Daniel Const. Co. v. Pierce

• Decision Date: 29 October 1959
• Docket Number: 4 Div. 869
• Citation: 270 Ala. 522,120 So.2d 381
• Parties: DANIEL CONSTRUCTION COMPANY v. L. C. PIERCE.
• Court: Alabama Supreme Court

Page 381

120 So.2d 381

270 Ala. 522

DANIEL CONSTRUCTION COMPANY v. L. C. PIERCE.

4 Div. 869.

Supreme Court of Alabama.

Oct. 29, 1959.

Rehearing Denied May 19, 1960.

Robt. B. Albritton, Albrittons & Rankin, Andalusia, for appellant.

Prestwood & Prestwood, Andalusia, for appellee.

GOODWYN, Justice.

Appellant, Daniel Construction Company, was a general contractor building a steam power plant at Gantt, Alabama. Royce F. Pierce, a minor, 17 years of age, the son of appellee, L. C. Pierce, was employed by a subcontractor doing the brick and tile work on the job. Both the subcontractor and Royce were subject to the provisions of the Alabama Workmen's Compensation Act (Code 1940, Tit. 26, § 253 et seq., as amended). Royce, while rolling a wheelbarrow loaded with mortar along a scaffolding, fell to a brick wall and then to a concrete floor, thereby causing injuries resulting in his death several days afterwards.

The father brought this suit against the general contractor pursuant to § 119, Tit 7, Code 1940, to recover damages for the wrongful death of his said minor son.

As last amended, the complaint consisted only of count two, as follows:

'Count Two:

'The plaintiff, suing as the Father of Royce F. Pierce, a minor under the age of 21 years, deceased, claims of the defendant Daniel Construction Co., a corp., the sum of $125,000.00 as damages for that on heretofore towit, the 28th day of June, 1954, the defendant was the general contractor in charge of constructing a steam power plant building at Gantt, Alabama, and the plaintiff's minor son was working at said construction project as an employee of a subcontractor, with the consent of and at the invitation of the defendant, and while so working plaintiff's minor son as a proximate result of negligence of defendant in failing to keep its works, ways, and scaffolding, upon which plaintiff's minor son was invited to work, in a reasonably safe condition slipped and fell 60 feet to a brick ledge and thereupon received severe personal injuries from which he died, all to the plaintiff's great damages as aforesaid, hence this suit.

'Plaintiff's said minor son, Royce F. Pierce, was not survived by any dependent or dependents entitled to benefits under the laws of the Workmen's Compensation Act of Alabama, or any dependent whatever.'

The jury returned a verdict in favor of appellee for $45,000, upon which verdict judgment was duly rendered. This appeal was taken from that judgment after the trial court overruled appellant's motion for a new trial.

The questions presented by those of the 54 assignments of error here argued and insisted upon, are thus summarized in appellant's brief:

I.

'The Appellee suing as the father of the deceased employee subject to the provisions of the Workmen's Compensation Laws, cannot maintain this suit against Appellant under Section 119, Title 7, of the Code, since the right, if any, to maintain the action is vested exclusively in the personal representative of the decedent in the absence of any dependents, by virtue of Sections 272 and 312 as amended, Title 26 of the Code.'

II.

'The trial court committed reversible error in allowing, over Appellant's objection, highly prejudicial testimony tending to show that Appellant was indemnified by an insurance company.'

III.

'The several arguments of Appellee's counsel to the jury were so improper and highly prejudicial to Appellant that they were of that class of argument the poisonous effect of which could not be eradicated from the minds of the jury by any admonition from the trial judge and its refusal to grant Appellant's several motions for a mistrial because of the prejudicial nature of such arguments constituted reversible error.'

IV.

'Under the undisputed evidence in the case, the Appellant was entitled to the affirmative charge.'

V.

'Appellant's requested charge in writing No. 26 states, in substance, the correct proposition of law that when the death of a minor is wrongfully caused and he leaves a parent surviving who is not disqualified under Section 118 of Title 7 of the Code, the damages recoverable are solely for the benefit of that parent and its refusal by the trial court was error.'

VI.

'Appellant's motion for a new trial should have been granted because.

'(a) the verdict of the jury was contrary to the law and the evidence;

'(b) the verdict was contrary to the great preponderance of the evidence;

'(c) the verdict was excessive and the result of bias, passion and prejudice against Appellant '(d) the trial court erred in overruling Appellant's several motions for a mistrial because of improper and highly prejudicial argument of Appellee's counsel to the jury;

'(e) the instructions given to the jury by the Court in connection with the grossly improper argument complained of were insufficient to remove their influence from the minds of the jury;

'(f) the cumulative effect of the improper questions and arguments was calculated to inject the poison of bias and prejudice in the minds of the jury. They created an atmosphere of bias and prejudice which no remarks of the court could eradicate.'

Our conclusion is that we would not be warranted in reversing the case on any of these grounds. However, we entertain the view that the verdict is excessive, which will necessitate a reversal unless appellee makes a remittitur, as herein provided for.

We proceed to a discussion of our reasons for these conclusions.

I.

The first question presented is whether the suit was properly brought by the father. Appellant's insistence is that it could only have been brought by the son's administrator, in view of § 312, Tit. 26, Code 1940, as amended by Act No. 635, appvd. Oct. 9, 1947, Gen.Acts 1947, p. 484. This section authorizes recovery of damages by an 'employee, or his dependents in case of his death', from a party other than the employer, 'where the injury or death for which compensation is payable under article 2 of this chapter [which deals with elective compensation under the Workmen's Compensation Law] was caused under circumstances also creating a legal liability for damages on the part' of such third party 'whether or not such party be subject to the provisions of article 2 of this chapter.' Act No. 635 also repealed § 311, Tit. 26. In this case, as already noted, the deceased minor son left no dependents surviving him. For this reason, says appellant, only the son's administrator can maintain the suit because of the following provision of § 312, added by the 1947 amendment:

'In the event such injured employee has no dependents, his personal representative in the event of his death may bring suit against such other party to recover damages without regard to article 2 of this chapter.'

Our problem is to determine whether the legislature intended, in amending § 312, to take away from the father the right to sue given him under § 119, Tit. 7, Code 1940. It is our view that it was not so intended and that the suit was properly brought by the father.

In the first place we do not think there is anything in amended § 312 clearly indicating an intention to take away the father's already existing right to sue expressly given by § 119, Tit. 7. As said in Goodman v. Carroll, 205 Ala. 305, 306, 87 So. 368, 369:

'Among the accepted rules of statutory construction, here as well as generally elsewhere, are these:

'The presumption is that 'the Legislature does not intend to make any alteration in the law beyond what it explicitly declares, either in express terms or by unmistakable implication; * * * that it is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness. * * *''

There is still another reason why there can be no objection to the suit being brought by the father. We have held that the damages recoverable under § 119 in a suit brought by the father belong to the father. As said by a full court in Peoples v. Seamon, 249 Ala. 284, 288, 31 So.2d 88, 90:

'We adhere to the principle stated in our cases that when the death of a minor is wrongfully caused, and he leaves a parent surviving, who is not disqualified under section 118, section 119, and not section 123, supra, has application, and the damages recoverable are solely for the benefit of that parent, who may sue in his own name, or if he becomes administrator may sue as such for his sole benefit.'

We have also held that there is no real difference between a suit brought by a father individually and one brought by him as his son's administrator. Peoples v. Seamon, supra; Benson v. Robinson, 223 Ala. 85, 86, 134 So. 799. In the Benson case the suit was brought by the father under § 5695, Code 1923, now § 119, Tit. 7. It was there held that the court correctly refused to allow an amendment to show that the father sued as administrator because thereby there was no effectual change in plaintiff's status since, in either event, the recovery was for the sole benefit of the father. See Peoples v. Seamon, supra; White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A.,N.S., 568; Tennessee Coal, Iron and R. Co. v. Herndon, 100 Ala. 451, 14 So. 287.

Even assuming § 312 requires a suit for the wrongful death of a minor without dependents to be brought by the minor's administrator, still we do not think, under our liberal system of pleading, that the instant suit should be dismissed simply because it was brought by the father in his individual capacity and not as his son's administrator. As already noted, in either event he would be the sole beneficiary of any recovery had under § 119.

II.

One of appellant's witnesses, Mrs. Voncile Thompson, testified on direct examination concerning a statement made to her by Royce's mother a few days after his death. Mrs. Thompson was employed by an attorney at Andalusia. She testified that she had gone to Mrs. Pierce's residence to interview her in...