Gilmore v. Rust Engineering Co.

Decision Date10 August 1972
Docket Number1 Div. 635
Citation265 So.2d 591,289 Ala. 46
PartiesIn re Eugenia L. GILMORE, etc., v. The RUST ENGINEERING COMPANY, a corporation. Ex parte the RUST ENGINEERING COMPANY, a corp.
CourtAlabama Supreme Court

Donald F. Pierce, A. Clay Rankin, III, Mobile, for petitioner.

William H. McDermott, Braxton L. Kittrell, Jr., and Herbert P. Feibelman, Jr., Mobile, for respondent.

HEFLIN, Chief Justice.

This case was originally assigned to another member of this Court and was reassigned to the writer on July 5, 1972.

This petition for writ of certiorari to the Court of Civil Appeals involves a case in which the respondent-appellant-plaintiff's husband, John E. Gilmore, an employee of petitioner-appellee-defendant The Rust Engineering Company, was killed. The plaintiff, as widow and for the benefit of the dependent children of the deceased, John E. Gilmore, brought proceedings in the Circuit Court of Mobile County against defendant Rust Engineering Company to recover workmen's compensation death benefits.

After demurrers were sustained to the complaint in the lower court, the plaintiff took a voluntary non-suit.

The Court of Civil Appeals reviewed the lower court 'by certiorari'. That appellate court 45 Ala.App. 626, 235 So.2d 673, reversed and held that the trial court should have overruled the demurrers to the complaint as last amended.

The petitioner-appellee-defendant Rust Engineering Company applied for certiorari to review the decision of the Court of Civil Appeals. Upon preliminary consideration this court concluded that there was a probability of merit in the petition and the writ was issued.

The complaint, as last amended, alleges, among other things, as follows:

'2. On, to-wit, September 21, 1966, the relation of employer and employee existed between Defendant and Plaintiff's intestate, John E. Gilmore; Plaintiff's intestate and Defendant were at that time subject to the Workmen's Compensation laws of Alabama; Plaintiff's intestate was a member of, and was represented for collective bargaining purposes by, an organized labor union, viz: Plumbers and Steamfitters Local 52, with headquarters in Montgomery, Alabama. On said date there was in force and effect between Defendant as employer, and said Plumbers and Steamfitters Local Union No. 52 as the union representing its members, including Plaintiff's intestate, a written agreement governing the hiring of men, working conditions and wage rates, which agreement, in Article Four, WAGE RATES, provided as follows:

'Section 13. Travel expenses shall be as follows:

A From Court Square, Montgomery, Alabama, 10 to 30 miles, $2.00 per day.

B All over 30 miles $3.00 per day.

C Mileage to be measured by highway.'

'The Section above quoted providing for payment of travel expense represented payment in addition to the basic hourly wage rates provided for in other sections of said Article Four.

'3. Plaintiff's intestate, who resided at Route 2, Box 261, Theodore, Mobile County, Alabama, through said Local 52 had been employed by Defendant prior to September 21, 1966, and had leased living quarters for himself and his family near Mulberry in Autauga County, Alabama, and had moved his family from his Mobile County residence to these living quarters in Autauga County.

'4. The job site of Defendant at which Plaintiff's intestate was working on and prior to the date of his death, to-wit, the future location of Hammermill Paper Company, was located in Dallas County, Alabama at a point approximately forty-eight (48) miles from Court Square in the City of Montgomery, Alabama. The travel expense to which Plaintiff's intestate was entitled, and which he was receiving, pursuant to the employer-union agreement above described was $3.00 per day.

'5. On the day aforesaid, to-wit, September 21, 1966, Plaintiff's intestate had traveled from his rented living quarters in Autauga County, Alabama, to the job site of Defendant in Dallas County, Alabama, and had performed, to-wit eight (8) hours' work for Defendant at the basic hourly wage rate prescribed by the employer-union contract aforesaid; upon completion of eight (8) hours' work at Defendant's job site, Plaintiff's intestate climbed into his pickup truck in which he had traveled from his rented living quarters to work on the morning of, to-wit, September 21, 1966, and commenced his return trip to his rented living quarters in Autauga County, Alabama. The route from work to home used by Plaintiff's intestate began with a new road then under construction in Dallas County, Alabama, leading from Defendant's job site to a paved public highway known as, to-wit, River Road, and while traveling on this new road, Plaintiff's intestate's pickup truck was involved in a collision with another vehicle at or near the intersection of said new road with said River Road, as a proximate result of which Plaintiff's intestate was killed.

'6. Plaintiff avers that the travel expense contracted for between said Union Local No. 52 and Defendant constituted a part of the consideration received by the members of said Union employed by Defendant, including Plaintiff's intestate, for their work; that the sole feasible means of transportation available to Plaintiff's intestate to and from work each day at Defendant's job site was by private motor vehicle along and upon the roads and highways of Alabama; that by virtue of the inclusion of the provision for travel expense in the agreement between said Union and Defendant, Defendant became obligated to pay same and said provision thereby became a condition of the employment agreement between Defendant and Plaintiff's intestate. Wherefore, Plaintiff avers that death was caused to her husband, Plaintiff's intestate and Defendant's employee, by an accident arising out of and in the course of his employment.'

The two counts contained in the complaint are the same except that Paragraph 6 of Count Two differs from Paragraph 6 of Count One. In Paragraph 6 of Count Two the plaintiff averred in substance that at the time of the collision plaintiff's intestate was at or near his place of work on the 'new road'; that said 'new road' was a new public road under construction and was being constructed primarily and especially for the use of persons working at the construction of a plant for Hammermill Paper Company, including plaintiff's intestate; that the 'new road' led directly from the job site to River Road; that before construction began, River Road was the only access road to the job site and was a winding, curving road unsuitable for quick and efficient ingress and egress to the job site; and that the intestate's death was caused by accident arising out of and in the course of the intestate's employment.

The Court of Civil Appeals did not decide whether the complaint was sufficient to show plaintiff's right to recover, but concluded that 'we are satisfied that the last amended complaint of appellant (plaintiff) was sufficient as against demurrer so as to warrant an evidentiary hearing to proceed thereon.'

The petitioner Rust Engineering Company contends that the opinion of the Court of Civil Appeals is in conflict with the opinion of this court in Louisville & Nashville R.R. Co. v. National Park Bank of New York, 188 Ala. 109, 65 So. 1003, in that if the complaint sets out the facts of a claim and the facts do not support the conclusion then the conclusion must yield to the alleged facts and the demurrer should be sustained.

Petitioner Rust Engineering Company also contends that this presents a material question of first impression in the appellate courts of Alabama and was incorrectly decided.

The Court of Civil Appeals, in effect, held that when the complaint in a workmen's compensation case alleges the necessary allegations required by § 304 of Title 26, Code of Alabama, 1940, as amended, then such is sufficient against demurrers so as to warrant an evidentiary hearing to proceed thereon.

Our workmen's compensation statutes 'create rights and remedies and procedure all their own', and it is for this reason that complaints in such cases are not subject to as rigorous a requirement with regard to specificity as they otherwise would be. Pound v. Gaulding, 237 Ala. 387, 391, 187 So. 468, 470. In an effort to effectuate the humanitarian purposes of the compensation law the technical rules of pleading are not followed in workmen's compensation cases. Semmes Nurseries, Inc. v. McVay, 279 Ala. 42, 181 So.2d 331; Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 96 So.2d 159; Randle v. Dumas, 229 Ala. 396, 157 So. 218; DeBardeleben Coal Corporation v. Richards, 251 Ala. 324, 37 So.2d 121.

Liberal construction of the compensation law has been favored to effectuate its purposes and eliminate...

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16 cases
  • Union Camp Corp. v. Blackmon
    • United States
    • Alabama Supreme Court
    • November 9, 1972 to whether the injury Arose out of his employment, which element is also a requirement of our statute. In Gilmore v. Rust Engineering Co., 289 Ala. 46, 265 So.2d 591, this court wrote: 'As a general rule, accidents occurring while an employee is traveling to and from work are not conside......
  • Saenzpardo v. United Framing Constr. Co.
    • United States
    • U.S. District Court — Southern District of Alabama
    • October 21, 2011
    ...arises when the employee's transportation expenses constitute a part of the consideration paid for his services. Gilmore v. Rust Engineering Co., 265 So.2d 591, 595 (Ala. 1972). However, this exception only applies to employees of a company, and not to independent contractors. Shaw v. C.B. ......
  • Bell v. General American Transp Corp.
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    • Alabama Supreme Court
    • February 7, 1974
    ...applies when such transportation constitutes a part of the consideration paid to the employee for his services. Gilmore v. Rust Engineering Company, 289 Ala. 46, 265 So.2d 591. Such a payment has the effect of extending the employment to include travel time, and the risks involved in travel......
  • Dorsey v. U.S. Pipe & Foundry Co.
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    ...a result is to us contrary to the rule of liberal construction our courts apply to other sections of the act. Gilmore v. Rust Engineering Co., 289 Ala. 46, 265 So.2d 591 (1972); Young v. City of Huntsville, Ala.Civ.App., 342 So.2d 918 (1976). However, in order to give effect to such a view,......
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