Georgia Casualty Co. v. Haygood

• Decision Date: 07 June 1923
• Docket Number: 3 Div. 613.
• Parties: GEORGIA CASUALTY CO. v. HAYGOOD ET AL.
• Court: Alabama Supreme Court

97 So. 87

210 Ala. 56

GEORGIA CASUALTY CO. v. HAYGOOD ET AL.

3 Div. 613.

Supreme Court of Alabama

June 7, 1923

Rehearing Denied June 28, 1923.

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill of interpleader by W. Langston Haygood and Lena B. Haygood against the Georgia Casualty Company and others. From the decree, respondent Georgia Casualty Company appeals. Reversed and rendered.

On November 15, 1921, Nay P. Park was an employee of F. J Cramton, who was doing business as the Cramton Lumber Company at Montgomery, and both Park and Cramton, as employer and employee, had become subject to part 2 of the Workmen's Compensation Act (Acts 1919, p. 206), and Cramton had insured against liability under said act with the Georgia Casualty Company. On the afternoon of that day Park, while in the line and scope of his employment, was run over by an automobile belonging to the Haygood Transfer Company, and received injuries from which he died. He left surviving him a widow, Mrs. Iola B. Park, and six children, all of whom are over the age of 21 years; one child, Richard D. Park, was physically incapacitated from earning a living, and was dependent upon his deceased father.

Immediately after the death of the deceased, the widow was appointed administratrix of the estate, and she, as an individual, and as such administratrix, together with all the children of the decedent employed Messrs. Hill, Hill, Whiting & Thomas as their attorneys to prosecute all claims growing out of their decedent's death. These attorneys on June 22, 1922, filed two suits on behalf of their clients against the Haygood Transfer Company. One was brought in the name of the administratrix to recover damages for the wrongful death of the decedent under the Homicide Act, and, on the same date, a suit was also filed on behalf of the widow and the dependent child, Richard, as dependents of the deceased, against the Haygood Transfer Company. Later, on July 6th, the same attorneys filed a third suit against F. J. Cramton, and the Georgia Casualty Company, his insurance carrier, claiming damages for injuries and death under the Workmen's Compensation Act.

On September 26, 1922, the circuit court of Montgomery county decided that the injuries and death were compensable under the Workmen's Compensation Act, and entered a judgment in favor of the widow of Nay P. Park against the Georgia Casualty Company for $9 a week for 300 weeks, and also entered a judgment for $3 a week for 300 weeks in favor of the dependent child, Richard D. Park. No appeal was taken from this judgment, and the same is now final and conclusive.

After the rendition of the judgment under the Workmen's Compensation Act, the Georgia Casualty Company, on March 1 1923, notified the Haygood Transfer Company that it claimed to be subrogated to the rights of the dependents of the decedent, Nay P. Park, under the provisions of section 32 of the Workmen's Compensation Act, and it filed in both the suits against the Haygood Transfer Company petition to be allowed to intervene therein and continue the litigation in its own name, which petitions are still pending.

At this stage of the litigation all parties agreed that $700 was a proper amount to be paid by the Haygood Transfer Company as damages for the wrongful death of Nay P. Park, and this sum was paid the register of the chancery court of Montgomery county, Ala.

The dependent widow and child of the decedent, Nay P. Park, deny that the Georgia Casualty Company is entitled to be subrogated to their rights because of the judgment rendered under the Workmen's Compensation Act, claiming that section 32 of the Compensation Act is unconstitutional and void.

The administratrix of the estate of the decedent contends that as representative of herself and all her children, the $700 should be paid to her as damages for the wrongful death of Nay P. Park, and that the Georgia Casualty Company has no interest in said fund, and the attorneys for the widow and children of the decedent, Nay P. Park, Messrs. Hill, Hill, Whiting & Thomas, claim that they had a contract with the administratrix and with the dependents of Nay P. Park, which entitles them to 40 per cent. of the amount recovered for the wrongful death of said Nay P. Park, and they claim $280 of the fund as a reasonable attorney's fee for such services, and claim a lien upon the fund of $700 for the payment of said fee. The Georgia Casualty Company insists that under section 32 of the Workmen's Compensation Act, it is entitled to be subrogated to the rights of the dependents and the widow and next of kin of the decedent, Nay P. Park, against the Haygood Transfer Company, who wrongfully brought about his death, and that the $700 fund belongs to it without any diminution thereof for attorney's fees, and without being subject to a lien for such attorney's fees.

All the questions involved in this controversy were presented to the circuit court of Montgomery county by means of a bill filed by the Haygood Transfer Company against all the other parties. In this bill all the facts as heretofore outlined were set up, the fund of $700 was paid into court, and it was the prayer of the bill that each of the parties propound their respective claims to the sum paid into court, or any part of it. All the other parties, namely, Georgia Casualty Company, the widow and dependent child, the administratrix, and the attorneys for the dependents and the administratrix came into court and consented that a decree of interpleader be entered, admitting that the allegations contained in the bill of complaint were correct, and submitted the cause for final decree upon the bill of complaint, and the admissions contained in the answer.

Thereupon, by decree of the circuit court of Montgomery county, Ala., it was adjudged that the attorneys for the administratrix and dependents of the decedent, N. P. Park, Messrs. Hill, Hill, Whiting & Thomas, were entitled to a lien for an attorney's fee of $280, to be paid out of the money paid into court, and that Mrs. Iola B. Park, as administratrix of the estate of Nay P. Park, deceased, was entitled to the remaining $420, of said sum to be distributed by her among all the children of the decedent, and to herself individually as decedent's widow, under section 2486 of the Code of 1907.

From this judgment the appellant, the Georgia Casualty Company, has appealed.

The bill contained the following averment, admitted by the answer "to be true and correct":

"That the duties of said Nay P. Park under his said employment were to solicit building contracts, and to enter into and conclude negotiations for work to be done by, and material to be furnished by the said employer; that while so employed said Nay P. Park was on one of the public streets of the city of Montgomery, Ala., and then and there an agent, servant, or employee of your complainants, while acting within the line and scope of his employment, negligently ran an automobile or truck into, or over, said Nay P. Park, and as a proximate result thereof he died shortly thereafter."

The answer is as follows:

"Come the defendants, Georgia Casualty Company, a corporation, Mrs. Iola B. Park, Richard D. Park, Mrs. Iola B. Park as administratrix of the estate of Nay P. Park, deceased, and W. W. Hill, W. C. Hill, A. F. Whiting, and J. R. Thomas, partners, doing business under the firm name of Hill, Hill, Whiting & Thomas, and enter a general appearance in the above-entitled cause, and consent that a decree of interpleader may be entered permitting, and requiring the complainants to pay the sum of $700 to the register of this court, and relieving the complainants from the payment of any costs, and from all further liability for the wrongful death of Nay P. Park, deceased, and further admit, consent, and agree that this cause may be submitted for final decree upon the allegations contained in said bill of complaint; the allegations therein contained being hereby admitted by each of the defendants to be true and correct, and the defendants agree, and request that this honorable court enter a decree adjudging to whom, and in what proportion, the said sum of $700 should be paid, subject to the right of appeal by any of these defendants."

Rushton, Crenshaw & Rushton, of Montgomery, for appellant.

Hill, Hill, Whiting & Thomas, of Montgomery, for appellees.

GARDNER J.

This appeal involves the proper construction of the subrogation provisions of the Workmen's Compensation Act, as found in section 32 thereof. Acts 1919, p. 206.

We think the brief of counsel for appellant contains a full and accurate presentation of the facts and pleadings in the cause, and are set out by the reporters as the statement of the case. The correctness of appellant's statement of the case is not questioned by counsel for appellee, save in one particular, i. e., in appellee's brief it is stated that in the bill of interpleader there was no averment that the death of the employee Park arose out of and in the course of his employment, but that such bill only alleges this was a litigated issue in the suit by the dependents against this appellant. In this however, counsel are in error, as the bill alleges what were the duties of Park as to his employment and that he was injured while "so employed." The report of the case also contains these averments.

We are of the opinion the reasonable construction of the language used suffices to show that Park's death arose out of and in the course of his employment, and that it very clearly appears from the pleadings in the case that the trial court proceeded to a determination of the cause upon the assumption that this was an admitted fact. We will therefore so treat and consider it here.

Suit was...