Harris v. Louisville & N. R. Co.

• Decision Date: 23 February 1939
• Docket Number: 6 Div. 405.
• Citation: 237 Ala. 366,186 So. 771
• Parties: HARRIS v. LOUISVILLE & N. R. CO.
• Court: Alabama Supreme Court

186 So. 771

237 Ala. 366

HARRIS v. LOUISVILLE & N. R. CO.

6 Div. 405.

Supreme Court of Alabama

February 23, 1939

Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.

Action for damages for personal injury by Rufus E. Harris against the Louisville & Nashville Railroad Company. From a judgment granting defendant's motion for a new trial, plaintiff appeals.

Affirmed.

Coleman Spain, Stewart & Davies, H. H. Grooms, and Coleman, Parsons &amp Abele, all of Birmingham, for appellant.

Chas H. Eyster, of Decatur, and Gibson & Gibson, of Birmingham for appellee.

THOMAS Justice.

Plaintiff-appellant brought suit for damages for personal injury. The action was based on the alleged negligence of defendant in propelling cars into a train of cars upon which plaintiff was at the time and place engaged in working in the duties of his employment.

Demurrers being overruled to the complaint, defendant filed pleas of the general issue and special pleas to the effect that all parties were, at the time, subject to the Workmen's Compensation Act, Code 1923, § 7534 et seq., and that plaintiff elected, claimed and received and was receiving compensation for the injury, and payment of his hospital and doctor's bills, under said Act, from the Standard Accident Insurance Company of Detroit, Michigan, the insurance carrier of his employer, and that under the provisions of the Workmen's Compensation Act, plaintiff was without the right to bring the suit, in his name as an individual against the third party, which he seeks to maintain.

Plaintiff's demurrers, in the first instance, to defendant's pleas were sustained, whereupon it was agreed that counsel for defendant should interpose the defenses of contributory negligence, applicability of the Workmen's Compensation Act, and limitation of damages under said Act in short by consent, without the waiver of any rights as to pleas previously filed to which demurrers had been sustained. In reply thereto, replications were likewise in short by consent. The verdict and judgment were for the plaintiff.

Defendant's motion for a new trial was granted upon the general ground that plaintiff, as an individual, could not recover, which point was specifically urged in grounds 8 to 16, inclusive, and in grounds 18 and 19. These grounds assigned the sustaining of demurrers to defendant's pleas 2 to 10, inclusive, and the refusal of the general affirmative charge in writing, duly requested by defendant. Motion on all other grounds was overruled. The plaintiff appeals from this ruling on the motion for a new trial.

Appellant while employed by Kershaw Slag Company, a corporation subject to the Workmen's Compensation Act, on the 26th of February, 1936, was engaged in operating an engine removing empty cars from a spur track in the East Thomas yards of the Republic Steel Corporation. While he was standing on the ground near the engine, a locomotive of the appellee, which was being employed in a local movement of car or cars, collided with the empty cars upon which appellant was engaged, and caused his injury. Appellee was at this time under the Workmen's Compensation Act. Appellant was placed in the hospital, and after he had been so domiciled and treated, received compensation at the rate of eight dollars and ninety-one cents per week, payable twice a month in the form of drafts. Appellant received many of these drafts which he endorsed, cashed and retained the money evidenced thereby. On two occasions when drafts were late, appellant Harris wrote to Mr. Wilkey, the adjuster for the instant insurance company, requesting his "compensation" be sent to him; and upon some occasions appellant came to Wilkey's office to get his said payments. The drafts showed on the faces thereof that they represented payments of compensation due under the Workmen's Compensation Act.

Wilkey, the agent of the insurance carrier, testified that he arrived at an agreement with appellant as to the extent of the latter's disability, advised him of the basis upon which he was to receive compensation and the duration of payments, in accordance with the Act. This agreement was denied by appellant.

The amounts payable were based upon a fifty per cent permanent disability, eighty-seven and one-half weeks at $8.91 per week, a total of $779.63, and in addition Wilkey paid a total of $650 in doctors' bills, which was $450 in excess of the statutory liability. Appellant claimed to have received only $766.26 in weekly payments. It was undisputed that all payments were made by Wilkey, acting for the insurance carrier, and nothing was paid by the employer Kershaw Slag Company.

The question for decision, presented by the assignments of error, is that the trial court erred in granting appellee's (Louisville & Nashville Railroad Company) motion for a new trial, to which action of the court appellant (Rufus E. Harris) reserved an exception. The answer to this question presents a statutory construction, subject to several well established rules. In arriving at the legislative intent in enacting Section 7586 et seq., of the Code, every part of the statute, as disclosed by its context and spirit, will be given consideration. Shaw v. Kinney, 227 Ala. 170, 149 So. 227; Southern Industrial Institute v. Lee, 234 Ala. 404, 175 So. 365; State ex rel. Ellis v. Griggs, 227 Ala. 681, 151 So. 850; City of Birmingham v. Southern Express Co., 164 Ala. 529, 51 So. 159.

It is further established that where a party has two remedies that are inconsistent, any act done by him with a knowledge of his respective rights and remedies and the facts entering therein, and such facts determine his election of remedy, he is bound by the material action he takes in the matter. Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944. That is to say, the positions taken in court and the acts of election taken with a knowledge of the result is binding upon parties, and upon privies in estate and by blood. Every case must stand upon and be governed by its facts. There is no iron clad rule. Bromberg v. First National Bank of Mobile, 235 Ala. 226, 178 So. 48; Fidelity & Deposit Co. of Md. v. Art Metal Const. Co., 162 Ala. 323, 50 So. 186.

Before consideration of the terms of the Act (§ 7586 et seq., of the Code), it will be further noted, that this court has declared of such statutes, that within the field of operation of the Workmen's Compensation Act, § 7534 et seq., Code, is the criterion of the rights and liabilities of all parties affected thereby and within the terms of that statute. Such was its purpose and scope, embracing as it does the employer, employee, dependents, insurance carriers and third persons liable for injuries or deaths, falling within and compensable thereunder. Sloss-Sheffield Steel & Iron Co. v. Greek, 211 Ala. 95, 99 So. 791; Georgia Casualty Co. v. Haygood, 210 Ala. 56, 97 So. 87; Steagall v. Sloss-Sheffield Steel & Iron Co., 205 Ala. 100, 87 So. 787; State ex rel. Duluth Diamond Drilling Co. v. District Court of St. Louis County, 129 Minn. 423, 152 N.W. 838.

In Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530, 534, is the observation that:

"It is not a matter of doubt, that the Workmen's Compensation Act, in general, was intended as in the nature of a substitute, between master and servant who elect to come within its provisions, for actions of tort--for personal injuries at common law--and under the state Employer's Liability Act, or other statute giving the employee a right of action. Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879,

"However, in the light of the provisions of section 13, of the Constitution of 1901, 'That all courts shall be open; that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law' it cannot be said that for an injury done a person, not within the provisions of the Workmen's Compensation Act, that it was the legislative intent by the enactment of said law, to deny such person a remedy, if under the common law or the Employer's Liability Act, or other statute he was entitled to maintain an action therefor."

That is, the common law right of action of an employee or his heirs against his employer is abolished by the statutory right in the employee or certain of his dependents substituted in the respects indicated by the statute [[Chap. 287, § 7534 et seq., Code, and in particular §§ 7586, 7587, Code] in all cases in which the employee elects to proceed under the Workmen's Compensation Act.

Section 7586 of the Code is as follows: "Where an injury or death, for which compensation is payable under article 2 of this chapter, is caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, such party being also subject to the provisions of article 2 of this chapter, the employe in case of injury, or his dependents in case of death, may, at his or their option, proceed either at law against such party to recover damages, or against the employer for compensation under article 2 of this chapter, but not against both. If the employe in case of injury, or his dependents in case of death, shall bring an action for the recovery of damages against such party other than the employer or his insurance carrier, the amount thereof, manner in which and the person to whom the same are payable, shall be as provided for in article 2 of this chapter and not otherwise; but in no case shall such party be liable to any person other than the employe or his dependents for any damages growing out of or resulting from such injuries or death. If the employe or his dependents shall elect to receive compensation from the employer, then the latter or his insurance carrier shall be subrogated to...