Alabama Power Co. v. White

• Decision Date: 28 September 1979
• Citation: 377 So.2d 930
• Parties: ALABAMA POWER COMPANY, v. Brenda Kaye WHITE. 77-682.
• Court: Alabama Supreme Court

Page 930

377 So.2d 930

ALABAMA POWER COMPANY, v. Brenda Kaye WHITE.

77-682.

Supreme Court of Alabama.

Sept. 28, 1979.

Rehearing Denied Nov. 30, 1979.

James J. Duffy, Jr. and Carroll H. Sullivan, Mobile, for appellant.

M. A. Marsal, Irvin J. Langford of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellee.

TORBERT, Chief Justice.

THE CASE

On March 16, 1978, the Mobile County Circuit Court entered judgment on a jury verdict against Alabama Power Company ("APCo" hereinafter), appellant herein, for $50,000 in favor of plaintiff, appellee herein, Brenda Kaye White. APCo's motion for judgment notwithstanding the verdict or in the alternative motion for a new trial was denied June 28, 1978. Appellant APCo takes this appeal from the judgment entered on the jury's verdict of March 16, 1978, and the court's order of June 28, 1978, denying APCo's motions for a new trial and for judgment notwithstanding the verdict, alleging: (1) that proof of dependency is an essential element of a plaintiff's prima facie case under Code 1975, § 25-5-11, rather than an issue of capacity which, under 9(a), ARCP, plaintiff need not offer proof of until the defendant places capacity in issue by specific negative averment; (2) that the trial court erred by refusing to grant APCo's post judgment motions; (3) that the court erred by advising the jury he was reading his instructions from a specific case to which the present appellant APCo was a party; (4) that the trial court erred by giving certain specific instructions; and (5) that the trial court erred in denying APCo's motion for a mistrial which was based on alleged insinuations by opposing counsel that a witness's testimony was bought and paid for.

THE FACTS

The facts which gave rise to the cause of action below are as follows: At about 7:00 a. m. on the morning of July 28, 1975, four employees of Frito-Lay, Inc., who were subject to the Alabama Workmen's Compensation Act, set about to move a 51'-1 grain auger away from a grain storage bin so that they would be able to lay the forms for a cement platform around that grain bin. The grain auger, which is a type of elevator used to pour grain into the top of storage bins, was a portable one which was moved from bin to bin as the needs of the farm required. The equipment used inside these grain bins to dry the grain was supplied with electricity by APCo through an uninsulated 7200-volt wire which was at its lowest point 27 feet, 8 inches above the ground and at its closest point had a horizontal clearance from the bins of 10'-8 . The parties agreed that the National Electrical Safety Code ("NESC") is the universally accepted standard followed by suppliers of electricity, but there was disagreement as to whether or not APCo breached the NESC by providing the electricity to these bins in the manner in which it did. The evidence was also in dispute as to whether or not the electricity could have been provided in a safer manner through the use of an underground feed, insulation or a fuse.

While the grain auger was being moved, it came into contact with the uninsulated wire and electrocuted Jerry Thomas White.

ISSUE NO. I

Does "dependents," as used in Code 1975, § 25-5-11(a), require proof by the plaintiff as an essential element of her prima facie case that she is a dependent of the deceased employee, or does this term have reference to the capacity of a party to bring the action, thus freeing plaintiff from specific proof that she is a dependent until this fact is challenged by the defendant by specific negative averment?

Black's Law Dictionary, citing Braden v. Neal, 132 Kan. 387, 295 P. 678 (1931), states: "Capacity to sue consists in right to come into court." Black's Law Dictionary (4th ed. 1968) p. 261. An application of this definition to the wording of § 25-5-11(a) provides insight toward the resolution of Issue No. I. The very wording of this statute which gives "dependents" the right to "Proceed against the employer to recover compensation under this chapter or . . . Bring an action against such other party to recover damages for such injury or death" follows closely the language used in Black's to define capacity. Code 1975, § 25-5-11(a), reads in part:

Where the injury or death for which compensation is payable under this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, whether or not such party is subject to the provisions of this chapter, THE EMPLOYEE, OR HIS DEPENDENTS in case of his death, MAY PROCEED AGAINST THE EMPLOYER TO RECOVER COMPENSATION under this chapter OR may agree with the employer upon the compensation payable under this chapter, and, at the same time, MAY BRING AN ACTION AGAINST SUCH OTHER PARTY to recover damages for such injury or death, and the amount of such damages shall be ascertained and determined without regard to this chapter; provided, however, that neither an officer, director, agent, servant or employee of the same employer nor his personal representative nor any workmen's compensation insurance carrier of the employer nor any officer, director, agent, servant or employee of such carrier nor any labor union or any official or representative thereof making a safety inspection for the benefit of the employer or its employees shall be considered a party other than the employer against whom such an action may be brought.

Code 1975, § 25-5-11(a) (emphasis added).

The Court of Civil Appeals of Alabama interpreted Code 1940, Tit. 26, § 312 (the predecessor of Code 1975, § 25-5-11), as a statute whose purpose was to confer upon the dependents of a deceased employee the CAPACITY to bring suit in his behalf under certain circumstances:

SECTION 312 ONLY EXTENDED THE RIGHT TO BRING SUCH ACTION TO DEPENDENTS OF A DECEASED, who met his death by accidental injury while within the course of his employment and granted to the employer subrogation rights for compensation paid or due. Previous to Section 312 only the administrator of the deceased's estate could bring a wrongful death action. Title 7, Section 123, 1940 Code of Alabama. SINCE THE ENACTMENT OF SECTION 312, if an employee covered by Workmen's Compensation met his death due to an act of a negligent third party and has dependents as defined under Workmen's Compensation, THE RIGHT TO BRING AN ACTION FOR WRONGFUL DEATH IS VESTED IN THE DEPENDENTS and not in a personal representative under Title 7, Section 123. Robinson v. Western Railroad of Alabama, 243 Ala. 278, 9 So.2d 885. Thus Title 26, Section 312, and Title 7, Section 123 are construed together. IF THE DECEASED IS AN EMPLOYEE COMING WITHIN THE PROVISIONS OF WORKMEN'S COMPENSATION AND HAS DEPENDENTS, ANY ACTION FOR HIS WRONGFUL DEATH AGAINST A NEGLIGENT THIRD PARTY MUST BE BROUGHT BY HIS DEPENDENTS under Title 26, Section 312.

Baggett v. Webb, 46 Ala.App. 666, 674, 248 So.2d 275, 282 (1971) (emphasis added).

The Supreme Court of Alabama gave the same interpretation to Code 1940, Tit. 26, § 312, the predecessor of Code 1975, § 25-5-11(a), as did the Court of Civil Appeals: "SECTION 312, TITLE 26, CODE OF ALABAMA 1940, GIVES TO THE DEPENDENTS of an employee killed under circumstances creating liability against a third party A RIGHT TO BRING AN ACTION against such third party." Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 499, 179 So.2d 76, 78 (1965) (emphasis added). In Liberty Mutual Ins. Co. v. Lockwood Greene Engineers, Inc., 273 Ala. 403, 140 So.2d 821 (1962), this court again referred to the predecessor of the statute at issue in the instant case in terms which sound very much like capacity: "Moreover, THE RIGHT IN THE DEPENDENTS OF THE DECEASED EMPLOYEE TO MAINTAIN AN ACTION for wrongful death under said § 312 within the time provided by law could not be assigned by the widow to the appellant. A right of action for wrongful death is not assignable." 273 Ala. at 407, 140 So.2d at 824 (emphasis added).

Appellant APCo insists, without citing authority which so holds, that Code 1975, § 25-5-11(a), by the phrase "the employee, or his dependents in case of his death, may proceed against the employer" is not conferring on the dependents CAPACITY to bring suit, but instead adding the substantive element of dependency to the proof which plaintiff must adduce to establish a prima facie case under this section of the Alabama Workmen's Compensation Act. Appellant argues in its brief, and we agree, that in Alabama there is but one cause of action for wrongful death, i. e., Code 1975, § 6-5-410. Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 179 So.2d 76 (1965). In other words § 25-5-11(a) gives to the dependents of an employee killed under circumstances creating liability against a third party a right to commence an action against such third party, but such action, when commenced must be deemed to arise under § 6-5-410. Nicholson, supra. Appellant then urges this court to adopt the Massachusetts position advanced in Melnik v. Perwak, 295 Mass. 512, 4 N.E.2d 329 (S.D.Ct.Mass.1936), where that court holds: "The administrator to recover for the death of the intestate due to the negligent operation of a motor vehicle upon the ways of the Commonwealth must show as a condition precedent to the existence of the right of action that he was appointed administrator." Melnik, 4 N.E.2d at 330-331.

Appellant argues by analogy that since an administrator must prove his capacity before bringing suit under the Massachusetts wrongful death statute, so must a dependent prove his dependency before bringing an action under § 25-5-11(a), and a general denial places such capacity in issue. The problem with appellant's analysis is that under Alabama law an administrator or personal representative is not required to prove his capacity as such before bringing a wrongful death action, so long as the administrator alleges in the complaint that he is the proper party to bring the action and ...