Baggett Transp. Co. v. Holderfield

• Decision Date: 11 August 1953
• Docket Number: 7 Div. 195
• Citation: 68 So.2d 21,260 Ala. 56
• Parties: BAGGETT TRANSP. CO. v. HOLDERFIELD.
• Court: Alabama Supreme Court

Page 21

68 So.2d 21

260 Ala. 56

BAGGETT TRANSP. CO. v. HOLDERFIELD.

7 Div. 195.

Supreme Court of Alabama.

Aug. 11, 1953.

Rehearing Denied Nov. 27, 1953.

Lange, Simpson, Robinson & Somerville and Reid B. Barnes, Birmingham, for appellant.

Copeland & Copeland and Geo. C. Hawkins, Gadsden, for appellee.

MERRILL, Justice.

Certiorari was granted on petition of Baggett Transportation Company, a corporation, to review a final judgment of the Circuit Court of Etowah County awarding compensation to the plaintiff, R. E. Holderfield, for injuries received while he was an employee of said company. The proceedings were instituted in the trial court under the Alabama Workmen's Compensation Law, chapter 5, Title 26, Code 1940.

The trial judge made a full statement of the facts, his conclusions thereon and his views of the law applicable thereto. We do not set out the statement in full but merely state the effect of the findings which are applicable to this appeal.

Plaintiff's complaint stated a cause of action and included this statement: 'Plaintiff admits that defendant has paid to him the sum of $357 as compensation for and on account of the injuries alleged herein, and plaintiff is informed that defendant company has paid hospital and doctors bills in the sum of approximately $400 for medical care received by him on account of said injuries.' It is admitted by both parties that plaintiff and defendant were subject to the Workmen's Compensation Act of Alabama at the time the injuries occurred.

The answer of defendant alleges that plaintiff was paid his full wages of $51 per week for seven weeks ($357) while plaintiff was disabled from doing any work as a result of his injuries, and claims a set-off against plaintiff in the sum of $420.25 due by promissory note executed by plaintiff to the American National Bank of Gadsden, Alabama, which defendant had endorsed as surety and had paid and which was transferred to the defendant.

The plaintiff was working for defendant on September 12, 1950. During that day and prior thereto, some of defendant's employees were engaged in a strike or work stoppage and were picketing the entrance to defendant's Gadsden terminal. Plaintiff was employed to fill the job of truck driver formerly held by one of the striking employees, and the employees showed resentment toward plaintiff by calling out in a threatening manner as plaintiff drove in and out of defendant's terminal in the truck assigned to him. On September 12th plaintiff had performed his duties in a normal manner and had no contact or discussion with the men on the picket line, except when he went in and out of the premises, at which time the strikers would call out to him. He entered the premises of the defendant on his last run at approximately 4:00 P.M. and punched his time card at approximately 6:30 P.M. He and other employees waited for a considerable length of time at the suggestion of defendant's manager before attempting to leave the terminal and pass through the picket line. At approximately 7:30 P.M. plaintiff left the defendant's premises in his automobile occupied by two other persons, one of whom was also an employee, and set out for his home which was about seventeen miles from Gadsden. Immediately upon his leaving two of the striking employees who had made threatening remarks, followed him in an automobile together with another automobile containing striking employees. They pursued plaintiff at close range and at high speed as he drove away from the terminal toward the City of Gadsden on the public highway. He saw them and attempted to elude them by swerving off Third Street to First Street at an intersection. One pursuing car failed to make the turn and continued down Third Street and reentered First Street at the intersection of Bay and First and picked up the close pursuit. At the intersection of First and Broad Street, which is approximately one mile from the defendant's terminal, the pursuing cars forced plaintiff to the curb. As he alighted from his automobile, having been forced to stop, one of the strikers shot him with a shotgum wounding him in the left leg, right thigh, scrotum and other parts of the body.

There is no question but that when the plaintiff left the terminal in his car and while he was driving on the public streets of Gadsden to the point where he was forced to stop by the strikers, he had finished all of his duties for the day, was on his way home and his intention was not to return to his work until the next morning.

Appellant does not complain of the amount of the award in the event it is found to be liable.

This case turns on the construction of Title 26, § 262, subsection (j), which reads:

'Without otherwise affecting either the meaning or interpretation of the abridged clause, injuries by an accident arising out of and in the course of his employment, it is hereby declared: Not to cover workmen except while engaged in, on, or about the premises where their services are being performed, or where their services require their presence as a part of such service at the time of the accident, and during the hours of service as such workmen, and shall not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment, and it shall not include a disease unless the disease results proximately from the accident.'

As we understand it, appellant does not insist that the accident in question did not arise out of plaintiff's employment, but the question is was the accident 'in the course of his employment,' since his injuries occurred about one mile from defendant's premises while he was going home from his work in his own automobile.

At the outset we enumerate several applicable principles heretofore declared by this Court. In Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So.2d 666, 668, this Court said:

'This court long ago announced the rule governing our review of cases arising under the Workmen's Compensation Act. We have uniformly held that if there is any reasonable view of the evidence that will support the conclusion reached by the trial court, the finding and judgment will not be disturbed. Ex parte Sloss-Sheffield Steel & Iron Co., 207 Ala. 219, 92 So. 458. For later cases see Houser v. Young, 247 Ala. 562, 25 So.2d 421; Malbis Bakery Co., Inc., v. Collins, 245 Ala. 84, 15 So.2d 705.'

In Barnett v. Britling Cafeteria Co., 225 Ala. 462, 143 So. 813, 85 A.L.R. 85, the Court said:

'It is, of course, the general rule that, if an employee is injured while going to or from his work to his home, or to or from some point not visited for the discharge of a duty arising out of the employment, or while in the use of a public highway used by the public generally, he does not come within the protection of the Workmen's Compensation Act. But there is an exception to the general rule, and the employment is not limited by the actual time when the workman reaches the scene of his labor and begins it nor when he ceases, but includes a reasonable time, space, and opportunity before and after while he is at or near his place of employment. One of the tests is whether the workman is still on the premises of his employer. This, while often a helpful consideration, is by no means conclusive. A workman might be on the premises of another than his employer, or in a public place, and yet be so close to the scene of his labor, within its zone, environments, and hazard as to be, in effect, at the place and under the protection of the act.'

In Benoit Coal Mining Co. v. Moore, 215 Ala. 220, 109 So. 878, 880, we find:

'As to whether or not an accident is one arising out of and in the course of the employment must depend upon the particular facts and circumstances, and as said in Cudahy Packing Co. v. Parramore, 263 U.S. 418, 44 S.Ct. 153, 68 L.Ed. 366, 30 A.L.R. 532, 'No exact formula can be laid down which will automatically solve every case.''

In Southern Cotton Oil Co. v. Bruce, supra, it was said:

'The phrase 'in the course of his employment' refers to the time, place, and circumstances under which the accident took place. An injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incident to it. Mobile Liners, Inc. v. McConnell, 220 Ala. 562, 126 So. 626.'

We do not find agreement in other jurisdictions where the injury did not occur on the premises of the employer. Most of the cases in other jurisdictions cite one of two caes decided by the Court of Appeals of New York, which, while they can be distinguished on the facts, appear to reach different conclusions. The first case, decided in 1923, is Lampert v. Siemons, 235 N.Y. 311, 139 N.E. 278, 279. Lampert was an employee and was continuing to work during a strike. He sought protection from his employer in going to and from his work, and Mr. Siemons, the company president, had the general manager accompany Lampert from the factory to his home at night and to call for him in the morning and come with him to his place of work. One morning the general manager was unable to accompany Lampert and Lampert was met on his way to work by one of the strikers who assaulted him, causing permanent injury to his eye. It was conceded that the injury arose out of his employment. The question was whether it was received in the course of his employment. We quote two paragraphs from the opinion, wherein the court said:

'Had there been no strike, Lampert's employment would have ended when he left the factory at 134 West Thirty-Ninth street. His work was indoor work as foreman of the operating room. There was no work for Lampert to do for his employer after he left the factory at night and before he reached there in the...