Benoit Coal Min. Co. v. Moore

• Decision Date: 14 October 1926
• Docket Number: 6 Div. 735
• Parties: BENOIT COAL MINING CO. et al. v. MOORE et al.
• Court: Alabama Supreme Court

109 So. 878

215 Ala. 220

BENOIT COAL MINING CO. et al. v. MOORE et al.

6 Div. 735

Supreme Court of Alabama

October 14, 1926

Rehearing Denied Nov. 11, 1926

Certiorari to Circuit Court, Walker County; R.L. Blanton, Judge.

Petition of the Benoit Coal Mining Company and the American Mine Owners' Mutual for certiorari to the circuit court of Walker county to review the finding and judgment of that court in a proceeding under the Workmen's Compensation Act by Dovie Moore and others against the petitioner. Transferred from Court of Appeals, under Code 1923, § 7326. Writ denied, and judgment affirmed.

Percy Benners & Burr, of Birmingham, for appellants.

J.D Acuff, of Jasper, for appellees.

GARDNER J.

Petition for certiorari to review the judgment of the court below awarding compensation under the Workmen's Compensation Statute (Code 1923, §§ 7534-7597), to the widow and dependent children of Walter Moore, deceased.

The said Moore was killed on Monday, August 25, 1924, by a passenger train on the main line of the St. Louis-San Francisco Railway Company. He had, just a few minutes before been in conversation with the superintendent of the Benoit Coal Mining Company upon its premises, and walked about 100 feet to and upon the track where he met his death.

It is first insisted that said Moore was not an employee of the petitioner, the Benoit Company, and, in the second place, if held to be such employee, the accident resulting in his death was not one "arising out of and in the course of his employment." Section 7534, Code of 1923. The first contention rests upon the theory that said Moore was employed only conditionally, by the superintendent, in the conversation had just previous to the accident; that is, the superintendent had informed Moore that he would be so employed, if those at the office approved, and only in that event; and that Moore, at the time of the accident, was on his way to the office for that purpose, and to receive his check number, if he was found acceptable. But there was evidence to the contrary. We have reference to the testimony of the son and widow of deceased, and also one Wakefield, to the effect that deceased was employed the Friday before Monday, the day on which he was killed, and that he had received a laborer's check; that defendant "gave him a job" on that day, a laborer's pass check, and instructions to report at the mines for work Monday morning.

Much of the argument reflects upon the credibility of this testimony. The review in this court, however, is by certiorari and not by appeal. As said in Ex parte Little Cahaba Coal Co., 213 Ala. 596, 105 So. 648:

"This court will not look to the bill of exceptions to find the weight of the testimony as to any fact found by the trial court, but simply to see if there is any evidence or reasonable inferences from evidence to support the facts found by the court."

And in Ex parte Coleman, 211 Ala. 248, 100 So. 114, the court said:

"It has been thoroughly and finally settled by the decisions of this court that, 'If, on any reasonable view of the evidence, it will support the conclusion reached in the trial court, the finding and judgment will not be disturbed.' "

Following this well-established rule, it must be held that there is evidence to support the conclusion reached by the trial court that deceased was an employee of the Benoit Company at the time he was killed, and such finding is here conclusive.

Like considerations determine the second question presented, as to whether or not the accident was one arising out of and in the course of his employment. The testimony of the son of deceased is to the effect that on Monday morning his father was on the premises of the Benoit Company in conversation with its superintendent, who assigned him a place to work; that he left the superintendent and "started across the railroad track and started to work"; that "he was going the way they usually traveled," when he was killed, and had gone about 75 feet. The witness further testified:

"The work he was going to was in the same side of the railroad as the place where he was talking to this man. I had seen men going the same route my father went. That was the way they commonly traveled. The thing that prevented his going on the same side of the railroad or the reason he didn't go, the tipple is on the right hand side of the railroad. There was a box car dumping there--started across the track to the other side. That was the track that was commonly traveled down there, and then he hit the dirt road where cars traveled. It is about 150 yards from the place where my father was talking to this man to the place where he was going to work."

If it be conceded that further examination of the testimony of this witness discloses some inconsistencies and uncertainty, this is a matter going to its weight, a question for determination of the trial court, as above noted.

According to this witness, the place of work was only 150 yards from where deceased was standing while talking to the superintendent Dickerson, and, while it was on the same side of the railroad, this witness testified to facts explaining the reason for not walking to the mine on that side, and, further, that the way his father went across the track was "the way they commonly traveled." Deceased was a stranger at these mines, and, as we gather from the evidence, unacquainted with the surroundings. The superintendent insists that the way deceased went that morning was the "most indirect route he could have gone," but, in any event, what has been here said indicates there was evidence tending to show that he had, in fact, started for his working place with the knowledge of the superintendent, who made no objection to that particular route.

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....