Hayes v. Alabama By-Products Corp.
| Decision Date | 15 January 1942 |
| Docket Number | 6 Div. 906 |
| Citation | 242 Ala. 148,5 So.2d 624 |
| Parties | HAYES v. ALABAMA BY-PRODUCTS CORPORATION. |
| Court | Alabama Supreme Court |
Hugh A. Locke and Andrew W. Griffin, both of Birmingham, for petitioner.
Cabaniss & Johnston and Newton H. Debardeleben, all of Birmingham for respondent.
This action arises under the Workmen's Compensation Act of Alabama.
The decree of the circuit court denying appellant compensation for the death of her son Talford Hayes was entered June 30 1941. The case comes here on writ of certiorari.
The question before this court is whether an accident arises out of and in the course of employment when it occurs after the employee has quit work for the day and has left the premises where his services are rendered and while he is in the process of taking a shower at a boarding house leased and operated by a third person who permits the employee to bathe there for one dollar a month.
Hayes was employed as a supplyman in the Company's No. 7 mine at Praco. He worked a regular shift of seven hours beginning at ten o'clock at night and ending at 5 o'clock in the morning. Shortly before 10 o'clock he was required to check in at the camp lamp house and receive his mine lamp. From there he would go to the timber yard where his day's work began. His work consisted of loading timber on a tram trip at the timber yard, riding the loaded trip into the mine, and unloading the timber at various timber yards inside the mine. His day's employment terminated at five o'clock in the morning. At that time he would catch a man-trip to the mouth of the mine from whence he walked to the lamp house, where he deposited his lamp, and checked off duty. He had no further services to perform for the company after he checked out at the lamp house.
The company provided no bathing facilities for its employees, had no requirement that they bathe, and made no effort to regulate the time or the place they bathed. This, it is urged, was the scope of his employment.
On the morning of the accident Hayes quit work at five o'clock caught a man-trip, deposited his lamp at the lamp house, and checked off duty. After leaving the lamp house, he walked to the small shower-house behind Benson's boarding house which is about 612 feet from the same and while he was undressing in this shower-house, preparing to take a bath the hot water tank for the shower exploded and scalded him. This accident occurred about five-thirty on the morning of January 26, 1939, and the said Hayes died the following day.
The ownership of and operation of the shower-house in question is without dispute. It is stated that the said shower-house is a small frame structure located in the back yard of a large dwelling which was leased from the company by Jim Benson in December, 1933. Benson's house is one of about 800 company houses located at Praco and is on company property. Benson pays the defendant a flat monthly rental for the premises. At the time Benson moved in there was no shower in the frame outhouse. There is evidence in the showing by Arthur Harbin and C.M. Handley that several years previous to the time when Benson moved in, there had been shower equipment in the outhouse. The trial court stated, however, that in its opinion there was no dispute in the evidence that this equipment had been removed prior to the time of Benson's lease, who, at his own expense and without consulting or informing defendant of his actions, installed the shower. He purchased the hot water tank from Sears Roebuck, used pipe in its installation which he had brought with him to Praco from a mine he formerly operated near Tuscaloosa, and began operating the shower-house. Houston Eddins, the company plumber or pipeman, assisted Benson in installing the said equipment. Subsequent to the installation of the equipment, Eddins has repaired it several times and was paid for said repairs by Benson.
Benson buys the coal used in heating the shower water, provides the labor for building the fire in the water heater and uses water furnished him by the company under his lease of the premises.
At the request of some of the miners who lived outside of Praco, Benson permitted them to use the shower for a dollar per month and at the time of the accident there were five or six of these outside men, including Hayes, using the shower. As to this the record recites that:
About six months prior to the accident Hayes made an agreement with Benson whereby he was permitted to use Benson's shower house under the terms of this agreement at the time the accident occurred. The company exercised no supervision or control over the operation of the shower-house. Benson did not inform the company of his actions in installing the shower equipment and in permitting five or six miners other than his roomers to use the shower-house. Benson retained the entire proceeds from the shower-house and did not account to the company therefor.
Plaintiff's counsel admits that at the time Harbin and Weeds, the Superintendent of the company, discussed the use of the house as a bathhouse, Harbin did not work for the defendant. He testified, however, that in his best judgment the coil and heating plant for the shower were the same which were originally installed by the company while he was in charge of the bathhouse. The witness Handley further made it plain that Harbin had formerly operated the bathhouse and it was then known as "Benson's Bathhouse" and when Harbin left the company's service, Handley discussed the operation of the bathhouse.
The showing for the witness Arthur Harbin, from his testimony, was that he worked for the company before 1929 and then operated the bathhouse which was used by the employees of defendant who were boarding with him; that they put on their work clothes when they were going into the mines and worked for defendant; that when employees "who room" with witness came out of the mines they used that bathhouse to take a bath in and put on their street clothes, leaving their work clothes there; that the bathhouse was originally built by the company while Mr. House was superintendent; that it was so used. It is very clear from this testimony that only the employees of the company who roomed with witness used this bathhouse for the three or four years while witness was there.
The evidence further shows that another bathhouse near the mines was run as the "Bookout Bathhouse" and it was equipped with two showers and used by some of the company's employees and at the time of the trial the company deducted the fees charged by Bookout for bathing at his place. The testimony shows that no such fees charged by Benson for bathing at his place were deducted by the company from the men's wages.
The finding of the trial court was that the "accident which caused the death of Talford Hayes, deceased, was not an accident arising out of and in the course of his employment by the defendant and therefore the plaintiff is not entitled to compensation from the defendant under the Workmen's Compensation Law of the State of Alabama."
There was a sufficient finding of fact to support the judgment rendered.
In Rockwood Alabama Stone Co. v. Lawler, 223 Ala. 336, 135 So. 569, it is held:
It is declared in recent decisions in this jurisdiction that on certiorari, this court will not weigh the evidence, but will only look to the bill of exceptions to see if there is any evidence to support the judgment rendered. Warrior Stone and Const. Co. et al. v. DeFoor, 241 Ala....
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