Ex parte W.T. Smith Lumber Co.

Decision Date20 October 1921
Docket Number3 Div. 507
PartiesEx parte W.T. SMITH LUMBER CO.
CourtAlabama Supreme Court

Appeal from Circuit Court, Butler County; A.E. Gamble, Judge.

Petition by the W.T. Smith Lumber Company for a common-law writ of certiorari to review the action of the circuit court of Butler county in a proceeding by H.H. Burkett to recover from said Lumber Company under the Workmen's Compensation Act for damages for the death of plaintiff's son. Writ denied.

The facts as stated by the court are that J. Lewis Burkett was a minor under 21 years of age and unmarried, and that he left surviving him only parent, his father, who is the plaintiff in this case; that he was employed by the W.T. Smith Lumber Company in the fall of 1919, and it was his duty, with another sawyer, to saw down the pine trees suitable for lumber on the lands of the defendant and to cut them into logs suitable for manufacture into lumber, and that, while engaged in this employment, the said J.L. Burkett sawed down a pine tree, which in falling caught upon another tree and from there fell, striking and injuring J.L. Burkett so that he died within a short time. For such labor he was paid from 10 to 20 cents per tree according to its size, and received from $18 to $20 per week, and of, this amount he contributed to his father from $14 to $16 a week; that defendant was a corporation engaged in the manufacture of lumber, employed a large number of men, operated railroads into the forest, had trees sawn and cut and conveyed by rail to its mills, and defendant had a regular pay roll and paid off regularly every two weeks.

Steiner Crum & Weil, of Montgomery, and Lane & Lane, of Greenville for appellant.

Powell & Hamilton and H.H. Burkett, all of Greenville, for appellee.

ANDERSON C.J.

This petitioner seeks to review the judgment of the circuit court by the common-law writ of certiorari as provided by sections 21 and 28 of the Workmen's Compensation Act of 1919, pp 206 to 239.

The only question argued and insisted upon as error is the conclusion of the trial court to the effect that the deceased was an employee or workman within the terms of said act. While the petition is accompanied by a bill of exceptions, this court cannot look to same, as the right of review is confined by the statute to a common-law writ of certiorari, and under which we can only consider questions of law apparent upon the record, but which said record includes the written statement of the trial judge as required by section 28. Woodward Co. v. Bradford, 90 So. 803.

As to who did or did not constitute an employee under the Employers' Liability Act (Code 1907, § 3910), as construed by our former decisions, may not now be a material factor as the present act defines both an employer and employee. It says (section 36):

"The term 'employer' as used herein shall mean every person not excluded by section 8, who employs another to perform a service for hire and to whom the 'employer' directly pays wages.
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