Ingalls Shipbuilding Corp. v. Cahela

• Decision Date: 22 April 1948
• Docket Number: 6 Div. 684.
• Parties: INGALLS SHIPBUILDING CORPORATION v. CAHELA.
• Court: Alabama Supreme Court

36 So.2d 513

251 Ala. 163

INGALLS SHIPBUILDING CORPORATION v. CAHELA.

6 Div. 684.

Supreme Court of Alabama

April 22, 1948

Rehearing Denied July 31, 1948.

Certiorari to Circuit Court, Jefferson County; Whit Windham, Judge.

London & Yancey, Geo. W. Yancey and Jas. E Clark, all of Birmingham, for appellant.

Dryer & Dryer, of Birmingham, for appellee.

FOSTER Justice.

The question in this case is whether the employee, Cahela, is barred by limitations of one year under section 296, Title 26, Code, from proceeding under section 304, for enforcing a claim for partial disability under Article 2, Title 26, Code.

The court found that the employee, whom we will designate as plaintiff, received an injury while he was employed by defendant as the result of an accident which occurred on September 15, 1944, and which arose out of and in the course of his employment by defendant. We omit routine findings. But the findings, affecting the issues as made, are that after such accident medical and surgical aid were furnished him by defendant's workmen's compensation insurance carrier extending to August 17, 1945. That just prior to February 22 1946, the representative of the insurance carrier of the corporation (defendant) informed plaintiff that his claim was barred by the statute of limitations, and an agreement was entered into between the parties for a lump sum settlement, with the petition itself showing that the settlement was made on the theory that the claim was barred by the statute of limitations. This settlement was approved by the Circuit Court of Jefferson County, Alabama, February 22, 1946. On motion of the plaintiff, filed March 22, 1946, this settlement was set aside on July 10, 1946, and a new trial ordered. This ruling was reviewed by mandamus by the Court of Appeals, and on January 21, 1947, mandamus was refused in an opinion holding that there was no error in the order. Ex parte Ingalls Shipbuilding Corporation, 32 Ala.App. 609, 28 So.2d 808.

The cause was then placed on the regular trial docket, and set for trial on August 14, 1947, and came on for trial August 15, 1947. On that day plaintiff filed in the cause a verified petition for compensation as provided in section 304, Title 26, Code. That petition referred to the settlement which had been approved, alleging that the approval was set aside and a new trial ordered; and that a petition for a writ of mandamus was presented to the Court of Appeals, and that the writ was denied.

The petition filed on April 15, 1947, did not seek a new trial of the matter of approving the settlement, but only sought compensation as if no such settlement had been made under section 278, Title 26, (Pocket Part) Code. For a settlement in an amount less than the benefits stipulated in that article to be valid, a circuit judge must determine the bona fides of the claim and the liability of defendant, and that it is for the best interests of the employee to accept a lesser sum; and that any settlement 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 settlement; and that all moneys voluntarily paid by the employer or insurance carrier to the injured employee in advance of agreement or award shall be treated as advance payments on account of the compensation; but such payments shall not be construed as an admission of liability, but shall be without prejudice.

Defendant made special appearance for the purpose of contending that there was nothing before the court subject to amendment; and that plaintiff by said amendment had repudiated the agreement of settlement and had paid into court the sum of $400.00, paid under said settlement, and defendant had received from the clerk said sum; and also moved to strike the amendment asserting substantially the same grounds. The court overruled said objection and motion to strike. Whereupon defendant demurred to the petition assigning several grounds. One was that the proceedings are at an end; also that it appears to be barred by limitations. This demurrer was overruled.

The defendant then filed an answer putting in issue the allegations of the petition and included in it a plea of the statute of limitations; also alleging that plaintiff had previously sustained an injury which contributed to his disability as claimed by him; also that he sustained a subsequent injury while in the employment of another, which materially increased any permanent partial disability already then existing.

The court made a finding of facts, and ruled that the claim was not barred, for that defendant had provided compensation by way of medical services and appliances within twelve months before February 22, 1946, and fixed the amount of his award.

The first matter argued by the defendant on its petition for certiorari is the statute of limitations. That is section 296, Title 26, Code. It provides a limitation of one year after the accident, unless within one year after the accident the parties shall agree upon the compensation, or unless one of the parties within one year after the accident shall have filed a verified claim under section 304, Title 26, Code; but when payments of compensation have been made in any case said limitations shall not take effect until the expiration of one year from the time of making the last payment.

It will be observed that the accident occurred September 15, 1944. The petition under section 304, supra, was filed April 15, 1947. Plaintiff contends that this is but an amendment of the proceedings for approval of the settlement had February 22, 1946, and related back to that date; and that although no other compensation payments had been made to plaintiff prior to that time, payments had been made for medical services and appliances and hospital expense and medicine up to August 17, 1945, as found by the court; and that it was not a year from that date to February 22, 1946. The defendant, petitioner here, contends that such medical payments were not 'payments of compensation' under section 296, supra; and that if they were so at all, they were not so after the first ninety days after the disability under section 293, Title 26, as amended (Pocket Part) Code. Therefore that since the accident occurred September 15, 1944, ninety days thereafter would be December 14, 1944, which was more than one year before February 22, 1946. After December 14, 1944, defendant was not legally due to pay for such medical attention, though under section 293, as amended, he could do so if he so elects, and the employee accepts same. Therefore, defendant contends that such payments were in the nature of a gratuity, and not compensation, as defined in section 262, Title 26, (Pocket Part) Code.

Section 262, supra, defines 'compensation' as 'the money benefits to be paid on account of injury or death.' We have no trouble in holding that the provisions of section 293, supra, requiring the payments of 'the actual cost of the reasonably necessary medical and surgical treatment and attention, medicine, medical and surgical supplies, crutches and apparatus, as may be obtained by the injured employee during the first ninety days of disability,' when paid by the employer or his insurance carrier on account of the injury, either to the injured employee or to those furnishing such treatment and supplies, are sufficient payments of compensation to meet the provisions of section 296, supra. But those payments made within said ninety days were completed more than one year before February 22, 1946. Our difficulty is whether payments of that sort made after the ninety day period constitute compensation under section 296, as defined by section 262, supra.

We have noted that section 293, supra, as amended, authorizes the employer after the expiration of ninety days, to furnish to the injured employee such treatment and supplies if the employee shall accept the same. There is no duty so imposed.

The trial court in holding that the payments made after the ninety day period were compensation under section 296, supra, cited Moss v. Stanbridge, 215 Ala. 237, 110 So. 17, and that when the employer acknowledges liability and continues payment of compensation, the statute has provided that by such acknowledgment the period is extended to one year from the last payment. In that case it does not appear that the employer continued to pay compensation after the period fixed by law in which such payments shall be made. The question was the effect of payment of compensation for an injury upon the provision of section 283, supra, when death resulted more than three years after the injury. It was said that payments had been made to him of all compensation due him from the time of the injury to the date of his death.

In this case the trial court reasoned that 'each time medical treatment is furnished (though after the ninety days, and when there was no legal obligation to do so), there is an acknowledgment by the employer that there was an injury for which the employer is responsible, and an employee should have a right to assume that, so long as the employer continues to furnish medical treatment, his claim is open for final adjustment.' And we may add that this is so by that argument, though no other payment of compensation had been made from September 15, 1944, to February 22, 1946, when the settlement was approved.

Section 278, supra, as amended (see, Pocket Part) provides that 'all moneys voluntarily paid by the employer or insurance carrier to an injured employee in advance of agreement or award shall be treated as advance payments on account of compensation; to encourage advance payments it is expressly provided that such payments shall not be...