Chamber of Commerce v. Turner

• Decision Date: 09 February 1929
• Citation: 13 S.W.2d 318
• Parties: CHAMBER OF COMMERCE et al. v. TURNER.
• Court: Tennessee Supreme Court

Page 318

13 S.W.2d 318

CHAMBER OF COMMERCE et al. v. TURNER.

Supreme Court of Tennessee.

February 9, 1929.

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

Proceedings under the Workmen's Compensation Act by Mrs. Dennie Turner against the Chamber of Commerce and another for compensation for the death of plaintiff's husband. From an award of compensation, defendants appeal in error. Affirmed.

Wm. Hume and Lindsey M. Davis, both of Nashville, for plaintiffs in error.

Carpenter & Goodpasture, of Nashville, for defendant in error.

SWIGGART, J.

From an award of compensation to plaintiff for the death of her husband, the employer and his insurer have appealed in error.

The single question presented by the appeal is whether the deceased husband, Turner, came to his death by an accident arising out of his employment. It is not denied that the death was accidental, Early-Stratton Co. v. Rollison, 156 Tenn. 256, 300 S. W. 569, nor that it occurred in the course of the employment.

Taking that view of the evidence which is most favorable to the plaintiff, as we are required to do on the appeal in error of the defendants, the facts are these: Turner was employed by the Nashville Chamber of Commerce as a cook, with a chef as his superior. The Chamber of Commerce sold to George Mayo the right to collect all garbage from the kitchen where Turner was employed. Mayo sent his son, George Mayo, Jr., and a boy named Griffin to collect the garbage. They were entitled under the contract to take only the contents of garbage cans placed in the kitchen. Griffin took a plate of chicken bones from a shelf near one of the cans, and emptied the plate into the can. The plate of bones had been set aside by Turner with the intention to carry them home. When Griffin took them, Turner sought to retrieve the bones from the garbage can, and was assaulted by Mayo, or by Griffin and Mayo, and a difficulty ensued, which was terminated by the interference of others. Mayo and Griffin left without taking the garbage, and later returned with the elder Mayo. The son pointed out Turner to his father, and both of them assaulted Turner with their fists. Turner struck Mayo, Sr., with a glass jar he was carrying, and thereupon Mayo shot and killed Turner.

Some time before the killing of Turner, young Mayo had shown resentment at another cook for holding out some scraps of bread from the garbage cans for his own use, and had threatened that cook with death. Since that time he had maintained a sullen attitude toward the kitchen employees; his testimony indicating that he was conscious of humiliation because of his occupation.

It is contended that the difficulty between the Mayos and Turner cannot be said to have arisen out of Turner's employment, because Turner was acting in his own interest in seeking to retrieve the chicken bones, and was not acting in the interest of his employer.

This contention is to be tested by the rule contained in the following quotation from Carmichael v. J. C. Mahan Motor Co. (Tenn.) 11 S.W.(2d) 672:

"It is said an injury...