Opinion
6 Div. 201.
October 4, 1938. Rehearing Denied November 8, 1938.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
Certiorari denied by Supreme Court in Sloss Sheffield Steel Iron Co. v. Metropolitan Casualty Ins. Co., 237 Ala. 43, 185 So. 399.
Action by the Metropolitan Casualty Insurance Company of New York against the Sloss-Sheffield Steel Iron Company, to recover money paid as compensation insurance carrier. From a judgment for plaintiff, defendant appeals.
Affirmed.
Count 2 of the amended complaint is as follows:
"Count 2. Plaintiff claims of defendant the sum of, to-wit, $2,180.86 (Two Thousand One Hundred Eighty and 86/100 Dollars) and for its cause of action shows unto the Court the following, to-wit:
"On or about, to-wit, the 12th day of January, 1934, the plaintiff was the insurance carrier of one Brantley and Company, painting contractors, which Brantley and Company on said date was engaged in performing certain work in and about the painting of sheds and buildings of the defendant company in Jefferson County, Alabama, under and by virtue of a contract between said Brantley and Company and defendant company.
"Plaintiff avers that on said date said Brantley and Company, in so far as injuries to its employees arising out of and in the course of their employment was concerned, was subject to Article 2 of the Workmen's Compensation Act of Alabama and the plaintiff was the insurance carrier of said Brantley and Company, insuring said Brantley and Company against all claims of its employees under Article 2 of the Workmen's Compensation Act.
"Plaintiff further shows that on, to-wit, the 12th day of January, 1934, the defendant was subject to article 2 of the Workmen's Compensation Act.
"Brantley and Company on said date of January 12th, 1934, had in its employ one E. J. Vincent, who, on said date, sustained injuries which arose out of and in the course of his employment, which injuries resulted from and were caused under circumstances also creating a legal liability for damages on the part of defendant. Said E. J. Vincent thereafter elected to claim compensation of his said employer and plaintiff, as said employer's insurance carrier, paid E. J. Vincent compensation payments to which he was entitled under the Compensation Law of Alabama, liability for which payments was made final by decree of the Circuit Court of the Tenth Judicial Circuit of Alabama by that certain decree entered on, to-wit, December 7th, 1934.
"Wherefore, Plaintiff under and by virtue of Section 7586 of the Code of Alabama became subrogated to the right of said E. J. Vincent to bring legal proceedings against defendant to recover the aggregate amount of compensation payable by it as insurance carrier of said Brantley and Company, together with the costs of this action and a further sum of Two Hundred Fifty Dollars ($250.00) as attorney's fee for prosecuting this action.
"Plaintiff further shows that the contract under which said Brantley and Company was performing the work described for defendant company was in words and figures as set forth in Exhibit "A" attached to this amended complaint, and made a part hereof.
"Plaintiff avers that the circumstances creating a legal liability for damages on the part of defendant in causing the aforesaid injuries to said Vincent, consisted in this to-wit:
"Defendant negligently maintained a wire or series of wires, commonly known as high tension wires, being wires charged with large and dangerous quantities of electricity, which said wires were suspended over and across a building known as defendant's Round House, the roof of which said Vincent was required to work upon under and by virtue of his said employment by Brantley and Company in the performance of the contract made Exhibit 'A' to the complaint. Plaintiff further alleges that said wires were negligently maintained at a very low and dangerous height above the roof of said Round House, which Round House and the roof thereof was of a steel construction of such a nature as to constitute a conductor of electricity from said wires to the ground, should said wires come in contact with persons working upon said roof, or so close to persons working on said roof as to cause the electricity in said wires to arc or jump from said wires to said roof or persons working thereon. On to-wit January 12, 1934 said Vincent while working upon defendant's Round House roof as aforesaid, while passing or attempting to pass underneath said wires was injured as follows, to-wit, a current of electricity arced or jumped from said wires to the back of his neck and head as he was stooping to pass under said wires, burning and throwing him from said roof, inflicting the injuries for which plaintiff, as insurance carrier of Brantley Company has paid, is paying and is liable to continue to pay under decree of this Court in that certain cause #88306. Plaintiff further says that Vincent had not been warned of the dangerous currents of electricity borne by said wires, but on the other hand had been assured by his immediate superiors that the current in said wires were not dangerous; and further avers that said injuries to said Vincent were proximately caused by the negligence of defendant aforesaid.
"Wherefore, plaintiff, under and by virtue of section 7586 of the Code of Alabama became subrogated to the right of E. J. Vincent to bring legal proceedings against defendant to recover the aggregate amount of compensation payable by it as insurance carrier of said Brantley and Company, together with the costs of this action and a further sum of $250.00 as attorneys fee for prosecuting this action.
"Hence this suit."
The contract, made exhibit A to the complaint, between Brantley Company, "Contractor", and Sloss-Sheffield Steel Iron Company, "Owner", provides in substance as follows:
"Contractor proposes and agrees to furnish all labor, tools and equipment, including scaffolding necessary to clean and paint with one coat of paint, brush or spray method, as instructed by Owner's representative in charge, the surfaces of the following units of Owner's North Birmingham Furnaces, towit: * * *
"Owner agrees to furnish all paint necessary for the work.
"Contractor agrees to commence work immediately and to complete same not later than December 25, 1933.
"Contractor agrees to do all work in a neat and workmanlike manner and subject to the approval of owner's representative in charge.
"Contractor shall have entire charge of all details of this work, shall hire, discharge and superintend his own labor, and further agrees to assume all liability for personal injuries which may be suffered by any of his employes while on Owner's premises, including any liability for compensation for injuries or disablements under the Workmen's Compensation Law of the State of Alabama, except injuries or disablements to the employes of the Contractor directly caused by the acts of the agents and servants of the Sloss-Sheffield Steel Iron Company.
"Contractor agrees to assume all public liability which may arise in connection with this paint work."
The contract further stipulates the price of the work and time for payment.
Bradley, Baldwin, All White and Kingman C. Shelburne, all of Birmingham, for appellant.
At common law, the subrogee is not proper party to action to enforce subrogation, but is required to sue in the name of the creditor. 60 C.J. 832. Under the statute an insurance carrier to avail itself of the right of subrogation thereunder must bring suit in the name of the injured employe for its use and benefit. Code 1923, § 7586; Byars v. Alabama Power Co., 233 Ala. 533, 172 So. 621; Michigan Employers' Cas. Co. v. Doncette, 218 Mich. 263, 188 N.W. 507. When plea of contributory negligence is proven, defendant is entitled to the affirmative charge. Peters v. Southern R. Co., 135 Ala. 533, 539, 33 So. 332. The duty of one who employs an independent contractor, where the place is dangerous, to warn employes of the contractor is not violated where from either the character of the work or other sources the employes of the contractor become possessed of all the information that the employer of the contractor could have furnished regarding the danger. Pembroke v. Cambridge E. L. Co., 197 Mass. 477, 84 N.E. 331. Generally, documentary evidence is conclusive against the party introducing it. He may not impeach it, or accept a part in his favor and repudiate another part opposed to his claim or defense. 10 R.C.L. 198, § 289. Fifty per cent of the difference between the average weekly wages of a person prior to injury and his average weekly earnings after accident cannot be ascertained under the workmen's Compensation Law of Alabama by taking 50% of the permanent partial disability suffered by an employe. Sweeney v. Black River Lbr. Co., 150 La. 1061, 91 So. 511; Enrico v. Oliver Iron Min. Co., 199 Minn. 190, 271 N.W. 456. Compensation award to injured employe is not res adjudicata as to third person sued by the employer or insurance carrier under Code 1923, § 7586. Blumberg v. Abbott, 159 Tenn. 586, 21 S.W.2d 396.
Benners, Burr, McKamy Forman, of Birmingham, for appellee.
The insurance carrier is subrogated to the right to sue a third party whose negligence caused the injury and may bring the action in its own name, Code 1923, §§ 7586, 5700. But proper objection relating to the parties to the action must be raised in the court below in order to reserve the matter for appellate review. In this case no question was raised on the trial. 4 C.J.S., Appeal and Error, §§ 130, 132, 136, pp. 261-267, 282. The evidence made a question for the jury on the issues of negligence and contributory negligence, and the court properly refused the affirmative charge. Hardy v. City of Dothan, 234 Ala. 664, 176 So. 449; Byars v. Alabama Power Co., 233 Ala. 533, 172 So. 621. The finding of the Court in the compensation case was upon the proper basis and was such finding as is required upon which to render judgment. Armour Co. v. White, 23 Ala. App. 515, 128 So. 119; Enrico v. Oliver Min. Co., 199 Minn. 190, 271 N.W. 456. Contention of appellant that it was due the affirmative charge because the contract, exhibited with the complaint, was not proven, and that it was not proven appellant was subject to the Compensation Act, cannot be sustained. As to these matters there was no controversy on the trial nor question raised in the court below. All contracts of employment are presumed to have been made subject to Art. 2 of the Compensation Act. Code 1923, § 7547.
Appellee brought this suit against appellant to recover a sum of money that it paid to one Vincent, under the Workmen's Compensation Law of Alabama, Code 1923, § 7534 et seq., who was employed by Brantley Company who were engaged in performing certain work for the Sloss Company. The report of the case contains count two of the complaint as amended.
The appellant contends that the trial court erred in overruling its demurrer to the complaint. Appellant's argument is that the appellee was not a proper party plaintiff; and that suit by appellee, as subrogee of the injured employee Vincent, could only be brought in the name of Vincent for the use of appellee.
Section 7586 of the 1923 Code, however, provides that the subrogated insurance carrier "may bring legal proceedings" against the third party causing the employee's injury, and it nowise requires the legal proceedings to be brought in the name of the injured employee for the use of the insurance carrier. We think it would be needless circuity to bring the action in the name of the injured employee for the use of the insurance carrier. The case of Day Sachs v. Travelers' Insurance Co., 223 Ala. 558, 561, 137 So. 409, recognizes the propriety of the action for subrogation being brought in the name of the insurance carrier.
Appellant contends that the trial court erred in refusing its written request for the general affirmative charge. This contention is grounded upon five points, towit: (1) That the undisputed evidence showed that the injured employee Vincent was guilty of contributory negligence; and (2) because the judgment of the circuit court of Jefferson County, Alabama, wherein judgment for workmen's compensation was rendered in favor of Vincent and against his employer, Brantley Company, was not entered "on the only basis authorized by the Workmen's Compensation Law of Alabama;" (3) because the evidence failed to show any actionable negligence upon the part of the appellant towards Vincent; (4) because the appellee did not introduce in evidence the contract that it made Exhibit "A" to the complaint; and (5) because appellee did not prove that appellant was under Article 2 of the Workmen's Compensation Act of Alabama, Code 1923, § 7543 et seq.
We have read very carefully, and given attentive consideration to, all the testimony offered on the trial touching the issues of negligence upon the part of the appellant, and contributory negligence upon the part of the injured employee Vincent. We deem it unnecessary to here set forth the testimony touching these issues for the reason that we are clearly convinced that both these issues were properly submitted to the jury under the decisions in the cases of Byars v. Alabama Power Company, 233 Ala. 533, 172 So. 621; Alabama Power Company v. Byars, Ala. Sup., 181 So. 270; and Hardy v. City of Dothan, 234 Ala. 664, 176 So. 449. The evidence in the instant case, to the extent that it may be said to be different in its probative force, from the evidence in the Byars Cases, cited above, is much stronger in its indications of negligence upon the part of the defendant, and much weaker in its indications of contributory negligence upon the part of the injured person.
Appellant's argument that the judgment in the circuit court of Jefferson County wherein Vincent was awarded compensation was contrary to the "only basis authorized by the Workmen's Compensation Law of Alabama" is disposed of by the finding of fact by the trial court in that proceeding as follows: "The court further finds that 50% of the difference between the petitioner's average weekly earnings at the time of receiving said injuries and the average weekly earnings he is able to earn in said partially disabled condition, amounts to the sum of $4.31." This finding, in keeping with which the award of compensation was made, was in exact accordance with that portion of subdivision "(c)" of section 7551 of the Code of Alabama which reads as follows: "In all other cases of permanent partial disability not above enumerated, the compensation shall be fifty per cent of the difference between the average weekly earnings of the workman at the time of the injury and the average weekly earnings he is able to earn in his partially disabled condition, subject to a maximum of twelve dollars per week as otherwise provided herein."
Concerning appellant's argument that "Appellee did not introduce in evidence the contract it made Exhibit "A" to its complaint as amended," such argument itself implies that there existed a contract of the tenor of that made Exhibit "A" and in fact that the document which was made Exhibit "A" was in truth and in fact a duly executed contract between the defendant and Brantley Company. Thus in effect the appellant complains not that there did not exist such a contract as was made Exhibit "A" to the complaint. On the contrary, appellant in effect concedes that the document which was made Exhibit "A" to the complaint was in fact duly executed; and appellant's only complaint is that the appellee did not formally and in terms introduce the contract as a part of the evidence in the case. Moreover, the witness, C. S. Lawson, who was called by the appellant, and who was the blast furnace superintendent of the appellant, testified at the instance of the appellant as follows: "I do recall the occasion of Brantley Company entering into a contract with the Sloss Company to do some painting out here at North Birmingham Furnace." In the circumstances of this witness' testimony, we think such testimony could only have had reference to the contract alleged by the appellee. The transcript of the record fails to disclose that any question was raised upon the trial of the failure of the appellee to introduce the alleged contract in evidence, otherwise than might inhere in the simple request, without more by the appellant, for the general affirmative charge in its favor. In its oral charge to the jury, the trial court said: "If you are reasonably satisfied from the evidence that the Sloss Company was guilty of negligence as alleged in this complaint, and that that negligence was the proximate cause of Mr. Vincent's injuries, why, then bring in a verdict for the plaintiff in this case unless you are further reasonably satisfied by the evidence that Mr. Vincent himself was guilty of contributory negligence, and that that negligence on his part was the proximate cause of his injuries." The appellant took no exception to this portion of the court's oral charge; nor, in fact to any part of the court's oral charge, which taken as a whole indicates that no point was being made by appellant that the contract alleged did not in fact exist. In these circumstances, we are unwilling to reverse the judgment on account of the failure of the appellee to formally offer the contract in evidence. Seaboard Air Line Railway Company v. Johnson, 217 Ala. 251, 115 So. 168; Strickland v. Davis, 221 Ala. 247, 128 So. 233; Sovereign Camp, W. O. W., v. Dennis, 17 Ala. App. 642, 87 So. 616, certiorari denied 205 Ala. 316, 87 So. 620; Circuit Court Rule 35.
It is true that the appellee did not expressly and in terms prove that the appellant at the time of Vincent's injury was subject to Article 2 of the Workmen's Compensation Law of Alabama. Nevertheless it appeared that the appellant was an employer at the time of Vincent's injury, and there being no evidence to the contrary, it will be presumed that appellant was subject to the Workmen's Compensation Law of Alabama. Section 7547, Code of 1923. Moreover, no insistence was made by the appellant in the trial court that it was not subject to the Workmen's Compensation Law of Alabama at the time of Vincent's injury.
We are not convinced that there was error in denying appellant's motion for a new trial.
Finding no error in the trial court's rulings, upon the points of decision argued by the appellant, it is ordered that the judgment of the trial court be and is hereby affirmed.
Affirmed.