“ ‘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, [450 (1881)].”
How later courts described this case
- “ ‘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, [450 (1881)].”
Written by the judges who cited it.
The opinion
BOULDIN, J.
(dissenting). This is a workmen’s compensation case wherein the claimant suffered a temporary total loss of the use of one foot for 14% weeks, followed by a permanent partial loss as follows: Loss of 80 per cent, of its use for 13 weeks, and a 30 per cent, loss of use thereafter, all resulting from the same injury.
The inquiry here is as to amount of compensation due and the manner of payment.
The “prescribed rate” of weekly compensation for loss of a member is 50 per cent, of the average weekly earnings, subject to the maximum and minimum named in the statute. This weekly rate of payment is the same throughout the schedule without regard to what member is lost. Thus the same weekly payment, 50 per cent, of average weekly earnings, is prescribed for the loss of a toe, as for the loss of both legs. The difference in disability resulting from such injuries is compensated in prescribing the period or number of weekly payments. Thus the loss of a toe is compensated by 10 weekly payments, and the loss of both legs by 400 such payments.
The same rule holds as to partial loss of a member or its use. Thus:
“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.”
Making the same rule general in application to loss of members, it is enacted:
“In eases 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 to the member bears to its total loss.” Code, § 7551 (c).
The trial court erred in awarding reduced compensation for the full period of partial disability instead of full pay for a reduced period. This rule was applied to the like provision in the Minnesota law at the time our statute was enacted (State ex rel. John Wunder Co. [Globe Indemnity Co.] v. District
*86
Court, 136 Minn. 147 , 161 N. W. 391 ), and declared, by this court in Ex parte Diniaco & Bros., 207 Ala. 685 , 93 So. 388 , and Ex parte Jefferson Slag Co., 209 Ala. 263 , 96 So. 138 .
But in the application of this rule I think there was error in our cases above in this: The period or number of weekly payments for the partial loss of use of the member was ascertained by taking the required per cent, of the full period of compensation, and deducting therefrom the number of weeks of total loss of its use. The proper method is to deduct the number of weeks of total disability from the full compensation period, 125 weeks in this case, then compute such per centum of the remainder as represents the permanent partial loss of the use of the limb.
To illustrate: In ease the total loss of the use of a foot continues 50 weeks, and thereafter a permanent partial loss of 40 per cent, by the method employed in the Jefferson Slag Co. Case the result would be this: 40 per cent, of 125 weeks equals 50 weeks. Now, if he has been compensated 50 weeks for total loss, he will receive nothing for his permanent partial loss of the use of the member. In other words, the compensation would be XDrecisely the same as in case of a total loss of its use for 50 weeks followed by complete restoration. This violates the general provision of subdivision (c), § 7551, saying:
“Por permanent partial disability the compensation shall be based upon the extent of such disability.”
To give proper effect to this provision and the spirit of the statute throughout, compensation in such case' should be 50 weekly payments for total loss of use, then 40 per cent, of 75, or 30 weekly payments for the period of partial loss.
My conclusion is that in cases not of concurrent injuries, but of temporary total loss of use of the member followed by permanent partial loss of use from same injury, it is the purpose to compensate for the period of total loss, then for permanent partial loss for the remainder of the compensation period, not at a reduced weekly rate, but at the “prescribed rate,” for a reduced period equal to the per cent, of loss of the use of the member.
The cases of Ex parte Diniaeo & Bros, and Ex parte Jefferson Slag Co., supra, should, in my opinion, be modified to this extent.
Manifestly, when correctely calculated, the amount of compensation ultimately paid would be the same whether the payments be made for full time at a reduced rate or for reduced time at full rate, figured on the same percentage basis. This result, however, was somewhat defeated in the manner in which calculations were made by the court below.
A restatement of the matter leads to the following results:
In my opinion, the compensation due the employe under the finding of facts is as follows :
For 14 weeks temporary total loss of use of foot — 14 weekly payments of $15 each. 210 00'
For 13 weeks of 80% loss of use of foot — 10.4 weekly payments of $15 .each. 156 00'
For 98 weeks of 30% permanent loss of use of foot — 29.4 weekly payments of $15 each. 441 00
Total . $807 00'
Credit amount heretofore paid. 562 60-
Balance due . 244 60
The well-known and well-founded rule of statutory construction to the effect that the re-enactment of a statute having a fixed construction is a legislative adoption of such construction I would in no wise question. The rule rests upon the presumption that the construction is known to, and has been duly considered by, the Legislature. Por this presumption to arise in full force, it should appear the statute has received a fixed construction on the point involved; that the court had in mind, considered and passed upon, that point: that a reading of the opinion would direct thought to the immediate point of construction now presented.
Our former cases above cited directly and expressly decide that compensation in this class of cases is by weekly payments at the full rate prescribed for a reduced period, not payment at a reduced weekly rate for the full period. In this regard, not only does the rule of construction upon re-enactment apply, but in my opinion these decisions follow the plain language of the statute, the special schedule which deals with loss of members, including loss of use thereof.
But I find nothing in the decisions showing that the court considered, or that the reader would note, the difference in result of application of that rule by the method of calculation employed under varying facts. It now appears that in the case before us the employe would receive added compensation for the permanent partial loss of 30 per cent, of the use of his foot, some 10 weekly páy-ments of $15 each by one method of calculation, and 29.5 weekly payments by the other method. I think the latter the correct method. We are dealing with a new statute running into the future. Having in mind the aim of the statute and the liberal construction it everywhere receives, it is my opinion the construction contended for in this opinion should be now adopted.