127 So. 165 | Ala. | 1930
Petitioner seeks to review the judgment and findings of the circuit court holding it liable under the Workmen's Compensation Law (Code 1923, § 7534 et seq.).
The employee was a miner in petitioner's mine, being paid by the ton and "yardage." He furnished his own explosives, which he could and usually did purchase from petitioner, but could buy them elsewhere as he saw fit. For his convenience and profit he purchased them in large quantities, and kept them at his home situated about half mile from the entrance to the slope leading to his place of work. He rented the house from petitioner, though he could have rented or lived elsewhere as he might choose.
On the night before his injury, his shot in the mine failed to explode. As he was about to leave home and while on his porch, having taken up such explosives and other needs for the day as he wished, a companion suggested that they test some dynamite caps which they intended to use. In making this test, he was injured. The circuit court found that it was part of his duty to test these explosives, and that in doing so, the injury arose out of and in the course of his employment.
The ultimate conclusion on this appeal is dependent upon the statement that such test was a part of the duties of his employment. While the finding is that it was a part of his duty to test these explosives, it does not state that such was a duty of his employment, though we assume that such was the meaning of the finding. There is no evidence in the record that such was a part of the duties of the employment. That statement therefore was a legal conclusion of the court from the facts otherwise found. While this court will only look to the record "to see if there is any evidence or reasonable inferences from evidence to support the facts found by the court" (Ex parte Little Cahaba Coal Co.,
The right to recover in this case seems to depend upon whether such conclusion of the court is a proper legal result of the facts which we have briefly summarized. Our conclusion therefore depends upon a proper application of section 7596 (j) Code, defining the circumstances in general terms when an accident arises out of and in the course of one's employment. Section 7596 (j) excludes from compensation all injuries except while employees are "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." This clause has received much consideration, and as to it, we may conclude that many questions have been definitely settled. It has been held that when the employee is being transported by the employer to and from the place where the service is rendered as a part of the contract of employment, the employee while being so transported is engaged in the service of the employer at or about its premises, and during the hours of service. Jett v. Turner,
An accident is compensable if 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." This includes "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." Ex parte L. N. R. Co.,
The term here used, the "premises" of the employer, has reference to the premises at or near which the service is to be rendered. Ex parte L. N. R. Co., supra; Shickley v. Phila.
Reading C. I. Co.,
But "a reasonable margin is to be allowed him to get on the premises and to get to the place where he is to do his work, and if during that time he is doing something for the benefit of the employer as well as himself such as getting necessary refreshment, he is engaged in his employment. * * * The preparation necessary for beginning the work after the employer's premises are reached is a part of the employment. * * * A person returning to his place of work from lunch enters upon the course of his employment only when he reaches the place where his first duties are to be performed. * * * But it does not cover him on his way to his employer's premises in the morning in the absence of tasks to be performed by him before reaching such premises." 1 Honnold, supra, pp. 359 to 363; Indian Creek Coal M. Co. Case,
In the case of Murphy v. Ludlum Steel Co.,
This court has held that he is not so employed, when he is making a tool box to keep his tools and clothing used in his employment, though in doing so he is upon the premises and using the appliances of the employer. Vickers v. Ala. Power Co.,
In the case of Punches v. Am. Box Board Co.,
The case of State ex rel. Jacobson v. Dist. Court,
It was perhaps as much to the interest of both the employer and the employee that the latter should doctor the sore shoulder of the horse that he might work for them, as that the dynamite caps be tested to see if they would perform their function. The horse's neck and the dynamite caps both may have given the employee evidence of needing attention. They were equally equipment or appliances over which the employer had no control, did not furnish, inspect, or transport to the place where they were to be used; but were furnished, controlled, manipulated, used, inspected, and treated only by the employee. It was not a preparation necessary for beginning work after the employer's "premises" are reached. He was not upon a place of the employer where or near which the first duties of his employment began. He was looking out for his own interests. The interests of the employer were only incidental, the same as if he were fixing his knapsack, mining clothes, lamp, cap, or any other equipment needed in his work and which he could repair at home. This was all done by him at his home before leaving, and as a part of this preparation to leave. He had not left his house, but was on the porch all ready to go when the suggestion was made by a companion that the test be made. These appliances were all carried together and constituted his outfit, and all supplied by him at his own expense.
We have reached the conclusion that we cannot agree with the finding of the circuit court that the accident to the employee in this case arose out of and in the course of his employment. The judgment of that court is therefore reversed and one here rendered for the petitioner. Section 8599, Code; Dean v. Stockham Pipe Fittings Co., supra.
Reversed and rendered.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.