Bell v. General Am. Transp. Corp.

Decision Date09 May 1973
Citation290 So.2d 184,52 Ala.App. 123
CourtAlabama Court of Civil Appeals
McMillan & Spratling, Birmingham, for appellant

London, Yancey, Clark & Allen, Birmingham, for appellee.

HOLMES, Judge.

This is a workmen's compensation case. The only matter presented by the appeal is whether the accident and resulting injuries to Ocie Bell arose out of and in the course of his employment with appellee, General American Transportation Corporation, a corporation.

From 1961 until October 31, 1969, the date of the accident, Ocie Bell, the appellant, hereinafter referred to as Bell, worked for General American Transportation Corporation, hereinafter referred to as employer, as a welder.

The employer constructed gasoline storage tanks on job sites throughout the southeastern part of the United States. When the services of Bell were required the employer would contact Bell and inform him where he was to report to work.

Prior to the accident in question the employer contacted Bell at his home in Jasper, Alabama, and informed him to report to a job site in North Carolina. As found by the trial court in its findings of fact, there existed an agreement that Bell was to be paid his expenses of travel on a mileage basis. This travel expense included travel allowance from his home in Jasper, Alabama, to the job site and return home to Jasper. This mileage expense was paid in this instance upon Bell leaving North Carolina.

On Thursday, October 28, 1969, Bell completed his work at the North Carolina job site. Sometime prior to his departure he had been informed to report to another job site of employer located in Collins, Mississippi. He was to be in Collins, Mississippi, on November 3, 1969. The learned trial judge, in his findings of fact, correctly determined that under the agreement of the parties Bell would have been paid his travel expense on a mileage basis from Jasper, Alabama, to Collins, Mississippi, and his return home to Jasper, Alabama. On October 31, 1969, while traveling from the North Carolina job in his own private vehicle to his home in Jasper by a direct route, he was involved in an automobile accident approximately twenty-five miles from Birmingham, Alabama. Bell was gravely injured, losing his right leg, the use of his left leg, and was in a comatose condition for six weeks.

The trial court further found that Bell was not required to use his automobile on the job site, nor was he instructed how or where to travel when he left the job, but In addition to the above, there was evidence that there existed a contract between the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers, and Helpers and Employers, and the employer which provided in pertinent part as follows:

was paid travel expense to his home on a mileage basis determined by the most direct route from a map. This determination of the most direct route was made by the employer.

'ARTICLE 16. Transportation

'It is the intention of the parties that employment of all men commences and ends at the job site. However, in recognition of travel costs incurred by the men before commencement and after termination of their employment the following shall govern:

'(16a) When a national transient boilermaker is authorized to travel at the Contractor's expense from where he is to his next work or from the job from which he was laid off to the point from which he was hired or his home, whichever is less, he shall be allowed a transportation allowance for miles traveled at the rate of 10 cents per mile for the first 200 miles or less, 14 cents per mile for the next 300 miles; or less, and 17 cents per mile for any distance over 500 miles. Transportation allowances may be determined in advance at the option of the Contractor with mileage over the most direct main traveled route as determined from the Rand McNally Atlas. Men paid on a straight time salary basis or men paid on a guaranteed basis of forty (40) hours will be paid 10 cents per mile regardless of the distance traveled.'

From the above the trial court made the following conclusion of law:

'The main issue between the parties in this case is whether or not the injuries received by the plaintiff in said automobile accident arose out of and in the course of his employment by the defendant. If the plaintiff suffered injuries by an accident arising out of and in the course of his employment the plaintiff would be entitled to recover. On the other hand, if the plaintiff did not suffer injuries from an accident which arose out of and in the course of his employment by the defendant, the plaintiff would not be entitled to recover. The court concludes from the findings of fact herein that the accident in which the plaintiff was injured did not arise out of and in the course of his employment by the defendant. That the plaintiff was on his way home at Jasper, Alabama at the time of the accident and not in the employment of the Defendant.'

It is clear from the above that the trial court based its decision that Bell was not covered under the workmen's compensation laws of this state because he was on his way home to Jasper, Alabama, at the time of the accident and, therefore, not in the employ of the appellee.

We believe the trial court's conclusion that employee's injury did not arise out of and in the course of his employment is inconsistent with the facts found by the court. We are, of course, mindful that if there is any reasonable view of the evidence that will support the conclusion reached by the trial court, its finding and judgment will not be disturbed here. 19A Ala.Dig., Workmen's Compensation, Key 1940.

As our Presiding Judge Wright stated in Union Camp Corporation v. Blackmon, 49 Ala.App. 229, 270 So.2d 104, 106:

'(W)hether an accident arose out of and in the course of employment must depend upon the facts and circumstances of each case. No exact formula can be set forth which will automatically solve every case. . . .'

It is clear that, as a general rule, accidents occurring while an employee is traveling to and from work are not considered 'However, in the majority of cases involving a deliberate and substantial payment for the expense of travel, or the provision of an automobile under the employee's control, the journey is held to be in the course of employment. This result is usually correct, because when the subject of transportation is singled out for special consideration it is normally because the transportation involves a considerable distance, and therefore qualifies under the rule herein suggested: that employment should be deemed to include travel when the travel itself is a substantial part of the service performed . . .. The fact that . . . the provisions of transportation or transportation expenses is actually held out as an inducement to accept employment is a material factor supporting compensability. A fortiori, when acceptance of employment is conditional on the furnishing of transportation, the journey has become a part of the service contracted for.'

'arising out of and in the course of his employment.' Gilmore v. Rust Engineering Co., 289 Ala. 46, 265 So.2d 591; Barnett v. Britling Cafeteria, 225 Ala. 462, 143 So. 813; Sloss-Sheffield Steel and Iron Co. v. Thomas, 220 Ala. 686, 127 So. 165; 99 C.J.S. Workmen's Compensation § 232. However, there are exceptions to this general rule. One such exception is when the transportation constitutes a part of the consideration paid to the employee for his services. Professor Larson, in his work on workmen's compensation law, in Vol. 1, § 16.30, of Workmen's Compensation Law, makes the following comment regarding the above stated exception:

Our supreme court, in Ammons v. McClendon, 263 Ala. 651, 652, 83 So.2d 239, 240, recognizes this exception. In Ammons, an employee, while on the way home (as in...

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