabama Supreme Court

116 So. 512

217 Ala. 367

CRESCENT COAL CO. v. SIMMONS et al.

6 Div. 4

Supreme Court of Alabama

March 29, 1928

Certiorari to Circuit Court, Jefferson County; Joe C. Hail, Judge.

Proceeding under the Workmen's Compensation Act by Marion Simmons and Mollie Simmons against the Crescent Coal Company to recover compensation on account of the death of an employee. Judgment awarding compensation, and the employee brings certiorari to the circuit court of Jefferson county. Writ denied; judgment affirmed.

Thos J. Judge, of Birmingham, for appellant.

Altman Taylor & Koenig and D.R. Boyd, all of Birmingham, for appellees.

THOMAS J.

The petition was for certiorari to determine liability and dependence under the Workmen's Compensation Act (Code 1923, §§ 7534-7597) for injury to a minor working in the mines, over the age of 17. The finding of the facts and the award made are according to the requirement of the statute as to presenting for review, by certiorari, the action of the trial court without the aid of a bill of exceptions.

The substance of the evidence offered on the trial is set out in the decree rendered. Hill v. Dry Dock & Shipbuilding Co., 213 Ala. 88, 104 So. 251; Gulf States Steel Co v. Griffin, 214 Ala. 126, 106 So. 898.

It is only in the absence of such statement of the evidence that a bill of exceptions is employed. Ex parte Sloss-Sheffield S. & I.

Co., 207 Ala. 219, 92 So. 458; Ex parte L. & N.R. Co., 208 Ala. 216, 94 So. 289; Ex parte Mt. Carmel Coal Co., 209 Ala. 519, 96 So. 626; Ex parte Woodward Iron Co., 211 Ala. 74, 99 So. 97.

Where there is any legal evidence to support the finding of the trial court, that finding is conclusive as to this court. Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Ex parte W.T. Smith Lumber Co., 206 Ala. 485, 90 So. 807; Ex parte Sloss-Sheffield S. & I. Co. (Greek's Case) supra. The court so found the facts and set forth that finding in its decree or judgment, warranting the relief granted.

Moreover, if the condition found by the examining physician existed before the injury received by the kick of the mule, and if that physical shock and physical injury aggravated the condition, hastened and eventuated in the death of said intestate employee, under the liberal construction given, the act extended to such case. That is to say, where the accident and injury coupled with the pre-existing infirmity caused death, there was full liability as prescribed therefor by the statute. This is not the "increase or prolongation" of disability made the subject of section 7561, Code of 1923.

There is a distinction between "increased or prolonged disability" and "death." Where, but for the accident and injury, the person would not have died as and when he did die, the accident is the cause of such death though it merely accelerated a pre-existing physical weakness, infirmity, or disease. Ex parte Mt. Carmel Coal Co., 209 Ala. 519, 96 So. 626. See analogy to be found in New River Coal Co. v. Files, 215 Ala. 64, 109 So. 360; Hill v. Traveler's Ins. Co., 146 Iowa 133, 124 N.W. 898, 28 L.R.A. (N.S.) 742. The authorities are collected in Schneider, Workmen's Compensation Law, § 138; In re Bowers, 65 Ind.App. 128, 116 N.E. 842; St. Clair v. Meyer, 211 Mich. 285, 178 N.W. 705; Hanson v. Dickinson, 188...