Cohen v. Birmingham Fabricating Co.

• Decision Date: 14 January 1932
• Docket Number: 6 Div. 822.
• Citation: 139 So. 97,224 Ala. 67
• Parties: COHEN v. BIRMINGHAM FABRICATING CO.
• Court: Alabama Supreme Court

139 So. 97

224 Ala. 67

COHEN v. BIRMINGHAM FABRICATING CO.

6 Div. 822.

Supreme Court of Alabama

January 14, 1932

Certiorari to Circuit Court, Jefferson County; C. B. Smith, Judge.

Proceeding under the Workmen's Compensation Act by Dora Cohen against the Birmingham Fabricating Company to recover compensation as dependent mother of Hickson Lambert, deceased employee. Judgment denying compensation, and the petitioner brings certiorari.

Writ denied; judgment affirmed.

R. J McClure, of Birmingham, for appellant.

London Yancey & Brower and Jim C. Smith, all of Birmingham, for appellee.

GARDNER J.

Hickson Lambert was originally employed by the Birmingham Fabricating Company as a salesman, and at the time of his death on June 24, 1929, had been promoted to sales manager. He was so employed when he met his death in assisting laborers in the unloading of a car of steel by use of a crane. The trial judge found from the evidence that Lambert "was not authorized by the defendant to assist the common laborers or foreman in connection with the performance of the work assigned to such laborers and foreman," and that in fact what he was doing at the time he was killed was in violation of instructions theretofore given him by the defendant's manager, and without any emergent necessity therefor. After a further detailed recital of the facts showing the loading of the crane by Lambert, over the objection of the foreman and laborers, far beyond its capacity, his taking hold of the chain of the crane and thus assisting in lifting the steel from the car, and his fatal injury by the crane breaking and falling, the trial judge concludes his finding as follows: "The court finds as a fact in this case that at the time of the injury and death of the said Hickson Lambert the said injury and death did not arise out of and in the course of his employment by the defendant; that at the time of his injury and death, he had departed from the sphere of his employment, and was without the sphere of his employment by defendant."

It is the settled rule that the finding of the trial court will not be disturbed when there is any legal evidence in support of the conclusion, and that this rule is to be invoked in cases where the award is denied as well as where there has been a judgment favorable to the plaintiff. Bullard v. Cullman Heading Co., 220 Ala. 143, 124 So. 200.

Upon the merits of the case the sole question arises as to whether or not there appears legal evidence in support of the trial court's finding and conclusion. The defendant's vice president and general manager testified that he employed Lambert as a salesman. His instructions were to solicit business, to get orders; that Lambert had on some previous occasions gone into the shop and interfered with the workmen to which objection had been interposed. This witness then stated: "I had spoken to him at least three times about being out there and told him that he was butting in on the shop operations, and I thought he did more harm than good and not to interfere outside his jurisdiction. *** I gave him definite instructions to that effect. *** I told him to let the shop operations alone because he didn't know anything about practical shop work. It was dangerous to him, I had warned him to keep out of the shop entirely. He was doing a heap more harm than good. My instructions to him were final. *** At the time of the injury he was butting into the car of steel. There was no reason for him to get in the steel. *** I don't see where he had any business in the car at all. *** The labor foreman that handled the car would check up the delivery of steel that came into the plant. He was competent to do...