The minority opinion of Mr. Justice Miller, concurred in by Mr. Justice Sayre, attacks, and would overrule, the cases of Ex parte Diniaco Brothers, 207 Ala. 685, 93 So. 388, and Ex parte Jefferson Slag Co., 209 Ala. 263, 96 So. 138, as to their construction of that part of subdivision (c) of section 13 of the Workmen's Compensation Act (now subdivision [c] of section 7551 of the Code) relating to compensation for partial permanent disability not specially provided for by the schedule.
The act (subdivision [c]) schedules a long list of disabilities, including the complete loss of members of the body, for which a uniform rate of compensation is provided — the period of compensation in each case varying with the nature and gravity of the loss. It then provides that —
"In cases of permanent disability, due to injury to a member resulting in less than total loss of use of such member, not otherwise compensated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member, which the extent of the injury * * * bears to its total loss." (Italics supplied.)
The rate prescribed in all of those cases is "50 per cent. of the workman's average weekly earnings," and the period of compensation for the total loss of a foot is 125 weeks. The Diniaco Case, supra, construed the above provision as meaning that the workman who suffers, say (as here), a 30 per cent. loss of one foot, and whose average weekly earnings were $30, must be compensated at the rate of $15 a week for three-tenths of 125 weeks; that is, for a period of 371/2 weeks. The minority opinion holds that he must be compensated at the rate of three-tenths of $15, that is, $4.50, a week for the full period of 125 weeks.
In am unable to find in the language of the act any rational basis for this difference of opinion. A simple statement of the terms used vindicates the holding of the Diniaco Case as effectively as the most elaborate argument could do. Payment "at the prescribed rate" does not, and cannot, mean payment at a fraction of that rate; and payment during a proportionate "part of the time specified in the schedule for the total loss of the * * * members" does not, and cannot, mean payment during the whole of that time. These are simple, elemental propositions, which ought to be beyond the reach of judicial casuistry.
If, indeed, the language in question went no further than to provide in general terms for compensation proportionate to the injury, the whole scheme and structure of the act would forbid the construction demanded by the minority opinion, because the rate prescribed is unvarying, while the period of compensation varies for each separate injury according to its nature and extent. A specific instance is found at the twelfth line of subdivision (c) of section 7551 of the Code:
"The loss of the first phalange of the thumb, or of any finger, shall be considered as equal to the loss of one-half of such thumb, or finger, and compensation shall be paid at the prescribed rate during one-half of the time specified above for such thumb or finger."
Thus did the Legislature make a practical exposition of the clear and simple scheme intended to be used for computing compensation — a uniform weekly rate to be paid for a greater or less number of weeks.
Under acts not explicit like ours, but prescribing proportionate compensation in general *Page 81 terms, the courts of Iowa and New Jersey have applied the percentage of disability to the period of compensation, and not to the rate. Spurgeon v. I. M. Granite Wks., 196 Iowa, 1268,194 N.W. 286; Orlando v. F. Ferguson Son, 90 N.J. Law, 553,102 A. 155, 156.
I submit, as logically indisputable, the proposition that the terms of the provision under discussion present a double specification of rate and time which demands a proportion of the time and the whole of the rate as a basis for the computation, and that the language used to express that legislative intention is so clear and precise that nothing could be added to improve its clarity and precision.
But, if the meaning of the provision were not thus unmistakably clear, the proposal of the minority opinion to overrule the Diniaco and Jefferson Slag Co. Cases, supra, is indefensible for three distinct reasons, based upon three distinct principles to which this and all courts have repeatedly professed allegiance.
1. The Diniaco Case was decided on May 11, 1922, more than four years ago, and it was deliberately followed by the Jefferson Slag Co. Case on April 19, 1923. The doctrine of stare decisis forbids that judicial decisions deliberately rendered should be set aside, unless they are clearly wrong and violative of sound principle or social morality. It expresses the conservatism of the law, and underlies its entire structure. If it be disregarded, there can be no system of law, but only chaos reflecting the vacillating opinions of the judges who come and go.
2. Our Workmen's Compensation Act is founded almost entirely upon the Minnesota act (Gen. St. 1923, §§ 4261-4337). Section 13 of our act (section 7551 of the Code) is a literal copy of the Minnesota act. Two years and a half before our act was adopted, viz., on February 16, 1917, the Supreme Court of Minnesota clearly and definitely construed the identical provision here under consideration exactly as we construed it in the Diniaco Case. Said the court:
"There was a permanent partial disability 'due to an injury to a member [a foot], resulting in less than total loss of such member.' Compensation should have been awarded at the prescribed rate (50 per cent. of daily wages, or $7.50 per week) for such a part of 125 weeks as the extent of the injury to the foot bore to its total loss. For what period of time this would be it is impossible for us to say on the record before us." State ex rel. John Wunder Co. (Globe Indemnity Co.) v. District Court Hennepin County, 136 Minn. 147, 150,161 N.W. 391, 392.
The same construction was followed in the later cases of Chiovitte v. Zenith Furnace Co., 148 Minn. 277, 181 N.W. 643, and Hellie V. Am. Ry. Express Co., 157 Minn. 456,196 N.W. 566. In both cases the court applied the percentage of loss categorically to the period of payments, but without discussion, because, it may be justly assumed, the language of the act was deemed too plainly to that effect to permit of discussion. The Minnesota court is a court of recognized ability and high standing, and it has been studying and construing this act for 20 years or more. Its judgment as to its proper meaning is entitled, I think, to the highest consideration.
The general rule of construction is that, "where the Legislature enacts a provision taken from a statute of another state or country, in which the language of the act has received a settled construction, it is presumed to have intended that such provision should be understood and applied in accordance with that construction." 36 Cyc. 1154-1156, and cases cited under note 81; Kennedy v. Kennedy, 2 Ala. 571. In Fuller v. Lanett, etc., Co., 186 Ala. 117, 65 So. 61, it was said that such a construction "is at least persuasive that our Legislature intended to adopt it as construed in the jurisdiction from which it was borrowed." Specifically, this court, applying this rule, has twice followed the construction given to particular sections of this act by the Supreme Court of Minnesota. Ex parte W. T. Smith Lbr. Co., 206 Ala. 485,90 So. 807; Ex parte Mt. Carmel Coal Co., 209 Ala. 519,96 So. 626. I can see no reason for the repudiation of that presumption and rule of construction in this case, and none has been suggested.
3. There is another rule of construction which this court has uniformly recognized for nearly three-quarters of a century, and to which it has always accorded the obligation of a mandate:
"It is a settled rule, that, in the adoption of the Code, the Legislature is presumed to have known the fixed judicial construction pre-existing statutes had received, and the substantial re-enactment of such statutes is a legislative adoption of that construction." Morrison v. Stevenson, 69 Ala. 448, quoted with approval in Wood, etc., Co. v. Cocciola,153 Ala. 555, 45 So. 192.
So, in Barnewall v. Murrell, 108 Ala. 366, 377, 18 So. 831,836, it was declared, per Brickell, C. J.:
"It is an elementary rule of statutory construction, that re-enacted statutes must receive the known, settled construction which they had received when previously of force, for it must be presumed the Legislature intended the adoption of that construction, or they would have varied the words, adapting them to a different intent. Sutherland Stat. Con. § 256. The rule has been of frequent application to the Code; in its construction, uniformly, the Legislature has been presumed to have known the settled construction of statutes, of which there was a substantial re-enactment, and to have intended the adoption of such construction." *Page 82
The rule was clearly stated and applied in Duramus v. Harrison, 26 Ala. 327, decided in 1855, and, as Judge Brickell observed, has never been disregarded. The cases are collected in 11 Mich. Dig. 1114, and in 14 Mich. Dig. 894.
Our Workmen's Compensation Act was adopted August 23, 1919. The provision here in question was construed by the Diniaco Case in May, 1922, and that case was expressly followed by the Jefferson Slag Co. Case in April, 1923. It had, therefore, received a fixed and known judicial construction for 15 months prior to its re-enactment by the Legislature on August 17, 1923, as a part of the Code of 1923. I can conceive of no reason, and none has been suggested, for a repudiation of this principle of construction in the instant case.
There is one other principle of the Diniaco and the Jefferson Slag Co. Cases, which is rejected by the minority opinion, and also by the opinion of Mr. Justice Bouldin, and which therefore requires some further discussion.
In both of those cases there was an ascertained period of total disability, followed by an ascertained percentage of permanent disability of a member — a permanent partial disability under subdivision (c) of section 13 of the act (of section 7551 of the Code). It was held that these periods of disability, resulting from a single injury to a member, were not doubly compensable; but, when compensation is had for the period of total disability, that period, if less, must be deducted from the period allowed for the permanent partial injury, and compensation allowed only for the remainder of that period. The proper method of computation was declared to be to deduct the period of compensated total disability from the period fixed by the act for the permanent partial disability. In the instant case, the periods compensated for, as for total and temporary partial disability under subdivisions (a) and (b), using approximate figures, amount to 27 weeks. For permanent partial disability from the total loss of a foot the period of compensation is 125 weeks. For a 30 per cent. loss of a foot the period of compensation is that proportion of 125 weeks, or 37 1/2 weeks. Deducting 27 from 37 1/2, the additional period for compensation is 10 1/2 weeks at the prescribed rate, yielding $155.
This is the exact method pursued by the Supreme Court of Minnesota in the case of Chiovitte v. Zenith Furnace Co.,148 Minn. 277, 181 N.W. 643, in determining the balance of payments due for permanent partial disability from a 68 per cent. loss of an eye, after payments for a period of 8 weeks for a preceding total disability from the same injury. There the court first took 68 per cent. of 100 weeks (the period allowed for total loss of an eye), or 68 weeks, and then deducted the 8 weeks from the 68 weeks, leaving 60 weeks for additional payments as for the permanent partial disability.
I can find no warrant in the provisions of the act for pursuing the other method suggested, viz. deducting the period of compensation as for total temporary disability from the full period allowed for a total loss of the member. That method is, it seems to me, purely arbitrary, since in the case of a fractional loss of a member we are not at all concerned with the period allowed for its total loss, except as a basis for calculating the period allowed for a fractional loss.
This becomes the more clearly apparent if we elaborate the general provision for the proportionate compensation of a fractional loss of a member, and actually write into the schedule a table of fractional losses from 1 to 99 per cent., with the proportionate number of weeks for each. In the elaborated schedule we would find "for 30 per cent. loss of a foot, 50 per cent. of the average weekly earnings during 37 1/2 weeks," and manifestly we would have nothing to do with the period of 125 weeks for any purpose whatever.
But, in any case, the construction given to this provision of the act in this particular by the Diniaco Case was adopted by the Legislature when it re-enacted the law unchanged as a part of the Code of 1923 (see the rule and authorities discussed above, and this court is bound to leave the law and its construction as thus settled until the Legislature sees fit to change it.
Inequalities and incongruities have been noted by the courts in most, if not all, of the compensation acts of the several states. They seem to be inherent in the number and complexity of the provisions of such acts, but their correction and removal is a matter for the Legislature, and cannot be undertaken by the courts. The rule of liberal construction in favor of the workman is fully recognized, but plain meanings cannot be avoided under the pretense of liberal construction.
Using the exact figures shown by the record (see the dissenting opinion of Miller, J.), the employé here was entitled, under the method of computation above approved, to $216.22 for 14 3/7 weeks; to $163.67 for 13 weeks; and to $143.57 for 9 4/7 weeks — in all, $523.67. It appears that the employer has paid $562.50. The employé's claim has therefore been fully satisfied, and the judgment of the trial court directing further payments is erroneous.
The judgment will be reversed, and one will be here rendered denying the additional compensation claimed by plaintiff, and discharging the defendant from further liability in that behalf.
ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur. *Page 83
SAYRE and MILLER, JJ., dissent.
BOULDIN, J., dissents in part.