*1 584 164So. 216 case, appears it view As we HILL LIGON. GROCERY CO. v. Work intent of it is the clear 1923, (Code Act Compensation § Div. 664. men’s reasona amended) make seq., 7534 et Appeals of Alabama. Court of injured workman an ble period of 28, dependents his for such want actual will allow them without Aug. 27, having by reason readjust themselves family and lost the bread winner of Reversed after Remandment payments doing stipulated the this it has protect such bene in such as to amounts their profligacy on against possible ficiaries part, or from other sources. compensation should what the statute fixes injured his power contract with to make a judge named approval of a without the against any way or militate reduce dependent in case paid a amounts to be death. Those amounts his to, when the statute above referred employee has been compensation due the compliance with the made in substantial dependents’ statute, com period of reduced pensation should be by dividing ag of weeks ascertained paid the husband gregate amount weekly compensation due amount of Williams, wife. Paramount Coal Co. v. see no con 214 Ala. 108 So. 7. We and the decision in flict the above Oil (Tex.Civ.App.)

men’s Ass’n Coe S.W. v. (2d) 430. argued great with presented necessity in urgent cases under .force employee, the 'em- injury to an of severe anticipate allowed to ployer should weekly compensations payments of future suddenly emergency coming so meet the family wagje upon the may sympathize much we er. However view, we do not so read that we law and bound. this court is not bound the de- While states, they courts of other cisions of part strongly persuasive most opinion in the case of Milwaukee C. & Commission, Industrial G. Co. v. Wis. 247, 151 N.W. is in line with the hold- circuit court and ing of the with what we principle written. The same is an- Corpus nounced the text. 71 Juris supported (278). by ample This text authority.

The writ is . denied. *2 The index the middle and finger the third on the child’s hand were amputated as the of the accident. result finger The little and thumb on the hand appel- Dunn, Birmingham, Evans of were left. lant. Berry respecting T. Dr. W. testified injury boy, as follows: “I examined this practical- Ligón. Paul I think the hand is permanently I useless. it is * * * and I find finger, ring finger, he has his middle * * * in- finger first off. There is no jury finger. I think the little little finger is all intact. and is right. The thumb seems to be all I don’t any part missing. think * * * thumb is ' any injury I don’t notice body palm palm sur- of Denson, ap- Birmingham, W. A. of face of the hand. I don’t think pellee. what him whatever. For purposes working disabled cutting that hand on account of the off fingers.” three middle The child’s hand exhibited The court finding below in its law, estimating facts and conclusion of BRICKEN, Presiding Judge. plaintiff’s average weekly earnings, petition This is a for a certiorari gave regard, requires, as the Grocery Company, Hill to review a decree average weekly earnings to a county, circuit of Jefferson in the same work Ala., awarding compensation to the re- district, spondent, Paul Ligón. The facts are sub- found that stantially dispute, finding without ings of such week. sup- of facts made the court below is Grocery Company The Hill claims that ported by exceptions. bill of only pay liable to The child $63.75. record discloses that the $1,237.50, claims he is entitled recover years a child of ten age. During cross-assignment and has made a of error summer vacation in he was on the record. The court below awarded intermittently by Grocery Plill Com- compensation at the rate of $2.50 week pany. The child testified: “I grinding period for a of one hundred and sausage times, at different every time he weeks, a total of $375. needed me. I you couldn’t tell long how that had going hurt, been on got (g) when I Subsection of section 7551 of the just but at different times he needed “(g) me.” Code 1923 reads as follows: Com- On cross-examination the pensation computed testified: hereunder shall be “Different weeks I would work average weekly the basis earnings. days. number of pay He didn’t me shall mean the Average I would work on an average earnings injured employee about days a week. I working have in which twenty-five about injury cents each ground during period time I the time of the sausage. I fifty-two worked about immediately an hour.” preceding weeks quoted from the injury fifty-two; because the date of the divided respect in this dispute, injured employee is without but if the lost more than conclusively think it days during shows both seven consecutive calendar shortness of the period although which the em- such not in the same ployee had been in employ earnings of his em- for the remainder of such ployer and the fifty-two casual nature of terms shall be divided within the meaning of remaining sub- number of weeks after the time of section the Code. lost has been deducted. Where the em- 5SG Appellant claims that a over injury extended ployment prior to the (a) subsection period of less than provides “If at the time dividing the method of received of weeks period by weekly earnings of less than five dollars *3 parts which thereof the per week, receive the full followed, results shall wages shall be weekly earnings thereby average amount of such parties will just and fair to both week,” per the amount of com controls by short- reason the be Where obtained. pensation appellee recover in is entitled to the during which ness of the time by showing the this case. Under the made his em- employment of in has been the appellee’s the record we do not construe or terms ployer, nature or the casual weekly pgr week. earnings to be less than to com- impracticable $5 employment, the paid is 25 cents clear to us that pute average the asvabove helped grind average each time he the butcher defined, to the regard be had shall paid sausage, except such times as weekly during the amount which age and 10 cents. The child was of school being earned prior injury was to It is worked off and on vacation. employed grade, by person the same a in perfectly employment clear that his employer, by the same at the same work nature, opinion a casual employed, person so and if is no such

, by required that the sub court below was employed by person grade a same of section 7551 of Code in the class of the same weekly regard average amount to the allowances same district. Wherever by person in being which was earned a employee in lieu to an character made grade, employed work same at the same wage part of the wages specified as by employer, the same and if there was part of his contract, they deemed a shall be employed person such in the same class earnings.” employment, by person a in the same section 7551 of (c) In subsection class of in the same district. per- provided that Code is opinion a We are further of the that when manent, compensation disability partial casually employed to do school is extent of shall be based man, by work that should be done a is disability. included in the follow- In cases service, performance of that schedule, compensation ing compensation the child’s should be schedule, “For wit: that named in the person employed a as the same same commonly called finger, loss of a first by grade, fifty per average finger, index cent of per if there is no such same 'or weekly thirty-five earnings during weeks. employed, by person a same son so fifty per a For the loss of second employed in class of em grade the same weekly earnings dur- average cent of the ployment in same district. third thirty weeks. For the loss of a ing by weekly fifty per average The loss of a hand is classified cent of disability. twenty permanent, partial as a earnings during weeks. fifty compensation maximum of. is per hand cent of the The rate For the loss of a week, weekly per hun- and the minimum average earnings during one $12 per careful- fifty an number at week. We have dred and weeks. Where $5. injuries re- record for evidence that sustains concurrent searched this disabilities, he shall sustain the court’s conclusion that sulting in concurrent weekly compensation only person receive by produced longest period grade of dis- the same the same per ability. perma- employer In all in the same district was cases the $12. have been unable to find and toal loss of the use of a member nent support- in the record equivalent to the of evidence shall be considered scintilla member, ing that conclusion. The decree here but in such cases that by therefore errone- compensation sought in and said reviewed is schedule shall compensation.” in lieu of all other ous. prevails is therefore conclude that the trial here per correctly one that this child en to recover ruled is entitled weeks of the- to recover for the loss of a hundred and titled being earned use amount which the total loss of the of member employed at the equivalent in the same the statute to the a is employer; and if work loss of that member. same employed, same district person so no such there was per week, employed in the was and we have been un- $12 dis- able to find a scintilla of employment in evidence in the supporting maximum conclusion. trict, subject to sought decree here to be reviewed is there- fore erroneous. granted, is of certiorari The writ The writ of granted, is certiorari reversed, and the appealed from decree appealed reversed, decree from is court below remanded to cause cause is the court remanded to below question. determine hear and hear and determine evidence as the aver- will be proceedings The cost age weekly being amount which was petitioner, appellant. against the taxed grade, employed in the same *4 and remanded. granted. Reversed Writ and, if was no em- there After Remandment. ployed, by em- ployed, PER CURIAM. district, subject maxi- provisions Under the per week, and, mum Su- of the Code of the decisions Court, supra, Supreme preme holdings and govern Court party for is entitled to recover court; opin- decisions of therefore .the rate. Supreme ion in the instant Court granted. Writ prevail, case must and the decision Reversed and remanded. modi- court heretofore rendered Supreme holding fied to meet the Court wherein the writ of certiorari granted to this and the cause remanded From court for consideration. further ne- appears no said, what has been cessity to restate facts rested. conclusion of this court on the facts So. findings trial This court affirmed the CO. v. FOX. W. T. SMITH LUMBER That court court this connection. Div. care- pending the trial occasions Appeals Court of Alabama. fully injured hand of examined the 4, 1935. June examinations, plaintiff, and from these coupled attending with the permanent- han'd surgeon, held A total disabled. loss. Mandate Reversed on attending surgeon testified in reference to “I the condition the hand: would permanently and any I don’t think he would have use 'of it. I don’t think what Supreme Court, him whatever.” however, opinion, held in its “this applied erroneously the law to And, undisputed facts so declared.” further, fingers for allowance earning eighty-five a total of week’s weeks, not one hundred and as allowed this original opinion, in our As stated carefully searched this record for evi- dence that sustain court’s con- clusion that