Rehearing
Denied March 24, 1936
Certiorari
to Circuit Court, Jefferson County; Richard V. Evans, Judge.
Proceeding
under Workmen's Compensation Act by Robert L. Carlisle
claimant, against the Try-Me Bottling Company, employer. To
review a judgment of nonsuit, the claimant brings certiorari.
Affirmed.
Certiorari
denied by Supreme Court in Carlisle v. Try-Me Bottling
Co. (6 Div. 949) 168 So. 601.
Cause
of compensation claimant's action is his injury, and
compensation due thereon may not be split up in separate
suits. Code 1923, §§ 7571, 7578.
The
following appears from the brief for appellant:
"On
June 26, 1934, Robert L. Carlisle filed suit in the Circuit
Court for the Tenth Judicial Circuit of Alabama against the
Try-Me Bottling Company, a corporation, to recover
compensation alleged to be due him under the Workmen's
Compensation Act of Alabama for disability suffered by him
as a result of injuries sustained by him on August 4, 1933
while employed by the said Try-Me Bottling Company. The
complaint was filed under the provisions of Section 28 of
the Act of 1919 (section 7578 of the Code of 1923). This
suit was docketed in the Court below as Cause No. 86496.
"On
the 8th day of August, 1934 the cause was duly heard by
Hon. Richard V. Evans, one of the Judges of said Court, and
under date of August 8, 1934 Judge Evans filed a Finding of
Facts and of Law in the cause, in which judgment was
rendered in favor of the plaintiff and against the
defendant. This Finding of Facts, and of Law and judgment
are set out as Pages 4 and 5 of Exhibit 'A' to the
Petition filed in this Honorable Court, and is as follows
omitting the caption:
"
'This cause coming on to be heard this the 8th day of
August, 1934, on the plaintiff's complaint and
defendant's answer filed herein, and the evidence
submitted on the issue joined, and after hearing counsel
for the respective parties, the Court finds the facts and
the law and enters judgment as hereinafter set forth:
"
'Facts.
"
'The plaintiff, Robert L. Carlisle, while in the employ
of the defendant, on, to-wit, August 4, 1933, met with an
accident arising out of and in the course of his
employment, by falling from a truck in which he was engaged
in delivering for defendant cases of its beverage known as
"Try-Me." Plaintiff injured the small of his back
as a result of the fall, and since the injury has
intermittently been treated by Dr. J.D.
Sherrill. An X-ray was taken of plaintiff, but it reveals
no broken bones or other objective or discernible
pathologic condition. He had muscular spasms, and these
have not yet quite abated, but their intensity is lessened.
His trouble is muscular. His doctor is of opinion that he
is not permanently injured but thinks he is still unable to
engage in bending or straining, and has not the freedom of
bodily movement that would permit of his engaging in work
requiring bodily exercise. He lists to one side, and wears
an abdominal belt or support. The doctors are unable to say
and express no opinion as to how long it will take to
effect a complete cure. The doctor advises rest and freedom
from all bodily exercise or strain, for him to get well.
"
'The Court adopts the foregoing to be the correct facts
of case and so finds, as to conditions prevailing up to
date hereof; leaving open and making no finding as to
future conditions which would be entirely speculative.
"
'The Court further finds that the average weekly
earnings of plaintiff for the 12-month period preceding
the accident to be $16.80; that plaintiff is married, has
one child, aged 10 years. Plaintiff has been paid
compensation from August 4, 1933, to March 28, 1934, or a
period of 33 1/2 weeks. He has been paid at the rate of
$9.78 per week, or the aggregate sum of $327.63, up to
March 28, 1934. He should have been paid 55% of $16.80,
or $9.24, per week, instead of $9.78, as paid, or an
overpayment weekly of 54 cents, or an aggregate
overpayment of $18.02 for the 33 1/2 weeks.
"
'From August 4, 1933, to August 8, 1934, is 52 1/2
weeks, and at $9.24 per week would aggregate $485.10 he
is due to be paid in all, and he has been already paid
$327.63, leaving a balance due to date (August 8, 1934)
of $157.47 to be paid.
"
'Findings of Law.
"
'The Court is of opinion and so finds the law to be,
that plaintiff should be classified as a temporary total
disability under Code Section 7551(a), and is due to be
paid 50% of his average weekly earnings plus 5% for one
child, or 55% of $16.80, thus making a weekly payment of
$9.24 for 52 1/2 weeks. It is accordingly:
"
'Ordered, Adjudged and Decreed, that plaintiff have
and receive of defendant the sum of $157.47 presently
due, and the court
having mero motu appointed a neutral physician, Dr. W.F.
Scott--his fee being $25.00--the same is ordered to be paid
1/2 by each of the parties and the Clerk is ordered to pay
out of said $157.47 the sum of $12.50 to said Dr. Walter
Scott for the plaintiff, and that defendant pay to the
Clerk $12.50 for Dr. Walter Scott, which sum is taxed as
part of the costs, and said sum of $12.50 be paid over to
Dr. Scott for and on behalf of defendant out of the costs
collected, and further that the Clerk pay over to
plaintiff's counsel 10% of the amount recovered,
to-wit, $15.75, as their fee.
"
'The costs herein are taxed against defendant.
"
'Dated this August 8, 1934.
"
'Richard V. Evans " 'Judge.'
"The
amounts specified to be paid by this judgment were duly
paid by the defendant, and no appeal was taken from said
judgment by either party to the cause.
"The
defendant refusing to pay any further compensation for
disability suffered after August 8, 1934, the plaintiff on
February 8, 1935 filed his complaint against the defendant
for further payments of compensation. The petition as
amended appears as Exhibit A to the Petition filed herein.
This complaint was docketed by the Clerk of the Court below
as Cause No. 89548.
"On
September 25, 1935, the cause being reached for hearing,
after amendment of the complaint, the defendant filed its
'Special Plea' which appears as Exhibit 'B'
to the Petition filed in this Honorable Court. Thereupon
plaintiff filed demurrers to this Special Plea which are
set forth as Exhibit 'C' to the Petition filed in
this Honorable Court.
"The
plaintiff's demurrers to the defendant's Special
Plea were overruled by the Court, and on account of such
adverse ruling plaintiff suffered a non-suit and brought
the instant Petition for certiorari."
The
plea in abatement alleges that the suit designated as No
86496, filed by plaintiff June 26, 1934, was against the same
defendant...
