Reed v. Brunson

Decision Date04 March 1988
Citation527 So.2d 102
PartiesJohn Kenneth REED and Rene Reed v. Coyce Edward BRUNSON, et al. 86-982.
CourtAlabama Supreme Court

Patrick M. Sigler and Stephen C. Moore, Mobile, for appellants.

E.L. McCafferty III, Dennis McKenna, and Jon A. Green of Inge, Twitty, Duffy, Prince & McKean, Mobile, for appellees.

HOUSTON, Justice.

Plaintiffs, John Kenneth Reed and his wife, Rene Reed, 1 appeal from a summary judgment granted in favor of the defendants, Ed Brunson, Sherman Howell, Jim Babbington, Bill Perkins, and Gerald Phillips (hereinafter sometimes referred to as co-employees), in this action to recover damages based on personal injury. We affirm.

After examining the materials submitted to the trial court, including numerous exhibits and the depositions of the plaintiff and co-employees, it appears to us that the following material facts are not in dispute: The plaintiff was injured when he caught his hand in a concrete mixer at Faulkner Concrete Pipe Company's plant in Mobile. Faulkner manufactures concrete pipe and is headquartered in Hattiesburg, Mississippi. At the time of his injury, the plaintiff had been employed at Faulkner as a laborer for approximately one year. The defendants were co-employees of the plaintiff. Bill Perkins is president of Faulkner and works in Hattiesburg; Jim Babbington is production manager and safety coordinator, and also works in Hattiesburg; Ed Brunson is manager of the Mobile plant; Sherman Howell is a foreman at the Mobile plant and was the plaintiff's immediate supervisor; Wayne Phillips is a maintenance worker at the Mobile plant. Concrete Equipment Company, which manufactured the mixer, was also named as a defendant; however, it is not a party to this appeal. 2

The mixer in question consists primarily of a large drum in which the concrete is mixed, and a rubber, motorized drive wheel that presses against the drum and rotates it. The point where the drive wheel presses against the drum is called the "nip-point." Although there is evidence tending to show that the mixer was sold to Faulkner with a guard shielding the front of the drive wheel, the mixer was not equipped with side guards shielding the nip-point. On the day of the accident, Howell, contemplating a plant inspection, instructed the plaintiff to clean up concrete on the floor around the mixer. 3 The mixer was in operation at the time the plaintiff was working around it. The plaintiff was using a pneumatic air powered chipping gun to remove hardened concrete from under the drive wheel when he lost his balance and fell toward the mixer, catching his hand in the nip-point. 4

The plaintiff filed suit, alleging that his injury was proximately caused by the co-employees' willful (count one), negligent (count two), or wanton (count three) conduct. The substance of these allegations is that the co-employees failed to instruct the plaintiff how to safely do his job and, also, failed to furnish him with a reasonably safe place in which to work.

There is at least a scintilla of evidence of negligence and probably of wantonness of some, but not all, of Reed's co-employees, which proximately contributed to Reed's injuries. Section 3 of Act No. 85-41, Acts of Alabama, Second Special Session 1984-85 (§ 25-5-11, Code of Alabama 1975, as amended), hereinafter referred to as the "Act," limits actions for personal injuries that an employee, who is receiving benefits under the Alabama Workmen's Compensation Act, can recover against an "officer, director, agent, servant, or employee of the same employer" to actions for willful conduct that results in or proximately causes injury or death. The plaintiff maintains that the Act is unconstitutional; of course, if it is constitutional, then the trial court's action in granting summary judgment to the co-employees on the counts seeking recovery for negligence and wantonness should be affirmed.

It is prudent to view the Act in its historical perspective. To do so, it is necessary for us to view American workmen's compensation acts in their historical perspective. The growth of the Industrial Revolution resulted in many job-related injuries for which compensation was sought in the courts. The common law was not kind to these actions, and the vast majority of the claims were defeated by the common-law defenses of assumption of the risk, contributory negligence, and the fellow-servant doctrine. 1A A. Larson, The Law of Workmen's Compensation, § 4.30 (1972). The non-responsiveness of the common law to an idea whose time had come caused legislators to devise a compromise system for the recovery of compensation for job related injuries and deaths. Though Professor Larson credits Missouri with beginning the workmen's compensation trend (A. Larson, The Law of Workmen's Compensation, note 7, at § 5.20), New York enacted the first American workmen's compensation statute in 1910. W. Prosser, Handbook of the Law of Torts, § 80 (4th ed. 1971).

This legislation was challenged by employers, and the New York act was held unconstitutional on the ground that it permitted liability without fault and was thus a taking of property without due process. Ives v. South Buffalo Ry., 201 N.Y. 271, 94 N.E. 431 (1911). Other workmen's compensation acts were struck down as violating the constitutional right to equal protection. See Cunningham v. Northwestern Improvement Co., 44 Mont. 180, 119 P. 554 (1911). The New York act was amended to make its coverage elective, after which the act was upheld by New York courts. In New York Central R.R. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667 (1917), the railroad appealed to the United States Supreme Court on the same ground that had been successful, prior to the amendment of the act, in the courts of New York. Justice Pitney, writing for the Court, upheld the constitutionality of the New York workmen's compensation act and wrote:

"In considering the constitutional question, it is necessary to view the matter from the standpoint of the employee as well as from that of the employer. For while plaintiff in error is an employer, and cannot succeed without showing that its rights as such are infringed [citations omitted] yet, as pointed out by the court of appeals in the Jensen Case (215 N.Y. 526 ), the exemption from further liability is an essential part of the scheme, so that the statute if invalid as against the employee is invalid as against the employer.

"The close relation of the rules governing responsibility as between employer and employee to the fundamental rights of liberty and property is of course recognized. But those rules, as guides of conduct, are not beyond alteration by legislation in the public interest. No person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit. [citations omitted] The common law bases the employer's liability for injuries to the employee upon the ground of negligence; but negligence is merely the disregard of some duty imposed by law; and the nature and extent of the duty may be modified by legislation, with corresponding change in the test of negligence. Indeed, liability may be imposed for the consequences of a failure to comply with a statutory duty, irrespective of negligence in the ordinary sense....

"The fault may be that of the employer himself, or--most frequently--that of another for whose conduct he is made responsible according to the maxim respondeat superior. In the latter case the employer may be entirely blameless, may have exercised the utmost human foresight to safeguard the employee; yet, if the alter ego while acting within the scope of his duties be negligent --in disobedience, it may be, of the employer's positive and specific command--the employer is answerable for the consequences. It cannot be that the rule embodied in the maxim is unalterable by legislation.

"The immunity of the employer from responsibility to an employee for the negligence of a fellow employee is of comparatively recent origin, it being the product of the judicial conception that the probability of a fellow workman's negligence is one of the natural and ordinary risks of the occupation, assumed by the employee and presumably taken into account in the fixing of his wages. [citations omitted] The doctrine has prevailed generally throughout the United States, but with material differences in different jurisdictions respecting who should be deemed a fellow servant and who a vice-principal or alter ego of the master, turning sometimes upon refined distinction as to grades and departments in the employment. [citation omitted] It needs no argument to show that such a rule is subject to modification or abrogation by a State upon proper occasion.

"The same may be said with respect to the general doctrine of assumption of risk. By the common law the employee assumes the risks normally incident to the occupation in which he voluntarily engages; other and extraordinary risks and those due to the employer's negligence he does not assume until made aware of them, or until they become so obvious that an ordinary prudent man would observe and appreciate them, in either of which cases he does assume them, if he continues in the employment without obtaining from the employer an assurance that the matter will be remedied; but if he received such an assurance, then, pending performance of the promise, the employee does not in ordinary cases assume the special risk. [citation omitted] Plainly, these rules, as guides of conduct and tests of liability, are subject to change in the exercise of the sovereign authority of the State.

"So, also, with respect to contributory negligence. Aside from injuries intentionally self-inflicted, for which the statute under consideration affords no compensation, it is plain that the rules of law upon the subject, in their bearing upon the employer's responsibility, are subject to legislative change; for contributory negligence, again,...

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