Strickland v. Mobile Towing & Wrecking Co., Inc.

• Court: Alabama Supreme Court
• Writing for the Court: MERRILL; HEFLIN
• Citation: Strickland v. Mobile Towing & Wrecking Co., Inc., 303 So.2d 98, 293 Ala. 348 (Ala. 1974)
• Decision Date: 14 November 1974
• Parties: Borden STRICKLAND, as Adms., etc. v. MOBILE TOWING AND WRECKING CO., INC., a corporation, etc. SC 879.

Page 98

303 So.2d 98

293 Ala. 348

Borden STRICKLAND, as Adms., etc. v. MOBILE TOWING AND WRECKING CO., INC., a corporation, etc.

SC 879.

Supreme Court of Alabama.

Nov. 14, 1974.

Wilters & Brantley, Bay Minette, for appellant.

A. Clay Rankin, III, Mobile, for appellee.

MERRILL, Justice.

This appeal is from a judgment of nonsuit dated January 24, 1974, requested by the plaintiff after the trial court had sustained defendant's plea in abatement after a hearing.

Borden Strickland, as administrator, filed suit against Mobile Towing and Wrecking Company, Inc., seeking damages for fatal injuries to one of its employees, William Woodruff Jackson, who died on March 12, 1965. The suit was filed under the provisions of the Jones Act, 46 U.S.C.A. § 688, which provides in pertinent part:

'* * * in the case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. * * *'

In Syville v. Waterman S.S. Corp., 84 F.Supp. 718 (S.D.N.Y.1949), affirmed 217 F.2d 94 (2nd Cir. 1954), the court said:

'Under either the Jones Act or the Death on the High Seas Act the personal representative of the deceased seaman is the only person who may maintain an action.'

Railway employees noted in the Jones Act are governed by 45 U.S.C.A., §§ 51--60. Section 56 provides in part:

'No action shall be maintained under this chapter unless commenced within three years from the day the cause of action accrued.'

In Gulf, Colorado & Santa Fe R. Co. v. McClelland, 355 F.2d 196 (5th Cir. 1966), the court said:

'* * * It is clear that compliance with the statute of limitations provided by the FELA is a condition precedent to an injured employee's recovery under the Act, * * *.'

Thus, the three-year statutory time limit for filing these suits is not a statute of limitations in the usual sense, acting only as a bar to the remedy, but constitutes a condition precedent to any right to bring the action. This is consistent with our construction of the time limit under the Alabama wrongful death statute, Tit. 7, § 123, Code 1940. See Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 179 So.2d 76.

The instant suit was filed by Borden Strickland, as administrator of the estate of W. W. Jackson, on Monday, March 11, 1968, after Jackson's death on March 12, 1965. The first sentence of the complaint reads as follows:

'Borden Strickland has been duly appointed Administrator of the Estate of William Woodruff Jackson and is now duly acting as such Administrator. Said appointment was made by the Probate Court of Mobile County, Alabama, whereby the said Borden Strickland has been duly appointed as Administrator of said Estate.'

The summons and complaint were served on March 26, 1968 and on April 25, 1968, defendant filed a verified plea in abatement containing two grounds, the first being that the defendant had merged with another company and became 'Mobile Towing Company' between the time of plaintiff's injuries and the filing of the suit. We do not discuss this ground in the opinion.

The second ground stated:

'2. At the time the complaint herein was filed, March 11, 1968, Borden Strickland was not, in fact, the Administrator of the Estate of William Woodruff Jackson, in that he was not appointed in this capacity until March 13, 1968, as reflected in attached true and correct copy of Court's Order granting him Letters of Administration, Exhibit 'B' hereto. Hence, plaintiff had no such capacity to bring this action.'

An exhibit to the plea in abatement was the order granting letters of administration dated March 13, 1968. The order began as follows:

'This day came W. Borden Strickland and filed his application in writing and under oath, praying to be appointed administrator of the estate of William Woodruff Jackson, deceased alleging in said petition that he is a citizen of the State of Alabama, over the age of Twenty-one years; that the above named decedent was a non-resident of this state at the time of his death; that said decedent departed this life in this County intestate, on the 12th day of March, 1965, leaving in this state an action for wrongful death and personal property of the value of One Hundred Fifty and No/100 ($150.00) Dollars, and probably not more to the best of petitioner's knowledge, information and belief, * * *'

The order showed that the widow of decedent Jackson had petitioned the court to appoint Strickland as administrator and that he had given a surety bond, and recited further: '* * * which bond with said security has been taken and approved by the Judge of this Court, it is ordered, adjudged and decreed that letters of administration upon the estate of William Woodruff Jackson deceased, do forthwith issue to W. Borden Strickland as is in said application prayed.'

This order is in direct conflict with the quoted first sentence of the complaint, and states that Strickland was appointed administrator only on March 13, 1968, a date which would have been too late to file this suit.

The record shows no further action from April 25, 1968 to October 1, 1970, when a demurrer was filed to the plea in abatement. The demurrer was overruled on December 11, 1970. On March 5, 1971, plaintiff filed an answer to the plea in abatement, the pertinent part of which reads:

'9. The Defendant ought not be successful in its plea in abatement for that Borden Strickland, the Administrator of the estate of William Woodruff Jackson, Deceased, filed the lawsuit in question under the mistaken belief that he had been duly appointed as Administrator when in fact he had not been duly appointed until subsequent to the filing of such lawsuit, and such a subsequent appointment relates back to the commencement of the lawsuit in question.'

A hearing on the plea in abatement was set for January 28, 1972, and after a hearing, the plea was sustained. On December 8, 1972, plaintiff's demurrer to the plea in abatement was argued and overruled.

On January 4, 1973, plaintiff amended his complaint by adding the following:

'First. Borden Strickland was duly appointed Administrator of the estate of William Woodruff Jackson on the 13th day of March, 1968, and is now acting as such; that he filed this suit on the 11th day of March, 1958 under the mistaken belief that he had been and was duly appointed Administrator of this said estate at the time of the filing of this said suit. That this suit was filed for the benefit of the estate of William Woodruff Jackson, deceased. As Administrator of this estate, the Plaintiff now adopts and ratifies his action in commencing this suit.'

The plea in abatement was refiled on December 13, 1973, and sustained again on January 24, 1974, at which time, the plaintiff's motion for a nonsuit was granted.

At the hearing, administrator Strickland testified that he was a practicing attorney in Mobile County and had been since 1955, and that he filed papers in the Probate Court of Mobile County to be appointed administrator of the estate of W. W. Jackson. Objections were sustained to the following questions:

'All right; and when were those papers filed, please, sir?'

'Mr. Strickland, were you appointed Administrator of the Estate of that individual prior to March 13, 1968? 'And when was it (the petition for letters of administration) filed?'

Judicial records import absolute verity. They cannot be contradicted in collateral proceedings by other evidence. Laird v. Columbia Loan Investment Co., 216 Ala. 619, 114 So. 208, and cases there cited. In Louisville & Nashville Railroad Co. v. Perkins, 152 Ala. 133, 44 So. 602, the defendant tried to prove by parol evidence that the plaintiff had not been appointed administrator of the estate of the decedent under its plea 7. This court said, '* * * after the introduction of the certified copy of the records of the Washington county court, it is clear that the purpose of the plea and the only effect of the proffered testimony directed against the plaintiff's authority was to collaterally assail the order of the appointing court. This cannot, under these circumstances, be done. * * * But it is insisted that the effort is, not to question the validity of the appointment, but to ascertain the true date thereof. A perfect answer to this contention is that, from the face of the record, it appears that the appointment was made at the special February term. It is no more permissible to collaterally impeach orders or...