Johnson v. Ralls
| Decision Date | 12 November 1970 |
| Docket Number | 3 Div. 409 |
| Citation | 243 So.2d 673,286 Ala. 565 |
| Parties | Fred JOHNSON, as Administrator, Etc. v. Grady RALLS. |
| Court | Alabama Supreme Court |
James M. Prestwood, Andalusia, for appellant.
Brooks, Garrett & Thompson, Brewton, for appellee.
The original opinion in this case is withdrawn and this opinion is substituted therefor.
Plaintiff appeals from a judgment of voluntary nonsuit entered by the Circuit Judge of Conecuh County who overruled plaintiff's demurrer to defendant's Plea Two which hereinafter appears. Title 7, § 819, Code of Ala., Recompiled 1958.
Appellant sued at law in his fiduciary capacity as administrator of the estate of J. C. Johnson, deceased, to recover damages of appellee under the Homicide Act. Title 7, § 123, Code of Ala., Recompiled 1958. The action is based on alleged negligence of defendant, acting through a servant or agent, in causing the death of appellant's intestate. There are five counts in the complaint. We briefly refer to each count.
Count 1 charged the defendant with simple negligence in running a truck, operated by his agent or servant, against plaintiff's intestate, J. C. Johnson, thereby proximately causing his death. There is no allegation in this count that the deceased was at the time an employee of defendant. Nor is there any allegation, as in the other four counts, that plaintiff's intestate left no dependents at the time of his death or demise.
Count 2, an amendatory count, alleges the death of plaintiff's intestate by the negligent operation of a truck, driven at the time by an agent or servant of defendant. It is averred that the agent or servant operated the truck against plaintiff's intestate while he was riding as a passenger on another truck and that he was thereby killed. It is alleged that deceased left no dependents.
Count 3 alleges death of plaintiff's intestate by the negligent operation of a motor truck driven at the time by defendant's agent or servant against an automotive truck, belonging to defendant in which plaintiff's intestate was a passenger. It is alleged that said truck driven by said agent or servant had faulty brakes which was known to defendant. It is averred that the relationship of master and servant existed between said intestate and defendant. Also, it is alleged in this count that said intestate had no dependents at the time of his injury and demise.
Count 4 alleges that plaintiff's intestate was an employee of defendant, who was a contractor engaged in highway construction, and while said intestate was a passenger on one of defendant's trucks, then operated by defendant, another employee of defendant, while operating another truck owned by defendant, and used by defendant in the performance of his highway contract, negligently operated the 'other truck' and caused the same to run over or against plaintiff's intestate, who suffered injuries that caused his death. We note that the relationship of employer and employee between said intestate and defendant is alleged to have existed at the time. It is also alleged in this count that said intestate had no dependents at the time of his injury and demise.
Count 5 alleges that plaintiff's intestate was an employee of defendant, who as a contractor, was engaged in highway construction, and did furnish to another of his employees an automotive truck which had defective brakes, and which condition was known to defendant, and while intestate was a passenger on another of defendant's trucks, then being operated by defendant himself, the employee of defendant who was operating the defendant's truck which had the faulty brakes, did so negligently operate said truck, at the construction site, as to cause the same to run against or over plaintiff's intestate, who suffered serious bodily injuries from which he died. It is alleged that said death was caused by the coalescing negligence of defendant in furnishing the vehicle with faulty brakes. It is also here alleged that the intestate had no dependents at the time of his injury and demise.
Defendant filed a plea to the complaint as amended and to each count thereof. This plea reads as follows:
Plaintiff demurred to Plea Two as follows:
'1. Plea No. Two states no defense to complaint of plaintiff.
'2. Plea No. Two is defective because it does not allege the deceased J. C. Johnson was survived by dependents entitled to compensation.
'3. There is an absence of averment in said Plea No. Two that plaintiff's intestate left surviving him dependents who are entitled to compensation under the Workmen's Compensation Act.
'4. Plea No. Two states no defense to the action brought under the homicide Statute of Alabama.
'5. Plea No. Two states no defense to the action brought under the employer's liability act of Alabama.
The trial court overruled the foregoing demurrer. Thereupon, plaintiff declined to plead further, took a voluntary nonsuit, and here seeks a review of the action of the court in overruling the demurrer to said Plea No. Two. Such review is predicated on two related assignments of error as follows:
* * *
* * *'
Grounds one, four, five and six of plaintiff's demurrer are general and present nothing for review. Title 7, § 236, Code of Ala., recompiled 1958; Evitt v. Lowery Banking Company, 96 Ala. 381, 11 So. 442(1); Ryall v. Allen, 143 Ala. 222, 38 So. 851(3); Fuqua v. Southern Ry. Co., 201 Ala. 164, 77 So. 690(5); Caffee v. Durrett, 282 Ala. 71, 209 So.2d 210(4); 16 Ala.Dig., Pleading 201; Suell v. Derricott, 161 Ala. 259, 49 So. 895(18).
This leaves for consideration the efficacy of Grounds two and three, supra. We again here note that Counts one and two make no reference to any employer and employee relationship between the intestate and defendant at the time of the alleged impact between the trucks. Counts three, four, and five do allege such relationship. However, Plea Two, supra, alleges that at the time and place complained of, plaintiff's intestate was an employee of defendant. This averment, addressed to all the counts, presents a factual issue for the first two counts that the relationship existed. All the other counts contain the averment.
We have held that injuries to an employee, where the relation of employer and employee exists, presumably come under the Workmen's Compensation Statutes. W. B. Davis & Son v. Ruple, 222 Ala. 52, 130 So. 772, 774(6, 8). If a complaint filed by an employee against his employer should be interpreted to state an action ex delicto, it would be defective in failing to aver facts that take it without The Compensation Law. Davis v. Ruple, supra, (6, 8). See also Kaplan v. Sertell, 217 Ala. 413, 116 So. 112(2), where suit was filed against the master by the servant for personal injuries and founded upon breach of a common law duty of the master to furnish safe tools for use of his servant. There this court observed:
Plaintiff, in an effort to meet the mandate that he aver facts bringing his intestate within the exceptions, averred in all counts except Count 1 that his intestate had no dependents. He argues in his brief that such absence of dependents brought him within the exceptions and permitted pursuit of damages under the Homicide Act, supra. We...
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WOOD v. WAYMAN
...of heirs using the proceeds of a wrongful-death action rather than the estate of the deceased; or, as in the case of Johnson v. Ralls, 286 Ala. 565, 243 So.2d 673 (1970), they were improperly brought under the wrongful-death ...
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...exception to the Workers' Compensation Act by alleging in her complaint facts sufficient to establish that exception. Johnson v. Ralls, 286 Ala. 565, 243 So.2d 673 (1971) ; Stanton v. Marsh, 274 Ala. 501, 150 So.2d 363 (1963) ; DeArman v. Ingalls Iron Works, 258 Ala. 205, 61 So.2d 764 (1952......
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Yarchak v. Munford, Inc.
...dependents--would clearly exceed the purpose of the Act. As Justice Maddox stated in his special concurrence in Johnson v. Ralls, 286 Ala. 565, 571, 243 So.2d 673, 677 (1970), "the wisdom of allowing the personal representative of a deceased employee who leaves no dependents to maintain a w......
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