Russellville Gas Co. v. Duggar
| Decision Date | 25 August 1971 |
| Docket Number | 8 Div. 49 |
| Citation | 47 Ala.App. 661,260 So.2d 393 |
| Parties | RUSSELLVILLE GAS COMPANY, Incorporated v. Cecil Judson DUGGAR. |
| Court | Alabama Court of Civil Appeals |
London, Yancey, Clark & Allen and Max Hudson, Birmingham, and Guin, Guin, Bouldin & Porch, Russellville, for appellant.
Taylor & Taylor, Russellville, for appellee.
This is a case involving a claim for Workmen's Compensation. Claimant, Cecil Judson Duggar, was employed as a driver of a liquid petroleum gas truck by Russellville Gas Company, Inc. Duggar was paid a salary and commission. At night and on weekends he took the truck home with him. Other drivers for the company did the same. If a customer within his territory needed a delivery at night or on weekends, Duggar made such delivery directly from his home if the truck contained the necessary gas. If it was emptied he refilled it at the plant and returned to his home. He often took calls for deliveries at his home after regular working hours. He was under instruction to respond to calls day or night. If he left his home for any reason during off hours, he was to notify his employer where he could be located. In addition to a phone at his home, he had a two-way radio in the truck. During the past year of his employment, prior to injury, he had probably received ten to twenty calls for service while at his home.
On Monday, January 12, 1970, at about 6:30 a.m., while going from his house to where the truck was parked in the yard, claimant slipped and fell on ice and snow on his driveway. The fall resulted in a broken hip. Complications from the injury resulted. Blood clots formed in the veins of the leg requiring an operation for removal. Some clots passed on to the lungs and heart causing infarctions. The infarctions resulted in damage to the lungs decreasing lung capacity and affecting breathing. He was hospitalized for a long period of time and was permanently disabled. His hospital and medical expenses exceeded $9000.
Upon trial, judgment was rendered against the employer, appellant here. The court found that the accident resulting in claimant's injury 'arose out of and in the course of his employment while plaintiff was about to get into a liquid petroleum gas delivery truck at his home where the truck was kept during the hours when the defendant's gas office was not open, and from which he answered calls for gas service and made deliveries from during such periods, and that the accident consisted of the plaintiff falling on ice. * * *' Award was made for 85% Permanent partial disability for 300 weeks at $39.74 per week, or a total of $11,922.00 compensation. There was also awarded a total of $9,022.95 for medical expenses. An attorney's fee of $3,141.81 was allowed plaintiff's attorney.
The amended final judgment was entered March 12, 1971. After denial of a motion for new trial, defendant below brings the matter here by certiorari.
Appellant in brief stated the sole question presented here is whether appellee's injuries arose out of and in the course of his employment with appellant.
The facts surrounding the injury of appellee as herein related are without material conflict. It appears the finding of the court that appellee was injured by accident arising out of and in the course of his employment resulted from the unusual situation in which the employee at night and on weekends kept his delivery truck at his home and made deliveries, if called by customers of appellant. As a result the court apparently reached the conclusion that such arrangement made the home of appellee the premises of the employer. Having determined that appellee was injured by accident while on the premises of the employer, the court concludes that he was in the course of his employment.
We cannot accept either the finding of fact or conclusion of law indicated by the judgment of the trial court.
Title 26, Section 262(j), Code of Alabama 1940 appears as follows:
'Without otherwise affecting either the meaning or interpretation of the abridged clause, injuries by an accident arising out of and in the course of his employment, it is hereby declared: Not to cover workmen except while engaged in, or about the premises where their services require their presence as a part of such service at the time of the accident, and during the hours of service as such workmen, * * *'
The words of Justice Harwood written in the case of Allen v. Genry, 39 Ala.App. 281, 97 So.2d 828, and quoted by Justice Merrill in the case of Glens Falls Ins. Co. of Glens Falls, N.Y. v. Anderson, 280 Ala. 626, 197 So.2d...
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Paige v. City of Rahway, Water Dept.
...coming rule applies to an on call employee. Foster v. Massey, 132 U.S.App.D.C. 213, 407 F.2d 343 (1968); Russellville Gas Co. v. Duggar, 47 Ala.App. 661, 260 So.2d 393 (Civ.App.1971); Thornton v. Texarkana Cotton Oil Corp., 219 Ark. 650, 243 S.W.2d 940 (1951); 1 Larson, The Law of Workmen's......
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Turner v. Drummond Co.
...statutes, must be related to the control or to the right of control of the employer over the employee. Russellville Gas Company v. Duggar, 47 Ala.App. 661, 260 So.2d 393 (1971), cert. den., 288 Ala. 309, 260 So.2d 395 (1972). Here, the facts disclose no such right of control by Turner had b......
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Russellville Gas Co. v. Duggar, 8 Div. 453
...certiorari to the Court of Civil Appeals to review and revise judgment and decision of that Court in Russellville Gas Company, Incorporated v. Duggar, 47 Ala.App. 661, 260 So.2d 393 (1971) is denied. On certiorari, this Court will review the Court of Civil Appeals only on questions of law a......
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Union Camp Corp. v. Blackmon, 3 Div. 46
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