47 So. 66 | Ala. | 1908
The complaint as originally filed contained three counts. The third was eliminated by the sustaining of the demurrer interposed to it. The trial was then had, upon issue joined on the other two and
The testimony established without dispute that plaintiff was injured while at work as an employe of defendant, and that a benefit fund was provided and kept by defendant, out of which the plaintiff was entitled to receive one-half the wages he was earning at the time of his injury, during the continuation of his disability, which was to be determined by his attending physician and certified to the company. This fund was raised by contributions by the employes and the company. The testimony on behalf of defendant tended to show that plaintiff had been paid all that he was entitled to receive out of the fund under the physician’s certificate, while that of plaintiff tended to show that he received all that was due him under the certificate except $10.
It is entirely clear from the evidence that the physician’s certificate as to the period of time during which the plaintiff was entitled to receive half wages was conclusive upon him and the defendant, and also that the defendant did not contract to insure the plaintiff against accident, as alleged in the second count of his complaint. The affirmative charge, requested by defendant, with respect to a recovery by plaintiff on that count, should have been giveja. Under the first count, it was a question for the jury to determine whether plaintiff was entitled to recover the $10, the payment of which was in dispute.
Reversed and remanded.
