Ex Parte W. T. Smith Lumber Co. , 206 Ala. 485 ( 1921 )

This petitioner seeks to review the judgment of the circuit court by the common-law writ of certiorari as provided by sections 21 and 28 of the Workmen's Compensation Act of 1919, pp. 206 to 239.

The only question argued and insisted upon as error is the conclusion of the trial court to the effect that the deceased was an employé or workman within the terms of said act. While the petition is accompanied by a bill of exceptions, this court cannot look to same, as the right of review is confined by the statute to a common-law writ of certiorari, and under which we can only consider questions of law apparent upon the record, but which said record includes the written statement of the trial judge as required by section 28. Woodward Co. v. Bradford, ante, p. 447, 90 So. 803.

As to who did or did not constitute an employé under the Employers' Liability Act (Code 1907, § 3910), as construed by our former decisions, may not now be a material factor as the present act defines both an employer and employé. It says (section 36):

"The term 'employer' as used herein shall mean every person not excluded by section 8, who employs another to perform a service for hire and to whom the 'employer' directly pays wages. * * * The term 'employé' and 'workman' are used interchangeably and have the same meaning throughout this act, and shall be construed to mean * * * (2) Every person not excluded by section 8, in the service of another under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally permitted to work under the laws of the state."

This act was largely borrowed from the state of Minnesota, and in the case of State ex rel. Virginia Co. v. District Court of St. Louis Co., 128 Minn. 43, 150 N.W. 211, decided prior to the adoption of the present act, while the Minnesota court deemed it unnecessary to construe the above-quoted provision, it did hold that the same was not intended to confine the relation of employer and employé within narrower limits than the rule heretofore existing. It was also held that, notwithstanding there was no evidence that the defendant reserved no control or supervision over the workmen except the inference arising from the character of the work, the question was one for the jury unless it appeared conclusively that the right to control and supervise the work was not reserved. We therefore hold that the facts as set forth by the trial judge are sufficient to justify his finding that the deceased was an employé of the defendant even under the old rule as to control and supervision over him and the work.

On the other hand, if we give the above-quoted provision a broader construction and hold that an employé under the act includes all persons not excluded by section 8 who is employed by another to perform service for hire and to whom wages are directly paid this deceased would doubtless come within the influence of the act regardless of the question of control and supervision.

"The terms 'wages,' 'weekly earnings,' and such expressions shall in all cases, unless the context clearly indicates a different meaning, be construed to mean 'average weekly earnings.' " The trial court did not err in holding that the deceased was an employé, or workman, within the Workmen's Compensation Act, and the writ must be denied.

While we have based our opinion upon the record and followed the rule as set forth in the case of Woodward Iron Co. v. Bradford, supra, the bill of exceptions has been examined, and, it is sufficient to suggest, abounds with evidence sufficient to justify a finding by a jury or the conclusion of a judge without a jury that the defendant exercised such control and supervision over the deceased and the work as to render him an employé both under the old rule as well as the present statute.

Writ denied.

SAYRE, GARDNER, and MILLER, JJ., concur.