McLaughlin v. Davis Lumber Co.

• Decision Date: 19 December 1929
• Docket Number: 1 Div. 559.
• Citation: 220 Ala. 440,125 So. 608
• Parties: MCLAUGHLIN v. DAVIS LUMBER CO.
• Court: Alabama Supreme Court

125 So. 608

220 Ala. 440

MCLAUGHLIN v. DAVIS LUMBER CO.

1 Div. 559.

Supreme Court of Alabama

December 19, 1929

Rehearing Denied Jan. 23, 1930.

Certiorari to Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Proceeding under the Workman's Compensation Act by Ida McLaughlin for compensation for the death of John S. McLaughlin employee, opposed by Edward L. Davis and another, doing business as the Davis Lumber Company, employers. Judgment denying compensation, and petitioner brings certiorari. Reversed, and remanded with direction.

Death of night watchman, slain by trespasser while discharging duty, held to have arisen out of employment. Code 1940, Tit 26, § 262.

The finding of facts by the trial judge is as follows:

"While there are differences in the evidence between the various witnesses, and some confusion in reference to some parts of it, yet I find the salient facts to be that the plaintiff Ida McLaughlin, was the wife of the deceased, John S McLaughlin, and that she was his dependent and entitled to bring this suit, and the deceased at the time of the shooting was earning $21.00 a week. The defendants had sufficient actual notice of the accident within the time required by law to make a formal written notice to the defendants of her claim unnecessary. The deceased, John S. McLaughlin, was employed by the defendants as a night watchman at their saw mill plant in Mobile County, near Mobile, Alabama. On the evening of January 8th, 1928, he went, with his son, Claude McLaughlin, to go on duty as night watchman, to the plant of the defendants, around about five-thirty o'clock in the evening. He had with him a pistol, a rain coat, an overcoat, and a lunch kit, and a considerable amount of money upon his person. His main duty as night watchman was to guard the plant at night, and mostly to look out for fire, and in the performance of these duties he was required to make periodical rounds of the plant under a clock-punching system, and he was instructed, and it had been his habit, and it was his duty, to punch these clocks in a particular order by inserting keys, and the order in which they were to be punched was 5, 6, 4, 3, 2 and 1. A diagram was offered in evidence by the defendants showing the office building, shed No. 1., shed No. 2, boiler and another building, in addition to a little square marked 'yard office.' The clock to be punched No. 5 was at the office. The next clock to be punched was No. 6, which was located at the south end of sheds Nos. 1. and 2. The next key to be punched was key No. 4 which was located about twelve feet from the north end of shed No. 2. Key No. 3 was located in the boiler room, and keys Nos. 2 and 1 were located in the mill proper. The duty of the deceased was to make a round of these clocks once an hour, and if he did this he was not required to be at any particular point in between time, but could go anywhere on the plant, nor was he required in making his rounds of punching the clocks, or inserting the keys therein, to take any narrow, restricted path. In this system of punching the clocks with keys, a disc was used, and the disc used on the night on which the deceased was shot was introduced in evidence, and, according to the testimony of the witness Davis, shows that the last punch made by the deceased was that night at 10:15 o'clock, and that the key punched was key No. 1, and the next key to be punched by him was key No. 5, which was located at the office, and in a direction entirely different from the point at which he was shot. The evidence to my mind clearly indicates, while there is some confusion in reference to it, that he was shot at a point approximately a foot outside of the north end of shed No. 2 (at that point there was found a large puddle of blood and evidences of gunshot load or loads having gone into the ground close to this puddle of blood) by some from a point of vantage considerably above the ground. Just inside the north end of shed No. 2 and to the east there was a pile of lumber, and the shed was open on the east side back of this pile of lumber. Outside of the shed on the ground was evidence of a man's foot prints which were quite recent and were apparently made running hastily down and parallel to the State Docks Railroad running northwest. The deceased appeared to have been shot with one slug and several small shot, one shot entering the inner cornea of the right eye and ranged downward and towards the left, and the slug entering over the right jaw and ranged down and passed through the posterior nose and lodged in the left jaw. From the point at which he was shot, the deceased took a course, as evidenced by splotches of blood, back through shed No. 2, north of sheds Nos. 2 and 1, back to the office, from which, between half past eleven and twelve o'clock at night on the same day, January 8th, 1928, he telephoned to Dr. John Robert Armistead, saying that he had been shot and asking for the Doctor to come and get him. Between the time he telephoned to Dr. Armistead and two-thirty o'clock of the morning of January 9th, deceased was removed to an infirmary, and while the evidence showed that he talked until he was so weak he could not talk any more, there is

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