Nashville Bridge Co. v. Honeycutt

• Decision Date: 18 January 1945
• Docket Number: 6 Div. 305.
• Citation: 246 Ala. 319,20 So.2d 591
• Parties: NASHVILLE BRIDGE CO. v. HONEYCUTT.
• Court: Alabama Supreme Court

20 So.2d 591

246 Ala. 319

NASHVILLE BRIDGE CO. v. HONEYCUTT.

6 Div. 305.

Supreme Court of Alabama

January 18, 1945

[Copyrighted Material Omitted]

Sadler & Sadler, of Birmingham, for appellant.

Lipscomb & Lipscomb, of Bessemer, for appellee.

The petition, or complaint, filed by the employe is as follows:

'Comes the plaintiff in the above styled cause and brings this, his suit, under the Workmen's Compensation Act of Alabama, as amended, and plaintiff respectfully shows unto the Court that:

'Nashville Bridge Company, a corporation, whose other name and further name is unknown to plaintiff, but will be made known if and when the same is ascertained, is engaged in construction and contracting business within the jurisdiction of this

Court and maintains a place of business at or near Bessemer, Jefferson County, Alabama; and while thus engaged on or about the 18th day of November, 1943, your petitioner was employed by said Nashville Bridge Company as a laborer and as a part of his duties was required to assist in the lifting and placing of certain metal plates at a plant operated as aforesaid by the respondent and while so engaged for said respondent, within the jurisdiction of this County the plaintiff received injuries at said time and place which totally and permanently disabled him, and that said injuries are as follows:

'An inguinal hernia which appeared suddenly accompanied by pain and that said hernia immediately followed an accident, that said hernia did not exist prior to said accident, that said accident consisted in this, to-wit:

'That while plaintiff, at said time and place, was lifting and placing said metal plates, such plate slipped and fell against and directly caused said hernia. Plaintiff further avers that said injuries and incapacity is the proximate result of an accident which arose out of and in the course of his employment for the respondent aforesaid.

'Plaintiff further avers that the said respondent and said petitioner were covered by the provisions of the Workmen's Compensation Act of Alabama, as amended, at the time of said injury and are now covered by said Workmen's Compensation Act of Alabama, as amended.

'Plaintiff further avers that he is and was a married man at the time of said injury and continuously since. He has a dependent wife and one dependent daughter living with and supported by said plaintiff and at the time of said injury he was averaging to-wit: $27.50 per week as wages for work from said defendant.

'Plaintiff further avers that the respondent has had legal and actual notice or knowledge of said injury; and further that respondent has failed and refused to pay him compensation as is required by law. And plaintiff brings this suit for the purpose of recovering all sums due him under the Compensation Law of Alabama, as amended, including medical expenses as provided in said Act and for all amounts that he is entitled to thereunder.

'Premises considered, plaintiff prays that this Court will require proper process to immediately issue requiring the defendant to plead, answer or demur to this complaint within the time allowed by law and the rules of this Honorable Court as is provided for under the Workmen's Compensation Law, as amended, and that a default judgment be taken against the defendant on its failure to so do. And that upon final hearing and proof the defendant be required to pay the balance due to the plaintiff, and for all other and proper orders and decrees that the plaintiff may be entitled to, and for all of which he will ever pray.'

The decree rendered by the Circuit Court is as follows:

'Decree

'It appears from the pleadings, evidence and admissions in this case, that on November 18th, 1943, the plaintiff, Zack Honeycutt, was an employee of the defendant, Nashville Bridge Company, a corporation, and on said date was employed as a burner helper, within the jurisdiction of this Court, and was engaged in such employment with a fellow employee in turning heavy metal plates approximately three (3) feet wide and seven (7) feet long, with a half inch to three-fourths inch thickness and weighing approximately three hundred pounds (300), and that in doing this work plaintiff received a strain, which proximately resulted in an inguinal hernia on his right side. That the hernia was accompanied by pain to the plaintiff in the region of his body where the hernia appeared, and that the pain appeared immediately after the strain received by him in lifting the metal plates, and that the hernia in his inguinal region appeared suddenly. The evidence likewise shows that the plaintiff had been examined by defendant's doctor within a few weeks prior to his receiving this injury, and defendant's doctor never mentioned to plaintiff that plaintiff was suffering from a hernia, and the defendant's doctor examined the plaintiff thoroughly, including an examination for a hernia.

'The evidence also shows that immediately after the appearance of this hernia on November 18th, 1943, the plaintiff notified his foreman and the foreman in turn immediately sent the plaintiff to the defendant's timekeeper and the defendant's timekeeper took plaintiff to Dr. Payne, in Bessemer, and Dr. Payne was the same defendant's physician who had examined plaintiff on behalf of defendant at the time plaintiff made application for employment

with the defendant. The evidence and admissions are uncontradicted; both the plaintiff and defendant at the time of the injury, and at the time of the trial, were covered by the provisions of the Workmen's Compensation Law of Alabama, as amended.

'The evidence in the case also showed that the plaintiff, after receiving the hernia, in the course of his employment, began to use a truss, prescribed by Dr. Payne, and continued his employment with the defendant without losing any time from his work, and so continued to work for the defendant until the time that plaintiff filed this petition for compensation against the defendant.

'The evidence further shows that the plaintiff averaged in his employment for the defendant $27.00 per week, and that his rate of pay was not changed after the date of his injury.

'The evidence further shows that after plaintiff's employment ceased with the defendant that he was employed by the Dixie Metal Products Company of Bessemer, in war work, at a slightly higher rate of pay than he was earning while employed by the defendant. Evidence further shows that the plaintiff did lighter work after his injury than he did before, and that his work now with Dixie Metal Products Company does not require him to stand up and he has no lifting to do.

'The medical evidence submitted by plaintiff is by Dr. Wright, a physician whose qualifications are admitted, and whose evidence showed that the plaintiff was suffering a fifty (50) per cent disability while wearing a truss, and one hundred per cent (100) physical disability from manual labor when not wearing a truss. Plaintiff testified that he was unable to do any heavy work; that he could not do any manual labor without wearing a truss; that he has no trade or profession but had done manual labor all of his life, and that he had never had a hernia before the accident on November 18th, 1943, and had always been in good health; and that he is now about sixty-three (63) years old.

'The evidence also showed that the defendant had never offered to perform an operation for the correction of the plaintiff's hernia, and that plaintiff was willing to receive an operation if offered.

'The defendant offered no testimony in the case.

'The court finds that the plaintiff and defendant were at all times alleged in the petition subject to the provisions of the Workmen's Compensation Law of Alabama, as amended. The Court further finds that the plaintiff was an employee of the defendant, within the jurisdiction of this Court, on November 18th, 1943, and received an injury as a result of an accident arising out of and in the course of his employment for defendant on that date that resulted in an inguinal hernia; that the hernia appeared suddenly, that it was accompanied by pain; that the hernia immediately followed an accident and that the hernia did not exist prior to the accident, for which compensation is claimed, and that as a result of the accident defendant is suffering a permanent partial disability, and is entitled to compensation, based upon the extent of such disability during such time as the disability continues.

'The Court further finds from the evidence that the defendant had knowledge of the accident within ninety (90) days from the date of the accident, and that suit was filed for compensation within one year.

'The Court finds that the defendant is and was at all times mentioned in his petition a married man, with a dependent wife and one dependent child under sixteen (16) years of age.

'That plaintiff did not work for defendant as long as one year prior to his injury. It was agreed by counsel for plaintiff and defendant that his average weekly earnings for the purpose of computing compensation, if any is due, was $27.00 a week.

'The Court finds that plaintiff is entitled to compensation for his disability so long as such disability may exist, not however beyond three hundred weeks (300), at a rate of sixty-five per cent (65%) of the difference between the average weekly earnings of $27.00 per week, and the average weekly earnings he is able to earn in his partially disabled condition.

'The Court further finds that although the plaintiff has actually earned as much, and more, since his injury, than before; that this fact would not be conclusive upon his earning ability taking into consideration the increased demand upon the labor market due to abnormal conditions that...