Ex parte Terry

• Decision Date: 12 June 1924
• Docket Number: 6 Div. 966.
• Citation: 211 Ala. 418,100 So. 768
• Parties: EX PARTE TERRY ET AL.
• Court: Alabama Supreme Court

100 So. 768

211 Ala. 418

EX PARTE TERRY ET AL.

6 Div. 966.

Supreme Court of Alabama

June 12, 1924

Certiorari to Circuit Court, Fayette County; R. L. Blanton, Judge.

Petition by T. C. Terry and another for writ of certiorari, to review judgment for Tiney J. Moore in proceeding under Workmen's Compensation Act. Writ denied, and judgment affirmed.

B. F Smith, of Birmingham, for petitioners.

S. T Wright, of Fayette, opposed.

SOMERVILLE J.

Under the provisions of our Workmen's Compensation Act "personal injuries *** arising out of and in the course of his [the workman's] employment" do not include "an injury caused by the act of a third person or fellow employé intended to injure the employé because of reasons personal to him, and not directed against him as an employé or because of his employment." Gen. Acts 1919, p. 238, § 36 (2) (J).

The only controverted question in the instant case is whether the injuries suffered by the plaintiff-knife wounds inflicted upon him by Elbert Wallace in the course of a felonious assault made by Wallace on the plaintiff, as shown by the findings of the trial court-arose out of plaintiff's employment, within the restrictive definition of the act, as quoted above.

As is well understood, our act is in many important particulars a literal copy of the Workmen's Compensation Law of Minnesota. Gen. Stat. Minn. § 8230 (1). The provision above quoted is in the identical language of a provision of the Minnesota law, which had been extensively considered and construed by the Supreme Court of Minnesota before its incorporation in our law.

What was said by that court in State ex rel. Duluth Brewing &amp M. Co. v. District Court, 129 Minn. 176, 151 N.W. 912, is of apt application here:

"We shall not attempt to formulate a definition of the phrase, accidental injury arising out of the employment, except to say that the accident causing the injury must arise out of work or business being done for the master either by direct or implied authority. The trial court evidently took the view that De Cook in good faith believed he was furthering his master's business, and performing an act which he might reasonably be expected to do when he undertook to supply himself with a key. He had never been told that the light bulbs were to be under lock as to him who was charged with the duty of seeing that the broken and defective ones were replaced. He had a variety of matters to attend to in which he, like servants generally, had to rely on the promptings of his own judgment as to details. Undesirable, indifferent, and of little value indeed are the services of an employé who must be expressly directed as to the time, manner and extent of doing each particular task. Hence, when a servant undertakes in the course of his employment, during the proper hours therefor, and in the proper place to do something in furtherance of

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