"On
said date, and for more than a year prior thereto, respondent
was engaged in the coal mining business at the mining camp or
village of Beltona, Jefferson county, Ala., about six miles
from the town of Warrior.
"On
October 1, 1921, defendant began the operation of a motor
truck service for the transportation of its employé miners
residing in Warrior to and from their work at defendant's
mines at Beltona. These trucks operated on a regular
schedule, and between fixed terminal points in Warrior and
Beltona, leaving Warrior at 7:30 each morning for the mines
at Beltona, and starting from respondent's commissary in
Beltona on the daily return trip at 4:30 p. m., shortly after
the miners came out of the mines. Defendant charged a fare of
25 cents per round trip, and defendant's employé, Grady
Whaley who drove the truck for defendant, would enter in a
book each day the names of defendant's employés so
transported, and turn these records in to defendant at its
office at Beltona, and the amounts so shown to be due would
be charged respectively against such employés and deducted
from their earnings on the biweekly pay days.
"The
proceeds from said fare of 25 cents was slightly less than
the actual cost of said service under said conditions
although estimated by defendant to about cover same. The
usual charge for round trip transportation from Warrior to
Beltona and return by public conveyance was 50 cents. Use of
defendant's said motor truck service was optional with
its said employés, but it was limited to and for them
exclusively, and practically all of said employés living in
Warrior rode to and from their work in said trucks of
defendant.
"Defendant
continued to operate said motor truck service as aforesaid
until February 13, 1922, when said Grady Whaley began, and
continued until decedent's death, the operation of said
motor truck service between said points, and on the same
schedule, under the following circumstances, terms and
conditions:
"By
agreement between respondent and said Whaley, defendant
withdraw [withdrew] its trucks, and Grady Whaley put in
said service two of his own motor trucks of a different
make. Said Whaley was to have exclusive control of the
operation of same, and pay all expenses and maintenance
including repairs, gas, and oil, and defendant agreed to
collect for and pay to said Whaley on said pay days the
sums due for fares by defendant's employés upon their
names and amounts due being turned in to defendant by said
Whaley as formerly. Said Whaley was to provide and continue
said transportation for defendant's said employés
residing at Warrior, but he was not limited to carrying
said employés exclusively, and nothing was said as to
amount of fare to be charged. Upon beginning operations
under said agreement, he raised the charge for said round
trip fares from 25 to 35 cents.
"When
defendant first inaugurated said motor truck service, said
Whaley, in addition to driving said truck for the said
transportation of said employés, had also driven a daily
freight truck for defendant from Beltona to Birmingham and
return, this after carrying said employés to Beltona in the
morning and before taking them back to Warrior in the
afternoon; and prior to February 13, 1922, he had received
a fixed salary from defendant for all of said service of
$100 per month. Under the new arrangement he continued to
drive the freight truck to and from Birmingham, but the
salary paid him by the defendant was reduced to $80 per
month, in addition to which he was to receive from
defendant the fares due from said employés as aforesaid.
"On
the 11th of February, 1922, defendant's superintendent
told a few of its employés at the company's office that
it would thereafter withdraw from the operation of said
motor truck service, and Grady Whaley would take same over
on his own account, but no other notice was given by
defendant, and no notice of said charge [change] was
posted, and decedent, Bart Grantham, did not receive any
notice, and had no knowledge or notice of any change in
respect to the operation of said motor truck in said
service, except of said increase in fare.
"Decedent,
Bart Grantham, resided in Warrior, and was employed by
defendant as a coal miner at its said mine at Beltona about
the middle of October, 1921, and continued in said
employment until the time of his death, residing [riding]
regularly in said motor trucks from Warrior to his work in
the mines at Beltona and back under said terms and
conditions until the time of his death.
"On
the afternoon decedent was killed, said Grady Whaley had in
service another truck to carry passengers from Beltona to
Kimberly, and upon his request, an employé of defendant
named _____ undertook to drive the Warrior truck for said
Whaley, and said Warrior truck, filled with defendant's
employés from Warrior, including decedent Grantham, who had
just come out of the mines,
...
