Woodward Iron Co. v. Dean

• Decision Date: 05 April 1928
• Docket Number: 6 Div. 999
• Citation: 117 So. 52,217 Ala. 530
• Parties: WOODWARD IRON CO. v. DEAN.
• Court: Alabama Supreme Court

117 So. 52

217 Ala. 530

WOODWARD IRON CO. v. DEAN.

6 Div. 999

Supreme Court of Alabama

April 5, 1928

Rehearing Denied May 17, 1928

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

Proceeding under the Workmen's Compensation Act by Cornelia Walton Dean against the Woodward Iron Company to recover compensation on account of the death of an employee, John Dean. Judgment awarding compensation, and the employer applies for certiorari and mandamus to the circuit court of Jefferson county, Bessemer division. Petition denied judgment affirmed.

Huey &amp Welch and W.G. Stone, all of Bessemer, for appellant.

Charlton & Charlton, of Birmingham, for appellee.

THOMAS J.

The proceedings before us seek a review of the action of the trial court in allowing compensation, as to a common-law widow under the Workmen's Compensation Act (Code 1923, §§ 7534-7597). It is presented by way of certiorari with a bill of exceptions, and by petition for mandamus.

The latter pleading is thus adverted to by counsel for petitioner:

"*** To correct his several rulings on the evidence, as pointed out in the record in this case, and to correct his findings of fact and conclusions on the evidence, and so modify his decree as to conform to the views and opinions of the Supreme Court on the merits of the several questions raised on the record in this case, to the end that justice may be fully administered in this cause, and the rights of the parties fully determined, and for grounds of this motion sets down and assigns the following: ***

"For that the above-named petitioner is deprived of its legal rights and is subject to suffer irreparable injury and loss, in this cause, in that, it cannot have its legal rights determined and adjudicated on either an appeal or certiorari and the only method of review and correction of errors, which appear in the record in this case, is by such mandamus."

It may be that in this, and a further reference contained in brief of appellant's counsel, that it is sought and maintained that a federal question is presented. If such be the purpose, we entertain the view that no right under the Federal Constitution has been denied by the proceedings and judgment of the lower court.

The motion to strike the petition contains grounds, among others, that the averments are mere conclusions and no facts stated support the same; that the petition for mandamus is not an alternative to give opportunity for compliance, shows that its purpose was to serve as a review of the action of the trial court, and had for its purpose the directing or controlling judicial action under the statute.

Appellant's counsel further state their view of the right to mandamus, as an exception to the general rule, as follows:

"In view of the fact that the Supreme Court of Alabama holds the law to be that on review of a compensation case on certiorari, rulings on the evidence cannot be and will not be considered, and in further view of the fact that an appeal will not lie to review a decision in a compensation case an injured party to such a suit has the right to have a writ of mandamus issued by the Supreme Court to the trial court to correct his errors, to the end that justice may be administered and that the rights of parties may not be destroyed."

The remedy for compensation dependents, the amount of compensation that may be allowed, duration of payments to classes indicated, the declared right of review, by certiorari, of appellate jurisdictions, are prescriptions of the statute. The latter procedure may be aided or illustrated by a bill of exceptions under the act and to its desired end, in the case recognized by this court. Ex parte Sloss-Sheffield S. & I. Co. (Greek's Case), 207 Ala. 219, 92 So. 458; Ex parte L. & N.R. Co., 208 Ala. 216, 94 So. 289; Ex parte Mt. Carmel Coal Co., 209 Ala. 519, 96 So. 626; Ex parte Woodward Iron Co., 211 Ala. 77, 99 So. 97; Ex parte Paramount Coal Co., 213 Ala. 281, 104 So. 753. In Ex parte Sloss-Sheffield S. & I. Co. (Greek's Case), supra, is the rule adhered to that "the required statement of law, facts, and conclusions is necessary to make serviceable the review by certiorari which the statute provides." And when there is any legal evidence to support the findings of fact by the trial court, the same is conclusive and will not be disturbed by the appellate court. Crescent Coal Co. v. Simmons (Ala.Sup.) 116 So. 512; Woodward Iron Co. v. Bradford, 206 Ala. 449, 90 So. 803; Ex parte W.T. Smith Lumber Co., 206 Ala. 485, 90 So. 807; Ex parte Sloss-Sheffield S. & I. Co. (Greek's Case), supra.

That is, if there is any legal evidence tending to support the finding of the court under the Compensation Act, such a finding is conclusive, and the review by certiorari is upon questions of law. Among these is whether there is any legal evidence supporting the findings of fact, and will not be disturbed because of mistakes made by trial courts in passing upon the weight of the evidence. Paramount Coal Co. v. Williams, 214 Ala. 394, 108 So. 7; Ex parte W.T. Smith Lumber Co., supra; Woodward Iron Co. v. Bradford, supra; Ex parte Woodward Iron Co., 211 Ala. 111, 99 So. 649; Ex parte Nunnally Co., 209 Ala. 82, 95 So. 343.

There is no error in failing to limit the decree to the date of petitioner's death or remarriage. The court is always open, within the time given by the decree for payment, to make a proper order to meet subsequently and materially changed conditions affecting the right of the party to a continuance of compensation allowed to petitioner as a widow, after her remarriage or death, or as to minors reaching the age limit. Ex parte Central I. & C. Co., 212 Ala. 367, 102 So. 797; section 7596, Code of 1923.

And adverting to the ruling or admissions in evidence, the testimony illustrating the fact of the existence vel non of a common-law marriage, we will say that a qualified witness may state that a designated woman and man lived together as man and wife, or were so living " 'openly, where everybody could see them living together," as man and wife. McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917; Williams v. Wilson, 210 Ala. 289, 97 So. 911. This was no more than the statement of a shorthand rendition of fact that these parties were married under the common

law by mutual consent or agreement between the parties to be husband and wife, followed by evidence showing cohabitation and living together as husband and wife. Bynon v. State, 117 Ala. 80, 23 So. 640, 67 Am.St.Rep. 163; Fuquay v. State (Ala.Sup.) 114 So. 903; Herd v. Herd, 194 Ala. 613, 622, 69 So. 885, L.R.A.1916B, 1243; Tartt v. Negus, 127 Ala. 301, 28 So. 713; Moore v. Heineke, 119 Ala. 627, 636, 637, 24 So. 374; Mickle v. State (Ala.Sup.) 21 So. 66; Williams v. State, 151 Ala. 108, 111, 44 So. 57; Langtry v. State, 30 Ala. 536; L.R.A.1915E, 53, note.

Thus we are brought to a decision of the question whether after the passage of the Act of 1919, p. 169, § 1, codified as section 1156, Code of 1923, there...