Hamilton Motor Co. v. Cooner

• Decision Date: 22 June 1950
• Docket Number: 6 Div. 982
• Citation: 47 So.2d 270,254 Ala. 422
• Parties: HAMILTON MOTOR CO. et al. v. COONER.
• Court: Alabama Supreme Court

Page 270

47 So.2d 270

254 Ala. 422

HAMILTON MOTOR CO. et al. v. COONER.

6 Div. 982.

Supreme Court of Alabama.

June 22, 1950.

Rehearing Denied Nov. 2, 1950.

London & Yancey, Geo. W. Yancey, and Frank E. Lankford, all of Birmingham, for appellant.

Powell & MacLaurin and Bankhead, Skinner & Kilgore, all of Jasper, for appellee.

STAKELY, Justice.

This is a petition for certiorari to review the judgment of the lower court awarding compensation under the Workmen's Compensation Act, Code 1940, Tit. 26, §§ 253-325, to the widow and dependent children of Grady Cooner, deceased.

Grady Cooner met his death on June 15, 1948, at 5:25 p.m. in an automobile accident on Alabama Highway 78 approximately 1 1/4 miles east of Jasper, Alabama. The question for decision is whether the death of Grady Cooner arose out of and in the course of his employment.

Grady Cooner was employed by the defendant Hamilton Motor Company, a partnership of which Lee Hamilton was one of the partners. Grady Cooner worked as a mechanic in the shop which was located in Jasper, Alabama, and had worked for the defendant for about ten years prior to the time of the accident. During that time he was employed to do mechanical work and help on any other work for the advancement of the company's business. He worked as a mechanic, servicing cars, pulling in wrecks from the highway to defendant's place of business, working sometime at night, sometime overtime and on the day of the accident and prior thereto he had assisted in digging the pit and fixing pipes where a grease rack was being installed by the defendant company.

The completion of the installation of the grease rack required the pouring, mixing and coloring the concrete. This work was commenced late on the evening of June 15, 1948 and required working late in the night as the concrete had to be worked while wet and before it hardened. Charlie Sisk, who was a mechanic for the defendant company, had been working on this grease lift from time to time. On the evening of the accident John H. Sampson had been employed by the defendant to pour and work the concrete for the defendant company. Lee Hamilton, who has been referred to, requested Charlie Sisk to stay, if he would and could, to help finish the concrete job. Sisk replied that his wife would be expecting him in a few minutes. Lee Hamilton knew that the wife of Charlie Sisk was not in good health at the time. Charlie Sisk lived near Cordova, Alabama, about eight miles east from Jasper. Charlie Sisk told Lee Hamilton that he (Sisk) or someone else would have to get word to his wife. Lee Hamilton made no reply to this statement. However, Charlie Sisk in the presence and hearing of Lee Hamilton asked S. B. Whatley, an employee of the defendant company, to notify his wife that he would be late getting home. For some reason S. B. Whatley could not go to notify the wife of Charlie Sisk. In the presence of Lee Hamilton, Charlie Sisk stated that he (Sisk) had 'to stay there and finish the job.' It was necessary for him to do this work immediately helping mix the concrete and color it and finish the floor of the rack and this had to go on before the cement set up and got hard. It was necessary for it to be done immediately as fast as it got ready to be done.

At about five o'clock Grady Cooner came to Charlie Sisk and told him that he would go to notify his wife. Thereupon Charlie Sisk pitched him his (Sisk's) car keys and Grady Cooner got into Sisk's car and left on the mission to notify Sisk's wife at Cordova. There is testimony tending to show that the working hours of the company were from 7 a.m. to 5:30 p.m. and that Grady Cooner had not checked out for the day. There is testimony that Grady Cooner was killed in an accident which happened at 5:25 p.m.

Both Lee Hamilton and Charlie Sisk testified that Grady Cooner before leaving to go to Cordova asked Lee Hamilton if he wanted him (Cooner) to stay and help with the concrete and Hamilton replied, 'Much obliged, Grady, Charlie is going to stay.' According to the testimony of Lee Hamilton he did not know that Grady Cooner had gone to Cordova. At this time Grady Cooner had changed from his work clothes to his street clothes when he left on the mission to notify Sisk's wife. Lee Hamilton further testified that he did not personally send Grady Cooner on this mission. However, the evidence shows that Lee Hamilton told Charlie Sisk that he wanted him to stay after the usual working hours to work on the grease lift that was being installed if he could and would and Charlie Sisk replied that his wife should be notified and he told Lee Hamilton 'It looks like I will have to knock off and run down and tell my wife that I will be working late.' In the conversation between Charlie Sisk and Lee Hamilton relating to going to Cordova to notify the wife of Charlie Sisk or getting someone to go for him Lee Hamilton made no reply to Charlie Sisk about this.

The grease rack being worked on occupied a space of 35 to 40 feet square. The parties supervising the installation and work on the same were John H. Sampson, a concrete finisher, Charlie Sisk, who was entrusted with supervising the mixing of the concrete with the color finish to be placed on the floor of the grease rack, which had to be worked simultaneously with the pouring of the concrete, and Lee Hamilton, a partner of the defendant company. All of the conversations relating to the trip to Cordova took place within the foregoing area about 5:00 p.m. Lee Hamilton was present and according to S. B. Whatley's testimony within eight feet of him and was standing between Whatley and Sisk when Sisk requested Whatley to go and make the trip to Cordova, although Hamilton testified that he did not hear the conversation. Charlie Sisk was working on the grease rack when Grady Cooner came and got the car keys in order to make the trip to Cordova and Lee Hamilton was present, although according to his testimony he did not see or hear what transpired.

At the time of the accident Grady Cooner was travelling the direct route over the highway to Charlie Sisk's home to perform the mission of notifying Charlie Sisk's wife that her husband was working late for the company.

We quote the following excerpts from the testimony of S. B. Whatley, an employee of the defendant company, with reference to the employment of Charlie Sisk.

'Q. Who had charge of building the lift? A. Charlie Sisk.

'Q. Did he supervise the building of it? A. That's it; he pushed that project; so far as I know he did supervise it.

* * *

* * *

'Q. You know he was a mechanic and when it came to that lift he did the work himself? A. Specifically assigned to work that project.

'Q. What did you hear him, Mr. Hamilton, tell him? A. Stay right on the job until it is finished.'

We quote the following excerpt from the testimony of Lee Hamilton:

'Q. Mr. Cooner came up to you and made some inquiry, I believe you said, about whether you wanted him to stay, is that right? A. Yes, sir.

'Q. Did he go on to say whether you wanted him to help with the concrete? A. He calls me Lee--Lee and Grady; said 'Lee, do you want me to stay and help you finish this concrete work?'

'Q. What did you say? A. I said, 'No, Grady, much obliged, Charlie is going to stay.'

'Q. Charlie Sisk? A. Yes, sir.

'Q. When you replied to Mr. Cooner you knew Charlie Sisk was going to stay on the job. A. I did not know definitely he was going to stay; he indicated he would.

'Q. You assumed he would? A. Yes.

'Q. At that time Charlie Sisk had told you he or someone would have to notify his wife he was going to stay and work? A. Yes, sir.

'Q. You knew that was the case? A. Yes, sir.

'Q. You knew Sisk or someone for him would have to notify his wife if he stayed and worked overtime? A. That's what he told me.

'Q. When he told you that, after he told you that, you told Mr. Cooner, 'Charlie is going to stay tonight.' A. Yes, sir.

'Q. Mr. Sisk would stay? A. Mr. Sisk would stay.'

There is no doubt that at the time of his death Grady Cooner was performing a service for his employer. It was to keep an essential man on the job to perform a necessary service in working and coloring the concrete being poured while setting and before it hardened. While the defendant company did not need Grady Cooner's services for working on the concrete lift in pouring concrete, it did need his services or the services of someone to perform the act of notifying Sisk's wife. This service enabled the company to complete the emergency job after the usual working hours by keeping Charlie Sisk on the job to do the special work required by the company. This special work could not be delayed once the pouring of the concrete was commenced and Sisk was certainly needed for the purpose. In fact according to the proof this work continued until well into the early hours of the next morning. The court found that the act of Grady Cooner in going to notify Charlie Sisk's wife was expressly authorized by Sisk and impliedly authorized, acquiesced in and accepted by the defendant company. The court found that the trip by Grady Cooner was in the company's interest and the making of the trip by Grady Cooner was reasonably related to his employer's business or work. The court found that Grady Cooner was engaged in an act of service naturally related to the company's business and that Grady Cooner by making this trip to Cordova did not take himself out of the scope of his employment as he was performing an act necessary to be done by someone for his employer and was either doing the work or performing a service he was engaged to do or perform.

When there is any legal evidence to support the findings of fact by the trial court in a proceeding of this kind, such findings are conclusive and will not be disturbed by the appellate court. Nor will such findings be disturbed because of mistakes made by the trial court in passing upon the weight of the evidence. But if the findings are...