Dallas Mfg. Co. v. Kennemer

• Decision Date: 05 June 1942
• Docket Number: 8 Div. 188.
• Citation: 8 So.2d 519,243 Ala. 42
• Parties: DALLAS MFG. CO. v. KENNEMER.
• Court: Alabama Supreme Court

8 So.2d 519

243 Ala. 42

DALLAS MFG. CO. v. KENNEMER.

8 Div. 188.

Supreme Court of Alabama

June 5, 1942

Sadler & Sadler, of Birmingham, for appellant.

Griffin & Ford, of Hubtsville, for appellee.

FOSTER Justice.

The question in this case is whether the injury and death of an employee arose out of as well as in the course of his employment, and therefore whether it is compensable under Articles 1 and 2 of Chapter 5, Title 26, Code of 1940.

There was an agreed statement of facts which the judge used as his finding of the facts. It appears that this decedent Kennemer and Shelton and Lackey were employees of defendant engaged in the same shift due to be relieved at three o'clock in the afternoon. Mrs. Shelton, the wife of said employee, had a personal grievance against Lackey, in no way connected with the employment. She was not an employee, but knowing that Lackey was due to come off the shift at three in the afternoon, she made her way through the gate to the exit of the building where they were employed. Kennemer was through with his work, and was on the outside of the building of defendant near the exit, but still within the enclosed premises awaiting the blowing of the factory whistle to change the shift. As Lackey was making his exit, Mrs. Shelton fired a pistol at him, missed him and struck Kennemer accidentally causing his death. "Her shooting at Lackey was for reasons personal to her, arising out of a love affair between her and Lackey." She had frequently entered through this gate, though a guard was stationed there. Other persons not employed by defendant entered the premises both through the gates and through the office of the defendant.

This was common practice. Mrs. Shelton had the pistol concealed and defendant had no notice or knowledge of it. From the agreed facts, the court concluded that "The deceased employee was not injured by the act of a third person or fellow employee intending to injure the employee because of reasons personal to him, within the meaning of that portion of subdivision J of section 262 of Title 26, Code of 1940. But that said deceased's death was caused by an accidental injury received by him while he was on the premises of his employer at a place where the duties of his employment called or caused him to be at the time, and without fault or negligence on his part, and by or from a risk set in motion or originating on said premises and to which his employment caused him to be exposed. A risk inherent in his close association or confinement with fellow employees in numbers sufficient to the operation of his employer's business, to-wit, the operation of a cotton mill, and with the acquaintances and members of the families of such employees, or other third persons, whom the employer or its servants permitted to have access to such premises and fellow employees, and the negligence and human frailties of such fellow employees and third persons-A risk of place and association to which he would not have been subject or exposed at such time and place but for his contract of employment. And that the deceased employee, James Edward Kennemer, husband of the plaintiff, came to his death as the direct and proximate result of an accidental injury suffered by him in the course of his employment and which arose out of his employment by the defendant."

We agree with the trial court that this situation is not within the exception of section 262(j), Tit. 26, Code of 1940, since it was not an intentional injury of Kennemer. But it does not follow that because the injury was...