Opinion
8 Div. 314.
June 27, 1931.
Appeal from Law and Equity Court, Franklin County; B. H. Sargent, Judge.
J. Foy Guin, of Russellville, for appellant.
The workman having attempted the performance of duties which he was not engaged to perform, and was not entitled to perform — being engaged on an enterprise of his own — in fact attempted the operation of a dangerous piece of machinery in violation of a rule of the employer; the accident did not arise out of or in the course of his employment. Martin v. Sloss-Sheffield Steel Iron Co., 216 Ala. 500, 113 So. 578; Prayther v. Deepwater Coal Iron Co., 216 Ala. 579, 114 So. 194; Bullard v. Cullman Heading Co., 220 Ala. 143, 124 So. 200; Sloss-Sheffield Steel Iron Co. v. Jones, 220 Ala. 10, 123 So. 201; Kraft v. West Hotel Co., 193 Iowa, 1288, 188 N.W. 870, 31 A.L.R. 1245; Daly v. Bates Roberts, 224 N.Y. 126, 120 N.E. 118; Code 1923, §§ 7534, 7544; Sloss-Sheffield Steel Iron Co. v. Greer, 216 Ala. 267, 113 So. 271.
H. H. Hamilton, of Russellville, for appellee.
A bill of exceptions, in compensation cases, is proper only when it is insisted that there was no evidence to support the finding of fact, or when the facts recited in the finding is meager or omissive. Where there is any legal evidence to support the finding, same is conclusive. Ex parte Woodward Iron Co., 211 Ala. 74, 99 So. 97, 98; Ex parte Sloss-Sheffield Steel Iron Co., 207 Ala. 219, 92 So. 458; Ex parte Louisville N. R. Co., 208 Ala. 216, 94 So. 289; Ex parte Nunnally Co., 209 Ala. 82, 95 So. 343; Ex parte Mt. Carmel Coal Co., 209 Ala. 519, 96 So. 626; Ex parte Shaw, 210 Ala. 185, 97 So. 694; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Ex parte De Bardeleben Coal Co., 212 Ala. 533, 103 So. 548. The accident arose out of and in the course of the workman's employment. Jett v. Turner, 215 Ala. 352, 110 So. 702; Ex parte Majestic Coal Co., 208 Ala. 86, 93 So. 728; Benoit Coal Co. v. Moore, 215 Ala. 220, 109 So. 878, 879; Ex parte Louisville N. R. Co., 208 Ala. 216, 94 So. 289. The burden of proof as to violation of a rule of an employer was upon the employer. Code 1923, § 7534; Blocton Cahaba Coal Co. v. Campbell, 219 Ala. 529, 122 So. 806; Ex parte Coleman, 211 Ala. 248, 100 So. 114.
The defenses set up to the claim of the workman for compensation were: First, a denial that the injury arose out of and in course of the employment; second, willful violation of a known and reasonable rule of the employer relating to the service.
The finding of fact was quite general, a mere conclusion, saying: "While acting within the discharge of his duties as such employee of the defendant, and while acting within the line and scope of the employment," the injury was received.
In such case a bill of exceptions is permissible. The office of same is not that this court shall pass upon the weight of the evidence, but to determine as matter of law whether there is any evidence directly sustaining such finding, or of facts and circumstances from which such conclusion may reasonably be drawn. Greek's Case, 207 Ala. 219, 92 So. 458.
Looking to the bill of exceptions, it appears plaintiff's employment was to operate a "joining saw," cutting stone which had been made ready by planing, etc.
The injury, loss of a thumb, was received while operating a cut-off saw in cutting kindling to make a fire in the "oven" or "salamander" provided by the employer for the comfort of employees at work. This cut-off saw was located outside the shed where plaintiff worked, and he was operating same some 15 minutes before regular working hours.
Evidence for plaintiff tended to show employees were expected to make their own fires, if wanted, to get kindling to start coke fires from waste lumber outside the stove cutter's shed; that, with the knowledge and acquiescence of the foreman in charge, plaintiff had used the cut-off saw for this purpose, and that he and other employees used it to cut wood blocks or wedges needed in their work when none were prepared by regular carpenters.
Further evidence tended to show plaintiff and other employees were accustomed, with the knowledge and acquiescence of the employer, to go to the plant before the regular hours of work and make their fires; that the rules required them to be at their posts at 6:30 a. m., the hour for beginning work.
Such evidence, if believed, supports a reasonable inference that the service in which plaintiff was engaged at the time of the injury was incident to the employment, and at the place, and within the time contemplated, and the use of the cut-off saw as a convenient implement to cut kindling, no other being specially provided therefor, would not put him without the line and scope of employment. Jett v. Turner, 215 Ala. 353, 110 So. 702; Benoit Coal Mining Co. v. Moore, 215 Ala. 220, 109 So. 878, 879; Ex parte Majestic Coal Co. (Polo v. Majestic Coal Co.), 208 Ala. 86, 93 So. 728; Ex parte Louisville N. R. Co. (House v. L. N. R. Co.), 208 Ala. 216, 94 So. 289.
The breach of rules, an affirmative defense, with burden of proof on the employer, is defined as a "wilful breach of a reasonable rule or regulation of his employer, of which rule or regulation the employee has knowledge." Code, § 7544.
Suffice to say as to this defense, plaintiff, in testimony, denies any knowledge of a rule forbidding the use of the cut-off saw. Other evidence raises a question whether the use of this saw by employees was within the general rule forbidding the operation of any other machine than the one he is employed to operate, in the light of known and contemplated use above indicated.
We do not deal with the weight of the evidence tending to overcome the plaintiff's case as outlined above; nor do we see any occasion to consider the argument questioning the justice of the rule of review provided by law.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.