Alabama Concrete Pipe Co. v. Berry

• Decision Date: 12 January 1933
• Docket Number: 6 Div. 223.
• Citation: 226 Ala. 204,146 So. 271
• Parties: ALABAMA CONCRETE PIPE CO. v. BERRY et al.
• Court: Alabama Supreme Court

146 So. 271

226 Ala. 204

ALABAMA CONCRETE PIPE CO. v. BERRY et al.

6 Div. 223.

Supreme Court of Alabama

January 12, 1933

Rehearing Denied March 2, 1933.

Certiorari to Circuit Court, Jefferson County; John Denson, Judge.

Proceeding under the Workmen's Compensation Act to recover compensation on account of the death of an employee by Irene Berry, a minor, suing by her next friend, Alice Z. Berry, and another, against the Alabama Concrete Pipe Company. Judgment awarding compensation, and the employer brings certiorari.

Writ denied.

Murphy Hanna, Woodall & Lindbergh, of Birmingham, for appellant.

London Yancey & Brower and J. Kirkman Jackson, all of Birmingham for appellees.

KNIGHT Justice.

Irene Berry, a minor, suing by her next friend, filed her complaint in the circuit court of Jefferson county against the petitioner here, the Alabama Concrete Pipe Company, seeking the recovery of compensation for the death of her father Elvie R. Berry, whose death, she alleged, was caused by an accident arising out of and in the course of his employment. His death occurred on October 2, 1931.

It was admitted in the answer of the defendant that the said Elvie R. Berry on October 2, 1931, was an employee of the Alabama Concrete Pipe Company, a body corporate, and that the said Elvie R. Berry and the said company, on said date, were subject to the provisions of the Workmen's Compensation Act of Alabama (Code 1928, § 7534 et seq.), in and about the work the said Berry was performing for the defendant on said day.

The defendant, however, denied that the deceased was acting within the line and scope of his employment when he was injured, and the defendant also denied that the injury and death of the deceased arose out of and in the course of his employment by defendant, or were due to an accident which arose out of or in the course of his employment. Defendant charged that the injury and death of the said Elvie R. Berry were caused by the willful misconduct of said Berry, or his intention to bring about his death or injury, or the same was caused by his willful failure or willful refusal to use safety appliances provided by the defendant as his employer, or the same was caused by willful breach by deceased of a reasonable rule or regulation of the defendant, which was known to the deceased.

The defendant also filed a demurrer to the amended complaint, and it is here insisted that the court committed error in overruling this demurrer.

While technical precision in pleading is not required in cases arising under the Workmen's Compensation Act, yet a careful reading of the amended complaint discloses that it is not subject to any ground of demurrer interposed, and here argued. Cohen v. Birmingham Fabricating Co., 224 Ala. 67, 139 So. 97; Ex parte Sloss-Sheffield Steel & Iron Co., 207 Ala. 531, 93 So. 425.

It is earnestly insisted that the trial court did not fully and fairly set out the facts in its finding of facts in the case, in that the court wholly failed to set out any part of the evidence offered by the defendant tending to show that the defendant had an established rule, which forbade its truck drivers, and those working upon the trucks, and riding thereon, from jumping on and off the trucks until the trucks were first brought to a stop; and also failed to set out, in its finding of fact, that the deceased was warned, just before he stepped from the moving truck, that the driver intended to stop it, in order that he might alight; and that, notwithstanding this warning, the deceased alighted from the truck, before it was brought to a stop, remarking: "Oh hell: I can make it."

It is also urged that this court can and will look to the bill of exceptions in such cases "to determine the question of law, whether there was any substantial evidence before the court to support the court's findings, or any material part thereof."

This court, in the case of Ex parte Sloss-Sheffield Steel & Iron Co., 207 Ala. 219, 92 So. 458, committed itself to the proposition that, when the judge has not complied with the mandatory requirements of the statute, as to setting out a full and fair statement of the facts, the aggrieved party is entitled to a bill of exceptions for the purpose of getting the facts before this court. So, the petitioner in this case has presented here his bill of exceptions, which purports to set out in extenso the evidence introduced on the trial of the cause.

The insistence that the defendant was not given, within ninety days after the accident, notice of said accident, and of the death of the deceased, and that compensation would be claimed therefor, is wholly untenable, and...