London Yancey and Fred G. Koenig, Sr., all of Birmingham, for appellants. Appellee was entitled to 25% or 40% for permanent partial loss of use of leg, and not to permanent partial disability as a whole man to the extent of 80%. Code 1923, § 7551(c); Ex parte Diniaco Bros., 207 Ala. 685, 93 So. 388; Ex parte Jefferson Slag Co., 209 Ala. 263, 96 So. 138; Doullut Ewin v. Seabury, 217 Ala. 285, 116 So. 134; Galloway Coal Co. v. Standard, 215 Ala. 79, 109 So. 377, 379; Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743. On certiorari to review judgment under Compensation Act the appellate court in ascertaining whether findings of fact are supported by any evidence, will look to bill of exceptions. Ex parte Sloss-S. S. I. Co., 207 Ala. 219, 92 So. 458; Hardisty v. Woodward Iron Co., 214 Ala. 256, 107 So. 837; Woodward Iron Co. v. Vines, 217 Ala. 369, 116 So. 514; Woodward Iron Co. v. Dean, 217 Ala. 530, 117 So. 52, 60 A.L.R. 536. Wm. S. Pritchard, David R. Solomon, Winston B. McCall, and A. W. Jones, all of Birmingham, for appellee.
Code 1940, Tit. 26, § 279(G); Ex parte DeBardeleben Coal Co., 212 Ala. 533, 103 So. 548. Liability in a workmen's compensation case may not be predicated on speculation and conjecture. Alabama Pipe Co. v. Wofford, 253 Ala. 610, 46 So.2d 404. Cross-errors may be assigned in a compensation case. Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743; Goodyear Tire Rubber Co. v. Downey, 266 Ala. 344, 96 So.2d 278. J. Eugene Foster, Montgomery, for Ala. Dept. of Industrial Relations.
For discussions as to the right to compensation as affected by the fact that an injured employee earns or is offered as much as or more than before the injury, see 149 A.L.R. 413; 118 A.L.R. 731; 17 A.L.R. 205. See, also, the discussions in Birmingham Post Co. v. McGinnis, 256 Ala. 473, 477, 55 So.2d 507; Alabama By-Products Co. v. Landgraff, 248 Ala. 253, 257-258, 27 So.2d 215; Nashville Bridge Co. v. Honeycutt, 246 Ala. 319, 325, 20 So.2d 591;and Agricola Furnace Co. v. Smith, 239 Ala. 488, 492, 195 So. 743, 746. We quote the following from the Agricola case:
Sloss-Sheffield Steel Iron Co. v. Watts, 236 Ala. 636, 184 So. 201; Alabama Marble Co. v. Jones, 217 Ala. 300, 116 So. 147; Sloss-Sheffield Steel Iron Co. v. Foote, 231 Ala. 275, 164 So. 379; Ex parte Stith Coal Co., 213 Ala. 399, 104 So. 756; Nashville Bridge Co. v. Honeycutt, 246 Ala. 319, 20 So.2d 591. Knowledge of the happening of an accident without knowledge that injury resulted therefrom is insufficient. Sloss-Sheffield Steel Iron. Co. v. Keefe, 217 Ala. 409, 116 So. 424; Republic Steel Corp. v. Willis, 243 Ala. 127, 9 So.2d 297. If there has been no actual impairment of earning capacity as result of accident, no compensation can be awarded. Ex parte American-Blakeslee Mfg. Co., 19 Ala. App. 547, 98 So. 817; Alabama By-Products Co. v. Landgraff, 248 Ala. 253, 27 So.2d 215; Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743. Azar Campbell, of Montgomery, for appellee.
Ex parte Stith Coal Co., 213 Ala. 399, 104 So. 756; Ex parte Mt. Carmel Coal Co., 209 Ala. 519, 96 So. 626; American Radiator Co. v. Andino, 217 Ala. 424, 116 So. 121; Tennessee C., I. R. Co. v. Pope, 21 Ala. App. 183, 107 So. 735; Id., 214 Ala. 383, 107 So. 736; Sloss-S. S. I. Co. v. Foote, 231 Ala. 275, 164 So. 379; State v. Dist. Court, 132 Minn. 251, 151 N.W. 278; Great A. P. T. Co. v. Davis, 226 Ala. 626, 148 So. 309; Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565. Plaintiff was entitled to compensation based upon the extent of his disability, during such time as the disability continues, although he lost no time from work. Code, Tit. 26, §§ 26, 253, and 279(B) 1, (C) 1, C (6), (F). Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743; De Zeng Standard Co. v. Pressey, 86 N.J.L. 469, 92 A. 278; Id., 88 N.J.L. 382, 96 A. 1102; Luckenbach S. S. Co. v. Norton, 3 Cir., 96 F.2d 764; 71 C.J. 865; Blackford v. Green, 87 N.J.L. 359, 94 A. 401; Id., 89 N.J.L. 357, 100 A. 1069; 17 A. L.R. 205; Beal v. El Dorado Ref. Co., 132 Kan. 666, 296 P. 723. THOMAS, Justice.
Wages or salary voluntarily paid to an employee by his employer after an injury covered under the Workmen's Compensation Act are not deductible from a compensation award later entered against the employer in the absence of an express agreement that such monies were being paid to the employee as compensation payments or in the absence of other facts clearly proving that such monies were being paid to the employee "on account" as Workmen's Compensation. Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743; McGhee v. Sinclair Refining Co., 146 Kan. 653, 73 P.2d 39; Middleton v. City of Waterton, 70 S.D. 173, 16 N.W.2d 39; Hartford Accident Indemnity Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904; Goodyear Tire Rubber Co. v. Downey, 266 Ala. 344, 96 So.2d 278. An uneducated laborer, whose work requires bending, stooping, and lifting heavy objects, and who sustains 33 1/3% permanent disability of the body as a whole because of a back injury, is substantially 100% disabled as to earning capacity and ability to find employment. Bell v. Driskill, 282 Ala. 640, 213 So.2d 806; Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380; Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315; Warrior Stone Contracting Co. v. DeFoor, 241 Ala. 227, 2 So.2d 430; Semmes Nurseries, Inc. v. McVay, 279 Ala. 42, 181 So.2d 331.
The amount due as compensation for the temporary total disability was $35 a week. The only question before the District Court, and before us, is whether the Deputy Commissioner erred in holding that the difference of $49 a week when the claimant was not working was "wages" rather than "advance payments of compensation" for the permanent injury. Since the sums in question were not paid for services rendered, they may not properly be described as "wages," see 33 U.S.C.A. § 902(13), and the cases cited by appellant in which the courts declined to reduce a schedule award for a permanent partial disability by the amount of post-injury earnings, e.g., Atlas Coal Co. v. Moore, 298 Ky. 767, 184 S.W.2d 76; Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743, are therefore inapplicable. Moreover, the employer does not contend that the claimant is not entitled to the full schedule award; he seeks only to be credited with amounts paid before the permanent injury was administratively determined.
" For other authority, see Birmingham Post Co. v. McGinnis, 256 Ala. 473, 55 So.2d 507; Alabama By-Products Co. v. Landgraff, 248 Ala. 253, 27 So.2d 215; Nashville Bridge Co. v. Honeycutt, 246 Ala. 319, 20 So.2d 591; Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743; and 2 Larson, Workmen's Compensation Law, § 57.21, pp. 4-6. III.
Technical rules of procedure are to be disregarded in such cases. Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743; Braswell v. Brooks, 266 Ala. 141, 94 So.2d 879. Complaint need not describe with extreme particularity all characteristics and consequences of personal injuries. Mobile O. R. Co. v. Watson, 221 Ala. 585, 130 So. 199. Trial court must determine percentage of disability by looking at the evidence.
Code, Tit. 26, §§ 253, 262, 296, 312. Payment of a few days' wages after injury where the employee reports for work each of those days and works, or tries to work for each of those days and employer thereafter refuses to continue to employ him does not constitute payment of compensation so as to toll statute of limitations. 144 A.L.R. 606; Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743; 175 A.L.R. 725; 58 Am.Jur. 849; Pittman v. Glencliff Dairy Products Co., 154 Kan. 516, 119 P.2d 470, 144 A.L.R. 600; Ingall's Shipbuilding Corp. v. Cahela, 251 Ala. 163, 36 So.2d 513. Injured employee was not mentally incapable of performing acts required to institute action under Workmen's Compensation Act within time required. Code, Tit. 26, § 296; Taylor v. Tennessee Coal, Iron, Ry. Co., 219 Ala. 614, 123 So. 78. The only requirement as to the judgment of the trial court, in regard to the finding of facts, is that the judgment make a finding of every fact necessary to sustain the judgment, which have been established by the evidence and which are responsive to the issues, and a substantial compliance therewith is sufficient. Code, Tit. 26, § 304; Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 82 So.2d 204; Bryant v. Central Foundry Co., 217 Ala. 332, 116 So. 345; Ex parte Sloss-Sheffield Steel Iron Co., 207 Ala. 219, 92 So. 458.