Opinion
6 Div. 870.
December 19, 1935.
Appeal from Certiorari to Court of Appeals.
Benners, Burr, McKamy Forman, of Birmingham, for the motion.
All payments made as compensation for the injury are to be deducted from the compensation, if any, due on account of death. Advances absolutely necessary to the injured employee are to be credited to the employer. Code 1923, § 7551 (f); Honnold's Workmen's Corp. p. 667; Paramount Coal Co. v. Williams, 214 Ala. 394, 108 So. 7; Oilmen's Reciprocal Ass'n v. Coe (Tex.Civ.App.) 29 S.W.(2d) 430; Routh v. List W. Const. Co., 124 Kan. 222, 257 P. 721, 62 A.L.R. 150. Interested parties have the right to settle all matters of compensation between themselves. Money paid by the employer in advance of agreement or award is treated as advance payments of compensation. Code 1923, § 7550.
Horace C. Alford, of Birmingham, opposed.
The claim by the employee and that of his dependents on account of his death are distinct, neither of which can be discharged by the owner of the other. An unsecured loan, made by the employer to the injured employee as an advance, without authorization by the court, is not deductible from compensation due dependents. Milwaukee Coke Gas Co. v. Ind.Comm., 160 Wis. 247, 151 N.W. 245, 246; Code 1923, §§ 7550, 7558, 7551 (f).
The plaintiff's husband, Roy King, a workman in the service of the defendant, on March 18, 1930, sustained an injury as the result of an accident arising out of and in the course of his employment, resulting in total permanent disability. Said injury proximately resulted in his death on the 2d day of August, 1934.
The workman at the time of his injury had four dependents, his wife and three sons. Two of the sons became eighteen years of age before the workman's death.
The trial court ascertained the liability of the defendant up to the time of King's death as follows:
"89 3/7 weeks at $15.00 per week ..................... $1,341.43 plus
"102 6/7 weeks at $14.00 per week ..................... 1,440.00 plus
"36 1/7 weeks at $13.00 per week ....................... 469.86 ---------- Total — $3,251.29."
The trial court also ascertained the defendant's liability to the surviving dependents — the widow and one minor son — to be 71 4/7 weeks at $11.02, total $788.04.
The defendant advanced to the injured workman over and above its liability the sum of $476.91, in respect of which the trial court and the Court of Appeals find:
"Said overpayment of $476.91 was intended to be made by defendant and was intended to be received by Roy King as advance payment of compensation to Roy King, Roy King used $176.91 of said overpayment or advance payment for the support and maintenance of his family, including the petitioner and the minor child, Roy King, Jr. Three Hundred Dollars of said overpayment or advance payment was paid to Roy King at his, said Roy King's request, to enable said Roy King to discharge certain mortgage payments due upon his home, and which said sum was expended for that purpose, and for said sum of $300.00, Roy King executed a receipt to the defendant, in words and figures as follows: 'Received of Tennessee Coal Iron Railroad Company, a voucher in the amount of $300.00 payable to me the undersigned Roy King, which is an advanced payment of compensation for personal injuries sustained at Edgewater Mine, March 18, 1930. This 25th day of February, 1933. Signed: Roy King.' "
The defendant employer insisted on' the trial and in the Court of Appeals that its liability to the surviving dependents should be tolled, not only by the payments made to the injured workman for which it was liable under the Workmen's Compensation Act (Code, § 7534 et seq.), but by the advanced payment. This contention was denied by both the trial court and the Court of Appeals.
There is no question of settlement of liability in full, such as is contemplated by section 7550, Code. The advance payments were made to the injured workman to be absorbed by subsequent installments of liability as they accrued, and while the motive prompting the advance payments was praiseworthy, the question is governed by the provisions of subsection (f) of section 7551 of the Code of 1923, that "in case a workman sustained an injury occasioned by an accident arising out of and in the course of his employment and during the period of disability caused thereby death results proximately therefrom, all payments previously made as compensation for such injury shall be deducted from the compensation, if any, due on account of death." (Italics supplied.)
The right of action accruing under the statute to the dependents, as the Court of Appeals and the trial court held, is separate and distinct from that accruing to the injured workman. One results from the death of the workman, the other from his injury. The right of the surviving dependents does not arise until the death of the workman, while his right accrued immediately upon his injury. The clear legislative intent expressed is to toll the liability to the dependents by the payments made to the injured workman in due course as they matured. The Legislature, in the enactment of the Workmen's Compensation Act, was not dealing with loans, advances, or charities, but established a new system of liability, as between master and servant treating injuries to workmen arising out of and in the course of their employment as the products of industry, in derogation of the doctrine of the common law that negligence or wrongful acts proximately causing such injuries were the only just foundation of legal liability for such injuries.
Writ denied.
THOMAS, BOULDIN, and KNIGHT, JJ., concur.