Lawrence v. U.S. Fidelity & Guaranty Co.

• Citation: 145 So. 577,226 Ala. 161
• Decision Date: 12 January 1933
• Docket Number: 6 Div. 174.
• Parties: LAWRENCE ET AL. v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: Supreme Court of Alabama

145 So. 577

226 Ala. 161

LAWRENCE ET AL. v. UNITED STATES FIDELITY & GUARANTY CO.

6 Div. 174.

Supreme Court of Alabama

January 12, 1933

Rehearing Denied Jan. 27, 1933.

Certiorari to Circuit Court, Jefferson County; Richard V. Evans, Judge.

Proceeding under the Workmen's Compensation Act by Sidney Lawrence and another against the United States Fidelity & Guaranty Company. Judgment for defendant, and petitioners bring certiorari.

Petition dismissed; judgment affirmed.

W Emmett Perry, of Birmingham, for petitioners.

B. F Smith, of Birmingham, for respondent.

THOMAS J.

This is a petition for a common-law writ of certiorari under the Workmen's Compensation Act. Sections 7571, 7578, Code.

The error apparent urged is that an examination of the record will disclose that the trial court erred in rendering a judgment sustaining "defendant's plea of res adjudicata," and in holding that the rights vel non of the petitioners "were adjudicated in said former cause No. 70171 Circuit Court of Jefferson County," and that "unless the filing of the plea of res adjudicata by the respondent and the joinder of issue thereon dispensed with the necessity of proof of the petition of Sidney Lawrence and Edward Lawrence, the Court erred in refusing to permit petitioners to introduce evidence in support of their petition."

Among other things, petitioners pray for "the clerk thereof to certify and send up to this Honorable Court, a transcript of the records and proceedings of said Circuit Court in said cause of Sidney Lawrence and Edward Lawrence vs. The United States Fidelity & Guaranty Company and Gould Contracting Company, being case No. 74212 in said Court."

It should here be said that this petition, a proceeding under the Workmen's Compensation Act, was filed by Sidney Lawrence and Edward Lawrence, minors, children of Willie Lawrence, deceased, in the circuit court of Jefferson county Ala., against the United States Fidelity & Guaranty Company, a corporation, as the insurer of the Gould Contracting Company, for injuries to its employees arising under the Workmen's Compensation Act; that the said Willie Lawrence had been killed while working as an employee of the Gould Contracting Company.

The respondent, United States Fidelity & Guaranty Company, withdrew all of its pleas and other defenses, except plea 7, which is a plea of res adjudicata. Petitioners demurred to said plea, and their demurrers were overruled. Petitioners offered to prove the allegations of their petition, but such proof was denied by the trial judge.

Respondent, over the objection and exception of the petitioners, introduced into evidence the record of the circuit court of Jefferson county, in case No. 70171, same being a petition of one Idell Lawrence in her own behalf against the respondent, United States Fidelity & Guaranty Company, herein, and the Gould Construction Company, not the Gould Contracting Company. Petitioners insisted that said case by Idell Lawrence, and the decree thereon, did not render res adjudicata the petitioners' right to compensation under the Workmen's Compensation Law of the state of Alabama.

The trial court was convinced that said judgment in the case of Idell Lawrence rendered the question presented by the minors in the present suit res adjudicata, overruled demurrers to the plea, refused proof of the petition, and rendered a judgment denying compensation to the petitioners-the minor children and dependents of intestate.

From this judgment and decree, the petitioners bring the cause before this court by common-law certiorari to the circuit court of Jefferson county to review that action.

There is an agreed statement of facts as to the contents of the record in case No. 70171 in the circuit court of Jefferson county, and it is adverted to in the arguments of counsel. Richardson v. State, 204 Ala. 124, 85 So. 789; Birmingham Electric Co. v. Wood, 222 Ala. 103, 105, 130 So. 786. It contained the petition of the "spouse" or "widow," alleging the death of her husband while in the service of the Gould Construction Company; says "that she [petitioner] needs the services of a lawyer that she may perfect a lump sum settlement for and on account of the death of her husband"; and prays that she "may be authorized to employ an attorney under the terms of section 7 of the Act for the purpose of proceeding against the employer as authorized by section 28 of said act" of 1919 [Code, §§ 7542, 7578].

Authority was granted by one of the judges of the Tenth judicial circuit to employ W. E. Howard as counsel to represent petitioner.

The petition filed for said widow, in that behalf, recited the injury and death of the husband while working for said company; alleged the injury and death proximately arose from, out of, and in the course of his employment as aforesaid; averred that petitioner "being the lawful widow of said Willie Lawrence, that they had born to them, two minor children, one aged five, and the other six, and that she and the said children were dependent upon the said Willie Lawrence for support *** and that according to said Act she and the said minor children would be entitled to compensation according to his average weekly earnings for a period of 300 weeks; *** that the Defendant, United States Fidelity & Guaranty Company did at the time of said injury insure the defendant, the Gould Construction Company, against compensation losses, as provided for in section 7584 of the Code of 1928; said insurance covering the injuries sustained by the said Willie Lawrence, deceased."

The prayer invokes the assumption of jurisdiction that the defendant company and the said insurance carrier be required to plead, etc.; that there be decreed "the amount of compensation which petitioner would be entitled to; and further decree the time and manner of payment of same."

The judgment rendered recited that the plaintiff, Idell Lawrence, was represented by the counsel named in the former order or permission to employ counsel; that evidence was "introduced for and on behalf of both the plaintiff and the defendant"; that intestate came to his death from injuries sustained while in the employ of Gould Construction Company; that the court finds that the Gould Construction Company was a nonresident, and the "Court is in grave doubt as to whether plaintiff could ever proceed to a final conclusion in this suit"; that "all parties having agreed upon a compromise of a lump sum payment to the plaintiff in the sum of Two Hundred and Fifty Dollars for the benefit of herself and minor children, Sidney and Edward Lawrence, and in view of the extreme doubtful successful outcome to plaintiff in the prosecution of her cause, the Court is of the opinion that this settlement should be allowed. It is therefore, ordered, adjudged and decreed that an award and judgment be therefore made in this case in favor of the plaintiff, Idell Lawrence, and against the Gould Construction Company, a corporation, and United States Fidelity & Guaranty Company, a corporation, in the sum of Two Hundred and Fifty Dollars, and that this sum of money shall be paid by defendant, as aforesaid, the plaintiff herein. It is further ordered and decreed that upon payment of said amount to Plaintiff direct and in a lump sum, that the defendants herein shall be discharged from any other or further liability, obligation or responsibility arising out of," etc.

"Petitioners offered to prove by witnesses present in Court the allegations of their petition; the Court declined to permit such proof; petitioners excepted. The Court made its ruling, denying petitioners' offer to prove said petition upon the ground that said record in case No. 70171 and the judgment entered therein had theretofore adjudicated the rights of petitioners herein. This was all the evidence in said cause."

By the filing of the plea of res adjudicata, and no plea to the general issue or other verified answer denying the allegations of the petition, respondent has admitted such other allegations of fact, and, if the plea (No. 7 in this case) is not well taken, the cause should be reversed. Section 7578, Code of 1928, and authorities collected. Fair Park Amusement Co. v. Kimbrough, 221 Ala. 488, 129 So. 275.

Under the plea, in order for the judgment in the prior suit to render the question presented in this suit res adjudicata, the same issues of fact must have been involved, within the issues pleaded or which ought to have been litigated, between the same parties or privies, and applied to the parties or privies at the time of the rendition of the judgment. The rule stated in Crowson v. Cody, 215 Ala. 150, 153, 110 So. 46, 49, was: "Where the issues were broad enough to comprehend all that was involved in the issues of the second suit, the test is, not what the parties actually litigated, but what they might or ought to have litigated. This is necessary to a due observance of the rule against splitting the cause of action (McNeil v. Ritter Dental Mfg. Co., 213 Ala. 24, 104 So. 230), dividing the grounds of recovery, and relitigating the established or admitted facts. Terrell v. Nelson, 199 Ala. 436, 74 So. 929; McClarin v. Anderson, 104 Ala. 201, 210, 16 So. 639; McDonald v. Mobile, etc., Co., 65 Ala. 358; Coleman v. Birmingham Fertilizer Co., 208 Ala. 160, 93 So. 904; Steele v. Crute, 208 Ala. 2, 93 So. 694; Schillinger v. Leary, 201 Ala. 256, 77 So. 846; Stein v. McGrath, 128 Ala. 175, 30 So. 792; Howard v. Howard, 26 Ala. 682; Irby v. Com. Nat. Bk., 204 Ala. 420, 85 So. 509."

The following rule was applied in Clark v. Whitfield, 213 Ala. 441, 444, 105 So. 200, 203: "The general rule of res judicata is that a judgment of a court of competent jurisdiction, rendered on its merits, is final and conclusive of the...