Garrett v. Gadsden Cooperage Co.

• Decision Date: 12 April 1923
• Docket Number: 7 Div. 327.
• Citation: 96 So. 188,209 Ala. 223
• Parties: GARRETT v. GADSDEN COOPERAGE CO.
• Court: Alabama Supreme Court

96 So. 188

209 Ala. 223

GARRETT v. GADSDEN COOPERAGE CO.

7 Div. 327.

Supreme Court of Alabama

April 12, 1923

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Action for damages by Cliff Garrett against the Gadsden Cooperage Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

E. O McCord & Son, of Gadsden, for appellant.

Miller & Graham, of Birmingham, and O. R. Hood, of Gadsden, for appellee.

SAYRE J.

Appellant suffered injuries at the hands of one LeFergie, a foreman or superintendent, both employed by appellee in its cooperage plant at Gadsden. Appellant originally brought his action for damages against LeFergie and the Cooperage Company jointly under the superintendence subsection of the Employers' Liability Act (section 3910 of the Code) alleging facts appropriate to a complaint under that subsection. Defendants demurred for misjoinder. The demurrer was properly sustained. Southern Railway v. Hanby, 166 Ala. 641, 52 So. 334; Gulf States Steel v. Fail, 201 Ala. 524, 78 So. 878. LeFergie was then eliminated by amendment, and the complaint further amended so as to allege that-

"The plaintiff was in and about the plant of said defendant *** and at the said time and place an agent or servant of the defendant [LeFergie], then and there acting within the line and scope of his duties to defendant, *** then and there, while so acting, wantonly and willfully struck plaintiff on the head with a bar of iron, and as a proximate consequence plaintiff's head was lacerated," etc.

To the complaint as thus amended, count 2, defendant Cooperage Company filed plea 2, alleging, to state the plea in abbreviated form, that, at the time of plaintiff's injuries, September 2, 1921, defendant had 16 or more employees in its service at the cooperage plant; that plaintiff was on the premises as an employee or servant, "and that the said Will LeFergie struck plaintiff with said bar of iron whilst he and plaintiff were both on the premises of this defendant engaged in the performance of work for the defendant as such servants." Defendant's conclusion that "plaintiff is not entitled to recover in this action" proceeds upon the theory that, on the facts alleged, it is liable to plaintiff, if at all, according to the provisions of the Workmen's Compensation Act (Gen. Acts 1919, p. 206) only. Plaintiff, appellant, assigns for error the ruling by which the legal sufficiency of plea 2 was sustained against demurrer, and also the general affirmative charge given at defendant's request.

Defendant's purpose in framing its plea appears to have been to make such a statement of plaintiff's case as to show that it fell within the exclusive field of the Workmen's Compensation Act, and so to deny plaintiff's right to recover on any other ground. Our opinion is that defendant failed of this specific purpose for reasons to be stated.

Presumptively, on the facts alleged in the plea, the parties are affected by the provisions of the act for elective compensation (section 11 of the act), and plaintiff's right and remedy are governed by the act exclusively (section 10 1/2), provided his injuries were caused by "an accident arising out of and in the course of his employment." As to whether plaintiff's injuries were caused by an accident and in the course of his employment, no presumption is to be indulged. Courts generally seem to have settled upon the proposition that the fact that an injury is the result of a willful or criminal assault upon the employee does not prevent the injury from being accidental within the meaning of Workmen's Compensation Acts. City of Chicago v. Industrial Commission, 292 Ill. 406, 127 N.E. 49, 15 A. L. R. 586, note. The act here, following closely the language of the Minnesota law, defines "accident" as meaning:

"An unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time injury to the physical structure of the body, by accidental means." Gen. Acts 1919, p. 238, § 36.

This definition, we venture to say, does not contribute much to an understanding of the question at issue. But the courts, viewing the matter of chance or accident from the workman's viewpoint, construing the legislative purpose as being, on economic grounds, to provide insurance for the workmen against personal injury not expected or designed by himself, have adopted a meaning which they deem necessary to the effectuation of the broad legislative purpose, and hence they hold that a willful assault may be an accident within the definition of the act. Minnesota ex rel., etc., v. District Court, 140 Minn. 470, 168 N.W. 555, 15 A. L. R. 579; Stasmos v. State Industrial Commission, 80 Okl. 221, 195 P. 762, 15 A. L. R. 576, and authorities cited. The statute here contributes something further in the way of definition and limitation by providing that no compensation shall be allowed for an injury or death caused by the willful misconduct of the employee, etc. Gen. Acts 1919, p. 208, § 9. On the facts alleged and the considerations adverted to we may concede that, within the meaning of the act, plaintiff suffered accidental injuries, though we find no categorical allegation to that effect in either the complaint or the plea.

To bring plaintiff's case within the scope of the act it must appear, not only that his injury was caused by accident but that it arose out of and in the course of his employment. As to this, the fact that both plaintiff and his assailant employee were at the time on defendant's premises, and engaged in the performance of work for defendant, is not at all conclusive. It cannot be intended as matter of law or fact that LeFergie, when he willfully and wantonly struck plaintiff, was in the performance of defendant's work. The allegation of the plea must be construed as meaning only that in a general way LeFergie was engaged in performing defendant's work. Liability to an assault of the character shown must have been a hazard...