Ford v. MitchamFord v. Mitcham
This appeal arises from the dismissal of-plaintiff’s complaint for benefits under the Workmen’s Compensation Law of Alabama for the death of her husband.
*104 The material averments of the complaint are that plaintiff’s husband, W. M. Ford, and defendant, James D. Mitcham, were-partners doing business as F & M Construction Company; that while acting in the line and scope of his employment, W. M. Ford was involved in automobile accident in which he was killed; that defendant had prompt and immediate notice of the accident; that defendant, or its insur- or, paid part of the funeral expenses and paid plaintiff Workmen’s Compensation benefits for a period from June 19, 1972, the date of the accident, until July 24, 1972, at which time payments were stopped.
Defendant’s demurrer to the complaint was treated by the trial court as a motion to dismiss for failure to state a claim upon which relief can be granted. ARCP 12 (b)(6). The complaint was dismissed on the ground that plaintiff’s husband could not at the same time be a partner and an employee of the partnership within the meaning of our Workmen’s Compensation Act. Code of Alabama, Title 26, § 253 et seq.
This is a matter of first impression in Alabama, but we are aided by a number of decisions on this point from other jurisdic-' tions. The great majority of these jurisdictions hold that a partner cannot be an employee of his partnership for the purposes of Workmen’s Compensation. See 99 C.J.S. Workmen’s Compensation § 79 and cases cited in footnote 6. :
Some states have enacted statutes specifically providing that a working partner can also be an employee under their Workmen’s Compensation Act. See De Martini v. Industrial Accident Commission,
Oklahoma is the only state which we have found to have judicially construed its Workmen’s Compensation Act to include a working partner within the meaning of “employer.” This decision appears to be an effort by the court to avoid what it considered to be “an exceedingly narrow construction of the act.” Louisiana also permits a working partner to recover Workmen’s Compensation benefits but this is because, under its civil law system, a partnership is considered to be a separate legal entity. Trappey v. Lumbermen’s Mut. Cas. Co.,
The purpose of Workmen’s Compensation is to place upon industry the burden of disability and death resulting from industrial accidents. It was designed as a substitute for common-law tort actions for personal injuries between master and servant. Gentry v. Swann Chemical Co.,
A mere superficial reading of Title 26, § 253, leaves no doubt that the relationship of employer-employee must exist before benefits can be recovered under the act. The definitions in our statute of employer and employee are not totally clear but they do indicate that a contractual relationship between two parties is essential. These definitions are found in Title 26, § 262:
“ . . . (d) The term ‘employer’ as used herein shall mean every person not excluded by section 263 of this title who employs another to perform a service for hire and to whom ‘employer’ directly *105 pays wages, and shall include any person corporation, co-partnership, or association, or group thereof, ... (g) The terms ‘employee’ and ‘workman’ are used interchangeably and have the same meaning throughout this chapter and shall be construed to mean the same Every person, not excluded by Section 263 of this title in the service of another under any contract of hire, express or implied, oral or written, includes aliens, and also includes minors who are legally permitted to work under the laws of the state . . . .”
The necessity of a contract implicit in the definitions is lacking in the case of a working partner unless the partnership is considered to be a separate legal entity. A contract contemplates negotiations between two parties wherein one party makes an offer and the other either accepts or makes a counteroffer. Negotiations continue until a bargain is reached or the parties are in agreement on the terms. There must be a meeting of the minds and there can be none if there is only one party involved.
A federal court in Alabama, in a decision under the Social Security Act, concluded that Alabama has committed itself to the legal entity theory of partnerships. Kilborn v. Ribicoff,
In deciding whether the employer-employee relationship exists, the deciding factor is the reserved right of control. An employer must reserve the right to direct the actions of the employee in carrying out the work for which the contract of employment was entered. United States Steel Corp. v. Matthews,
Further, for benefits to be recovered the accident must arise out of and in the course of employment. Deaton Truck Line v. Acker,
We agree with appellant that the Workmen’s Compensation Act should be construed to carry out its humanitarian function. However, in view of the present state of the law concerning partnerships, we are unable to hold that a working partner is entitled to benefits under the Act. Including working partners within the definition of employee would no doubt be of great benefit to partners in small business *106 es in which they engage in the work just as hired workers do and would be a desirable change. However, this result must come from legislative action rather than from judicial decisions as has been done in other states. See De Martini v. Industrial Accident Commission, supra; Ayers v. Genter, supra.
Appellant also argues that a complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond a doubt that the plaintiff can prove no state of facts in support of his claim which would entitle him to relief. Forbush v. Wallace,
Affirmed.