Moss v. Hamilton
| Decision Date | 20 May 1937 |
| Docket Number | 6 Div. 80 |
| Citation | 234 Ala. 181,174 So. 622 |
| Parties | MOSS et al. v. HAMILTON. |
| Court | Alabama Supreme Court |
Certiorari to Circuit Court, Fayette County; Ernest Lacy, Judge.
Proceeding under the Workmen's Compensation Act (Code 1923, § 7534 et seq., as amended), by W.G. Hamilton against Moss & McCormack, a partnership composed of C.L. Moss and G.B McCormack, to recover compensation on account of injuries sustained in course of employment. Judgment awarding compensation, and the employers bring certiorari.
Writ denied; affirmed.
Benners Burr, McKamy & Forman, of Birmingham, for appellants.
S.T Wright, of Fayette, and Pennington & Tweedy, of Jasper, for appellee.
Defendants (petitioners here) seek a review of an award of compensation to W.G. Hamilton, who was seriously injured while employed in defendants' mine. Hamilton was employed on the night shift, and that the injury occurred at the mines while on his way to his place of work is not controverted. Nor is it controverted that he was being transported by agents or servants of defendants along the usual and customary route, as the miners had working implements to carry, and defendants' agents thus assisted them in the matter of transportation.
The finding of the trial court that it was the custom of defendants' employees to ride the cars or motors from a place near the entry of the mines to their several working places, and that these employees would usually ride either on the cars or the motors, notwithstanding a rule prohibiting employees from riding the motors, is amply sustained by the proof.
On the occasion in question Hamilton was first riding in the car, and then got on the motor, where he received his injury. There is much proof that this custom of riding on the motor was well understood, and acquiesced in by the foreman, who at night had all the men under his supervision and control. As McGaha, night foreman when Hamilton was injured, states it: "I am the boss of the mines while I am there at night." And there was much proof that the night foreman knew the men were riding the motor to their work, that he has ridden with them, and has been on the motor with the plaintiff. Other night foremen also permitted the men to ride the motor, and such had been the custom for a number of years.
True, defendants established a rule against it, passed doubtless for better safety and in harmony with section 1717, Code of 1923. But the proof is abundant that the rule was, with the knowledge and acquiescence of the foremen in charge of these men, more honored in the breach than in the observance, and was wholly disregarded. The finding of the court to this effect is fully sustained.
Hamilton insists he knew of no such rule, and has no recollection of receiving a copy of the rules of the company. And there is no insistence here that compensation should be denied upon the ground of a willful violation of a known rule. But the argument for defendants is rested upon the theory that Hamilton, the employee, in riding upon the motor in violation of the rule, took himself outside the sphere of his employment, and that relief should be denied him upon the authority of Sloss-Sheffield Steel & Iron Co. v. Jones, 220 Ala. 10, 123 So. 201; Bullard v. Cullman Heading Co., 220 Ala. 143, 124 So. 200; Blocton Cahaba Coal Co. v. Campbell, 219 Ala. 529, 122 So. 806; Jones v. Sloss-Sheffield Steel & Iron Co., 221 Ala. 547, 130 So. 74; Cohen v. Birmingham Fabricating Co., 224 Ala. 67, 139 So. 97, from our own jurisdiction; and Lumaghi Coal Co. v. Industrial Commission, 318 Ill. 151, 149 N.E. 11; Shoffler v. Lehigh Valley Coal Co., 290 Pa. 480, 139 A. 192; Industrial Commission v. Ahern, 119 Ohio St. 41, 162 N.E. 272, 59 A.L.R. 367, among others, from other jurisdictions. All of which have been duly considered, including the general statement found in 71 Corpus Juris, 669.
These authorities, we think, are readily distinguishable from the...
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Sloss-Sheffield Steel & Iron Co. v. Nations, 6 Div. 247.
...attempt to further his employer's business (23 A.L.R. 1166), and in the line and scope of his employment, is not here questioned. Moss v. Hamilton, supra; Sloss-Sheffield Steel & Iron v. Jones, 220 Ala. 10, 123 So. 201. But the violated rule was embodied in a statute (section 1717, Code of ......
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Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, etc.
...of the employee has begun, not in wages, but in service * * *." See, also, Overton v. Belcher, 232 Ala. 396, 168 So. 442; Moss v. Hamilton, 234 Ala. 181, 174 So. 622. Moss Tie Co. v. Tanner, 44 F.2d 928, was a case, from the 5th Circuit under the Longshoremen and Harbor Workers' Compensatio......
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Arvinmeritor, Inc. v. Handley
...rule prohibiting the employee from entering the unauthorized area, the employer may be deemed to have waived that rule. Moss v. Hamilton, 234 Ala. 181, 174 So. 622 (1937). In this case, it is apparent that Arvin did not enforce its rule because it allowed Handley, on more than one occasion,......
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ArvinMeritor, Inc. v. Handley, No. 2050951 (Ala. Civ. App. 6/27/2008)
...rule prohibiting the employer from entering the unauthorized area, the employer may be deemed to have waived that rule. Moss v. Hamilton, 234 Ala. 181, 174 So. 622 (1937). In this case, it is apparent that Arvin did not enforce its rule because allowed Handley, on more than one occasion, to......