Hearn v. U.S. Cast Iron Pipe & Foundry Co.

• Decision Date: 29 March 1928
• Docket Number: 6 Div. 5
• Citation: 217 Ala. 352,116 So. 365
• Court: Alabama Supreme Court
• Parties: HEARN v. UNITED STATES CAST IRON PIPE & FOUNDRY CO.

116 So. 365

217 Ala. 352

HEARN v. UNITED STATES CAST IRON PIPE & FOUNDRY CO.

6 Div. 5

Supreme Court of Alabama

March 29, 1928

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

Proceeding under the Workmen's Compensation Act by Jennie Hearn against the United States Cast Iron Pipe & Foundry Company to recover compensation on account of the death of an employee. Judgment denying compensation, and the petitioner brings certiorari to the circuit court of Jefferson county (Bessemer division). Writ granted; reversed and remanded.

Charlton & Charlton, of Birmingham, for appellant.

J.P Mudd, of Birmingham, for appellee.

BROWN J.

This is an action under the Workmen's Compensation Act (Code 1923, §§ 7534-7597), instituted by the wife against the employer, the United States Cast Iron & Foundry Company, for compensation to herself and six dependent minor children, on account of the death of the plaintiff's husband, Eddie Hearn, which, as the complaint avers, was caused by an accident arising out of and in the course of his employment. These averments are specifically denied by the verified answer of the defendant.

The question of controversy on the trial, as appears from the record, certified in response to the writ of certiorari, was whether the death of the employee, Eddie Hearn, was the result of natural causes or the result of an accident within the purview of the statute.

Responding to the issues as stated above, the trial judge after finding the facts in line with the conclusion upon which the judgment denying compensation was rested, to wit, "that the complainant did not die as the result of an accident arising out of and in the course of his employment," entered a judgment denying compensation.

The evidence shows that the plaintiff's husband, Eddie Hearn had been in the employ of the defendant for two years or more as a "clamper," and was working at the time of his death in "flask pit No. 4," a pit sunk in the ground to a depth of from 16 to 18 feet, in which moulding flasks were operated, said flask being from 14 to 16 feet in length and held in an upright position by a revolving table. Each of said flasks weighed about two tons, and extended to within 10 inches of the concrete floor of the pit. As the molten metal was poured into the flask for forming cast iron pipe, the table to which the flask was made fast revolved moving the flask around the edge of the pit. The evidence tended to show that the work in which Hearn was engaged exposed him to unusual heat and while engaged in this work he had a stroke of apoplexy, or a heart lesion, which caused him to fall prostrated in the track of the flask and his head and shoulders were caught by one of the flasks which rolled or dragged him, inflicting bruises or burns on his shoulders and head. On being discovered by other workmen in this position, he was removed to the surface and only lived a few minutes thereafter. This evidence, it would seem, might warrant a finding that the death of this workman resulted from an accident arising out of and in the course of his employment. New River Coal Co. v. Files, 215 Ala. 64, 109 So. 360; La Veck v. Parke, Davis & Co., 190 Mich. 604, 157 N.W. 72, L.R.A.1916D, 1277, 28 R.C.L. 817, § 102; 2 Honnold's Workmen's Compensation, p. 309, § 98.

This, however, was a question of fact specially committed by the statute, in case of dispute, and in the absence of a charge of wilful misconduct on the part of the employé, to the province of the trial judge, whose "determination" is required to be in writing and when responsive to the issues in the case is conclusive as between the parties, subject to a limited review by certiorari. Code of 1923, §§ 7571, 7578; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Hardisty v. Woodward Iron Co., 214 Ala. 256, 107 So. 837; La Veck v. Parke & Davis, supra.

The statute provides that:

"This determination shall be filed in writing, with the clerk of the court, and judgment shall be entered thereon in the same manner as in causes tried in the said circuit court, and shall contain a statement of the law and facts and conclusions as determined by said judge." Code of 1923, § 7578.

This determination, like unto the verdict of a jury, is the warrant of authority for the clerk to enroll upon the minutes of the court a final judgment or decree, and its filing with the clerk of the court is essential to the regularity of the proceedings. Under the rulings here, a judgment, though previously entered, does not become effective for the purpose of review until such "determination" of the judge is filed with the clerk. Ex parte L. & N.R. Co. (Langston's Case), 214 Ala. 489, 108 So. 379; Woodward Iron Co. v. Bradford, supra; Ex parte Sloss-Sheffield Steel & Iron Co. (Greek's Case), 207 Ala. 219, 92 So. 458.

Our decisions are uniform in holding that a bill of exceptions, made a part of the record and incorporated in the return to the writ of certiorari will be looked to:

1. To ascertain whether the finding of facts by the trial judge, or any material...