Johnson v. Huxford Pole & Timber Co., Inc.

• Decision Date: 31 August 2007
• Docket Number: 2060087.
• Citation: 983 So.2d 1133
• Court: Alabama Court of Civil Appeals
• Parties: Gayle Odom JOHNSON v. HUXFORD POLE & TIMBER COMPANY, INC. Huxford Pole & Timber Company, Inc. v. James Beamon Johnson.

983 So.2d 1133

Gayle Odom JOHNSON v. HUXFORD POLE & TIMBER COMPANY, INC.

Huxford Pole & Timber Company, Inc. v. James Beamon Johnson.

2060087.

Court of Civil Appeals of Alabama.

August 31, 2007.

Opinion Overruling Rehearing October 26, 2007.

Thomas R. McAlpine of Whitfield & McAlpine, P.C., Mobile, for appellants/cross-appellees Gayle Odom Johnson.

William E. Pipkin, Jr., of Austill, Lewis & Pipkin, P.C., Mobile, for appellee/cross-appellant Huxford Pole & Timber Company, Inc.

PITTMAN, Judge.

Gayle Odom Johnson ("the widow") appeals from a judgment entered by the Escambia Circuit Court on claims brought by the widow and her son, James Beamon Johnson ("the son"), against Huxford Pole & Timber Co., Inc. ("the employer"), to the extent that that judgment determined the widow not to have been a dependent of James Benjamin Johnson ("the employee") for purposes of the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975, at the time of the employee's work-related death. The employer cross-appeals from that aspect of the judgment declaring that the employer is not entitled to a credit against its liability to the son under the Act based upon the son's receipt of a $3,000 payment from proceeds of a tort action brought against a third party. We affirm as to the appeal, but we reverse as to the cross-appeal.

In February 2003, Casey Michelle Thompson, the personal representative of the employee's estate, sued the employer in the Escambia Circuit Court, alleging that on or about January 21, 2002, the employee had asphyxiated because the room in which he had been working had been inundated with wood chips that had been used as fuel for a boiler at the employer's plant. After the employer objected to the standing of the personal representative to bring a claim seeking survivors' benefits under the Act, the widow and the son were added as plaintiffs and the personal representative was dismissed as a party. After an ore tenus proceeding, the trial court entered a judgment determining the widow not to have been a "dependent" of the employee within the scope of Ala.Code 1975, § 25-5-60 et seq., so as to be entitled to death benefits under the Act; determining the son to have been a dependent until his 18th birthday and awarding him death benefits in the amount of $35,355.24; and concluding that the employer was not entitled to a credit or offset of its liability to the son based upon the son's receipt of a $3,000 payment as a result of a wrongful-death claim asserted by the personal representative in a separate action against a third party. The widow appealed and the employer cross-appealed from the trial court's judgment.

Under the Act, our review of the standard of proof and our consideration of other legal issues in a workers' compensation case are without a presumption of correctness. Ala.Code 1975, § 25-5-81(e)(1). In contrast, when we review a trial court's findings of fact, we will not reverse a judgment based upon those findings if those findings are supported by "substantial evidence," see § 25-5-81(e)(2), a term interpreted "to mean `evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'" Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala. 1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

We first consider the widow's appeal, in which she takes issue with the trial court's determination that the widow "does not qualify as a dependent of the [employee] under the applicable provisions of the ... Act." The Act provides for two classes of dependents entitled to compensation when an employee's death proximately results from an accident within three years of the occurrence of the accident: total dependents and partial dependents. Under Ala.Code 1975, § 25-5-62, "[a] wife [or] child ... who was wholly supported by the deceased [employee] at the time of [the employee's] death and for a reasonable period of time immediately prior thereto shall be considered [to be a] total dependent[ ]." In contrast, under Ala.Code 1975, § 25-5-64, "[a]ny member of a class named in [§ ]25-5-62 who regularly derived part of his [or her] support from the earnings of the deceased [employee] at the time of [the employee's] death and for a reasonable period of time immediately prior thereto shall be considered [a] partial dependent." Under the trial court's view of the evidence, the widow did not qualify as either a total dependent or a partial dependent under the Act.

Under the Act, a death-benefit claimant's total dependency can be established not only under Ala.Code 1975, § 25-5-62, but also through the "conclusive presumption" provisions of Ala.Code 1975, § 25-5-61. Section 25-5-61 provides, in pertinent part, that an employee's wife will be conclusively presumed to have been wholly dependent unless one of two conditions applies: (1) the wife was "voluntarily living apart from [the employee] at the time of his injury or death," or (2) the employee "was not in any way contributing to [the wife's] support and had not in any way contributed to her support for more than 12 months next preceding the occurrence of the injury causing his death." Ala.Code 1975, § 25-5-61(1). In this case, the trial court found the first condition to have been satisfied, stating in its judgment that the widow had been voluntarily living apart from the employee at the time of his death, a determination that the widow has disputed on appeal. As we noted in Robinson Foundry, Inc. v. Moon, 503 So.2d 863, 865 (Ala.Civ.App.1987), "[t]he question of voluntariness [is] a question of fact which ha[s] to be determined by the trial court"; as we have noted, under § 25-5-81(e)(2), we will not reverse a judgment based upon such findings of fact if those findings are supported by "substantial evidence."

At trial, the widow testified that she and the employee were married in 1983 and that they remained married at the time of the employee's death; however, she added that the two of them had separated in 1997. On cross-examination by the employer's attorney, the widow admitted that she had made the decision to leave; that although the employee had often drunk alcohol, he had not been verbally or physically abusive to the widow or their two children; that she had had no desire to reunite or reconcile with the employee and had wanted to obtain a divorce from the employee; that she had described herself in her deposition as having been divorced; and that she had filed her own income-tax returns as "head of household" rather than as a married person. Although the son testified that he had, on occasion, seen the employee intoxicated, he denied that the employee became drunk on most nights; the daughter of the widow and the employee testified that she had never seen the employee intoxicated.

The widow asserts in her brief on appeal, and restates in her reply brief, that the employee was an alcoholic and that the employee's "excessive drinking" was her motivation for leaving the employee. She relies heavily upon Moon, supra, as support for her argument that she was not "voluntarily living apart" from the employee. In Moon, after noting that a wife will be deemed to have remained with the deceased employee in situations in which the employee's "cruelty justifiably causes the wife to leave him," we held that a trial court had not erred in concluding that a deceased employee's wife was not "voluntarily living apart" from that employee in light of evidence indicating that that employee had been an alcoholic and had physically abused his children, including drawing a knife on one of his minor children. 503 So.2d at 865. In contrast, in this case, there is absolutely no evidence of any cruelty on the part of the employee towards the widow or his children, nor does it follow from mere evidence of frequent alcohol consumption that the employee was so addicted to alcohol that the widow's departure from the marital home would necessarily have been justifiable in the absence of such cruelty. Further, we note that although the widow admitted that she had left the employee, she did not testify that his drinking habits were the reason for her departure, and the testimony of the employee's children was in conflict concerning whether the employee actually drank to the point of intoxication. We thus conclude that substantial evidence supports the trial court's conclusion that the widow was "voluntarily living apart" from the employee at the time of his death so as to negate the conclusive presumption of dependency embodied in § 25-5-61(1) under the first condition specified in that section.

However, it remains to be considered whether the widow, despite her separation from the employee, was nonetheless a total dependent or partial dependent under the "actual dependency" provisions set forth in §§ 25-5-62 and 25-5-64. See Ex parte Cline, 213 Ala. 599, 600, 105 So. 686, 687-88 ("In all cases not covered by [§ 7552, Ala.Code 1923, now § 25-5-61, Ala.Code 1975,] the burden is left on the claimant to show actual dependency."). As to that issue, the trial court determined that the widow "did not regularly derive part of her support from the ... employee" so as to entitle her to benefits under the Act based upon total or partial dependency. Because the question of dependency in cases in which the conclusive presumption provisions of § 25-5-61 do not apply is one of fact for the trial court, see Royster & Haardt v. Morgan, 245 Ala. 496, 498, 17 So.2d 582, 583 (1944), the sole task for this court is to determine whether the trial court's determination is supported by substantial evidence. Ala.Code 1975, § 25-5-81(e)(2).

At trial, the widow testified that she had received cash from the employee during their separation, although she admitted on cross-examination that she did not know how much cash she had received. During her ...