Woodward Iron Co. v. Craig

• Decision Date: 15 March 1951
• Docket Number: 6 Div. 119
• Parties: WOODWARD IRON CO. v. CRAIG.
• Court: Alabama Supreme Court

Page 586

53 So.2d 586

256 Ala. 37

WOODWARD IRON CO. v. CRAIG.

6 Div. 119.

Supreme Court of Alabama.

March 15, 1951.

As Modified on Denial of Rehearing June 28, 1951.

Dryer & Dryer, of Birmingham, for appellant.

Lipscomb & Brobston and Jas. M. Hamrick, all of Bessemer, and D. G. Ewing, of Birmingham, for appellee.

Hare & Parsons, Harsh & Glasser, Drennen & Drennen, Beddow & Jones, Cooper, Mitch & Black, Chester Austin, Hal W. Howard, and Clifford Emond, all of Birmingham, filed brief on behalf of appellee.

Cabaniss & Johnston, Burr, McKamy, Moore & Tate and White, Bradley, Arant & All, all of Birmingham, amici curiae.

FOSTER, Justice.

This is a suit under the homicide statute. Section 123, Title 7, Code. Decedent had been an employee of defendant for practically all of his mature years, working in an iron ore mine. While so engaged, he contracted silicosis of the lungs, which first appeared about 1943. He died February 21, 1949 of tuberculosis, which resulted from silicosis. His disease was not caused suddenly, violently, nor by accidental means. In 1943 he was transferred to a job outside of the mine which he filled until October 3, 1944, after which date until July 19, 1945, he was on sick leave. He then requested his release and was dropped from the employment roll. His work was in development headings, which are started off from the main air course and are dead end tunnels until they can be connected with an air course. They are said to be always dusty, very much so at times, and that no sprinkler system was used; that vent tubes convey water and air to the face of the headings, but such vent tubes were sometimes damaged and not kept close to the face of the headings. A small hose was the only means of wetting the ore which had been shot down.

The negligence alleged in the complaint was the failure to exercise due care to provide a reasonably safe place in which to work. This is a common law duty. When death results, such failure to provide a reasonably safe place to work brings the claim under section 123, Title 7, Code. That statute gives a cause of action to be prosecuted in the name of the personal representative of one whose death is caused by the wrongful act, omission or negligence of defendant. The recovery is for distribution among the distributees of the estate of decedent according to the statute of distribution. The statute also provides that action must be brought within two years from and after the death of the intestate. The cause of action there provided for must be one which gives rise to an action which the intestate could have maintained if it had not caused death.

The first question presented on this appeal arose from rulings on demurrer to certain pleas. The pleas first considered in this connection are 10 and 11. Those pleas show that intestate, while he was still alive on February 14, 1946, filed a suit in the Circuit Court of Jefferson County against the defendant. Said suit was removed to the United States District Court, which court had jurisdiction of the parties and subject matter of the suit and, on September 23, 1946, a judgment was rendered in said district court in favor of the defendant and against the plaintiff's intestate upon the merits of said cause, dismissing the suit. Wherefore plea 10 alleges that plaintiff herein is estopped by virtue of said judgment. A copy of the record of that cause is attached. The plea further alleges that plaintiff's intestate was not employed by defendant and was not in any way exposed to the dust or other obnoxious substances in or about the mines of the defendant long prior to said judgment, to wit, the month of October 1944: the date of his death being February 21, 1949. That said suit was based upon the same subject matter as that embraced in the instant case. Plea 11 presented the same legal question.

Defendant filed other pleas to which demurrer was sustained, and which appellant urgently insists were not subject to demurrer.

Pleas 6 and 7 are the statute of limitations in Code form. One pleads the one year statute, and the other pleads the two year statute. As a matter of fact, we may pause to say there is no statute of limitations applicable to the cause in question under section 123, supra, notwithstanding section 123 fixes two years as the period in which the suit must be brought and makes it a condition to the maintenance of the action. Louisville & Nashville R. Co. v. Chamblee, 171 Ala. 188, 54 So. 681. It is not subject to the rules applicable to the statute of limitations, notwithstanding section 25, Title 7, Code. The complaint shows upon its face whether the suit was brought within the two years because the complaint shows when plaintiff's intestate died and also when the suit was brought, so that such a plea is inappropriate. But the complaint would be subject to demurrer if it did not show that it was brought within two years. The general issue to such a complaint puts in issue any controversy in respect to it. The only controversy which could arise in that connection would be as to the date of the death of intestate. As the statute of limitations of one year has no application, we need give no further consideration to the pleas numbered 6 and 7.

Appellant contends that a very important legal question is presented by plea 9, to which demurrer was sustained. It is in substance that plaintiff's intestate was not exposed to dust or other obnoxious substance in or about the mine of defendant for a period of more than one year prior to the death of decedent. The theory of that plea is that section 123, supra, gives a cause of action in favor of the personal representative of a deceased when such deceased could have maintained an action on account of the same acts of defendant causing personal injuries, rather than death; and that at the time of the death of plaintiff's intestate any claim which may have been available to him for damages on account of such wrongful act of defendant was barred by the statute of limitations of one year and, therefore, he could not have maintained at that time an action for such wrongful act, omission or negligence on the part of the defendant.

The pleas of res judicata or estoppel by judgment and plea 9, supra, are closely connected with each other and both grew out of that feature of section 123, supra, which allows such a recovery in favor of the personal representative of a deceased for the wrongful conduct of the defendant only when such deceased, had he lived, could have maintained such a suit. The question here is whether that means that he could have done so at the very time of his death, if he had not then have died. So that those questions call for consideration and interpretation of section 123, supra, in connection with our decisions heretofore rendered with respect to it.

The complaint in this case, as in the case of G. W. Craig (plaintiff's intestate) versus this appellant, seeks a recovery for personal injuries on account of the continuing negligence of defendant over a long period of years, ending October 1944, which also ended his service in the mine where it is alleged he contracted the disease on account of the negligent failure of defendant to exercise due care to make his place of work reasonably safe. The complaints in both suits show that they are based on the same cause of action. It is noted here again that a disease so contracted is not an occupational disease: that is, one which results from ordinary and known incidents of the employment, not due to the negligence of defendant. But where the disease came on gradually over a period of years, caused by the negligent failure of defendant to provide a reasonably safe place of work, it is the result of a tort for which an action at law will lie subject to the rules ordinarily applicable to such actions. City of Clanton v. Johnson, 245 Ala. 470, 17 So.2d 669; American Mut. Liability Ins. Co. v. Agricola Furnace Co., 236 Ala. 535, 183 So. 677; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530.

As we observed, the suit in the case of G. W. Craig was filed February 14, 1946, more than a year from the last occasion of his exposure to the danger, and was disposed of in his lifetime. After it was transferred to the United States District Court a motion was made by defendant in that court for a summary judgment because it was barred by the one year statute of limitations. This motion was granted on hearing and an involuntary dismissal resulted, which finally disposed of that case and was an adjudication that the claim was on February 14, 1946 barred by limitations. Such proceeding pretermitted consideration of other defenses. That judgment remained in force until Craig died February 21, 1949. In the interim nothing in that connection appears to have occurred. The proof submitted on the motion to dismiss shows that the basis of the claim was that Craig had not exposed himself to the danger after October 3, 1944, more than one year prior to the institution of his suit. That judgment of dismissal seems not to have been reviewed. It does not seem to have been contended that Craig's condition did not appear until more than one year after he was last exposed to the dangerous situation. On the other hand, he terminated his employment at the time when he became so afflicted, because he could not carry on his work. Gulf States Steel Co. v. Jones, 204 Ala. 48, 85 So. 264. There is no legal difficulty apparent at that point.

Had Craig sued in his lifetime before the bar became complete and had died pending the suit, the statute of limitations of course was not a bar to his suit, and though his cause of action was over a year old, his personal representative could sue within two years after his death and not be barred. Parker v. Fies & Sons, 243 Ala. 348, 10 So.2d 13, overruling Ex parte Adams, 216 Ala. 241, 113 So. 235. Having filed suit after the bar was complete and judgment rendered dismissing it because it was...