15 So. 2d 732 | Ala. | 1943
Complaint was duly filed by Dora Humphrey, seeking compensation under the Workmen's Compensation Law of Alabama (Title 26, Sec. 253 et seq., Code of 1940) for the death of her husband, Jethro Humphrey, which resulted from an accident arising out of and in the course of his employment.
The original parties defendant were Odis Poss and Otis Poss. Other parties defendant were subsequently added by amendment, and within the time limit of the statute. But as last amended, the names of Odis and Otis Poss were stricken as parties defendant. This left the proceeding as one against Fort McClellan Post Exchange, American Employers Insurance Company, a corporation of Boston, Massachusetts, and American Employers Insurance Company, Inc., a corporation of Boston, Massachusetts, as the sole parties defendant. Each of these defendants filed a motion for a discontinuance of the cause of action and reserved exception to the ruling of the court overruling said motion.
Treated as an ordinary action at law, the motion was due to be sustained, because the amendment worked an entire change of parties defendant. Van Landingham v. Alabama Great So. Ry. Co.,
The Minnesota Court in State v. District Court,
This brings us to a consideration of the merits of the case, i. e., as to the correctness vel non of the ruling of the court below in sustaining demurrers of the last-named defendants to the petition resulting in the nonsuit from which this appeal is prosecuted. Counsel for petitioner insists that the State Workmen's Compensation Law is applicable in territory ceded to the Federal Government, such as Fort McClellan. 40 U.S.C.A. § 290. This question was considered in Pound v. Gaulding,
But that question does not solve the problem here presented. From the petition it appears that the employer of petitioner's intestate was the Fort McClellan Post Exchange, a party defendant. The first matter, therefore, for consideration is whether or not such Post Exchange is entitled to the immunities of the Federal Government against suit or liability in actions of this character. We think that question has been foreclosed adversely to the petitioner by the Supreme Court of the United States in Standard Oil Co. v. Johnson,
It is a well established principle based upon public policy that the United States is not subject to suit without its consent. Moon v. Hines,
We may add, also, that the case here presented for the Post Exchange is even stronger than that considered in Breeding *14 v. Tennessee Valley Authority, supra, as in the latter there was a general provision to the effect that the Tennessee Valley Authority was authorized to sue and be sued, while as to the Post Exchange, no such authority is found in any statute. It is clear enough that if the Post Exchange should exercise its right, as any other employer might, not to come within the influence of the State Workmen's Compensation Law, Code 1940, Tit. 26, § 253 et seq., it would not be subject to suit, either at common law or under the Employer's Liability Act, Code 1940, Tit. 26, § 326 et seq. It is immune from suit. It would, therefore, be entirely illogical to say that Congress intended to authorize a remedy under the Workmen's Compensation Law of a State and at the same time grant, as against the same agency, immunity as to other kinds of actions involving the identical accident.
The petition is based upon the theory that the decedent was an employee of the Post Exchange. Counsel argues, however, in brief concerning a certificate of the United States Employees' Compensation Commission, 5 U.S.C.A. § 778, to the effect that decedent was not an employee of the United States, which holding, he insists, is conclusive of the question. Though the certificate of the Commission was not made a part of the petition, yet it was filed in the court below and appears in the record here. And it may be conceded, as argued by counsel, for the purpose of this case only, that under Webb v. J. G. White Engineering Corp.,
As we understand it, this can mean only one thing, and that is that the Commission has held as a matter of law that the decedent was not a civil employee of the United States, for the sole reason that his name did not appear upon the payroll. In 5 U.S.C.A. § 790, the term "employee" is defined as including "all civil employees of the United States." We cannot conceive that this definition is to be given so restricted a meaning as to have reference only to an employee who is upon the payroll of the Federal Government. If decedent was an employee of the Post Exchange, and the Post Exchange is an integral part of the War Department, it is difficult to understand why he should not be considered a civil employee of the United States whether appearing upon the payroll or not. The holding of the Commission, therefore, as to this decedent, appears to our mind to be in conflict with the decision of the United States Supreme Court in Standard Oil Co. v. Johnson, supra. If our line of reasoning be correct, therefore, under the cases of Posey v. Tennessee Valley Authority and Breeding v. Tennessee Valley Authority, supra, petitioner's case would come within the influence of the Federal Employees' Compensation Law, as found in Sections 751-795, Title 5 U.S.C.A.
The question of primary importance which we are called upon here to determine is whether or not the Post Exchange is subject to suit and whether or not the State Workmen's Compensation Law is applicable to such an agency of the Government. We think the authorities above cited clearly demonstrate that the Post Exchange is entitled to the same immunity as the Federal Government, and that its demurrer was properly sustained.
But counsel for petitioner further argues that he may maintain an independent suit against the insurance carrier whether or not liability could be fastened upon the insured, the employer. This argument is based upon that portion of Sec. 309, Title 26, Code of 1940, having reference to insurance by the employer with a company approved by the proper State authorities and with notice placed about his place of business and other matters not necessary here to relate, and providing that, under these stated conditions, action may be brought by the injured employee or his dependents directly against the insurer. *15
This particular feature of the statute was given reference in Pounds v. Travelers Insurance Co.,
But the difficulty we find in giving application to this feature of the statute to the instant case is the inevitable conclusion, as pointed out in Breeding v. Tennessee Valley Authority, supra, that the Workmen's Compensation Law of this State was without application to the employer, the Post Exchange, and it cannot logically follow that plaintiff may maintain a suit on the strength of a statute which had no application.
A somewhat similar situation was before the Court of Appeals of Louisiana in Harris v. Louisiana State Normal College,
It results, therefore, in our conclusion that the demurrers of the several defendants were properly sustained, and the judgment appealed from is due to be affirmed.
Affirmed.
All the Justices concur.