Smith v. Southern Ry. Co.
|23 February 1939
|6 Div. 361.
|237 Ala. 372,187 So. 195
|SMITH ET AL. v. SOUTHERN RY. CO. ET AL.
|Alabama Supreme Court
Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.
Action for wrongful death by Ludy Smith and Alma Smith, a minor suing by her mother and next friend, Ludy Smith, against the Southern Railway Company and C. A. Eurton. From a judgment of nonsuit, plaintiffs appeal.
Frederick V. Wells and Smith, Windham, Jackson & Rives, all of Birmingham, for appellants.
Stokely Scrivner, Dominick & Smith, of Birmingham, for appellees.
The appellants, plaintiffs in the court below, instituted this suit in the Circuit Court of Jefferson County against the defendants to recover damages for the wrongful death of Loys D. Smith, the husband of the plaintiff Ludie Smith, and father of the minor Alma Smith.
To the single special plea filed in the cause by the defendant, the plaintiffs interposed a demurrer, assigning a number of grounds. The court overruled the demurrer, and the plaintiff thereupon took nonsuit on account of this adverse ruling of the court, with appeal upon the record.
The only assignment of error entered by the appellants upon this record is in the following language: "The trial court erred in overruling the demurrer of the plaintiffs to plea No. (1) of the defendant, Southern Railway Company, as an answer to Count (2) of the complaint as amended."
We are therefore, only concerned here with the sufficiency of defendants' said plea, as an answer to the second count of the complaint. To fully understand the case made by said count two and defendants' plea thereto, it is necessary that we state the material averments of each of the pleadings.
It appears from the complaint that one of the plaintiffs is the widow of Loys D. Smith, deceased, while the other plaintiff is a minor child of the decedent, and that both plaintiffs were dependents of said decedent; that the decedent, at the time he received his fatal injuries, was an employee of Hyman Michaels Company, at Birmingham, Alabama; that the said Hyman Michaels Company and Loys D. Smith were both under and subject to the provisions of the Workmen's Compensation Act of Alabama (Code 1923, § 7534 et seq.); that while engaged in his duties as such employee, the said Loys D. Smith received, in the manner hereinafter mentioned, an injury from which he died on September 30th, 1936; that said injury to said Loys D. Smith was "an accidental injury" within the meaning of the Workmen's Compensation Act of Alabama, and "that said injury arose out of, and in the course of his employment by the said Hyman Michaels Company; that while the said Loys D. Smith was engaged in his work for the said Hyman Michaels Company, and was at a place where he had a right to be in discharging his duties for his said employer, the defendants, Southern Railway Company, and C. A. Eurton, and others, agents or servants of the said railway company, negligently caused or allowed a railroad car to run upon, or against, or over the said Loys D. Smith, and as a proximate consequence of said negligence the said Smith was killed." It further appears from said count 2: That the said Hyman Michaels Company, at the time of the injury and death of its said employee, had in force and effect with the General Accident Fire & Life Assurance Corporation, Limited, a policy of insurance, whereby this insurance company fully insured the Hyman Michaels Company against all liability arising from accidents to, and death of its employees under the Workmen's Compensation Act; that the said insurance policy contained the following provision: "In consideration of the premium charged for this insurance, it is hereby understood and agreed that the corporation (General Accident Fire & Life Assurance Corporation Ltd.) waives its right of subrogation as set forth in condition K of the policy against Southern Railway Co., Alabama Great Southern Railway Co., and Cincinnati, New Orleans & Texas Pacific Railway Co. at Birmingham, Alabama, subject otherwise, however, to all the terms, limits, and the conditions of the policy as written."
Count 2 concluded with the following averment: "The plaintiffs further aver that Hyman Michaels Co. has paid nothing to these plaintiffs as for and behalf of these plaintiffs or to or for the estate of Loys D. Smith, under the compensation law of Alabama, either before the filing of this suit, or at time thereof, or since the filing of the original complaint in this case; and that the only payments made to these plaintiffs under the compensation law of Alabama has been paid by General Accident Fire & Life Assurance Corporation Ltd. since the date of the filing of the original complaint in this cause through an agreement entered into since the date of the filing of the original complaint in this cause."
The material facts presented in the single plea filed by the defendants may be stated as follows: That the deceased Loys D. Smith was an employee of Hyman Michaels Company at the time of his death; that at the time he received his fatal injuries, he was engaged in the performance of his duties under his said employment; that the said employee and the said Hyman Michaels Company were then subject to the provisions of the Alabama Workmen's Compensation Act of Alabama; that the said Southern Railway Company and its said servants were also subject to the Workmen's Compensation Act of Alabama; that since the death of said Loys D. Smith the plaintiffs had elected to receive compensation from said Hyman Michaels Company and from General Accident Fire & Life Assurance Corporation, Limited, the insurer of said Hyman Michaels Company; that this election was evidenced by a petition and agreement of settlement between the plaintiffs and the said Hyman Michaels Company and the said insurance company filed in, and approved by the court under date of March 9th, 1937, and a judgment based thereon against the Hyman Michaels Company and said insurance company. By this judgment the sum of $220, representing accrued compensation at the rate of $11 per week for 20 weeks, was ordered paid to plaintiffs, and the further sum of $11 per week was ordered to be paid during the dependency, or during 280 weeks thereafter. That the said insurance carrier had paid the sum of $125 on funeral expenses of said deceased, being the full amount due therefor in accordance with the Alabama Workmen's Compensation Act. It was further averred that said suit was not being maintained or prosecuted for the use of either Hyman Michaels Company, the employer, or for the use or...
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