Exchange Distributing Co. v. Oslin

• Decision Date: 17 January 1935
• Docket Number: 6 Div. 578.
• Parties: EXCHANGE DISTRIBUTING CO. v. OSLIN.
• Court: Alabama Supreme Court

158 So. 743

229 Ala. 547

EXCHANGE DISTRIBUTING CO. v. OSLIN.

6 Div. 578.

Supreme Court of Alabama

January 17, 1935

Certiorari to Circuit Court, Jefferson County; C. B. Smith, Judge.

Proceeding under Workmen's Compensation Act by Willie A. Oslin against the Exchange Distributing Company, to recover compensation on account of the death of E. G. Oslin resulting from injuries sustained in course of employment. Judgment awarding compensation, and the employer applies for certiorari.

Reversed and remanded.

Bowers & Dixon and Thos. F. McDowell, all of Birmingham, for appellant.

John W Altman and J. L. Drennen, both of Birmingham, for appellee.

KNIGHT Justice.

Proceedings for recovery of compensation under the Alabama Workmen's Compensation Act (Code 1923, § 7534 et seq., as amended) instituted by Mrs. Willie A. Oslin, widow of the deceased employee, E. G. Oslin, suing for the benefit of herself and the two minor children of the deceased.

Upon the trial of the cause, the court entered judgment awarding compensation as claimed, and it is to review this judgment that the cause appears in this court on petition for certiorari.

The judgment was rendered in the cause on the 14th day of February, 1934, and on the 15th day of March, 1934, the defendant, employer, filed a motion to set aside the "verdict" and to grant it a new trial. This motion was regularly continued "on motion of the parties," to April 28, 1934, upon which date the court overruled the same, the defendant duly reserving an exception to this action of the court.

The cause has been submitted here on motion to dismiss the appeal and on the merits.

The appellee takes the position here that, as the statute provides for review in compensation cases only by certiorari and as the statute also provides that the aggrieved party must apply for the writ within thirty days from the rendition of the decree, the application or petition to this court for writ of certiorari came too late, the decree awarding plaintiff compensation having been entered on February 14, 1934. The further contention of the plaintiff, respondent to the petition here, is that a motion for a new trial, though timely made, cannot serve to extend the time for filing petition for certiorari. In this, movant is mistaken.

Of course, the appeal by certiorari must be taken within thirty days from the decree; and in reviewing compensation proceedings, the time of taking the appeal is jurisdictional. We have so held. Bessemer Engineering & Construction Co. v. Smith, 216 Ala. 348, 113 So. 290; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Ex parte Louisville & Nashville R. R. Co., 214 Ala. 489, 108 So. 379; Minge v. Smith, 206 Ala. 330, 89 So. 473; Burgin v. Sugg, 210 Ala. 142, 97 So. 216; Walden v. Leach, 201 Ala. 475, 78 So. 381; Coker v. Fountain, 200 Ala. 95, 75 So. 471; Boshell v. Phillips, 207 Ala. 628, 93 So. 576.

Likewise, we have held that if an appeal is not taken within the time provided by section 6127 of the Code, it would be dismissed, being a jurisdictional matter. Burgin v. Sugg et al., supra.

However, this court is committed to the proposition that a motion for new trial, seasonably made, suspends the judgment, and it does not become final, for the purpose of an appeal until the motion is disposed of; and the time within which an appeal from a judgment, after the rendition of which a motion for a new trial has been seasonably made, must be taken under section 6127, begins to run from the date the trial court rules upon the motion for a new trial. Florence Cotton & Iron Co. v. Field, 104 Ala. 471, 16 So. 538; Stallings v. Clark et al., 218 Ala. 31, 117 So. 467; Liverpool & London & Globe Ins. Co. v. Lowe et al., 208 Ala. 12, 93 So. 765; Wilder v. Bush, 201 Ala. 21, 23, 75 So. 143; Shipp v. Shelton, 193 Ala. 658, 662, 69 So. 102.

In the case of Birmingham Clay Products Co. v. White, 226 Ala. 89, 145 So. 668, 669, the observation is there pertinently made, that "circuit courts and the judges thereof are invested with plenary power in the application and enforcement of the Workmen's Compensation Act, and are authorized to proceed summarily in ascertaining the facts. We entertain no doubt that they have the power and jurisdiction, on timely application and for good and sufficient cause, to vacate and set aside a judgment previously rendered, and re-examine the facts. Such power is essential to the administration of justice. State ex rel. Anseth v. District Court of Koochiching County, 134 Minn. 16, 158 N.W. 713, L. R. A. 1916F, 957; 28 R. C. L. 827, § 116."

It is thus apparent that the courts have the same power over judgments and decrees under the Workmen's Compensation Act, as they possess over judgments and decrees in other cases. The same rule which would suspend the operation of a judgment or decree in ordinary cases at law, pending consideration of a motion for new trial at law, applies to judgments and decrees under the Workmen's Compensation Act.

We are at the conclusion, therefore, that the motion to dismiss the appeal in the case, which was taken by certiorari within thirty days after the motion for new trial was overruled, is without merit, and must be overruled.

We are thus brought to a consideration of the appeal on its merits.

The court, on consideration of the evidence, and the facts agreed on by the parties, awarded the plaintiff compensation for the accidental death of her husband.

This court long since announced the rule governing review here of cases arising under the Workmen's Compensation Act. We have uniformly held that, if there is any reasonable view of the evidence that will support the conclusion reached by the trial court, the finding and judgment will not be disturbed. Birmingham Clay Products Co. v. White, supra; Ex parte De Bardeleben Coal Co., 212 Ala. 533, 103 So. 548; Ex parte Sloss-Sheffield S. & I. Co., 207 Ala. 219, 92 So. 458. If there is any legal evidence to support the court's finding, it is conclusive.

The record before us presents but a single question, Was there any legal evidence offered on the trial that supported the court's findings? If there was, we will not disturb the conclusion of the court.

The rule declared in Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738, will not be applied in considering here motions for new trial in cases arising under the Workmen's Compensation Act. Birmingham Clay Products Co. v. White, supra.

The defendant, in its answer, admitted "that plaintiff was the wife of deceased, E. G. Oslin, at the time of his death; that plaintiff's intestate was employed by the defendant; that plaintiff's intestate was run over by a speeding automobile and that he received injuries thereby which a few days later resulted in his death."

The defendant denied, however, that at the time of the alleged injury the plaintiff's intestate was engaged in the business of his employer.

On the trial of the cause it was agreed between the parties to the suit: "That deceased was employed by the defendant at the time of his death; that if the defendant is subject to the Workmen's Compensation Act of Alabama, and if the plaintiff is entitled to recover compensation at all for the death of deceased, she would be entitled to recover compensation under the Workmen's Compensation law at the rate of $14.00 per week for a period of three hundred weeks, unless liability therefor otherwise terminated by operation of law."

The evidence shows without dispute that the defendant, the Exchange Distributing Company, is a brokerage concern dealing in fruits and produce, and occupied a part of a certain large building, which was located on First avenue and Tenth street, in the city of Birmingham, Ala. The building was 375 feet long, and is owned by the Exchange Distributing Company and others, and was occupied, at the time of the accident to plaintiff's intestate, by Bell-Rogers, Norton & Son, Hamilton & Robinson, Marshall, Jordan & Keith, and by the Exchange Distributing Company. All the occupants rented their quarters from the Exchange Distributing Company. The building was located some 35 or 40 feet from the street line. The lessor, the Exchange Distributing Company, furnished refrigeration for all the tenants. The plaintiff's husband was employed by the Exchange Distributing Company, and he had nothing to do with the tenants. His duties were to look after the machinery used to supply refrigeration for the building, and to see that it operated at all times properly. He had no regular hours, but was subject to duty, and to call at any hour, day or night. The evidence shows that he spent much time on duty at night. On the night of September 21, 1933-the night the deceased received his fatal injuries-everything about the plant was in proper order, the plant had been locked up, the usual lights for the night were on, all employees had left, and only the night watchman was on duty. So far as any one knew, who testified in the case, Mr. Oslin had completed his day's work.

Around 7 p. m. of the day of the accident, Mr. Oslin went to the store of Mrs. Gallagher, which was located across a public street from the Exchange Distributing Company's building and purchased a Coca-Cola, and drank it. He was then dressed in such clothes as were usually worn by him while working around the plant. After drinking the Coca-Cola, the deceased left the store of Mrs. Gallagher, and stood for a short while on the sidewalk, which was across the street from the defendant's building, talking with one A. J. Driggers, another employee of defendant, but who was off duty at the time. Mr. Driggers was an assistant to Mr. Oslin. Oslin then stepped to the front door of Mrs. Gallagher's store and bade Mrs. Gallagher "good-night." At that time the car of...