Glens Falls Ins. Co. of Glens Falls, N. Y. v. Anderson

• Decision Date: 09 March 1967
• Docket Number: 3 Div. 243
• Citation: 280 Ala. 626,197 So.2d 276
• Parties: The GLENS FALLS INSURANCE COMPANY OF GLENS FALLS, NEW YORK v. Louise S. ANDERSON.
• Court: Alabama Supreme Court

Page 276

197 So.2d 276

280 Ala. 626

The GLENS FALLS INSURANCE COMPANY OF GLENS FALLS, NEW YORK v. Louise S. ANDERSON.

3 Div. 243.

Supreme Court of Alabama.

March 9, 1967.

Rehearing Denied April 13, 1967.

Ball & Ball, Montgomery, for appellant.

Capell, Howard, Knabe & Cobbs, Montgomery, for appellee.

MERRILL, Justice.

Louise S. Anderson sued The Glens Falls Insurance Company of Glens Falls, New York, under a group insurance policy, for damages due to injuries sustained by her in a fall. The cause was tried before the court without a jury and resulted in a judgment of $7,784.55 for the plaintiff. From that judgment, the defendant-insurer has appealed.

There is no dispute as to the essential facts. The plaintiff's claim arises as a third party beneficiary under a contract of insurance purchased by the State Highway Department pursuant to Tit. 23, § 3, Code 1940, which provides the equivalent of workmen's compensation benefits for Highway Department employees 'who may be killed or injured in the line and scope of their employment.'

The plaintiff was employed by the State of Alabama Highway Department, in a clerical capacity, and worked in the main Highway Department office building at Adamas Avenue and Union Street in Montgomery. On the afternoon of July 22, 1964, during a coffee break, and to attend to business purely personal to her, she walked over to the Industrial Relations Building, a structure within the complex of State office buildings surrounding the Capitol, to pick up a check. It was her intention to go to the Capitol and cash the check at the office of the State Treasurer. The check was the proceeds of a loan made by the Industrial Relations Credit Union to Mrs. Kate Stansell, the plaintiff's mother, who had endorsed it over to the plaintiff. As Mrs. Anderson walked into the Industrial Relations Building, she fell in the foyer which had become slippery due to standing rainwater. The parties stipulated that Mrs. Anderson was disabled for 83 weeks as a result of injuries suffered from the fall.

The plaintiff's working hours were from 8:00 A.M. to 5:00 P.M., with an hour off for lunch and two fifteen minute rest periods (referred to as coffee breaks), one in the morning and one in the afternoon. The accident causing Mrs. Anderson's injury occurred during the time she normally took a coffee break.

Mrs. Maxine Rowe, the plaintiff's supervisor on the job, testified that the afternoon coffee break is generally limited to fifteen minutes and the employee can use it any way he wants to; that on the occasion in question it was not necessary for Mrs. Anderson to get Mrs. Rowe's permission to go anywhere; that she could have gone downtown or anywhere else. It was Mrs Rowe's understanding, however, that she was going over to the Capitol.

Colonel V. E. Richie, the personnel and training officer for the Highway Department, testified that it is not a violation of personnel rules for employees to visit in another building during an authorized rest period; that employees generally can use the fifteen minute break or rest period for any purpose they desire; that they could go to downtown Montgomery and do whatever they wanted. He stated further that the purpose of the daily breaks is to allow employees to relax and refresh themselves and get something to drink; that the employees have the same privileges during the coffee break as they do during the lunch hour except for the length of time.

The plaintiff testified that she was permitted to leave the Highway Department Building during these coffee breaks, and that it was fairly customary for employees to go out, walk around, drink coffee in different buildings, and tend to other matters.

The question for our decision is whether the plaintiff was injured 'in the line and scope of (her) employment.'

Counsel for opposing sides cite us to no factual situation in this State comparable to the one at bar. Our attention is called to many master and servant cases dealing with line and scope of employment and also workmen's compensation cases, based on accidents arising out of and in the course of employment, but none of those decisions provide us with a rule which exactly fits the circumstances of the instant appeal.

The coffee break has become somewhat of a fixture in the business and industrial life of our country. Its benefits are well known to both employee and employer. The former is allowed to relax and refresh himself--the latter obtains increased efficiency by permitting his workman a respite from the daily labors.

We have studied the decisions of other jurisdictions and textwriters for a workable rule to aid in solving cases of this nature and are persuaded that the test to be applied should be whether the employer retains control over the employee during the coffee break period. The subject is treated in Larson's Workmen's Compensation Law, Vol. I, § 15.54, where, beginning on page 246, the writer states:

'The operative principle which should be used to draw the line here is this: If the employer, in all the circumstances, including duration, shortness of the off-premises distance, and limitations on off-premises activity during the interval, can be deemed to have retained authority over the employee, the off-premises injury may be found to be within the course of employment.'

And commencing on page 248 of the same work we find:

'If the employees during the coffee break are expected to go to a particular off-premises place, the element of continued control is adequately supplied. In Sweet v. Kolosky, (259 Minn. 253, 106 N.W.2d 908), the claimant fell on a public sidewalk between the place of employment and the drugstore where all employees were permitted, by their employment agreement, to go for a coffee break because of lack of facilities on the premises. Compensation was awarded.'

This brings up the question of what is meant by 'premises' of the employer. In Allen v. Genry, 39 Ala.App. 281, 97 So.2d 828, Judge Harwood wrote:

'The word 'premises' is an elastic and inclusive term. Leroy Franz, Inc., v. City of New Rochelle, Sup., 124 N.Y.S.2d 525; and it does not have one definite and fixed meaning, but its meaning is to be determined by its context and is dependent on circumstances in which used, Gibbons v. Brandt, 7 Cir., 170 F.2d 385; the term may mean a room, shop, building, or any definite area. State v. Goodchild, 151 Me. 48, 115 A.2d 725.'

We have construed 'premises' of the employer as used in our Workmen's Compensation Laws, Tit. 26, § 262(j), Code 1940, as the premises at or near which the service of the employee is to be rendered. Hayes v. Alabama By-Products Corp., 242 Ala. 148, 5 So.2d 624; Sloss-Sheffield Steel & Iron Co. v. Thomas, 220 Ala. 686, 127 So. 165. We think this construction should be applied here.

Even though plaintiff was an employee of the State of Alabama, the group insurance here involved covered employees of the State Highway Department only. Plaintiff's service was to be rendered at or near the State Highway Building. As long as she was lawfully in or near that building, even during a coffee break, she was under the constructive control of her employer. But when she left the premises of the State Highway Building, on a purely personal mission to another State building, unconnected with her employment, she was off-premises. The mere fact that the other building was also a State building and part of the Capitol Complex does not make it the premises where she worked as contended by appellee in brief.

An exponent of the 'control by employer rule' is New York. We quote the full opinion of the Supreme Court of that State in Balsam v. New York State Division of Employment, 24 A.D.2d 802, 263 N.Y.S.2d 849:

'An employer and its carrier appeal from a decision of the Workmen's Compensation Board finding...