Opinion
3 Div. 985.
January 21, 1932.
Appeal from the Circuit Court, Escambia County; F. W. Hare, Judge.
Hamilton Caffey, of Brewton, for appellant.
If there is an absence of legal evidence to support the findings of fact by the court, or a material part thereof, the judgment will be reversed. Hearn v. United States C. I. P. F. Co., 217 Ala. 352, 116 So. 365; Sloss-Sheffield Steel Iron Co. v. House, 217 Ala. 422, 116 So. 167; Woodward Iron Co. v. Vines, 217 Ala. 369, 116 So. 514; Ex parte Big Four Coal Mining Co., 213 Ala. 305, 104 So. 764; Sloss-Sheffield Steel Iron Co. v. Thomas, 220 Ala. 686, 127 So. 165; American F. C. P. Co. v. Gilbert, 221 Ala. 44, 127 So. 540. The statute is to be liberally construed in favor of the employee and embraces all injuries that occur while the employee is doing what one in like employment may reasonably do in relation to that service. Recovery may be had if the injury is one which, after the event, may be seen to have had its origin in the nature of the employment. Mobile Liners v. McConnell, 220 Ala. 562, 126 So. 626; Ex parte Majestic Coal Co., 208 Ala. 86, 93 So. 728; Ex parte Terry, 211 Ala. 418, 100 So. 768; Blocton C. C. Co. v. Campbell, 219 Ala. 529, 122 So. 806; Garrett v. Gadsden Coop. Co., 209 Ala. 223, 96 So. 188; Republic I. S. Co. v. Ingle, 223 Ala. 127, 134 So. 878; Malandrino v. Southern New York Power Ry. Corp., 190 App. Div. 780, 180 N.Y. S. 935; Birmingham R. M. Co. v. Rackhold, 143 Ala. 115, 42 So. 96.
Leon G. Brooks, of Brewton, for appellee.
In compensation cases, where the finding of the trial court on the facts is supported by the evidence on any reasonable view, its judgment will not be disturbed. Harris v. Sloss-Sheffield Steel Iron Co., 222 Ala. 470, 132 So. 727. The burden of proof is upon the plaintiff to establish that the accident arose out of and in the cause of employment. Ex parte Little Cahaba Coal Co., 213 Ala. 244, 104 So. 422; Sloss-Sheffield Steel Iron Co. v. Jones, 220 Ala. 10, 123 So. 201. If the employee was doing an act as a mere volunteer or as an accommodation to the station agent which did not come within the scope of his duties, there would be no liability. Central Garage v. Ind. Comm., 286 Ill. 291, 121 N.E. 587; Bullard v. Cullman Heading Co., 220 Ala. 143, 124 So. 200; Smith v. Southern Pac. Co., 51 Nev. 390, 277 P. 609.
The deceased workman was a hostler in defendant's yards at Magnolia, Ala., and the evidence shows that his duties related to looking after and caring for defendant's locomotives that came into the yards, cleaning out the fire boxes, oiling the parts, reconditioning the pumps, and generally getting the locomotives ready for other trips; to receive orders through the telegraph operator stationed at the office and call outgoing crews; that his duties were on the outside, and he had no duty in respect to heating the telegraph office.
There was evidence tending to show that he came to his death by attempting to start a fire in the heater in the office by the use of live coals taken from one of the locomotives and kerosene oil, either poured from a can or one of the lamps. This evidence sustains the conclusion of the circuit court that the workman did not come to his death through accident arising out of or in the course of his employment. Bullard v. Cullman Heading Co., 220 Ala. 143, 124 So. 200.
In Mobile Liners v. McConnell, 220 Ala. 562, 126 So. 626, the workman was following a general course of conduct and practice in respect to the performance of his work, and this differentiates that case from the case in hand.
In Sloss-Sheffield Steel Iron Co. v. House, 217 Ala. 422, 116 So. 167, the duties of the workman required him to go into the barn where he was injured. Not so with the workman in the case at bar.
The writ of certiorari will be denied.
Writ denied; judgment affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.