Downey v. Bituminous Cas. Corp.

• Decision Date: 09 September 1977
• Citation: 349 So.2d 1153
• Parties: Margaret Talley DOWNEY, etc. v. BITUMINOUS CASUALTY CORPORATION et al. SC 2530.
• Court: Alabama Supreme Court

Page 1153

349 So.2d 1153

Margaret Talley DOWNEY, etc. v. BITUMINOUS CASUALTY CORPORATION et al.

SC 2530.

Supreme Court of Alabama.

Sept. 9, 1977.

R. Ben Hogan, III, Birmingham, Robert H. King, Gadsden, and Hogan, Smith & Alspaugh, Birmingham, for appellant.

Roger C. Suttle of Inzer, Suttle, Swann & Stivender, Gadsden, for appellees.

EMBRY, Justice.

Appellant, Margaret Talley Downey, brought this action in her own behalf as the dependent widow of Emmett Downey and for the benefit of his three dependent minor children. She sought recovery of benefits provided in lieu of workmen's compensation benefits by the terms of an insurance policy issued by appellee Bituminous Casualty Corporation to State of Alabama Highway Department. That department had leased Downey, a convict, from the Board of Corrections, State of Alabama. While working with a road crew of the Highway Department he met his death as the result of an accident. The Department was housing Downey and paying the Board for his use, at the time.

Appellants, the Downeys, make three statements of what they perceive to be the issues presented for review by this court. The third one is controlling.

"3. Did the Trial Court err in failing to find from the stipulated facts as a matter of law and policy that State prisoners working on road crews under the supervision of the Alabama Highway Department are employees of the Department within the meaning of the insurance coverage that provides benefits for the death or disability to the employees of the Alabama Highway Department?"

We hold that the trial court did not err and will affirm.

The Downeys contend that Mr. Downey was an employee of the Highway Department within the meaning of the Alabama workmen's compensation laws and they are entitled to benefits on account of his death under the terms of the policy which required Bituminous:

"To pay promptly when due all compensation and other benefits required of the insured by the workmen's compensation law."

They say that, although there is no Alabama case interpreting our insurance law or comp act as it applies to leased convicts under the facts of this case, the better rule of law is that, where the convict is housed and supervised by the Highway Department, the widow and minor children should receive death benefits afforded beneficiaries of any other Highway Department employee killed in the course of his employment by accidental means.

Primarily, two cases are relied upon to support the Downeys' contention; Johnson v. Industrial Commission, 88 Ariz. 354, 356 P.2d 1021; and Pruitt v. Workmen's Compensation Appeals Board of the State of California, 261 Cal.App.2d 546, 68 Cal.Rptr. 12.

In Johnson, the Arizona court stated:

"This case presents the single question of whether a county prisoner, injured while on loan to a private corporation, is an employee within the meaning of the Workmen's Compensation Act of Arizona, and therefore entitled to compensation for injuries sustained during the time he was so employed."

In holding the corporation, Yuma County Fair, Inc., was the employer and Johnson the employee, it was stated:

"Although petitioner was under duress in that he was a prisoner of Yuma County, there is nothing in this record to indicate that the actual services of these eight prisoners for the Yuma County Fair, Inc. was compulsory. As an additional inducement they were each given three-days credit for each day's work and seemingly were free to choose whether they worked or not. All the essentials of a contract for hire were present. Consideration flowed from the employer by way of different food and lodging, perhaps better, and sundries and cigarettes. Petitioner evidenced his agreement to the arrangement by performing the work tendered."

Although there are other distinctions between this case and Johnson, the fact that Johnson's services for Yuma County Fair was voluntary is a significant one. One of Bituminous' principal arguments is that Downey was not an employee because his services to the Highway Department were not voluntary. Obviously, the other distinction between Johnson and this case is the fact that Yuma County Fair was a private corporation.

In Pruitt, a county inmate was farmed out to Nevada City to work on its sewer plant. He was held to be a city employee for workmen's compensation purposes where he did such work voluntarily in return for credit on the sentence served, interlude release from jail confinement, and a carton of cigarettes per week. The distinction between Pruitt and this case may be found in that portion of the opinion of the California court where it states:

"We hold that when a county jail inmate is loaned out to a third party for work on a voluntary basis, whether that third party be a private corporation or a municipality, and when he is under the control of the latter with the right in said third party to direct the manner in which the service shall be performed, there is (1) a relationship of master and servant, (2) an implied contract of hire and therefore by statutory definition (in Lab. Code, § 3351) the inmate becomes an 'employee' and as such entitled to workmen's compensation benefits when injured in the course and scope of his employment. That is true notwithstanding that monetary consideration passing to the prisoner be nil and the other consideration from the direct beneficiary of the services (here a carton of cigarettes) be of nominal value. This court has held that payment of monetary wages is not a sine qua non of employment under workmen's compensation law. * * * Concededly, the principal consideration passing to petitioner was his credit on sentence time served plus an interlude release from jail...