Ex parte Majestic Coal Co.

• Decision Date: 08 June 1922
• Docket Number: 6 Div. 687.
• Citation: 208 Ala. 86,93 So. 728
• Parties: EX PARTE MAJESTIC COAL CO. ET AL. v. MAJESTIC COAL CO. POLO
• Court: Alabama Supreme Court

93 So. 728

208 Ala. 86

EX PARTE MAJESTIC COAL CO. ET AL.

POLO v. MAJESTIC COAL CO.

6 Div. 687.

Supreme Court of Alabama

June 8, 1922

Rehearing Denied June 30, 1922.

Certiorari to Circuit Court, Jefferson County.

Action by Pasco Polo against the Majestic Coal Company and the Maryland Casualty Company, for damages under Workmen's Compensation Act. Judgment for plaintiff, and defendants petition for certiorari to the Jefferson circuit court to review and revise said judgment. Writ denied.

T. A Saulsbury, of Birmingham, for appellant.

Frank Deedmeyer and Geo. P. Bondurant, both of Birmingham, for appellee.

THOMAS J.

Plaintiff brought suit under the Workmen's Compensation Act against the defendant Majestic Coal Company, as employer, and its insurance carrier, Maryland Casualty Company, and recovered judgment as for a permanent total disability and for the maximum amount provided by section 13 and subsections "d," "e," and "h" thereof providing for each totally dependent child. Gen. Acts 1919 pp. 206, 214, 215, 217.

The injury sustained July 22, 1920, was at a time when plaintiff was in the employment of defendant Majestic Coal Company. His spinal column was fractured by rock falling from the roof of the entry at a point between where he was engaged in mining and the exit therefrom. The result was that his lower limbs were paralyzed and his injury permanent and total. Plaintiff had dependent upon him a wife and three children; his wages were about $9 or $10 a day; "$150 per month in the clear"-from "$150 to $200 per month." The plaintiff was allowed for such injury $12 per week, and $1 per week additional for each of the three children, making an allowance of $15 per week, not to exceed 400 weeks (Act, § 13 [e] 2), or an amount of $5,000 (Act, § 13 [d]), on which credit was given for the sum paid by the insurance carrier of $518.

The primary question for determination is whether or not the personal injury to plaintiff was sustained by him in an accident arising "out of and in the course of his employment." Act, § 1, p. 206. The term "employer" is defined by statute, and that provision was considered and construed in Ex parte W. T Smith Lumber Co., 206 Ala. 485, 90 So. 807.

Plaintiff testified that it was part of the business of his employment to pull rock down from the entry in order to protect life and property used by him in conducting the operation of mining at such point for defendant Majestic Coal Company, and in the attempt to remove a loose rock from the entry of said mine he received his injury. He was corroborated by the witness Linn, who further testified that the company would pay the men for doing "yardage," and the removal of such loose rock was embraced in the term "yardage"; that witness had noticed the rock in question as being loose and dangerous, and had called plaintiff's attention to such condition, as theretofore, on several occasions, he had called the attention of the different employés of the coal company to conditions (such as the instant dangerous, overhanging rock), and that they had removed the same and claimed "yardage" therefor, and that the company had paid for such labor.

The witness Anderson testified that, as mine foreman, he had charge of the ways and works of defendant under the ground in that part of the mine where plaintiff's injury occurred. He explained the system of yardage in operation at such time and place, that the company paid "so much for the coal and so much for the rock" removed; that yardage of rock was measured with a steel tape every two weeks; that at the time of his operations as a miner plaintiff and his men had driven the work from 16 to 25 feet every two weeks; that, according to the rules and custom in the mine, it was witness' duty to look after the safety of the heading after the yardage was measured; that it was not Pasco's duty to remove the rock, as he was attempting to do, and that witness did not instruct him to do so. On cross-examination the witness admitted that he had employed or paid men to remove or take down rock; that he did not know of the dangerous or loose condition of the rock causing the injury, though he passed the place almost daily; that he had not heard Linn speak of its condition; that "men did often take down these rocks," and that witness, as foreman, "put in extra shifts for them" to pay for the service or labor in removing rock; that, if loose rock was discovered, he would "have Pasco or some one to take it down," and give such employé "an extra shift to do so," and, if he found rock on the heading that appeared to be dangerous, and his man was at another place, he would "often ask the contractor if he had the man handy, to take that down, and pay him so much for it," and, "if a big amount of rock was there, *** and the contractor's men took it down, and honestly put in the work, "he would allow them pay for it. At various times witness had "given extra shifts to Pasco Polo and his men for taking down rocks."

Defendant's superintendent, Howell, testified that he had confidence in the integrity of Mr. Anderson, the mine foreman, and that when his O. K. came in for extra work done by the men it had always been paid for. This statement, when considered with the other evidence, embraced "yardage" of rock removed within the witness' statement of extra work for which payment was made by defendant. Witness admitted that sometimes the contractor would take down rock that was dangerous.

Summarizing the facts found, they are, in short, that plaintiff discovered the loose rock a short distance from his place, and under which he and the men who worked for or with him in that entry were accustomed to pass; it was defendant's duty (and as its employé mining at the time and place) to keep or make that place safe for the protection of the life and property engaged and employed in defendant's conduct of the operation of mining at such point, and necessary that the track and entry be kept clear. In the attempt to do this by removing the overhanging loose rock, with a knowledge of its danger, it feel on plaintiff, causing his injury and "permanent total disability."

In Ex parte W. T. Smith Lumber Co., 206 Ala. 485, 90 So. 807, it is said that the Alabama statute was largely borrowed from the state of Minnesota, citing the case of State ex rel. Virginia & R. L. Co. v. District Court, 128 Minn. 43, 150 N.W. 211, which was decided December 18, 1914, prior to the adoption of the Alabama statute. The statute, being remedial in nature, should be given a liberal construction to accomplish the purpose intended. In the instant case plaintiff's injuries were found by the trial court to have been the proximate result of an accident arising "out of and in the course of his employment." Without attempting a comprehensive definition it is said that the statute imposing liability embraces all injuries that arise out of and occur while the workman injured is doing what a man under like facts and circumstances, engaged in like employment, may reasonably do (within the time during which he is so employed and at a place where he may reasonably be during that time) in the conduct or projection of such work for the employer, or in the promotion or safeguarding of such business, or for the protection of the men and properties while used or engaged for the purpose of the master's business. And the effect of well-considered cases is that an employé does not step aside from his employment, and is without the protection of the statute, when he is doing a reasonably necessary act at the time and place to the end that the work and business of the employer may be properly conducted or preserved, or the safety and health of the human and physical Agencies engaged therein be conserved, and the ways, works, machinery, or plant safeguarded. In such a temporary deviation by the employé from the original employment or a temporary departure by him from his usual vocation, in the performance of some work for the employer, he is yet acting within the course of his employment. This is the spirit and letter of the Employers' Liability Act, that while so acting (in the course of his employment, as we have defined) the employé is primarily acting for the master and not for himself. 1 Honnold on Workmen's Compensation, §§ 105, 114.

Employing the text of Wendt v. Ind. Ins. Comm. of Washington, 80 Wash. 111, 141 P. 311; Replogle v. Seattle School Dist., 84 Wash. 581, 147 P. 196, Mr. Scheider, in his recent Workmen's Compensation Law (1922), declared that, if the work being done may properly be within the ordinary expectation or contemplation of the parties, as being necessary or proper for the employé to do, to aid in carrying out, either directly or indirectly, the main purpose or business of the employer, even though the employé steps aside from his usual work to do this unusual or isolated work or act, he should nevertheless receive compensation when injured in such work.

The facts of Wendt v. Ind. Ins. Comm., supra, are that a carpenter employed by a large department store, engaged in making repairs, alterations, and fittings, and doing such work about the store, was killed in attempting to turn on the electric power in the workshop where power-driven machinery was employed: held, a workman (within the protection of the Industrial Insurance Act) is employed through the operation and control of a department in which was operated and controlled a workshop employing powerdriven machinery, and engaged in a hazardous employment within the definition of the statute. Mr. Schneider further cites authorities on the question whether incidental work of an employé is properly a part of the usual course of an employer's business, and approvingly quotes the following:

"We feel

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