Opinion
6 Div. 903.
March 10, 1936. Rehearing Denied March 24, 1936.
Certiorari to Circuit Court, Jefferson County; Richard V. Evans, Judge.
Proceeding under Workmen's Compensation Act by Robert L. Carlisle, claimant, against the Try-Me Bottling Company, employer. To review a judgment of nonsuit, the claimant brings certiorari.
Affirmed.
Certiorari denied by Supreme Court in Carlisle v. Try-Me Bottling Co., 232 Ala. 562, 168 So. 601.
The following appears from the brief for appellant:
"On June 26, 1934, Robert L. Carlisle filed suit in the Circuit Court for the Tenth Judicial Circuit of Alabama against the Try-Me Bottling Company, a corporation, to recover compensation alleged to be due him under the Workmen's Compensation Act of Alabama for disability suffered by him as a result of injuries sustained by him on August 4, 1933 while employed by the said Try-Me Bottling Company. The complaint was filed under the provisions of Section 28 of the Act of 1919 (section 7578 of the Code of 1923). This suit was docketed in the Court below as Cause No. 86496.
"On the 8th day of August, 1934 the cause was duly heard by Hon. Richard V. Evans, one of the Judges of said Court, and under date of August 8, 1934 Judge Evans filed a Finding of Facts and of Law in the cause, in which judgment was rendered in favor of the plaintiff and against the defendant. This Finding of Facts, and of Law and judgment are set out as Pages 4 and 5 of Exhibit 'A' to the Petition filed in this Honorable Court, and is as follows, omitting the caption:
" 'This cause coming on to be heard this the 8th day of August, 1934, on the plaintiff's complaint and defendant's answer filed herein, and the evidence submitted on the issue joined, and after hearing counsel for the respective parties, the Court finds the facts and the law and enters judgment as hereinafter set forth:
" 'Facts." 'The plaintiff, Robert L. Carlisle, while in the employ of the defendant, on, to-wit, August 4, 1933, met with an accident arising out of and in the course of his employment, by falling from a truck in which he was engaged in delivering for defendant cases of its beverage known as "Try Me." Plaintiff injured the small of his back as a result of the fall, and since the injury has intermittently been treated by Dr. J. D. Sherrill. An X-ray was taken of plaintiff, but it reveals no broken bones or other objective or discernible pathologic condition. He had muscular spasms, and these have not yet quite abated, but their intensity is lessened. His trouble is muscular. His doctor is of opinion that he is not permanently injured but thinks he is still unable to engage in bending or straining, and has not the freedom of bodily movement that would permit of his engaging in work requiring bodily exercise. He lists to one side, and wears an abdominal belt or support. The doctors are unable to say and express no opinion as to how long it will take to effect a complete cure. The doctor advises rest and freedom from all bodily exercise or strain, for him to get well.
" 'The Court adopts the foregoing to be the correct facts of case and so finds, as to conditions prevailing up to date hereof; leaving open and making no finding as to future conditions which would be entirely speculative.
" 'The Court further finds that the average weekly earnings of plaintiff for the 12-month period preceding the accident to be $16.80; that plaintiff is married, has one child, aged 10 years. Plaintiff has been paid compensation from August 4, 1933, to March 28, 1934, or a period of 33 1/2 weeks. He has been paid at the rate of $9.78 per week, or the aggregate sum of $327.63, up to March 28, 1934. He should have been paid 55% of $16.80, or $9.24, per week, instead of $9.78, as paid, or an overpayment weekly of 54 cents, or an aggregate overpayment of $18.02 for the 33 1/2 weeks.
" 'From August 4, 1933, to August 8, 1934, is 52 1/2 weeks, and at $9.24 per week would aggregate $485.10 he is due to be paid in all, and he has been already paid $327.63, leaving a balance due to date (August 8, 1934) of $157.47 to be paid.
" 'Findings of Law." 'The Court is of opinion and so finds the law to be, that plaintiff should be classified as a temporary total disability under Code Section 7551 (a), and is due to be paid 50% of his average weekly earnings plus 5% for one child, or 55% of $16.80, thus making a weekly payment of $9.24 for 52 1/2 weeks. It is accordingly:
" 'Ordered, Adjudged and Decreed, that plaintiff have and receive of defendant the sum of $157.47 presently due, and the court having mero motu appointed a neutral physician, Dr. W. F. Scott — his fee being $25.00 — the same is ordered to be paid 1/2 by each of the parties and the Clerk is ordered to pay out of said $157.47 the sum of $12.50 to said Dr. Walter Scott for the plaintiff, and that defendant pay to the Clerk $12.50 for Dr. Walter Scott, which sum is taxed as part of the costs, and said sum of $12.50 be paid over to Dr. Scott for and on behalf of defendant out of the costs collected, and further that the Clerk pay over to plaintiff's counsel 10% of the amount recovered, to-wit, $15.75, as their fee.
" 'The costs herein are taxed against defendant.
" 'Dated this August 8, 1934.
" 'Richard V. Evans
" 'Judge.'
"The amounts specified to be paid by this judgment were duly paid by the defendant, and no appeal was taken from said judgment by either party to the cause.
"The defendant refusing to pay any further compensation for disability suffered after August 8, 1934, the plaintiff on February 8, 1935 filed his complaint against the defendant for further payments of compensation. The petition as amended appears as Exhibit A to the Petition filed herein. This complaint was docketed by the Clerk of the Court below as Cause No. 89548.
"On September 25, 1935, the cause being reached for hearing, after amendment of the complaint, the defendant filed its 'Special Plea' which appears as Exhibit 'B' to the Petition filed in this Honorable Court. Thereupon plaintiff filed demurrers to this Special Plea which are set forth as Exhibit 'C' to the Petition filed in this Honorable Court.
"The plaintiff's demurrers to the defendant's Special Plea were overruled by the Court, and on account of such adverse ruling plaintiff suffered a non-suit and brought the instant Petition for certiorari."
The plea in abatement alleges that the suit designated as No. 86496, filed by plaintiff June 26, 1934, was against the same defendant and claimed compensation for injuries received and disabilities resulting from the same accident upon which the present suit is based; that the circuit court, after full trial, rendered the judgment hereinabove set out, awarding plaintiff $157.47, in addition to what had already been paid him, as compensation for said injuries and disabilities; that one of the contested issues in said cause was whether plaintiff's disability resulting from said injuries was temporary or permanent, and the award made was upon a finding that plaintiff had a temporary total disability; that defendant paid the amount of said judgment and the same was accepted by plaintiff; that this suit is not a proceeding for the recovery of money determined to be due by the award in cause No. 86496; that said award and judgment are conclusive between the plaintiff and defendant; and that the circuit court was without power, authority, or jurisdiction to award plaintiff additional compensation.
Taylor Higgins, of Birmingham, for petitioner.
The Workmen's Compensation Act is remedial in nature and should be given a liberal construction to accomplish the purpose intended. Ex parte L. N. R. Co., 208 Ala. 216, 94 So. 289; Ex parte National P. F. Co., 213 Ala. 605, 105 So. 693. The effect of the judgment rendered on August 8, 1934, was to find that plaintiff was suffering from a temporary total disability on said date and was entitled to the compensation then awarded; that he would continue to be so disabled in future, but, because the duration of such disability was speculative, the matter was left open for future determination. It would have been erroneous for the court then to have rendered a judgment as to future disability, since same would have been speculative. O'Gara Coal Co. v. Ind. Comm., 316 Ill. 18, 146 N.E. 546; Tazewell Coal Co. v. Ind. Comm., 312 Ill. 145, 143 N.E. 406; Groveland C. M. Co. v. Ind. Comm., 308 Ill. 499, 140 N.E. 24.
Cabaniss Johnston and Jos. F. Johnston, all of Birmingham, for respondent.
The judgment of the circuit court in the prior case was final and conclusive, and the court was without jurisdiction or authority to award additional compensation in this proceeding. Davis v. Birmingham-Trussville Iron Co., 223 Ala. 259, 135 So. 455; Central I. C. Co. v. Coker, 217 Ala. 472, 116 So. 794; Indian Head Mills v. Ashworth, 215 Ala. 348, 110 So. 565; Sloss-S. S. I. Co. v. Lang, 213 Ala. 412, 104 So. 770.
This is a petition by complaint in a suit under the Workmen's Compensation Act (Code, § 7534 et seq.) to review a judgment of nonsuit induced by a ruling of the circuit court on demurrer holding that this suit could not be maintained because of a prior final judgment in a suit between the same parties on the same cause of action. The details of the two suits and prior judgment are fully set out in brief of petitioner, which is hereby adopted as the statement of facts and which appear in the report of the case.
The judgment of a court of competent jurisdiction is the final word between parties to a controversy, and settles everything within the issues raised by the pleadings, and remains such until modified by the court or reversed by a higher tribunal, and is a bar to another action between the same parties for the same subject-matter. Flynn-Harris-Bullard Co. v. H. M. Hampton, 70 Fla. 231, 70 So. 385; 34 Corpus Juris, 507 (805) B; 34 Corpus Juris, 875 (1285) 2.
This is as it should be, that there be an end to litigation. The court in this case had all the parties before it, the subject-matter of the suit, the evidence of the injury, the extent thereof, and the amount of compensation to be awarded under the statute. Under the pleading and proof, judgment was rendered, which under section 7578 of the Code of 1923 became a final adjudication of all the questions within the pleadings.
The amount awarded by the court was definite and was paid and accepted by petitioner. Under section 7571 of the Code of 1923, this finding and award was conclusive and binding between the parties subject to the right of appeal, as provided by statute. If petitioner was not satisfied with the judgment rendered in the case set up in respondent's plea, he had his remedy by motion to modify the judgment or by appeal. Failing in this, the judgment rendered is a bar to further suit based upon the same injury. Davis v. Birmingham Trussville Iron Co., 223 Ala. 259, 135 So. 455; Ex parte Johnston, 231 Ala. 458, 165 So. 108.
It is insisted, however, that the judgment pleaded in bar was only an adjudication of the compensation due to the date of judgment, and that future compensation was expressly not included, as being too speculative. This does appear from the finding of fact, but the pleadings in that case were broad enough to bring within the issue the extent of petitioner's injuries and their probable duration, and it was the duty of the court to have so ascertained. Failing in this, the decree was erroneous, and on appeal would have been reversed. The inquiry is not what the parties actually litigated, but what they might and ought to have litigated. Wood v. Wood, 134 Ala. 557, 33 So. 347; Drinkard v. Oden, 150 Ala. 475, 43 So. 578. The cause of petitioner's action is his injury, and the compensation due thereon may not be split up into separate suits. Crowson v. Cody, 215 Ala. 150, 110 So. 46. The amount of damages and the time of payment is to be fixed by the court within the limits of the statute, section 7551, Code 1923, determinable in the adversary proceedings brought under sections 7571 and 7578 of the Code of 1923. By the express terms of this last-cited section of the Code, "the decision of the judge hearing the same shall be conclusive * * * between the parties, subject to the right of appeal in articles 1 and 2 of this chapter provided for * * * subsequent proceedings thereon shall only be for the recovery of moneys thereby determined to be due." In view of this provision of the statute, our Supreme Court in Ex parte Johnston, 165 So. 108, refused to recognize an order of the trial judges retaining the cause on the docket "for such further and necessary orders as may be mete and proper in the premises."
231 Ala. 458.
It must be borne in mind that the decision in this case is based upon an adversary proceeding under section 7578, Code 1923 and is not intended as a construction of the rights of the parties under Code 1923, § 7550, which provides for an agreement between the parties within certain limits fixed therein.
The writ is denied, and the judgment is affirmed.
Affirmed.