Turner v. Drummond Co.

• Decision Date: 06 July 1977
• Parties: Myra Mae TURNER, surviving widow of Ted James Turner v. The DRUMMOND COMPANY, INC., a corp. Civ. 1085.
• Court: Alabama Court of Civil Appeals

Page 598

349 So.2d 598

Myra Mae TURNER, surviving widow of Ted James Turner v. The DRUMMOND COMPANY, INC., a corp.

Civ. 1085.

Court of Civil Appeals of Alabama.

July 6, 1977.

Rehearing Denied Aug. 3, 1977.

Edward F. Morgan, Tuscaloosa, for appellant.

Wilbor J. Hust of Zeanah, Donald & Hust, Tuscaloosa, for appellee.

HOLMES, Judge.

This is a workmen's compensation case.

Myra Mae Turner, the widow of the deceased employee, Ted James Turner, takes this appeal from a judgment entered in favor of appellee-employer.

Mrs. Turner contends her husband had not left the premises of the appellee-employer, The Drummond Company, Inc., at the time of the accident which resulted in his death and that she therefore, is entitled to death benefits as provided by Alabama's Workmen's Compensation Law. She further states that even if her husband had left the premises of Drummond at the time of his accident, she, nevertheless, is entitled to workmen's compensation benefits, because the facts of this case fall within one of the recognized exceptions to the general rule that an employee is not entitled to workmen's compensation benefits for injuries sustained while going to or coming from his place of employment. We disagree with both of these contentions.

The record reveals the following:

The Drummond Company is engaged in the coal processing business. It crushes, separates, washes, and stores coal. Turner had been employed as a supply man in the Drummond warehouse for approximately one month at the time of his injury.

The warehouse where Turner worked is within the preparation plant of The Drummond Company. Drummond's washer and preparation plant are located at the western end of the "haul road," a dirt road running in an east west direction from the Searles Road. Searles Road is a Tuscaloosa County blacktop which runs in a northeasterly direction. The western end of the haul road terminates at the Black Warrior River, approximately 6 miles from the county blacktop.

Mitchell-Neely maintains a coal crushing operation on the Black Warrior River. Mitchell-Neely's crusher is located at the very end of the haul road and is adjacent to Drummond's preparation plant. The only access to the Drummond preparation plant and the Mitchell-Neely crusher is via the haul road.

Coal is hauled to the Drummond preparation plant by trucks from points east of the plant. Drummond's office is also located on the haul road and is approximately 6 miles east of the preparation plant.

Turner, appellant's decedent, worked the 11:00 P. M. to 7:00 A. M. shift at Drummond on October 10, 1974. After being relieved of his duties in the storeroom by N. B. Obenchain, Drummond's purchasing agent, and after getting the automobile he was driving "jumped," Turner left for home. On the haul road, at a point approximately 2 miles east of Drummond's preparation plant and 4 miles west of Drummond's main office, Turner veered into the path of a 950 Ford tandem trailer truck carrying an estimated 17-18 tons of coal. The truck's destination was the Mitchell-Neely crusher. Turner subsequently died from the injuries sustained in the accident.

At the time of the accident, Drummond neither owned nor leased any land adjacent to the haul road, other than that where the preparation plant, washer, and main office were located. However, pipes which were used to pump water for Drummond's "sludge" ponds were laid parallel to the haul road. These pipes extended eastward approximately 15,000 feet from the preparation plant.

Abston Coal Company, Gulf States Paper Company, U.S. Plywood, and Champion Paper Company own property adjacent to the haul road.

The haul road was described as a very wide dirt road, sufficiently wide to simultaneously accommodate 3 or 4 trucks the size of the one involved in the accident. It has been in existence for at least 34 years.

The amount of traffic on the road was characterized "light to moderate" and "heavily traveled" by different witnesses. Traffic is heaviest at the change of shifts at Drummond. Coal hauling vehicles constitute a large portion of the traffic on the road. Some of these coal hauling vehicles, because of their size, are prohibited from using county roads. In addition to coal hauling vehicles, the road is used by personnel of other companies that own property on the road. The road is also used for access to hunting and fishing areas.

A number of roads intersect the haul road. "Yield Right of Way" and "Stop" signs control access from these roads to the haul road. Additionally, a number of these intersecting roads are marked with signs stating, "Private No Trespassing."

At one time, families maintained residences on the haul road. However, the last families moved from the area in the sixties. Tuscaloosa County has not maintained the road since 1968, at the latest. Drummond grades the road, maintains adjacent berms in accordance with federal regulations, and frequently waters the road to diminish the dust. Abston and Mitchell-Neely also constructed some berms on the road.

Appellant filed her claim seeking workmen's compensation benefits on October 6, 1975. Trial was conducted in the Circuit Court of Tuscaloosa County on July 29, 1976. After hearing testimony, the trial judge physically inspected the haul road and later entered judgment for Drummond. Relevant portions of the judgment state:

"At the time of the accident referred to herein the said Ted James Turner was not performing any duties for his employer, the defendant, the Drummond Company, and this accident and the injuries resulting therefrom did not arise out of or in the court of his employment with the defendant. The accident occurred on a public road used by the public generally, including individual land owners and other companies operating in the vicinity, since at least 1934.

". . . Therefore, the Court concludes that the plaintiff is not entitled to benefits under the Workmen's Compensation Laws of Alabama . . ."

Mrs. Turner filed appeal from that judgment.

I

As previously stated, Mrs. Turner contends that the accident which claimed her husband's life occurred on the premises of Drummond.

"The word 'premises' is an elastic and inclusive term . . . and it does not have one definite and fixed meaning, but its meaning is to be determined by its context and is dependent on circumstances in which used, . . ." Allen v. Genry, 39 Ala.App. 281, 285, 97 So.2d 828, 832 (1957).

This court has previously stated that the term "premises," as used in the workmen's compensation 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 Drummond.

Turner had been relieved of all duties and was no longer under the control of his employer at the time of the accident. He was not rendering service to his employer at the moment of collision. Rather, he was traveling on what the trial court found to be a public road at a location 2 miles from where he performed his duties. Indeed, he was engaged in an activity of his own choosing at the time of the accident. The evidence is sufficient to sustain a finding by the trial court that the accident did not occur on the premises of the employer within the meaning of the statute. See Hayes v. Alabama By-Products Corporation, 242 Ala. 148, 5 So.2d 624 (1942); Sloss-Sheffield Steel & Iron Co. v. Thomas, 220 Ala. 686, 127 So. 165 (1930); Russellville Gas Company, supra.

Appellant also states that it is irrelevant that her husband was not at his exact place of employment, for the Supreme Court of Alabama, in the case of Overton v. Belcher, 232 Ala. 396, 168 So. 442 (1936), held that a workman is entitled to workmen's compensation benefits for injuries sustained within a reasonable time after his employment while he is near his place of employment. That decision is inapplicable to the facts of this case.

In Overton, the injury in question occurred to the employee while he was utilizing transportation provided by the employer. Alabama decisions recognize an exception to the general rule that an employee is not entitled to workmen's compensation benefits for injuries sustained while going to or coming from work. Such exception may exist when the employee is injured while traveling by a mode of transportation furnished by his employer. Jett v. Turner, 215 Ala. 352, 110 So. 702 (1926). The decision in Hayes v. Alabama By-Products Corporation, supra, expressly limits the applicability of Overton to situations where the employer has provided transportation to the employee. Here, Turner was traveling by private automobile. Hence, the facts of this case do not fall within the exception set forth in Overton.

We do not perceive appellant's reliance on Baggett Transp. Co. v. Holderfield, 260 Ala. 56, 68 So.2d 21 (1953), to be well founded, even though the injury for which the employee received benefits occurred approximately one mile from the premises of the employer. The employee's injuries occurred when members of the employer's striking work force followed the employee from his place of employment to a point one mile from the premises where they forced his automobile off the road and shot him. The court found that the assault began at the entrance to the place, i. e., upon the employer's premises, and was a continuing course of action to the location where the employee sustained his injuries. Here, no such argument was feasible. Turner was completely separated from his employer's premises prior to the time he sustained his injuries. Able and distinguished counsel for appellant's first contention is therefore without merit.

II

Mrs. Turner also argues that the facts herein fall within one or more exceptions to the general rule that an employee is not entitled to workmen's compensation benefits for injuries sustained when going to...