Hardie Sales Co., Inc. v. Astrachan

• Decision Date: 14 May 1940
• Docket Number: 1 Div. 104.
• Citation: 239 Ala. 558,196 So. 135
• Parties: HARDIE SALES CO., INC., v. ASTRACHAN.
• Court: Alabama Supreme Court

196 So. 135

239 Ala. 558

HARDIE SALES CO., INC., v. ASTRACHAN.

1 Div. 104.

Supreme Court of Alabama

May 14, 1940

Certiorari to Court of Appeals.

Petition of Hardie Sales Company, Incorporated, for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Hardie Sales Co. v Astrachan, 196 So. 134.

Writ denied.

Smith &amp Johnston, of Mobile, for petitioner.

Harry T. Smith & Caffey, of Mobile, opposed.

BROWN Justice.

This case came to the Court of Appeals, 196 So. 134, through "appeal by certiorari," aided by bill of exceptions containing the evidence. Woodward Iron Co. v Bradford, 206 Ala. 447, 90 So. 803; Bessemer Engineering & Construction Co. v. Smith, 216 Ala. 348 113 So. 290; Exchange Distributing Co. v. Oslin, 229 Ala. 547, 158 So. 743.

The Court of Appeals finds as a fact that the finding of fact by the circuit court embodied in the "statement of the law and facts and conclusions as determined by said judge," required by § 7578 of the Code 1923, as restated in the opinion of the Court of Appeals, is supported by legal evidence.

The petitioner's contention here is that the facts so restated, as a matter of law, do not show that the injury received by the workman arose out of and in the course of his employment. The gist of the argument, to quote from the brief, is: "There is nothing in the findings of fact to show that the employee's period of service had commenced at the time he received his injury. The facts do not state that the plaintiff, when at the main plant on Dauphin Street immediately prior to commencing his journey to the Springhill Avenue branch had visited the main plant for the performance of any service for the employer. It is not contended by the plaintiff, nor is it revealed in the findings of fact of the court, that the plaintiff had been instructed to visit the main plant preparatory to his journey to the Springhill Avenue branch for the performance of any service which would bring him within the defendant's employment. To assume such a state of circumstances would result in this court's granting a finding of fact based on speculation. The fact that the plaintiff was subject to call and the mere fact that his employment brought him to the place of injury, is not enough. The injury must have had its origin in a risk connected with the employment itself, and must have been the result of this."

We are of opinion that the stated facts that, "At the time plaintiff was going from the main store or principal place of business of the Hardie Sales Company, Inc., on Dauphin Street, to the branch office of said Hardie Sales Company, Inc., under specific orders or...