Mobile Liners, Inc. v. McConnell

• Decision Date: 23 January 1930
• Docket Number: 1 Div. 555.
• Citation: 126 So. 626,220 Ala. 562
• Parties: MOBILE LINERS, INC., v. MCCONNELL.
• Court: Alabama Supreme Court

126 So. 626

220 Ala. 562

MOBILE LINERS, INC., v. MCCONNELL.

1 Div. 555.

Supreme Court of Alabama

January 23, 1930

Rehearing Denied March 20, 1930.

Certiorari to Mobile Circuit Court; Claude A. Grayson, Judge.

Proceeding under the Workmen's Compensation Act by Louise B McConnell against the Mobile Liners, Incorporated, to recover compensation on account of the death of Robert L. McConnell an employee. Judgment awarding compensation, and the employer brings certiorari.

Writ denied; judgment affirmed.

Smith &amp Johnston, of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellee.

THOMAS J.

The petition is for statutory writ of certiorari under the Workmen's Compensation Act (Code 1923, §§ 7534-7597). There was judgment for dependents after due notice, pleading, and evidence.

The trial on the evidence resulted in sufficient finding of facts, adjudication of dependence, and that they were within the provisions of the statute.

The controverted issues in the case are: (1) Defendant's denial that the death of Robert L. McConnell was caused by an accident arising out of and in the course of his employment, and (2) defendant's claim that the business, employment, and his (McConnell's) injury were within the statutory exception of employers who "regularly employ less than sixteen employees in any one business," Section 7543, Code.

It is conceded that the statute must be liberally construed to the end in view and relief to be awarded, and all reasonable doubt resolved in favor of the employee. In National Cast Iron & Pipe Co. v. Higginbotham, 216 Ala. 129, 112 So. 734, 735, the statute reading "casual and not in the usual course of the trade, business," etc., was liberally construed to the attainment of the end in view, and with reference to the hardships and evils to be remedied; and to this end the authorities are collected. The fact that an employee was recently employed, or was working by the day instead of by the job, did not render his employment casual and not in the usual course of the business or trade. Ex parte Little Cahaba Coal Co., 213 Ala. 596, 105 So. 648.

If there is any doubt about an exception or proviso in that statute that must be judged on the assumption that the rule is broader than the exception, all doubts and implications shall be resolved in favor of the rule. Ex parte Majestic Coal Co., 208 Ala. 86, 93 So. 728; National Cast Iron & Pipe Co. v. Higginbotham, supra; Umble v. State, 207 Ala. 508, 93 So. 531; Ex parte Lusk, 82 Ala. 519, 2 So. 140; Eddington v. N.W. B. Tel. Co., 201 Iowa, 67, 202 N.W. 374.

The construction of the statute is to the effect that it embraces all injuries that arise out of, or occur while a workman is doing what a man under like facts and circumstances, engaged in that or like employment, may reasonably do within the time, place, and business during which he is employed. That is, may reasonably do (1) within the time during which he is employed, and (2) at a place where he may reasonably be during that time, (3) in the conduct or projection of the employer's said business or work, or in the promotion or safeguarding of his said business, or for the protection of the men and properties while engaged or used for the purpose of the master's said business. Ex parte Majestic Coal Co., supra, wherein protection was in the line of duty and employment. And this has been held to cover all injuries "arising out of the employment" in the act or conduct proximately referable, though it may not be within the scope of authority or strict line of duty, and may not be an anticipated risk or service, if the act reasonably related to the service and was done in good faith and in furtherance of the employer's business. Ex parte Terry, 211 Ala. 418, 100 So. 768. Whether work was reasonably related to the employee's duties, and whether done in good faith in furtherance of the employer's business, are recognized tests of whether resulting injury arose out of the employment. Vickers v. Alabama Power Co., 218 Ala. 107, 117 So. 650. The performance of any act made necessary to the defendant's business by reason of an emergency is within the scope of the employee's duty-was the holding in Ellis v. Little Cahaba Coal Co., 213 Ala. 244. 104 So. 422.

A plaintiff has the burden of proving that an employee's injuries arose out of and in the course of employment. Ex parte Coleman, 211 Ala. 248, 100 So. 114; Garrett v. Gadsden Cooperage Co., 209 Ala. 223, 96 So. 188; Sloss-Sheffield S. & I. Co. v. Harris, 218 Ala. 130, 117 So. 755; Ex parte Little Cahaba Coal Co. (Ellis), 213 Ala. 244, 104 So. 422. And if there is a reasonable view of the evidence that will support the conclusion announced by the trial court, the finding and judgment will not be disturbed. Summit Coal Co. v. Walker, 214 Ala. 332, 107 So. 905, and authorities; Ex parte Morgan-Hill Paving Co. (Ala. Sup.) 126 So. 116; Sloss-Sheffield S. & I. Co. v. Jones (Ala. Sup.) 123 So. 201.

Such is the rule though there be conflicting tendencies presented by the evidence. Martin v. Sloss-Sheffield S. & I. Co., 216 Ala. 501, 113 So. 578, and authorities cited; Ex parte Sloss-Sheffield S. & I. Co. (Greek's Case), 207 Ala. 219, 92 So. 458; Hardisty v. Woodward Iron Co., 214 Ala. 256, 107 So. 837; Ex parte L. & N. R. Co., 208 Ala. 216, 94 So. 289; Ex parte Gadsden Car Works, 211 Ala. 82, 99 So. 725; Ex parte Woodward Iron Co., 211 Ala. 111, 99 So. 649.

We are of opinion that the trial court was well within reasonable tendencies of the evidence that decedent, at the time of his accident and death, was engaged in assisting the captain of the steamship Lake Treba to get on board that (his) ship, which was then lying at Turner Terminals, and that in so doing McConnell was acting within the line of his duties under his said employment with Mobile Liners, Inc., defendant in the petition, and while so engaged, accidently fell from the wharf into the river and was drowned; that petitioners were dependent upon decedent at the time of his death.

Thus we are brought to the consideration of the defense or insistence of appellant that the Mobile Liners, Inc., was within the exception provided in section 7543, Code, of employers who "regularly employ less than sixteen employees in any one business."

It appears from the agreement of counsel set forth in the record that the Mobile Liners, Inc., had for a long time been engaged in the business of managing the affairs of the steamships, for their various owners, and continuously employed nine persons in its office work and one dock superintendent. In addition to these, however, it employed a large number of men as checkers upon the various vessels which it operated and while at port, etc. These men it employed through its dock superintendent, Mr. Austin, in the name of the defendant. All of them, except those who checked upon the vessels belonging to the Transmarine Corporation, were paid by the Mobile Liners, Inc., out of its own bank account. Those who were employed on the vessels of the Transmarine Corporation were also paid by the defendant in its own name, but out of the proceeds of checks drawn on the Transmarine Corporation, payable to the company. While there was this distinction between the checkers employed upon the vessels of the Transmarine Corporation and those employed upon other vessels, the fact is that all of these checkers were employed by Mr. Austin, who was the port superintendent of the Mobile Liners, Inc., and who acted as its representative without informing the men employed that it was the action of and as an agent, and without disclosing the name of the principal. These checkers were all employees of the Mobile Liners, Inc.; they were subject to its orders and discharge, and the Mobile Liners, Inc., was liable to them for their compensation.

It is established in this jurisdiction that when an agent employs a third person without disclosing the name of his principal, he is personally liable for the employee's wages and the relation is that of master and servant. Wood Ex'r v. Brewer & Brewer, 73 Ala. 259; Brent v. Miller & Co., 81 Ala. 309, 8 So. 219; Dexter v. Ohlander, 93 Ala. 441, 9 So. 361.

The relation between the Mobile Liners, Inc., and their men and laborers, was that of master and servant, just as surely as if it had been the absolute owners of the vessels which they operated for a commission for the owners or charterers.

These checkers were not employed every day, but were employed for each vessel when it was in port. The arrival of these vessels was regulated according to the usual course of business. The number of such employees and the days of their employment are all scheduled in the exhibits attached to the agreement. It appears from the terms of the agreement that the checkers were employed in each instance upon an average of every two to five days. A reference to these tabulated statements will show that the checkers were employed by the Mobile Liners, Inc., in the regular course of its business in handling the ships for which it was the agent, at regular intervals according to the arrival of the ships, and that the average number of employees on these occasions, including the office force and the checkers, exceeded sixteen.

The question for decision is: Whether an employer, who is engaged in a business of managing vessels which arrive in port periodically, is regarded as falling within the exception of those who "regularly employ less than sixteen men," simply because his employment of sixteen men is not constant and continuous, when that business is such as to require less than sixteen men at times when ships are not in port, and when the nature of the business calls for little activity but which requires sixteen or more men in the execution...