Wiregrass Comprehensive Mental Health Clinic, Inc. v. Price

• Decision Date: 27 September 1978
• Citation: 366 So.2d 725
• Parties: WIREGRASS COMPREHENSIVE MENTAL HEALTH CLINIC, INC. v. Victoria F. PRICE. Civ. 1549.
• Court: Alabama Court of Civil Appeals

Page 725

366 So.2d 725

WIREGRASS COMPREHENSIVE MENTAL HEALTH CLINIC, INC. v. Victoria F. PRICE.

Civ. 1549.

Court of Civil Appeals of Alabama.

Sept. 27, 1978.

Rehearing Denied Oct. 25, 1978.

G. M. Harrison, Jr. of Merrill & Harrison, Dothan, for appellant.

Edward M. Price, Jr. of Farmer, Farmer & Price, Dothan, for appellee.

WRIGHT, Presiding Judge.

This is a workmen's compensation case.

Defendant appeals from judgment granting plaintiff summary judgment.

Plaintiff is the widow of Charles D. Price, III. Mr. Price was killed by a train while driving his automobile over a railroad crossing at about noon on August 30, 1977, in the town of Ashford, Alabama. Mr. Price was employed by defendant as a counselor. He usually worked in the main office in Dothan, but in May of 1977, he was assigned to work on Tuesday of each week at a branch office in Ashford. Ashford is some ten miles from Dothan. Price was reimbursed fifteen cents per mile for travel expense when he went to work in Ashford. On the day of his death, Price worked in his office in Ashford until noon. He was driving his automobile to a nearby restaurant where he customarily ate his lunch when he was killed. There was some testimony by the police chief of Ashford that he was going to join Price for lunch as he had on other days and that Price had counseled with him about his marital problems on such occasions. However, his affidavit and a previous deposition tended to conflict. There was no specific appointment to meet for that purpose on the day of his death.

Each party moved for summary judgment. Written briefs were submitted on the issue of whether Price was killed by accident in the course of and arising out of his employment. The trial court entered judgment for plaintiff and in doing so made the following statements:

"The court is of the opinion that these facts establish that the injuries resulting in Price's death arose out of and in the course of his employment with defendant as a matter of law. The court reaches this decision because all of the undisputed facts considered as a whole leave no rational conclusion except that But for Price's employment with defendant, in all likelihood, he would not have been where he was at the time of his death and would not have been subjected to the danger which killed him. The fact that Price's travel expenses were being paid at the time of his death also weighs heavily in the reaching of this decision." (Emphasis added.) (R.54)

We find the trial court was in error in applying the law to the facts. The application by the court of the "but for" principle enunciated in its judgment is not a rule of law and is not appropriate as a basis for determining whether deceased was in the course of his employment at the time he was killed. It certainly cannot be a valid indicator of "arising out of" his employment. The statute requires that the injury or death result from both elements or conditions, I. e., it must "arise out of" and occur "in the course of" the employment. § 25-5-51, Code of Alabama (1975). These conditions or terms are limited in application in any case by the provisions of § 25-5-1(9) which state Inter alia:

"(9) Injuries by an accident arising out of and in the course of his employment. Without otherwise affecting either the meaning or interpretation of such clause, such clause does not 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 such service as such workmen, . . . ."

Our review of the affidavits and depositions submitted in support of plaintiff's motion for summary judgment indicates they fail to prove without material issue of fact that Price died as a result of an accident occurring while in the course of his employment and arising out of his employment.

Our supreme court has defined the phrases "in the course of" and "arising out of." Union Camp Corporation v. Blackmon, 289 Ala. 635, 270 So.2d 108 (1972); Massey v. United States Steel Corporation, 264 Ala. 227, 86 So.2d 375 (1956); Wooten v. Roden, 260 Ala. 606, 71 So.2d 802 (1954). It has said "in the course of" refers to time, place and circumstances. If an injury occurs within the period of his employment, at a place where he may reasonably be while he is reasonably performing the duties assigned, such injury may be said to have occurred in the course of his employment. The court has also said that the phrase "arising out of" involves the idea of a causal relationship between the employment and the injury.

The referred-to statements of the court were made in the case of Wooten v. Roden, and have been repeated in subsequent cases. More directly to the point, the court in Wooten quoted from the case of F. Becker Asphaltum Roofing Co. v. Industrial Commission, 333 Ill. 340, 164 N.E. 668, 670 as follows:

"The injury contemplated by the act must have had its origin in some risk of the employment. ...