Blair v. Greene, 3 Div. 410.

• Court: Supreme Court of Alabama
• Citation: 247 Ala. 104,22 So.2d 834
• Docket Number: 3 Div. 410.
• Parties: BLAIR et al. v. GREENE.
• Decision Date: 12 April 1945

22 So.2d 834

247 Ala. 104

BLAIR et al.
v.
GREENE.

3 Div. 410.

Supreme Court of Alabama

April 12, 1945

Rehearing Denied June 30, 1945.

[247 Ala. 105] Sadler & Sadler, of Birmingham, and Fred S. Ball, Jr., of Montgomery, for appellants.

[247 Ala. 106] [22 So.2d 835]

Steiner, Crum & Weil and Thos. B. Hill, Jr., and Wm. Inge Hill, all of Montgomery, for appellee.

LIVINGSTON, Justice (dissenting).

For the decision of the Court on procedural matter involved in this case, see 246 Ala. 28, 18 So.2d 688.

On the Merits.

The suit is under the homicide statute, section 123, Title 7, Code of 1940, brought by Brownie Brunell Greene, as administratrix of the estate of her deceased husband, Claris F. Greene, against Algernon Blair and F. G. Charlton, Sr., for the death of her said husband, caused by the negligence of defendants. Plaintiff had judgment in the court below, and defendants appealed.

For the purposes of this appeal, the negligence of Charlton, the driver of the automobile or station wagon in which Greene, the deceased, was riding when injured, was sufficient to take the case to the jury.

The principal questions for review on this appeal relate to the status of Charlton and Greene at the time Greene was injured. The questions are:

(1) Is the claim for the death of Greene, as against Blair, compensable only under the Alabama Workmen's Compensation Law, section 253 et seq., Title 26, Code of 1940?

(2) Was Greene a passenger of the defendants for hire, or was he a guest within the meaning of the guest law of this State, section 95, Title 36, Code of 1940?

(3) Was Charlton acting within the line or scope of his employment at the time Greene was injured?

(4) Were Greene and Charlton fellow servants on the occasion of the accident?

The undisputed testimony given by witnesses, both for the plaintiff and the defendants, relating to the foregoing questions, established the following facts.

The appellant Algernon Blair was under contract with the United States Government for the construction of a large holding and reconsignment depot located on the outskirts of Montgomery, and some three or four miles distant from the down town section of the city. The construction job was a war emergency measure and the Government wanted the work completed as soon as possible. The appellant F. G. Charlton, Sr., was Blair's chief engineer in charge of a crew of men consisting of helpers, rodmen, linemen, etc., numbering from six to fourteen, all more or less versed in engineering work, and of whom appellee's intestate was one. All of the men were in the employ of Blair, and their place of business was at the construction job site. Charlton was employed by the month or week, and his crewmen by the day. Charlton had direct supervision over his crewmen, and hired and discharged them at will. He hired plaintiff's intestate, and wired him to report to work. Charlton was responsible to Blair for the proper performance of the duties of his crew. It was the duty of Charlton and his crew to make surveys and lay out the work to be performed by others who did the actual construction work. The work of Charlton and his crew was an integral part of [247 Ala. 108] the construction job, and any delay in their work would, according to the time and amount of the delay, retard the actual construction. The construction site covered a large area, and Charlton and his crew were compelled to go from place to place in this area in the performance of their duties. For the efficient performance of such duties, Blair furnished to Charlton an automobile or station wagon to be used by him in transporting his crew, their tools, instruments and equipment from place to place in the construction area. Charlton lived in Autauga County, some twenty or twenty-five miles from the construction site. The members of his crew lived at various points in the city of Montgomery and its suburbs, some of them five and six miles from the construction site. There was no street railway, bus line, or other public conveyance from the city of Montgomery to the construction site. Charlton, with Blair's knowledge and consent, regularly used the station wagon to transport himself to his home in the afternoon and to his work at the job site in the morning. Charlton, likewise with Blair's knowledge and consent, regularly transported some of the members of the crew to their homes, or to a designated meeting point near their homes in the afternoon, and carried them from the same place to their work at the construction site in the morning. In thus transporting members of his crew, Charlton was compelled to detour several miles from the direct route to and from his (Charlton's) home. No cash consideration was paid for such transportation, and it was no part of their contract, express or implied, so as to create any obligation, that the members of Charlton's crew should be [22 So.2d 836] thus transported. It was voluntary or optional with them as to whether or not they rode in the station wagon. Charlton could have declined to carry them, and they could have refused to ride had they so wished.

Plaintiff's intestate was injured in the afternoon after working hours, and some five or six miles from the job site, and while being transported in the station wagon by Charlton to plaintiff's intestate's home, or agreed meeting place. There was no evidence tending to establish willful or wanton misconduct on the part of either defendant in the court below.

We will first determine whether the case against appellant Blair is governed by the Alabama Workmen's Compensation Law.

Subdivision (j) of section 262, Title 26, Code of 1940, provides: '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.'

The term 'premises' of the employer, used in subsection (j), supra, has reference to premises at or near which the service is to be rendered. Sloss-Sheffield Steel & Iron Co. v. Thomas, 220 Ala. 686, 127 So. 165.

Clear enough Greene was not at or near the premises of Blair when injured. As to whether or not Greene was where his service required his presence as a part of such service at the time of the accident, and during the hours of service as a workman, within the meaning of subsection (j), supra, depends upon the effect to be accorded his transportation to and from work in the station wagon. If by contract, express or implied, the transportation constituted a part of the consideration paid or to be paid Greene for his services, then, in that event, the mutual duties of employer and employee were being performed at the time Greene was injured, and his claim for such injuries is governed by the Workmen's Compensation Law. If, on the other hand, the transportation did not constitute a part of his contract of employment, the Workmen's Compensation Law has no application. Jett v. Turner, 215 Ala. 352, 110 So. 702; Ex parte Taylor, 213 Ala. 282, 104 So. 527.

Blair was under no obligation whatever to transport Greene to or from work. Greene was under no obligation to accept such transportation. Blair could have refused to carry him and Greene could have refused to ride.

In Stevens v. Allamuchy Tp., 36 A.2d 128, 130, 22 N.J.Misc. 106, the Supreme [247 Ala. 109] Court of New Jersey said: 'In considering and determining the issue here involved, we must bear in mind certain settled and basic principles: 1. A necessary prerequisite for recovery under the Workmen's Compensation Act is the existence of the relation of employer-employee. Corbett v. Starrett Bros., Inc., Err. & App., 105 N.J.L. 228, 143 A. 352; Rojeski v. Pennington Dairy Farms, Inc., 118 N.J.L. 335, 192 A. 746. 2. In order for that relation to exist, there must be a valid contract of service together with the right or power in the employer to control the employee with respect to the transaction out of which the injury arose. Essbee Amusement Corporation v. Greenhaus, 114 N.J.L. 492, 493, 177 A. 562; Rojeski v. Pennington Dairy Farms, Inc., supra, 118 N.J.L. at page 337, 192 A. at page 748.'

In 71 Corpus Juris 722, section 446, it is said: 'Where the employee is injured while riding to or from work in a conveyance provided by the employer, 'the employer's liability * * * depends upon whether the conveyance has been provided by...