# Goodyear Tire & Rubber Company v. Downey

> Supreme Court of Alabama · March 21, 1957 · 266 Ala. 344

URL: https://www.frixlaw.com/law-library/cases/9669932

## Case

- **Full name:** Goodyear Tire & Rubber Company of Alabama v. M. H. Downey
- **Court:** Supreme Court of Alabama
- **Decided:** March 21, 1957
- **Citations:** 266 Ala. 344; 96 So. 2d 278; 1957 Ala. LEXIS 450
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Livingston, Simpson, Coleman, Stakely
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9669932

## Opinion text

On Application for Rehearing and Motion to Modify Judgment of Affirmance.
PER CURIAM.
The order granting certiorari provided “that the judgment of the Circuit Court of Etowah County will be superseded upon the defendant, Goodyear Tire & Rubber Company of Alabama, a corporation, entering into a supersedeas bond in the sum of $5,000, with good and sufficient surety or sureties, payable to the plaintiff, M. H. Downey, and conditioned to prosecute the appeal by certiorari to effect, or, if it fails therein, to satisfy such judgment and costs as the Supreme Court may render in the premises. Said bond to be approved by the Clerk of the Circuit Court of Etowah County, Alabama.”
The prescribed bond was entered into, the condition thereof being as follows:
“The Condition of the above obligation is such that, Whereas, the above bound Goodyear Tire & Rubber Company of Alabama, a corporation, filed a petition for certiorari in the Supreme Court of Alabama under the provisions of Section 297, Title 26, 1940 Code of Alabama, to review, reverse and vacate a judgment or decree against the said Goodyear Tire & Rubber Company of Alabama, a corporation, on a petition by M. H. Downey to recover compensation under the Workman’s Compensation Act of Alabama (case number 5094 on the law side of the Circuit Court of Etowah County, Alabama) said judgment or decree being rendered on September 6, 1952, and amended on October 3, 1952, and on August 19, 1953, and the order overruling the motion for new trial filed by said Goodyear Tire & Rubber Company of Alabama, a corporation, which said order is dated August 19, 1953; now, therefore, if said Goodyear Tire & Rubber Company of Alabama, a corporation, shall prosecute to effect the said appeal by certiorari in the Supreme Court of Alabama, or failing therein, shall pay and satisfy such judgment and costs as the Supreme Court shall render in this case, then this obligation to be null and void, otherwise to remain in full force and effect.
*351 “This bond is filed in accordance with the order of the Supreme Court of Alabama, dated September 9, 1953, and as security for costs on said appeal by certiorari.”
The judgment of affirmance contains the following provision:
“It is further considered, ordered, and adjudged that the Petitioner, Goodyear Tire & Rubber Company of Alabama, a Corporaíion, and The Fidelity and Casualty Company of New York, surety on the supersedeas bond filed in this cause, pay the amount of the Judgment of the Circuit Court for all accrued compensation, and ten per centum (10%) damages thereon, and interest, and the costs incident to the proceedings of this Court and of the Circuit Court.”
The award of 10% damages was made pursuant to Code 1940, Tit. 7, § 814, as amended, which provides as follows:
“§ 814. Judgment of affirmance on supersedeas. — When a judgment or decree is rendered for money, whether debt or damages, and the same has been superseded on appeal by the execution of bond, with surety, if the appellate court affirms the judgment of the court below, it must also render judgment against all or any of the obligors on the bond, for the amount of the affirmed judgment, ten percent damages thereon, and the costs of the appellate court; and upon the appeal of any judgment or decree rendered for any amount of commissions, fees, or compensation fixed, or determined by the trial court and taxed or allowed as costs, if the appellate court affirms the judgment or decree of the court below, and the payment thereof has been superseded on such appeal, judgment shall be rendered by the appellate court against all or any of the obligors on the bond for the amount affirmed, ten percent damages thereon, and the costs of the appellate court; provided, however, if no supersedeas has been executed on such appeal, the appellate court in the event of affirmance shall increase the amount so allowed as costs by the court below in the judgment or decree appealed from by adding thereto ten percent damages thereon, and the costs of the appellate court.”
Petitioner insists it was error, to render said judgment for damages for the reason that § 814, supra, applies only to cases which come here by appeal; that this case is here for review by certiorari, not by appeal; hence § 814 has no application.
It does not appear that this court has rendered a written opinion on this question. However, since the case of DeBardeleben Coal Corp. v. Richards, 1948, 251 Ala. 324 , 37 So.2d 121 , straight judgments of affirmance in workmen’s compensation cases have consistently included the 10% damages provided for in § 814, supra. It further appears that this court, in the DeBardeleben case, included, for the first time, a provision for giving a supersedeas bond. Prior to that case such bonds were not provided for and judgments of affirmance in workmen’s compensation cases did not include the 10% damages. In each subsequent case involving the review of a judgment awarding compensation a bond has been provided for. The practice has been for a justice of this court (§ 18, Tit. 13, Code 1940) to grant the writ of certiorari as a matter of course, at the same time fixing the amount of the bond, to be approved by the clerk of the circuit court. Such bond has generally been fixed in double the amount of the judgment for accrued compensation payments and the estimated number of payments to accrue between the time of the judgment and a decision here. As a rule such estimate has included payments accruing within twelve months after the judgment. The 10% damages have been assessed against the defendant-petitioner and the surety on all payments which have accrued up to the time of affirmance.
*352 Although no opinion was written on the question in the DeBardeleben case, the court there decided it contrary to movant’s insistence and the decision has been followed in each subsequent case. We are not persuaded that that decision should be changed.
In Agricola Furnace Co. v. Smith, 239 Ala. 488 , 195 So. 743, 744 , the plaintiff obtained a judgment against the defendant in a workman’s compensation case. The defendant brought the case here for review by certiorari pursuant to § 7571, Code 1923 (§ 297, Tit. 26, Code 1940). Thereafter the defendant moved to dismiss the cause and vacate the writ. The plaintiff objected on the ground that it would be prejudicial to his interest, as he had entered cross-assignments of error which he desired to have considered. The motion to vacate was denied, the court holding that cross-errors may be assigned when a workman’s compensation case is here for review on certiorari the same as if it were here on direct appeal. In so holding the court applied the rule that “the dismissal of an appeal by the appellant does not carry the case so far as it is affected by an assignment of cross-errors”. The right to assign cross-errors in cases on appeal is given by Code 1940, Tit. 7, § 746, providing as follows;
“§ 746. Cross errors. — In all cases on appeal to the supreme court or appellate court, or writ of error, the appellee or defendant in error may assign cross errors; and the court shall dispose of the same as in other cases of assignment of error.” [Emphasis supplied.]
The holding in Agricola makes it •clear that the authorized “appeal by certiorari” in workmen’s compensation cases is subject, at least for some purposes, to procedures prescribed for cases coming here by direct appeal. As there said:
“Though the review here is limited, yet bill of exceptions is allowed .for a limited purpose, and the authorities generally recognize a similarity of procedure between a review in such cases and causes on direct appeal. 71 Corpus Juris 1276, et seq; 11 Corpus Juris 193, 194. And in Ex parte SlossSheffield Steel & Iron Co., 207 Ala. 219 , 92 So. 458, 460 , it was observed that, as the statute provided the aggrieved party may ‘by certiorari * * appeal to the Supreme Court,’ it appeared ‘to hold the scales evenly between certiorari and appeal.’ That authority was the first establishing the rule for a bill of exceptions for a limited purpose, which has been consistently followed. Ex parte Woodward Iron Co., 211 Ala. 74 , 99 So. 97 ; Ex parte DeBardeleben Coal Co., 212 Ala. 533 , 103 So. 548 ; Morgan-Hill Paving Co. v. Stewart, 220 Ala. 480 , 126 So. 116 .
“While we recognize that appeal and certiorari are not identical (Ex parte Woodward Iron Co., 211 Ala. 74 , 99 So. 97 ), yet the statute itself by its language indicates a legislative intent that the method of review be considered in the nature of a limited appeal. Section 6091, Code of 1923 [Code 1940, Tit. 7, § 746, supra], was placed in the Code in its present form after the adoption of the Workmen’s Compensation Act, Code 1923, § 7534 et seq. [Code 1940, Tit. 26, § 253 et seq.], and cross-assignments of error are permitted thereunder without appellant’s consent. Nelson v. Boe, 226 Ala. 582 , 148 So. 311 .
“True, the above section specifies only appeal and writ of error, but it gives definite recognition to the principle of cross assignments of error. The similarity existing between a writ of error and certiorari should be kept in mind in this connection. This is noted in the following from the text of 4 C.J.S. Appeal and Error § 9, p. 69: ‘While writ of error and certiorari are distinguishable and a writ of certiorari *353 cannot ordinarily be made to serve the purposes of a writ of error, they are somewhat similar in a number of aspects, certiorari being regarded as in the nature of a writ of error when not ancillary to other process, and as a writ of error within the meaning of some statutes.’
“Clearly, no sound reason exists for permitting cross-errors in writs of error and denying them in an appeal ‘by certiorari’ as in this class of cases; and we are persuaded that permitting such cross assignment carries out the legislative intent. And this is in harmony with the purpose of the workmen’s compensation statute, which looks to a prompt disposition of controversies arising thereunder, and with as little formality as is consistent with its administration. The authorities indicate that in those states where cross-assignments of error are recognized, they are equally applicable, without specific reference, to reviews in compensation cases. Thus the appellate court is enabled to finally adjudicate upon the whole controversy, without multiplication of records, with consequent increase of cost.”
Code 1940, Tit. 7, § 793, provides as follows:
“§ 793. Supersedeas bond in general. —When the judgment or decree is for the payment of money only, the appeal does not operate as a supersedeas, or to stay or suspend the execution of such judgment or decree (except in such cases as are otherwise provided), unless bond be given by the appellant, or some other person, in double the amount of the judgment or decree, including costs, payable to the appellee, with sufficient sureties, and with condition to prosecute the appeal to effect, or, if he fails therein, to satisfy such judgment as the appellate court may render in the premises.”
It seems to us that if § 746, Tit. 7, supra, applies to workmen’s compensation cases there is no sound reason why § 793 should not also apply. The statute authorizing a review (§ 297, Tit. 26, subdiv. A, supra) provides that “the decision of the judge hearing the same shall be conclusive and binding between the parties, subject to the right of appeal in this article provided for.” [Emphasis supplied.] Subdiv. E of § 297 provides as follows:
“E. Appeal by certiorari. From such decree any aggrieved party may by certiorari within thirty days thereafter appeal to the supreme court or the court of appeals of Alabama.” [Emphasis supplied.]
The judgment against a defendant in a workman’s compensation case, certainly to the extent of the accrued payments, is a judgment for the payment of money which, except for the right of “appeal by certiorari”, is then due to be paid the plaintiff, and if not paid within ten days execution must be issued thereon “unless otherwise directed by the court or the judge presiding at the trial of the cause or by the written direction of owners of the judgment or his attorney of record.” Code 1940, Tit. 7, § 508; see, also, §§ 510 and 511, Tit. 7, providing when execution may issue before prescribed time. Both §§ 508 and 793, Tit. 7, supra, were in existence when the Workmen’s Compensation Act was adopted. From a consideration of that Act, particularly § 297, Tit. 26, and its objectives, and in view of the decision in the Agricola case, we think a holding that § 793, Tit. 7, applies to a judgment in a workman’s compensation case is reasonable and in accord with the legislative intent. Accordingly, the giving of a supersedeas bond is essential to a stay of the judgment. This means that the granting of the writ in these cases does not, ipso facto, operate as a stay as does the granting of the common-law writ. Webb & Stagg v. McPherson & Co., 142 Ala. 540, 543-544 , 38 So. 1009 ; John v. State, 1 Ala. *354 95, 97 ; Payne v. Martin, 1 Stew. 407, 410 ; People v. Sturgis, 39 Misc. 448 , 80 N.Y.S. 194, 197 ; 14 C.J.S. Certiorari § 108, p. 245; Ferris, Extraordinary Legal Remedies, Certiorari, § 179, pp. 205, 206. In that respect, the statute has changed the operation of the common-law writ in the review of judgments in workmen’s compensation cases. In such cases a stay can be effectuated only by giving the statutory supersedeas bond. If the order granting the writ calls for such bond, the execution of the bond is not a condition to the issuance of the writ. Rather, it is the fixing of the amount of the supersedeas bond. If the petitioner-defendant declines to give the bond, the writ may nevertheless issue; but in that situation there is no stay of the judgment.
We would make it clear that we are not now passing on the question whether this court is without authority, in its discretion, to require, as a condition to the issuance of the writ in compensation cases, the giving by petitioner (appellant) of a bond to indemnify the appellee against loss, in event petitioner declines to give a supersedeas bond. It is to be noted that under the common law it is a proper exercise of discretion to impose, as a condition to the granting of the writ, the giving of a bond for costs and the indemnification of the defendant in certiorari. Webb & Stagg v. McPherson & Co., supra; Payne v. Martin, supra. See Ex parte Pittman Const. Co., 28 Ala.App. 134 , 180 So. 725 , certiorari denied 236 Ala. 22 , 180 So. 728 .
We are constrained to hold that the procedure followed since the DeBardeleben case is proper. The application for rehearing and motion for modification of the judgment of affirmance are, therefore, due to be denied.
Application for rehearing and motion to modify denied.
All the Justices concur except STAKELY, J., not sitting.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9669932. Public record. Not legal advice.