Jett v. Turner

• Decision Date: 16 December 1926
• Docket Number: 1 Div. 418
• Citation: 215 Ala. 352,110 So. 702
• Parties: JETT et al. v. TURNER.
• Court: Alabama Supreme Court

110 So. 702

215 Ala. 352

JETT et al. v. TURNER.

1 Div. 418

Supreme Court of Alabama

December 16, 1926

Certiorari to Circuit Court, Mobile County.

Petition of Daniel E. Jett and James J. Quill, individually and as partners doing business under the name and style of Jett-Quill Construction Company, for certiorari to the circuit court of Mobile county to review the judgment and finding of that court for the claimant in a proceeding under the Workmen's Compensation Act by James B. Turner against the petitioners. Writ denied and judgment affirmed.

Smiths Young & Johnston, of Mobile, for petitioners.

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

BOULDIN J.

This is a certiorari proceeding to review a judgment awarding compensation to an employee under the Workmen's Compensation Law. The sole question presented is whether the injury was caused by accident "arising out of and in the course of his employment." Code, § 7534. The finding of facts on this issue was:

"That on, to wit, the 22d day of July, 1925, J.B. Turner made a contract with defendant for personal services at the rate of 60 cents per hour, and that, as a part of the consideration paid, or to be paid, to him, for his services rendered, or to be rendered, the defendant was to furnish him transportation from his home to the place of work and return by way of automobile; that on the 3d day of August, 1925 while returning to his home from the Dog river bridge, where the petitioner had been at work for the defendant, as a carpenter, in an automobile designated by the defendant's foreman in charge of said work, the cost of transportation therein amounting to 10 cents having been paid by the defendant, he was painfully and permanently injured as a result of the reckless and negligent driving of the person in charge of said automobile."

The inquiry thus squarely presented is: When as part of the contract of employment the employer furnishes transportation to and from the place of work, is an injury to the employee while in transportation within our compensation statute? The case must be governed by a proper construction of the Code, § 7596, subd. (j), saying:

"Without otherwise affecting either the meaning or interpretation of the abridged clause, injuries by an accident arising out of and in the course of his employment it is hereby declared: Not to cover workmen except while engaged in, on, or about the premises where their services are being performed, or where their service requires their presence as a part of such service at the time of the accident, and during the hours of service as such workmen ***"

The section is headed, "Words and phrases defined." Without question subdivision (j) is in a sense definitive of the general clause styled therein an "abridged clause," viz., "injuries by accident arising out of and in the course of the employment." The provision begins with the precaution, "without otherwise affecting either the meaning or interpretation" of the clause defined. Thus the defining terms of subdivision "(j)" are not to be looked to as all-inclusive, but in connection with the legal meaning of the abridged clause as expressed in its own terms, and in view of the purposes of the act. With this precaution, the definition takes the form of a limitation. The abridged clause is "declared: Not to cover workmen except" under conditions then named.

The conditions named are three: (1) One of relation "while engaged in" the service, while the hazards of the employment are present, risks which the law aims to make in some measure the burden of industry rather than the burden of the victim of the accident. (2) One of place, viz., "On or about the premises" where their services are being performed, or where their service requires their presence as a part of such service at the time of the accident." (3) One of time, viz., "during the hours of service as such workmen."

Subdivision (j) contains other limitations not essential to the present inquiry. This court has twice had occasion to consider these provisions with reference to an injury received by an employee after leaving the premises and while returning from his place of work to his home.

In Ex parte American Fuel Co., 210 Ala. 229, 97 So. 711, the employee, in the language of the opinion, was, when injured, "being transported at his own expense from the place of service to the town of his residence." It appears the transportation was being furnished by a third person, the employer's relation thereto being the collection of the fares out of the wages of the employees for the benefit of the third person. Declaring that, when injured, the employee was not upon the premises, nor at a place where the duties of his service required him to be, nor was he injured during his hours of service, it was held no compensation could be allowed. This case, noting the declared rule that a statute copied from that of another state presumably adopts the existing construction in the parent state, and that subdivision was taken from the statute of Minnesota, cited certain decisions from that state.

In Ex parte Taylor, 213 Ala. 282, 104 So. 527, we reviewed these Minnesota cases, giving briefly the facts and quoting from the opinions. In the Taylor Case some comments were made on the trend of the Minnesota cases as touching the question now before us. These comments may be a bit misleading in failing to properly note the alternative clause as to place; but the question now before us was left undecided, and the decision placed on the ground that at the time of the injury the employee had left the conveyance of his employer at destination and was injured by a passing automobile on a public street.

Among the Minnesota decisions cited and reviewed was Nesbitt v. Foundry Co., 145 Minn. 286, 177 N.W. 131, 10 A.L.R. 165, wherein the facts were quite analogous to the present case. Appellant now calls to our attention that this case was decided several months after the Alabama statute was enacted. This being true, it could not have been in mind as an established construction of language being adopted by our Legislature. The case must, therefore, be regarded as having only that persuasive authority accorded judicial decisions in general.

After announcing the rule of nonliability as quoted in our Taylor Case above, the Minnesota court noted the hardship that may arise by denying compensation to an employee injured while going to his place of work on a conveyance furnished by the employer as part of the contract of employment, and suggests that it may be desirable to amend the act. Accordingly, the Minnesota Act was amended by inserting in subdivision (j) the following:

"Provided,

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