Union Camp Corp. v. Blackmon

• Decision Date: 09 November 1972
• Citation: 270 So.2d 108,289 Ala. 635
• Parties: In re UNION CAMP CORPORATION, a corporation v. Myrtle W. BLACKMON. Ex parte Myrtle W. BLACKMON. SC 97.
• Court: Alabama Supreme Court

Page 108

270 So.2d 108

289 Ala. 635

In re UNION CAMP CORPORATION, a corporation v. Myrtle W. BLACKMON.

Ex parte Myrtle W. BLACKMON.

SC 97.

Supreme Court of Alabama.

Nov. 9, 1972.

Williamson & Taber, Greenville, for petitioner.

Poole & Poole, Greenville, for respondent.

HARWOOD, Justice.

The question presented on this review is whether an employee is entitled to compensation under our Workmen's Compensation Act where he is injured during an allowable lunch break where the injury occurs away from his work site, but during the time allowed for the lunch break, the workman being 'on call' during the lunch break, and wages being paid during such break.

The Circuit Court adjudged that under such circumstances the workman (or his surviving widow) was entitled to the benefits provided under our workmen's compensation law, and that the workman's injuries occurred in the course of, and arose out of, his employment.

The Court of Civil Appeals reversed the judgment of the Circuit Court. We granted a writ of certiorari to review the decision and judgment of the Court of Civil Appeals, the question presented being one of first impression in this state.

On certiorari this court will ordinarily review the Court of Civil Appeals only on questions of law and not upon the findings of fact, other than as to the application of the law to the facts as found by the Court of Civil Appeals. Russellville Gas Co., Inc. v. Duggar, 288 Ala. 309, 260 So.2d 395.

For an injury to an employee to be compensable under our Workmen's Compensation Act, the accident causing the injury must 'arise out of' his employment and occur 'in the course of' such employment. Section 253, Title 26, Code of Alabama 1940.

In Wooten v. Roden, 260 Ala. 606, 71 So.2d 802, we stated that Section 262(j) of Title 26, Code of Alabama 1940, interposed language in the nature of a limitation upon the terms 'arising out of' and 'in the course of' employment.

Section 262(j), in parts pertinent to this review reads:

'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 are being performed, or where their service requires their presence as a part of such service at the time of the accident, and during the hours of service as such workmen * * *. (Italics ours.)

A good discussion of the phrases 'arising out of' and 'in the course of' employment may be found in an opinion by Justice Lawson in Massey v. United States Steel Corp., 264 Ala. 227, 86 So.2d 375, which we quote in part:

'Every case involving these words should be decided upon its own particular facts and circumstances and not by reference to some formula. But it is usually said that the phrase 'arise out of' employment refers to employment as the cause and source of the accident . . .. The rational mind must be able to trace the resulting injury to a proximate cause set in motion by the employment and not by some other agency . . .. We have said that the phrase 'in the course of his employment' refers to the time, place and circumstances under which the accident took place. An injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incident to it.'

The only Alabama case concerning a mealtime break that we have found is Wells v. Morris, 33 Ala.App. 497, 35 So.2d 54. The Wells case, however, involved an on-premises injury and is therefore not here applicable.

We see no need to fret over whether the fatal return trip to the plant was, or was not, a return from a meal break. The employer placed no limitation on where the employee could go for lunch, nor how many trips he could make for that purpose. The time period and possibility of recall to work were the only limitations imposed. The term lunch, or meal, contemplates sustenance, and we think the average soft drink falls within that category. On this basis it appears that this case should be decided on the hypothesis that the employee was injured during the period of time allowed for a meal break.

The workman here involved was a maintenance man for Union Camp, and the nature of his work required that he be 'subject to recall' from his meal break if need arose. He was paid for an 8 1/2 hour work day which included a half hour meal break. These facts are sufficient to constitute a continuation of the employment relationship during the meal break insofar as the injury be deemed to have been 'in the course of' employment. Several courts have held that mere payment of wages during a meal break period is sufficient to place a workman 'in the course of' his employment. Western Pipe and Steel Co. v. Industrial Accident Comm'n, 49 Cal.App.2d 108, 121 P.2d 35; Munroe v. Sullivan Mining Co., 74 Idaho 143, 258 P.2d 759; Clark v. Employers Liability Assur. Corp. (La.App.), 27 So.2d 464.

Professor Larson in his treatise 'Workmen's Compensation Law' Vol. 1, Sec. 15.52, states the doctrine of the cases as follows:

'Similarly, just as an employee who is paid during his going and coming trip is deemed to be in the course of his employment for that reason, so a claimant who was paid during the time taken out for lunch or coffee may be given the benefit of the same conclusion.'

We hold that Blackmon was in the course of his employment at the time of his injury.

The question yet remains, however, as to whether the injury Arose out of his employment, which element is also a requirement of our statute.

In Gilmore v. Rust Engineering Co., 289 Ala. 46, 265 So.2d 591, this court wrote:

'As a general rule, accidents occurring while an employee is traveling to and from work are not considered 'arising out of and in the course of his employment'. Barnett v. Britling Cafeteria Co., 225 Ala. 462, 143 So. 813; Sloss-Sheffield Steel & Iron Co. v. Thomas, 220 Ala. 686, 127 So. 165; 99 C.J.S. Workmen's Compensation § 232. However, exceptions have been carved out of this general rule.'

To the same effect see also Baggett Transfer Co. v. Holderfield, 260 Ala. 56, 68 So.2d 21.

This general 'coming and going' rule has been applied ordinarily to off-premises injuries to workmen in going to and coming from meals for the reason that such injuries cannot reasonably be said to arise out of the employment. See Heller Bros. Packing Co. v. Lewis, 155 Fla. 430, 20 So.2d 385; Locke v. Steele County, 223 Minn. 464, 27 N.W.2d 285; Greenfield v. Manufacturers Casualty Co., 198 Tenn. 452, 281 S.W.2d 47; Dreyfus & Co. v. Meade, 142 Va. 567, 129 S.E. 336; Baskin v. Community Towel Ser., Ky., 466 S.W.2d 456; Smith v. Orleans Mgt. Corp., 242 So.2d 288 (La.App.1970); Deville v. Employer's Liab. Assur. Co., 192 So.2d 661 (La.App.1966); Smith v. Texas Employers' Ins. Ass'n, 129 Tex. 573, 105 S.W.2d 192 (Tex.Com.App.1937).

The exceptions to the general rule arise where the employer furnishes transportation to the employee, or remunerates him for the expense incurred by the employee, or where the employee is engaged in some duty to his employer in connection with his employment at his home or en route. See 58 Am.Jur. Workmen's Compensation, Section 217.

Under facts shown none of these exceptions to the general rule are present in this case.

The following language appearing in F. Becker Asphaltum Roofing Co. v. Industrial Comm'n, 333 Ill. 340 at 343, 164 N.E. 668 at 670, has been quoted with approval in our cases of Wooten v. Roden, 260 Ala. 606 at 611, 71 So.2d 802 at 806, and Queen City Furniture Co. v. Hinds, 274 Ala. 584 at 588, 150 So.2d 756 at 760:

'The injury contemplated by the act must have had its origin in some risk of the employment. It must arise out of and in the course of the employment or be incident thereto. * * * A risk is incident to the employment when it belongs to or is connected with the duties a workman has to perform under his contract of service. * * *

'It is not enough that the injured person may be present at the place of the accident because of his work, unless the injury is the result of some risk of the employment.'

It was further stated in Wooten:

'* * * The words 'arising out of' involve the idea of causal relationship between the employment and the injury, while the term 'in the course of' relates more particularly to the time, place and circumstances under which the injury occurred. The phrases are not synonymous; where both are used conjunctively a double condition has been imposed, and both terms must be satisfied in order to bring a case within the act. 58 Am.Jur. 717. Generally, an injury arises out of an employment only when there is a causal connection between the injury and the conditions under which the work is required to be performed.

'To justify recovery under the Workmen's Compensation Act, the rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment, and not by some other agency. Garrett v. Gadsden Cooperage Co., 209 Ala. 223, 96 So. 188; Madden's Case, 222 Mass. 487, 111 N.E. 379, L.R.A.1916D, 1000.'

In the present case the danger incurred by the employee in going on a personal mission was in no wise connected with his employment, nor was the danger incidental to the character of his employment, but was wholly independent of the employment relationship.

The fact that the deceased workman was on pay during the meal break, and subject to call by his employer merely establishes that during the meal break the employee was in the course of his employment. This is not decisive that his injury arose out of his employment.

The risk to which the employee was subject on his trip to obtain a soft drink was a risk shared by anyone riding in an automobile, and it was not a risk arising...