DocketNumber: 6 Div. 525.
Citation Numbers: 108 So. 7, 214 Ala. 394
Judges: BOULDIN, J.
Filed Date: 1/14/1926
Status: Precedential
Modified Date: 1/11/2023
This is a compensation case brought by the dependent widow of the deceased employee. The primary inquiry is whether the death of the employee resulted from the injury admittedly received, or from disease apart from the injury.
In Ex parte Paramount Coal Co.,
On this state of the evidence, the finding of the trial court that the injury was the proximate cause of death should not be disturbed. In death cases the deduction of the amount paid to the injured employee prior to his death under subdivision (f), § 7551, does not contemplate that, in fixing the period of compensation to the dependent wife, there shall be deducted the number of weeks for which the employee was voluntarily paid compensation at a less rate per week than is found due the wife. Her period of compensation should be reduced by the number of weeks ascertained by dividing the aggregate amount paid the husband by the amount of weekly compensation due the wife. The burden *Page 396 is on the defendant to show the fact and amount of payments to the husband. No evidence appears in the record on that issue. The trial court was not required to look to the record in the other case tried before him to ascertain these facts, unless that record was offered in evidence, which does not appear. Neither does this record show that the former record would have disclosed the amount so paid. The evidence offered on the trial warranted the amount awarded. Section 7557, requiring payment of "the expenses of last sickness, and burial, not exceeding in amount one hundred dollars," fixes a maximum, not a flat allowance of $100 in each case. The burden is on plaintiff to show the amount incurred for these purposes. To bring these items within the statute, the burden is also on plaintiff to show no insurance or benefit association is liable therefor. This is a condition to recovery within the special knowledge of the plaintiff. No claim for these items was made in the complaint. The better practice is to set out these facts in the complaint. Code, § 7578.
When this is done, and no issue is made thereon by answer, no proof is required. Under our liberal system of procedure, if the matter is presented in evidence, we do not say there should be a reversal for want of pleading; but when the question of liability is presented in neither pleading nor proof, it is error for the court, of its own motion, to include in the judgment $100 for burial expenses.
For this error the writ of certiorari is granted, the judgment set aside, and the cause remanded for another trial.
Writ granted; reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
Sealey v. State , 218 Ala. 167 ( 1928 )
Braxton v. Sloss-Sheffield Steel Iron Co. , 243 Ala. 117 ( 1942 )
Wade Richey v. Oglesby , 251 Ala. 356 ( 1948 )
Alabama Textile Products Corporation v. Grantham , 263 Ala. 179 ( 1955 )
Phelps v. Public Service Commission , 46 Ala. App. 13 ( 1970 )
Tennessee Coal, Iron R. Co. v. King , 26 Ala. App. 581 ( 1935 )