Ex parte Gadsden Car Works

• Decision Date: 10 April 1924
• Docket Number: 7 Div. 368.
• Parties: EX PARTE GADSDEN CAR WORKS. v. GADSDEN CAR WORKS. HAWKINS
• Court: Alabama Supreme Court

99 So. 725

211 Ala. 82

EX PARTE GADSDEN CAR WORKS.

HAWKINS v. GADSDEN CAR WORKS.

7 Div. 368.

Supreme Court of Alabama

April 10, 1924

Certiorari to Circuit Court, Etowah County; O. A. Steele, Judge.

Petition of the Gadsden Car Works for certiorari to the circuit court Etowah county, to review the judgment of said court in a proceeding under the Workmen's Compensation Act by L. R Hawkins against the Gadsden Car Works. Writ denied, and judgment affirmed.

Lange &amp Simpson, of Birmingham, for petitioner.

C. W. Peters and W. J. Boykin, both of Gadsden, opposed.

BOULDIN J.

This is a petition for certiorari to review the proceedings in the case of L. R. Hawkins v. Gadsden Car Works under the Workmen's Compensation Act.

The complaint charges that while jacking up a freight car the jack slipped from its position, and the jack lever "flew upward with great force, striking plaintiff on the head and face, causing serious personal injuries, and fracturing plaintiff's skull, greatly impairing plaintiff's ability to earn a livelihood." The trial court found that-

"The plaintiff received personal injuries by accident arising out of and in the course of his said employment in the nature of a violent blow on his head, which said injury affected plaintiff's eyes and head and proximately caused to plaintiff the following permanent partial disabilities, to wit, the permanent loss of 25 per cent. of vision in both of plaintiff's eyes and the permanent loss of 50 per cent. of plaintiff's earning capacity at the time of said injury."

It was adjudged that plaintiff was not entitled to recover for the loss of 25 per cent. of vision, but was entitled to compensation for his permanent partial disability "under the Workmen's Compensation Act, § 13, par. (c), p. 214, a sum equal to 50 per cent. for himself and 10 per cent. additional" on account of three wholly dependent children under 18 years of age. In fixing the weekly allowance the court found that since the injury plaintiff had procured employment at different intervals aggregating 36 weeks at average earnings of $16 per week; that his average earnings at the time of the injury were $34.56 per week, and the average amount he is able to earn in his partially disabled condition is $17.28. Compensation was fixed at 60 per cent. of $17.28, or $10.37 per week for 300 weeks.

Petitioner, the employer, insists that on this finding of facts there was error in the amount of the weekly allowance, in this: That the average earnings of $16, deducted from the prior earnings of $34.56 shows $18.56 loss of earnings per week, 60 per cent. of which is $11.14. Clearly the employer suffered no injury from this feature of the award.

But the point is made that the evidence does not support the finding. A bill of exceptions in aid of the finding of facts is made part of the record. It appears that at the time of the trial plaintiff's earnings were $19.25 per week. Thus figured the allowance would be $9.19 per week. But the evidence further showed varying wages during the 36 weeks, running from $8 per week to the maximum at the time of the trial. The court was not without evidence to warrant his finding that plaintiff's average earning capacity was reduced by the injury 50 per cent. or $17.28.

Much evidence, pro and con, is called to our attention touching the extent of plaintiff's injury. The appellant's evidence tended to show no permanent injury to the head, and that the injury to the eyes was only an astigmatism which had been corrected by the use of glasses. Appellee's evidence tended to show a depression of the skull, the recurrence of violent headaches, mental lapses, loss of weight, and such impairment of strength as to make it necessary to take lighter work at reduced...