Ex parte Woodward Iron Co.

• Decision Date: 24 September 1964
• Docket Number: 6 Div. 120
• Citation: 167 So.2d 702,277 Ala. 133
• Parties: Ex parte WOODWARD IRON COMPANY.
• Court: Alabama Supreme Court

Page 702

167 So.2d 702

277 Ala. 133

Ex parte WOODWARD IRON COMPANY.

6 Div. 120.

Supreme Court of Alabama.

Sept. 24, 1964.

Norman K. Brown, Bessemer, and Carl G. Moebes, Woodward, for petitioner.

Brobston & Brobston, Bessemer, and Richard L. Jones, Birmingham, for respondent.

MERRILL, Justice.

Petitioner, Woodward Iron Company, filed a petition for writ of mandamus to Honorable Frank B. Parsons, Special Judge, of the Tenth Judicial Circuit, Bessemer Division, to show cause why he should not vacate an order substituting the widow of a deceased employee as plaintiff in an action instituted by her husband against petitioner for Workmen's Compensation. We granted the writ and the cause was submitted on petition, demurrer, motion to quash rule nisi and answer of respondent.

The employee, H. H. Norred, filed a complaint in August, 1961, against petitioner for compensation for disabilities arising from occupational pneumonoconiosis. Petitioner filed a demurrer to the complaint but before any action was taken by the court, Norred died on February 8, 1962. In May, 1962, Norred's widow filed a suggestion of death and a petition asking that the 'cause be revived in her name as dependent widow, and prayed leave to be substituted as plaintiff in said cause,' and asked that she be listed as plaintiff in the cause. Petitioner filed objections and a motion to strike the petition to revive.

On May 29, 1964, the court entered an order that 'Nellie Norred, as dependent widow be substituted as plaintiff in this cause in lieu of H. H. Norred, and that said cause be and the same is hereby revived with the said petitioner as plaintiff therein, and the said Nellie Norred be, and she is hereby authorized to proceed as plaintiff therein to final determination of this cause.'

A claim of an employee for compensation for injuries, and the claim of his widow or other dependents after his death on account of such injuries are separate and distinct causes of action. The employee's claim results from his injury; his dependent's claim results from his death. Wade & Richey v. Oglesby, 251 Ala. 356, 37 So.2d 596; United States Steel Corp. v. Baker, 266 Ala. 538, 97 So.2d 899.

The right of the surviving dependents does not arise until the death of the workman, while his right accrued immediately upon his injury. Tennessee Coal, Iron & R. Co. v. King, 231 Ala. 303, 164 So. 760.

Title 26, § 313(10), Code 1940, provides that in case of death, all claims for compensation shall be forever barred, unless, in the absence of agreement between the parties, a verified complaint is filed as provided by Tit. 26, § 304. Section 304 provides that after the verified complaint is filed, the 'cause shall proceed in accordance with and shall be governed by the same rules and statutes as govern a civil action between the parties.'

The widow did not follow the statutory procedure, but sought by amendment to have herself substituted as plaintiff in her deceased husband's action.

Our statute on amendments, Tit. 7, § 239, Code 1940, is liberally construed, but the limitation placed upon the right of amendment is that 'there shall not be wrought a different cause of action or entire change of parties.' Isbell v. Bray, 256 Ala. 1, 53 So.2d 577.

A cause of action arising after suit is brought, or which had not accrued so as to be joined in the original suit, cannot be added by amendment at law. Parker v. Fies & Sons, 243 Ala. 348, 10 So.2d 13, and cases there cited.

Here the wife's cause of action did not arise and had not accrued when the original suit was filed, and she had no right to be substituted as plaintiff in the original action. The two different claims, the husband's and the wife's, could not exist at the same time. His rights terminated at his death, and hers did not exist prior to his death.

It is argued that our case of Braswell v. Brooks, 266 Ala. 141, 94 So.2d 879, supports the action of the trial court in permitting the substitution of the widow as plaintiff in the original suit of her deceased husband. But that case is different in an important aspect. There the husband filed no suit prior to his death. After his death, the original suit was filed in the name of his administrator, and the court allowed an amendment whereby his administrator sued individually and for the use and benefit of the deceased's minor children. We held that the children were the real parties in interest, that the original suit had been brought in their behalf and to all intents and purposes the children were before the court. But here the real party in interest changed when Norred died, and there was a change in the real party in interest after the original suit was filed. The right of the widow did not accrue until after her husband's death and her right was entirely different from that of her husband, and her cause of action was distinct and different from the only cause of action in the instant suit.

The rule, in states where the compensation act does not contemplate that there shall be only one proceeding even though there are two separate grounds for compensation as in Minnesota, is stated in 100 C.J.S. Workmen's Compensation § 434, p. 297: 'After the death of the employee who instituted the proceedings to recover compensation for injuries, in the absence of statutory authority his legal beneficiaries may not be...