Sloss-Sheffield Steel & Iron Co. v. Greek

Citation211 Ala. 95,99 So. 791
Decision Date10 April 1924
Docket Number6 Div. 994.
CourtSupreme Court of Alabama

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages by Fred H. Greek against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Tillman Bradley & Baldwin, of Birmingham, for appellant.

Horace C. Wilkinson, of Birmingham, for appellee.

This cause was submitted and considered under Rule 46 (178 Ala. xix, 65 South. vii), and the opinion of the court was delivered by


The case was tried upon count 2, alleging, among other things:

"*** The plaintiff further avers that it thereupon became and was the duty of the defendant to pay the plaintiff the sum of $12 a week for a period of 35 weeks, or $420 at the end of the 35-week period for the loss of his said finger. Plaintiff further avers that before the 35-week period expired, he demanded of the plaintiff" (defendant) "the sum of $12 per week for 35 weeks for the loss of his said index finger, and that after the 35-week period expired the plaintiff demanded of the defendant the sum of $420, and that at all times the defendant was advised by the plaintiff and knew that the plaintiff was disabled and unable to work and earn money, and was unable to obtain money, and was in destitute circumstances and dependent upon said sum of compensation due him by the defendant for the necessaries of life, and that notwithstanding the defendant's knowledge of all of said facts, a servant agent, or employee of the defendant, to wit, David S Anderson, acting within the line and scope of his employment as such, and authorized by the defendant to pay compensation claims, wrongfully and wantonly refused to pay the plaintiff said sum of $12 per week for 35 weeks, and wrongfully and wantonly refused to pay the plaintiff said sum of $420 at the end of the 35-week period knowing that such conduct would likely or probably result in injury to the plaintiff, although the defendant was at all times able to pay said sum, and with knowledge on the part of said servant, agent, or employee that the said sum was due plaintiff by the defendant, and as a proximate consequence the plaintiff avers that he was caused to wait a long time for said sum of $420; that he was caused to go to great trouble, expense, and annoyance in and about his efforts to collect said sum of $420 from the defendant; *** all to his damage in the sum aforesaid, and the plaintiff claims punitive damages."

Demurrer was overruled to this count, challenging its sufficiency, on grounds: (1) That the only procedure or remedy open to plaintiff is given expression by the Workmen's Compensation Act, pt. 2 (Gen. Acts 1919, p. 208); and (2) that the obligation to pay compensation to an employee receiving his injuries within the provisions of the act was contractual in nature, and, in the absence of statutory procedure, the failure to pay did not give a right of action on the case ex delicto for punitive damages.

The appellee, among other arguments, said, of the source and nature of the remedy sought to be enforced, that section 13 of the Bill of Rights guaranteed that " every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law" (italics supplied), and that section 28 of the Workmen's Compensation Act had not provided a remedy for the collection of compensation "where no controversy exists between the parties." It is provided by section 28 of the act, part 2, that "either party to a controversy arising under this act may file a verified complaint in the circuit court," etc. (Gen. Acts 1919, p. 227; Ex parte Sloss-Sheffield S. & I. Co. [Steagall's Case] 207 Ala. 531, 93 So. 425), for the ascertainment of the compensation, if any, that should be granted, and to determine who is entitled thereto. The compensation payable for the various injuries sustained, and to the defendants indicated, is regulated by the act (Gen. Acts 1919, p. 211, § 13 et seq.; Ex parte Shaw [Ala. Sup.] 97 So. 694; Ex parte Thomas, 209 Ala. 276, 96 So. 233; Ex parte American Blakeslee Mfg. Co. [Ala. App.] 98 So. 817), for which suit may be brought in the circuit court of the county "which would have jurisdiction of an action between the same parties arising out of tort," etc. The question of what is an adversary proceeding under the statute has been adverted to by this court (Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Ex parte Sloss-Sheffield S. & I. Co. [Steagall's Case], 207 Ala. 531, 93 So. 425; Ex parte Thomas, 209 Ala. 276, 96 So. 233), and it is also declared the "presumption of law" is "that the contract of employment is subject to the provisions of the act," that is, the duty to pay compensation exists as a part of the contract of employment into which the statute is made to enter by acts of the parties under the provisions of part 2 of the act ( Steagall v. Sloss-Sheffield S. & I. Co., 205 Ala. 100, 87 So. 787; Garrett v. Gadsden Cooperage Co., 209 Ala. 223, 96 So. 188; 1 Honnold on Work. Comp. § 32). It is also provided in that statute for an agreement, expressed or implied, both by employer and employee to become subject to the provisions of part 2 of the Act of 1919, p. 208, § 9 et seq. (Garrett v. Gadsden Cooperage Co., supra); and it has been held that the remedies granted under the Compensation Act are exclusive in cases coming within the influence thereof (Georgia Casualty Co. v. Haygood [Ala. Sup.] 97 So. 87; Garrett v. Gadsden Cooperage Co., supra). The provisions of the act (section 11, p. 209) declaring the presumptions as to acceptance of the terms and provisions of the act, giving the right and procedure (section 12, p. 210) to "terminate the agreement," procedure for ascertainment and enforcement, etc. (section 21, p. 224), and declaring a preference of the right of compensation (section 27 p. 227), indicate that the duty to pay exists because it is a part of the contract of employment between the employer and the employee.

As to the suit sought to be maintained, appellee's able counsel say:

"We say it is an action on the case with punitive damages. As was said in Wolf v. Smith, 149 Ala. 457-461, 42 So. 824, 825 (9 L. R. A. [N. S.] 338), the duty to pay compensation for the loss of an index finger was not a common-law duty, 'but one newly created by statute, and which, but for the statute, might be omitted. No penalty is attached for a failure on the part of the person operating the mine to comply with the requirements of the statute; but it is a general and well-established rule that the wrongdoer is liable in damages to the party injured by the violation of a statutory duty. 1 Cyc. p. 679. Neither does the statute provide a remedy for a failure to comply with its terms; but this presents no obstacle to recovery in a proper case against the wrongdoer. The common law affords the remedy, and, if the plaintiff has a cause of action, the proper remedy has been resorted to in this instance. Autauga County v. Davis, 32 Ala. 703; Birmingham Min. R. R. Co. v. Parsons, 100 Ala. 662, 13 So. 602, 27 L. R. A. 263, 46 Am. St. Rep. 92.'
"We call the court's attention to the fact that no penalty is prescribed by the Compensation Law for failure on the part of an employer to pay, even in cases in which there is no controversy about the amount due. The sum payable does not even draw interest until reduced to judgment."

To this statement as to interest appellant's counsel admit that the...

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