Ex parte Little Cahaba Coal Co.

• Decision Date: 16 April 1925
• Docket Number: 2 Div. 866
• Parties: Ex parte LITTLE CAHABA COAL CO. v. LITTLE CAHABA COAL CO. ELLIS
• Court: Alabama Supreme Court

104 So. 422

213 Ala. 244

Ex parte LITTLE CAHABA COAL CO.

ELLIS v. LITTLE CAHABA COAL CO.

2 Div. 866

Supreme Court of Alabama

April 16, 1925

Rehearing Denied May 28, 1925

Certiorari to Circuit Court, Bibb County; Fleetwood Rice, Judge.

Petition of the Little Cahaba Coal Company for certiorari to the circuit court, Bibb county, to review the judgment and findings of that court in a proceeding by Myrtle Mary Lee Ellis against the petitioner, under the Workmen's Compensation Act. Writ denied; judgment affirmed.

David S. Anderson and Richard C. Gonzalez, both of Birmingham, and Jerome T. Fuller, of Centerville, for appellant.

Lavender & Thompson, of Centerville, for appellee.

BOULDIN J.

This is a proceeding by certiorari to review the judgment of the circuit court awarding compensation to the dependent widow and minor children of Wiley B. Ellis, deceased.

The defenses relied upon are: That the accident causing death did not arise out of and in the course of the employment; and that the fatal injury was caused by the willful misconduct of deceased. On these issues the findings of fact by the trial judge are as follows:

"(2) That on the 13th day of September, 1923, the said Wiley B. Ellis was in the employment of the defendant, Little Cahaba Coal Company, a corporation, in the capacity of boss driver in the mines of the defendant, and that, during the time of such employment, a fire occurred in one of the headings of the defendant's mine and the said Wiley B Ellis went into said mine to assist in putting out said fire and, while engaged in the performance of his duties under his said employment, the said Wiley B. Ellis was killed by an explosion which occurred in said mine.

"(3) That the said injury and death was an accident arising out of and in the course of the employment of the said Wiley B. Ellis by the defendant *** and that said Wiley B. Ellis was not guilty of willful misconduct."

The question most stressed before us is concisely stated in brief of counsel for defendant petitioner thus:

"It is the contention of the defendant that, by reason of his disobedience of the orders given by the mining foreman, the deceased took himself out of the scope of his employment with the result that the ensuing fatal accident cannot be regarded as having arisen out of and in the course of the employment."

A bill of exceptions containing the evidence is made part of the record. We look to this to find whether there was any evidence supporting the finding of the trial judge.

The evidence tends to show that it was a general duty of deceased to aid in extinguishing fires in the mine; that he reported to the foreman for that purpose and was accepted.

The fire was at the face of a heading leading off from the main slope some 500 feet. Near where the heading left the main slope was a cut-through or slant leading from the slope to the return air course. This cut-through, some 40 feet long was closed by a door.

Efforts were first made to fight the fire with water. For this purpose a valve was opened in a water pipe, acting as a siphon, to draw water into a pool or sump. This valve was located in the return air course near the slant or cut-through mentioned. The use of water was later abandoned, and the plan of smothering the fire, by cutting off the flow of air through the intake, was adopted. At this stage the deceased undertook to go through the slant into the return air course and close the valve in the water pipe. Upon opening the door, a gas explosion occurred, causing his immediate death.

The occasion for closing the valve was twofold. The continued flow of the water might flood the working places of the mine, and the siphon was liable to run dry, putting it out of operation until refilled.

The business of the occasion, out of work hours, was extinguishing the fire in defendant's mine. This special business defined the scope of employment of the men on hand for the purpose. Incident to this was the protection of the property of defendant from unnecessary injury in fire-fighting operations, or the crippling of its agencies and equipment for further use. In the absence of some conditions withdrawing the case from the general rule, closing the valve in the water pipe was within the course of employment of one of the men engaged in extinguishing the fire.

It is in evidence that, in case the siphon had run empty, it would have been the duty of deceased, within working hours, to refill it. This supports an inference that a part of his general duty was to keep this equipment in operating condition. Such circumstance is to be considered in dealing with the alleged orders of the foreman as limiting the scope of employment, or the violation of such orders as willful misconduct cutting off the claim of dependents under our Workmen's Compensation Law.

Looking to the evidence touching the orders given deceased, it appears the work of fire fighting was under direction of Mr. Vernon, as foreman, to whose orders the men were subject at the time. It appears that Mr. Vernon was informed by deceased that he had opened the door of the slant to close the valve, and his light had gone out. Three witnesses depose to what was then said by Mr. Vernon as follows:

Vernon: "No; you stay out of that damn hole there; there can't nobody live in it."

Motes: "You stay out of that air course; you have no business in there; let that siphon go."

Basham: "Stay out of that damn air course; a man can't live in there. ***" He also told him to leave the siphon alone.

There is other evidence that about the same time Vernon instructed deceased to assist in bringing plank to brattice up the intake. The witness Basham said he did not hear this instruction. What connection this instruction, if given, had with the order or warning given about the air course may be regarded as subject to inferences which were wholly with the trial court.

Our Workmen's Compensation Law, § 9 (Code 1923, § 7544), covers cases "arising out of and in the course of his employment, without regard to any question of negligence." It excepts injury or death caused by willful misconduct or enumerated specific acts of misconduct. It is clearly intended that a distinction should be observed between injuries outside the course of employment and those due to willful misconduct.

Arising out of and in the course of the employment is a condition precedent to compensation in all cases, and, when put in issue by answer, the burden is on the claimant.

Willful misconduct in general, or as specified in the statute is defensive; the burden being on the employer. A jury trial is specially provided to pass upon such defense.

In dealing with a defense based upon orders given by a superior in the employment, three inquiries may arise, viz.: (1) Did such breach place the employee outside the scope of the employment? (2) Was it such willful misconduct as to forfeit the right to compensation? (3) Was it merely contributory negligence, not defeating that right?

If disobedience to orders is within either of the first two classes, the effect is the same, in so far as to defeat the right of compensation. Some cases we think, have merged the two in considering the question of liability. They proceed on the idea that defiance of the master's orders or rules places him without the scope of employment, although he may be still engaged in work for the master of the kind contemplated. For example, Schelf v. Kishpaugh, 37 N.J.Law J. 173, cited by appellant, held that a stoker who, while feeding a furnace, stood on the dangerous side of a pile of fuel in violation of the master's orders, thereby took himself without the course of employment. See, also, 28 R.C.L. p....