Patterson v. Whitten

Decision Date04 February 1976
Citation57 Ala.App. 297,328 So.2d 301
PartiesSkeets PATTERSON and John B. Whitten, d/b/a Patterson and Whitten Motors, a partnership v. Verlon J. WHITTEN, as widow and as administratrix of the Estate of James Edward Whitten, Deceased. Civ. 605.
CourtAlabama Court of Civil Appeals

HOLMES, Judge.

This is a workmen's compensation case. The Circuit Court of Marshall County found the issues in favor of appellee, the widow of the deceased employee and administratrix of his estate. The employer prosecutes this appeal from that judgment.

The issues for our determination are whether the evidence was sufficient to show that the deceased was in fact employed by the appellant; whether the accident which caused the employee's death arose out of and was in the course of any employment with the appellant; and whether the trial court erred in the amount of compensation awarded to appellee.

After a lengthy and well-tried proceeding, the trial court made the following specific findings:

1. 'That James Edward Whitten, deceased, was an employee of Defendants on October 22, 1971 and for a time prior thereto.'

2. '(T)hat James Edward Whitten, deceased, was involved in an accident on the 22nd day of October, 1971 at about 6:30 P.M. and that at the time of said accident, James Edward Whitten, deceased, was performing work out of and in the course of his employment.'

3. '(T)hat James Edward Whitten, deceased, had an average weekly wage of $111.25 for Workmen's Compensation purposes, said determination being made from the wages of a person in the same grade, and employed by the same employer at the same work during the same period of time as which James Edward Whitten, deceased was so employed.

The appellant-employer, through an excellent brief, contends the evidence does not support the above findings of the trial court.

It is appropriate at this point to note the following statements made by our Presiding Judge Wright in Aluminum Workers International v. Champion, 45 Ala.App. 570, 572, 233 So.2d 511, 512:

'(I)n every workmen's compensation case coming for review before an appellate court, we must begin our consideration with the following well settled rules in mind. We will not review the weight or preponderance of the evidence. Pinto Island Metals Co. v. Edwards, 275 Ala. 351, 155 So.2d 304; Sloss-Sheffield Steel & Iron Co. v. Watts, 236 Ala. 636, 184 So. 201. When there is any legal evidence, or reasonable inference therefrom, to support the findings of fact by the trial court, such findings are conclusive and will not be disturbed on appeal. Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380; Hamilton Motor Co. v. Cooner, 254 Ala. 422, 47 So.2d 270; United States Steel Corp. v. Danner, 263 Ala. 310, 82 So.2d 404.'

I

Bearing the above principles in mind, we find there was sufficient evidence before the trial court to sustain its determination that the deceased, James Edward Whitten, was in fact employed by the appellant.

The appellant-employer is a partnership in the business of selling used cars. The deceased was driving a car recently purchased by the employer for sale when he was involved in a collision with another vehicle which took his life.

Several witnesses testified as to remarks made by John Whitten, one of the partners and the brother of the deceased.

These remarks were made at the hospital where the deceased was taken after the above mentioned accident, and at the deceased's home both immediately after his funeral and several days subsequent to it. As testified to by these witnesses, Whitten stated on these occasions that he had instructed the deceased to drive the automobile from its place of purchase in Huntsville to the deceased's home in Albertville, and then to drive it to work the next day at the partnership's place of business in Cullman. Whitten further stated that the deceased was employed by him as a car salesman; that he was paying the deceased $75 per week; and that the deceased's widow would receive his pay check.

There was additional testimony by the deceased's widow, appellee herein, that the deceased was working for the employer; had begun work the same week that he was killed; and prior to his death had picked up a car owned by the partnership in Birmingham and driven it home. Appellee further testified that Kenneth Patterson, a partner in the business, had told her at the funeral that her husband began work with the partnership the week of his death.

While there is ample testimony to the contrary, the above clearly supports the trial court's conclusion as to employment. As noted initially, this court does not review the weight or preponderance of the evidence, and when there is any legal evidence or reasonable inference therefrom in support of the trial court's findings, such findings are deemed conclusive on appeal.

II

The appellant-employer further contends that the accident which caused the death of the employee did not arise out of and occur in the course of his employment, as must be the case for the death to be compensable under the Workmen's Compensation Act. Tit. 26, § 253, Code of Ala. 1940. To support this contention, the employer cites the well-settled proposition that accidents which occur while an employee is traveling to and from work do not arise out of and in the course of his employment. He then points out that while there is an exception to this general rule when the transportation constitutes part of the consideration paid to the employee for his services, there is no evidence in the record that such an arrangement existed here.

The final argument is that the employee had deviated from the course of his employment when the fatal accident occurred, because he had intended upon reaching his home to watch his son play in a football game. It is clear that a deviation from the course of employment may preclude compensation.

While the appellee has not favored this court with a brief, the tendencies of the evidence in this regard, as previously noted, are as follows:

The employee was instructed by his employer late one afternoon to proceed to Hunstville from his place of employment in Cullman. There he was to pick up the car recently purchased by the employer, use it to drive home to Albertville, and drive it to the car lot in Cullman the next day. While on the road between Huntsville and Albertville the employee was killed.

From these facts, the trial court concluded that the accident arose out of and in the course of the deceased's employment. Bearing in mind the aforesaid principles of review applicable to workmen's compensation cases, we agree with this conclusion.

We believe that the employee's instructions were, in effect, to take a specifically prescribed route in order to deliver the newly purchased automobile to the car lot in Cullman. Three can be no question but that the delivery of the automobile would be in furtherance of the employer's business. Where an employee during his travel to and from work is engaged in some duty for the employer which is in furtherance of the employer's business, accidents occurring during such travel arise out of and in the course of the employment. Union Camp Corp. v. Blackmon, 289 Ala. 635, 270 So.2d 108. The rationale for this exception to the general rule is that '. . . the...

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    ...on the same rule of law are Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So.2d 666 (1947), and Patterson v. Whitten, 57 Ala. App. 297, 328 So.2d 301 (Ala.Civ.App. 1976). All of those Alabama decisions are based on the seminal case of Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 18......
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    ...a trip by someone if the employee had been unable to perform that service in connection with his personal journey. Patterson v. Whitten, 57 Ala.App. 297, 328 So.2d 301 (1976); Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1920); Larson, The Law of Workmen's Compensation, §§ 18:00, I......
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