Alsup v. Murfreesboro Bread & Ice Cream Co.

• Decision Date: 11 February 1933
• Citation: 56 S.W.2d 746
• Parties: ALSUP et al. v. MURFREESBORO BREAD & ICE CREAM CO. et al.
• Court: Tennessee Supreme Court

56 S.W.2d 746

ALSUP et al. v. MURFREESBORO BREAD & ICE CREAM CO. et al.

Supreme Court of Tennessee.

February 11, 1933.

Error to Circuit Court, Rutherford County; John E. Richardson, Judge.

Proceeding under the Workmen's Compensation Act by J. G. Alsup and another, as dependents, for the death of Gid H. Alsup, their son, claimant, opposed by the Murfreesboro Bread & Ice Cream Company, employer, and the Employers' Liability Assurance Corporation, insurer. To review the judgment of the circuit court affirming the award of compensation, a writ of error was taken.

Affirmed.

A. B. Huddleston and G. S. Ridley, both of Murfreesboro, for plaintiffs in error.

Jas. D. Richardson, of Murfreesboro, for defendants in error.

COOK, J.

The petitioners, suing as dependents, were awarded compensation under the Workmen's Compensation Act (Code 1932, § 6851 et seq.) for the death of their son Gid H. Alsup. The controversy is whether or not (1) death resulted from injury by accident arising out of and in the course of employment and (2) whether Alsup was an employee of the corporation, it being insisted that as a stockholder and as secretary, treasurer, and manager of the corporation he was an employer and not an employee.

The board of directors employed Alsup to serve the corporation as secretary, treasurer, and general manager and fixed his pay at $200 a month. That he was a stockholder in the corporation is immaterial. The result is dependent upon whether he was an employee and as such was injured by the employment.

There is evidence that he had charge of the plant and in connection with another hired and dismissed workmen. Also that his duties carried him to all parts of the plant to supervise operation of the machinery and to inspect and see to its adjustment. His death was caused by contact with an electric current brought into the plant for the purpose of operating the machinery.

Just before the accident, while out on the sidewalk in front of the plant, Alsup told Monroe Overall, an employee, that he wanted 75 or 100 feet of wire to use in erecting an electric sign at a tourist home. The tourist home was not identified with the plant. After that statement Alsup called Overall into the building and there, while in the act of disconnecting a wire that ran to a motor attached to a cream testing machine, he received the electric shock that caused his death. His last words, spoken to Overall while out on the sidewalk, were: "Come back here and I will show you what I want." There is no evidence that the socket that connected the motor of the cream testing machine bore any relation to the mission on which Alsup intended to send Overall. The testimony of J. S. Jones tends to negative the idea of such relation. He said:

"Q. This little cream testing machine back there in the back room, did it connect from the ceiling in a double socket and run down and over to a point near a window and hang down with a socket connecting to this cream machine?

"A. Yes sir.

"Q. What was the custom and usual practice when that machine was not in use as to whether or not the socket or switch was disconnected?

"A. It was supposed to be disconnected.

"Q. And was it usually left that way when not in use?

"A. Yes sir."

It was Alsup's custom to give attention to the electrically propelled machinery in the plant.

As to what occurred after Alsup called him into the building, we quote Overall:

"Q. After you left with him from out in front of the plant did he ever tell you what he was going to show you?

"A. No sir.

"Q. Did he make any remark to you at or about the time he took hold of the socket?

"A. No sir."

Referring to the accident, Overall testified:

"Q. Were you looking at him at the time?

"A. No sir. He walked up there and we both walked back to the back, and he taken hold of this plug, and about that time a door slammed and I looked around and he hollered, and when I looked around he had the plug in his hand.

"Q. What was he doing?

"A. I suppose he was disconnecting it."

The trial judge found that Alsup was attempting to make a disconnection for the purpose of stopping the motor that operated the cream testing machine and acted in the course of his duty as an employee. There is some material evidence to support the conclusion.

Alsup's relation to the corporation is well stated in the trial judge's finding, from which we quote:

"It appears that deceased, G. H. Alsup, Jr., was a stockholder, director and official, to-wit, Secretary and Treasurer. He was also named and selected by the corporation, by resolution adopted in a meeting of the Board of Directors, as general manager. His salary was fixed at the rate of $200.00 per month. His compensation is stated in the evidence as salary at the rate of $200.00 per month and this is so stated after the giving of evidence that his position was Secretary and Treasurer and General Manager. No part of the $200.00 per month is assigned to salary as Secretary, no part to salary as Treasurer, and no part to salary as manager. The evidence does not state in express terms what was his duty as Secretary, what, as Treasurer, or what, as manager. Nor does the evidence state, in express terms, what particular things he did in the execution of his official position of Secretary and Treasurer. The evidence does show some things which he did in the execution of his position as Manager, to-wit, `hiring and firing' of workmen and looking after the general conduct of the business including acts of attention to, and manual labor upon, the machinery used and operated in making bread and ice cream. From this, I would infer and hold that, as Manager, he was a workman, a manual laborer with reference to the physical plant of the corporation, was in pursuance of his duties as Manager; and that the `hiring and firing' as expressed in the evidence, was done by him as the agency instrumentality of the corporation; all, of course, in pursuance of his employment by the principal, the corporation itself acting through its Board of Directors.

"I hold, as a matter of law, that the finding to the effect that G. H. Alsup, Jr., as Manager, had cast upon him the duty of...