Wilson & Co. v. Curry

• Decision Date: 12 November 1953
• Docket Number: 4 Div. 726
• Citation: 68 So.2d 548,259 Ala. 685
• Parties: WILSON & CO., Inc. v. CURRY.
• Court: Alabama Supreme Court

Page 548

68 So.2d 548

259 Ala. 685

WILSON & CO., Inc. v. CURRY.

4 Div. 726.

Supreme Court of Alabama.

Nov. 12, 1953.

T. E. Buntin, Dothan, and Fred S. Ball, Jr., Montgomery, for appellant.

Alto V. Lee, III, Dothan, and Chas. O. Stokes, Ozark, for appellee.

LAWSON, Justice.

We granted certiorari to review the judgment of the lower court awarding compensation under the Workmen's Compensation Law.

The employer, Wilson and Company, Inc., is a corporation engaged in the meat packing business. On and prior to May 18, 1951, it operated a plant at Dothan, Alabama. Charles A. Dunseth was general manager of the Dothan plant. J. A. Boyd was master mechanic and 'boss' of the mechanical department of the plant. Harold Curry was foreman of the mechanics who worked in the mechanical department. Boyd was subject to the direction and supervision of Dunseth and Curry was subject to the direction and supervision of Boyd and Dunseth.

Several weeks prior to May 18, 1951, the general manager, Charles A. Dunseth, asked Boyd to make a barbecue pit for Dunseth's personal use. Boyd agreed to have such a pit constructed at the plant out of discarded metal.

On or about May 17, 1951, Boyd made a sketch or drawing, which he showed to Mr. Dunseth in the latter's office. From Dunseth's office Boyd carried the sketch or drawing to Curry. Boyd and Curry discussed the making of the pit and out of this discussion came an understanding that on the following morning when Curry came to work he would bring from his home a piece of metal to be used as a grill.

Although Boyd and Curry were subject to call at any time, their working day usually began at 7:00 a. m. However, both men were accustomed to reach the plant not later than 6:45 a. m.

On the morning of May 18, 1951, Curry arrived at his place of work a little before seven o'clock. He was met by Boyd, who inquired whether he had brought the metal. Upon being advised by Curry that he had not done so, Boyd told Curry to take Boyd's car and go to Curry's home and get the metal. Curry drove to his home about six miles away and got the metal, which he placed in Boyd's car, and began his return trip to the plant. On his way back to the plant Carry was seriously injured in an automobile accident which occurred about 7:30 a. m.

Wilson and Company contends that the employee, Curry, did not sustain injury by accident arising out of and in the course of his employment.

It is argued here by the employer, Wilson and Company, that the act of Harold Curry in driving the car at the time of the accident was a voluntary act. There was some testimony before the trial court to that effect. But the trial court found to the contrary and held that the act of Curry in going after the metal was in response to an order from his immediate superior, Boyd. This finding has support in the evidence and we are not concerned here with the weight of the evidence. Black v. Alabama Dry Dock & Shipbuilding Co., 249 Ala. 209, 30 So.2d 456, and cases cited.

In Hamilton Motor Co. v. Cooner, 254 Ala. 422, 47 So.2d 270, 271, we held the death of an employee compensable as 'arising out of and in course of employment' where the deceased, a mechanic and general handyman, was killed in an automobile accident during working hours while on the way to notify the wife of another employee that the latter would be compelled to work overtime. The employer impliedly authorized the employee to make the trip, which was in the employer's interest and reasonably related to its business in that it was to enable the employer to complete an emergency job after the usual working hours by keeping an employee on the job to do special work.

But the Hamilton Motor Co. case, supra, is distinguishable from the case of instant concern on the facts. In this case the plaintiff, although carrying out the orders of his superior, was not performing at the time of the accident a task for the benefit of his employer, Wilson and Company, but was performing a service for the private benefit of one of his superiors, Mr. Dunseth, the general manager of the plant at which he was employed.

No decision of this court has come to our attention wherein this factual situation has been presented.

The question has arisen in a number of other jurisdictions. We have examined many cases, but deem it unnecessary to discuss them here as it is an impossible task to reconcile the various holdings. For a general discussion, see Annotation, 172 A.L.R. 378. In the final analysis, no general rule is laid down in the cases which we have considered.

However, the trend of the recent cases seems to be to uphold awards made in cases of this kind.

In Schneider's Workmen's Compensation Text, Vol. 7, p. 244, § 1660(a), it is said:

'An...