Opinion
6 Div. 463.
January 14, 1926.
Appeal from Circuit Court, Jefferson County; Joe. C. Hail, Judge.
B. F. Smith and A. M. Boone, both of Birmingham, for appellant.
The decree is not sufficient as to statement of facts. Acts 1919, p. 227, § 28. The award is without support of facts or law. Ætna Co. v. Schaeffer, 209 Ala. 77, 95 So. 351; Ex parte Thomas, 209 Ala. 276, 96 So. 233; Johnson v. Republic I. S. Co., 212 Ala. 149, 102 So. 44; Ex parte Sloss Co., 212 Ala. 3, 101 So. 608; Code 1923, § 7553.
D. G. Ewing, of Birmingham, for appellee.
The finding of fact by the trial court is conclusive. Ex parte Sloss Co., 207 Ala. 219, 92 So. 458; Ex parte Thomas, 209 Ala. 276, 96 So. 234. It is clear as to facts and law in this case. Code 1923, § 7578. Children are conclusively presumed to be dependent. Code 1923, § 7552.
The petition was under the Workmen's Compensation Act (Gen. Acts 1919, p. 206 et seq.), and compensation was allowed the minor children.
The decree of the lower court awarding compensation for the benefit of the two minor children of appellee is in compliance with the statute, and contained a statement of the law and facts supporting the conclusion and judgment of the court. Gen. Acts 1919, p. 227, § 28. The bill of exceptions in the trial before the court will not be considered (Ex parte Woodward Iron Co., 212 Ala. 220, 102 So. 103) except by the rule obtaining (Ex parte Paramount Coal Co. [Ala. Sup.] 104 So. 753; Ex parte Jagger Coal Co., 211 Ala. 11, 99 So. 99; Ex parte Mt. Carmel Coal Co., 209 Ala. 519, 96 So. 626; Ex parte Sloss-Sheffield S. I. Co. [Greek's Case], 207 Ala. 219, 92 So. 458; Ex parte Smith Lumber Co., 206 Ala. 485, 90 So. 807; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803).
The finding of the court denying compensation for the death of the husband to the wife for whose support he was not "in any way" contributing was in accordance with the statute and construction thereof by this court. Such legislative declarations of dependency are not offensive to the provisions of the Constitution. Ex parte Thomas, 209 Ala. 276. 96 So. 233; 30 A.L.R. 1266. Under the statute, except with regard to those dependents who are by express provision conclusively presumed to be dependents, the questions of total or partial dependency vel non and the amounts of the award (within statutory limitation) are questions of fact. Ex parte Jagger Coal Co., 211 Ala. 11, 99 So. 99; Sloss-Sheffield S. I. Co. v. Greek, 211 Ala. 95, 99 So. 791. A finding as to dependency, or the lack thereof, is conclusive on review, if there is any substantial evidence to support the conclusion announced. Ex parte Majestic Coal Co., 208 Ala. 86, 93 So. 728; Ex parte Thomas, 209 Ala. 276, 96 So. 233; Ex parte Coleman, 211 Ala. 248, 100 So. 114; Ex parte Sloss-Sheffield S. I. Co. (Greek's Case), 207 Ala. 219, 92 So. 458; Ex parte L. N. R. R. Co., 208 Ala. 216, 94 So. 289; Ex parte Nunnally Co., 209 Ala. 82, 95 So. 343; Ex parte Shaw, 210 Ala. 185, 97 So. 694; Ex parte Smith Lumber Co., 206 Ala. 485, 90 So. 807; 30 A.L.R. 1277. Conclusions of fact cannot be reviewed by certiorari within the rule obtaining. Ex parte Sloss-Sheffield S. I. Co. (Greek's Case), 207 Ala. 219, 92 So. 458.
The procedure in cases of dispute is prescribed (Gen. Acts 1919, p. 227, § 28; Code 1923, § 7578), and has been followed in the trial court. The decree is specific as to finding of fact and law under which the award was made. Children of the classes indicated by statute are presumed to be dependent. Code 1923, § 7552 et seq.; Ex parte Thomas, 209 Ala. 276, 96 So. 233; Ex parte Todd, etc., Co., 212 Ala. 477, 103 So. 447.
The difference made by the Legislature as to dependency between the wife and children is founded in reason, the result of common observation and experience. A child within the ages indicated by the statute is conclusively presumed to be dependent, as are those over 18 years of age, if physically or mentally incapacitated from earning a livelihood. Code 1923, § 7552; Acts 1919, p. 217, § 14; Ex parte Central C. I. Co., 209 Ala. 22, 95 So. 472; Ex parte Thomas, supra; Ex parte Majestic Coal Co., supra.
A wife is conclusively presumed to be dependent, unless she was: (1) Voluntarily living apart from the husband at the time of his injury or death; (2) not married to decedent at the time of the accident or for a reasonable period prior to his death; or (3) not supported by the husband "in any way contributing" thereto at the time of his death.
The foregoing conditions as to the wife are not imposed by statute upon the children of decedent. Ex parte Thomas, supra; Johnson v. Republic, etc., Co., 212 Ala. 149, 102 So. 44. That is to say, children under the age of 16 are not acquainted with or capacitated to compete with the necessities of life or the customs and requirements of business and social conditions, and are not acquainted with the laws protecting their rights and governing the family relations. Hence the Legislature makes the reasonable distinction between the wife and child as dependents of the husband and father.
The writ is denied, and the judgment of the circuit court is affirmed.
Writ denied; judgment affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.