Horton v. DeLoach

Decision Date19 March 1964
Docket Number6 Div. 44
Citation162 So.2d 453,276 Ala. 357
PartiesJohn A. HORTON v. William B. DeLOACH et al.
CourtAlabama Supreme Court

Walter B. Henley, Northport, for appellant.

Olin W. Zeanah and Jere L. Beasley, Tuscaloosa, for appellees.

GOODWYN, Justice.

This is a workmen's compensation case brought here by certiorari (Code 1940, Tit. 26, §§ 297, 304).

Petitioner, an employee of respondents, received an injury 'caused by an accident arising out of and in the course of his employment' and brought suit to recover compensation therefor under the provisions of the Alabama Workmen's Compensation Act (Code 1940, Tit. 26, § 253 et seq., as amended). The respondents filed a plea in abatement alleging that they 'were not operating under the provisions of the Workmen's Compensation Law of the State of Alabama at the time of the accidental injury alleged in the plaintiff's complaint, they having elected not to operate within said law,' and that they 'did not employ as many as eight employees at the time of the accidental injury alleged in the plaintiff's complaint' so as to bring them within said law. See: §§ 262(d), 263, Tit. 26, Code 1940.

The trial court, after an oral hearing of the evidence on the issue presented by the plea in abatement, sustained the plea and abated the suit. Petitioner then instituted this certiorari proceeding for a review of that action.

It is undisputed that respondents regularly employed five employees. The disputed factual issue is whether four automobile salesmen, paid by respondents on a commission basis, also were 'employees,' within the meaning of that term as used in the Workmen's Compensation Law, so as to increase the number of respondents' employees to eight or more, thereby making them subject to the compensation law. As already noted, the trial court held they were not such 'employees.' And we find no basis for disturbing that holding.

Pursuant to Code 1940, Tit. 26, § 304, as amended by Act No. 350, appvd. Aug. 23, 1957, Acts 1957, Vol. I, p. 460, the trial court made the following factual findings:

'The court finds from the evidence that on the date the accident on which the plaintiff's suit is based occurred the defendants regularly employed five employees who consisted of a mechanic, two Negro wash boys, a body man, and a secretary; and that in addition to these employees, four other persons sold automobiles which belonged to the defendants and were paid only on the basis of a commission based on the price at which each salesman sold the automobile.

'The court finds that these four persons, who are hereinafter referred to as salesmen and were so designated in the testimony, received no salary or remuneration in any amount or form whatever from the defendants except the commission paid to them from the sales price of the individual automobile sold by each individual salesman.

'The court further finds that these salesmen had no regular working hours, no prescribed work rules, and no specified place where the sales of automobiles would be undertaken, and that the only control or right of control of these salesmen reserved by the defendants was that of permitting the salesmen to sell the cars of the defendants, and the court finds that on occasion some of these salesmen also bought and sold automobiles for other dealers during the same period in which they were selling the automobiles of the defendants.

'The court further finds that the defendants established a minimum price for which they would agree to sell an automobile, but the price at which the same would be sold was within the discretion of the salesman and he could ask and receive as much above that price as he was able to get. No other control of the sales price was reserved by the defendants except the minimum which was set in this manner. The commission received by the salesman was 6% of the sales price.

'The court further finds that the salesmen were free to contact any person considered by them to be a prospective buyer and could travel at any time to any part of Tuscaloosa County or outside the County for the purpose of contacting such prospect: that no vacation period was alloted to any salesman, but the salesman could each take the...

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9 cases
  • Bell v. General American Transp Corp.
    • United States
    • Alabama Supreme Court
    • February 7, 1974
    ...in a workmen's compensation case, such finding is conclusive, and the judgment rendered thereon will not be disturbed. Horton v. DeLoach, 276 Ala. 357, 162 So.2d 453. In defining the phrases "arising out of" and "in the course of," this court in Queen City Furniture Co. v. Hinds, 274 Ala. 5......
  • Health-Tex, Inc. v. West
    • United States
    • Alabama Court of Civil Appeals
    • April 22, 1981
    ...weight of the evidence before the trial court is not before this court on appeal in a workmen's compensation case. Horton v. DeLoach, 276 Ala. 357, 162 So.2d 453 (1964). We AFFIRMED. All the Judges concur. ...
  • Den-Tal-Eze Mfg. Co. v. Gosa, DEN-TAL-EZE
    • United States
    • Alabama Court of Civil Appeals
    • September 24, 1980
    ...The weight of evidence before the trial court is not before this court on appeal in a workmen's compensation case. Horton v. DeLoach, 276 Ala. 357, 162 So.2d 453 (1964). The court could properly find the evidence insufficient to support rehabilitation to another vocation, especially in view......
  • Semmes Nurseries, Inc. v. McVay, 1 Div. 124
    • United States
    • Alabama Supreme Court
    • December 16, 1965
    ...and the judgment thereon will not be disturbed. Sloss-Sheffield Steel & Iron Co. v. House, 217 Ala. 422, 116 So. 167; Horton v. DeLoach, 276 Ala. 357, 162 So.2d 453. We will look to see if there be any legal evidence, or reasonable inference therefrom, to support the court's findings in tho......
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