Vickers v. Alabama Power Co.

• Decision Date: 28 June 1928
• Docket Number: 3 Div. 836
• Citation: 218 Ala. 107,117 So. 650
• Parties: VICKERS v. ALABAMA POWER CO.
• Court: Alabama Supreme Court

117 So. 650

218 Ala. 107

VICKERS v. ALABAMA POWER CO.

3 Div. 836

Supreme Court of Alabama

June 28, 1928

Certiorari to Circuit Court, Montgomery County; Leon McCord, Judge.

Proceeding for compensation under the Workmen's Compensation Act by C.D. Vickers, employee, opposed by the Alabama Power Company employer. Judgment denying compensation, and the employee brings certiorari. Affirmed.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellant.

Steiner Crum & Weil, of Montgomery, for appellee.

SOMERVILLE J.

The sole question to be determined in this case is whether the workman's injury was one "arising out of and in the course of his empoyment."

We epitomize and restate those facts which we think are of especial significance as follows:

(1) Plaintiff was injured during his period of service, but not while engaged in doing anything he was directly employed to do.

(2) He was not the custodian of any tools or other property of his employer, though he carried on his person a pair of pliers and a screwdriver, the necessity for which does not appear.

(3) He asked for the use of a locker for his belongings, but was told he must wait until one of those in use became vacant.

(4) At about 11 o'clock p.m., he went out and back to a workroom belonging to his employer, where was kept a power-propelled machine used for cutting down and dressing lumber. None of the duties of his employment ever required his presence in this workroom, and he had no permission to go there on this occasion, though not forbidden to do so.

(5) He undertook to construct for himself a tool box in which to keep his tools and clothing, and, while using the dressing machine in that employment, his fingers were drawn into the cutting blades and several of them were injured.

Plaintiff's contention is that the construction of this tool box was a reasonable necessity in the proper performance of the ordinary duties of his employment; or that it was reasonably related to those duties, and in good faith done in the furtherance of his employer's business.

These are, indeed, tests by which courts determine whether or not a resulting injury is one "arising out of" the workmen's employment, within the operation of the Compensation Law (Laws 1919, p. 206). Ex parte Terry, 211 Ala. 418, 100 So. 768; Ex parte Majestic Coal Co., 208 Ala. 86, 93 So. 728; State ex rel. Duluth, etc., Co. v. District Court, 129 Minn. 176, 151 N.W. 912. Sometimes it is more broadly stated that:

"The accident causing the injury must arise out of work or business being done for the master either by direct or implied authority." State ex rel. Duluth, etc., Co. v. District Court, supra.

In that case it was said that the finding of the trial court in favor of the workman ought not to be disturbed, unless it is clear "that the ordinary servant, in the same situation, would have no reasonable justification for believing that what he undertook to do when injured was within the scope of his implied duties."

Again it is said that, if the work being done at the time of the accident may properly be regarded as within the ordinary expectation or contemplation of the parties, as being necessary or proper for the employee to do, to aid in carrying out, either...