Ivey v. Dixon Inv. Co.

• Decision Date: 30 January 1969
• Docket Number: 4 Div. 306
• Citation: 219 So.2d 639,283 Ala. 590
• Parties: J. D. IVEY v. DIXON INVESTMENT COMPANY et al.
• Court: Alabama Supreme Court

Page 639

219 So.2d 639

283 Ala. 590

J. D. IVEY v. DIXON INVESTMENT COMPANY et al.

4 Div. 306.

Supreme Court of Alabama.

Jan. 30, 1969.

Rehearing Denied March 13, 1969.

Tipler & Fuller, Andalusia, for appellant.

A. R. Powell, Jr., Andalusia, for appellees.

HARWOOD, Justice.

In the proceedings below J. D. Ivey filed his complaint against Charles Dixon, Solon Dixon, Thelma Dixon and Ellie Dixon, individually, and as partners doing business as Dixon Investment Company, a Partnership. The complaint charged negligence on the part of the defendants in knowingly furnishing to the plaintiff for plaintiff's use a defective piece of farm machinery, (a corn puller), and that as a proximate result of such negligence, the plaintiff suffered injuries, losing both of his hands and arms.

The defendants filed a plea in abatement alleging that the plaintiff was an employee of Dixon Investment Company, a partnership composed of the partners named in the complaint; that the Dixon Investment Company carried Workmen's Compensation insurance upon its employees and that subsequent to the accident the plaintiff elected to accept Workmen's Compensation benefits for his injuries and medical expenses, and as a result the insurer for Dixon Investment Company, a Partnership, etc., has made workmen's compensation payments to the plaintiff to the extent of medical expenses in the amount of $3036.37, and benefit payments to the plaintiff of $720.00, and that the plaintiff has continued to accept such benefit payments up to and subsequent to the filing of this suit.

The plaintiff filed a replication to the plea in abatement, which replication as eventually amended, set forth that at the time of the accident Dixon Investment Company was engaged in farming operations and that the plaintiff was employed as a farm laborer; that the Dixon Investment Company employed less than eight persons, and had made no election to come under the Workmen's Compensation Act; and that Section 263, Title 26, Code of Alabama 1940, provides that in no event nor under any circumstance shall our Workmen's Compensation Act be construed to apply to farmers and their employees.

The court sustained the defendants' demurrer to the plaintiff's replication as to all grounds except Grounds 1 and 2, which merely took issue on the plea.

The parties agreed in open court that the plea in abatement be heard by the court without a jury.

At the conclusion of the hearing on the plea in abatement, the court entered a judgment which in parts pertinent to this review, is as follows:

'The Court having considered evidence and briefs of the attorneys finds in evidence that the plaintiff knowing accepted the benefits of Workmen's Compensation from the defendant and has made claim in law to recover Workmen's Compensation and is now estopped from making any other claim for damages against the defendants.

'IT IS THEREFORE ORDERED AND ADJUDGED by the court that said cause be and the same is hereby abated and that the defendant go hence without day, and recover of the plaintiff its reasonable cost in this behalf expended.

'Done and ordered this the 24th day of March, 1967.'

This appeal is from the above judgment which is of such a final nature as to support an appeal. Martin v. Alabama Power Company, 208 Ala. 212, 94 So. 76.

The pleadings, the evidence, and stipulations involved in the hearing on the plea in abatement tend to show that the Dixon Investment Company was involved solely in farming operations and had two employees one of which was the plaintiff. Dixon Investment Company had not filed an election in the Probate Office of Covington County to come under the provisions of the Workmen's Compensation law in Alabama.

The defendants introduced into evidence a 'Standard Workmen's Compensation and Employers Policy,' issued by the Georgia Casualty and Surety Company. Some thirteen parties are named as the insured in the policy. Eight of the named insured appear to be businesses such as lumber companies, a construction company, and partnerships. Several individuals are also listed. Also listed among the insured are 'Solon Dixon, Ellie Dixon, Charles Dixon, and Thelma Dixon, d/b/a Dixon Investment Company.'

The plaintiff testified that on the day of the accident he was operating a corn puller on the Dixon Investment Company farm. The corn puller was manufactured by Ford, and was attached to a Ferguson tractor. It never did 'run right,' and he had told Mr. Gunter, in charge of the farm, that the machinery was not in the shape it should have been to pick corn. The cogs were worn out and would throw the chains. The machine would clog up as a result. He told Mr. Gunter about the unsatisfactory condition of the corn puller on the first day he operated it and Mr. Gunter had told him 'we will get something done to it,' said 'do the best you can with it.' The machine had clogged up repeatedly and at the time of the accident it had again become clogged with corn stalks. He idled the motor, left the tractor and attempted to clear the corn stalks out of the puller. His hands were caught in the puller and were so injured that amputation of both hands and part of the arms was necessary.

After the accident he conferred with Mr. Griffin Sikes, an attorney. Mr. Sikes testified that after the conference with the plaintiff, he informed him he was 'pulling out of the case,' that the plaintiff was free to employ another attorney. However, it appears that Mr. Sikes did write a letter to the Georgia Casualty and Surety Company, and in reply thereto the company wrote a letter to Mr. Lvey that they would pay him $15.00 a week for 400 weeks for his accident.

After this, the company apparently began paying the plaintiff $15.00 per week on a monthly basis of $60.00. These checks were forwarded to the local agent of the company who then delivered them to Mr. Ivey. The medical expenses were paid directly to the doctor, the hospital, and an artificial limb company. Mr. Ivey testified he had no knowledge that these bills had been paid.

Mr. Frank Tippler, an attorney of Andalusia, was then employed by the plaintiff. Mr. Tippler testified that he informed Mr. Charlie Powell of the General Agent Bureau that in his judgment the plaintiff was not under the Workmen's Compensation laws of Alabama and that any payment made to him would be mere gratuities on the part of whoever paid them.

However, the company thereafter continued to deliver the checks to the plaintiff. These checks were indorsed by the plaintiff's wife and cashed, and have continued to be forwarded up to the time of the trial below.

Chapter 5 of Title 26 (Sections 253--261) sets forth the operating conditions of the compensations laws. Article 2 of Title 5 sets forth the conditions by which qualified parties may elect to come under our compensation laws. Section 263 of Title 26, provides:

'Articles 1 and 2 of this chapter shall not be construed or held to apply to any common carrier doing an interstate business while engaged in interstate commerce, or to domestic servants, farm laborers, or persons whose employment at the time of the injury is casual, and not in the usual course of the trade, business, profession or occupation of the employer, or to any employer, who regularly employs less than eight employees in any one business or to any county, city, town, village or school district. Any employer who regularly employs less than eight employees in any one business or any county, city, town, village or school district may accept the provisions of articles 1 and 2 of this chapter by filing written notice thereof with the department of industrial relations and with the probate judge of each county in which said employer is located or does business, said notice to be recorded by the judge of probate for which he shall receive the usual fee for recording conveyances, and copies thereof to be posted at the places of business of said employers and provided further, that said employers who have so elected to accept the provisions of articles 1 and 2 of this chapter may at any time withdraw the acceptance by giving like notice of withdrawal. In no event nor under any circumstances shall articles 1 and 2 of this chapter apply to farmers and their employees. (1939, p. 1036, § 2, appvd. July 10, 1940.)'

The last sentence of Section 263, 'In no event nor under any circumstances shall articles 1 and 2 of this chapter apply to farmers and their employees,' was added by Act No. 661, approved July 10, 1940, effective 1 January 1941. See 1939 Acts of Alabama, page 1036.

This language could not be clearer in setting forth the intent and policy of the legislature that farmers and their employees are disqualified from the operation of our Workmen's Compensation laws, and would prevent an agreement, expressed or implied, between the employer and employee to become subject to the provisions of the Workmen's Compensation law as may be done in appropriate cases under the provisions of Section 270 of Title 26.

The attorney for the appellee begins his argument with this statement:

'The fundamental legal question involved on this appeal turns on whether or not the appellant is estopped from maintaining a suit in tort against his employer after having accepted workmen's compensation benefits together with medical pay benefits.'

We consider this statement of the fundamental legal question involved to be an oversimplification of the question in that it ignores the constituent elements of estoppel and also ignores the clear provisions of Section 263, supra.

The omission to assert a right resulting from ignorance of the right does not constitute estoppel. Fourth National Bank v. Woolfolk, 220 Ala. 344, 125 So. 217. A party invoking estoppel must have in good faith been ignorant of the true facts at the time a representation is made to him, and must have acted with diligence to learn the truth. Pattillo v. Tucker, 216 Ala. 572, 113 So. 1. Estoppel cannot exist where...