GULF STATES STEEL CO. v. CHRISTISON.
7 Div. 217.
Supreme Court of Alabama.
April 5, 1934.
Rehearing Denied May 24, 1934.
154 So. 565
Mulkey & Mulkey, of Geneva, opposed.
Brief did not reach the Reporter.
BOULDIN, Justice.
Maybe the Court of Appeals, in its final decision, placed the presumption in favor of the trial court on too restricted basis in saying: “We must assume that there was testimony (omitted from the bill of exceptions) showing conclusively that the check here in question was actually paid.”
The opinion recites there was evidence in the bill of exceptions that it was never paid.
Petitioner here relies on the rule as stated in Doe ex dem. School Commissioners v. Godwin, 30 Ala. 242, 244, viz.: “That when an affirmative charge is given, which is correсt as an abstract legal proposition, this court will presume there was evidence to justify the charge, unless it affirmatively appear to the contrary.”
Obviously, there may have been uncontradicted states of fact in evidence under which the drawer became entitled to a credit therefor although not actually paid by the bank issuing such cashier‘s check. Appellate courts will not cast about for surmises as to what may have been the state of the evidence not shown in the bill of exceptions. Trial judges, knowing the presumptions indulged on appeal, may sign a bill of exceptions presenting only one side of the picture.
We concur with the Court of Appeals in holding that, where the bill of exceptions does not purport to set out the evidence in full, or else affirmatively shows there was no other evidence upon which the affirmаtive charge could be given, the giving of such charge cannot be reviewed on appeal. It is not necessary to limit the presumption to proof of actual payment as indicated by the above-quoted language. Whether such presumption should be indulged, if necessary to sustain the trial court, we think there is no need to decide, and therefore withhold expression of opinion.
Writ denied.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.
Inzer, Davis & Martin and Rains & Rains, all of Gadsden, for appellee.
This is an action by an employee against his employer for compensation on a claim that he was injured in the course of his employment and arising out of it.
The contention made by appellant on this appeal, to which we will first give attention, arose on a motion to vacate the judgment because the presiding judge was disqualified under section 8570, Code. One of plaintiff‘s counsel was a son of the judge.
The question involves the proper construction of the word “party” as used in that statute. Does it include under any circumstances the attorney of record of a party to the suit? This court has never expressed itself directly on that subject. In the case of Crook v. Newborg, 124 Ala. 479, 27 So. 432, 433 (82 Am. St. Rep. 190), this statute, then stated in the same language, was held to mean “that the disqualification extends not only to the party to the records, but that the judge is incompetent when related within the fourth degree to any person interested in the judgment or decree,” citing Gill v. State, 61 Ala. 171, with many cases from other states. This case has been cited in other states to sustain a construction of similar acts to include as a “party” an attorney “who is interested in the subject-matter of the litigation though not a formal party to the record” by reason of his employment. Yazoo & M. Valley R. Co. v. Kirk, 102 Miss. 41, 58 So. 710, 712, 834 (42 L. R. A. (N. S.) 1172, Ann. Cas. 1914C, 968). To the same effect is Roberts v. Roberts, 115 Ga. 259, 41 S. E. 616 (90 Am. St. Rep. 108).
But the mere fact that an attorney is retained on a cоntingent fee, as by the defendant, when such fee is not payable out of the judgment, and with no lien on it, but when the result will only fix the fact or amount of such fee, he is not by such a contract interested in the subject-matter of the suit, though he is interested in its outcome. In such latter situation it is merely an event which affects him, but he has no interest in that which the suit concerns. Norwich Union Fire Ins. Co. v. Standard Drug Co., 121 Miss. 510, 83 So. 676 (11 A. L. R. 1321); Shireman v. Wildberger, 125 Miss. 499, 87 So. 657; Young v. Harris, 146 Ga. 333, 91 S. E. 37. For other cases, see 11 A. L. R. 1326.
There are cases which hold that plaintiff‘s attorney who has a contingent fee pаyable out of the judgment and affected by its amount is not a party so as to disqualify a related judge. Hundley v. State ex rel. Milton, 47 Fla. 172, 36 So. 362; Winston v. Masterson, 87 Tex. 200, 27 S. W. 768; Allison v. So. Ry. Co., 129 N. C. 336, 40 S. E. 91.
Under
The basis of the disqualification of the judge is not that the relаted attorney is employed on a contingent fee, but because such fee is payable out of the judgment recovered or is a lien on it, and that its amount is also affected by the amount of the recovery. Under such circumstances the attorney is directly interested in the subject-matter of the suit and its result. He is then a “party” within
As we have said, this is a statutory compensation suit. The plaintiff, being competent, may pay his attorneys аs they may contract, except that no part of the compensation due plaintiff under the act shall be paid to the attorneys for their services, unless a circuit judge shall order and approve the employment, and shall fix the fee, which shall not exceed 10 per cent. of the compensation awarded or paid under the act.
Upon petition in this cause, heard prior to the trial, the circuit judge grantеd plaintiff authority to employ two firms of lawyers, in one of which firms, it was shown on the motion for a new trial, the son of the judge who made the order and who tried the suit was a partner. When compensation was awarded, the judge fixed the amount of the fee at 10 per cent. of the total amount of the compensation awarded. Defendant tried the cause to a finish without objecting to the qualifications of the judge under the statute. It is first рresented in the motion for a new trial.
A construction of the statute in this connection seems first to have been made in the casе of Hine v. Hussey, 45 Ala. 496, where on page 513, the court held that, since consent was provided for in the act, its violation did not render the judgment void, but voidable only, and said, in respect to the consent, that “its entry on the record is the only admissible evidence that it was given.” See, also, Trawick‘s Heirs v. Trawick‘s Adm‘rs, 67 Ala. 271; Jeffersonian Pub. Co. v. Hilliard, 105 Ala. 576, 17 So. 112; Hutto v. Walker County, 185 Ala. 505, 64 So. 313 (Ann. Cas. 1916B, 372). And then in Hayes v. Collier, 47 Ala. 726, again affirming that the failure to observe the statute does not render the judgment void, and referring to the fact that the statute authorizes the judge to act with “the consent оf the parties entered of record,” also stated that the omission of that entry should not annul the judgment so as to authorize strangers to have it vacated at any indefinite time afterwards.
In Collins v. Hammock, 59 Ala. 448, it said that no objection to the competency of the judge was raised on the trial, but first came upon a motion to quash execution and vacate the judgment made several years after it was rendered. This was said to be a collateral attack, and that, since it was not void, the attack was ineffectual. The opinion quoted from Freeman on Judgments that, “If the facts are known to the party recusing, he is bound to make his objection before issue joined, and before the trial is commenced, otherwise he will be deemed to have waived the objections, in cases where the statute does not make the proceedings void.” Fifth Edition, § 329.
In the case of Yazoo & M. V. R. Co. v. Kirk, supra, the court was dealing with a constitutional provision similar to our
But our statute specifies the manner in which such consent must be manifested. When so, it must be complied with. Statutory requirements cannot be evaded on the doctrine of estoppel or waiver in a different manner. So that our only inquiry at this point in the discussion is to find out if “the consent of the parties (was) entered of record or put in writing.”
We think it would be an erroneous construction of the requiremеnt to hold that it means that such consent must be expressed in any certain language. But we entertain the view that a judgment in a court of record
We therefore look to the record for the purpose of finding its meaning in this respect. Before the trial began, plaintiff filed a motion for authority to employ certain named cоunsel, including the son of the judge as one of them. The petition made no mention of the compensation to be paid them, and the order on the petition was silent in that respect. But the only purpose which could have been thereby accomplished was to comply with
It also shows that defendant cross-examined plaintiff‘s witnesses, and introduced in evidence the testimony of a number of witnesses and some documents. We think that, for the purposes of
We think that those were proceedings of record which, in the absence of any hint at objection, showed a consent for the judge then presiding to hear and determine the controversy.
Affidavits were submitted to the еffect that defendant and his counsel did not know that the attorneys for petitioner were to be paid on a contingent basis. They do not claim that they were ignorant of the relationship and that the son of the judge was one of the counsel employed.
When a petition for authority to employ such counsel is filed and recorded, and an order is made granting it, since such a proceeding has no place in praсtice except by authority of
On the merits of the claim, the chief difference between the parties arises on the question of whether plaintiff sustained a personal injury caused by an accident arising out of and in the course of his employment.
If the heat exhaustion arose out of the employment, as well as in its course, we think it is clear that any harmful effect upon the physical structure of the body of the employee, which was a proximate result of it, is an accident under our statute.
In connection with the sort of accident here involved, the principle to which most authorities give assent is that the harmful condition does arise out of the employment, if, in the performance of the duties for which he was engaged, in the manner required or contemplated by the employer, it is necessary for the employee to expose himself to a danger, materially in excess of that to which people commonly in that locality are exposed, when not situated as he is when thus performing his service, and that such excessive exposure may be found to have been the direct cause of the injury, though operating upon other conditions of common exposure. Am. Fuel & Clay Products Co. v. Gilbert, 221 Ala. 44, 127 So. 540; Cudahy Packing Co. v. Parramore, 263 U. S. 418, 44 S. Ct. 153, 68 L. Ed. 366 (30 A. L. R. 532).
That principle has been specifically thus applied to sunstroke or heat prostration or heat exhaustion in many varying conditions. The authorities in the main adopt and apply it substantially as we have thus stated. It would serve no good purpose to refer to the discussions and various applications of the principle. Many cases are analyzed in texts and notes as follows: 1 Schneider‘s Workmen‘s Compensation Law (2d Ed.) pp. 701 to 710; 1 Honnold‘s Workmen‘s Compensation, p. 428; 13 A. L. R. 979; 53 A. L. R. 1085; 46 A. L. R. 1218; 25 A. L. R. 147; 16 A. L. R. 1038, 1039.
We have no trouble in agreeing with the circuit judge that the facts as found, and which we have quoted, show that plaintiff sustained a personal physical injury caused by an accident arising out of and in the course of his employment by defendant as alleged in the petition.
We are next concerned with the contention that the evidence, all of which is set out in the bill of exceptions, does not justify the finding as thus made by the circuit judge. We may observe here that the court fully complied with
This review, by certiorari, does not perform the functions of an appeal, and on it we cannot inquire as to whether the finding of facts is proper, if it is supported by any legal evidence. Ex parte Sloss-Sheffield S. & I. Co., supra; Ex parte Big Four Coal Mining Co., 213 Ala. 305, 104 So. 764; Wilson v. B‘ham. Elec. Co., 219 Ala. 436, 122 So. 411; Dean v. Stockham Pipe & Fitting Co., 220 Ala. 25, 123 So. 225; Morgan Hill Paving Co. v. Stewart, 220 Ala. 480, 126 So. 116.
We do not think it would serve any useful purpose to discuss the evidence in that connection, but it is sufficient to say that there is legal evidence shown in the bill of exceptions to support the finding in all respects. We do not undertake to consider its weight. That is solely the province and responsibility of the trial court when we review its judgment by certiorari. Authorities, supra.
There are other questions argued for appellant. We have considered them, and think that they do not show reversible error, but that it is not necessary to disсuss them.
Finding no such error in the record, the judgment is affirmed.
Affirmed.
On Rehearing.
We think that the record referred to in
But it is not sufficient to satisfy
Appellant‘s counsel also complain that we did not duly consider the evidence of a want of knowledge by them of the petition and order in respect to the employment of counsel. But the general rule, no doubt well known to counsel for appellant, is that, when a party is properly brought into court, he is chargeable with notice оf all subsequent steps taken in the cause down to and including the judgment, although he may not appear and has no actual knowledge of them (unless of course, notice is required by law). 46 C. J. 548, 549; Sov. Camp, W. O. W., v. Gay, 20 Ala. App. 650, 104 So. 895, certiorari granted on other grounds 213 Ala. 5, 104 So. 898. It does not therefore lie in the right of defendant or his counsel to assert a want of actual knowledge of the petition to employ counsel and the order on it.
The order of the court on demurrer to the complaint recites that the defendant demurred to the complaint. The demurrer is then submitted and passed upon. Though the demurrer had previously been filed, it was afterwards submitted, which means that action thereon was invited by defendant. This was an invitation by defendant to the court shown by the record that it shall then hear and determine the demurrer. When the record thus shows that action was invited by defendant, it thereby appears affirmatively that there was consent that the judge presiding shall hear and pass upon the demurrer. If a party invites action, he cannot deny that he so consented, in the absence of objection on that ground. If he consented, he cannot complain.
There are recitals in different parts of the record showing that defendant appeared and proceeded to present evidence and raise questions for the consideration of the court, all of which show a manifest purpose to have the presiding judge rule on the questions thus presented. The record therefore shows a consent as the necessary meaning of its recitals.
As we understand the argument of counsel in respect to the absence of proof of actual knowledge by defendant of the accident to avoid the necessity of the statutory notice, it did not relate so much to a want of knowledge оf the fact that plaintiff was taken sick in the course of his employment in a way which might have been accidental and growing out of it, for the circumstances attending his attack were known to defendant‘s foreman in the course of his employment, but they contend that they had no knowledge that he had suffered a heat prostration. But if in fact he did suffer an attack growing out of and in the course of his employment, and this was known by defendant‘s fоreman, though the doctors for defendant who examined him immediately afterwards failed to recognize it as heat prostration, their failure to do so does not show a want of evidence of knowledge required by law, if the court finds that the symptoms which plaintiff manifested were such as to be sufficient to impart that knowledge to them. It is knowledge of the facts and occurrences, and that the employee was thereby injured, which is important, and not the diagnosis of the doctors predicated on those occurrences and his symptoms. If plaintiff in fact had heat prostration due to such accidental causes, defendant‘s doctors knew enough of his condition by their physical examination of him to make that diagnosis, and therefore are chargeable with such knowledge, though they thought, and still think, that it was not heat prostration. Sloss-Sheffield Steel & Iron Co. v. Keefe, 217 Ala. 409, 116 So. 424; Am. Radiator Co. v. Andino, 217 Ala. 424, 116 So. 121.
The only two points made by counsel for appellant on this application have been here treated in the manner in which we view them, and adversely to their contention.
The application is overruled.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.