186 So. 771 | Ala. | 1939
Plaintiff-appellant brought suit for damages for personal injury. The action was based on the alleged negligence of defendant in propelling cars into a train of cars upon which plaintiff was at the time and place engaged in working in the duties of his employment.
Demurrers being overruled to the complaint, defendant filed pleas of the general issue and special pleas to the effect that all parties were, at the time, subject to the Workmen's Compensation Act, Code 1923, § 7534 et seq., and that plaintiff elected, claimed and received and was receiving compensation for the injury, and payment of his hospital and doctor's bills, under said Act, from the Standard Accident Insurance Company of Detroit, Michigan, the insurance carrier of his employer, and that under the provisions of the Workmen's Compensation Act, plaintiff was without the right to bring the suit, in his name as an individual against the third party, which he seeks to maintain.
Plaintiff's demurrers, in the first instance, to defendant's pleas were sustained, whereupon it was agreed that counsel for defendant should interpose the defenses of contributory negligence, applicability of the Workmen's Compensation Act, and limitation of damages under said Act in short by consent, without the waiver of any rights as to pleas previously filed to which demurrers had been sustained. In reply thereto, replications were likewise in short by consent. The verdict and judgment were for the plaintiff.
Defendant's motion for a new trial was granted upon the general ground that plaintiff, as an individual, could not recover, which point was specifically urged in grounds 8 to 16, inclusive, and in grounds 18 and 19. These grounds assigned the sustaining of demurrers to defendant's pleas 2 to 10, inclusive, and the refusal of the general affirmative charge in writing, duly requested by defendant. Motion on all other grounds was overruled. The plaintiff appeals from this ruling on the motion for a new trial.
Appellant while employed by Kershaw Slag Company, a corporation subject to the Workmen's Compensation Act, on the 26th of February, 1936, was engaged in operating an engine removing empty cars from a spur track in the East Thomas yards of the Republic Steel Corporation. While he was standing on the ground near the engine, a locomotive of the appellee, which was being employed in a local movement of car or cars, collided with the empty cars upon which appellant was engaged, and caused his injury. Appellee was at this time under the Workmen's Compensation Act. Appellant was placed in the hospital, and after he had been so domiciled and treated, received compensation at the rate of eight dollars and ninety-one cents per week, payable twice a month in the form of drafts. Appellant received many of these drafts which he endorsed, cashed and retained the money evidenced thereby. On two occasions when drafts were late, appellant Harris wrote to Mr. Wilkey, the adjuster for the instant insurance company, requesting his "compensation" be sent to him; and upon some occasions appellant came to Wilkey's office to get his said payments. The drafts showed on the faces thereof that they represented payments of compensation due under the Workmen's Compensation Act.
Wilkey, the agent of the insurance carrier, testified that he arrived at an agreement with appellant as to the extent of the latter's disability, advised him of the basis upon which he was to receive compensation and the duration of payments, in accordance *369 with the Act. This agreement was denied by appellant.
The amounts payable were based upon a fifty per cent permanent disability, eighty-seven and one-half weeks at $8.91 per week, a total of $779.63, and in addition Wilkey paid a total of $650 in doctors' bills, which was $450 in excess of the statutory liability. Appellant claimed to have received only $766.26 in weekly payments. It was undisputed that all payments were made by Wilkey, acting for the insurance carrier, and nothing was paid by the employer Kershaw Slag Company.
The question for decision, presented by the assignments of error, is that the trial court erred in granting appellee's (Louisville Nashville Railroad Company) motion for a new trial, to which action of the court appellant (Rufus E. Harris) reserved an exception. The answer to this question presents a statutory construction, subject to several well established rules. In arriving at the legislative intent in enacting Section 7586 et seq., of the Code, every part of the statute, as disclosed by its context and spirit, will be given consideration. Shaw v. Kinney,
It is further established that where a party has two remedies that are inconsistent, any act done by him with a knowledge of his respective rights and remedies and the facts entering therein, and such facts determine his election of remedy, he is bound by the material action he takes in the matter. Alexander v. Mobile Auto Co.,
Before consideration of the terms of the Act (§ 7586 et seq., of the Code), it will be further noted, that this court has declared of such statutes, that within the field of operation of the Workmen's Compensation Act, § 7534 et seq., Code, is the criterion of the rights and liabilities of all parties affected thereby and within the terms of that statute. Such was its purpose and scope, embracing as it does the employer, employee, dependents, insurance carriers and third persons liable for injuries or deaths, falling within and compensable thereunder. Sloss-Sheffield Steel Iron Co. v. Greek,
In Gentry v. Swann Chemical Co.,
"It is not a matter of doubt, that the Workmen's Compensation Act, in general, was intended as in the nature of a substitute, between master and servant who elect to come within its provisions, for actions of tort — for personal injuries at common law — and under the state Employer's Liability Act, or other statute giving the employee a right of action. Chapman v. Railway Fuel Co.,
"However, in the light of the provisions of section 13, of the Constitution of 1901, 'That all courts shall be open; that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law' it cannot be said that for an injury done a person, not within the provisions of the Workmen's Compensation Act, that it was the legislative intent by the enactment of said law, to deny such person a remedy, if under the common law or the Employer's Liability Act, or other statute he was entitled to maintain an action therefor."
That is, the common law right of action of an employee or his heirs against his employer is abolished by the statutory right in the employee or certain of his dependents substituted in the respects indicated by the statute [Chap. 287, § 7534 et seq., Code, and in particular §§ 7586, 7587, Code] in all cases in which the employee elects to proceed under the Workmen's Compensation Act.
Section 7586 of the Code is as follows: "Where an injury or death, for which compensation is payable under article 2 of this chapter, is caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, *370 such party being also subject to the provisions of article 2 of this chapter, the employe in case of injury, or his dependents in case of death, may, at his or their option, proceed either at law against such party to recover damages, or against the employer for compensation under article 2 of this chapter, but not against both. If the employe in case of injury, or his dependents in case of death, shall bring an action for the recovery of damages against such party other than the employer or his insurance carrier, the amount thereof, manner in which and the person to whom the same are payable, shall be as provided for in article 2 of this chapter and not otherwise; but in no case shall such party be liable to any person other than the employe or his dependents for any damages growing out of or resulting from such injuries or death. If the employe or his dependents shall elect to receive compensation from the employer, then the latter or his insurance carrier shall be subrogated to the right of the employe or his dependents, to recover against such other party, and may bring legal proceedings against such party and recover the aggregate amount of compensation payable by him to such employe or his dependents hereunder, together with the costs of such action and reasonable attorney's fees expended by him therein."
What then is the binding election or procedure under the statute that is here applicable?
Under at least one decision by this court, and many from other jurisdictions, compliance with the requirements of the Workmen's Compensation Act, and seeking by reception and retention of the benefits prescribed in the Act from the employer, or of his insurance carrier, is such a proceeding against the employer as to constitute a binding election under the Act. In National Cast Iron Pipe Co. v. Higginbotham,
This announcement by our court is in line with the general authorities on the question here pertinent to which we will advert with some detail.
In Crowell v. Benson,
In Roecklein v. American Sugar Refining Co., Inc.,
In Tandsetter v. Oscarson,
In Ford v. Keuhne,
In King v. Union Oil Co. of California,
It follows from the foregoing authorities that the action of the employee-appellant, in accepting compensation from Wilkey, the agent of the insurance carrier, was a procedural material matter that with full knowledge of the facts amounted to a binding election of remedies within Sections 7586 and 7587, Code, and prevented plaintiff from maintaining this action. This action brought the case within the inhibition of statute for suit for "damages on the part of any party other than the employer", having elected to pursue his remedy against the employer, and gave the right of other suit to the employer or his insurance carrier by way of subrogation under the statute to "recover against such other party * * * and recover the aggregate amount of compensation payable by him to such employe or his dependents hereunder, *372
together with the costs of such action and reasonable attorney's fees expended by him therein." (Section 7586, Michie's Code.) Georgia Casualty Co. v. Haygood,
This view is further indicated by the provisions of Section 7587, Michie's Code, as follows: "* * * If the injured employe, or in case of his death, his dependents, shall agree to receive compensation from the employer or shall institute proceedings to recover the same, or accept from the employer any payment on account of such compensation, such employer or his insurance carrier shall be subrogated to all the rights of such employe, or dependents, and may maintain, or in case an action has already been instituted, may continue the action either in the name of the employe or dependents, or in his own name, against such other party for the recovery of damages."
These sections (7586, 7587, Code) were designed to cover different situations which might arise under the Workmen's Compensation Act, each being a part of that Act, promulgated at the same time, and must be construed in pari materia. The Legislature intended to use the language it did use and hence the right of action in the employe's name was given in Section 7587 and withheld in Section 7586. If this be true, there is no basis for holding this action maintainable solely in the name of the injured employe. The two sections read together indicate clearly the intention of the Legislature in regard to parties who may maintain a suit for damages or proceed to the collection thereof. For example, under Section 7587, should the employer or insurance carrier recover damages in excess of the compensation payable, plus costs, attorney's fees and reasonable expenses, he shall pay to the employe or his dependents such excess money. Thus the Act takes care of any contingency between the parties which may arise as to obtaining the proceeds of the judgment. It is significant that no provision was made in Section 7586 for the subrogee to enforce its claim against the employe plaintiff should a judgment be obtained by such employe as an individual, in an action in which he alone was plaintiff and so collected. No such action was contemplated or authorized in Section 7586.
We are brought to the conclusion, and hold, that it was not intended, in cases in which the employe has no interest in the proceeds, that he should bring the action in his own name. The intention of the Legislature was that such action, after a binding election to receive compensation under the Act, must be prosecuted in the name of the beneficial owner — the employer or his insurance carrier. Sloss-Sheffield S. I. Co. v. Metropolitan Cas. Ins. Co. of N.Y., Ala.App.,
In Day Sachs v. Travelers' Ins. Co.,
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.