99 So. 791 | Ala. | 1924
The case was tried upon count 2, alleging, among other things:
"* * * The plaintiff further avers that it thereupon became and was the duty of the defendant to pay the plaintiff the sum of $12 a week for a period of 35 weeks, or $420 at the end of the 35-week period for the loss of his said finger. Plaintiff further avers that before the 35-week period expired, he demanded of the plaintiff" (defendant) "the sum of $12 per week for 35 weeks for the loss of his said index finger, and that after the 35-week period expired the plaintiff demanded of the defendant the sum of $420, and that at all times the defendant was advised by the plaintiff and knew that the plaintiff was disabled and unable to work and earn money, and was unable to obtain money, and was in destitute circumstances and dependent upon said sum of compensation due him by the defendant for the necessaries of life, and that notwithstanding the defendant's knowledge of all of said facts, a servant, agent, or employee of the defendant, to wit, David S. Anderson, acting within the line and scope of his employment as such, and authorized by the defendant to pay compensation claims, wrongfully and wantonly refused to pay the plaintiff said sum of $12 per week for 35 weeks, and wrongfully and wantonly refused to pay the plaintiff said sum of $420 at the end of the 35-week period knowing that such conduct would likely or probably result in injury to the plaintiff, although the defendant was at all times able to pay said sum, and with knowledge on the part of said servant, agent, or employee that the said sum was due plaintiff by the defendant, and as a proximate consequence the plaintiff avers that he was caused to wait a long time for said sum of $420; that he was caused to go to great trouble, expense, and annoyance in and about his efforts to collect said sum of $420 from the defendant; * * * all to his damage in the sum aforesaid, and the plaintiff claims punitive damages."
Demurrer was overruled to this count. challenging its sufficiency, on grounds: (1) That the only procedure or remedy open to plaintiff is given expression by the Workmen's Compensation Act, pt. 2 (Gen. Acts 1919, p. 208); and (2) that the obligation to pay compensation to an employee receiving his injuries within the provisions of the act was contractual in nature, and, in the absence of statutory procedure, the failure to pay did not give a right of action on the case ex delicto for punitive damages.
The appellee, among other arguments, said, of the source and nature of the remedy sought to be enforced, that section 13 of the Bill of Rights guaranteed that "every person, for any
injury done him, in his lands, goods, person, or reputation,shall have a remedy by due process of law" (italics supplied), and that section 28 of the Workmen's Compensation Act had not provided a remedy for the collection of compensation "where no controversy exists between the parties." It is provided by section 28 of the act, part 2, that "either party to a controversy arising under this act may file a verified complaint in the circuit court," etc. (Gen. Acts 1919, p. 227; Ex parte Sloss-Sheffield S. I. Co. [Steagall's Case]
As to the suit sought to be maintained, appellee's able counsel say:
"We say it is an action on the case with punitive damages. As was said in Wolf v. Smith,
"We call the court's attention to the fact that no penalty is prescribed by the Compensation Law for failure on the part of an employer to pay, even in cases in which there is no controversy about the amount due. The sum payable does not even draw interest until reduced to judgment."
To this statement as to interest appellant's counsel admit that the Compensation Act does not authorize a recovery of interest on compensation payments, "but specifically gives a remedy against defaults in payment of compensation." "Even interest can be collected only when the judgment has been reduced to a cash value and the employer gives bond to suspend execution." This, however, is not an admission on the part of appellant's counsel that the nature of the procedure of enforcement of such obligation under the statute gave this right of action.
The statute being considered in A. G. S. R. Co. v. Carroll,
In Drennen Motor Co. v. Evans,
However, it would appear from reason, authority, and statute that the only remedy open to plaintiff was under part 2 of the Compensation Act, and that the obligation to pay compensation was contractual in nature. The failure of prompt payment, or delay therein, after demand, did not give the right of action sought to be enforced. And the amended complaint on which the trial was had (count II) did not state a cause of action.
In Deavors v. South. Exp. Co.,
"It is often very difficult, if not impossible, to determine whether complaints for failure to deliver, or delay in delivering, telegraphic messages, are ex contractu or ex delicto. It has been held that the allegation 'that the defendant failed willfully and wantonly to deliver a telegram agreed to' cannot operate to change the character of the action from one ex contractu to one ex delicto."
The contention is that the gist of the action was the delay in paying the undisputed sum due, the $420; yet defendant had the right under the law to one judgment and one satisfaction thereof, and not have the cause of action against it split. Such judgment was had under the decision of this court in Ex parte Sloss-Sheffield S. I. Co.,
The defendant's demurrer to count 2 of the complaint should have been sustained.
The judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.