103 So. 447 | Ala. | 1925
The trial court has made a fair statement of the evidence and we think it supports the finding and judgment of the court that the deceased workman came to his death by an accident arising out of and in the course of his employment.
The evidence shows a contact between a young and apparently vigorous man and an electrical appliance carrying a sufficient voltage, if short-circuited through his body, to cause his death. This contact, with its lethal potentiality, and with its actual sequence of instant death, presents, we think, a rational suggestion of cause and effect — a reasonable inference of causation, and not merely a permissible hypothesis leading to a conjectural and therefore unwarranted conclusion.
It is true that there is no evidence directly showing that the electrical appliance being used by the deceased was in such a condition as to permit the short-circuiting of the current; but the appliance was owned and operated by the defendant, and the circumstances of the workman's death at least imposed upon defendant the duty of showing that it was properly constructed and insulated, and incapable of communicating a current of deadly force to the workman's *479
body. See Lawson v. Mobile Electric Co.,
Under circumstances not materially different from those here shown, courts of high authority have affirmed the finding that the workman was killed by an electrical shock, and hence injured by an accident arising out of and in the course of his employment. State ex rel. Fleckenstein v. District Ct.,
Defendant takes exception to the allowance of $2 per week to the workman's grandmother — the theory being that a postponed class of dependents cannot have compensation concurrently with a preferred class even though the allowance to the preferred dependent does not exhaust the entire compensation for which the employer is liable, and, as a corollary to that contention, defendant excepts also to that part of the judgment which allows $10 per week to the grandmother in case the mother should die before the lapse of the 300 weeks' period of payments, the grandmother surviving.
Section 7553 of the Code of 1923 provides:
"Wife, child, husband, mother, father, grandmother, grandfather, sister, brother, mother-in-law and father-in-law who were wholly supported by the deceased workman at the time of his death and for a reasonable period of time immediately prior thereto shall be considered his total dependents, and payment of compensation shall be made to them in the order named."
Section 7556 provides for the percentage of the deceased workman's wages to be paid to each class of the dependents named in section 7553, in particular:
"If the deceased employé leave no widow or child or husband entitled to any payment hereunder, but should leave a parent or parents, either or both of whom are wholly dependent on the deceased, there shall be paid, if only one parent, twenty-five per cent. of the average weekly earnings of the deceased, and if both parents, thirty-five per cent. [of such earnings]." If the deceased leave no widow, child, husband, or parent, surviving, "but leaves a grandparent, brother, sister, mother-in-law, [or] father-in-law, wholly dependent on him for support, there shall be paid such dependent, if but one, twenty per cent. of the average weekly earnings of the deceased, or if more than one, twenty-five per cent. [of such earnings], divided between or among them, share and share alike."
Section 7558 of the Code provides:
"The compensation payable in case of death to persons wholly dependent shall be subject to a maximum compensation of twelve dollars per week and a minimum of five dollars per week. * * * This compensation shall be paid during dependency, not exceeding three hundred weeks, payments to be made at the interval when the earnings were payable, as nearly as may be."
We think it is reasonably clear that these statutes do not intend that compensation shall be payable concurrently to more than one of the classes or grades of relatives provided for in section 7556. It is supplemented by section 7553, which makes clear the order in which they are entitled to receive compensation, especially, of course, in cases where there are more than one dependent of the same class, as father and mother, grandfather and grandmother, brother and sister, or father-in-law and mother-in-law.
The contrary view proceeds upon the erroneous assumption that section 7558 fixes $12 per week as the total compensation to be paid out to dependents, at all events, until it is exhausted. But, on the contrary, $12 is not fixed as the gross compensation to be paid by the defendant, but is merely a limitational restraint upon the percentages of weekly wages allowed to the several classes of dependents under section 7556. For example, if both father and mother of this workman had survived as total dependents, they would have been entitled to 35 per cent. of $40, his ascertained weekly wages, equal to $14 per week, but as this exceeds the maximum allowance of $12 per week, the joint award would have been restricted to that amount.
Counsel for appellee conceive that section 7560 of the Code justifies, and indeed requires, concurrent compensation to different classes, if the percentage of wages allowed as compensation to a prior preferred class is less than $12 per week. That section provides:
"Total dependents shall be entitled to take compensation in the order named in section 7553 above until the per cent. of the average weekly earnings of the deceased during the time and as specified in section 7558 shall have been exhausted; but the total compensation to be paid to all total dependents of a deceased employé shall not exceed in the aggregate twelve dollars per week, except as otherwise provided herein."
The meaning of this section is, in some respects, certainly not very clear. It refers to "the per cent. of the average weekly earnings of the deceased" as mentioned in section 7558, but that section contains no such mention. Most likely it intends to refer simply to the compensation as specified in section 7558; and its exhaustion as to quantity contemplates the payment of percentages to members of the same class in the order of their priority, while exhaustion as to time contemplates the payment to successive dependents of the percentage to which each is entitled, to the end of the payment period, when the prior preferred *480 dependent dies or marries within that period. This gives a consistent field of operation to the provision that "the total compensation to be paid to all total dependents of a deceased employé shall not exceed in the aggregate $12 per week, except as otherwise provided herein," — that is, where, as frequently happens, several dependents of the same class or grade are concurrently receiving compensation.
So far as the instant case is concerned, by the express provision of section 7556, a dependent grandmother or grandfather is entitled to compensation only in case the deceased workman has left no dependent widow, child, husband, or parent, thus plainly negating the idea of concurrent compensation to the grandparent. This view of the statute was plainly declared by Thomas, J., arguendo, in Ex parte Central Iron Coal Co.,
The Tennessee cases cited in brief for appellee (Marcum v. Hickle,
In section 7556 it is provided that "If the compensation is being paid under article 2 of this chapter to any dependent, such compensation shall cease upon the death or marriage of such dependent." The same provision is found in section 7564. Counsel for appellant contend that the effect of this provision is, not merely to stop the payment of compensation to the deceased dependent's personal representative or heirs, but to stop its payment altogether, thereby operating as a discharge of the employer from further liability to other dependents surviving.
This theory is wholly inconsistent with the general structure, design, and language of our Compensation Law — particularly of the provisions of section 7560, which we have already discussed and construed ante. It would seem that the quoted provision of section 7556 was not necessary, so far as the death of the receiving dependent is concerned, and it was no doubt inserted in the statute, as a matter of precaution merely, to prevent claim to the lapsed compensation by the personal representative or heirs of the deceased dependent. See Swift v. Industrial Commission,
We think it is clear that compensation must be paid, conformably to sections 7556, 7553, 7558, and 7560, so long as any named dependent survives, throughout the entire period of 300 weeks. But manifestly the percentage payable will vary with the class receiving the compensation, as specified by section 7556. If, in this case, the grandmother should survive the mother, she would be entitled to 20 per cent. of $40, equal to $8 per week, and not to $10 per week as declared by the trial court. In this respect the judgment is erroneous, and it will be corrected accordingly.
The judgment will be corrected also by excluding the grandmother, Carrie Holt, from receiving present compensation. As corrected, the judgment will stand as a judgment for the payment of compensation to the mother, Alma DeWitt, at the rate of $10 per week, for 300 weeks, if she shall live so long; and if she should die within that period, then compensation shall be paid for the remainder of the period to Carrie Holt, at the rate of $8 per week.
Corrected and affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.
