Bell v. General American Transp Corp.

• Decision Date: 07 February 1974
• Citation: 290 So.2d 189,292 Ala. 708
• Parties: In re Ocle BELL v. GENERAL AMERICAN TRANSPORTATION CORP. Ex parte GENERAL AMERICAN TRANSPORTATION CORPORATION, a corporation. SC 439.
• Court: Alabama Supreme Court

Page 189

290 So.2d 189

292 Ala. 708

In re Ocle BELL v.GENERAL AMERICAN TRANSPORTATION CORP. Ex parte GENERAL AMERICAN TRANSPORTATION CORPORATION, a corporation.

SC 439.

Supreme Court of Alabama.

Feb. 7, 1974.

Rehearing Denied March 7, 1974.

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

McMillan & Spratling, Birmingham, for respondent.

JONES, Justice.

On preliminary examination, the petition for the writ of certiorari to the Court of Civil Appeals was granted.Upon further consideration, we hold that the writ was improvidently granted and is due to be quashed.

Writ quashed.

HEFLIN, C.J., and HARWOOD, BLOODWORTH, MADDOX, McCALL, and FAULKNER, JJ., concur.

MERRILL and COLEMAN, JJ., dissent.

COLEMAN, Justice (dissenting):

Certiorari was granted to review a decision of the Court of Civil Appeals reversing a judgment which denied recovery under the workmen's compensation laws.Title 26, § 253 et seq., 1958 Recompiled Code of Alabama 1940.

The statement of facts in the opinion of the Court of Civil Appeals, 52 Ala.App. 123, 290 So.2d 184 is as follows:

"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 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.

"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:

" '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.' "

If there is any legal evidence, or reasonable inference from legal evidence, to support the finding of facts of the trial court in a workmen's compensation case, such finding is conclusive, and the judgment rendered thereon will not be disturbed.Horton v. DeLoach, 276 Ala. 357, 162 So.2d 453.

In defining the phrases "arising out of" and "in the course of,"this court in Queen City Furniture Co. v. Hinds, 274 Ala. 584, 150 So.2d 756, quoted fromWooten v. Roden, 20 Ala. 606, 71 So.2d 802, as follows:

" 'The words "arising out of" involve the idea of causal relationship between the employment and the injury, while the term "in the course of" relates more particularly to the time, place and circumstances under which the injury occurred.The phrases are not synonymous; where both are used conjunctively a double condition has been imposed, and both terms must be satisfied in order to bring a case within the act.58 Am.Jur. 717.Generally, an injury arises out of an employment only when there is a causal connection between the injury and the conditions under which the work is required to be performed.

"***

" ' "The injury contemplated by the act must have had its origin in some risk of employment.It must arise out of and in the course of the employment or be incident thereto.*** A risk is incident to the employment when it belongs to or is connected with duties a workman has to perform under his contract of service." ' "(274 Ala. at 588, 150 So.2d at 759)

Wooten, supra, also stated:

"To justify recovery under the Workmen's Compensation Act, the rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency.Garrett v. Gadsden Cooperage Co., 209 Ala. 223, 96 So. 188;Madden's Case, 222 Mass. 487, 111 N.E. 379, L.R.A.1916D, 1000."(260 Ala. at 611, 71 So.2d at 806)

As a general rule, accidents occurring while an employee is traveling to and from work are not considered arising out of and in the course of him employment.Barnett v. Britling Cafeteria Co., 225 Ala. 462, 143 So. 813.However, there are exceptions to this general rule.One applies when such transportation constitutes a part of the consideration paid to the employee for his services.Gilmore v. Rust Engineering Company, 289 Ala. 46, 265 So.2d 591.Such a payment has the effect of extending the employment to include travel time, and the risks involved in travel thereby become incident to the employment.In Gilmore, supra, the circuit court had sustained a demurrer to the complaint and the plaintiff took a nonsuit.The complaint showed that the employee was killed in a motor vehicle accident while he was returning home from work.The Court of Civil Appeals reversed and certiorari was granted by this court.Under an agreement between his union and his employer, he was to be paid $3.00 per day travel expenses.In quashing the writ of certiorari, this court quoted from Section 16.30 of Vol. 1 of Larson's Workmen's Compensation Law:

" '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.' "(289 Ala. at 51, 265 So.2d at 595)

Also, in this connection, this court stated in Ammons v. McClendon, 263 Ala. 651, 83 So.2d 239:

"As to whether or not McClendon was where his service required his presence as a part of such service at the time of the accident and during the hours of...