Hardisty v. Woodward Iron Co.

BOULDIN, J. That the death of the employee was “caused by an accident arising out of and in course of his employment” is a necessary condition to the right to compensation. When put in issue by answer, the burden of proof is on the plaintiff claiming compensation. As appears from the foregoing statement of the case, the trial court gave a summary of the evidence on both sides relating to the controlling issue in the case, followed by his conclusion. Appellant’s argument is directed largely to a discussion of the weight of the evidence. It misconceives the duty and function of the appellate court in this class of cases. The case is not triable de novo on the evidence presented by bill of exceptions, nor reviewed even as the finding of a judge sitting without a jury in ordinary trials at law or in equity upon testimony of witnesses examined before the court. The proceeding here is by certiorari, in which a bill of exceptions is allowed as part of the record; not for the purpose of passing upon the weight of the evidence, but, in cases like the present, to determine whether there is any *257 evidence supporting the finding of the trial judge. Ex parte Woodward Iron Co., 99 So. 97, 211 Ala. 74; Ex parte Gadsden Car Works, 99 So. 725, 211 Ala. 82; Ex parte Woodward Iron Co., 99 So. 649, 211 Ala. 111; Ex parte Nunnally Co., 95 So. 343, 209 Ala. 82; Ex parte L. & N. R. Co., 94 So. 289, 208 Ala. 216; Ex parte Sloss-Sheffield S. & I. Co., 92 So. 458, 207 Ala. 219. The evidence appearing in the bill of exceptions clearly supports the summary of evidence made by the trial court, as well as his conclusions of fact. A recital of the testimony of the several witnesses in detail would serve no good purpose. The writ is denied, and the judgment affirmed. Writ denied; judgment affirmed. ANDERSON, O. X, and SOMERVILLE and THOMAS, XL, concur.