Herndon v. Slayton

• Decision Date: 28 November 1955
• Docket Number: 2 Div. 354
• Citation: 263 Ala. 677,83 So.2d 726
• Parties: Fred HERNDON v. Ruth H. SLAYTON.
• Court: Alabama Supreme Court

Page 726

83 So.2d 726

263 Ala. 677

Fred HERNDON v. Ruth H. SLAYTON.

2 Div. 354.

Supreme Court of Alabama.

Nov. 28, 1955.

B. J. Dryer, Woodward, for appellant.

Ira. D. Pruitt, Livingston, and Vickers & Thornton, Mobile, for appellee. MAYFIELD, Justice.

We granted certiorari to review the trial Court's judgment awarding compensation to Ruth H. Slayton, the wife of the defendant's deceased employee, Milton L. Slayton. The application for certiorari was filed on behalf of the defendant, Fred Herndon, in whose employment Milton L. Slayton was working at the time he met his death by accident.

The sole issue here involved is whether or not the plaintiff's rights and the defendant's liabilities were governed by the Workmen's Compensation Act at the time this cause of action arose.

A short resume of the salient facts surrounding the circumstances of the deceased's employment are necessary to an understanding of our decision. The defendant Herndon was engaged in the plumbing and electrical contracting business in Eutaw, Alabama. He held a contract to do certain electrical work in connection with auxiliary buildings used as an adjunct to the Eutaw High School Athletic Field. The defendant had wired these buildings but, under his contract, it was necessary to connect this wiring to the football field lighting poles. These poles were approximately 65 feet in height and the services of a skilled linesman to climb these poles to a height of approximately 55 feet was necessary in order to make the proper electrical connections.

The only employee that Mr. Herndon had who was qualified to do this work was incapacitated at the time it became necessary to make the connection between the buildings and the lighting poles.

A Mr. Higginbotham who had eleven years experience in Eutaw with the Alabama Power Company, and who had formerly done some work for Mr. Herndon, was contacted by the defendant with reference to performing this service. The defendant Herndon clearly constituted Mr. Higginbotham his agent for the purpose of securing the services of qualified linesmen to do this work. Mr. Herndon's own testimony is that he so constituted Mr. Higginbotham his agent:

'Q. Did you enter into an agreement with Mr. Slayton, the deceased, as to some work on that project? A. (by Mr. Herndon) I didn't directly enter into an agreement with Mr. Slayton. I done my business with Mr. Higginbotham. He acted as agent for me.'

Mr. Herndon seems to have had great confidence in Mr. Higginbotham and left up to him the selection of the linesmen, their qualifications and the terms of their employment, which was fixed at $3.50 an hour with an additional stipulation that transportation to Demopolis be furnished to them.

Mr. Higginbotham, at Mr. Herndon's request, obtained the services of Mr. Slayton, the deceased, and Mr. Henry. All of the evidence in the case is to the effect that at the time Mr. Higginbotham obtained the services of Mr. Slayton and Mr. Henry that they queried him as to whether or not the defendant was operating under the Workmen's Compensation Law. The following testimony was given by Mr. Higginbotham at the trial in the presence of Mr. Herndon, who in no way denied it:

'Q. Will you state whether or not Mr. Herndon had Workmen's Compensation Insurance at the time? A. Yes, sir.

'Q. How do you know that? A. I'd worked with him before and knew he carred it, and I also told the other boys he carried it.

'Q. You knew he carried it before this? A. Yes, sir.

'Q. And you told Mr. Henry and Mr. Slayton he had Workmen's Compensation Insurance and they would be covered by it? A. Yes, sir.

* * *

* * *

'Q. And you based your statement on Mr. Herndon's statement to you? A. Yes, sir.'

The defendant had previously availed himself of the services of Mr. Higginbotham. Linesmen are highly skilled laborers They work at a dangerous occupation and are conscious of the hazards to which they are subjected. Mr. Slayton and Mr. Henry, in their regular employment with the Alabama Power Company, were covered by the Workmen's Compensation Act, and we do not think it unusual that they would have inquired as to compensation coverage prior to undertaking the hazardous job which resulted in Mr. Slayton's death.

After they accept the employment, Mr. Higginbotham climbed one pole, Mr. Henry another pole and Mr. Slayton the third. Mr. Herndon told these men, in general terms, what he wanted done, but did not advise or direct them as to the manner in which the service was to be performed. About twenty-five or thirty minutes after these linesmen started their work Mr. Slayton's safety belt broke, he fell to the earth and died shortly thereafter. Upon seeing Mr. Slayton fall, Mr. Herndon ran to the stadium gate, found an automobile with the keys in it and brought a doctor to attend Mr. Slayton.

The cause was heard on the verified complaint, as amended, of the petitioner Ruth H. Slayton, and the verified answer of the defendant Herndon. The learned trial judge heard the witnesses in open court. The evidence is conclusive that, at the time of Mr. Slayton's death, the relationship of employer and employee existed between him and the defendant, and that Mr. Herndon was guilty of no negligence in connection with Mr. Slayton's injury.

A finding of fact was entered by the trial court, in pertinent part, as follows:

'1. Milton L. Slayton was employed by Fred Herndon on the 9th day of September, 1952. At that time the relation of employer and employee or master and servant as defined by the Workmen's Compensation Act of Alabama, existed between the parties. While so employed and engaged in the business of the respondent and while acting in the line and scope of his employment Milton L. Slayton met his death arising out of an accident and the accident arose out of and in the course of his employment.

'2. Milton L. Slayton left surviving him as his widow, the petitioner, Ruth H. Slayton, and two minor children each of whom is under the age of fourteen (14) years. Petitioner resides in the City of Marion, State of Alabama and the respondent, Fred Herndon, resides in the City of Eutaw, State of Alabama.

'3. Milton L. Slayton was engaged by respondent to complete electrical connections to facilities used in connection with a football field situated in the City of Eutaw, Alabama. While so employed and in the line and scope of his employment Milton L. Slayton climbed a wooden pole at said football field and while working thereon slipped and fell to the ground and as a proximate result thereof and in consequence thereof, Milton L. Slayton met his death.

'4. Respondent had prompt and immediate notice of the accident and death.

* * *

* * *

'6. Ruth H. Slayton was solely dependent upon Milton L. Slayton as were the two minor children at the time of the death of Milton L. Slayton.

'7. Fred Herndon did not at all times employ as many as eight (8) employees in his business, but from time to time he did, during a given audit period employ eight (8) or more individuals, and for the audit period during which the accident occurred he employed more than eight (8) persons. He had, in fact accepted the provisions of the Workmen's Compensation Act of Alabama; he obtained and carried insurance for the benefit and protection of his employees as provided by the Workmen's Compensation Act, and had been so carrying said insurance since 1947 with the same insurer, that he regularly paid the premium on said insurance and in so doing he paid an annual estimated premium to his insurance carrier, Employers Insurance Company of Alabama, Inc., which said insurer regularly audited the books and records of Fred Herndon and based his premiums for said insurance coverage upon the results of said audits.

'Fred Herndon listed Milton L. Slayton as one of his employees. His records reflect the payment of wages to Milton L. Slayton. The evidence before the Court is that said records were audited by his insurer and the insurance premium paid to said insurer was based upon payroll figures which included the wages paid to said Milton L. Slayton. The insurer paid medical benefits on behalf of several employees of Fred Herndon prior to the date of the death of said Slayton. In this instance it paid medical bills on his behalf as the employee of Fred Herndon.

'The said Fred Herndon accepted the provisions of the Workmen's Compensation Act; he so informed his employees and he had fully complied with the provisions of the Workmen's Compensation Act. The provisions of the Workmen's Compensation Act are applicable in this case in computing the benefits to which the widow and minor children of Milton L. Slayton deceased, are entitled.

* * *

* * *

'10. A controversy has arisen as to the benefits to be paid under the Workmen's Compensation Act in this case.

'Conclusion of Law

'1. The Court has jurisdiction of this cause.

'2. The employment of Milton L. Slayton by Fred Herndon was under the Workmen's Compensation Act and his dependent widow with two minor children is entitled to the benefits provided by said Act.

* * *

* * *

'Done this the 10th day of June, 1955.

'Emmett F. Hildreth

Circuit Judge'

While the trial judge found 'during a given audit period (the defendant did) employ eight (8) or more individuals, and for the audit period during which the accident occurred, he employed more than eight (8) persons'; this cause was not briefed or argued in this court on the proposition that the deceased was automatically covered because the employer was regularly employing more than eight employees at the time of Mr. Slayton's death.

There seems to have been serious doubt in the minds of petitioner's counsel that they could meet the burden of proving that the defendant regularly employed eight or more employees. By amendment to her petition, petitioner, in effect, alleges that even though the defendant had not filed the notices required by § 274, Tit. 26...