Edwards v. Doster-Northington Drug Co.

• Decision Date: 27 May 1926
• Docket Number: 6 Div. 578
• Parties: EDWARDS v. DOSTER-NORTHINGTON DRUG CO.
• Court: Alabama Supreme Court

108 So. 862

214 Ala. 640

EDWARDS v. DOSTER-NORTHINGTON DRUG CO.

6 Div. 578

Supreme Court of Alabama

May 27, 1926

Certiorari to Circuit Court, Jefferson County; John Denson, Judge.

Petition of Fannie Edwards for certiorari to the circuit court of Jefferson county to review the judgment of that court in a proceeding under the Workmen's Compensation Act by the petitioner against the Doster-Northington Drug Company. Affirmed.

Horace C. Wilkinson and J.R. McElroy, both of Birmingham, for appellant.

Bradley Baldwin, All & White, and John L. Bromberg, all of Birmingham, for appellee.

SAYRE J.

Appellant was awarded compensation for the loss of her husband according to provisions of the Workmen's Compensation Act (Code 1923, §§ 7543-7597). Defendant conceded the justice of appellant's claim in general and offered to pay in installments. Appellant demanded compensation by lump sum but this feature of appellant's claim was refused, and the trial court held that, in the absence of an agreement between the parties, it had no jurisdiction to order a lump sum payment in lieu of installments to fall due. The single question presented for review is whether an agreement between the parties is necessary to confer jurisdiction to award a lump sum settlement in a case where the compensation is for the death of the wage earner.

The statute (section 7573 of the Code of 1923), providing for the commutation of periodical payments by a lump sum settlement under the Workmen's Compensation Act, reads as follows:

"The amounts of compensation payable periodically hereunder, either by agreement of the parties approved by the court, or by decision of the court, may be commuted to one or more lump sum payments, except compensation due for death or permanent total disability, or for permanent partial disability resulting from total loss of hearing, or from the loss of an arm or a hand or a foot or a leg, or an eye, or of more than one such member. These may be commuted only with the consent of the circuit court. In making such commutations, the lump sum payments shall, in the aggregate amount to a sum equal to the present value of all future installments of compensation calculated on a six per cent basis."

In two cases, Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803, and Coker v. Avondale Mills, 208 Ala. 268, 93 So. 900, this court has held that there can be no commutation without the consent of the parties, which includes the employer as well as the dependents, herein following State v. District Court, 134 Minn. 16, 158 N.W. 713, L.R.A. 1916F, 957, decided prior to the passage of the Compensation Act in this state, wherein the court construed a section of the Minnesota act identical in every substantial particular with the section quoted above. Identical provisions of compensation laws have been so construed in Nebraska (Bailey v. United States Fidelity Co., 99 Neb. 109, 155 N.W. 237; Johansen v. Union Stockyards, 99 Neb. 328, 156 N.W. 511), and in Tennessee (American Zinc Co. v. Lusk, 148 Tenn. 220, 255 S.W. 39). In the last-cited case the statute was:

"These [amounts of compensation payable periodically] may be commuted only with the consent of the circuit court."

The court said:

"The act permits commutation only when the court consents. The use of the word 'consent' implies the presentation of an agreed stipulation or order. It negatives

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