C.E. Adams & Co. v. Harrell

• Decision Date: 17 January 1952
• Docket Number: 6 Div. 330
• Parties: C. E. ADAMS & CO., Inc. v. HARRELL.
• Court: Alabama Supreme Court

Page 83

57 So.2d 83

257 Ala. 25

C. E. ADAMS & CO., Inc. v. HARRELL.

6 Div. 330.

Supreme Court of Alabama.

Jan. 17, 1952.

Rehearing Denied March 6, 1952.

J. P. Mudd and E. M. Friend, Jr., Birmingham, for appellant.

Taylor, Higgins, Windham & Perdue and Wade H. Morton, Birmingham, for appellee.

LAWSON, Justice.

Certiorari was granted on petition of C. E. Adams & Company, Inc., a corporation, to review a judgment of the circuit court of Jefferson County awarding compensation to the widow and minor children of Samuel J. Harrell, deceased.

The proceedings were instituted in the trial court under the Alabama Workmen's Compensation Law, Chapter 5, Title 26, Code 1940, by Mrs. Lucille A. Harrell, the widow, who sued on her own behalf and that of her minor children. Between the time the proceedings were instituted and date of trial, Mrs. Harrell married one Norris.

Three questions are presented: (1) Was plaintiff's intestate an employee of the defendant company or was he an independent contractor?

(2) Did the defendant company have 'actual knowledge' of the injury and accident so as to dispense with written notice as provided by § 294, Title 26, Code 1940?

(3) Did the trial court err in finding that the average weekly earnings of intestate was $40?

In treating these questions we are governed, of course, by the rule so often stated in this class of case that the finding of the trial court will not be disturbed where there is legal evidence which will support the trial court's finding. Sloss-Sheffield Steel & Iron Co. v. Keefe, 217 Ala. 409, 116 So. 424; American Radiator Co. v. Andino, 217 Ala. 424, 116 So. 121; Sloss-Sheffield Steel & Iron Co. v. Watts, 236 Ala. 636, 184 So. 201. We are not concerned with the conflict in the evidence or the weight of the evidence. Our duty is simply to ascertain whether there was any legal evidence to sustain the conclusions of the trial court. If any reasonable view of the evidence supports such conclusions, then the judgment will not be disturbed. Riddle v. Smith, 252 Ala. 369, 41 So.2d 288.

The trial court's findings which bear on these issues are as follows:

'2. On, to-wit, March 14, 1950 Samuel J. Harrell, deceased, was a resident citizen of Jefferson County, Alabama, and on said date was employed as a truck operator for the defendant C. E. Adams & Company, Inc., a corporation, in and about the operation of said defendant's business in Shelby County, Alabama, and the defendant C. E. Adams Company, Inc., a corporation was on said date doing business in Jefferson County, Alabama. The decedent was being paid the sum of 40cents per cubic yard for chert hauled from a pit approximately two and one-half miles from Childersburg, Alabama to the job site in Childersburg, Alabama. Out of said 40cents per cubic yard decedent paid all cost of operating the truck used in hauling said chert. Said truck being owned by the decedent.

'3. The deceased was killed in an accident on, to-wit, March 14, 1950, when the truck being operated by him was in collision with another motor vehicle. At the time of said accident decedent was en route, with a load of chert, from the pit to the job site and traveling along the normal route of travel between the chert pit and the job site.

'4. The court finds that at the time of the collision the decedent was acting in the course of his employment and the accident arose out of such employment. As a proximate result and consequence of the collision the decedent sustained injuries from which his death resulted on said March 14, 1950.

'5. The defendant C. E. Adams & Company, Inc. had actual knowledge of the accident and death of the decedent, not later than the day following said accident.

'6. The court finds that by reason of the shortness of the period of employment of decedent by the defendant C. E. Adams & Company, Inc. that results just and fair to the parties will be obtained by arriving at the average weekly earning of the decedent based in part upon the average weekly earning of a person in the same grade of employment, employed in the same class of employment in the same district as the decedent during a period of 52 weeks prior to March 14, 1950. That said average weekly earning was the sum of $40.00 per week.

'7. The court finds that at the time of the accident the defendant C. E. Adams & Company, Inc. and said Samuel Harrell were subject to the Workmen's Compensation Laws of Alabama; that said Samuel J. Harrell was an employe of said defendant.

* * *

* * *

'13. The defendants have interposed the defense of independent contractor. The court finds that the facts do not support said defense for the reason that: (a) The defendant C. E. Adams & Company owned or had the royalty to take and remove the chert which decedent was hauling. (b) The chert was quarried or dug by said defendant with machinery owned by it. (c) The machinery used by said defendant to quarry or dig the chert was operated exclusively by said defendant's employes. (d) The chert was loaded on the decedent's truck under the supervision and control of said defendant's employes. (e) Upon arrival of the decedent at the job site with a load of chert such chert was unloaded or dumped by him at a point designated by an employe or employes of said defendant and such unloading or dumping of chert was done by decedent under the supervision and control of defendant's employes. (f) The decedent's hours of work were regulated by the defendant as he could not haul or dump chert except during the hours of employment of the defendant's employes who loaded chert on his truck and supervised both the loading and unloading of the same at the chert pit and at the job site. (g) The loading and unloading of the chert to and from decedent's truck were subject to such delay as was entailed in waiting 'mill turn' at the pit and at the job site.'

Petitioner does not challenge the correctness of the facts as found by the trial judge on the question of whether deceased was an employee or an independent contractor. Petitioner argues, however, that the facts so found do not warrant the conclusion reached by the trial court that deceased was an employee.

Much stress is laid in argument on the fact that deceased, in rendering service to petitioner, used his own truck and paid the cost of its operation. This fact did not change the relationship. North Alabama Motor Express, Inc., v. Whiteside, 27 Ala.App. 223, 169 So. 335.

This court is fully committed to the proposition that it is the reserved right of control rather than its actual exercise which furnishes the true test of whether the relationship between the parties is that of an independent contractor or of employer and employee--master and servant. Tuscaloosa Veneer Co. v. Martin, 233 Ala. 567, 172 So. 608, and cases cited.

This case is not distinguishable in principle from Sloss-Sheffield Steel & Iron Co. v. Crim, 219 Ala. 148, 121 So. 408; Stith Coal Co. v. Alvis, 224 Ala. 603, 141 So. 663; Martin v. Republic Steel Co., 226 Ala. 209, 146 So. 276; Tuscaloosa Veneer Co. v. Martin, supra. See McKay v. Crowell & Spencer Lumber Co., La.App., 189 So. 508.

The trial court upon a consideration of all the facts has found that the relationship of employer and employee and not of an independent contractor existed between deceased and C. E. Adams & Co. at the time deceased was killed, and on a review of the evidence as set out in the bill of exceptions, we are clearly of the opinion that there were some inferences to be drawn from the evidence tending to support the finding of the trial court.

The trial court found that the 'defendant C. E. Adams & Company, Inc. had actual knowledge of the accident and death of the decedent, not later than the day following said accident.'

In its brief, petitioner concedes that 'if it obtained 'actual knowledge' of Mr. Harrell's death within a 90 day period subsequent to the accident, there was no obligation on the part of the plaintiff to give written notice of the accident to the defendant, as required by Sections 294 and 295, Title 26, 1940 Code of Alabama.' Such has been the rule since the decision of this court in Ex parte Stith Coal Co., 213 Ala. 399, 104 So. 756.

The insistence is made that the evidence does not support the conclusion of the trial court that petitioner had actual knowledge within the prescribed period of time.

There is no evidence going to show that the injury occurred under the eye of the employer or that anyone connected with the employer saw Harrell's body after he was killed. See Ex parte Stith Coal Co., supra; Swift & Co. v. Rolling, 252 Ala. 536, 42 So.2d 6.

But in order for there to be knowledge, the accident need not occur under the eye of the employer or his alter ego. American Radiator Co. v. Andino, supra; Great Atlantic & Pacific Tea Co. v. Davis, 226 Ala. 626, 148 So. 309; Sloss-Sheffield Steel & Iron Co. v. Foote, 231 Ala. 275, 164 So. 379; Virginia-Carolina Chemical Co. v. Cherry, 233 Ala. 582, 173 So. 86; Nashville Bridge Co. v. Honeycutt, 246 Ala. 319, 20 So.2d 591.

If all the facts are brought to the knowledge of the employer within the prescribed period, written notice is not necessary. Ex parte Stith Coal Co., supra. But verbal notice alone given by the employee is not the same as actual knowledge. Sloss-Sheffield Steel & Iron Co. v. Keefe, supra; Sloss-Sheffield Steel & Iron Co. v. Foote, 229 Ala. 189, 155 So. 629; Id., 231 Ala. 275, 164 So. 379; Republic Steel Corp. v. Willis, 243 Ala. 127, 9 So.2d 297; American Radiator Co. v. Andino, supra.

We have said that what constitutes 'actual knowledge' is scarcely capable of more exact definition than the words import, and that each case where that question is involved must be determined on its own facts. Republic Steel Corp. v. Willis, supra; Nashville Bridge Co. v. Honeycutt, supra.

C. E. Adams, the president of the company, was called as a witness on behalf of the company. On cross-examination of this witness the...