Grantham v. Denke

• Decision Date: 05 May 1978
• Parties: Anita K. GRANTHAM v. Don DENKE and Bobby Hamon. Henry L. COXSON v. Don DENKE and Bobby Hamon. Robert W. BRANNON v. Ray FAULKNER. SC 2542, SC 2543, SC 2544.
• Court: Alabama Supreme Court

Page 785

359 So.2d 785

Anita K. GRANTHAM v. Don DENKE and Bobby Hamon.

Henry L. COXSON v. Don DENKE and Bobby Hamon.

Robert W. BRANNON v. Ray FAULKNER.

SC 2542, SC 2543, SC 2544.

Supreme Court of Alabama.

May 5, 1978.

Rehearing Denied June 9, 1978.

Lanny S. Vines and Lydia M. Quarles of Emond & Vines, Birmingham, for appellants.

E. Ted Taylor, Prattville, amicus curiae.

W. Lee Pittman of London, Yancey, Clark & Allen and Jack J. Hall of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellees.

EMBRY, Justice.

Each of the appellants was injured on the job and each claimed in her or his action for damages that her or his injuries were proximately caused by the negligence of a co-employee. In each case the complaint was dismissed for failure to state a claim upon which relief could be granted because of the provisions of the 1975 amendments to § 312, Tit. 26 (Alabama Workmen's Compensation Law), Code 1940 (Act No. 86, 4th Ex.Sess., § 10, p. 2748, Acts of Alabama, 1975); now codified as § 25-5-11, Code 1975. The part of that code section here pertinent reads:

"Section 10. Section 312, Title 26, Code of Alabama 1940, as last amended, is hereby amended to read as follows:

"Section 312. Liability of party other than employer and procedure governing.

"Where the injury or death for which compensation is payable under article 2 of this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer whether or not such party be subject to the provisions of article 2 of this chapter the employee, or his dependents in case of his death, may proceed against the employer to recover compensation under article 2 of this chapter, or may agree with the employer upon the compensation payable under article 2 of this chapter, and at the same time may bring an action against such other party to recover damages for such injury or death, and the amount of such damages shall be ascertained and determined without regard to article 2 of this chapter; provided, however, neither an officer, director, agent, servant or employee of the same employer nor his personal representative, nor any workmen's compensation insurance carrier of the employer, nor any officer, director, agent, servant or employee of such carrier, nor any labor union, or an official or representative thereof, making a safety inspection for the benefit of the employer or its employees, shall be considered a party other than the employer against whom such an action may be brought * * *" (emphasis added)

In these appeals the issue is whether Section 13, Constitution of Alabama, 1901:

"That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation shall have a remedy by due process of law; * * * " (emphasis added),

restricts the power of the legislature, by enactment of the 1975 amendments to § 312 (§ 25-5-11, Code 1975), to bar an injured employee's negligence action for damages against her or his co-employee.

Unless limited by the state or federal constitutions, the power of the legislature is plenary (derived from the people, as elected representatives thereof). Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944). The constitution of this state is the supreme law and limits the power of the legislature. Alexander v. State, 274 Ala. 441, 150 So.2d 204 (1963). Since it was clearly the intention of the legislature, by enactment of the code section under examination, to eliminate an injured employee's action against her or his fellow employee, if the injuries were also covered under the Workmen's Compensation Act, the question is clearly presented regarding whether there is any limitation on the power of the legislature to do so imposed by § 13 of our state constitution.

We think that power is thus limited and will hold the immunity of a co-employee from suit by an injured employee unconstitutional.

The question of immunity of co-employees from suit by an injured employee has not heretofore been challenged on the basis of conflict between that immunity and the rights of the injured employee preserved by § 13, Const.1901, after enactment of the Alabama Workmen's Compensation Act.

To permit the Workmen's Compensation Act by means of the 1975 amendments to § 312 to immunize a co-employee from suit by an injured employee would deprive him of rights and remedies he enjoyed under the common law which are preserved under § 13 of our constitution. The Act, adopted in 1919, is a voluntary substitute for the common law, Alabama Employer's Liability Act, and other statutory rights of action for personal injuries against the employer applicable to those who elect to come within its provisions. Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937). It is this elective option between employer and employee, the parties being free to accept or reject to operate under and abide by the Act, that reconciles the Act with § 13 of the Constitution. Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879 (1924). The election is made upon the basis of a quid pro quo between employer and employee. Each voluntarily gives up rights guaranteed by § 13 in exchange for benefits or protection under the Workmen's Compensation Act.

The quid pro quo is solely between employer and employee. The employee retains his right to sue third parties, including co-employees. An election by the employee to be bound by the provisions of the Act was an election to "surrender * * * rights to any other method, forms, or amount of compensation or damages" from the employer. Act No. 245, Reg.Sess., § 10, p. 208, Acts of Alabama, 1919. Section 32(1) of the 1919 Act stated the right to sue third parties, although it prohibited the injured employee from suing the co-employee while at the same time receiving compensation benefits from the employer. In 1947 the legislature removed this restriction to allow the injured employee to receive benefits and at the same time sue "any party other than the employer." This court in construing the 1947 amendment to allow suits against co-employees quoted the following: " 'To hold a co-employee is not a person other than an employer would be the equivalent of saying an employee is an employer * * *.' " United States Fire Insurance Co. v. McCormick, 286 Ala. 531, 243 So.2d 367 (1970). Strong support for the logic of this reasoning, if not self evident, is the definition of employer found in the Act:

"* * * The term 'employer' as used herein shall mean every person * * * who employs another to perform a service for hire and to whom the 'employer' directly pays wages * * *" Tit. 26, § 262, Code 1940; § 25-5-1(4), Code 1975; Downey v. Bituminous Casualty Corp., 349 So.2d 1153 (Ala.1977); 1919 Ala. Acts No. 245, § 36, p. 237.

In response to McCormick the legislature, in 1973, amended § 312 (§ 25-5-11, Code 1975) to provide: "* * * neither an officer, director, agent, servant or employee of the same employer nor his personal representative * * * shall be considered a party other than the employer * * *." In Childers v. Couey, 348 So.2d 1349 (Ala.1977), the validity of the enactment of this amendment was challenged. This court held that the amendment was enacted by the legislature in a constitutional manner, but we did not address the issue of the constitutionality of the provisions of the amendment. It should be noted that McCormick dealt with the construction of the 1947 amendment to § 312 and no issue was raised, or addressed, regarding whether construing the amendment to permit suits against co-employees was merely declaratory of the common law rights of the injured employee as they existed before its enactment and as preserved by § 13 of our constitution. Section 13 would command the construction given the 1947 amendment; as it commands the invalidity of the 1975 amendments to § 312. To hold that the legislature can include a co-employee's negligent act within the provisions of the Workmen's Compensation Act, thus immunizing the active wrongdoer from suit by the injured employee, would be contrary to the plain language of § 13. It would say that a co-employee is an employer. This we cannot do. See McCormick, supra. Also such a holding would be no deterrent to negligent work performance upon the part of one's fellow worker and thus defeat the desired aim of the law to promote safety on the job.

We find persuasive authority for our decision in these cases in the law of Arizona. Section 6, Article 18 of the Arizona Constitution is essentially the same as § 13 of our constitution. Section 6 provides:

"* * * The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation."

Arizona's Workmen's Compensation Act is also elective. Under the mandate of § 6 of their constitution the Arizona Supreme Court held there is no immunity of co-employees from suit because of the Arizona Workmen's Compensation Act. Kilpatrick v. Superior Court, 105 Ariz. 413, 466 P.2d 18 (1970); Halenar v. Superior Court, 109 Ariz. 27, 504 P.2d 928 (1972).

In Kilpatrick, the Arizona court was presented the question of whether the Arizona constitution permitted the legislature to forbid negligence actions of injured employees against their fellow employees. Answering no, that court held an employee had a right of action against a fellow employee for injuries incurred in the course of his employment. The court reasoned:

"There is no room for quibbling. The language of Section 6 is simple, explicit and all-inclusive. It cannot be misunderstood. Without limitation it confers the right to recover damages for injuries as existing under the common law. The rights so protected include not alone the right of action against an employer on his vicarious liability but a right against the actual wrongdoer, the person who committed the negligent act which caused the injury."...