Bullard v. Cullman Heading Co.

• Decision Date: 30 May 1929
• Docket Number: 6 Div. 358.
• Parties: BULLARD v. CULLMAN HEADING CO.
• Court: Alabama Supreme Court

124 So. 200

220 Ala. 143

BULLARD v. CULLMAN HEADING CO.

6 Div. 358.

Supreme Court of Alabama

May 30, 1929

Rehearing Denied Oct. 31, 1929.

Certiorari to Circuit Court, Cullman County; W. W. Callahan, Judge.

Proceeding under the Workmen's Compensation Act by Cohan Bullard against the Cullman Heading Company. Judgment denying compensation, and the employé brings certiorari. Writ denied.

W Marvin Scott and A. A. Griffith, both of Cullman, for appellant.

F. E St. John, of Cullman, for appellee.

ANDERSON C.J.

The relation of master and servant was shown and the sole question presented for review is whether or not the plaintiff employee was injured by an accident "arising out of and in the course of his employment." If the service plaintiff was performing at the time of the injury was outside the scope of his employment, or was not directed or acquiesced in by a representative of the defendant authorized to control such service, defendant would not be accountable. Sloss-Sheffield Steel & Iron Co. v. Harris (Ala. Sup.) 117 So. 755; Louisville & N. R. Co. v. Pettis, 206 Ala. 96, 89 So. 201; Vickers v. Alabama Power Co. (Ala. Sup.) 117 So. 650; Dietzen Co. v. Industrial Board, 279 Ill. 11, 116 N.E. 684, Ann. Cas. 1918B, 764.

"An accident does not arise out of the employment if, at the time, the workman is arrogating to himself duties which he was neither engaged nor entitled to perform." 1 Honnold on Workmen's Compensation, art. 114.

"Where a servant is employed to do a certain service and is injured in the performance of a different service voluntarily undertaken, the master is not liable." 1 Bradberry on Workmen's Compensation (2d Ed.) 459; Utah Copper Co. v. Industrial Commission, 62 Utah, 33, 217 P. 1105, 33 A. L. R. 1327.

The trial court found that the plaintiff was employed by the defendant to bear off heading from a heading machine in defendant's plant, which heading was conveyed from the saw of the heading machine by a revolving chain known and called a "conveyor." The plaintiff took the heading from this conveyor and in turn handed to a fellow employee to be stacked. On the day plaintiff was injured, he requested his foreman, Tom Anderton, to allow him, in order to rest, to exchange jobs with Asa Smith, a fellow employee, whose duties were to clean the floors in the plant; and, after plaintiff had been cleaning floors a short time, he, the plaintiff, without any authority, knowledge, or acquiescence upon the part of the defendant, or upon the part of Anderton, the foreman, left his job as floor cleaner and began to operate a bolting saw, and, after he had been operating said bolting saw a few minutes, he was injured. The evidence is undisputed that plaintiff exchanged jobs of floor cleaner to that of operating the bolting saw without any authority, consent, direction, or acquiescence upon the part of the defendant or upon the part of any one authorized thereto. In other words, the trial court held that the plaintiff did not meet the burden of showing that he was injured by an accident "arising out of and in the course of his employment," and we are in accord with the conclusion of the trial court.

True, as suggested by counsel for the petitioner, this Workmen's Compensation Act (Code 1923, §§ 7534-7597) should be liberally construed so as to effectuate its beneficent purpose, but we cannot place an injured employee within the influence of same who fails to bring himself within the express requirement of the law.

The writ must be denied, which is accordingly done.

SAYRE, THOMAS, and BROWN, JJ., concur.

On Rehearing.

ANDERSON C.J.

We cannot assent to the contention or suggestion that the injury arose out of the employment, if occurring on the master's premises, and out of an act performed or attempted in furtherance of the master's interest, or for his benefit. We cannot subscribe to the idea that, when a servant is employed to perform certain duties not at all dangerous, and without the consent, express or implied, of the master departs therefrom and engages in something else, which may be dangerous or hazardous, and not growing out of the work assigned him or incident thereto, is within the Compensation Act, if injured as...