Birmingham Belt R. Co. v. Ellenburg

• Decision Date: 02 December 1926
• Docket Number: 6 Div. 679
• Parties: BIRMINGHAM BELT R. CO. v. ELLENBURG.
• Court: Alabama Supreme Court

111 So. 219

215 Ala. 395

BIRMINGHAM BELT R. CO. v. ELLENBURG.

6 Div. 679

Supreme Court of Alabama

December 2, 1926

Rehearing Granted with Modification Jan. 6, 1927

Certiorari to Circuit Court, Jefferson County; John Denson, Judge.

Petition by the Birmingham Belt Railroad Company for certiorari to the circuit court of Jefferson county to review the finding and judgment of that court in a proceeding under the Workmen's Compensation Act by John W. Ellenburg against the petitioner. Writ denied, and judgment affirmed on rehearing.

Sayre and Bouldin, JJ., dissenting.

Cabaniss Johnston, Cocke & Cabaniss, and Brewer Dixon, all of Birmingham, for appellant.

Black &amp Harris, John C. Arnold, and W.C. Woodall, all of Birmingham for appellee.

BOULDIN J.

Under our liberal system of pleading and practice, new counts or statements of the cause of action which could have been joined in the original complaint may be added by amendment, and relate back to the beginning of suit as affected by the statute of limitations. Code, § 9513.

In an action brought under the federal Employers' Liability Act (U.S.Comp.St.§§ 8657-8665), is an amendment allowable presenting a case under the Workmen's Compensation Law? We think not, for the following reasons: (1) The positive provision of Code, § 7570, that claims "shall be forever barred, *** unless within one year after the accident one of the parties shall have filed a verified complaint as provided in section 7578," should not be modified by a general statute dealing with established forms of action. Ex parte Sloss-Sheffield, etc., Co., 207 Ala. 531, 93 So. 425. (2) Workmen's Compensation Statutes are distinct in purpose, and have prescribed procedure all their own.

The claim to compensation is not based either upon a wrong or tort of either party, nor upon breach of contract. It is a law-made demand or liability based upon the relation of parties, expressive of a public policy to place the burden of accidents due to the hazards of industry in some measure upon the industry itself. In this regard it is in the nature of benefit accident insurance on behalf of the injured employee and dependents. The remedy is by a summary proceeding rather than a regular common-law action.

In ordinary actions, a trial by jury is matter of right upon demand, but in compensation proceedings the judge tries without a jury, unless upon a special plea of misconduct of the employee. If joined in the same action, we have the anomaly of one case being heard by the judge and another by the jury at the same time. In case of dispute of fact as to whether the employee was engaged in interstate commerce, for example, the jury must determine that issue, and thereupon the judge takes up the case as one for compensation vel non.

The measure of recovery and the method of payment are different. In death cases, the beneficiaries of the recovery may be different. Thornton's Federal Liability Act, § 145; Code of Ala. §§ 7552, 7553. Proceedings under the Workmen's Compensation Law may be instituted by either party. Code, § 7578.

The adjustment of controversies is largely administrative; in some jurisdictions committed to Industrial Boards or Commissions. Under our statute it is committed to judges learned in the law, whose proceedings are judicial in character, but subject to review only by certiorari for the limited purpose of supervision by this court to determine whether they have rightly interpreted the law, and whether, when presented by bill of exceptions, there is any evidence in support of their findings and awards.

Without further analysis of the matter, we think compensation proceedings are quite as distinct in purpose and procedure from the ordinary action of law as is a suit at law from a suit in equity. A suit in equity may involve the same "transaction" or "property" and "parties" as an action at law.

Section 9513 must necessarily relate to joinder, originally, or by amendment in actions at law, of counts at law, governable by the same general rules of procedure, and leading to an appropriate judgment at law as known to law courts, and reviewable as such.

We conclude compensation suits are proceedings apart, statutory and distinct in purpose and procedure, and can neither be joined in an original complaint nor by amendment. To do so would bring greater confusion and injury than otherwise. If it be desirable to provide for conversion of suits under the Employers' Liability Acts into compensation suits, and so avoid the running of the statute of limitations in cases of doubt, the remedy must be provided by the Legislature, as has been done touching suits at law and in equity.

Reversed and remanded.

SAYRE, SOMERVILLE, and THOMAS, JJ., concur.

ANDERSON C.J., and GARDNER and MILLER, JJ., dissent.

MILLER, J. (dissenting).

This is a suit by John W. Ellenburg against the St. Louis & San Francisco Railroad Company, the Illinois Central Railroad Company, the Central of Georgia Railroad Company, and the Birmingham Belt Railroad Company. The complaint contained one count. It was filed on the 13th of January, 1923, claiming damages under the federal Employers' Liability Act, in that plaintiff was engaged in interstate commerce at the time of injury, which occurred on December 5, 1922. On motion of the plaintiff, the cause was dismissed as to all defendants, except the Birmingham Belt Railroad Company. It pleaded not guilty. The jury returned a verdict in favor of the plaintiff, and from a judgment thereon by the court the defendant appealed. This court reversed the judgment and remanded the cause, because the action under the evidence should have been brought under the Workmen's Compensation Law of this State, and not under the federal Employers' Liability Act. See Birmingham Belt Railroad Co. v. Ellenburg, 213 Ala. 146, 104 So. 269. The plaintiff then appealed, by certiorari, the cause to the Supreme Court of the United States, and that court denied the writ.

The plaintiff, on the 20th of February, 1926, amended the complaint by striking out the count claiming damages, under the federal liability statute, and by inserting a count or claim for compensation, under the Workmen's Compensation Statute, for the same injury. The original count, which was stricken, was not verified by affidavit, but the amendment was verified and drawn under and according to the requirement of section 7578 of the Code of 1923.

The defendant objected to the allowance of the amendment, and also moved to strike the amendment because: First, it came too late; second, it constitutes a complete departure from the original cause of action stated in count 1, which was stricken; and, third, the original complaint was not verified, and the amendment, which is verified, was not filed within a year, as the provisions of the Workmen's Compensation Law provides. The court overruled the objections to, and the motion to strike, the amendment.

The defendant pleaded that the right of action set up in the amendment was barred by the statute of limitations of one year, as provided by section 7570, Code of 1923. Demurrers of plaintiff to this plea were sustained by the court. The court, then, made an award of compensation on the oral testimony before it in favor of the plaintiff for $15 per week for 300 weeks.

It is true that section 7570 of the Code of 1923 provides:

"In case of a personal injury all claims for compensation under articles 1 and 2 of this chapter shall be forever barred unless within one year after the accident the parties shall have agreed upon the compensation payable *** or unless within one year after the accident one of the parties shall have filed a verified complaint as provided in section 7578 hereof."

This court, in Ex parte Sloss-Sheffield Steel & Iron Co., supra, held as to this statute (section 7570):

"The legislature in express terms has made section 20a [now 7570, Code of 1923] a statute of limitation."

This statute (section 7570)...