Southern Cotton Oil Co. v. Bruce , 249 Ala. 675 ( 1947 )

I regret my inability to agree. Guided by emotions, I would readily concur for it is quite manifest from the undisputed proof the watchman Bruce met his tragic end because of his love for the boy and his desire to please him. No stronger case for sympathetic appeal could well be presented.

I am in full accord with the consistent holdings of this court to the effect that the workmen's compensation statute should be liberally construed so as to effectuate its beneficent purpose. But we have often had reason to observe (Cohan Bullard v. Cullman Heading Co., 220 Ala. 143,124 So. 200; Morgan v. City of Guntersville, 239 Ala. 669, 196 So. 877) that notwithstanding the liberal rule of construction the courts are not authorized to place an injured employee within the influence of the statute who fails to bring himself within the express requirement of the law.

The case is very fully and clearly stated in the opinion of Mr. Justice Lawson and needs no elaboration here. To my mind it is simply an application of the settled rules to the facts of the case, as disclosed by this record.

Of course, the testimony must be viewed from the standpoint of reason because, as we have stated in our decisions, if there is a reasonable view of the evidence that will support the conclusion announced by the trial court the finding and judgment will not be disturbed. Mobile Liners, Inc., v. McConnell, 220 Ala. 562, 126 So. 626. So viewed, therefore, only one conclusion, as I view it, can be reached as to the facts, that is, that Bruce in order to please the boy, of whom he had evidently become very fond, took from the drawer his employer's pistol and laid it on a nearby desk for one purpose only, and that was to secure his holster for the use of this boy and to place in it the boy's toy pistol. As applicable here, we have approved the following rule: the rational mind must be able to trace the result of the injury to the proximate cause set in motion by the employment, and not by some other agency. Dean v. Stockham Pipe Fittings Co., 220 Ala. 25,123 So. 225. A rather clear statement of the rule is to be found in Ex parte Terry, 211 Ala. 418, 100 So. 768, 769, in the following language: "The effect of these and other well-considered cases is to firmly establish the principle based of course upon the theory of a liberal rather than a strict or narrow construction, that an employe's injury may be properly held to have arisen out of his employment notwithstanding that the act or conduct of the employe to which the injury is proximately referable was not within the scope of his authority nor strictly within the line of his duty, provided it was reasonably related to the service he was employed to render and was in good faith done or undertaken in furtherance of the employer's business; and notwithstanding, also, that the injury in question was not one of the anticipated risks of the service."

In Mobile Liners, Inc., v. McConnell, supra [220 Ala. 562,126 So. 628], is the observation: "Whether work was reasonably related to the employee's duties, and whether done in good faith in furtherance of the employer's business, are recognized tests of whether resulting injury arose out of the employment."

In Exchange Distributing Co. v. Oslin, 229 Ala. 547,158 So. 743, 746, the court pointed out the fact that it is not sufficient that the injury or death of the employee arose from an accident received in the course of the employment, but it must arise out of the employment. In speaking further to that question the opinion in that case observes that it is necessary to recover compensation that the occurrence should have resulted from a risk reasonably incident to the employment; that there be a causal connection between the conditions under which the employee worked and the resulting injury. The court further observed: "While the occurrence need not have been foreseen or anticipated, it must appear after the event to have had its origin in a risk connected with the employment, and to have flowed from that source, as a rational consequence."

This principle was again stressed in the more recent case of Dallas Mfg. Co. v. Kennemer, 243 Ala. 42, 8 So. 2d 519, 520, from which opinion I take the following excerpts:

"But it does not follow that because the injury was accidental it was compensable, even though at the time he was on the premises of defendant and was serving in the course of his employment. Nor is the matter necessarily settled by the fact that the cause of his injury originated on said premises of defendant to which his employment caused him to be at that moment exposed. * * *

"The question always is whether his employment specially subjected him to a hazard of that sort, as one which may be supposed would be a natural consequence of it. * * *

"In all cases it is necessary that the duties of his employment expose him to a danger materially in excess of that to which people commonly in that locality are exposed when not situated as he was in the course of his employment."

The prevailing opinion lays much stress upon the cases of Ex parte Rosengrant, 213 Ala. 202, 104 So. 409, and Boris Const. Co. v. Haywood, 214 Ala. 162, 106 So. 799. The court in those cases concluded that the work of the employee exposed him to unusual hazards, all of which is fully explained in the opinion of Justice Foster in the case of American Fuel Clay Products Co. v. Gilbert, 221 Ala. 44, 127 So. 540. These cases also were referred to in Dallas Mfg. Co. v. Kennemer, supra, comparing them to what is called the "street accident cases." Illustrative authorities of this line of decisions is to be found in the recent work of Horovitz on Workmen's Compensation, beginning on page 95.

As I view it, the Rosengrant and Boris Construction Company cases are without application here. The accidental shooting of Bruce occurred while he was placing a toy pistol in the holster for the pleasure of this boy. Certainly this was not a hazard anticipated by his employment and in no manner connected therewith. True enough, a night watchman by virtue of his position is exposed to more hazards than the ordinary employee, but I am unable to see that this principle has application to the facts here presented. The risk from injury so far as Bruce's employment was concerned was no more than the normal risk to which all are subject, that is, the risk of a boy playing with a loaded pistol. There are quite a number of authorities cited in the note to 71 C.J. page 692, which illustrate this principle. In 71 C.J. page 681 is the statement that an injury incurred when the employee has departed from the service of the master and is performing a voluntary service for the accommodation of another does not arise out of and in the course of employment. A number of authorities are cited in support of this principle. See also Barragar v. Industrial Commission, 205 Wis. 550, 238 N.W. 368, 78 A.L.R. 679 (wherein stress is laid upon Marks' Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181) and authorities cited in the note thereto. Likewise authorities in the note to Railway Express Agency v. Lewis, 156 Va. 800, 159 S.E. 188, 76 A.L.R. 350. Our case of American Ry. Express Co. v. Tait, 211 Ala. 348,100 So. 328, though not involving the workmen's compensation laws, bears some analogy. There is some analogy in those cases involving a journey or trip by a servant which includes a personal mission as well as some service for the employer. The New York Court (Chief Judge Cardozo writing) in the matter of Marks' Dependents v. Gray, 251 N.Y. 90,167 N.E. 181, 183, speaking of a trip by the servant wherein a personal mission was involved along with business for the employer, observed that: "To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled." The Wisconsin court in Barrager v. Industrial Commission, supra, adopted as sound this test as laid down by the New York court. Applying this principle to the instant case the approach of Bruce to the drawer wherein rested the pistol in the holster was purely a personal mission of Bruce for the purpose of securing the holster for the boy. It cannot upon any reasonable basis be questioned that this trip (so designated by way of analogy) to the drawer would not have been made but for this personal purpose. The test by the New York court is therefore equally applicable here. The same principle controls. And the cases of Cohan Bullard v. Cullman Heading Co., and Morgan v. City of Gunterville, supra, illustrate the further principle that an accident does not arise out of the employment, if, at the time, the workman is arrogating to himself duties which he was neither engaged nor entitled to perform. Clearly the principle with even greater logic be applicable when the deviation is for purely personal reasons.

To my mind when the night watchman Bruce proceeded to obtain the holster and place the toy pistol therein for his boy friend it was purely a matter of accommodation to the boy as well as for his own gratification. True, he was still night watchman, but in performing this act he was clearly departing from the scope of his employment. That the boy should have taken the 32-caliber pistol and fired it at Bruce is clearly not a risk or a danger to which Bruce was subjected by being a night watchman at the plant.

As I view in the light of reason and common sense, this tragic accident is not one within the influence of the workmen's compensation statute. Reduced to the last analysis, I am persuaded that the prevailing opinion leads to the conclusion that a night watchman is within the statute if accidently shot with a weapon belonging to the employer under any circumstances by any one on the premises and during the hours of employment, regardless of the circumstances of the injury. I cannot square such conclusion with the theory that for recovery there must be a causal connection between conditions under which the employee worked and the resulting injury. The occurrence must have had its origin, as we have often said, in a risk, connected with the employment and therefore flowed from that source as a rational consequence. The language of Exchange Distributing Co. v. Oslin, supra, is to my mind applicable here, where it was observed the dangers incurred in going on the personal mission there involved was in no wise connected with the business he was engaged in, or was this danger incidental to the character of the business in which he was employed, but was wholly independent of the relation of master and servant.

But I forego further discussion.

Finding myself unable to agree, I respectfully dissent.

Mr. Justice FOSTER concurs in the foregoing views.