Bullard v. Cullman Heading Co. , 220 Ala. 143 ( 1929 )

We cannot assent to the contention or suggestion that the injury arose out of the employment, if occurring on the master's premises, and out of an act performed or attempted in furtherance of the master's interest, or for his benefit. We cannot subscribe to the idea that, when a servant is employed to perform certain duties not at all dangerous, and without the consent, express or implied, of the master, departs therefrom and engages in something else, which may be dangerous or hazardous, and not growing out of the work assigned him or incident thereto, is within the Compensation Act, if injured as a result of his departure from the course of his employment, notwithstanding he may have been performing an act which he may deem was beneficial to the master.

Our case of Ex parte Majestic Coal Co., 208 Ala. 86,93 So. 728, is in no sense in conflict with the present holding. There the plaintiff, a miner, was injured while pulling down or removing a rock incident to his mining operations, and there was evidence tending to show that it was a part of his duties to remove the rock, that this was the custom, and the defendant paid the miners for "doing 'yardage,' and the removal of such loose rock was embraced in the term 'yardage.' "

The case of State ex rel. Duluth Co. v. District Court,129 Minn. 176, 151 N.W. 912, strikes the writer as close, if not beyond, the border line, yet it is unlike the case at bar. There it was the duty of the employee to get and replace the light bulbs, and he was injured while attempting to make or fix an instrumentality for opening the place where the bulbs were located, instead of getting the key from the foreman. The court proceeded upon the idea that it was the duty of the employee to get the bulbs, and that making preparations to enter the place where they were stored was an incident to his employment, and that the fact that he discharged his duty by procuring a means of entry different from the regular method did not amount to such a departure from the duties of his employment so as to place him beyond the influence of the Compensation Act (Code 1923, §§ 7534-7597).

Here we have a case where the plaintiff was assigned a duty totally different from the one in which he was engaged when injured, one harmless and the other to some extent dangerous, each independent of and disconnected from the other, and the master could not be liable, in the absence of an express or implied consent to the discharge of the new duties.

In the case of Ramczik v. Winona Co., 174 Minn. 156,218 N.W. 545, the plaintiff had departed from the regular course of his employment, and did so without being asked, "but with the knowledge and in the presence of the foreman, who at least made no objection," the result being that there was an implied consent.

In the case of Nygaard v. Throndson Bros., 173 Minn. 441,217 N.W. 370, the plaintiff was injured while in the employment of the defendant, and in the presence of and under the direction of the master.

That there was such a departure, so as to remove the plaintiff from the protection of the Compensation Act, there can be no doubt, and as heretofore stated, unless the change was made with the consent of the defendant, express or implied, there could be no liability. True, some of the evidence shows that Anderton consented on previous occasions to the exchange of work by the employees, and, if this stood alone, there might be a basis for the finding of an implied consent; but the testimony of Anderton negatives an express consent or such a usage or custom, for the exchange of such work as here involved to raise a reasonable inference of an implied consent. At least, the trial court in effect so found, and we have repeatedly held that the finding of the trial court will not be disturbed, when there is any legal evidence in support of the conclusion, and this rule must be invoked in cases where the award is denied, as well as where there has been a judgment favorable to the plaintiff.

Rehearing denied.

SAYRE, THOMAS, and BROWN, JJ., concur.