Ex parte Havard

• Decision Date: 31 January 1924
• Docket Number: 1 Div. 290.
• Citation: 100 So. 897,211 Ala. 605
• Parties: EX PARTE HAVARD.
• Court: Alabama Supreme Court

100 So. 897

211 Ala. 605

EX PARTE HAVARD.

1 Div. 290.

Supreme Court of Alabama

January 31, 1924

Rehearing Granted May 29, 1924. Further

Rehearing Denied June 30, 1924.

Certiorari to Circuit Court, Mobile County; Saffold Berney, Judge.

Suit by Eva J. Havard against G. M. Rosengrant, for compensation under the Workmen's Compensation Act for the death of Fritz R. Havard, employee of defendant. Judgment for defendant, and plaintiff brings certiorari. Reversed and remanded.

The amended complaint, excepting section 5, reads as follows:

"Eva J. Havard files this her complaint against G. M Rosengrant, doing business under the name and style of the Riverside Manufacturing Company, under the Workmen's Compensation Act of the state of Alabama, and respectfully shows unto the court as follows:

"(1) That she is the widow of Fritz R. Havard, deceased, and is a resident of the city and county of Mobile, state of Alabama, and resides at and her address is 1083 Spring Hill avenue, Mobile, Ala., and that she is over the age of 21 years, and that the defendant, G. M. Rosengrant who, at the day of the death of her husband, as hereinafter set forth, was doing business under the name and style of the Riverside Manufacturing Company, is over the age of 21 years, and is a resident of the city and county of Mobile, and has his place of business on Mobile river at or near the foot of Madison street, in Mobile, Ala.

"(2) That on, to wit, August 24, 1922, the defendant, G. M. Rosengrant, was engaged under the name and style of the Riverside Manufacturing Company, in the business of lumber dealer, and of operating a lumber yard and lumber planing mill which constituted the plant of the said Riverside Manufacturing Company, and was situated upon the bank of Mobile river at or near the foot of Madison street, in the city of Mobile, and, that in his said business he was regularly receiving large shipments of lumber by barges docking at the wharf in front of or adjoining his said plant, said barges being towed or brought to said wharf by tugs or other tow boats.

"(3) That the defendant in his said business was regularly employing more than 16 employees, and that he had elected to become subject and was subject, in his relation with his said employees, to part 2 of the Workmen's Compensation Act of the state of Alabama.

"(4) That on, to wit, the said 24th of August, 1922, Fritz R. Havard, the husband of the plaintiff, was regularly in the employ of the defendant in the usual course of the defendant's said business, being employed by the defendant in that business in the capacity of lumber inspector and grader, and that the average weekly earnings of the said Fritz R. Havard in his said employment by the defendant were $30 per week, and that the defendant and the said Fritz R. Havard in their said relation of employer and employee were at the time of the death of the latter, as hereinafter set forth, subject to the provisions of part 2 of the Workmen's Compensation Act of Alabama.

"(5) [This section appears in the opinion of Justice MILLER.]

"(6) That the said Fritz R. Havard at the time of his death had the following dependents in addition to claimant, his widow, who was residing with him as his wife until he died, viz.: Fritz R. Havard, Jr., aged eight years, and Ralph W. Havard, aged six years, who now reside with claimant, their mother, and who are the minor children of claimant and the said Fritz R. Havard, deceased. And she alleges that she and her said two children were wholly dependent upon the said husband and father, Fritz R. Havard, at and until the time of his injury and death.

"(7) That she has given notice of said accident to the said employer as required by the Workmen's Compensation Act of Alabama, and within the time prescribed by said act, but that the said employer has wholly failed to pay the compensation provided by the said act, and still refuses to pay.

"Wherefore, the premises considered, claimant shows unto the court that she is entitled to receive from the defendant, G. M. Rosengrant, doing business under the name and style of the Riverside Manufacturing Company, on behalf of herself and her said minor children, the compensation provided by part 2 of said Workmen's Compensation Act and she therefore prays the said G. M. Rosengrant, doing business under the name and style of the Riverside Manufacturing Company, be made a party defendant to this her complaint, and that this court will make an order fixing the time and place for the hearing of her said complaint, and that the said defendant be required to file a verified answer to this complaint, setting up the facts, if any, upon which it relies in defense hereof; and she prays that upon the hearing of this matter a decree will be entered granting her said compensation and such other and further or different decree, order, and relief as she may be entitled to receive or as the circumstances of the case may justify."

Miller and Thomas, JJ., and Anderson, C.J., dissenting.

Outlaw & Kilborn, of Mobile, for appellant,

Smiths, Young, Leigh & Johnston, of Mobile, for appellee.

MILLER J.

This is a suit by Eva J. Havard against G. M. Rosengrant, doing business under the name of Riverside Manufacturing Company, under the Workmen's Compensation Act, to recover compensation thereunder for herself and two children, Fritz R. Havard, Jr., aged eight, and Ralph Havard, aged six, for the death of Fritz R. Havard, an employé of the defendant, husband of plaintiff, and father of the two children.

The plaintiff secured an order of the court authorizing her under section 7 of the act to employ an attorney for the purpose of proceeding against the defendant under section 28 of the act (Gen. Acts 1919, p. 206), and filed her complaint to recover compensation, as provided by the Workmen's Compensation Act. The defendant demurred to the complaint, which demurrer was sustained. The complaint was amended; demurrers to it as amended were filed by the defendant, and they were sustained by the court. On the same day the court refused the motion of plaintiff, theretofore filed, to fix a day to hear her suit. The plaintiff declined to plead further, and the court then rendered judgment in favor of defendant and against plaintiff, dismissed the cause, and taxed plaintiff with the court costs.

No evidence was taken, and the case is before us on the record proper by certiorari.

Was this suit properly brought by the plaintiff, the widow of the deceased employé, for the benefit of herself and the two children of the decedent? It is true that section 1, pt. 1, of this act (Gen. Acts 1919, p. 206), states-

"He [meaning employé], or in case of death, his personal representative, for the exclusive benefits of the surviving spouse and next of kin, shall receive compensation by way of damages therefor from the employer."

But section 14, subd. 4, p. 218, of the act, reads:

"In death cases, where the death results proximately from the accident within three years compensation payable to dependents shall be computed on the following basis and shall be paid to the persons entitled thereto without administration."

Section 14, subd. 7, p. 218, of this act, reads:

"If the deceased employee leave a dependent widow *** and either two or three dependent children, there shall be paid to the widow for the benefit of herself and such children fifty per centum of the average weekly earnings of the deceased."

These sections must be examined and interpreted together.

It appears from the complaint as amended that the death of the employé resulted proximately from the accident within three years; and that he left a widow and two dependent children. The compensation under these circumstances should be paid to the widow, without an administration of the estate of the decedent, for the benefit of herself and the two dependent children. No necessity for an administration of the estate existed under the facts averred in the complaint.

When the three above-mentioned sections of the act are read and construed together, and are applied to the facts stated in the complaint, it is evident that the plaintiff, the widow of decedent, is the proper party to maintain this suit. This was clearly the intent of the act under the facts appearing in the complaint. Section 1, p. 206, and section 14, subds. 4, and 7, p. 218, Workmen's Compensation Act (Gen. Acts 1919, p. 206); Ga. Casualty Co. v. Haygood, 210 Ala. 56, 97 So. 87, headnote 3.

The facts averred in the amended complaint show that Havard, the deceased employé, was a lumber inspector and grader, and was employed in that capacity by the defendant, and he was performing his duties under such employment when the accident occurred which caused his death. The defendant was operating a lumber yard and planing mill, located on the bank of Mobile river, in the city of Mobile, and was regularly receiving shipments of lumber by barges at the wharf in front of his mill. The barges were towed to the wharf by tugs. The defendant was employing regularly more than 16 men, and had elected to become subject to part 2 of the Workmen's Compensation Act with relation to the men under his employment. The amended complaint also alleged that the deceased and the defendant were subject to part 2 of the act at the time of the death of this employé, and it states the average weekly earnings of the employé. Section 5 of the amended complaint reads as follows:

"That about 1:30 p. m. on, to wit, the said 24th of August, 1922, while the said Fritz R. Havard, in the usual course of the said business of his employer, the defendant, was sitting or standing upon a laden schooner moored in Mobile river alongside of a barge, which in turn was moored in Mobile river to the dock or wharf at

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