Malbis Bakery Co. v. Collins

Citation15 So.2d 705,245 Ala. 84
Decision Date21 October 1943
Docket Number1 Div. 196.
PartiesMALBIS BAKERY CO., Inc. v. COLLINS.
CourtSupreme Court of Alabama

Rehearing Denied Dec. 16, 1943.

Lyons & Thomas, of Mobile, for appellant.

Wm G. Caffey, of Mobile, for appellee.

STAKELY, Justice.

This proceeding is a certiorari in a case claiming compensation under the Workmen's Compensation Act of Alabama, Code 1940, Title 26, Section 253 et seq. To the complaint of the plaintiff, David Collins, the defendant, Malbis Bakery, filed its answer in which it denied that the plaintiff was injured by an accident arising out of and in the course of his employment and alleged in substance that the plaintiff was guilty of wilful misconduct which proximately contributed to his injuries in abandoning his duties as driver of the truck of the defendant and permitting Ashton D. Marsh, a sailor who was not an employee of the defendant, to drive the truck the plaintiff being in no wise authorized by the defendant to permit anyone else to drive the truck. The answer further alleged in substance that the plaintiff was guilty of wilful violation of a reasonable rule of the defendant, of which the plaintiff had notice, which prohibited anyone not an employee of the defendant from riding in the truck of the defendant at the time of the accident, and that violation of this rule was the proximate cause of the accident. The answer further alleged in substance that the plaintiff was guilty of wilful violation of law in that he allowed four persons, including himself, to ride on the front seat of the truck and that such action so crowded the driver and impaired his movements that he drove without due caution and circumspection and in a manner so as to endanger or be likely to endanger persons or property.

It was admitted in open court by the parties that the relationship of employer and employee was such as to bring them under the Workmen's Compensation Act of Alabama, if the accident arose out of and in the course of plaintiff's employment.

The trial court in substance found that the plaintiff on March 24, 1942, was injured on U.S. Highway 90 near Spanish Fort in Baldwin County, Alabama, in an accident arising out of his employment with the defendant, as a salesman and truck driver. The trial court further found in substance that although the plaintiff permitted the sailor, Ashton D. Marsh to drive the truck at the time of the accident, the plaintiff did not abandon the scope and sphere of his employment and was not guilty of wilful wrong or wilful violation of the rule of the defendant in allowing persons not employees of the defendant to ride in the truck and was not guilty of wilful violation of the law in allowing four persons including himself, to ride on the front seat of the truck.

The trial court further found that as a proximate result of the accident, the plaintiff's pelvic bone on the left side was fractured and pushed upward and backward with an anterior and posterior dislocation and in knitting has remained permanently dislocated and out of line; that plaintiff's left leg has thereby been permanently shortened at least an inch; that plaintiff's back has been permanently injured and will never be normal and that plaintiff as a result of his injuries was totally disabled for a period of forty weeks, ending December 22, 1942; that from said date he has been and in the future will be permanently partially disabled to the extent of 33 1/3 per cent.

It is insisted by the petitioner that there was no evidence to support the facts and conclusions as determined by the court. Accordingly, this Court has looked to the Bill of Exceptions to see if there is any evidence to support the conclusions reached by the trial court. This Court will not weigh the evidence as to any fact found by the trial court and if on any reasonable view of the evidence, the conclusions of the trial court are supported, then the finding and judgment of the trial court will not be disturbed. Sloss-Sheffield Steel & Iron Co. v. Alexander, 241 Ala. 476, 3 So.2d 46; Hayes v. Alabama By-Products Corp., 242 Ala. 148, 5 So.2d 624; Alabama By-Products Corp. v. Winters, 234 Ala. 566, 176 So. 183; Ford v. Crystal Laundry Co., 238 Ala. 187, 189 So. 730.

All of the evidence in the case has been carefully examined. There is no need to set it out here in detail. Suffice it to say that there was evidence tending to show that the plaintiff was employed by the defendant as a salesman of its bakery products on a route from Mobile, Alabama, to Pensacola, Florida; that it was his duty under his employment as such salesman to obtain the products which he sold at the defendant's bakery in Mobile where they were loaded on a truck; that in this truck, which the salesman drove as a part of his duties, the defendant's bakery products were transported from Mobile to various points on the route, where deliveries were made by the plaintiff as such salesman; that on the occasion in question, when the plaintiff went to the bakery to get his truck about one o'clock in the morning, he found a sailor named Marsh and a young woman waiting to get a ride in the truck to Pensacola; that one Sam Pappas, an employee of the defendant, instructed him to let the two who had come to the bakery and another young woman who was at the bus station ride in the truck to Pensacola; that Sam Pappas, who was a shipping clerk, was the only one at the bakery after seven o'clock in the evening representing the defendant, with authority to run its business and was the one who usually gave plaintiff orders and instructions when he went out, including instructions from time to time to ride sailors to Pensacola, and in this instance to let the sailor drive because plaintiff was tired from having been on duty for eighteen hours; that plaintiff had no knowledge of any rules of the defendant about the operation of the truck or who should ride in the truck.

The evidence further tended to show that after making one delivery in Mobile and while on the route, plaintiff requested Marsh to drive the truck because he was tired from long hours on duty; that the truck, with Marsh driving, loaded with the products of the defendant, which the plaintiff was charged with the duty of transporting, selling, and delivering, proceeded on its regular route; that after the truck had so proceeded about a mile, the truck overturned on a curve in the road and plaintiff was injured.

It is insisted by the petitioner that the injuries of the plaintiff did not arise out of and in the course of his employment. The basis for its position is that by permitting the sailor, Ashton D. Marsh, to relieve him in driving the truck, the plaintiff abandoned his employment to such an extent as to take him entirely beyond the scope or course of employment. There were tendencies of the evidence which showed that the scope and course of plaintiff's employment was to receive, transport on his route between Mobile and Pensacola, and deliver defendant's bakery products.

According to tendencies of the evidence, when Ashton Marsh took over the driving, the truck continued on its regular route in the transportation of the products of the bakery for sale by the plaintiff as the salesman of petitioner. The plaintiff did not abandon the truck. He did not abandon the transportation of petitioner's products in the truck. He did not abandon his prescribed route nor the duty of selling and delivery on this route. On the contrary, up to the time of his injuries, plaintiff remained in the truck in furtherance of his duty to transport, sell and deliver the products of petitioner.

Accordingly, we think it unnecessary to determine the extent of the authority of Sam Pappas to see if he had the right to allow the plaintiff to stop driving and permit Ashton Marsh to drive. Even though the plaintiff, contrary to instructions, permitted Ashton Marsh to drive, the plaintiff did not thereby withdraw from the scope and sphere of his employment. The prohibition against permitting another to drive did not limit the sphere of employment. It dealt only with conduct within that sphere.

In Moss v. Hamilton, 234 Ala. 181, 174 So. 622, 623, the plaintiff was injured while on his way to his place of work along the usual and customary route. However, by riding on a motor in violation of the defendant's rule, it was claimed that the plaintiff "took himself outside the sphere of employment."

The Court said:

"Our authorities, as well as those elsewhere, have drawn a clear distinction between prohibitions which limit the sphere of employment, and prohibitions which deal only with conduct within that sphere. A transgression of a prohibition within this latter class leaves the sphere of employment where it was, and of consequence will not prevent recovery, while a transgression of the former class carries with it the result that the employee has gone outside of the sphere. In Jones v Sloss-Sheffield Steel & Iron Co., supra [221 Ala. 547, 130 So. 74], upon which defendants lay much stress, the court but gave application to this distinction upon the facts presented. There the employee had gone into the slope of the mine, a dangerous, unlighted, and narrow place upon which trip cars were operated frequently and rapidly without lights, and which was forbidden to be used either to ride the trip cars or walk upon it. This prohibition was known to the employee, and the employer provided a walkway, called 'man-way,' as a means of ingress and egress to and from the mine for the use of the employees. The holding was that the employee had thus voluntarily placed himself in a prohibited zone of danger and outside the sphere of his employment.

"But in the instant case no such facts are presented. The employee was in no prohibited zone, but was on...

To continue reading

Request your trial
21 cases
  • Southern Cotton Oil Co. v. Bruce
    • United States
    • Alabama Supreme Court
    • November 6, 1947
    ... ... 92 So. 458. For later cases see Houser v. Young, 247 ... Ala. 562, 25 So.2d 421; Malbis Bakery Co., Inc., v ... Collins, 245 Ala. 84, 15 So.2d 705 ... Petitioner, ... ...
  • Wood v. Kesler
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • March 4, 2003
    ...to sustain conviction where defendant passed two cars on sharp curve driving 70 to 75 mph); see also Malbis Bakery Co. v. Collins, 245 Ala. 84, 15 So.2d 705, 708 (1943) (whether allowing four persons to ride in front seat was absence of "due caution and circumspection" was a question of fac......
  • Sloss-Sheffield Steel & Iron Co. v. Watford
    • United States
    • Alabama Supreme Court
    • February 3, 1944
    ... ... Sloss-Sheffield Steel & Iron Co ... v. Alexander, 241 Ala. 476, 3 So.2d 46; Malbis Bakery Co ... v. Collins, Ala.Sup., 15 So.2d 705 ... The ... record contains ... ...
  • Ex parte Eastwood Foods, Inc.
    • United States
    • Alabama Supreme Court
    • January 11, 1991
    ...Ala. 219, 92 So. 458 [ (1922) ]. For later cases see Houser v. Young, 247 Ala. 562, 25 So.2d 421 [ (1946) ]; Malbis Bakery Co., Inc. v. Collins, 245 Ala. 84, 15 So.2d 705 [ (1943) ]." Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So.2d 666 The standard of appellate review in workmen's ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT