Ex parte Woodward Iron Co.

• Decision Date: 06 November 1924
• Docket Number: 6 Div. 10
• Citation: 102 So. 103,212 Ala. 220
• Parties: Ex parte WOODWARD IRON CO. v. WOODWARD IRON CO. LEWIS
• Court: Alabama Supreme Court

102 So. 103

212 Ala. 220

Ex parte WOODWARD IRON CO.

LEWIS v. WOODWARD IRON CO.

6 Div. 10

Supreme Court of Alabama

November 6, 1924

Rehearing Denied Nov. 27, 1924

Certiorari to Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Petition of the Woodward Iron Company for certiorari to the circuit court, Bessemer division, of Jefferson county, to review the finding and judgment of that court in a proceeding by Elizabeth Lewis against the Woodward Iron Company under the Workmen's Compensation Act. Corrected and affirmed.

Under Workmen's Compensation Act, § 14, subds. 5, 6, 14, award of compensation to widow and sole dependent child of deceased employee, on basis of 40 per cent. of average weekly earnings, for period beyond that of child's dependency will be corrected so as to allow such percentage until child is 18 and 30 per cent. thereafter.

In this proceeding the widow of Frank Lewis, deceased, recovered a judgment against the petitioner on behalf of herself and her minor daughter.

Frank Lewis was killed by a gas explosion while working in the defendant's (petitioner's) mine, on January 10, 1923 and the widow's complaint was filed on April 2, 1923. Defendant's demurrer to the complaint being overruled, an answer was filed admitting that the deceased was its employé and recognizing the relationship and dependency of plaintiff and her daughter, but denying that deceased was, when killed, acting within the line and scope of his employment; and, also, that he was killed as the result of an accident arising out of and in the course of his employment. Also, the answer denied plaintiff's right to compensation because:

"The death of Frank Lewis was caused (1) by his own intention to bring about the injury or death of himself or of another; or (2) was caused by his own willful refusal to use the safety appliances provided by the defendant; or (3) was due to the willful refusal or willful neglect of said Frank Lewis to perform a statutory duty; or (4) was due to the willful violation of the law by said Frank Lewis; or (5) was due to the willful breach of a reasonable rule or regulation of the defendant by the said Frank Lewis, of which rule or regulation (he) had knowledge."

The answer also averred the average weekly earnings of the deceased was $19.18, and not $35 as claimed.

Within five days after defendant's appearance and answer, plaintiff filed her written demand for a trial by jury upon the issue of the willful misconduct of the deceased, which, over defendant's objection made in various ways, was allowed by the court.

A jury was impaneled when the case was called for trial, and all of the testimony was heard by the judge and jury. The trial judge, however, instructed the jury as to the several acts of willful misconduct as set up in defendant's answer, except on the one numbered 2, as to which he stated that "the jury need not consider that issue, because it is not supported by the evidence in the case," and added:

"That is the only matter to be submitted to this jury, and only thing for you to determine--the things that I have submitted to you under this subdivision 3 of the answer."

The jury was further instructed to bring in a verdict finding the issue in favor of the plaintiff, or in favor of the defendant, as their finding might be. The trial judge refused to instruct the jury at defendant's request that "you must make and return a special finding of the facts on each issue submitted to you," and that "you must return a finding on each special issue presented to you."

The verdict was: "We the jury, find the issue in this case for the plaintiff."

The record shows the following judgment entry:

"Plaintiff sues to recover compensation for the death of her husband in the mines of defendant on January 10, 1923.

"The Facts.

"The deceased, Frank Lewis, was foreman of a track crew and was working at night in the mines. He and his crew went into an abandoned heading to get some rails or trackage and remove it to another heading in the mine. The day mine foreman left instruction on order book for it to be done. There was conflict in the evidence as to the manner of doing it; some of the testimony showing that it was the duty of deceased and rule of the company for him to inspect before going into the abandoned heading, other testimony showing that the order to do the work presumed that the abandoned heading had been made safe and inspected by fire boss before order was given.

"The defendant in its answer pleaded special defenses under section 9 of Compensation Act. The plaintiff demanded a jury trial on these issues, which was granted, and the jury determined the issues submitted to it in favor of plaintiff and against defendant.

"It is ordered and adjudged by the court that the deceased was killed in an accident arising out of and in course of his employment with defendant of which it had notice; the deceased was earning an average of $18.35 per week for 52 weeks before his death and the complainant and her girl, 13 years old, were totally dependent upon deceased; that the deceased was not guilty of any misconduct that would bar the right of complainant to recover in this case.

"It is ordered and adjudged that complainant recover of defendant for use of herself and child 40 per cent. of $18.35, or $7.34, per week for a period of 300 weeks, and that all amounts due beginning February 1, 1923, be paid into court and the remainder to be paid as it matures.

"It is ordered and adjudged that $220.20 be paid to plaintiff's attorney and the remainder to complainant, and that defendant pay all costs for which let execution issue."

The opinion sufficiently states the questions presented by the assignments of error.

Huey & Welch, of Bessemer, for petitioner.

Goodwyn & Ross, of Bessemer, opposed.

SOMERVILLE J.

The demurrer to the complaint was properly overruled, since it contained a distinct allegation of every matter specified by section 28 of the Workmen's Compensation Act (Gen.Acts 1919, p. 227).

A strenuous contention is made by counsel for defendant that the special matters of defense set up under subdivision 3 of its answer did not present the issue of "willful misconduct," and hence that a jury trial of those matters was not authorized by the act, and their submission to the jury was erroneous.

Section 9 of the act provides that compensation shall be paid in every case of personal injury or death caused by an accident arising out of and in the course of the employment "without regard to any question of negligence, except no compensation shall be allowed for an injury or death caused by the willful misconduct of the employé or by the employé's intention to bring about the injury or death of himself or of another or due to his own intoxication or his willful failure or willful refusal to use safety appliances provided by the employer or due to the willful refusal or willful neglect of the employé or servant to perform a statutory duty or due to any other willful violation of the law by the employé or his willful breach of a reasonable rule or regulation of his employer of which rule or regulation the employé has knowledge."

Section 21 of the act gives jurisdiction of all cases arising thereunder to the circuit court, to be heard as other cases in tort, and the court is empowered to hear and determine such cases in a summary manner; the decision of the judge presiding being conclusive and binding between the parties. But, "when willful misconduct on the part of the employé is set up by the employer, as it is provided for herein, the employer may, upon appearing, demand a jury to hear and determine, under the direction of the court, the issues involved in this defense. If the employer fails to demand a jury upon appearing, the employé may demand a jury to try such issues by filing his demand within five days after the appearance of the employer. When a jury is demanded by either party the court must submit the issue of fact as to willful misconduct set up by the employer to the jury, for a special finding of the facts subject to the usual powers of the court over verdicts rendered contrary to the evidence or the law, but the judge must determine all other questions involved in the controversy without a jury. Upon setting up such defense the employer must serve a copy of the plea or answer setting up the defense upon the employé or his attorney of record."

Section 28 of the act provides for the procedure and pleadings in litigated cases, and declares:

"At the time fixed for hearing, or any adjournment thereof, the court shall hear such witnesses as may be presented by each party, and in a summary manner without a jury, unless one is demanded to try the issue of willful misconduct on the part of the employé decide the controversy. This determination shall be filed in writing with the clerk of the said court, and judgment shall be entered thereon in the same manner as in causes tried in the said circuit court, and shall contain a statement of the law and facts and conclusions as determined by said judge." (Italics all supplied.)

Defendant's argument is that a jury trial is authorized only when the defendant sets up the employé's "willful misconduct," using that very phrase, and not when he sets up any one or more of the specific intentional or willful acts or omissions stated in the alternative, following the general phrase. The contention, in short, is that the willful acts or omissions by the employé herein set up in defense are not to be included in the phrase "willful misconduct," designated in sections 21 and 28 of the act as the issue upon which a jury trial may be demanded.

This contention is without merit. We think that the phrase "willful misconduct," as used in the act, includes all...