Davis v. Birmingham Trussville Iron Co.
| Decision Date | 18 June 1931 |
| Docket Number | 6 Div. 915. |
| Citation | 223 Ala. 259,135 So. 455 |
| Parties | DAVIS v. BIRMINGHAM TRUSSVILLE IRON CO. |
| Court | Alabama Supreme Court |
Certiorari to Circuit Court, Jefferson County; John Denson, Judge.
Proceeding under the Workmen's Compensation Act by L. H. Davis claimant, opposed by the Birmingham Trussville Iron Company employer. Judgment for the employer, and claimant brings certiorari.
Affirmed.
Willard Drake, of Birmingham, for appellant.
Stokely Scrivner, Dominick & Smith, of Birmingham, for appellee.
On March 30, 1929, the appellant, while in the employ of the Birmingham Trussville Iron Company, by accident arising out of and in the course of his employment, received a personal injury.
On account of this injury the employer paid to appellant $189 as compensation for approximately fourteen weeks, being at the rate of $13.50 per week, and then declined to pay more.
Thereafter, on September 19, 1929, appellant filed a suit in the circuit court of Jefferson county, alleging that, in consequence of such injuries, he had been totally and permanently disabled from earning a livelihood. The case was brought to trial on January 14, 1930, and he was awarded a judgment of $722.80, in addition to what had been paid to him, for total temporary disability, requiring $371 of this sum to be paid immediately, and the balance to be paid at the rate of $27 every two weeks. The case in which said award was made was designated as "Cause No. 59452."
It is conceded one of the contested facts in that case was, whether or not the disability resulting from the injury was temporary or permanent.
On September 11, 1930, the appellant filed another suit, designated on the docket as "Cause No. 67583," alleging, among other things, that his earning capacity was permanently impaired 75 per cent., and claimed compensation therefor. The complaint was subsequently amended, alleging that, at the time of the award in the former proceedings, the plaintiff's injuries were of such character "that it was impossible to discover the full extent thereof, whether the same would result in a total permanent incapacity, or total temporary incapacity," and prayed for an additional award of $2,151.20 for permanent partial disability.
The defendant filed a demurrer to the complaint as amended; taking the point that it is not alleged in the complaint that the award in the first case was the result of a settlement between the parties under section 7550 of the Code, and construing the averments of the complaint most strongly against the pleader, they show that the proceedings in cause No. 59452 were under section 7578 of the Code, and the conclusions and judgment therein are conclusive as to the character and extent of plaintiff's injuries, and the court was without jurisdiction to re-examine the facts and award additional compensation in the absence of fraud in the procurement of the judgment in that case.
The demurrer was sustained, the plaintiff suffered nonsuit, and has appealed.
His (plaintiff's) contention here is that under the provisions of section 7574 of the Code, which provide that:
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...between the parties, subject to the right of appeal in this article provided for.' The above is quoted in Davis v. Birmingham Trussville Iron Co., 223 Ala. 259, 135 So. 455, wherein our supreme court stated that in an adversary proceeding in a workmen's compensation case the conclusions of ......
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...Trussville Iron Co., 223 Ala. 259, 135 So. 455, and in Ford v. Crystal Laundry Co., Inc., 238 Ala. 187, 189 So. 730. In Davis v. Birmingham Trussville Iron Co., supra, it was that the proceeding authorized by § 7574 of the Code of 1923, now § 300, Title 26, Code of 1940, only applied to set......
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...the reopening provision of the Minnesota act. See 1919 Ala. Acts, No. 245, p. 206, 225-26, § 24. In Davis v. Birmingham Trussville Iron Co., 223 Ala. 259, 135 So. 455 (1931), this Court limited the statutory right to reopen a workers'-compensation action to settlements between the parties a......
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