American Mut. Liability Ins. Co. v. Gart

• Decision Date: 04 March 1939
• Citation: 125 S.W.2d 140,174 Tenn. 297
• Parties: AMERICAN MUT. LIABILITY INS. CO. et al. v. GART et al.
• Court: Tennessee Supreme Court

125 S.W.2d 140

174 Tenn. 297

AMERICAN MUT. LIABILITY INS. CO. et al. v. GART et al.

Supreme Court of Tennessee.

March 4, 1939

Appeal from Circuit Court, Davidson County; A. B. Neil, Judge.

Proceedings under the Workmen's Compensation Act by Ellen and Bessie Mai Gart to recover compensation for the death of Nathan Garth, employee, opposed by the Nashville Cotton Oil Mills employer, and the American Mutual Liability Insurance Company, insurer. From an adverse judgment, the employer and insurer appeal.

Affirmed.

Trabue Hume & Armistead, and Reber Boult, all of Nashville, and G F. Bedenbaugh, of Chattanooga, for plaintiffs in error.

A Lawson Davis, of Nashville, and Thos. W. Layne, of Huntsville, Ala., for defendants in error.

CHAMBLISS Justice.

This appeal is from an award of compensation for the accidental death of Nathan Garth, a colored helper in the boiler room of the Oil Mills. The sole insistence made is that this employee's death was due to his "wilful misconduct, or intentional self inflicted injury."

We find no evidence supporting the charge of "intentional self inflicted injury", and shall confine our discussion to the charge of "wilful misconduct".

While engaged in cleaning ashes from a combustion chamber of a large boiler, Garth entered the chamber thru a small opening used for that purpose in order better to clean out the ashes. The ashes, although the fires had been smothered for some hours, were still so hot that Garth was so badly burned, when some of the ashes fell or caved in on him, that he died a short while later.

He had been employed around the mill as a general laborer for some time, although his experience about the boilers, of which there were three large ones, was limited. The accident occurred at noon on Sunday. Garth had gone to work at six P. M. Saturday and at the end of his twelve hour shift, six o'clock Sunday morning, he had elected to continue working overtime. At this time the boilers were shut down and while they were cooling off he and the fireman with and under whom he worked, another and more experienced hand, Mack Robinson, were instructed to clean out the ashes, which accumulate in large quantities. The proof is that his instructions were to do this when and so long as the ashes were hot by using a rake and shovel; that, however, a thorough cleaning could not be accomplished without entering the combustion chamber, which was some five or six feet square. The proof further is that it was not regarded as safe to enter the chamber until about twenty-four hours time had been given for cooling of the ashes. The defense of wilful misconduct is based on Garth's entering the chamber after a lapse of only six hours, contrary to orders and warning.

It appears that after applying himself to the work for some hours, and apparently realizing that the cleaning was not progressing satisfactorily, he looked into the combustion chamber and expressed the opinion that he could safely go in and thus advance and perfect the job. Robinson says he warned him against doing so, but he crawled thru the small opening used for this purpose and, after a few minutes, some of the banked hot ashes fell on and burned him badly. He crawled out and was carried to the hospital. The superintendent of the plant says he passed thru this boiler room early that morning and told these Negro men to clean out the boilers with the rake and shovel, but not to enter the chamber.

The trial Judge found that Garth did not appreciate the danger, and there is evidence to this effect, the insistence being that he was (1) lacking in that experience and knowledge which would have warned him, and (2) that such instructions or warnings as were given him by his superiors were not conveyed to him in such manner as to impress him with the danger. There is evidence to support both of these insistences, apparently the view of the trial Judge.

Counsel for defendants cite and rely on Code, Section 6861, and the holdings of this Court in Brown v. Birmingham Nurseries, 173 Tenn. 343, 117 S.W.2d 739; Nashville, C. & St. L. Ry. v. Coleman, 151 Tenn. 443, 269 S.W. 919; and Collins v. Brier Hill Collieries, 158 Tenn. 317, 13 S.W.2d 332.

Analysis of these cases suggests pertinent distinctions as bearing on the essential element of wilfulness. In each of them the employee was motivated by self interest. In the Collins case "the employee disregarded the orders of the foreman in order to serve his own interests by avoiding the necessity of additional work." This tended to support the...