Ellison v. Butler, 6 Div. 466

• Decision Date: 08 September 1960
• Docket Number: 6 Div. 466
• Citation: 124 So.2d 88,271 Ala. 399
• Court: Alabama Supreme Court
• Parties: Jerome ELLISON v. Newell BUTLER d/b/a Butler Coal Co.

Page 88

124 So.2d 88

271 Ala. 399

Jerome ELLISON v. Newell BUTLER d/b/a Butler Coal Co.

6 Div. 466.

Supreme Court of Alabama.

Sept. 8, 1960.

Rehearing Denied Nov. 17, 1960.

Cooper, Mitch, Black & Crawford, Birmingham, for appellant.

Rogers, Howard & Redden and Wm. H. Mills, Birmingham, for appellee.

SIMPSON, Justice.

This is a petition for a writ of certiorari to review a judgment of the Circuit Court of Jefferson County denying compensation to the petitioner, the plaintiff below.

The facts are undisputed. The sole question presented by this review is whether petitioner's employment by the respondents is subject to and covered by the Alabama Workmen's Compensation Law.

The trial court in its amended final decree of June 26, 1959 made the following findings of fact:

(1) During the petitioner's employment the respondents regularly employed less than eight employees.

(2) Petitioner's employment was covered by a collective bargaining agreement between respondents and petitioner's union. This agreement was entered into by the union for and on behalf of its members and governed the terms and conditions of employment of the petitioner and others working at respondents' mine. The agreement provides in part:

'Each operator who is a party to this agreement will provide the protection and coverage of the benefits under the Workmen's Compensation and Occupational Disease Laws, whether compulsory or elective, existing in the states in which the respective employees are employed.'

Title 26, § 263, Code of Alabama 1940, as amended, provides in part:

'Articles 1 and 2 of this chapter shall not be construed or held to apply to * * * any employer, who regularly employs less than eight employees in any one business * * *. Any employer who regularly employs less than eight employees in any one business * * * may accept the provisions of articles 1 and 2 of this chapter by filing written notice thereof with the department of industrial relations and with the probate judge of each county in which said employer is located or does business, said notice to be recorded by the judge of probate * * * and copies thereof to be posted at the places of business of said employers * * *.'

Tit. 26, § 270, Code of Alabama 1940 provides in part:

'If both employer and employee shall, by agreement, expressed or implied, * * * become subject to this article, compensation, according to the schedules hereinafter contained, shall be paid by every such employer in every case of personal injury or death of his employee caused by an accident arising out of and in the course of his employment * * *.'

First, petitioner contends that the Act is applicable to his employment because the respondents, having asserted, by the quoted clause of the bargaining agreement, supra, that the Act is applicable, are estopped to deny coverage. Petitioner further maintains that the collective bargaining agreement entered into between his union and the respondents amounted to an agreement, 'expressed or implied', as contemplated by Tit. 26, § 270, and served to bring respondent under the coverage of the Act.

On the other hand, respondents contend that there was no estoppel since there was no evidence of any misrepresentation made by them nor any reliance by petitioner on their actions and that there was no acceptance of the Act by them since no notice acknowledging acceptance was sent to the Department of Industrial Relations and the probate judge as required by Tit. 26, § 263, supra.

Several elements must be present before the courts will invoke an equitable estoppel. In 19 Am.Jur., Estoppel, § 34 equitable estoppel or estoppel in pais is defined as the principle of law 'by which a party who knows or should know the truth is absolutely precluded, both in law and in equity, from denying, or asserting the contrary of, any material fact which, by his words or conduct, affirmative or negative, intentionally or through culpable negligence, he has induced another, who was excusably ignorant of the true facts and who had a right to rely upon such words or conduct, to believe and act upon them thereby, as a consequence reasonably to be anticipated, changing his position in such a way that he would suffer injury if such denial or contrary assertion were allowed.' See also Cosby v. Moore, 259 Ala. 41, 65 So.2d 178; Jacksonville Public Service Corp. v. Calhoun Water Co., 219 Ala. 616, 123 So. 79, 64 A.L.R. 1550.

We are of the opinion that the facts in this case will not support an estoppel. Nowhere in the record does it appear that the petitioner, in reliance upon the provision in the bargaining agreement, changed his position to his detriment. These are facts that the petitioner must prove. Mobile Towing & Wrecking Co. v. First National Bank of Lakeland, Fla., 201 Ala. 419, 78 So. 797; Kinney v. LaFrange, 38 Ala.App. 234, 81 So.2d 903.

Petitioner urges that the case of Herndon v. Slayton, 263 Ala. 677, 83 So.2d 726, is controlling here. In the Herndon case the deceased workman while negotiating employment was informed by the employer's agent that the job was covered by Workmen's Compensation while in fact the employment was not so covered. The deceased workman relied on the representation and took the job. He was injured on the job, the injuries resulting in his death. In that case we held that the employer was estopped to deny that he was covered by the Workmen's Compensation Act. That case is an example of the correct application of the principle of estoppel; both a representation by the employer and a reliance by the employee in good faith to his detriment are present. The Herndon case is thus distinguishable from the instant case. In the Herndon case the representation was made directly to the party claiming the estoppel; in the case before us it has not even been shown that the petitioner knew of the provision in the bargaining agreement. In the Herndon case the employee changed his position, when he accepted the employment, while relying on the representation that the job was covered by workmen's compensation; in the case at bar there is no evidence that the petitioner changed his position in any respect, and if he did, there is no evidence that such change of position was in reliance on the representation in the collective bargaining agreement.

Petitioner next contends that the Workmen's Compensation Act is applicable in this case even if there had been no estoppel. This proposition is based upon certain language contained in § 270, Tit. 26 of the Code, quoted from above, viz: 'If both employer and employee shall, by agreement, expressed or implied, * * * become subject to this article, compensation, according to the schedules * * * shall be paid', etc., and it is argued that the bargaining agreement is just such an agreement as is contemplated in said § 270. This is not a correct interpretation of the quoted part of that statute. It must be borne in mind that the Compensation Act is elective, and to be constitutionally valid must be accepted by both employer and employee. Gentry v....