Opinion
6 Div. 79.
May 19, 1932. Rehearing Denied June 23, 1932.
Appeal from Circuit Court, Cullman County; James E. Horton, Judge.
Miller, Graham Wingo and John S. Foster, all of Birmingham, for appellant.
The bill of exceptions will be looked to for the purpose of determining whether there is an absence of legal evidence to support the finding of a material fact, and in absence of such legal evidence the judgment will be reversed. Hearn v. United States C. I. P. F. Co., 217 Ala. 352, 116 So. 365; Ex parte Big Four C. M. Co., 213 Ala. 305, 104 So. 764; Woodward Iron Co. v. Vines, 217 Ala. 369, 116 So. 514; Ex parte Woodward Iron Co., 211 Ala. 74, 99 So. 97. When the undisputed facts show a certain percentage of disability and the trial judge finds a higher percentage, the error becomes one of law subject to review by certiorari. Greek v. Sloss-Sheffield S. I. Co., 207 Ala. 219, 92 So. 458; Ex parte Louisville N. R. Co., 208 Ala. 216, 94 So. 289; Ex parte Mt. Carmel Coal Co., 209 Ala. 519, 96 So. 626.
A. A. Griffith and W. Marvin Scott, both of Cullman, for appellee.
The Supreme Court will not review the conclusion of the trial judge based upon disputed facts. Ex parte Sloss-Sheffield S. I. Co., 207 Ala. 219, 92 So. 458; H. Bullard v. Cullman Heading Co., 220 Ala. 143, 124 So. 200.
The right of the plaintiff to compensation is not questioned by this petitioner, the Heading Company, but it is insisted that the allowance was excessive, first, that the trial court erroneously found that the impairment of the use of the arm was 50 per cent.; and, second, in fixing the amount of the plaintiff's previous earnings. We may concede that the weight of the evidence supports the petitioner's contention, but the question, in cases of this character, is not where lies the weight of the evidence, but is there any evidence or reasonable inference in support of the finding or conclusion of the trial court? Greek v. Sloss-Sheffield Steel Iron Co., 207 Ala. 219, 92 So. 458. It is sufficient to say that, while the medical men testified on the trial that the use of the arm was impaired from 20 to 40 per cent., two of them had given previous statements that the injury was as high as 75 per cent., and the conclusion of the trial court that the extent of the injury was 50 per cent. finds support in the evidence. It may also be noted that, while the time sheets and earnings as set out upon the trial may have shown that the plaintiff had not earned as much as $15 per week for the year preceding the injury, yet the manager of the defendant, Kinser, reported to the "Workmen's Compensation Commission" that the average weekly earnings of the plaintiff for the past fifty-two weeks was $15 a week, and this was a fact or inference to support the finding of the trial court.
The writ is denied, and the judgment of the circuit court is affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.