Ex parte Central Iron & Coal Co.

• Decision Date: 18 January 1923
• Docket Number: 6 Div. 756.
• Parties: EX PARTE CENTRAL IRON & COAL CO. v. PENNINGTON. CENTRAL IRON & COAL CO.
• Court: Alabama Supreme Court

95 So. 472

209 Ala. 22

EX PARTE CENTRAL IRON & COAL CO.

CENTRAL IRON & COAL CO. v. PENNINGTON.

6 Div. 756.

Supreme Court of Alabama

January 18, 1923

Certiorari to Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.

Petition of the Central Iron & Coal Company for common-law certiorari to review the action of the circuit court awarding judgment for the plaintiff in a proceeding instituted by Mary Alice Pennington, by her next friend, against the Central Iron &amp Coal Company, under the Workmen's Compensation Act. Writ denied; judgment affirmed.

Jones Jones & Van de Graaff, of Tuscaloosa, for petitioner.

Edward de Graffenried, of Tuscaloosa, for respondent.

THOMAS J.

The certiorari was to review the decree of the circuit court in a cause brought under the Workmen's Compensation Act. Gen Acts 1919, p. 206; Ex parte A. Diniaco & Bros. et al., 207 Ala. 685, 93 So. 388; Ex parte Majestic Coal Co. et al. (Ala Sup.) 93 So. 728; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Steagall v. Sloss-Sheffield S. & I. Co., 206 Ala. 488, 90 So. 871; and Ex parte Sloss-Sheffield S. & I. Co., 207 Ala. 531, 93 So. 425.

This act, being remedial in nature, will be given a liberal construction to accomplish the purpose of the enactment. Ex parte Majestic Coal Co. et al. (Ala. Sup.) 93 So. 728.

It is provided by section 12b of the Act (1919, p. 210):

"The interested parties shall have the right to settle all matters of compensation and all questions arising hereunder between themselves; provided that all settlements made hereunder must be in amount substantially the same as the amounts or benefits stipulated in this act, unless a judge of the circuit court of the county where the claim for compensation under this act is entitled to be made or upon the written consent of the parties a judge of the circuit court or a judge of the probate court of any county determines that it is for the interest of the employee to accept a lesser sum and approves such settlement. Any settlements hereunder may be vacated for fraud, undue influence or coercion upon application made to the judge approving the settlement at any time not later than six months after the date of the settlement."

The settlement between the parties contemplated by the statute to be binding must be approved by the court and judgment rendered thereupon as provided by the statute. Ex parte Sloss-Sheffield S. & I. Co., 207 Ala. 531, 93 So. 425. The payments and acceptance thereof or settlement of the widow for herself and minor daughter, Mary Alice Pennington, were not so entered of record as to have the effect of a judgment.

The facts set up in the pleadings are that an employee (John Pennington) of the Central Iron & Coal Company was killed on May 20, 1920, leaving a widow (Mary), who, on September 1st of the same year, remarried, and an infant daughter (Mary Alice, who was less than one year of age at the death of the father); that the latter brought her suit (December 20, 1921) in the circuit court by next friend; that a guardian ad litem (Mr. Edward de Graffenried) was appointed by the court to represent the rights of such infant plaintiff in said cause. Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803. To the formal and duly verified complaint of plaintiff the Central Iron & Coal Company answered, and to the last pleading plaintiff replied.

It is averred in the answer that at and before the date of the death of employee his average weekly earnings were $31.85, which was payable monthly; that the aforesaid widow remarried on September 1, 1920, and, at the time of the answer, was the wife of one Charles, with whom she was living as her husband, and who was able and actually did support her, earning $25 per week. It is further averred in the answer that upon the death of said Pennington, defendant began paying said widow $13 per week, in semi-monthly payments, and "1 per week thereof being paid to said Mary Pennington for and on account of Mary Alice Pennington, the infant daughter of the said" deceased; that the several payments of $13 per week, beginning on May 30 and extending to November 11, 1920, aggregated the sum of $286; that in addition to foregoing payments defendant paid the sum of $30 on account of the burial expenses of the said John Pennington; that defendant did not know of the remarriage of said Mary Pennington until after the 11th day of November, 1920, when it discontinued further payments; that to the time of the death of said John Pennington, his infant daughter did not receive more than one-tenth of his total income, or that no larger sum thereof was expended for or on account of her support and maintenance than $3 per week.

The reply of plaintiff to the answer concludes with the statement of the dependence of the infant of such tender years upon its father; that no account had been kept of such expenditure made by the father for her support and maintenance; that-

"It is impossible to tell what will be necessary for the said Mary Alice Pennington during the future years of her minority and the money to which Mary Alice Pennington is entitled in this proceeding will be expended for her use under the orders of a court of competent jurisdiction by her guardian, and as she increases in age her necessities, including the expenses of her education, will increase, and it is impossible for any person at this time to forecast or determine such necessities."

The Workmen's Compensation Act contains provisions to the effect that (a) wife and children are conclusively presumed "wholly dependent," unless the wife "be known" to be voluntarily living apart from her husband at the time of his injury or death, or it be shown "that the husband was not in any way contributing to her support"; that (b) "minor children under the age of sixteen years" are wholly dependent; and that "if the deceased employee leave a dependent widow or dependent husband and one dependent child, there shall be paid to the widow for the benefit of herself and such child forty per centum of the average weekly earnings of the deceased." See Acts 1919, § 14, subsecs. a, b, and 6, pp. 217, 218.

Forty per centum of decedent's average weekly earnings was $12.74; and no doubt it was under the foregoing provisions that the Central Iron & Coal Company was paying to November 11, 1920, $26 every two weeks to the widow and her infant daughter.

Questions for decision are:

Whether (1) subsection 6 of section 14 of the act as to the rights of a total dependent is limited by subsequent provisions of the act; (2) what effect the remarriage (in September, 1920) of the widow to one Charles, who was maintaining her as his wife, had upon her right of compensation under the statute; (3) what effect the remarriage of said widow, the mother of the infant Mary Alice Pennington, has upon her right of compensation as one "wholly dependent" upon her father for support and maintenance.

The Alabama statute was taken from the Minnesota statute, the text of which is set out in 2 Honnold on Workmen's Compensation, p. 1308 et seq. A provision of our statute (Acts 1919, § 14, subsec. 9, p. 218) is:

"In case of remarriage of a widow of an employee who had dependent children, the unpaid balance of compensation, which would otherwise become due to her, shall be paid to such children."

The immediately succeeding provisions of the statute are for payments to a "dependent orphan" (subsection 10, p. 219), to dependent husband where there is no dependent child (subsection 11, p. 219), to dependent parent or parents, where there is no dependent widow, child, or husband entitled to payment (subsection 12, p. 219), to dependent grandparent, brother, sister, mother-in-law, or father-in-law wholly dependent on decedent for support, where there is no dependent widow, child, or husband or parent entitled to any payment under the statute (subsection 13, p. 219), and that-

"If compensation is being paid under part 2 of this act to any dependent, such compensation shall cease upon the death or marriage of such dependent, and the dependency of a child shall terminate with the age of 18 unless otherwise provided herein." Subsection 14, p. 219.

These provisions of the statute are in pari materia, and when liberally construed to effectuate the purpose of the statute support the finding of the trial court. Ex parte Majestic Coal Co. et al. (Ala. Sup.) 93 So. 728. That is to say, the statute recognizes that after the widow remarries the duty arising from the relation to the former husband, or the situation of dependence induced by or arising from that relationship, to the widow and to any subsequent offspring that may be born to her by last husband, does not exist. The statute recognized that the husband in life was charged with the duty of...