Hill Grocery Co. v. Ligon , 26 Ala. App. 584 ( 1935 )

Under the provisions of section 7318 of the Code of 1923, the decisions of the Supreme Court shall govern the holdings and decisions of this court; therefore the opinion of the Supreme Court in the instant case must prevail, and the decision of this court heretofore rendered must be modified to meet the holding of the Supreme Court wherein the writ of certiorari was granted and the cause remanded to this court for further consideration. From what has been said, there appears no necessity to restate the facts upon which the conclusion of this court on the facts rested. This court affirmed the findings of the trial court in this connection. That court on different occasions pending the trial carefully examined the injured hand of the plaintiff, and from these examinations, coupled with the testimony of the attending surgeon, held that the hand was permanently and totally disabled. A total loss. The attending surgeon testified in reference to the condition of the hand: "I would say it is permanently and totally disabled. * * * I don't think he would have any use of it. * * * I don't think what he has left of the hand will be of any service to him whatever." The Supreme Court, however, held in its opinion, that, "this court has erroneously applied the law to the undisputed facts so declared." And, further, for the loss of the three fingers the allowance is 50 per cent. of the average week's earning for a total of eighty-five weeks, and not for the one hundred and fifty weeks as allowed by this court.

As stated in our original opinion, we have carefully searched this record for evidence that would sustain the court's conclusion that the average weekly earnings of a person in the same grade and employed by the same employer in the same district was $12 per week, and we have been unable to find a scintilla of evidence in the record supporting that conclusion. The decree here sought to be reviewed is therefore erroneous.

The writ of certiorari is granted, the decree appealed from is reversed, and the cause is remanded to the court below to hear and determine evidence as to the average weekly amount which was being earned by a person in the same grade, employed at the same work by the same employer, and, if there was no such person so employed, by a person in the same grade employed, in the same class of employment in the same district, subject to the maximum of $12 per week, and, as provided in the opinion of the Supreme Court, supra, the injured party is entitled to recover for 85 weeks, at that rate.

Writ granted.

Reversed and remanded.