Childers v. Couey

Decision Date06 May 1977
Citation348 So.2d 1349
PartiesRobert CHILDERS et al. v. Joe COUEY. SC 1986.
CourtAlabama Supreme Court

John S. Key of Eyster, Eyster & Key, Norman W. Harris of Harris, Harris, Shinn & Harris, Decatur, for appellants.

James D. Whitmire of Lentz & Nelson, Decatur, for appellee.

EMBRY, Justice.

At issue in this case is the constitutionality of a 1973 Amendment of Tit. 26, § 312, Code of Ala. (Liability of party other than employer, etc.). This is an appeal by permission pursuant to Rule 5, ARAP.

Joe Couey, plaintiff below, seeks to maintain a third party action in tort against Robert Childers, a co-employee, and four individuals who are supervisory personnel of Couey's employer.

Plaintiff is a lineman employed by the City of Decatur and the Municipal Utilities Board of Decatur, Morgan County, Alabama.

The suit arises out of an accident which occurred while plaintiff was working atop a pole supporting electrical wires, and in which plaintiff allegedly received severe electrical shock causing him to fall to the ground sustaining serious injuries and permanent total disability.

Defendants are Robert Childers, lineman and co-employee of plaintiff, James Coulter, Richard Watkins, Frank Chenault, Jr., and Mason Pearce, supervisor, manager, assistant manager and superintendent, respectively, for the Electric Department of the Municipal Utilities Board.

Plaintiff alleges each defendant was negligent in the performance of his duties and that as a proximate consequence of that negligence, plaintiff was injured. Also named as defendants were the City of Decatur, and its Municipal Utilities Board, which were granted summary judgment, The Hartford Insurance Company and The Hartford Accident and Indemnity Company who provide Workmen's compensation coverage for the Utilities Board, none of whom are parties to this appeal. Plaintiff seeks $1,500,000 in damages.

The five individual defendants named above filed motion for summary judgment, with supporting affidavits, on the following grounds: that the City of Decatur, and its Municipal Utilities Board, are subject to the Workmen's Compensation Laws of Alabama; that plaintiff had received $26,975.48 in compensation and medical benefits from the Workmen's compensation insurance carrier for the City of Decatur; that at the time of the accident defendants and plaintiff were employed by the Municipal Utilities Board of Decatur; that the basis of plaintiff's action arose out of and in the course of his employment and that by reason of Tit. 26, § 312, Code of Ala., the defendants are not third-party tort feasors against whom a suit can be maintained. The motion was accompanied by affidavits of officials of the City of Decatur showing the City had elected to be, and was, bound by the Workmen's Compensation Laws of Alabama, that plaintiff had notice of this prior to his accident, and that plaintiff had Workmen's compensation payments as a result of the injuries made the basis of the action.

In opposition to the motion, plaintiff filed affidavits of former State Senator William Melton and John Pemberton, Clerk of the Alabama House of Representatives. Both affidavits concern an Amendment to Tit. 26, § 312, Code, which, because it contains an alleged clerical error, failed to achieve its alleged purpose: deleting that portion of § 312 which prohibits third-party actions against co-employees and others. Plaintiff also filed what purports to be a certified copy of original House Bill 1273, and a certificate of Mabel S. Amos, former Secretary of State, containing a copy of House Bill 1273 as adopted by the 1973 Alabama Legislature as Act No. 1062.

Defendants moved to strike plaintiff's affidavits and certificates on the grounds that such materials sought to contradict and impeach the validity of Tit. 26, § 312, Code The key issue here is whether defendants are entitled to summary judgment in a third-party tort action in view of Tit. 26, § 312, Code of Ala. (1975 Supp.). The resolution of the issue requires answers to several questions concerning the validity of a portion of that statute. We find that defendants are entitled to summary judgment and therefore reverse the trial court below.

and in that regard were not proper for consideration by the court. Defendants also moved for summary judgment. The court granted the motion to strike, but denied the motion for summary judgment. The court entered an order in compliance with Rule 5, ARCP, and defendants appeal the denial of the motion for summary judgment.

The latest promulgation of Tit. 26, § 312, Code of Ala., appears in the 1975 Interim Supplement. As approved November 13, 1975, the pertinent portion reads:

" § 312. (7587) Liability of party other than employer and procedure governing; liability of employer for attorney's fees in settlement. Where the injury or death for which compensation is payable under article 2 of 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 be subject to the provisions of article 2 of this chapter the employee, or his dependents in case of his death, may proceed against the employer to recover compensation under article 2 of this chapter, or may agree with the employer upon the compensation payable under article 2 of 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 article 2 of this chapter; provided, however, 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 an 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. * * * " (emphasis ours)

The language emphasized above was placed in the statute by a 1973 Amendment. Prior to that time it was possible to maintain a third-party tort action against co-employees. United States Fire Insurance Co. v. McCormick, 286 Ala. 531, 243 So.2d 367 (1970). It is this language, precluding the maintenance of a civil action by an employee for damages from an injury occurring in his employment against another employee of the same employer, which plaintiff-appellee contends is invalid. Plaintiff bases this contention on the allegation that there is a material variance between the enrolled bill (Act No. 1062, Approved Sept. 17, 1973) signed by the Governor, and the bill which actually passed the 1973 Legislature.

The amendment on which plaintiff's contentions are based, as deleting the pertinent portion of § 312, reads:

"Delete § 27 amending § 36 of Title 26 as it appears on page 29 and renumber remaining sections." (emphasis ours)

The use of § 36 in the Amendment was a mistake, says plaintiff, the section cited should have been § 312. He urges the Court to look at page 29 of the original bill, to which the Amendment refers, and there it will be discovered there is no § 36 on page 29, but there is § 312. Plaintiff says that if we simply delete the words "amending § 36" from the Amendment, we can see that the true intent of the Amendment was to delete that portion of the statute prohibiting suits against co-employees. Thus corrected, the Amendment will achieve its "true purpose," which it did not achieve when actually passed by the Legislature.

An Act of the Legislature as enrolled and approved by the Governor is valid unless it varies in a material respect from the bill passed by the Legislature. King Lumber Co. v. Crow, 155 Ala. 504, 46 So. 646 (1908); Moog v. Randolph, 77 Ala. 597 (1884).

In determining whether there is a material variance between a bill actually passed by the Legislature and the enrolled bill signed by the Governor the only competent evidence which can be considered by this Court is the enrolled bill and the Journals of the House and Senate. It must affirmatively appear from an inspection of these two sources that the bill signed and approved by the Governor, and enrolled, materially varies from the bill passed by the Legislature. Robertson v. State, 130 Ala. 164, 30 So. 494 (1901); Ex parte Howard-Harrison Iron Co., 119 Ala. 484, 24 So. 516 (1898).

Through the cooperative efforts of the Department of Archives and History of Alabama we were able to examine the enrolled bill (Act No. 1062) and the bill as it appears in the Journals of the House and Senate. We must note here that at no place in either the House Journal or the Senate Journal is the entire bill (House Bill 1273-Act No. 1062) spread on the Journals. All reference to the bill is in its title and the Amendments offered to it. It does appear from the Senate and House Journals that several Amendments to the Workmen's Compensation Laws were adopted. We do find in that part of the Melton Amendment, here under discussion, the language pointed out by plaintiff: "Delete Section 27 amending Section 36 of Title 26 as it appears on page 29 and renumber the remaining sections." (emphasis ours) At no place do we find reference to an Amendment to § 312, nor instructions to delete all or a portion of § 312 from the bill. The Journals completely fail to show that § 312 should not have been in the enrolled bill as passed by the Legislature and signed by the Governor. Thus § 312, as it appears in the 1975 Supplement to the Code, became law upon its approval by the Governor. § 125, Constitution of 1901. Therefore, it does not affirmatively appear that the bill signed by the presiding officers of the Legislature and approved by the Governor is materially variant from the bill passed by the Legislature. In the absence of a...

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    • United States
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    • August 18, 1995
    ...Authority, Inc., 376 So.2d 705 (Ala.1979); Employees' Retirement System of Alabama v. Head, 369 So.2d 1227 (Ala.1979); Childers v. Couey, 348 So.2d 1349 (Ala.1977), the Judiciary has always applied a very high standard in determining whether a law violates the fundamental law--that standard......
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    ...without invalidating the enactment. E.g., Application of Fisher, 80 N.J.Super. 523, 527-528, 194 A.2d 353 (1963), and Childers v. Couey, 348 So.2d 1349, 1351 (Ala., 1977). 28. As explained earlier, the question is not whether the Secretary of the Senate's action was authorized by Joint Rule......
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    ...of the same employer nor his personal representative * * * shall be considered a party other than the employer * * *." In Childers v. Couey, 348 So.2d 1349 (Ala.1977), the validity of the enactment of this amendment was challenged. This court held that the amendment was enacted by the legis......
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    ...of Alabama of 1940], co-employees are not third-party tortfeasors against whom an action such as this can be brought." Childers v. Couey, 348 So.2d 1349, 1352 (Ala.1977) (Embry, J., joined by Torbert, C.J., and Bloodworth and Faulkner, JJ., with Almon, J., concurring in the result; Shores, ......
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