Shepard v. Chrysler Corporation
| Decision Date | 17 June 1969 |
| Docket Number | Civ. A. No. 66-726. |
| Citation | 314 F. Supp. 1179 |
| Parties | Emma J. SHEPARD, Plaintiff, v. CHRYSLER CORPORATION, a corporation, et al., Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
Edgar E. Smith, and Humphrey, Lutz & Smith, Huntsville, Ala., for plaintiff.
Harold F. Herring and Lanier, Shaver & Herring, Huntsville, Ala., for defendants.
OPINION IN LIEU OF FORMAL FINDINGS
Plaintiff, Emma J. Shepard, brought this action on November 29, 1966. The action was grounded upon the common law and the Alabama Employers' Liability Act. Defendant filed a motion for summary judgment. This motion was granted on May 23, 1967, since it appeared without contradiction that plaintiff sustained her injuries as a result of an accident that occurred on December 1, 1965, following which she accepted workmen's compensation payments in the amount of $314.85, and hospital and medical benefits in the amount of $502.30. The motion was granted without prejudice to plaintiff's right to amend her complaint to state an action under the Alabama Workmen's Compensation Act. On the date of the order plaintiff amended asserting an action under the Act.
On March 18, 1968, defendant's motion to dismiss the complaint as amended and its alternative motion for summary judgment were each overruled. By its answer, in addition to a general denial, the defendant set up the Alabama statute of limitations of one year, Title 26 § 296, and a discharge from further liability under the Act by virtue of the payments of compensation referred to.
The Court heard the case on its merits on May 26, 1969. It has since read the several depositions which were offered on the trial.
It is noted that the amendment to the complaint asserting the Alabama Workmen's Compensation Act was filed more than one year after the date of the injury on December 1, 1965, and more than one year after the date of the last payment of compensation on February 15, 1966.
Section 296 of Title 26 of the Alabama Code of 1940 provides that all claims for compensation are barred unless within one year after the accident, or within one year after the last payment of compensation, a verified complaint is filed by the workman.
In Birmingham Belt R. Co. v. Ellenburg, 215 Ala. 395, 111 So. 219, the court on application for rehearing permitted an amendment changing a case brought under the Federal Employers' Liability Act to one under the Alabama Workmen's Compensation Act after the elapse of one year from the date of the accident. Two of the seven justices, including the one who wrote the original opinion reversing the case because of the allowance of the amendment, dissented.
In Pulliam v. Gulf Lumber Company, 5 Cir., 312 F.2d 505, Judge Rives, speaking for the court, in analyzing the opinions in Ellenburg said:
(Emphasis supplied)
11. Stith Coal Co. v. Alvis, 1932, 224 Ala. 603, 141 So. 663, 665; Ingalls Shipbuilding Corp. v. Cahela, 1948, 251 Ala. 163, 36 So.2d 513, 519; Braswell v. Brooks, 1957, 266 Ala. 141, 94 So.2d 879, 881.
In B. F. Goodrich Co. v. Parker, 282 Ala. 151, 209 So.2d 647, it was urged that the failure of the record to show that the statute of limitations was called to the attention of the Court under a plea in short by consent, prevented the employer from raising the question on appeal. The employee relied on Southern Railway Co. v. McCamy, 270 Ala. 510, 120 So.2d 695, in which it was held that an amendable defect not called to the attention of the trial court could not be raised for the first time on a motion for a new trial. The court responding to this contention said:
(Emphasis supplied)
The language employed in Pulliam, supra, in vital particulars is inconsistent with that in the Parker case. The court in Parker makes no mention of the Ellenburg case. In Parker there was no question of an amendment such as that involved in Ellenburg. But notwithstanding this fact has Ellenburg been overruled in principle to the extent that this Court under Erie must follow Parker even though an amendment to an existing complaint is here involved, as distinguished from the filing of an original complaint? On principle it appears that the court in Parker has reverted to the original, and the dissenting opinion on rehearing in Ellenburg.
Rule 15(c), F.R.Civ.P. as amended provides in part that:
"Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth * * * in the original pleading, the amendment relates back to the date of the original pleading."
The 1966 amendment to the rule relates to changing the party against whom the claim is asserted, and provides that such amendment may be made if the above quoted provision is satisfied, "and, within the period provided by law for commencing the action * * *, the party to be brought in by amendment," emphasis supplied receives such notice that he will not be prejudiced, and knew or should have known that, but for a mistake as to the identity of the proper party, the action would have been brought against him.
It will be observed that as to an amendment with respect to a claim or defense there is no limitation as to the time of filing of such an amendment as there is with respect to an amendment as to a party. In this case there is no question as to the addition of a party. The incident was an accident from the beginning, although in the original suit and in the first amendment filed on March 1, 1967, the averments of the several counts of the complaint are that from October 9, 1962, through December 1, 1965, plaintiff was exposed to and did breathe polyurethane fumes and that "gradually over a period of time by reason of such inhalations and absorptions the plaintiff was caused to be injured * * *" The basic facts have not changed. The amendment purports to meet the facts as they actually exist.
The Parker case is based upon a lack of subject matter jurisdiction. In this case the Court acquired jurisdiction of the subject matter when the original suit was filed, since that suit involved "the conduct, transaction or occurrence," asserted by the amendment upon which the action as presently presented is grounded. Parker did not involve the relation back of an amendment such as we have here, and such as was involved in Ellenburg. In the absence of an overruling of Ellenburg by Parker, or even the mentioning of the former by the latter, and under Rule 15(c), the Court is of the opinion that the statute of limitations of one year is not here applicable, and the question heretofore propounded must be answered in the negative.
Plaintiff was first employed by the defendant on October 9, 1962, and from that time up until December 1, 1965, she was exposed to polyurethane fumes to some extent. Up until about two weeks prior to the latter date plaintiff had worked in a properly ventilated area at which time she was transferred into a new area. The ventilation in this area was not finished at the time of the transfer. On December 1 while plaintiff was engaged at her work another employee came into her separate work area to heat some of the polyurethane on a hot plate. This employee stirred some of it out on the hot plate, causing a...
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