6 Div. 515.
October 12, 1922.
Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.
Tillman, Bradley Baldwin and A. Key Foster, all of Birmingham, for petitioner.
The injury complained of did not arise out of and in the course of the employment of the deceased, so as to bring this action within the provisions of the Workmen's Compensation Act of Alabama. L.R.A. 1916A, 232; 182 Mich. 20, 148 N.W. 243; 129 Minn. 176, 151 N.W. 912; 285 Ill. 11, 120 N.E. 457; 215 Mass. 497, 102 N.E. 697, L.R.A. 1916A, 306; 219 Mass. 488, 107 N.E. 349; 218 N.Y. 318, 113 N.E. 256, L.R.A. 1917A, 250; 211 N.Y. 241, 105 N.E. 432; (Ind.App.) 65 N.E. 608; 173 Cal. 313, 159 P. 1041, L.R.A. 1917B, 336; 141. Minn. 166. 169 N.W. 532; 290 Ill. 503, 125 N.E. 278; 292 Ill. 90, 126 N.E. 566; 217 Mass. 76, 104 N.E. 431, Ann. Cas. 1915C, 778; (Cal.App.) 192 P. 166; 194 Mich. 382, 160 N.W. 484, L.R.A. 1917D, 69; 152 Ala. 162, 43 So. 800, 12 L.R.A. (N.S.) 861; 167 Wis. 337, 167 N.W. 453; 88 Or. 611, 172 P. 114; (Tex.Civ.App.) 211 S.W. 949; 290 Ill. 503, 125 N.E. 278; 78 Mich. 271, 44 N.W. 270, 18 Am. St. Rep. 441; 120 Mass. 306, 21 Am. Rep. 514; 52 Iowa, 329, 3 N.W. 106, 35 Am. Rep. 275; 119 Cal. 637, 52 P. 33, 63 Am. St. Rep. 153. The employee's right of recovery for injuries arising out of and in the course of employment is limited to instances where the employee is engaged in, on, or about the premises where his services are being performed, or require his presence at the time of the injury, and during the hours of employment. Acts 1919, p. 238, § 36j; 173 Cal. 313, 159 P. 1041, L.R.A. 1917B, 336; 138 Minn. 312, 164 N.W. 1020; 141 Minn. 166, 169 N.W. 532; 145 Minn. 286, 177 N.W. 131, 10 A.L.R. 165; 2 Honnold, W. C. A. 988, 1261, 1308, 1641, 1685.
George P. Bondurant, of Birmingham, opposed.
Employment refers rather to the contract than to the labor done, and an employee does not cease to be such because of certain instants of time he is not actually engaged in work. 144 Minn. 105, 174 N.W. 726; 134 Minn. 113, 158 N.W. 913, 159 N.W. 565; 86 N.J. Law, 266, 92 A. 385, L.R.A. 1916A. 315; 98 Kan. 680, 159 P. 9, L.R.A. 1917B, 372; 156 Wis. 68, 145 N.W. 238, L.R.A. 1916A, 327; 79 Kan. 576, 100 P. 507; 220 Mass. 526, 108 N.E. 466, L.R.A. 1916A, 333; 218 Mass. 1, 105 N.E. 433, L.R.A. 1916A, 318; 85 N.J. Law, 446, 89 A. 927; 152 N.W. 416; 294 Ill. 119, 128 N.E. 290; 223 Mass. 56, 111 N.E. 696, L.R.A. 1916D, 641; 225 Mass. 174, 114 N.E. 206; 150 Minn. 1, 183 N.W. 977, 20 A.L.R. 316. The act should be construed liberally, and not strictly, as a statute in derogation of the common law, and should receive as broad an interpretation of it as can fairly be given. Honnold, 25; 129 Minn. 176, 151 N.W. 912; 218 N.Y. 148, 112 N.E. 750, L.R.A. 1917A, 344; (Ind App.) 127 N.E. 289.
There is but one material question argued by counsel, viz. whether the injury received by this employee, resulting in his death, arose out of and in the course of his employment, within the purview of sections 1 and 36, subd. 2 (j), p. 238, of the act, noted in the statement ante. This review will be confined to the single matter now in controversy. There is a bill of exceptions incorporated in the transcript. Since the recitals of the special findings of fact (quoted in all material aspects in the statement of the case) are either too meagre or omissive to fully inform this court in respect of the entire circumstances having relation to the point in contest, the bill of exceptions will be considered along with the special finding of facts. This course consists with the pertinent pronouncement in Ex parte Sloss-Sheffield Steel Iron Co. (Ala. Sup.) 92 So. 458-461. a decision not out of harmony with related procedural declarations made in Woodward Iron Co. v. Bradford. 206 Ala. 447, 90 So. 803, and in Ex parte Smith Lumber Co., 206 Ala. 485, 90 So. 807. In Ex parte Sloss-Sheffield Steel Iron Co., supra, and another of the cited decisions trial judges were urged to observe the mandate of the Compensation Act in respect of the trial judge's duty in making a statement of the facts and his conclusions thereupon. In this case it was also held that the inquiry whether there was "any evidence" to support the trial judge's conclusion under review was a question of law, reviewable on certiorari; and that "where there is any legal evidence to support the finding, such finding is conclusive. * * *" The pertinency of these observations will appear.
Legislative Acts of the nature under consideration are remedial in character, and hence deserve and generally receive a "broad interpretation" and application in concrete cases, consistent with the beneficent purpose such enactments have in view. Panasuk's Case, 217 Mass. 589, 105 N.E. 368; Ex parte Majestic Coal Co. (Ala. Sup.) 93 So. 728. House was a blacksmith whose place of entire actual service was inside the building. He had, when injured, completed this actual service; had "punched the clock" denoting the termination of his actual service; and while on the employer's premises, in the act of leaving for his home, some 50 feet from the entrance to the building in which he had "punched the clock," he tripped over the employer's railway and fell, later dying from the injury thus received. Further in the special finding the trial judge concluded that House started (on a different route from that provided for employees to enter and to leave the premises) toward the place inside the shopyard where a train, operated by the employer, was scheduled to stop for the purpose of switching off coal; and, also, that it was "the custom of a few of the employees to ride this train" to the neighboring cities of Birmingham and Pratt City. The special finding is otherwise silent with respect to "custom," as well as with respect to whether House was in the course of observing or availing of the "custom." Referring to the bill of exceptions, it appears that there was evidence and inferences therefrom, including the answers of the employer (defendant) to interrogatories propounded to it, designed to show that, notwithstanding another cherted way was provided for employees to enter and to leave the premises, it was customary for those intending to take the train mentioned "to use the route along which Mr. House was going when he was injured"; that "the route he used was the regular route of those men who caught that train"; that "the employees of the company could ride that train without paying fare and some of them used it regularly"; and that the employer knew of the practice. There is no evidence of objection to this known practice on the part of unnamed and unnumbered employees.
Ante, p. 86.
The testimony further went to show that when House was injured, within a very few minutes after he "punched the clock" and within a few minutes of the time the Praco train was scheduled to arrive, he "was going across the tracks," on the employer's premises, "to catch the Praco train." The evidence indicated supplies the mentioned deficiencies in the special findings of fact. Considering both the special finding and the evidence noted, it cannot be affirmed that the conclusion of the trial judge, that House's injury arose out of and in the course of his employment, is without "any evidence" to support it. Ex parte Sloss-Sheffield Steel Iron Co. (Ala. Sup.) 92 So. 458, 461.fn1 Such a finding, from evidence tending to invite it, being "conclusive" on review by certiorari (Ex parte Sloss-Sheffield Co., supra), the affirmance might be ordered entered without further discussion. Counsel for petitioning appellant have, however, pressed the proposition that the effect of the provisions of the subdivision to be quoted (subd. 2 [j], § 36, Act 1919, p. 238) is to exclude House's injury from the benefit of the Workmen's Compensation Act. That subdivision 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, on, 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."
Recognizing that these provisions of the Alabama act were copied from the Minnesota act of like design (Gen. St. 1913, §§ 8195-8230), and that this appropriation of the act from the sister state included the constructional effect that state's highest court had attributed thereto, it was declared in Ex parte Smith Lumber Co., 206 Ala. 485, 90 So. 807, 808, that the act "was not intended to confine the relation of employer or employee within narrower limits than the rule heretofore existing." The Minnesota court, in Lienau v. Northwestern Tel. Co., 186 N.W. 945 (decided in 1922), after quoting the definitive provisions, now section 36, subd. 2 (j), declared: "In general it may be said that the act was intended to apply in cases where the relation of master and servant exists." This view consists with the generally declared judicial and administrative duty to construe remedial enactments of this character with breadth and liberality, to the end of advancing its beneficent object. 1 Honnold on Workmen's Compensation, pp. 25, 28. The recent deliverance of this court in Ex parte Majestic Coal Co., supra, noted a number of Minnesota decisions, as well as others treating related provisions of compensation acts, with particular reference to the subdivision now under consideration. In respect of such acts a distinction has at times been taken between the phrase "arose out of" the employment and the phrase "in the course of the employment." L.R.A. 1916A, pp. 232 et seq. It has been affirmed that these phrases refer to distinct conceptions and that their concurrent existence is essential to invoke the right and remedy of such acts. While in construing and applying the act regard must be had to the distinctness of these phrases, it is as necessary as it is desirable that overwrought refinements in administration should be avoided, since that process may conduce to the embarrassment, if not the defeat, of the beneficent purposes of remedial acts of this character.
Definitions or descriptions of these phrases, elsewhere approved, are repeated in Ex parte Majestic Coal Co., supra. It will now suffice to say, in the light of those authorities, that an employee's injury is within the prescription of these phrases of the Alabama act if, when the injury was received, the employee was either doing the work or performing the service he was engaged to do or perform, or was engaged in an act or service naturally related thereto, such as a reasonable judgment would refer either to the express or the implied elements of the contract of employment, such as a reasonable conception would conclude to be a natural incident of the employee's engagement. Within the purview of such naturally related and incidental acts in the course of the employment is the movement of the employee in entering, at the appropriate time, the employer's premises to discharge his function; his preparation to begin and to terminate his actual service; and to leave the premises at an appropriate time after the completion of his actual service. Gane v. Norton Hill Co., 2 K. B. (1909) 539; Terlecki v. Strauss, 85 N.J. Law, 454, 89 A. 1023; 1 Honnold, pp. 358, 367, 368 et seq.
At the time the injury was sustained House was on his employer's premises; his actual service had but a few minutes before terminated; he was pursuing a course (in the act of leaving the employer's premises) that according to the evidence, customary use, with the knowledge of his employer, had sanctioned, a route or way of departure from the premises that the evidence authorized the trial judge to conclude was as rightfully available to employees desiring to go that route as the cherted way provided by the employer.
Error does not affect the judgment under review. It is affirmed.
Writ denied, and judgment affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.