DEATON TRUCK LINES v. ACKER, 266 Ala. 611 (1957)


DEATON TRUCK LINES v. ACKER, 266 Ala. 611 (1957)
98 So.2d 429

DEATON TRUCK LINE, Inc., v. Evelyn ACKER.

6 Div. 965.Supreme Court of Alabama.
November 14, 1957.

Appeal from the Circuit Court, Jefferson County, G. F. Goodwyn, Jr., J.Page 612

The agreement for lease or rental by appellant of Acker’s truck-trailer is as follows:

“This lease agreement is made this 24 day of June, 1949, between E. O. Acker, hereinafter called the Owner, and Deaton Truck Line, Inc., hereinafter called Company, as follows:

“1. Owner hereby rents, leases and delivers to the Company the following described motor vehicle:

“No. 116-1945 Model White, Motor No. 358715, Ala. Tag 1H2-8757 and 1941 Model Carter, Flat Tandem 34′ Trailer, Ala. Tag 1T2-1155

“Upon the terms and conditions set out below:

“2. During the term of the lease the said vehicle shall be used for the transportation of freight, both intrastate and interstate, under the authority of the Company and for no other person, firm or corporation. During the time the said vehicle is so being used in the service of the Company for the transportation of freight, the Company shall have the exclusive use and control thereof.

“3. This lease may be terminated by either party after giving to the other thirty days written notice of termination, and shall continue for one year from date hereof and from year to year thereafter until so terminated.

“4. The Company agrees to pay as rent to the Owner for the use of the said vehicle, the following precentages of gross revenue derived by the Company from the operation of said vehicle, subject to the provisions of other paragraphs hereof:

“70% on all freight classified in the National Motor Freight Classification as 6th Class or higher;

“75% on all freight classified in the National Motor Freight Classification as 7th Class or lower;

“5. All identification plates, both State and Federal (but not including license tags) shall be bought in the name of the Company, and paid for by the Company, and shall be displayed on this vehicle as long as this lease remains in effect. Upon the termination of this lease, the said Plates shall remain the property of the Company and may be removed by it, together with all signs which may be painted on said vehicle. Owner has, or will, deposit $150 with the Company to guarantee performance of all provisions of this lease, and agree that any sums expended by the Company to carry out this paragraph hereof, and to reimburse the Company for any expenses caused by the Owner violating any paragraph hereof, shall be deducted from the said deposit; the remainder, thereof, if any, shall be refunded to the Owner not less than 60 days after termination of this Lease.Page 613

“6. Owner agrees to keep the said vehicle in good mechanical condition and repair at his own expense for the duration of this lease, and further agrees to pay all costs of operating same, including without restricting the generality of the above, claims for Cargo shortages, gasoline, oil, tires, parts, repairs, greasing, tarpaulins, fines for any cause, driver’s salary, and permit fees charged by any State for the transportation of property on the said vehicle in such State. For the payment of all his obligations set out in this lease, owner waives all rights of exemption under the Constitution and Laws of the State of Alabama or any other State, and agrees to pay a reasonable Attorney’s Fee, if the employment of an Attorney is necessary to collect same.

“7. The Company will pay all mileage taxes imposed by any State for the operation of said vehicle when operated in accordance with provisions of this lease; and will pay all Cargo, Property Damage and Public Liability Insurance premiums on the said vehicle when used in accordance with the provisions of this lease. The Owner, in addition to the expenses mentioned in Paragraph 6 above, will pay for State License Tags on said vehicle, and Pay Collision, Fire Theft, Insurance premiums on the said vehicle, if any such insurance is carried. In the event that the Owner is indebted to the Company for any reason under the terms of this lease, Owner will purchase on demand of Company, and at his own expense, Fire, Theft Collision Insurance on the above described vehicle, in an amount not less than his indebtedness to the Company, and such policy shall be payable to the Company and the Owner as their respective interests may appear. Insurance in excess of standard coverage, which may be required from time to time, if any, shall also be paid by the Owner. All Insurance Policies referred to above must be written by Insurance Companies acceptable to the Company.

“8. In the event the driver of said vehicle violates any rule or regulation of the Interstate Commerce Commission or any Federal, State, or Municipal Law or Ordinance, and as a result of such violation the Company is fined in any Court, Owner will reimburse the Company for such fine and all expenses in connection therewith. Owner will also reimburse the Company for any and all freight charges which the Driver of the said vehicle may collect and fail to remit to the Company.

“9. On the date of the execution of this lease, the owner is indebted to the Company in the amount of __________ dollars; and both parties contemplate that owner may become indebted to the Company in an additional amount in the future during the period of this lease or any renewal thereof. In order to secure the payment of such indebtedness, the undersigned owner does hereby transfer, sell, assign and convey to Deaton Truck Line, Inc., its successors and assigns, the above described vehicles; to have and to hold said property unto the said Company its successors and assigns; upon the condition, however, that if the owner pays the said indebtedness and does and performs all acts and things herein agreed to be done, this conveyance shall be null and void; but should default be made in the payment of said indebtedness, or should the Owner fail to comply with any one or more of the agreements made herein, then this mortgage shall be subject to foreclosure, as provided by law, in the case of past due mortgages; and the mortgagee is hereby authorized to take possession of the property hereby conveyed, or any part thereof, wherever the same may be found, without notice to the mortgagor, or to any one else and the mortgagee is authorized, after giving one week’s notice by publication in some newspaper published in said County, of the time, place and terms of sale to sell said property in front of the Courthouse door of said County, or at any other place deemed by the mortgagee appropriate and reasonably conducive to an advantageous sale; such sale to be at public outcry to the highest bidder for cash. The proceeds of the sale shall be applied first, to the expense of advertising, selling and delivering, including a reasonable Attorney’s fee, second, to the payment of the indebtednessPage 614
hereby secured with interest thereon, including any amounts which may have been expended by the mortgagee for taxes, insurance, or in satisfaction of any prior encumbrance, and third, the balance, if any, to be turned over to the mortgagor. It is agreed that the mortgagee, its successors or assigns, may bid at any such sale and purchase the property if the highest bidder therefor.

“Received from Deaton Truck Line, Inc., List of Claim Adjusters, Accident Report Cards, Driver’s Witness Cards, ‘notice’ advising no one other than an employee of this Company may ride in this vehicle, and Bulletin of 6/11/49 concerning riders, and List of Commodities which Deaton Truck Line, Inc., may handle, and by signature below, receipt is hereby acknowledged.

“Witness our hands and seals at Birmingham, Alabama, this the 24 day of June, 1949.

“/s/ E. O. Acker (Owner) “Deaton Truck Line, Inc., “By: /s/ Ramona Sims.”

London Yancey, Geo. W. Yancey, and Jas. E. Clark, Birmingham, for appellant.

Where a truck-tractor and trailer owner has leased his truck-tractor and trailer to a trucking company under a lease which provides that the owner is to keep the truck-tractor and trailer in good repair at his own expense for the duration of the lease, and the owner is killed in an explosion while attempting to repair a gasoline tank which he removed from the truck-trailer on Sunday in his own home, three days after he has last hauled goods for the company, but a day before he would probably haul another load, if his unit is in good condition, the owner’s death does not occur in the course of his employment by the company, even though he is an employee of the company. Deaton Truck Line v. Acker, 261 Ala. 468,74 So.2d 717; Prayther v. Deepwater Coal Iron Co., 216 Ala. 579,114 So. 194; McDonald v. Denison, 51 N.M. 386, 185 P.2d 508; Stuhr v. State Ind. Acc. Comm., 186 Or. 629, 208 P.2d 450; Jarman v. Trucking, Inc., 286 Mich. 492, 282 N.W. 218; Pappas v. Yant Const. Co., 121 Neb. 766, 238 N.W. 531; Pettet v. Monroe County Emergency Work Bureau, 248 App. Div. 797, 289 N.Y.S. 29; McKay v. Crowell Spencer Lbr. Co., La. App., 189 So. 508; Rector v. Ragner-Denson, Inc., 313 Mich. 277, 21 N.W.2d 129.

Lipscomb, Brobston, Jones Brobston, and W. E. Brobston, Bessemer, for appellee.

Where the review in the Supreme Court in a compensation case is by certiorari, the Court will not look to the bill of exceptions to find the weight of the evidence on any fact found by the trial court, but simply to see if there is any evidence or reasonable reference from the evidence to support facts found, and, if on any reasonable view of the evidence it will support the conclusions reached by the trial court, the findings and judgment will not be disturbed. Code 1940, Tit. 26, ? 253, et seq.; Sloss-Sheffield Steel Iron Co. v. Alexander, 241 Ala. 476, 3 So.2d 46; 19 Ala.Dig. Workmen’s Compensation 1940. Questions of whether injuries arise out of and in course of employment so as to become compensable under the Workmen’s Compensation Act depend upon their particular facts and circumstances, and no exact formula can be set forth which will automatically solve every case. Wooten v. Roden,260 Ala. 606, 71 So.2d 802. An employee’s injury may be properly held to have arisen out of his employment notwithstanding that act or conduct of employee to which injury is proximately referable was not within scope of his authority nor strictly within line of his duty, provided it was reasonably related to service he was employed to render and was in good faith done or undertaken in futherance of employer’s business. Foster v. Continental Gin Co., 261 Ala. 366, 74 So.2d 474.

LAWSON, Justice.

Mrs. Evelyn Acker, the widow of Emory O. Acker, instituted proceedings in the circuit court of Jefferson County, BessemerPage 615
Division, under the Alabama Workmen’s Compensation Law to obtain compensation for herself and for her minor children. ? Chapter 5, Title 26, Code 1940. The trial court awarded compensation. Certiorari was granted by this court on petition of the defendant, Deaton Truck Line, Inc., to review the judgment awarding compensation. We reversed and the cause was remanded for further proceedings. Deaton Truck Line, Inc., v. Acker, 261 Ala. 468, 74 So.2d 717.

After remandment the cause was tried the second time and some testimony was adduced which was not presented on the first trial. Again the trial court rendered a judgment wherein compensation was awarded. On petition of Deaton Truck Line, Inc., we granted certiorari to review the judgment of the trial court rendered after remandment.

On June 24, 1949, Emory O. Acker entered into a written agreement with Deaton Truck Line, Inc., a corporation, referred to hereafter as Deaton, wherein Acker as owner leased or rented to Deaton a truck-tractor and a trailer which, when operated together, were capable of hauling freight. We will refer hereafter to Acker’s equipment simply as a truck. Deaton was engaged in the business of hauling freight as a common carrier, both intrastate and interstate.

The written agreement, which will be set out in full in the report of the case, provided in part that Acker was to keep the truck in good mechanical condition and repair at his own expense for the duration of the lease and that Acker was to pay all costs of its operation, including gasoline, oil, tires, parts, repairs, driver’s salary, etc.

Acker drove the truck when it was being used in hauling freight for Deaton. His last trip ended on the afternoon of Thursday, May 4, 1950, at which time he arrived at Deaton’s terminal in Birmingham from New Orleans. He met his death three days later on Sunday, May 7, 1950. Just prior to his death Acker and a friend removed the gasoline tank from the truck and carried the tank into Acker’s kitchen, where Acker undertook to repair a leak in the tank. While Acker was so engaged an explosion occurred which resulted in his death. Acker’s home was located in or near Bessemer, some ten or twelve miles from Deaton’s terminal in Birmingham.

In order for an accident to be compensable under the Workmen’s Compensation Law of this state it must arise out of and in the course of the employment. See Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So.2d 666, for a discussion of those terms.

We reversed when the cause was first before this court because we concluded that Acker’s death did not occur in the course of his employment by Deaton. We said in part as follows:

“Our interpretation of the written agreement here involved is that while the motor vehicle was out of service and being repaired, it was under the sole jurisdiction and control of Acker, whose duty it was to have it repaired at his own expense. He was privileged to select the place where, and the person by whom the repairs should be made.

“At the time Acker was killed, the motor vehicle was out of service and out of commission so far as the work of transportation was concerned and incapable of earning compensation for him under his contract of employment. Acker selected the place where the repairs were to be made, at his home, a place where Deaton had no connection and where the business of Deaton did not require the presence of Acker. He elected to make the repairs himself.” 261 Ala. 472, 74 So.2d 721.

We also pointed out that Acker undertook to repair the leak in the gasoline tank without the knowledge of and not under the supervision, direction or control of Deaton.

On the second trial here under review the trial court found, as it did in effect onPage 616
the first trial, that at the time of the accident the truck was not being used in transporting freight for Deaton and that Acker selected the place where the repairs were to be made and “elected” to make the repairs himself. But there were additional findings made on the second trial based on testimony not presented on the first trial, under which findings the trial court felt constrained to come to a result different from that which this court reached on first review.

When reduced to their essence, the material “additional findings” are substantially as follows. Deaton had rules and regulations which affected Acker in the following respects. He “was not permitted to use his truck while in the service or out of the service of the employer [Deaton] for any purpose, either personal or business.” He “was not permitted to operate such truck while in a dangerous or unsafe condition, even though such vehicle was not in use for transporting the employer’s loads.” He “was required to make, or have made repairs in emergencies without operating the vehicle if it became dangerous to operate the same and this applied whether the vehicle was actually hauling freight for the defendant or not.” Acker was expected to attend safety meetings held each Monday morning at Deaton’s office.

The court made these other additional findings of fact. “The Court further finds from the evidence that the leak in the tank of the vehicle involved was discovered by plaintiff’s intestate upon the Sunday of his death, after he had received orders from his employer to begin a trip with said vehicle at 4 A.M. the following Monday morning; and that in repairing the gas tank from said truck at the time and place of the accident he was following the rules and regulations of his employer * * *. And the Court further finds that for him to have driven the truck with a leaky tank would have been dangerous and in violation of the employer’s rules. The Court further finds that in repairing the gas tank from said truck at the time and place of the accident he was following the rules and regulations of his employer, the defendant * * *.”

As is required of us, we have reviewed the case anew on this review. ? ? 28, Title 13, Code 1940; Wilkey v. State ex rel. Smith, 244 Ala. 568, 14 So.2d 536, 151 A.L.R. 765; Lattimer v. Stratford, 259 Ala. 405, 66 So.2d 720. We reaffirm our holding in Deaton Truck Line, Inc. v. Acker, supra, based on the facts there presented.

The so-called “additional findings” have been given our careful and studied consideration, and we are clearly of the opinion that those findings do not justify a result different from that reached on first review.

A careful reading of the entire judgment here under review indicates to us that the trial court concluded that the existence of the rules and regulations to which reference has been made gave to Deaton jurisdiction and control over the truck and Acker at all times in such a way as to require a holding that Acker, while making repairs on the truck at all times and places and under all circumstances, was engaged in the course of his employment by Deaton. We cannot agree.

True, Deaton was interested in the proper maintenance of the leased truck in a safe and proper running condition in order to minimize as much as possible the likelihood of liability for damages occasioned while the truck was actually transporting goods for Deaton. But the written agreement which was under consideration on the first review imposed on Acker the obligation to keep the equipment in good mechanical condition and repair at his own expense for the duration of the lease. The so-called rules and regulations added nothing in that respect.

On the occasion that Acker met his death he was doing nothing more than performing his obligation under the written agreement to keep the leased equipment in good repair at his own expense. At that time he was not under the direction or control of Deaton,Page 617
which did not even have knowledge of his repair activities, nor was he subject to their supervision in the manner, place and time in which he made the repairs. He was free to accomplish his duty of properly maintaining the vehicle as he, in his sole discretion, deemed necessary subject only to the end result being satisfactory to Deaton.

We will not undertake to discuss the cases relied upon by counsel for appellee and referred to in the judgment of the learned trial court. Most of those cases were considered by Chief Justice LIVINGSTON in his dissent on first review.

We are of the opinion that Acker’s death did not come in the course of his employment by Deaton. The judgment is reversed and the cause is remanded.

Reversed and remanded.

SIMPSON, GOODWYN, MERRILL and COLEMAN, JJ., concur.

LIVINGSTON, C. J., dissents.