
    152 So.2d 692
    DEPARTMENT OF INDUSTRIAL RELATIONS and Swift and Company v. Everett F. RICH.
    5 Div. 616.
    Court of Appeals of Alabama.
    April 23, 1963.
    J. Eugene Foster and Wm. S. Mooney-ham, Montgomery, for appellants.
    A. Drew Redden, Tallassee, for appellee.
   JOHNSON, Judge.

This is an appeal by the Department of Industrial Relations and Swift and Company from a decree of the Circuit Court awarding unemployment compensation to a discharged employee.

The claimant filed this claim with the Department and duly pursued the administrative procedures as provided by statute and it was found that the claimant was disquli,fied under Code 1940, Tit. 26, Sec. 214, subd. C(l) as having been discharged by Swift and Company for reckless driving after drinking, which constitutes an act endangering the safety of others and is, therefore, misconduct in connection with his work. After decision by the Board of Appeals denying compensation claimant appealed to the Circuit Court, where the cause was tried de novo upon evidence heard orally before the trial judge. By an amended decree partial compensation was allowed, the decree reciting in pertinent part as follows :

"Following the accident the Claimant was discharged from his employment and has been denied any unemployment compensation.
“The Court is of the opinion that the Claimant is guilty of misconduct in connection with his work and employment, but not to the extent, or so aggravated, that he should be wholly and totally disqualified for any and all unemployment compensation. The Claimant has been in the employment of his employer for some 16 years, and the Court’s observation of him is that he is in the declining years of life.
“Upon further, full and most careful consideration of all the facts and circumstances the Court concludes that, giving a liberal, reasonable, and equitable interpretation and application to the Statute for recovery of unemployment compensation, the Claimant should be allowed partial compensation to the amount of $364.00, but is disqualified for compensation for the week in which he was discharged and for the six next following weeks as provided by Title 26, Section 214, subsection C (2), Code of Alabama.”

In pertinent part Sec. 214, Title 26 of the Code is as follows:

“An individual shall be disqualified for total or partial unemployment:
“C. (1) If he was discharged or removed from his work for a dishonest or criminal act committed in connection with his work or for sabotage or an act endangering the safety of others or for actual or threatened deliberate misconduct after written warning to the individual.
“(2) For the week in which he has been discharged for misconduct connected with his work (other than acts mentioned in subsection (1) of this subdivision) and for not less than the three nor more than the six next following weeks as determined by the director in each case according to the seriousness of the conduct.” (Italics ours).

The sole question presented on this appeal is whether claimant was wholly or partially disqualified to receive compensation. Determination of this question depends upon an interpretation of the applicable statutory provisions, hereinabove set out. A brief summary of the evidence before the trial court will suffice to illustrate our conclusion.

On the occasion giving rise to his discharge, claimant was assigned to the work of driving a truck loaded with ice cream from Montgomery to Mobile. He started on his mission around 3 o’clock in the afternoon.

Upon reaching a point on the public highway 65 or 70 miles from Montgomery,, the truck was involved in a one car accident, overturning and- coming to. rest on its. side about the middle of the highway.

Claimant “got out and put out * * * flares and everything, went to McKenzie [by car], about two miles for help * * *■ and * * * used the telephone to call the highway patrol and to call Montgomery to. report the accident” to his employer.

Upon investigation by an officer of the patrol, it was determined that the truck had proceeded in a straight line in the proper lane leaving skid marks for some 170 feet and then veered to the center for a distance of 20 feet when it turned over. The officer estimated the speed of the truck at 65 to 70 miles per hour. Shortly after-wards, the officer was joined by a supervisory officer of the employer at the scene-of the accident. Still later, the claimant, who had been treated by the late Dr. Jurdon in McKenzie, joined these two.

Evidence given by the patrolman and the-supervisory employee was to the effect that claimant was under the influence of alcohol..

The patrolman gave claimant a ticket for reckless driving, but noted on the report that he had been drinking while driving.

Claimant went to a hospital where he remained for about two weeks. Soon after he entered the hospital, a friend took the ticket and paid the fine.

Upon leaving the hospital, he reported to his employer for work. He was informed by the superintendent that he had been discharged, and the superintendent’s report showed drinking while driving as the cause.

On hearing claimant testified that he was not intoxicated at the time of the accident, but had taken only one drink around 7 o’clock that morning; that he was driving at the lawful speed of SO miles an hour, following other cars; that the car ahead suddenly slowed down to make a left turn and that he applied the brakes and tried to turn toward the right shoulder. Claimant further testified that when he applied the brakes the left front wheel locked and he was unable to keep the truck from veering to the left. His evidence also tended to show that the power brakes and power steering were defective and that he had known that the steering mechanism was defective and had reported this information to his superiors before the accident but thought it had been repaired. Other witnesses tended to refute claimant’s testimony as to the cause of the accident and the condition of the truck.

We are not called upon to weigh the evidence. As we have shown above, the trial court found that claimant was guilty of misconduct in the performance of his work. The evidence fully justified this finding.

“It is a familiar rule of law that when a civil case is tried by the court without a jury, the conclusion reached by the trial judge from the evidence given ore tenus has the effect of a jury verdict, and the judgment will not be set aside unless it is plainly and palpably contrary to the weight of the evidence.” Allen v. Zickos, 37 Ala.App. 361, 68 So.2d 841; Louisville & N. R. Co. v. Lowrey, 37 Ala.App. 112, 64 So.2d 139.

An accurate determination of the facts in this case is difficult. We note that the trial court who heard the testimony ore tenus without a jury modified his original decree. There is sufficient evidence to support his decree as amended. Inasmuch as Everett F. Rich has not taken a cross appeal, this cause is due to be

Affirmed.  