Barnett v. Britling Cafeteria Co.

• Decision Date: 30 June 1932
• Docket Number: 6 Div. 140.
• Citation: 143 So. 813,225 Ala. 462
• Parties: BARNETT v. BRITLING CAFETERIA CO.
• Court: Alabama Supreme Court

143 So. 813

225 Ala. 462

BARNETT v. BRITLING CAFETERIA CO.

6 Div. 140.

Supreme Court of Alabama

June 30, 1932

Rehearing Denied Oct. 27, 1932.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Action for damages by Mrs. Charles C. Barnett against the Britling Cafeteria Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

KNIGHT GARDNER, and BROWN, JJ., dissenting.

Robert W. Smith and Robert E. Smith, both of Birmingham, for appellant.

B. F Smith, of Birmingham, for appellee.

ANDERSON C.J.

It is undisputed that the plaintiff was an employee of the defendant at the time of her injury and was within the Workmen's Compensation Act (Code 1923,§§ 7534-7597), but the controverted question is, Was she acting within the line and scope of her employment at the time she was injured?

The proof shows that she sustained her injury by slipping on the sidewalk immediately in front of the defendant's place of business and while on her way to report for duty and just before entering the way used by all employees for the purpose of discharging the duties to which they were employed. The sidewalk in front of the defendant's place of business, while a public one and used by the public generally, was also used by the defendant as a necessary connection with its business. It was used not only by the public generally in passing, but as the only way of entrance to defendant's place of business by his customers and his employees as well. Not only this, but the defendant made use of it for other purposes in connection with his business, in fact, had used the sidewalk at or about that time for the purpose of washing the plate glass windows on the outside.

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. Honnold on Workmen's Compensation, §§ 107 and 109. Indeed, our own court is in line with the foregoing, and, after stating that the employee need not necessarily be in the actual discharge of a duty connected with the employment, says: "Within the purview of such naturally related and incidental acts in the course of the employment is the movement of the employee in entering, at the appropriate time, the employer's premises to discharge his function; his preparation to begin and to terminate his actual service; and to leave the premises at an appropriate time after the completion of his actual service." Jett v. Turner, 215 Ala. 352, 110 So. 702, 704; Benoit Coal Mining Co. v. Moore, 215 Ala. 220, 109 So. 878, and cases cited.

The plaintiff reached the defendant's place just before time to punch the clock and go to work, but just before entering, and a few feet from the entrance, and while on the way to said entrance, she slipped on the ice on the sidewalk and sustained her injuries. True, she had not entered the defendant's place of business, but was upon the eve of doing so, and the opinion of Justice KNIGHT attaches great importance to the fact that she had not actually entered, but was upon a public street when injured. True, the sidewalk was a public highway, but so much thereof as was in front of the defendant's place of business was a necessary adjunct and used in connection with the business and in which the plaintiff was employed, and the sidewalk was, to a limited degree, and purpose, a part of the defendant's premises.

In the case of Meucci v. Gallatin Coal Co., 279 Pa. 184, 123 A. 766, the court held that the word "premises," as appearing in the Compensation Act, does not include all property owned by the employer, but does embrace that used in connection with the actual place of work where the employer carries on the business in which the employee is engaged. To like effect is the case of Northwestern Fuel Co. v. Industrial Com., 197 Wis. 48, 221 N.W. 396. In each of these cases the employee was injured upon a public road which went through the employer's plant or works, and the defense was made that the employee was not within the Compensation Act because the injury occurred in a public road. The court held that made no difference, as the road was used in connection with the place of work where the employer carried on the business in which the employee was engaged.

In the case of Redner v. Faber & Son, 180 A.D. 127, 167 N.Y.S. 242, the court held that an employee, who had gone from the working place to another place for defendant across the street, and upon returning he had reached a point near the curb line in front of the factory where employed he slipped upon the snow and ice in the street and received injuries, was within the Workmen's Compensation Act.

In the case of Industrial Com. of Ohio v. Barber, 117 Ohio St. 373, 159 N.E. 363, the Ohio court held that an employee, who for the purpose of reaching his place of employment travels a course which affords the only unobstructed access thereto, enters upon the course of his employment within the contemplation of the Workmen's Compensation Law when he reaches the zone of such employment that is under the control of his employer, even though such zone be outside the inclosure of the employer. The employee, in this case, was injured about five minutes before time to go to work, when on his way, from twenty to forty feet from the gate going into the plant and while on a public street at a place crossed by the Baltimore & Ohio Railroad.

The New York case, supra, recognized the English rule as to street accidents to which every one using the highway was equally liable after termination of the hours of employment, but draws the line when the employee is engaged in, or about to engage in, his labors and when within the zone of his place of work notwithstanding the accident may have actually occurred in a street.

The judgment of the circuit court is affirmed.

Affirmed.

THOMAS, BOULDIN, and FOSTER, JJ., concur.

GARDNER, BROWN, and KNIGHT, JJ., dissent.

BOULDIN, J. (concurring).

The hazard causing this injury, slippery ice on the sidewalk, was incident to and grew out of the operation of the employer's business.

The zone of danger to employees from the operation of a business is a material factor in defining the premises of the employer.

The fundamental basis of compensation laws is to cast upon the business itself a part of the burden of accidents to employees growing out of the relation of employer and employee rather than leave the entire burden to be borne by the employee, the victim of accident.

The employee here was at this place because of her employment, her movement in course of her employment. The time and place, the hazard, the presence and movements of the injured, were all so closely related to the employment, that I am impelled to concur in the opinion of Chief Justice ANDERSON, holding the injury arose out of and in course of the employment within the meaning of our Workmen's Compensation Law (Code 1923, §§ 7534-7597), always to be liberally construed to award rather than to deny compensation.

KNIGHT J. (dissenting).

The plaintiff, appellant here, filed this suit in the circuit court, seeking to recover damages of the defendant for personal injuries alleged to have been received by her on or about January 15, 1931, by being caused to fall, by reason of an alleged negligence of defendant, upon one of the streets of the city of Birmingham, in front of the place of business of the defendant. The plaintiff states her case against the defendant in four counts. In the first count the plaintiff avers that, while she was passing the premises of the defendant, and as a member of the public, she slipped and fell upon ice which had been permitted to form or accumulate on the sidewalk in front of said premises, which said sidewalk was a part of twentieth street, of the city of Birmingham, and was a public street, through the negligence of the defendant, thereby causing her to be thrown violently to the sidewalk. Then follows a catalogue of plaintiff's injuries. Count 1 concludes: "And plaintiff avers that the proximate cause of her aforesaid wrong and injuries was in this: that it negligently permitted the premises in front of said cafeteria to become unsafe for public use."

The third count is for a willful, wanton, or intentional wrong. The fourth count adopts all of the first count down to and including the words, "she slipped and fell upon ice which had been permitted to form or accumulate on the sidewalk in front of said premises through the negligence of the defendant," and then adds the following averment thereto: "And in violation of section 1708 of the Code of the city of Birmingham, Alabama, for 1917."

To the complaint, the defendant filed the plea of the general issue and a special plea, numbered 3, in which the defendant sought to set up the provision of the Workmen's Compensation Act in bar of the...