Atchison v. Horton

FAULKNER, Justice.

This is an appeal from an order of the Circuit Court of Jefferson County, dismissing a wrongful death suit against co-employees. We affirm.

On May 14, 1975, Ben Atchison was electrocuted while working in the scope of his employment. On February 10, 1976, Odina Atchison, wife of the decedent, brought a wrongful death suit against five of his coworkers for negligently failing to provide the decedent with a reasonably safe place to work and with reasonably safe equipment for work. The co-workers filed a motion to dismiss on the basis of the Workmen’s Compensation Act, in particular, Title 26, § 312 of the Code of Alabama 1940, as amended 1973. Atchison claimed that § 312, as it existed prior to the 1975 amendment, permitted suits against a co-employee as a third party. The trial court granted the motion to dismiss. Atchison appeals this order.

There are two issues: (1) whether the 1973 amendment to Tit. 26, § 312 of the Code of Alabama as it appeared in the 1973 cumulative supplement was validly enacted, and (2) whether the 1975 amendment to Tit. 26, § 312 of the Code of Alabama was applicable to a cause of action which arose shortly before the amendment was passed and on which suit was filed shortly after the amendment was passed.

As to the first issue of whether the 1973 amendment was validly enacted, we follow the holding of Childers v. Couey, Ala., 348 So.2d 1349, rendered this date by this court, and hold that it was.

Because we hold that the 1973 amendment was validly enacted and, thus, co-employees could not be sued, we need not decide the second issue as to the retrospective application of the 1975 amendment.

The order of the trial court dismissing the action is affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH and EMBRY, JJ., concur. ALMON, J., concurs in the result. MADDOX, JONES, SHORES and BEAT-TY, JJ., dissent.