Appeal from Madison Circuit Court. (CV-93-1924). Daniel B. Banks, Jr., TRIAL JUDGE.
Released for Publication March 4, 1995.
Robertson, Judge. Yates, J., concur. Thigpen, J., concurs in the result only.
The opinion of the court was delivered by: Robertson
ROBERTSON, Presiding Judge
On October 27, 1993, Susan Tucker, the widow of Ernest Allen Tucker, filed a complaint against Die-Matic Tool Company, Inc. (Die-Matic), in the Madison County Circuit Court, seeking compensation benefits pursuant to § 25-5-60, Ala. Code 1975, for her husband's death in a traffic accident on March 3, 1993. *fn1 She alleged that the accident had occurred while Mr. Tucker was working in the line and scope of his employment with Die-Matic and that it caused him to suffer fatal injuries arising out of and in course of his employment.
On November 19, 1993, Die-Matic answered, denying that Mr. Tucker's death had been caused by an accident arising out of and in the course of his employment.
On February 4, 1994, Die-Matic moved for a summary judgment, arguing that Mr. Tucker's death had resulted from injuries he had sustained in a traffic accident on March 3, 1993, as he drove home after completing his work at Die-Matic for the day. In support of its motion for summary judgment, Die-Matic attached the affidavit of its president, James D. Gaston.
On April 11, 1994, Mrs. Tucker filed a motion in opposition to Die-Matic's motion for summary judgment, alleging that at the time of his fatal injury, Mr. Tucker had been delivering parts to Specialty Heat Treating, Inc. (Specialty), for Die-Matic. She supported this allegation with the depositions of Mike Adams and Stanley Harbin, employees of Specialty; hew own affidavit; and the affidavit of Ralph E. Hatcher, an investigator for the Huntsville Police Department.
Following a hearing, the trial court, on May 18, 1994, granted Die-Matic's motion for summary judgment. The trial court's order stated, in pertinent part:
"The Court finds it to be undisputed that the deceased employee, Ernest Tucker, was traveling from his employment to his home at the time of the accident [that] took his life. It is well settled in this state that accidents which occur while [an] employee is traveling to and from work do not arise out of and in the course of his employment.
"In this case, [Mrs. Tucker] contends that an exception to this general rule applies in this case based on the plaintiff's claim that Earnest Tucker was delivering parts for [Die-Matic] as a part of his travel home from work.
"This exception was recognized in the case of Patterson v. Whitten, 57 Ala. App. 297, [328 So. 2d 301] (1976), wherein the Court upheld the widow's claim for death benefits under the Workmen's Compensation Act where her husband was killed in an automobile accident while driving his employer's automobile traveling home from work. In that case, the Court found that the employer had instructed the employee to take a specific route home in delivering the automobile and further found that '... the fact that the employee was so instructed to be determinative here.'
"In the instant case, the evidence is undisputed that the employer did not instruct Earnest Tucker to deliver any parts on his way home; that Earnest Tucker volunteered to deliver the parts on his way home; that a delivery truck would have picked up the parts the next day; and that this delivery was not a normal duty or responsibility of Earnest Tucker's employment.
"Accordingly, this Court concludes that the accident which took the life of Earnest Tucker was not an accident which arose out of and in the course of his employment and is not compensable ...