United Service Ins. Co. v. Donaldson, 3 Div. 550

• Decision Date: 12 October 1950
• Docket Number: 3 Div. 550
• Parties: UNITED SERVICE INS. CO. v. DONALDSON.
• Court: Alabama Supreme Court

Page 3

48 So.2d 3

254 Ala. 204

UNITED SERVICE INS. CO. v. DONALDSON.

3 Div. 550.

Supreme Court of Alabama.

Oct. 12, 1950.

Jack Crenshaw and Walter J. Knabe, of Montgomery, for appellant.

Rives & Godbold, of Montgomery, and Abner R. Powell, Jr., of Andalusia, for appellee.

LIVINGSTON, Justice.

Certiorari to review the decision of the Circuit Court of Montgomery County, Alabama, awarding compensation to plaintiff, C. Bascom Donaldson, in his suit against United Service Insurance Company, a corporation, filed under the provisions of the Alabama Workmen's Compensation Act, Code 1940, Tit. 26, § 253 et seq.

This review by certiorari does not perform the functions of an appeal, and we are not concerned with whether the finding of facts is proper if it is supported by any legal evidence. Gadsden Iron Works v. Beasley, 249 Ala. 115, 30 So.2d 10, and cases therein cited.

In pursuance of section 304, Title 26, Code of 1940, the trial court filed in writing with the clerk of said court a determination of the controversy, containing a statement of the law and facts and conclusions by the judge. It is as follows:

'Statement of Law and Facts and Conclusions.

'In this cause, which came on to be heard, the parties and their attorneys being present in open court, the plaintiff, C. Bascom Donaldson, a resident of Montgomery, Alabama, claimed of the defendant, United Service Insurance Company, an Alabama corporation, with its principal place of business in Montgomery, Alabama, compensation under the Workmen's Compensation laws of Alabama.

'On November 5, 1948, the plaintiff was a citizen and resident of Montgomery, Alabama, and on that date was employed in a capacity variously called 'supervisor,' or 'district manager,' or 'superintendent' for the defendant company. He was paid a salary, plus travel expenses, and worked in an assigned area in the southern part of the State.

'The injuries for which the plaintiff sought compensation grew out of an automobile collision on November 5, 1948, on U. S. Highway 31, a public highway between Atmore and Brewton, Alabama. The plaintiff, who was driving his own automobile, was within the territory which he supervised for the defendant company; he had for several days been working for the defendant company in Atmore. At the time of the accident he was enroute to Brewton to perform further duties for his employer in that city. The highway on which he was traveling was the normal route of travel between these two cities. The court finds that at the time of the collision, the plaintiff was in the course of his employment and the accident arose out of such employment. As a proximate result and consequence of the collision, the plaintiff's left arm was severely injured and shortly thereafter was amputated above the elbow.

'The defendant company had prompt notice of the accident, being notified on the same day.

'The court finds that at the time of the injury the employee was not intoxicated and that the injury was not caused by willful misconduct of the employee, nor by his own intoxication, nor by any willful violation of law by the employee, nor by the employee's willful breach of any reasonable rule or regulation of the employer.

'At the time of the accident and for more than a year before the accident, the average weekly earnings of the plaintiff were $110.00 per week. Plaintiff had hospital and medical expenses in the amount of $351.00, which expenses were necessarily incurred in the treatment of his injuries.

'The court finds that at the time of the accident the defendant company and the plaintiff employee were subject to the Workmen's Compensation Laws of Alabama. There were four employees in defendant's home office in Montgomery, and there were more than eight employees variously called 'supervisors,' 'managers,' and 'superintendents' who were paid regular salaries and were subject to wide control by the home office of the company. They submitted detailed reports to the home office, the plaintiff being one of this group, and all of this group being employees. There were also many insurance agents, they being on a salary basis, being subject to transfer, discharge and change of salary by the home office, having no offices of their own, and in other ways being subject to and subjected to the control of the home office of the defendant company. These agents were employees of the company.

'Judgment.

'It appearing that the defendant in this cause is subject to the Workmen's Compensation Laws of Alabama, that the plaintiff was an employee of the said company and was at the time of his injury in the course of his employment and the injury arising out of said employment, and no sufficient defense having been shown as to why the plaintiff is not entitled to compensation, compensation is hereby awarded to the petitioner in the amount of $18.00 per week for a period of two hundred weeks, and the petitioner is further awarded the sum of $200.00 medical and hospital expenses.

'It is further considered and adjudged by the court, and it is the judgment of the court, that the plaintiff do have and recover of the defendant the sum of $18.00 per week for a period of two hundred weeks, beginning November 12, 1948, and the further sum of $200.00 for medical and hospital expenses and the costs of this cause incurred, and for the sum now due and the court costs, let execution issue unless presently paid and for future weekly installments payable in the future, execution may issue, unless paid when due.

'It is further considered, ordered and decreed by the court, and it is the judgment of the court, that the attorneys' fee of Abner R. Powell, Esq., Richard T. Rives, Esq., and John C. Godbold, Esq., attorneys for the petitioner be and it is hereby fixed at the sum of fifteen (15%) percent of the first $300.00 due and paid and ten (10%) percent of the balance due and paid.'

Petitioner, defendant, states in brief, 'We submit that the sole question is whether the plaintiff's injuries both arose out of and in the course of his employment so as to be compensable under the statute.' Petitioner insists that under the provisions of subdivision (j) of section 262, Title 26, Code, there was no evidence to support a finding that the plaintiff's injury arose out of and in the course of his employment. Subdivision (j), supra, provides: '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, on, or about the premises where their services are being performed, or 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, and shall not include an injury caused by the act of a third person or fellow employee intended to injure the...